BARGAINING WITH JERKS- #2 (Negotiability)

What do you do with the Jerk on the other side of the table who needlessly declares union proposals non-negotiable just to screw-up bargaining and prevent problem-solving?  Well, we can think of eight things, and described them below. (This is the second in a series of postings.  The first was entitled, “Bargaining With Jerks #1 (information Access)”. This series is dedicated to those on the agency side of the table who come to obstruct rather than construct, whose only bargaining skill is to game-play, and who cost agencies millions each year.)

Assume that the union has proposed the following, “The agency will distribute to eligible bargaining unit employees the same percentage of their total annual salary (TAS) in performance awards that it delivers to non-unit employees during the fiscal year.  If the non-unit employees get awards totaling 1.5% of salary, eligible unit employees meeting the award criteria will have an identical percentage distributed to them in awards.”

If the resident table Jerk immediately shouts, “Non-negotiable!” because it violates 7106(a) of the statute and sets working conditions for non-unit employees, here are your options.

First, you could cave, withdraw the proposal, and not talk about performance awards again. (If this is your choice, resign your union post before your co-workers start accusing you of taking agency bribes and leaving dead animals in your desk.)

Second, you could amend the proposal to change the opening words to, “The agency has determined that it will distribute . . . .”  The Authority has ruled that the phrase “the employer has determined” turns a nonnegotiable provision into a negotiable one because it means that the employer can decide to change its mind at any time during the life of the negotiations.  (See “Negotiators Three Magic Words.”)  If agency refuses to bargain over using that simple fix, give up and look for one or more of the remaining options.

Third, you could withdraw the proposal management objects to and replace it with an unquestionably negotiable one.  If you want to send a message to management, your replacement proposal can create a lot more trouble for it than your original proposal.  For example, you could propose that awards be distributed in a fair and equitable manner taking into consideration employee grades and annual performance score,  put a lot of I&I steps around the award decisions, require publication of all award amounts by grades and appraisal scores, force the agency to announce in advance what the award criteria will be, require the agency to present you with an adverse impact analysis of the impact of its award decisions by race, gender, national origin, organizational subdivision, etc. There are a lot less attractive options for the agency than settling with the union on objective award criteria.

Fourth, you could ask management to put its assertion in writing and file a petition with the FLRA for a negotiability ruling. (Don’t forget about the recently issued FLRA “Guide to Negotiability.”  It is a great source of advice on these petitions.)  If you elect this option, you actually have two sub-options.

Under Option 1 you could file and pursue the matter all the way to a decision. While that will likely take a year or more to get, that delay is not always bad.  If your proposal is declared negotiable after you conclude bargaining on the rest of the proposals, you can insist that the agency come back to the bargaining table and bargain over that single issue.  Single issue bargaining is tough on management because there is no other issue to play off against the one it really, really does not want.  For example, if the agency bargained awards at the same time the parties were bargaining over the Official Time for Union Representatives clause it could demand total control over Awards for some concessions on time.  Not so in single issue negotiations.

Under Option 2 you can pursue a formal decision simply to force the agency to write a brief defending its position and then withdraw the proposal and replace it with a negotiable one, e.g., “Performance awards will be distributed in a fair and equitable manner by the agency.”  Doing this keeps your ability to address the issue alive for close to 50 days before you have to talk about it again and risk an unpleasant trade-off.  However, be careful because FLRA insists that the replacement proposal be “substantively different” from the one first challenged.  See ACT, 56 FLRA 236 (3/31/2000)) Expect the Jerk to be upset and whine about how you petitioned solely to force him/her to take the time to write a brief that you knew would be unnecessary.  (If that happens, admit nothing, smile demurely, and give a small nod of the head.)

Fifth, even though the agency may have pronounced your proposal non-negotiable or given you an unsolicited written assertion, nothing requires that you do anything about it immediately. (See 5 CFR 2424.11(c)). So long as you do not ask the Jerk to put his/her declaration in writing, the deadline for filing a petition with FLRA does not begin to run.  This keeps the issue alive and on the table.  If the Jerk continues to allege it is non-negotiable, at an appropriate time you can request the assertion in writing and start the process.

Sixth, rather than file a petition with the FLRA asking for a formal negotiability determination, you can file a ULP charge if what you propose has already been held negotiable.  For example, the proposal we put in the second paragraph of this posting has already been ruled negotiable.  (See AFGE, 31 FLRA 921 (3/23/88).  Never assume that just because someone is a Jerk he/she knows case law.)  By going the ULP route, you give yourself 180 days from the agency’s refusal to bargain over the proposal to file the ULP.  Often, that will mean that you already have finished bargaining the rest of the contract, which might give you a tactical advantage of forcing single-issue bargaining.  Or you could file the ULP charge promptly to see if the FLRA investigator can help enlighten management.  The value of selecting this option is that the ALJ or arbitrator ruling on your ULP can order the agency to give retroactive effect to whatever proposal is ultimately agreed or imposed by the Panel.  That could mean gobs of back pay for employees.

Seventh, you could keep the issue alive and ask the FSIP to use its powers to rule on non-negotiability objections as part of settling the entire contract.  The Panel has the power to apply negotiability decisions FLRA has already reached in other cases.  If it refuses to take jurisdiction over the allegedly non-negotiable clause, you can ask the agency for a written declaration then and petition FLRA in the hopes of getting a single-issue bargaining right down the road. (The timing of petitions filed off of FSIP actions is tricky.  Check out AFGE, 42 FLRA 599 (9/30/91) and subsequent cases to figure it out.  If the Panel does take jurisdiction over the problem clause, it can impose it as is or in modified form, make it part of a package compromise, or reject the proposal outright.

Eighth, you can convince the agency it has little to worry about from keeping the proposal actively on the table.  After all, even if it is imposed on the agency by FSIP the agency head can always disapprove it.  If a clause is disapproved the union can–

• insist on reopening the entire contract,
• seek the agency’s agreement to limit the reopener to just that single clause or a few related ones,
• agree to sever the dispute from the rest of the contract so that everything else goes into effect promptly while the union challenges the disapproval decision to the FLRA,
• refuse to sever the issue and hold up the entire contract while waiting for an FLRA ruling, or
• reach an instant compromise on replacement wording,

The Authority has issued over 3,000 negotiability decisions, most with more than one issue addressed.  No one should be sending the FLRA new negotiability cases unless challenging an old precedent or bargaining over an issue of first impression, e.g., the negotiability of the new semi-retirement option OPM is about to give employees.

In the end, your union’s ability to combat the table Jerk’s non-negotiable ploy comes down to expertise.  Most of the power a federal employee union can exert depends upon how expert it representatives are.  Do they know the case law, regs, statute, etc.?  Do they know their tactical options and procedural loopholes?  Do they have the skill to pull off any of the options available?  A large part of our job as union reps is to learn the details of our business or hook up with someone who does, e.g., a union staff attorney.  If you are lucky, union expertise makes the Jerk look like a fool in front of management and discourages his/her use in the future.