TEST YOURSELF #2-  Strategic Negotiability Decisions

Assume that after a week of bargaining over a management-proposed mid-term change, management tells you that one of your four remaining unagreed proposals is non-negotiable?  This is an important proposal to you and you have good arguments as well as evidence to support it.  What do you do?

Let’s start with a comment on each of ten options unions have.

First, you could file a formal negotiability petition under 5 USC 7117(c). Doing so would take the proposal off the bargaining table and permit you to continue negotiations on the rest. If you want to do that, just ask for management’s negotiability assertion in writing.  But never ask for it in writing unless you plan to file a petition because doing so forces you to file the petition in 15 days or drop the issue. Most of the other options also disappear.

Once you trigger the process, you have 15 days from the day you get the written assertion to file your petition. Management then gets 30 days to submit its brief. You have the next 15 days to submit a rebuttal. In all likelihood, your negotiations will be over before FLRA and/or courts the rule on your petition, and if you win you then get to go back to the bargaining table on that issue alone.  If you lose, you have no right to bargain anything, unless you bargained for the right to reopen negotiations should you lose the negotiability fight.

The tactical advantage of choosing this option is that it removes the issue from the bargaining over the other issues which might result in you having to give it up to get something more important. You could say it puts the proposal on ice for a while and sets up single-issue bargaining.   In some cases that could be good for the union.

Second, you could ignore management’s assertion, keep the issue on the table, and take it all the way to FSIP.  FSIP has some power to rule on negotiability objections.  This option keeps the issue on the table, creates a substantive risk for management of the Panel imposing it, and gives you something to trade off for another more important proposal.  It also saves you the time of writing legal briefs in the middle of bargaining.

However, if your proposal is illegal and you take it to the Panel you hand management the right to implement its change without any further bargaining.  (AFGE,  64 FLRA No. 5) Insisting to impasse on a non-negotiable demand is a ULP. (We at FEDSMILL.com think that is nuts and further proof that the FLRA is run by folks with little practical knowledge of the bargaining process, but it is the law.)  Management always has the option of declaring whatever comes out of the Panel illegal in the agency head disapproval process or even afterwards by declaring the provision legally unenforceable.

Third, you could file a ULP charge with FLRA or through your grievance process.  It is illegal for management to refuse to bargain over a demand that is virtually identical to one which FLRA has already held to be negotiable in another case. Of course, your success depends on it being virtually identical.

The advantage of a ULP is that the FLRA or arbitrator could impose a penalty on management, e.g., require that whatever is agreed after bargaining be retroactive. (FLRA has no power to penalize management if you filed a negotiability petition.)  Or, the penalty could even be that management undo any partial MOU (and the related change) and start bargaining again after compensating any employees who were harmed.

Fourth, you could propose to drop the objectionable proposal as part of a package offer that brings you a concession on something else.

Fifth, you could modify your proposal to fix any potential negotiability problem. That does not necessarily mean you must water it down. You could come back with an even tougher proposal.

For example, perhaps management objected to your proposal that “Overtime work in Group 6 will be assigned to the most senior Group 6 volunteer.”  Assume that it asserted that some overtime assignments demand special qualifications.  You could counter by proposing, “When overtime is to be assigned, management will notify the union of the qualifications required and bargain over them if they differ from qualifications specifically previously announced to the union.  Once bargaining is complete, employees will be given an opportunity to demonstrate that they possess the qualification.  If management determines any applicant does not, the assignment decision will be postponed until a grievance can be filed and the first step of the process completed.”  This kind of a multi-step, but clearly negotiable, more time-consuming process might make management rethink its objections to the easier to implement proposal.

A variation of this fifth option would be to petition FLRA to resolve the proposal management alleges abrogates its rights while replacing it with an impact/implementation proposal for the duration of your bargaining.

Sixth, you could propose that the parties bargain over the objectionable proposal anyway with the understanding that if it is agreed it will be written into the contract with an “employer determines. . .” clause. That would enable management to propose to change the agreement at any time it believes it is not working or the special circumstance render it illegal.

Seventh, you could propose that management unilaterally adopt the proposal as management policy, serve notice on the union, and that the union will not object.  That typically makes it just as enforceable as if it was written into the contract.  If management’s objection was to the appearance of the clause in a negotiated contract, placing the requirement in a management policy letter obscures it from others.

Eighth, you could try to convince management not to protest negotiability during bargaining because, even if the FSIP imposes it, the law gives management the right to disapprove the provision as part of agency head review or even thereafter to declare the contract provision illegal and unenforceable.  This would give the parties time to see if the proposal drops off the table for reasons unrelated to negotiability or even see if the situation management worries about ever occurs during the life of the contract.

Ninth, if you do choose to immediately petition FLRA, you could counter with a proposal that postpones or “stays” implementation of any part of management’s proposed change until the negotiability dispute is resolved. In other words, try to impose a cost on management for hiding behind the negotiability excuse.

Tenth, while management might charge you with a ULP if you condition continued good faith bargaining over some unrelated concession, nothing stops the union from coincidently initiating its own mid-term change demand.  For example, assume management objects to this proposal, “Overtime work in Group 6 will be assigned to the most senior Group 6 volunteer.”  The union could propose something like this, “Within 30 days, management will identify all the qualifications need to do any task that may require some overtime.  The union will have the right to object to them as violations of law or regulation and/or to demand immediate impact and implementation bargaining over one or more of them.”

The consensus in the FEDSMILL.com boardroom is that we would adopt a variation of the fifth option above by merging the allegedly non-negotiable language with the clearly negotiable words. “If management choose not to assign overtime work in Group 6 to the most senior Group 6 volunteer, management will notify the union of the extra or special qualifications required and bargain over them if they differ from the qualifications previously announced to the union.  Once bargaining is complete, employees will be given an opportunity to demonstrate that they possess the qualification.  If management determines any applicant does not, the assignment decision will be postponed until a grievance can be filed and the first step of the process completed.”  Proposals that give management a choice between a non-negotiable path and a negotiable one have been held to be negotiable because it is management own choice to follow the non-negotiable rule.

Doing this keeps the proposal on the table, insulates the union from a ULP for taking an arguably non-negotiable matter to FSIP, keeps management’s risk high, avoids the need to write negotiability briefs, and preserves our chance of obtaining a very important provision.

But none of the above listed answers is wrong.  Each could be appropriate depending on the situation.