AGENCY HEAD APPROVAL OF LOCAL AGREEMENTS
The 5 USC 7117(c) rules for approving agreements negotiated at the level of exclusive recognition are well- known, e.g., an agency head has thirty days to disapprove a negotiated agreement, the agency must serve the union with notice of the disapproval within thirty days, the date of service rather than the date that the agency head decides to disapprove the agreement is what matters, and if an agency does not timely and properly serve its disapproval of an agreement on the union, then the agreement automatically goes into effect. But what about agreements negotiated below the level of recognition, commonly called local supplemental agreements. What statutory rules apply to them? The simple answer is that the parties have a choice.
Section § 7114(c)(4) permits parties at the national or local level to establish their own procedures for review of those local supplemental agreements. If they do not, the rules applicable to approval of agreements under § 7114(c)(1‑3) apply. Even where parties have adopted a procedure under § 7114(c)(4), the § 7114(c)(1‑3) default rules will supply any missing terms. FLRA spelled this out in a recent decision. AFGE, 68 FLRA 876 (2015) Another way of saying that is do not think that agency heads have no right to approve local supplemental agreements just because there is nothing in the master agreement giving them that right.
One of the most significant parts of the contract approval process for all us practitioners is when the agreement goes into effect. If the local agreement is in response to a management-initiated mid-term change, in all likelihood the agency wants to get it in place as soon as possible, e.g., it wants to switch the office hours in response to a shift in the public’s visiting patterns. However, the union can justly demand that the proposed change cannot go into effect until the agency head approval is received. In fact, it can also bargain for, but not demand as a statutory right, that even after approval the change be delayed while it notifies and trains its representatives and members on the details of the change. If the agency has a critical implementation deadline, it had better get an agreement 30 or more days before it. If not, unions can demand one final agreement sweetener to permit the agency to implement tentatively or partially while approval is pending.
Some call local agreements Letters of Understanding (LOU) claiming that they do not have to be approved. Union’s should not bet a lot of money on that. If an agency head wants to assert its statutory approval right, form will not matter over substance. If the LOU looks and sounds like an agreement it is an approvable agreement, e.g., it is signed by both parties, refers to the “parties,” and mentions anything about an agreement of some working condition. The safer way around approval, especially if the parties have negotiated clauses that might tread on management rights, is for the parties to have the local agency negotiators send the union a letter announcing that they are implementing the change under the following listed conditions. Those conditions would be precisely the terms they agreed on in bargaining. However, because they were technically established by a letter signed solely by management after negotiations they are enforceable. For example, if the parties agree in bargaining that the agency will not assign overtime work to employees located in a temporary satellite office, that becomes a condition of employment and practice once that detail is included in the specific written notice the agency gives the union and the union does not request to bargain. Admittedly, the agency can propose to change that at any time, but it cannot implement the change until any impact and implementation bargaining is concluded.