BEWARE OF NEW PROPOSALS MADE LATE IN BARGAINING
Anyone who has actually bargained knows that as bargaining nears the point of impasse, new ideas often are put on the table to get around an insurmountable objection from the other party. For example, an agency might propose that it will pay for the union’s stewards to travel to three FLRA training programs in return for a union compromise that it need not pay for the union’s mid-term bargaining travel expenses. Or the union might propose that in lieu of a merit promotion article that covers all personnel actions not excluded by OPM reg that it will accept a narrowed scope if the agency agrees to competitively select for details of 30 days or more to higher graded positions. Such moves are signs of a healthy and effective bargaining process, but beware the Panel’s predisposition to punish a party for doing that.Check out how the Panel handled the first impasse issue in SSA and AFGE, 07 FSIP 38 (2007). When the union came up with a new proposal in an informal conference at the Panel, the Panel refused to even take jurisdiction over it or otherwise consider it.
“Having carefully considered the parties’ positions on this issue, we shall order the Union to withdraw its proposals. Regardless of whether they interfere with management’s rights, as the Employer contends, they involve a subject — the suspension of the current practice of no longer seeking Union concurrence in hardship reassignment decisions pending the outcome of disputes in other forums — raised for the first time at the conclusion of the informal conference. Thus, the proposals were never the subject of negotiations or mediation assistance and, therefore, are not within the Panel’s authority to resolve as part of the impasse between the parties in this case.”
Rather than give the union to submit a substitute proposal that may have been discussed before FSIP, the Panel just blew the union out of the water.
The message here is that when a party tries to find new and creative ways to solve a dispute by taking a new approach to the problem once they have entered FSIP jurisdiction, it needs to make sure (1) the matter was discussed during mediation, (2) there is a discernable linkage to the proposal that led to the new one, or (3) that the other party’s agrees the new solutions is legitimately on the table. It does not seem to us that there is any need to be obsessive about this Panel requirement, e.g., worry about changes in punctuation, syntax, a few words, etc. In fact, a party could argue that if the core of the proposal is inseparably bound up with a proposal made earlier in bargaining, which is a covered by criterion, it has been covered.