FLRA slipped a bizarre gift under our L-M community pillow on the eve of Valentines’ Day. It held that unions can be obligated to reopen and modify existing term bargaining ground rules agreements in the middle of that bargaining. That struck us as odd given a ground rules agreement has the same status of any agreement. Harry S. Truman Memorial Veterans Hospital, 16 FLRA 944, 945 (1984), and is enforceable as any other agreement DOD, GA and AFGE, 40 FLRA 1211 (1991).  Everything we know about the law confirms that neither party has a statutory obligation to renegotiate until the agreement has concluded, unless a law is enacted conflicting with a portion of it. FLRA offered no reason why it suddenly believes one party can force the other to modify an agreement mid-term. So, let’s see if we can figure out a good reason for this white elephant.

In this case, while term bargaining was underway and operating under a set of negotiated ground rules, the agency decided to make a mid-term, management rights change in the appraisal system. In our experience, 99.9% of agencies would insist that if the union wanted to bargain I&I over that it be done separate from the term bargaining table in the traditional mid-term process. This agency, however, insisted that the term bargaining be interrupted and the ground rules modified to permit its proposed change to be added to term bargaining.

The union refused and with good reason in our opinion.  Why should it be required to add a new issue to the table that has the potential to undo tentative agreements or delay the conclusion of term bargaining? Why should it be forced to stop term bargaining to redo the ground rules agreement when that could potentially take a year or give the agency the right to reopen an article/issue it did not open initially? Does this mean that once the parties reach impasse on the newly added issue that the union can prevent the agency from moving forward to FSIP for resolution solely of its proposed, mid-term management right’s change? If not, must the union interrupt term bargaining to process that dispute alone to FSIP?

Way back in 1993 a federal circuit court ruled that an agency can refuse to bargain over I&I proposals if they are unrelated to the proposed management right’s change. (FLRA v. USDOJ, 994 F2d 868 (D.C.Cir. 1993)) However, if the FLRA is now going to allow an agency to insist that a proposed midterm change be addressed at the term table does that mean that the union can tie resolution of the mid-term management’s rights issue to unrelated issues, like official time or telework improvements or AWS expansion? FLRA did not allow that in the past; in fact, they called it an illegal pre-conditioning of bargaining over a proposed management rights change.

And what about all the case law holding that a party is guilty of evasive illegal bargaining if it keeps insisting new issues be added to the bargaining?  With this new decision an agency could change the mix of issues on the term table a dozen or more times.

Among the reasons FLRA gave for not allowing unrelated union proposals were that it tips the bargaining table power in the union’s favor and delays implementation of the management rights change in violation of efficient and effective bargaining. Ironically, this new case causes the much the same damage but to the union.

I fear that the two remaining FLRA members have opened a can of worms due to their lack of bargaining table experience. We hope Member Grundmann will reconsider; we have given up any hope that Member Kiko-Duffy will do anything constructive for the collective bargaining process.

Here’s hoping that the union takes this case to the courts for two reasons.  First, we need the court to overturn the FLRA’s ruling that requires a party to renegotiate any agreement, not just ground rules, during the life of that agreement absent a statutory conflict.  Second, this ruling tips the bargaining table power balance greatly in an agency’s favor.  Agencies can now delay the resolution of term negotiations until a more favorable FSIP is in place merely by proposing new mid-term management rights changes throughout term bargaining. We urge the Authority to go back and reread its repeated holding that, “…we conclude that ground rule proposals must, at a minimum, be designed to further, not impede, the bargaining for which the ground rules are proposed.” United States Dep’t. of the Air Force, HQ, AFLC, Wright-Patterson AFB, Ohio, 36 FLRA 912, 916 (1990) Enabling one party to constantly reopen them is the epitome of impeding bargaining.

The solution here is for FLRA to declare that if an agency wants to make a mid-term, management rights change while term bargaining is underway it has two choices.

  1. It can use the existing mid-term bargaining process to deal with I&I proposals and thereby avoid entanglement with unrelated proposals as well as delay.
  2. It can permissively bargain with the union to allow the proposed mid-term change issue to be added to the term table, but it has no legal right to insist to FSIP on that matter. Moreover, if the proposed mid-term change issue is added to the term discussions, the agency has no right to object if the union packages proposals that include the mid-term I&I demands with unrelated issues.  Nor does the agency have the right to move the I&I issue forward to FSIP separate from the entire term dispute.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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