WHEN HIGHER AUTHORITIES INTERFERE WITH BARGAINING
One of the more maddening parts of bargaining for a union involves an agency rejecting a union proposal without a good explanation. For example, when the bargaining agency refuses to agree to any increase in the employee uniform allowance, but fails to provide a reasonable answer why. A reasonable explanation for opposing the increase might include an inability to pay, comparability with other uniformed employees, examples of employee abuse of the current reimbursement, etc. Although there can be several explanations for such senseless intransigence, one is that a higher power has made it very clear via an order or just a stern warning that the management negotiators are not to bargain on the matter. Unions often have responded by filing ULPs relying on the following FLRA precedents listed in Dept. of Energy, 34 FLRA 361 (1990):
When management at a higher level in an agency directs or requires management at a subordinate level of exclusive recognition to act in a manner that is inconsistent with the subordinate level’s bargaining obligations under the Statute, the higher-level management entity violates sections 7116(a)(1) and (5) of the Statute. See United States Department of Agriculture, Washington, D.C. and United States Department of Agriculture, Farmers Home Administration, Little Rock, Arkansas, 24 FLRA 682, 686-87 (1986); Headquarters, Department of the Army, Washington, D.C. and U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, 22 FLRA 647 (1986).
When an agency tried to avoid ULP liability by saying it had no choice but to buckle under to higher level directions, the Authority rejected its excuse citing the agency’s failure to ask its superior officers for an exception so that they could fulfill their legal obligations.
The employer at the level of recognition could not defend by stating that higher management ordered implementation of its drug testing program by a certain date. There was no evidence that the local employer requested a delay in order to complete bargaining and that that request was refused by higher management. Therefore, the ULP was committed by the employer at the level of recognition. FAA, 40 FLRA 690 (1991)
In short, higher level agency officials that try to interfere with the statutory obligation of management negotiators to bargain in good faith enable the union to argue that the bargaining has been so tainted that an impasse could not have been legally reached. In the right hands, that could be a very powerful club in the hands of a union, especially if the agency is trying to implement radical changes quickly. Included among them are orders to back out of any imposed contract and reinstate the former one, reimbursement of the union’s bargaining costs, and freezing negotiations while the ULP is litigated.
If an agency does want to put limits on the bargaining ability of its subordinate bureaus it has four options. (1) Issue a regulation for which it can establish a compelling need, (2) convince OMB to issue a non-discretionary government-wide regulation, (3) get a law passed, or (4) authorize the agency to make the union a deal too good to pass up.