This is one of those case law precedents that union negotiators cannot hear enough. If your proposals are all non-negotiable, you give the employer the right to unilaterally implement its proposed midterm change. It can walk away from the table and not look back. (NTEU, 12 FLRA 19)

For example, if management says that it wants to reassign five employees from one kind of work to another, a proposal merely opposing any reassignment would be non-negotiable and open up a clear path for management to reassign them without any need to talk about I&I issues. Consequently, the safest course for a union negotiator unsure about whether his/her proposal is negotiable is to submit the risky proposal along with negotiable proposals.

Using the example above, the union negotiator could submit a proposal opposing the demand if he/she also included I&I proposals, e.g., that any reassignment done will be accomplished using seniority among those equally qualified to do the work or that the reassigned employees will be given a formal letter from their supervisor before leaving their current job that officially relieves them of any responsibility for the work or cases assigned them at the time they were moved to a new job.

Of course, even I&I or appropriate arrangement proposals have negotiability limits. The Authority repeatedly has spelled out a criteria they must meet to survive a challenge. Recently, FLRA went over them again in 66 NO 172. It began by reminding the LR community that the criteria were first identified in NAGE 21 FLRA 24, which is more commonly known as the KANG case because the agency was the Kansas Army National Guard. Here are the elements of the KANG criteria.

1. The proposal must seek to mitigate the adverse effects flowing from the exercise of the protected management right. You cannot simply ask for some benefit for everyone in return for letting management quickly implement its proposed change. (AFGE, 29 FLRA 1587)

2. The union has the burden, if challenged, to identify the adverse effects or reasonably foreseeable adverse effects; speculative or hypothetical effects are not good enough.( NFFE, 53 FLRA 967)  If management is at all unclear about whether it should treat your proposal as an “appropriate arrangement” proposal, tell them.

3. The proposal must be sufficiently tailored to compensate or benefit only those employees suffering the adverse effects. (AFGE, 64 FLRA 953)

4. The proposal may not “excessively interfere” with the management right, which requires that the Authority weigh the practical needs of the employees and managers. Union proposals cannot stop management from acting at all, (NTEU, 37 FLRA 309), but management can only claim the proposal harms its ability to accomplish its “core mission” not goals only indirectly related. (ACT v. FLRA)

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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