NEGOTIATORS, “LET’S BE CAREFUL OUT THERE.”

Wandering around the streets and back alleys of a collective bargaining neighborhood can be very dangerous—even fatal to one’s future career prospects as a negotiator. A new FLRA decision reminds us of a signature line in a decades-old cops and killers show called Hill Street Blues where the shift sergeant uttered the words quote above as he sent his officers out onto the streets. Check it out. A new decision out of FLRA highlights why negotiators need to be just as cautious. The agency proposed a significant change in working conditions and the union submitted only the following bargaining proposal, “The Union proposes maintaining the status quo pertaining to the [policy] until the completion of the term negotiations of the Master Agreement.  The [p]arties would then use the procedures agreed to in the new Master Agreement to address the issues in the [A]gency’s proposal.” Can you see why arbitrator and FLRA allowed the agency to refuse to bargain and unilaterally implement? [Hint, the proposal was timely, it was not de minimis, and the agency did not have a covered-by defense.]

Here is another hint. Before the Authority got to the heart of the matter it wrote,

“the Authority has held that, during such bargaining, an agency is obligated to bargain only over proposals that are reasonably related to the proposed change in conditions of employment.  An agency, therefore, is not required to bargain over proposals that go beyond the scope of a proposed change or over a matter that is conditioned on an agency bargaining over proposals that are outside the scope of an agency’s impact-and-implementation bargaining obligation.” See GSA and NFFE, 70 FLRA 14 (2014)

The Authority then held that the sole union proposal was non-negotiable because by linking negotiations over the proposed change to unrelated negotiations, namely, the term negotiations, the union’s demand was not within the scope of what the agency had to bargain.

“The Union’s proposal requires the Agency to delay implementation of the policy until after the parties complete negotiations over a new term agreement, including proposals unrelated to the Agency’s policy.  As such, the Union’s proposal goes beyond the scope of the proposed change and is not reasonably related to the impact and implementation of the policy.  Consequently, the Union’s proposal is outside the statutory duty to bargain.”

The union could have protected itself by submitting additional proposals that were unquestionably negotiable or it could have delayed bargaining over the proposed midterm change so that term bargaining would have bene concluded before this issue. There are more than a dozen ways to delay mid-term bargaining. Failing to do either, the union negotiators gave the agency a free pass to unilaterally implement.