WHEN SHOULD UNIONS NEGOTIATE OVER GOVERNMENT-WIDE REG CHANGES?

Assume that your contract or some MOU includes a provision that limits the Best Qualified list in a promotion action to the top four rated candidates for a single vacancy. Then imagine that with three years left before the parties can renegotiate that clause OPM implements the following government-wide rule, “Selection procedures will provide for management’s right to select or not select from among a group of best qualified candidates, and the BQ list must contain at least the top six candidates for the first vacancy as determined by their promotion ranking scores.” Obviously, a non-negotiable change in its contract is coming for the union and just as obviously it has the right to negotiate over the impact and implementation of the change. But whether the agency must complete those negotiations before implementing the change depends on when the union invokes bargaining. For example, …

the union could invoke negotiations the day the new regulation is finalized for implementation even though it can hold off the substantive change for another three years. Or, it can wait until the contract or MOU is open for modification in three years and deal with the looming government-wide change then. And nothing seems to bar it from initiating bargaining at any time in between. It is solely the union’s choice, but it might have more bargaining leverage if it starts the bargaining immediately rather than wait until the contract/MOU is renegotiated in three years. We say this because FLRA has held that a government-wide regulation can be enforced the day the conflicting contract or MOU expires. The agency need not wait until the completion of any renegotiations of that agreement—with one exception described below.

Accordingly, provisions in a collective bargaining agreement control over conflicting government-wide regulations ‘for the express term of the agreement during which the government-wide regulation was first prescribed, but no longer.’…Once a government-wide regulation that conflicts with a preexisting agreement is implemented, the government-wide regulation becomes enforceable by operation of law when the agreement expires.(See DOC, PTO and NTEU, 65 FLRA 817 (2011)

In the hypothetical above about the size of the BQ list, the union can waive its right to delay implementation for three years pursuant to its rights under 5 USC 7116(a)(7), and it is likely that the agency would appreciate being able to change its promotion process to provide for six BQ slots for all jobs at once—unit and non-unit. That gives the union bargaining leverage if it offers to give up the delay in return for something else, e.g., perhaps a written explanation of why the agency passed over the top four candidates any time it selects the fifth or sixth person (See “What Do Selecting Officials Owe Non-Selected Candidates?”) or even an obligation that the agency “seriously consider” candidates one through four before moving on to the two lower rated BQ Candidates. (See AFGE, Local 1923, 54 FLRA 1570 (1998))

The agency also has some leverage to coax the union into waiving its right to delay implementation by dangling any number of concessions on any topic. While the union cannot demand concessions unrelated to the change or that are not appropriate arrangements narrowly tailored to the change, the agency is free to offer anything it wishes.

So, to answer the question posed in the title of this post, it seems like a union should invoke bargaining over the contract/MOU change triggered by modified government-wide regulations as soon as it knows the change is coming—even if it is only willing to allow the change a year or two earlier than the date the contract/MOU terminates.

Now, let’s go back to that exception to the general rule we mentioned above. The parties can postpone the implementation of a conflicting government-wide regulation until the end of bargaining if they write the original agreement’s negotiation reopener clause a certain way. For example, in Dept. of the Army, Foot Hood, TX and AFGE 1920, 40 FLRA 636 (1991) the parties wrote it as follows:

Either party may give written notice to the other, no more than 105 nor less than 60 days prior to the contract expiration date, and each subsequent expiration date, for the purpose of renegotiating this agreement. The present agreement will remain in full force and effect during the renegotiation of said agreement and until such time as a new agreement is approved.

When the agency unilaterally implemented a government-wide reg that conflicted with the existing agreement at the time the agreement reopened, the arbitrator ruled that two portions of the reopener clause barred unilateral implementation at that point.  First, in that case the agency failed to follow the proper negotiated procedures for reopening the contract.  It did not give formal notice of the change as required by the contract clause.  Second, even if it had followed proper procedures the last sentence of the section continued the agreement’s effectiveness until a replacement agreement was ready.  Both were sufficient to prevent unilateral implementation.

While the exception offers the union an effective way to delay the loss of negotiated contract rights simply because OPM issued a conflicting government-wide regulation, it really does not change the union’s or the agency’s bargaining options.  The union can still offer to waiver the exception protection any time it considers it worth its while and the agency can still dangle concessions to get the union to waive.