CLONING THE STATUTORY RIGHT TO BARGAIN—A PLUS OR MINUS?
While the statute gives unions the right to bargain over conditions of employment, FLRA has also recognized that the parties can create an additional contractual right to negotiate. Generally, they do this when drafting an agreement article dealing with the union’s right to be notified of mid-term changes and bargain. Those provisions often paraphrase the statutory right to bargain because the actual language of the statute is too legalistic to drop into a collective bargaining agreement as is. But is adding a contractual right to bargain to the existing statutory right a plus for the parties or not?It seems to us that depends upon how they word the contractual right to bargain and how an arbitrator interprets those words once a dispute arises. For example, suppose the master collective bargaining agreement article dealing with mid-term negotiations said, “The union shall be notified in advance and given the right to bargain before any change in working conditions.” The phrase “any change” is certainly broader than how the FLRA interprets the statutory right to bargain. It normally demands that the change create more than a de minimis impact, that the matter not be expressly addressed already in an existing agreement, and that it fall within the Authority’s concept of conditions of employment. The sentence we wrote above giving the union a right to bargain by agreement does not contain any of those limitations. So, a union could respond to a unilateral change in working conditions with a grievance claiming the agency violated not only its statutory right to bargain but also the broader right to bargain created by the agreement.
But, if you are thinking that the ability to create a second right to negotiate only helps the union, check out AFGE, Council of Prison Locals and DOJ, Federal Bureau of Prisons, 68 FLRA 757 (2015). The agency claimed that after losing $100 million in its UNICOR prison industries over the past few years, it would close certain UNICOR operations and institute staffing reductions at various facilities. The union grieved claiming its contractual right to bargain prior to implementation of any change had been violated. Unfortunately for the union the arbitrator read over the words they had used to create a right to bargain by agreement and found that the agreement right to bargain was actually narrower than the statutory right.
The union filed exceptions with FLRA claiming, among other things, that the arbitrator’s interpretation of the agreement right to bargain violated the statutory entitlement to bargain. In short, they wanted the Authority to rule that absent some clear and unmistakable waiver of some part of the statutory right to bargaining an agreement provision creating a right to bargain can never be interpreted as conveying fewer rights than the statute does. FLRA rejected the argument saying,
The Authority has found that contract provisions that define, or limit, parties’ obligations to engage in mid-term bargaining are enforceable. Therefore, when an arbitrator finds that an agreement limits a party’s statutory-bargaining rights, and that finding draws its essence from the agreement, an award that enforces the agreement is not contrary to law.
So, the parties should think about how they draft their mid-term bargaining article. Arbitrators are unlikely to ignore words of the agreement as mere prologue or otherwise non-binding. Nor are they likely to take just one party’s word for it that the intent behind the words creating a right to bargain via agreement language were meant merely to mirror the statutory right—nothing more or less. If that is what they intend, then they would be wise to write that into the agreement.
P.S. Yes, we know that this has dealt with a very specialized topic of interest to very few readers. But the best negotiators get there paying attention to the little stuff.