WHAT CONSTITUTES “COLLECTIVE BARGAINING?” DO YOU REALLY KNOW?
Here are the facts of an interesting scenario that union negotiators need to watch out for. The agency gave the union formal notice of a proposed change in working conditions. When the union rep asked for a briefing on the proposed change, that led to a series of meetings between the union and management officials where they talked about lots of issues dealing with the substance of the change, the impact on employees and implementing procedures. Proposals were never exchanged nor were the meetings like the parties’ formal bargaining sessions where the two teams sat opposite each other as adversaries. These meetings were less formal, and the union and management reps did not sit apart from one another, but were spread all around the room. However, after about a half-dozen of these brainstorming sessions the agency said it had to implement in four days and it was going with the last draft of the change the parties had examined. The union president told the agency it had to bargain before it could move ahead and that the union was going to submit formal proposals within ten days. That is how things stood when the agency implemented and the union filed a ULP charge with the FLRA. The odds are that the union will lose and here is why.
Collective bargaining does not have to be formal with proposals, meetings of opposing teams, or chief spokespersons. Once a union receives formal notice of a change, 7114(a)(4) of the Statute requires agencies and exclusive representatives, “through appropriate representatives, [to] meet and negotiate in good faith for the purpose of arriving an a collective bargaining agreement.”…”Collective bargaining” is defined in section 7103(a)(12), as
the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession.
Under section 7114(b), the duty of an agency and an exclusive representative includes the obligation to negotiate “with a sincere resolve to reach a collective bargaining agreement” and when FLRA investigates an alleged failure to bargain it looks at the totality of the situation, not discrete actions. So, were those conditions met by what we described the facts to be? Probably.
FLRA addressed a similar situation about 20 years ago and was impressed with the following facts:
(1) management assured the Union President at the outset of these ad hoc discussions that it was ready to meet with him and resolve the issues; and
(2) the Union President spent the months working closely with the managers on the substance, impact and implementation of proposed change, including making suggestions that were discussed and adopted in part.
When the union filed a ULP charge FLRA said, “These circumstances demonstrate that, whatever the nature of the discussions was prior to April 1994, the discussions from April 1994 through January 1995 involved substantial joint involvement of the Union President and representatives of the Respondent in an attempt to reach agreement on the design and layout of the facility.…The fact that the sessions were conducted in a partnership atmosphere, as opposed to “traditional” collective bargaining, does not preclude a conclusion that the sessions constituted collective bargaining within the meaning of the Statute. The definition of collective bargaining set forth in section 7103(a)(12) does not prescribe any particular method in which collective bargaining must occur. It is well-recognized that collective bargaining may occur in a variety of ways, including the use of collaborative or partnership methods.” Consequently, the union lost. See U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, KY and NATCA, Local SDF, 53 FLRA 312 (1997). See also 55 FLRA 317 (1999),
Under the somewhat hypothetical facts we outlined at the outset, the union should have asked the agency to postpone implementation while it requested the assistance of the FMCS and FSIP. It should have treated management’s announcement of an imminent implementation of the proposed changes as a traditional impasse situation and protected itself.
Although this does not happen every day, after a four-year experiment with cooperative efforts starting in the late 80’s, another eight years of partnership under Clinton-Gore and another eight to Obama’s Forums & PDI there are a lot of informal discussions to resolve problems. That is great, but neither side should forget the basic elements of collective bargaining when it comes time to end all the talk and implement.