The Federal Service Labor Management Relations Statute (Statute) provides that an agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency. (5 U.S.C 7114 (c)(1))
This process is commonly called agency head review. For many years, the only agreements in many agencies subject to agency head review were term collective bargaining agreements – commonly called a union contract. Now, it is a normal requirement in various agencies for all types of collective bargaining agreements, including midterm agreements, no matter how insignificant, be submitted for agency head review.
The job of the agency head is to approve the agreement within 30 days from when the agreement is executed if the agreement is in accordance with the provisions of the Statute and any other applicable law, rule or regulation. The role is not to pass judgment on whether the agency head likes or doesn’t like what was agreed to but whether it violates law or regulation.
The agency head, according to a strict reading of the law, simply says it approves or disapproves the agreement. The law does not specify what a disapproval should say and how specific it should be. If the agency head finds a provision non negotiable the union has the right to file a negotiability appeal over this ruling.
The Good
The good of agency head review relates to the initial enactment of the Statute in 1978. The Statute is a very complex approach to collective bargaining.
Federal sector bargaining is very dependent on legal interpretation and due process systems. When the Statute was first enacted, both labor and management really did not know how bargaining was to work and especially what was negotiable and what was not. Some might say that is still the case.
In the beginning of the Statute, Agency head review provided a certain consistency to how an agency approached negotiability. This was useful to having a more general understanding of what a local activity could or could not bargain about.
Since then, the fear of agency head review can, to a certain extent, require the parties, while bargaining, to take into account whether something is truly negotiable. It can lead to a more realistic approach to making and agreeing to proposals.
The Bad
Agency head review can give an agency two bites at the apple. The bargainers at the table can agree to a proposal that was a part of an agreed upon package to achieve agreement. However, the agency head then declares a specific union proposal, which was the linchpin of the agreement, non-negotiable. The agency bargainers then refuse to bargain over anything but the proposal declared non-negotiable by the agency head. Had this proposal not been agreed to by management, the union may not have agreed to the rest of what was agreed to as part of the package.
The Agency head has the right to declare agreed upon proposals non-negotiable. The union has the right to file a negotiability appeal challenging the agency head’s negotiability decision.
This becomes a decision point for the union. Should it file an appeal which could take up to a year or more to be resolved by the FLRA or agree to a settlement of something less than the parties originally agreed to?
It is not uncommon for a manager at the bargaining table to say we are agreeing to your proposal, but we believe the agency head will disapprove the union’s proposal. The union has to decide whether to take a chance on agency head review or make a new proposal.
The Ugly
There can be considerable abuse of agency head review. It is not infrequent that the agency head disapproves a collective bargaining agreement without providing any rationale for the disapproval.
During one contract negotiation that I worked on as a mediator, the agency head declared the entire official time article (this occurred before the Trump Executive Order restricting federal employee unions) and the entire performance appraisal article non-negotiable with no explanation.
I have also seen agency head disproval letters which disapproved the contract with no indication of which articles were non-negotiable – the letter just stated the contract was disapproved. Quite frequently, when an article is declared non-negotiable by the agency head, there is no rationale for the declaration.
When the agency head disapproves something, it also, and not infrequently, is not because a union proposal is non-negotiable but because it doesn’t like what the agency bargainers agreed to. Looking at some agency head disapprovals, it is clear that it is not a question of law but of policy. The local activity did not do what the agency expected of its bargainers.
The Statute does not specify that the agency head must specify the rationale for why it had disapproved an agreement. It only specifies the time frame for when disapproval must take place.
However, in a recent decision: American Federation of Government Employees Local 3430 and the United States Department of Health and Human Services, Centers for Disease Control and Prevention, Institute for Occupational Safety and Health, Morgantown, West Virginia, 71 FLRA NO 167, the FLRA granted a union’s negotiability appeal from an agency head determination of non-negotiability on 16 articles because the agency simply stated they were contrary to law or regulation with no rationale to support its declaration of non-negotiability.
What Can Be Done
The quality of agency head review varies considerably between agencies. Some agencies do an excellent job of reviewing collective bargaining agreements and some do a poor job. Some obey the requirement that what is disapproved must be contrary to law, rule or regulation and some just disapprove what they don’t like regardless of the law. Some provide rationale including case citations supporting their decisions which makes it easier for the parties to understand why the article or proposal was disapproved while others provide little or nothing in support of their disapproval.
The parties can fix the lack of rationale by having a ground rule provision which requires the agency head to provide the rationale for a disapproval and the union likewise provide the rationale for a failure to ratify an agreement. They also, in the ground rules, can make it clear whether any disapproved sections will be severed and the remainder of the contract will be implemented, if they so choose. It is in the agency’s best interest to supply the rationale for a disapproval because it lets the parties know what they need to bargain about and greatly reduces the strife that can come with a disapproval.
