In a fascinating example of “turnabout is fair play”, a number of Federal Agencies have decided to utilize case law created by Federal Labor Relations Authorities (FLRAs) favorable to institutional unions to get changes in the expired Collective Bargaining Agreements (CBAs) between them and the unions representing their employees.
Under the case law, an Agency may propose changes in conditions of employment only after bargaining to agreement or impasse with the union. This case law has historically been used to force Agencies to bargain on virtually everything it does and gave unions enormous bargaining leverage. The leverage was the “big stick” of intervention by a friendly FLRA or Federal Service Impasses Panel (the Panel) after union filings claiming unfair labor practices delaying bargaining or moving to the Panel which often sought to create a “level playing field” for the unions.
The American Federation of Government Employees (AFGE) has received Agency proposals for new agreements mostly addressing union institutional issues such as official time, free office space, and other free services provided to unions in past agreements. Few employee benefits are included, but those that are include issues such as telework and uncontrolled use of alternate work schedules which in some prior agreements were so broad as to seriously affect an Agency’s ability to get the job done. Agency intent in its proposals is to reduce operational costs and put a number of employees back to work instead of using excessive taxpayer funded time for alleged “representational” activity.
Agencies such as the Departments of Education and Veterans Affairs and the Environmental Protection Agency have tried to get new agreements, and their unions have basically tried to stonewall the process by refusing to bargain, claiming the Agencies were in violation of the Federal sector labor statute. This has happened at other Agencies with smaller units as well.
Agencies have been giving the unions proposals which the unions don’t much like, but rather than offer counter proposals, those unions have filed grievances, unfair labor practice allegations and overall simply refused to show up and negotiate.
Under the present case law, if the Agency proposes a change in writing with a specific implementation date and the union fails to provide a timely, negotiable counter proposal, the Agency is free to act.
In the EPA case, the Agency gave AFGE the following:
For over a year, the Agency has unsuccessfully attempted to bring AFGE to the bargaining table to negotiate a new Master Collective Bargaining Agreement (MCBA).
On May 31, 2018, the Agency gave the Union notice to renegotiate the 2007 MCBA. Between then and now, the Agency has sent the Union written communications (July 25, 2018 and May 8, 2019) and engaged in multiple discussions with the Union’s two Chief Negotiators describing the Agency’s position that the entirety of the MCBA is subject to negotiation. AFGE has continuously asserted that only five articles – previously opened pursuant to 2013 Ground Rules – are subject to negotiation. This includes the Union’s most recent communication on June 17, 2019 in which it said “there is a disagreement between the Agency and Council 238 on what should be negotiated” and in which it disagrees with the Agency “want[ing] to increase the number of articles to be reopened” and in which it sought that “the agency cease[] and desist all action attempting to re-open articles not previously agreed to.”
With the Union’s most recent statement regarding the scope of negotiations and its’ statement that “we decline to negotiate new ground rules,” which would have been a predicate to negotiations over a new contract, the Agency provides the Union with the attached to replace in its entirety the 2007 MCBA. The Agency intends to implement this on July 8, 2019.
I guess we’ll see what AFGE does at EPA, but after a recent Panel case in which they failed to make a case for most of the proposals they advanced to that point, it appears that the union may view stonewalling as the only tactic they are good at and keep it up.
Unlike the private sector, prior Federal sector case law has resulted in unions becoming more bureaucratic than the Agencies they deal with. The panel keeps saying “prove it or lose it”. Maybe they simply can’t prove their need for what they want or are afraid to try.
As always, any opinion you read into the above, if it’s there, is mine alone.
