A NEGOTIATOR’S THREE MAGIC WORDS
Abracadabra won’t work; neither will hocus-pocus. But the phrase, “Management has determined” will open doors at a bargaining table.
The FLRA has ruled that the parties can write into a contract the substantive details of how management will exercise a 7106 management right if they precede the description with those three words.
For example, management has a statutory right to determine how many levels it will use in its performance appraisal system, e.g., two, three, four or five. The union cannot demand to negotiate over how many. However, the union can insist that whatever decision management has made be included in the negotiated contract if it writes the provision as follows: “Management has determined to appraise employee performance using four levels.” In contrast, if the union insisted management bargain over the following clause the union would be violating law: “Management will appraise employee performance using four levels.”
If the union includes the words “management has determined,” the Authority treats whatever follows merely as memorializing “for informational purposes” the Agency’s unilateral determination. Even if the parties actually did bargain over and agree that the appraisal system would operate with four rating levels, FLRA allows this wording trick because “the Agency remains free at any time during the life of the contract to determine that” it wants to abandon the four level system and move to a different number of levels. Stated differently, “by agreeing to the use of the phrase ‘the Employer has determined’, the Union acknowledges that the determination. . .” of how many levels there will be “constitutes an exercise of a management right. Furthermore, the Union agrees that the Agency can change that decision at any time, as long as it gives appropriate notice to the Union of the change.”(See NTEU, 41 FLRA 1106.)
For example, if halfway through the agreement management decided to change to a five-level system, it can propose that to the union. Of course, like any other change in a management rights area management cannot actually implement its proposed change until the bargaining is over, which can take a while.
There are several advantages to both parties from using this trick. First, it makes the collective bargaining agreement more complete; the parties do not have to omit major details employees and supervisors will need and send them to other documents to piece together all of details of the system. Second, it removes any doubt as to what management’s policy or practice is. There is less chance that some managers will start creating their own policies or practices because even they are unaware of some obscure provisions of agency regulations. Third, one clear rule in the collective bargaining agreement should also avoid disparate treatment of protected employees in violation of the civil rights laws. Fourth, this helps the parties avoid a negotiability dispute for the time being. There is no need for management to declare a union proposal non-negotiable if it mirrors precisely what it has decided to do on its own. Finally, this removes any doubt that the union can grieve to enforce the four-level system; the rule has unquestionably been incorporated into the agreement.
But there are a few things to keep in mind when using this phrase. The FLRA insists that “…the Union specifically state[s] that it is not attempting to create any bargaining rights beyond those that exist under the Statute and other controlling authority.” (See AFGE , 46 FLRA 1590 ) The easiest way to do that is to define the meaning of “management has determined” elsewhere in the agreement. “It is not enough for the union or parties to simply restate an existing agency policy or practice” verbatim. (See AFGE, 46 FLRA 1494)
By the way, this magic phrases could be written as “The Employer has determined,” or “The Agency has determined.”
But, one word of caution. Recently, the Authority wrote the following words in a case virtually identical to the hypothetical example above about number of rating levels: “…it is not contrary to § 7106(a)(2)(A) and (B) for an arbitrator to find that an agency may alter the number of performance-rating levels without bargaining, even if a different number is set forth in an agreement.” We have not the slightest clue as to how it could say that management may make the change without bargaining. Unless the FLRA omitted from the decision some major facts, the union at least had the right to bargain over the impact and implementation of the decision. Perhaps FLRA was just being sloppy when it said there was no bargaining, but really meant no bargaining over the substance of the decision to change. (See AFGE, 64 FLRA 532) We can only hope.