IMPORTANT FLRA “SCOPE OF PROPOSALS” DECISION
Last month, FLRA decided a POPA case that all negotiators should read closely. (66 FLRA 247) Management made a mid-term proposal to change one part of a performance awards program and the union responded with proposals addressing the full range of award program issues. Management answered by stating that most of the union’s proposals were outside the “scope” of its change and therefore management was not obligated to bargain over them. When POPA refused to limit the bargaining to just management’s change, management unilaterally implemented the change and the union filed a ULP grievance challenging that.
The arbitrator and the FLRA found against the union. FLRA said that during management-initiated midterm bargaining “. . . an agency is obligated to bargain only over proposals that are reasonably related to the proposed change….” That was hardly news. (59 FLRA 703) However, because FLRA holds the union proposal must be “reasonably related” to the proposed change, no practitioner on either side of the table has the slightest idea where the line is crossed. Managers will inevitably go too far and unions will inevitably call their bluff. Unfortunately, no matter who wins the other side loses big. The union would lose the right to bargain anything related to the change; management generally would be required to everything it implemented and compensate employees for any loss. That is a tremendous disservice to both parties, but the only thing FLRA has given us to work with for now. POPA obviously thought that proposals related to one part of the awards program were related to changes in other parts of the awards program, but the arbitrator did not. that is the kind of mistake that will be repeated often given how vague FLRA’s rule is.
But FEDSMILL has a way around the useless legal rule FLRA has given us–or at least we think we do. If management declares that the union’s proposals are outside the scope of its proposed change, the union can use its own right to initiate bargaining midterm to put forth those same proposals as independent bargaining demands. In that way the union still obligates management to bargain over its issues. The union would not be refusing to bargain over management’s proposals or conditioning bargaining on management agreement to bargain over all its issues—related and unrelated alike.
Moreover, faced with two separate bargaining events, management would have to schedule them reasonably, which I suspect most unions will insist be at approximately the same time, e.g., one week on management’s proposed change and the next week on the union’s. That gives the union a very convenient way to manage progress at both tables without “preconditioning” bargaining over management’s proposals on bargaining over the union’s. Management is entitled to conduct bargaining over its proposed change without any hard link to the union-initiated proposals. Faced with that situation, unions should find management more than willing to bargain both issues at the same table. The law allows if management permissively agrees to combine them.
The message for management is that it should not be so quick to push union proposals off the table because they are outside the scope of its proposed change. The bottom line for the union is that if management asserts that a union proposal is outside the scope of its change or unrelated to its change, the union should use its right to initiate bargaining over them and then schedule the bargaining on both issues at a reasonable but connected time.
For an even deeper understanding of this strategy, read Member Pope’s excellent separate opinion in the NTEU case wherein she stresses that the critical issue is not that the union preconditioned bargaining over management’s proposal on bargaining over its own, but that the subject of the union’s proposals was unrelated to management’s. She notes that, assuming no other obstacles, the union could respond to a management proposed midterm change by demanding it renegotiate portions of the existing term agreement so long as those term agreement issues were related to the midterm change.
If you disagree or have a better idea than this, use the blog space below to leave a comment we can post for others to consider.
(This is a modified version of an October 14, 2011 post which we have since deleted from Fedsmill. The POPA case cited at the outset is still good case law and was last cited in 70 FLRA 14 (2016))
The only problem I see with this strategy is that if the subject matter of the union’s proposals for union-initiated mid-term bargaining is somewhat related to or concerns the same subject as the agency’s mid-term impact and implementation bargaining notification, the agency would likely assert the second prong of “inseparably bound” of the covered-by doctrine to refuse to bargain. The second prong of the covered-by doctrine of “inseparably bound” is notoriously a vague and ambiguous concept and seems subjective how the FLRA interprets when it applies and when it doesn’t.