THE LAW OF CONTRACT RATIFICATION: TEST YOURSELF
A 2016 decision out of the Authority has added to the body of law about how unions ratify collective bargaining agreements. See AFGE, Local 1815 and Dept. of the Army, 69 FLRA 309 (2016). Consequently, we thought it might be helpful to let you test your own knowledge of the rules for ratifying agreements. Here are ten questions calling for Yes or No answers that hit the highpoints.
- Can a union insist that the agency head must first decide whether it is going to approve every provision of a pending agreement before it holds its ratification vote. Yes or No?
FLRA has held it is non-negotiable for a union to demand that ratification occur after agency head review (AHR). By law, AHR occurs after an agreement is legally “executed” and it is not executed until ratification is complete if the union has chosen to ratify it. See Charleston Naval Shipyard, 35 FLRA 1091 (1990),
2. Does law require that the chief negotiators for both labor and management have the authority to sign and execute the agreement without getting approval of those outside the bargaining table? Yes or No?
You will find case law that says they must have the authority, but so long as the union declares or notifies the agency that it reserves the right for members to ratify its bargaining team’s decisions, the final deal can be made dependent on the vote of the members, irrespective of what the union bargaining team was willing to accept. The 2016 decision noted above contained the following passage, “”Despite the statutory requirement that negotiators be authorized to make binding commitments on the issues under negotiation, the Authority has frequently recognized that both unions and agencies have the discretion to assign responsibility for executing their agreement to their negotiators or instead, to some higher authority.”
3. If a union fails to include in the ground rules for master agreement negotiations that it has a right to ratify the agreement, has it lost the right to ratify it for that round of negotiations? Yes or No?
The ground rules agreement is one place where the union could assert and notify the agency, but the union could also put the agency on notice unilaterally, via an e-mail or memo, without having to bargain a clause in the ground rules agreement.
4. If the union members reject an agreement during a ratification vote must the agency resume bargaining if the union asks and be willing to bargain over the entire contract again? Yes or No?
The 2016 decision noted above provided that, “. When an agreement is subject to ratification and the membership rejects it, the agency must resume negotiations with the union, absent a showing that the union clearly and unmistakably waived its right to reopen negotiations.” See also IRS, 64 FLRA 426 (2010) and Bureau of the Census, 17 FLRA 667 (1985).
Moreover, the contract is voted on as a whole and therefore the union can insist that even if the contract is rejected by the members based on one offensive clause that the agency return to the bargaining table to renegotiate everything. In fact, the union is under no obligation to even tell the agency why the contract was not ratified. Of course, after a good faith discussion of the union’s proposed changes after a failed ratification the agency can declare impasse and ask the Panel to impose the contract terms that the members failed to ratify.
5. Can a union reject via a ratification vote just a certain portion of an agreement and implement the rest while it renegotiates the parts the members like? Yes or No?
The union can propose this, but either party has the right to unilaterally insist that renegotiations cover everything in the agreement. If they agree to limit what is renegotiated, fine, but neither can force that on the other. (See Internal Revenue Service, 40 FLRA 985 (FLRA 1991) for an explanation of the legal background for this.
6. Can a union limit a ratification vote to just unions members, denying the rest of the bargaining unit employees the right to vote the contract that will cover them? Yes or No?
The Authority has said that, “It is well established that unions are permitted to exclude non-members from contract ratification votes, Letter Carriers II, 595 F.2d at 813, and from polls taken to determine the union’s positions in negotiations…. (See NATCA and FAA, Robert S. Ruckman, et al., 55 FLRA 601 (1999) )
7. Does the union have the right to ratify any agreement terms imposed by the FSIP? Yes or No?
FSIP decisions are final and binding and are not subject not ratification. However, if FSIP imposes just three clauses of a contract with 50 overall changes, the union members are entitled to ratify those 47 provisions that were not part of the Panel’s “final and binding” order.
8. Can a union waive its members’ right to ratify an agreement without asking the members’ permission? Yes or No?
Whether or not a union bargaining team can waive the right to ratify without asking members depends on what authority the union’s Constitution and Bylaws give its bargaining teams or President. It is an internal union matter; however, legally unions can waive the righto ratify. A savvy union bargaining team can potentially trade its right to waive ratification in return for another concession from management because ratification slows down implementation of the change and agreement, especially mid-term I&I changes. See NWSEO and NOAA, 32 FLRA 628 (1988)
9. Can a union insist on the right to ratify mid-term I&I agreements as well as master agreements? Yes or No?
The Authority held that a union is entitled to condition the execution of an I and I or midterm appropriate arrangements agreement on the ratification of its members, provided (1) the employer had notice of the ratification requirement and (2) there was no waiver of the right by the union. (SSA and AFGE, 46 FLRA 1404 (1993). Taking this holding one step further, it appears that union members could insist on the right to ratify even grievance-arbitration settlements. Only an arbitrator’s final and binding decision is not subject to ratification.
10. Must contract ratification votes be done via secret ballot? Yes or No?
This is an internal union matter that the union is free to decide via its Constitution & Bylaws or to delegate to the union’s president to decide vote by vote.