BARGAINING WITH JERKS #3- (Tactics)
Table Jerks are all about game-playing at the edge of unethical/illegal bargaining behavior. They spend most of their time refusing to provide information, proclaiming there is no demonstrated need for the union proposal, and shouting “Non-negotiable.” But, those are not the only areas of law they try to exploit. Here are two others and some suggestions on how to deal with them. (This is the third in a series about how to deal with the few management reps who come to the bargaining table to play games rather than integrate and benefit from union/employee input. Just put the term “Jerk” in our search box and the first two will pop up.)
SCOPE OF UNION PROPOSALS- If you are involved in mid-term bargaining over a proposed management rights change, FLRA allows management to insist that union bargaining proposals stay within the scope of the change. For example, if management has proposed to modify the appraisal process, the union cannot demand increased Telework rights in return. FLRA considers mid-term demands that are unrelated to a proposed change exercising a management right to be illegal demands that the employer must address in order to fulfill the limited bargaining it does have. (Although we have not seen the Authority refer in its “scope” decisions to the obligation on the union to keep appropriate arrangement proposals “narrowly tailored” to the harmed employees, it would not surprise us to see them make that linkage in the future.)
If you want to know more about this, FEDSMILL.com suggests that you look at Carol Pope’s separate concurring opinion in NTEU, 59 FLRA 703 (2004). In that case, the union was demanding that the employer agree to bargain over clauses in the expired term contract that the union believed were related to the mid-term change the agency was about to make. FLRA disagreed. Here is an important excerpt.
The Authority has held that, during impact and implementation bargaining, an agency is obligated to bargain only over proposals that are reasonably related to the proposed change. . . . As the Union was attempting to condition bargaining over the revised NIAP on bargaining over unrelated matters in the expired, term agreement, the Agency did not violate the Statute by implementing the revised NIAP without completing bargaining, and the Arbitrator’s award is contrary to law. . . . In this case, for example, it is undisputed that the revised NIAP changed the parties’ term agreement. To the extent that these changes concerned mandatory subjects of bargaining, the Agency was required to negotiate over them prior to implementation. . . .Thus, if the Union had limited its bargaining request to related, mandatory provisions of the term agreement, then the Agency would have been required to bargain over these provisions prior to implementing the change.
Although Pope’s view has not yet been officially adopted by the full Authority, it is worth noting because she does recognize that the union could demand to bargain anything that is “related” to the change. For example, if the term contract is open or expired the union could tie agreement on the mid-term management rights change to term contract provision that are related to the pending change.
But, getting back to more practical advice about what to do if the table Jerk wildly tosses around the “outside the scope of the change” argument, there are a few options.
First, you could agree and withdraw or reword the offending proposal.
Second, you could disagree and file a ULP charge over its refusal to bargain over your proposal. You cannot hold up bargaining while that dispute is resolved, but the ULP will potentially force the employer back to the bargaining table in a year or two to bargain on that single issue.
Third, you could exercise the union’s right to initiate mid-term bargaining over the offending matter. For example, if the agency had announced pending changes in the performance appraisal process and you wanted to link agreement on that with agreement on a new Telework program, the correct way to do it would be to “officially/formally” propose immediate negotiations over a Telework program separate and apart from management’s midterm idea. Do not make agreement on the appraisal dependent on agreement on Telework, but do demand that they both be scheduled on a similar time table. If management wants to bargain appraisals as soon as next week, you want to bargain Telework next week as well, even if it means they are both competing for the time management says it is available.
Although the Supreme Court certified that unions have just as much a right as management to propose changes in working conditions during the life of a term agreement–if its proposal is not already covered by an existing agreement, unions seem to rarely use the right to balance out the focus of their midterm bargaining. (Check out NFFE, 56 FLRA 45 (2000) if you are unaware of this union right.)
* * *
IMPASSE IMPLEMENTATION ANNOUNCEMENTS- Another tactic Jerks often rely upon in midterm bargaining is to prematurely declare that further bargaining is useless, the parties are at impasse, and management is going to implement its current proposal on a specific day in the very near future. If the union fails to very quickly ask the FSIP to get involved, management has a right to implement its change on the announced date. Practically speaking, if the agency negotiator ever makes a statement even similar to “Bargaining is over,” “Any further conversation will be futile,” or “We are finished; you have our last offer,” act fast.
First, ask if the agency is declaring impasse. If so, ask if it has a specific date on which it will implement. If it does, inform management that the union intends to seek FSIP assistance immediately and wants the agency to postpone implementation.
Second, put all that in an e-mail to the agency negotiator right after bargaining that day so there is no dispute later as to what the union asked and management’s response.
Third, within 24 hours, send the FSIP an e-mail with a copy to the agency informing it of the impasse, asking it to take jurisdiction, and notifying it of the date on which the union will file the form asking for FSIP involvement. (If you want, attach the last proposal of both parties so the Panel staff can get started on the case.)
The FLRA has not set a hard and fast rule as to how long the union can wait after being notified that management considers the parties at impasse and will implement on a certain date. But, it has shown little tolerance for delay, which is why union’s must act immediately.
For example, in NTEU, 16 FLRA 198 (1984) management announced on Thursday June 7th that it believed the parties were at impasse and that it would implement, “As soon as possible.” The union responded that it would seek FSIP assistance, but gave no date. When the agency called the union on June 12th to announce implementation later that day, the union rep merely replied, “I think it’s improper, if not illegal for you to implement it while we are going to the Panel.” The Union delivered its request for assistance to the Panel in the afternoon of the following day, but FLRA said its three workday wait was too long and the agency was free to implement.