UNION REP TEST #9 (Ratifying FSIP Orders)
QUESTION: What happens when a union refuses to ratify a term agreement partially based on an order from the Panel? Can the agency just turn around and ask the Panel to impose the entire contract, including those issues the parties had agreed upon before going to the Panel? If so, doesn’t that just mean that a decision not to ratify will merely delay implementation of the same agreement a couple of months?
ANSWER: No, the agency can’t just get a FSIP rubber stamp overnight because the union has the right to begin negotiations all over again and from the beginning. Absent a clear and unmistakable waiver of its right to bargain in some agreement, such as the ground rules, the union has the right to return to the bargaining table and begin bargaining as if the previous negotiations never occurred. (Dept. of Commerce, Bureau of Census and AFGE Local 2782, 17 FLRA 667 (1985) See also Dept. Air Force, Griffis, NY and AFGE Local 2612, 25 FLRA 579 (1987) “…there is no statutory restriction on the scope of bargaining available to a union following the membership’s rejection of a tentative contract; only the parties themselves may restrict the scope of bargaining, through ground rules….) That may sound unfair to some agency officials, but it is the potential for that which should motivate FSIP to issue decisions that are going to fall somewhere in the members’ range of acceptability. If the Panel viciously gouges at the union and employees, the members can take it out on the agency by voting the agreement down and starting the process all over again. The current Panel does not get that.
Moreover, when we say “from the beginning” that generally will mean that the parties have to go back and renegotiate the ground rules for bargaining. After all, most ground rules are written in such a way that they cannot be applied after the first round of bargaining is complete. For example, if the original ground rules said that the parties would exchange opening proposals on July 1, 2019, those rules are not viable for another round of bargaining. A new set of rules must be negotiated first.
However, if the original ground rules included a passage restricting the union’s right to reopen negotiations if the agreement was not ratified, then the union must live by that restriction—irrespective of whether the rules are viable for another round of term bargaining. For example, in one case the ground rules stated that the union was prohibited from raising new matters 12 hours after the original proposals were exchanged. The Authority told the union it could only demand to renegotiate on matters raised before those 12 hours expired, not add totally new matters to its opening proposals.
Similarly, if the ground rules stated that should ratification fail the union agreed to limit renegotiation to six articles it is likely the FLRA would force it to live by that agreement as well. Consequently, unions should scrupulously avoid ever including limitations on their right to reopen negotiations pursuant to a “No Ratification” vote. The agency cannot force a union to– or even ask the Panel to impose such a limitation.
If you want to know more about ratification, check out our posting entitled, “The Law of Contract Ratification.” Agencies might feel helpless given this situation, but it is the White House that took away the tools they needed to sweet-talk unions to put limits around the right to reject an agreement in ratification.
Frankly, we are surprised every time we hear that a union has ratified a term agreement given the Panel’s anti-union venom and Trump’s executive orders. There is no reason to until agencies get the authority to deviate from the executive orders as the Customs and Border Protection Service did when it signed a whooper of a pro-union agreement with the Border Patrol union. See “Trump Pays Off the Border Patrol Union” and “Was the Trump – Border Patrol Council Agreement A Bribe?”
If a union anticipates its members not ratifying the agreement, it should check with its staff experts in the General Counsel shop or other office to make sure the union avoids legal pitfalls. For example, some employers have argued that if the bargaining team recommends against ratification that violates the good faith bargaining obligation. But it seems to us that if the contract is even partially the product of a FSIP decision that permits the union team to oppose ratification because the contract was nor solely the product of a joint agreement.