FINGERS, THUMBS, NEGOTIABILITY AND IMPASSE

Both labor-management parties are regularly guilty of missing the very significant distinction between a proposal being “non-negotiable” versus the agency having “no obligation to bargain” over it.  The pre-impasse bargaining process permits parties to use them interchangeably without any penalty. However, the union suffers the bargaining equivalent of capital punishment when it ignores the distinction once impasse is reached. In short, it forfeits the right to delay an agency-proposed change from being implemented even if it missed the distinction on one out of 20 of the disputed issues.

There is an old adage that, “All thumbs are fingers, but not all fingers are thumbs.” For the more automotive-inclined among us, all Ford Mustangs are cars, but not all cars are Ford Mustangs. Similarly, all “non-negotiable” proposals are outside the “obligation to bargain,” but not all “obligation to bargain” claims are negotiability based.

An agency can claim a proposal is non-negotiable if it conflicts with —

• its 7106(a) and (b)(1) management rights,
• the 7117 prohibition on proposals that conflict with government-wide regulations,
• the agency has a compelling need for uniformity, or
• the 7103(a)(14) list of issues that are excluded from conditions of employment, e.g., relates to classification, political activities or are specifically provided by federal law.
• On the other hand, the agency can claim it is no “obligation to bargain” over proposals that are—
• untimely submitted,
• covered by an existing agreement,
• outside the scope of a proposed change or pre-conditions,
• outside the scope of the bargaining unit,
• waivers of certain statutory rights,
• made despite a union waiver of the right to negotiate over the matter,
• made despite the agency’s claim that the contract gives it the right to do what it has done,
• made as part of a bad faith bargaining strategy,
• submitted in response to an event the agency claims is not a negotiable change, e.g., a de minimis matter, etc.

Unfortunately, that is not even a complete list.

Generally, negotiability disputes are addressed through the statutory negotiability process outlined in 7117(c) while obligation to bargain disputes are typically dealt with through the unfair labor practice process. But, there are sizeable exceptions to that.

The core takeaway from this distinction is that if a union insists to impasse on a non-negotiable proposal, it loses little.  The Authority has given the Panel the power to resolve negotiability disputes so long as it applies existing negotiability case law. (See Carswell, 31 FLRA 620 (1988)  If there is no existing case law, the Panel typically refuses to take jurisdiction over the allegedly non-negotiable proposal, leaving the union to file a negotiability petition with the FLRA—or in some cases a ULP charge with the FLRA GC. In the meantime, the Panel normally deals with all the other disputes proposals and issues a final order.

In contrast, the union usually forfeits the right to block the unilateral implementation of the agency’s last proposal and any underlying change if even one out of 20 or more of its proposals is one over which the agency does not have an obligation to bargain.  FLRA does not let FSIP resolve “obligation to bargain” disputes unrelated to negotiability objections.[1]  FSIP must reject jurisdiction over the disputed proposal(s)–although we admit that it does not always abide by that FLRA instruction.  Moreover, it appears that the FLRA will not bar the agency from unilaterally implementing its last proposal and underlying change.

We say that because of how the Authority has resolved situations where the union insisted to impasse on a matter over which there was no “obligation to bargain.” In a case where one of the union proposals was covered by an existing contract the Authority decided that amounted to insisting to impasse on a permissive subject of bargaining, which typically means the union forfeits the right to bargain further.

“It is well established that insisting to impasse on a permissive subject of bargaining violates the Statute….In cases alleging such conduct, there is no need to apply a “totality of the circumstances analysis,” as the Judge did here. Rather, if the GC establishes that a respondent insisted to impasse on a single proposal that concerned a permissive subject of bargaining, then the respondent will be found to have violated the Statute…The Authority has held that, while not obligated to bargain over matters contained in or covered by an existing agreement, a party may elect to do so. NAGE, Local R3-32, 61 FLRA 127, 131 (2005) (Local R3-32). As such, matters covered by agreements are properly considered “permissive” subjects of bargaining. AFGE, Local 3937 and SSA, 64 FLRA 17 (2009)

Similarly, in POPA and  U.S. Department of Commerce, U.S. Patent and Trademark Office, 66 FLRA 247 (2011) the Authority refused to find the agency violated law when it unilaterally implemented its change because one small portion of the union’s 25 pages of proposals, “…conditioned bargaining over the Flat Goal Program on bargaining over unrelated proposals concerning the PAP.” By insisting that the Agency bargain over proposals in connection with the PAP, the Union sought to require the Agency to bargain over matters outside the required scope of bargaining.

If a union believes losing the right to block the employer moving ahead unilaterally is not a big deal, then it can ignore the distinction between negotiability and obligation to bargain objections.  But if it is considered a big deal, then it must avoid insisting to impasse on a matter not within the “obligation to bargain.” If it does, it should instantly cure the problem as soon as the agency alleges that one of the impassed items is outside the obligation to bargain.  Unfortunately for the union, it appears that the agency can almost always unilaterally implement as soon as the union petitions the Panel for assistance if a single union proposals is outside the obligation to bargain. It does not have to wait until the agency has gone on the record with the Panel asserting there is an obligation to bargain matter or even wait until the Panel severs the obligation to bargain matter from the remainder of the proposals. We can’t even find a case establishing that the agency must notify the union that there is an obligation to bargain dispute before it unilaterally implements claiming a single proposal of dozens is outside its obligation to bargain.

(To add insult to injury, when agencies insist to impasse on a matter over which the union has “no obligation to bargain,” the agency violates the law, but that does not authorize the union to unilaterally implement its last best offer. Yes, we know that sounds terribly unfair, but it is what it is.)

[1]  The FSIP will not retain jurisdiction over a dispute when the agency raises questions concerning its duty to bargain. That issue must be resolved in another forum. DVA Medical Center, Minneapolis, 08 FSIP 72 (2008). See also “Interpretation and Guidance” 11 FLRA 626 (1983); “Interpretation and Guidance” 12 FLRA 346 (1983).