WHAT IS A PROPHYLACTIC PROPOSAL?
It is not only something union negotiators can use to protect members from the adverse effects of a management intrusion into their lives, but also something the FLRA endorses.
Almost every time management proposes a change in working conditions, unions are at least entitled to bargain over the impact and implementation of it so long as their proposals meet certain criteria. They must intended to be an arrangement for employees adversely affected by the exercise of a management right. Stated more specifically, the FLRA requires that the union proposals be–
- “sufficiently tailored” to compensate employees suffering adverse effects attributable to the exercise of management’s rights,
- where it is not possible to draft a proposal targeting only those employees who will be adversely affected by management’s actions, to eliminate the possibility of an adverse effect.
The FLRA calls the latter “prophylactic” proposals because they eliminate the anticipated adverse effects for all employees rather than protect a few.
For example, in the last few days the Authority ruled on an AFGE Council of Prison Locals proposal that prisoners be prohibited from wearing watches containing metal parts. (See AFGE and Dept. of Justice, 66 FLRA 819 (2012)) The union made the proposal in response to a management decision to install metal detectors for prisoners to pass through when returning to their cell blocks from the yard. The newly positioned detectors slowed down the movement of prisoners making it more dangerous for the guards as well as requiring them to remain outside longer, where they often were subjected to substantial heat or cold.
Management said the proposal was non-negotiable because it would help the guards who work at all the prison’s metal detectors, not just at the newly installed one in the yard. Consequently, the proposal allegedly was not narrowly or sufficiently tailored. When management failed to show that the union could have proposed other ways of avoiding the adverse impact just on those guards working the yard metal detector, FLRA held the proposal negotiable. “Prophylactic proposals … will be found sufficiently tailored in situations where it is not possible to determine reliably which employees will be adversely affected by an agency action so as to draft a proposal … to apply only to those employees.”
So, if management ever alleges that some impact proposal you have made is not narrowly tailored to just the employees impacted by its proposed change, you have two options. First, try to narrow it. Second, if that is not possible, consider moving in the other direction and countering with a prophylactic proposal.
Other examples of prophylactic proposals can be found in the following cases: NTEU, 65 FLRA 325 (2011), AFGE, 65 FLRA 142 (2010), AFGE, 65 FLRA 142 (2010), AFGE 64 FLRA 953 (2010), 64 AFGE, FLRA 869 (2010), and AFGE 64 FLRA 728 (2010).