HOW TO LOSE MILLIONS FOR MEMBERS
Recently, an agency served notice on each of the two unions that represent its employees that it plans to cut the awards program funding nearly in half. It currently distributes annually an amount of about 1% of the total annual salaries of all unit employees in awards to them. One union responded by invoking negotiations, and the other did not respond allowing management to immediately implement the funding cuts for their members. Which union made the better decision?
If you have to think about that for more than five seconds, then you must be new to the business of being a union representative. The union that invoked bargaining did the right thing, and the one that did not just gave away millions of dollars in awards money that would have gone to its members this year.
The union that invoked probably did so because it knows that even if the cut is ultimately imposed by FSIP that will take about a year. And until then the agency must continue any past funding practice. So, if management served notice on June 1 that it is going to cut in half the funding for the performance awards normally distributed at the end of the fiscal year in September, management cannot do that until it completes midterm bargaining with the union.
Normally, that can take “a while” because there are more than a dozen individual steps in the process. For example, 1- the agency serves specific notice on the union, 2- the union invokes bargaining, 3- the union requests information from the employer to help it prepare proposals, 4- information is provided, 5- proposals are drafted, 6- bargaining is scheduled, 7- bargaining occurs, 8- counterproposals are exchanged, 9- mediation services are requested, 10- impasse is declared, 11- FMCS lends assistance, 12- FSIP is petitioned for help, 13- FSIP investigates to see if it wants to help the parties, 14- FSIP takes jurisdiction and meets with the parties to help them, 15- FSIP issues a final and binding decision, 16- the agency head gets to review and approve the agreement, and 17- the agreement becomes effective and is implemented. (There are more steps but those are the key ones.)
It is only after all 17 steps are completed (or an agreement is reached and implemented) that the funds can be cut. If the agency cuts them sooner or decides not to pay them on time, it generally commits an unfair labor practice, is required to reinstate the former funding practice, and to give employees back pay with interest. Check out these three cases if you doubt that: CBP and NTEU, 63 505 (2009), VA and NAGE, 57 663 (2002), and VA and AFGE, 52 387 (1996).
The union that invoked bargaining has virtually guaranteed its members that the full funding amount will be distributed. The union that did not likely invoked “waived its right to bargaining by inaction.” As a result, its members lost millions in money most of them will believe that they have already earned for the year. But, we do not want to be too harsh on the union for its failure to act.
There might be a great explanation. Perhaps an unwritten deal was made to get something of equal value for members in return for allowing management to cut funds immediately. Or maybe it believes that the contract mandates payment, management has no power to propose a change and a grievance will get all the money back.
Although there are exceptions to this rule, unions should always ask to bargain when management proposes to make a midterm change. If the change involves a reduction in employee compensation or other economic benefit, such as one AWS day a pay period at home or transit subsidies, the sheer length of the bargaining process will likely preserve the benefit for members a little while longer. It does not matter whether the change is a management right and you are limited to bargaining only impact and implementation arrangements. The management must postpone the change until even the I&I or “appropriate arrangement” bargaining is done. (There are only a small number of situations where the agency can implement immediately, e.g., a new statute requires an immediate change, the agency is facing an emergency, an immediate change is unquestionably necessary for the continued functioning of the agency, the change is covered-by an existing agreement, or the change is de minimis.)
Another benefit of bargaining is that it gives the union time and the right to find out more about all the details of the change. In this case, the union should be interested in how much the funding for non-unit employee awards will be cut, where the saved money will be spent, what options might be available to avoid the cut, etc.
Finally, any time the union invokes bargaining it creates a chance to get something in return for its agreement, especially quick agreement. Typically, that must be something related to the proposed change, but it does not have to be. It would not be illegal for the union to trade agreement to an immediate cut in awards funding for an increase in the number of days employees can telework. It cannot demand this kind of trade to the point of impasse, but the two parties can permissively agree to it.
If sequestration continues, we are going to see a lot of cuts to awards funding and other economic benefits. Unions should not only be prepared to delay the changes while it bargains, but it should also be educating its members about how the union can help them postpone or even avoid a change aimed solely at them, e.g., taking away their right to work AWS or changing their travel reimbursement formula.
Even where the union believes that management does not have the right to demand that it change a contract provision, the union should file a grievance to enforce that contract clause AND demand to bargain under protest. So long as you let management know that you are demanding to bargain just in case it is correct that the contract does permit it to propose a change, your demand protects you and your members’ pocketbooks.
(Originally posted one July 20, 2013)