DO YOU KNOW ABOUT THE DUAL NATURE OF LABOR AGREEMENTS?
FLRA just issued a decision in which it upheld an agency’s right to unilaterally terminate the terms of an existing labor agreement because the labor agreement said either party had the right to do so X days after the term of the agreement ended. Let’s assume that is a correct reading of that contract. But, that hardly clears the path for the agency to do what it wants because labor agreements have two natures. First, they exist to memorialize the parties’ agreements on the way things should be done, e.g., vacancy announcements must be posted for ten days, overtime must be equitably distributed, etc. They also exist, however, to create a benchmark for identifying changes in the way things are done. For example,…
assume that an agreement says that vacancy announcements must be posted for ten days, but also says that once the agreement term is over either side can unilaterally terminate its commitment to comply with the ten-day rule. Does that mean an agency can unilaterally institute a new posting rule, such as five days. No! Or at least it should not. Terminating a commitment to follow an existing term agreement provision is a different action from establishing a replacement for the practice created by that term agreement provision. In other words, while the agency can terminate its commitment under the language of an existing agreement, it cannot replace the practice established by that agreement without serving specific notice on the union of what practice it wishes to put in its place and agreeing to bargain with the union over the establishment of that new practice.
Take another example. Suppose the agreement said all overtime would be distributed equitably over each calendar quarter among qualified employees and that the agency said it was going to exercise its right to unilaterally terminate that national commitment by letting each local supervisor distribute overtime as he wished, i.e., they have total discretion. As a result, about ten employees in each office who used to get about 30 hours a quarter of overtime got nothing from then on.
As we see it and as previous honorable members of the FLRA, i.e., those not appointed by The Great, Stable, and Orange Genius, have determined, that would be a ULP. An arbitrator once said that an Agency cannot evade a bargaining obligation by delegating to local managers the authority to exercise management rights with respect to negotiable matters while at the same time declaring it had no obligation to bargain over the replacement practices and policies Allowing the Agency to draft and unilaterally implement a contract provision which would delegate to managers below the level of recognition the right to make determinations and implement policies with respect to which bargaining would otherwise be required (at least at the level of recognition) and then use that unilateral delegation to avoid any bargaining would effectively gut the bargaining obligation created by law.
So, an agency that unilaterally terminates enforcement of a contract provision may have the right to do so under a few exceptions in the law, e.g., business necessity, de minimis, contract waiver, etc. But that does not mean it has a right to implement a replacement policy or practice without serving notice and completing any bargaining obligation–even if it is only over impact and implementation. (We have previously outlined why this applies to unilaterally changing permissively negotiated provisions in a contract when the contract term ends. FLRA seems to disagree, but its thinking is ridiculous and should be challenged.)
The union that lost this case had the right to file separate ULP charges against the agency over each replacement policy or practice the agency put in place AND TO DEMAND A RETURN TO THE STATUS QUO ANTE AS WELL AS THAT EMPLOYEES BE MADE WHOLE FOR ANY HARM. That would include attorney fees, interest and a few other perks. FLRA’s failure to spell that out in this case is only going to lead agencies right into the brick wall of justice if they over read this decision