INADEQUATE AGENCY NOTICE GIVES UNION A BIG BARGAINING BONUS (PT. 2)
NEGOTIATOR ALERT! What does it mean for the union when management gives it advance notice of a proposed change, but the notice omits some of the details? It means a bargaining power bonus for the union.
As outlined in Part 1 of this two-part series, management is required to give the union advance SPECIFIC notice of a change, which means it must address the nature of the change, the scope of the change, the timing of the change the certainty of the change, and the losses it reasonably foresees the employees or union suffering because of the change. We directed any doubters to these two cases for confirmation of that: (61 FLRA 688 (2006) and 65 FLRA 422 (2011))
On top of specificity, management also is obligated to include virtually every significant detail of the proposed change. For example, when an agency gave the union advance notice of its decision to start charging employees to park in the agency parking lots, but failed to describe that it would be using the existing guard force to collect those fees, it was found to have given INADEQUATE notice. As far back as 1982 the Authority showed that it would be particularly critical of agencies that failed to completely describe a proposed change, “and that a mere passing reference to a general subject matter without mentioning any contemplated change relating to such matter does not constitute adequate notice.” (9 FLRA 572 (1982)). In 57 FLRA 852 (2002) the FLRA made it clear that merely giving the union a management document that, if compared to the prior one, would show that a change was being made was also inadequate notice. Management had to alert the union to the change being made rather than leave the union to figure that out itself.
When management makes a change without complying with those legal requirements, it potentially puts the union in a position to do several things it could not do if it had notice. Here is a short list of them.
- If bargaining over the part of the change management did specifically and adequately reveal is not yet complete, the union can demand to restart bargaining and/or amend its proposals.
- If the bargaining is complete but the change not yet implemented, the union can demand supplemental bargaining and/or that the original agreement be voided and replaced with another round of bargaining.
- If the change has been implemented, the union can demand a return to the status quo ante or the working conditions in effect before the change was made and compensation, financial and otherwise, for any employee harmed by the change. It could also get attorney fees with any back pay provided, and a signed publicly posted notice by the agency head that the agency violated the law and pledges not to do so again.
- If agreement was reached, the change implemented and a grievance filed over whether management properly interpreted the agreement, the union frequently will have the option to assert that management improperly interpreted the agreement and, in the alternative, that even if the union cannot prove an interpretation violation that the agency never notified the union during negotiations of all the consequence of the change to which it now objects. For example, suppose an agreement required that management would select employees for certain desirable work assignments in a “fair manner.” Perhaps the parties settled on that criterion after management said that it was going to be fair, but provided no more details. However, when the agreement was implemented, management selected in order of reverse seniority and the union learned that was management’s plan all along. The union could not only grieve arguing that “reverse seniority” is not a fair selection method, but that management had failed to provide the union all the details of its plans and therefore the agreement was void due to an inadequate notice. Stated differently, inadequate notice puts the union in a position after a barely tolerable agreement is signed to overturn the validity of the agreement.
- If the agency has refused to locally bargain a change that is to occur simultaneously at multiple offices in favor of dealing only with the nationwide exclusive representative to reach one agreement, the union can watch for local differences in how the change is implemented and then insist that the original notice did not address each of the local peculiarities. That gives the union a chance to force local supplemental negotiations over the change.
That is a lot of power to hand a union, which makes this list a very good explanation why LR should completely describe the details of any proposed midterm change. Every detail it leaves out gives the union power it would not have otherwise had.
(If you disagree or have something to add, enter a comment in the blog box below. If you know someone who can use this information, and remember unions can file a ULP up to six months after they learn that a change notice was inadequate, pass this article on to them.)