WITH FLRA ENCOURAGEMENT AGENCY SHOOTS ITSELF IN FOOT DURING BARGAINING

After a long winter’s nap during which it did not issue a decision for two months, the FLRA ALJ shop has rejoined active society with a decision that exposes a major flaw in agency term agreement bargaining strategies as well as FLRA case law.  In AFGE, Food Inspection Locals and DoAg, FSIS, WA-CO-17-0402 (April 30, 2018) the ALJ found the union committed a ULP when it refused to bargain in response to the Agency’s demand to renegotiate the term agreement. The union claimed that the term agreement required the agency to submit the substantive proposed changes it wanted in the agreement before it was obligated to bargain even the ground rules for the pending renegotiation.  The GC and the ALJ disagreed finding that a vaguely worded clause did not waive the agency’s statutory right to initiate term bargaining. The FLRA will most likely uphold the decision in six months and the circuit court could rule about 9 months after that if the union appeals.  At that point, the union will have lost with the GC, ALJ, FLRA and Court and have no choice but to return to the bargaining table.  BUT IT WILL BE A TOTAL VICTORY FOR AFGE.

No union in its right mind wants to renegotiate its term agreement right now given the anti-employee invaders the President has put on the FLRA and FSIP.  The only viable strategy is to delay term bargaining until there is regime change in Washington. By merely filing a ULP against a foot-dragging union, the agency handed the union the vehicle the union needed to likely get within a year of the next Presidential election before bargaining even begins. All unions should be so lucky that the agencies they deal with follow this agency’s strategy, which was encouraged and endorsed by FLRA. The Authority ruled years ago that neither party is obligated by law to reveal the substance of the term contract changes to the other before ground rules bargaining begins. The Authority believes that the parties should bargain ground rules without any idea of the number or significance of the changes either party proposes.

If the FLRA had held that the party initiating term agreement renegotiations must give the other party its initial proposed substantive changes if requested, then this agency could have unilaterally implemented all its desired changes a year ago without having to bargain anything with the union or having to survive agency head review.  Or, if the agency had not been so afraid to show its opening hand to the union when it requested the proposed changes, it could have done the same thing.  A long list of FLRA decisions authorizes an agency to unilaterally implement its last best offer if the union refuses to bargain, but only if the details of the offer are on the table when the union refuses.  By refusing to put before the union its proposed changes in detailed contract language that could be immediately implemented if needed the agency gave away its biggest piece of bargaining power. It has nothing on the table to unilaterally implement.

Personally, we believe the Authority should reverse itself and hold that the initiating party must give the other bargaining party its initial proposed substantive changes, if that party requests.  Going into ground rule bargaining without any idea of whether the agency is going to demand five changes or 500, whether it proposes to fine tune existing provisions or take back existing rights, or whether its proposed changes will enrage members or leave them unfazed, forces the union to take a very defensive ground rules position.  It typically will insist on a slow moving schedule, maximum travel and per diem reimbursement, numerous procedural traps, elaborate ratification procedures, etc.  On the other hand, if the union knew that the agency only wanted to fine tune the AWS, telework, and appraisal provisions without gutting them, it is likely to bargain cooperatively to get a few modifications of its own.  As the law stands now, FLRA forces the parties to bargain ground rules blindly.

Of course, agencies do not have to wait for FLRA to change the law.  They could voluntarily give the union their initial proposed substantive language changes.  After all, doing so creates an enormous liability for the union if it engages in bad faith bargaining and it might just result in the union approaching bargaining in a less defensive and threatened spirit. That typically means quick, low cost deals. But management tradition, paranoia and its individual negotiator’s lack of self- confidence will have to be overcome before agencies do the smart thing. If one used the current management strategy to buy a car it would mean the buyer would go to a car lot and refuse to tell the dealer what car he wanted until the dealer gave him a price.

Of course, unions need to learn as well from this case. This union refused to bargain until the agency handed over its initial proposed substantive change, but if it had the union would have lost a lot of bargaining delay power.   They generally should not ask for the agency’s proposals until after ground rule bargaining is done—or at least do that until the employee hating invaders are driven back to their swamps.  Moreover, if the agency gives them its proposed substantive changes in detailed contract language that can be implemented the union needs to make sure it stays well within the bounds of good faith bargaining so the agency does not have the legal basis to unilaterally implement.