NEGOTIATORS, DON’T MAKE THIS MANAGER’S MISTAKE

Here are the facts. The union asked to negotiate over a proposed agency mid-term change.  The parties met a few times to negotiate over the topic and the management rep let the union know that he would really like it if the union would drop an unrelated grievance.  As they got close to a deal, the manager again brought up the grievance and told the union he would not enter a final deal until it withdrew this one grievance that was really bugging him. His precise words were that he “had no incentive to bargain” so long as the grievance was still active. Consequently, they never signed a deal and the proposed change was implemented.  The manager’s error was to refuse to continue to bargain unless the union took care of an unrelated issue.  But the legal logic behind that is more complicated than that.  Here is how FLRA explained it.

“Besides the obligation to bargain over employees’ conditions of employment, an agency and a union may also negotiate over a wide range of permissive subjects of bargaining. E.g., FDA, 53 FLRA at 1273. Permissive subjects include proposals that would require a party to limit a right granted to it by the Statute, such as a proposal which would compel the union to withdraw a grievance….The Authority has held that, while parties may negotiate over permissive subjects, they are not required to do so. E.g., FDA, 53 FLRA at 1274. Further, Authority precedent clearly establishes that a party violates § 7116(a)(1) and (5) of the Statute by insisting to impasse on a permissive subject of bargaining. E.g., AFGE, Local 3937, AFL-CIO, 64 FLRA 17, 21 (2009).”

The lessons to take away here, no matter which side of the table one is on, are as follows:

• It is OK to bring up an unrelated matter in negotiations and even to let the other side know how very, very generous you might be if it did as you wished on the other matter.
• But you cannot refuse to bargain unless the other matter is taken care of nor can use insist to impasse that the unrelated issue be dropped.  As soon as a legally proper impasse is reached, you have to drop the request that the other unrelated matter be taken care of.
• If the union makes this mistake, the agency can unilaterally implement its proposed change—although it may have to do so using the terms of its last best offer.  The law is not crystal clear on that.
• If the agency makes this mistake, the union can file a ULP and most often force it to rollback any change it implemented, make whole any harmed employees, and cough up attorney fees if there is any back pay entitlement.

The risk of making this mistake is very high in agency initiated mid-term negotiations because the right to bargain I&I is limited to issues related to the proposed change.  FLRA insists that a party can only bargain to impasse over issues that are within the “scope” of the change.

Obviously, in term negotiations where there are a lot of unrelated issues on the table and often times pending grievances related to those issues, the parties have a lot more latitude to mix and match issues.  However, if at any time you find yourself about to tell the other side that you refuse to bargain over something unless it takes care of a different something, double check with the union’s counsel to make sure you state that in a way that keeps you in the good graces of the law.

This post was drawn from DOJ, FBP and AFGE, 67 FLRA No. 57 (2013).