In the Federal sector, union members ratify an agreement with the agency before it becomes final. This article explores the issue of whether the ratification process is really a right granted by the labor relations statute, and if so, if that should be changed.
Several years ago, I wrote about this issue from the perspective of trying to have it addressed in case law by the Federal Labor Relations Authority (FLRA). That went nowhere, so now I want to try a different approach: changing the Statute itself.
Current case law indicates that the union has a statutory right to ratification. Thus, when the union exercises its “right”, union representatives are not authorized to reach final and binding agreements, and any agreements reached with the agency are only tentative agreements until ratified by the membership.
Yet, case law also suggests that it is a violation of the Statute if management does not provide a “duly authorized” representative to bargain with the union. It seems the Authority over the years has had somewhat of a one-sided view of what the “duly authorized” bargaining representatives means and the agreement execution provisions of the Statute.
In the Social Security Administration and American Federation of Government Employees, Council 220, AFL-CIO, 46 FLRA 1404 (1993) (SSA), the Authority affirmed the Administrative Law Judge’s (ALJ’s) conclusion that the union has a statutory right to seek ratification even in the absence of a bilateral agreement if the agency has notice of the ratification requirement and there is no waiver by the union.
Additionally, the ALJ doubled down on this theory by stating, “Furthering the right of employees to ratify labor agreements, implicitly and logically flows from section 7102 of the Statute where employees have the right to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter.” Id. at 1415 (emphasis added).
The ALJ also stated, “Whether a union must provide representatives empowered to negotiate and enter agreements is not an issue since it is within the union’s province to determine whether its delegated representatives need seek ratification.”
In my view, this so-called right is neither implied nor logical. In fact, the position offered by the Authority is at best contradictory as it relates to authorized representatives, tentative agreements (the cornerstone of a ratification process), and their position on a union’s right to ratification.
On several occasions, the Authority recognized contractually, as in Department of the Air Force, Griffis Air Force Base, Rome, NY and American Federation of Government Employees, Local 2612, AFL-CIO , 25 FLRA 579 (1982), or statutorily as in SSA, that union ratification of a tentative contract may be a precondition to a final and binding agreement.
In U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, NH and Federal Employees Metal Trade Council, 44 FLRA 205, 206-08(1992) (Portsmouth), the Authority added another turn to their twisted logic regarding authorized representatives, tentative agreements, and the statutory rights of the parties.
In Portsmouth, the Authority affirmed an ALJ decision finding that management did not commit a ULP when they did not execute the terms of a tentative agreement because they had established a past practice that no agreement was final or binding until it was reviewed and approved by its designated officials.
The Authority stated:
An agreement, for the purposes of section 7114(b)(5) of the Statute, is one which authorized representatives of the parties come to a meeting of the minds on the terms and conditions over which they have been bargaining.
The Authority also stated as it relates to each party’s statutory rights and the past practice:
The union’s bargaining representative knew or should have known, that any agreement reached at the bargaining table was merely tentative subject to review and approval by both parties. … We further find that this practice constitutes a clear and unmistakable waiver by each party of its rights under section 7114(b)(2) of the Statute to insist that the other party send representatives to the bargaining table who are duly authorized to reach agreement.
The review and approval of tentative agreements as described in Portsmouth is analogous to that of a union member ratification process. The parties reach a tentative agreement, subject to the approval of some other body. If, as stated in Portsmouth, it is a waiver by each party of its rights, then, in theory, the parties only have a tentative agreement, in which management could also construct some type of management ratification process. That theoretical process would seem to conflict with the intent of Congress as it relates to the premise of “collective” and “good faith bargaining” between the exclusive bargaining representative of unit employees and the employing agency. As it stands, the only explicit statutory precondition to an agreement is the agency head review process to ensure agreements conform to law (5 U.S.C. § 7114 (c)).
To add to the contradictory nature of the Authority’s logic on ratification, the FLRA indicated in SSA that it relied upon private sector cases decided by the National Labor Relations Board (NLRB) to reach its conclusions. While the quotes from the NLRB cases in SSA would lead one to believe the cases supported the Authority’s logic, some of the language not quoted by the Authority in these cases would lead one to believe that while the ratification process is an internal union matter, ratification itself is based on an agreement of the parties.
The following are passages excerpted from the NLRB cases cited in SSA not quoted by the Authority:
Houchens Market v. NLRB, 375 F.2d 208(6th Cir. 1967)(Houchens Market):
We agree with the decision of the 4th Circuit in NLRB v. Darlington Veneer Co., 4th Cir., 236 F.2d 85, at page 88, wherein the Court stated:
The purpose of collective bargaining is to fix wages, hour and conditions etc. NLRB v. Highland Park Mfg., Co., 4 Cir., 110 F.2d 632, 638. This can be done satisfactorily only if a bargaining agent is selected to represent all employees with full power to speak on their behalf. The purpose of the statute would be largely frustrated if the results of bargaining must be submitted to a vote of the employees, with all the misunderstandings and crosscurrents that would inevitably arise in an election of the sort.
We do not mean to say that ratification and nullification provisions would not be legal and valid if agreed to by the parties, nor that advancing such proposals is of itself an unfair labor practice. We think however, that the insistence upon such provision as a condition of entering into an agreement is so unreasonable when objected to by the other party as to furnish itself a sufficient basis for the finding by the Board of a failure to bargain in good faith.
NLRB v. Darlington Veneer, 236 F.2d 85 (4th Cir. 1956) (Darlington Veneer):
The statute contemplates the making agreements by the representatives of employees, not the employees themselves, giving “statutory approval” to the philosophy of bargaining as worked out in the labor movement of the United States”.
[Management’s] ratification clause laid down as a condition to the effectiveness of the agreement that it be ratified by a majority of employees…. It is clear, therefore, that the clause has no reference to conditions of employment, but merely prescribes a nonstatutory manner of determining whether the terms and conditions fixed in the agreement should become operative.”
“However, as the Board has held, collective bargaining as contemplated by the [National Labor Relations] Act is a procedure looking toward the employer making agreements with accredited representatives of his employees… It must be presumed that when the Respondent’s employees chose the Union as their representative for the purpose of collective bargaining, they did so for the purpose of having it make collective bargaining agreements for them with the Respondent.
As described in SSA, the union’s implied right of ratification has no basis in the plain language of the Statute. Moreover, the private sector case law referenced in SSA, which was based on the NLRB court decisions in Houchens Market, Darlington Veneer, and NLRB v. Highland Park Manufacturing Co., 110 F.2d 632 (4th Cir. 1940) explicitly speaks to a bilateral agreement of the parties for ratification.
Based on the NLRB cases, it is plausible that the union’s “right” of ratification is at best a right granted through the bargaining process, not a statutory one.
After many years in labor relations, and witnessing the lack of efficiency brought on by the ill-conceived notion of a union’s statutory right to ratify agreements, I wonder if it’s time to amend the Statute to ensure both parties come to the bargaining table with duly authorized representatives that can reach final and binding agreements for their respective constituents and put some teeth in the rights of the parties under section 7114(b)(2) of the Statute to insist that the other party send representatives to the bargaining table who are duly authorized to reach agreement.