WHERE DO YOU BARGAIN PERMISSIVE ISSUES?
A lot of local unions think that they can approach their local management counterparts and demand to open bargaining over the permissive topics President Biden just made mandatory subjects of bargaining. NOT TRUE! The statutory right to demand bargaining rests only with the exclusive representative. So, if your local is in a consolidated unit of several or many local chapters only the head of that consolidated unit can make that demand. The only way around that is if the agency agrees to bargain multiple contracts below the level of exclusive recognition, which, ironically, is a permissive right it has that the union cannot force it to give up. See FDA and AFGE Council, 54 FLRA 630 (1998) which says that locals within a larger or consolidated unit only have the right to demand bargaining if delegated that power by the national parties’ agreement. But there are some ways around that. Here are some examples.
If the head of a union bargaining unit demands to bargain a method and means change on behalf of 10 locals in her 30-local unit, the agency can insist that the agreement must apply to the entire unit. That does not mean the change must be made in all 30 locals, but that once the agreement is signed the matter cannot be reopened by any other local for the duration of the agreement. It is covered by.
There is no problem if the head of a union bargaining unit proposes to bargain for one method and means change in half of the unit’s locals and the opposite method and means change in the other half of the locals. The obligation to bargain only one unit-wide agreement does not prevent a union from proposing multiple solutions to a problem.
Some readers might be thinking that their national parties have already authorized local negotiations over agency-initiated mid-term changes. If so, that is some good news, but not enough. For example, suppose an agency proposes to reduce the staffing in a work group from 10 to 8 who would do the same amount of work as the 10-person group and the union responds with a method and means proposal that certain forms no longer be part of the work process when closing a case. Given that such a proposal seems to be an appropriate arrangement, we here at Fedsmill believe that the local in a consolidated unit would have the right to initiate bargaining on the permissive topic so long as the national parties have delegated the local parties the power to negotiate over the impact and implementation of local agency-initiated mid-term changes.
But if the union responded to such an agency change with a permissive technology proposal that all current Android cell phones be upgraded to an Iphone that probably is not an appropriate arrangement or within the scope of that particular mid-term change. So, if the national parties had only delegated local parties the right to “negotiate over the impact and implementation of local agency-initiated mid-term changes” the local union would likely not have the right to initiate the technology proposal on its own.
The best situation for locals positioned inside larger units is if the national agreement gives the local parties the right to bargain over all negotiable matters, substance as well as appropriate arrangements, involving employees within their jurisdiction.
But that shines the light on another wrinkle in this matter. What if the locals are structured to represent employees on a state-wide basis, but the employer’s local organization is regional in nature. For example, that would conceivably put the Oklahoma Local at the bargaining table facing the Southwest Region Agency Director’s staff. Figuring out to whom the agreement will apply might be just as difficult as getting agreement on the new benefits to be created. The union will insist that it apply only within the borders of Oklahoma while the Agency might insist it include Oklahoma, Texas, New Mexico, Colorado and Arizona.
The final complication is who represents the union when permissive subjects (or any subjects for that matter) are addressed below the local level. The sterile legal answer is that the head of the union appoints the team. The messier political answer is that it depends on who the agreement might ultimately cover. The Oklahoma local might initiate the bargaining to get something only their members want, but if the agency pushes for the final deal to cover the entire Southwest Region, then do not all the other locals that could potentially be impacted have the right to be at the bargaining table?
Yup. This could be a real mess. And it will be unless unions put together plans or protocols for how they are going to manage their newly bestowed right to engaged in bargaining over previously permissive topics—and it wouldn’t hurt the agencies to be doing some of the same planning themselves.