NEGOTIATORS BEWARE OF MOUs

A new FLRA decision (AFGE, 64 FLRA 1113)leaves all us practitioners just a little more confused about the process for terminating not just a mid-term MOU agreement, but also the practices it established. AFGE lost the protections established by 12 midterm agreements in the blink of an eye. Be careful you do not too.

In 2003 management notified the union that it intended to terminate 12 midterm local MOUs and the current Master Labor Agreement (MLA) once it expired. The parties finished bargaining a new term agreement that went into effect in 2005, and management promptly notified the union that neither the MOUs nor the practices they established were in effect any longer. At that point, the union asked to bargain over termination of the 12 MOUs, management refused, and the matter went before an arbitrator.

The arbitrator ruled that the union had never “raised or attempted to preserve” the MOUs at any time during renegotiation of the MOU. Consequently, management had the right to terminate the MOUs and the practices they established.

At first glance, this is a simple case that turns initially on whether management provided the union with adequate notice of the change it proposed, which involves three questions, namely,

1. Was management required not just to propose terminating the formal MOU agreements and their practices, but also to notify the union of the practices it would implement to take the place of the former MOU practice? (It is virtually impossible to terminate a practice without replacing it with another.  For example, if management decided to no longer provide hangars on which employees could place their coats during the day, then the employees have to place their coats somewhere.  Precisely where management advises them to place them is the replacement practice about which the union is entitled to receive specific advance notice.)
2. If the notice was adequate, did the union invoke negotiations?
3. If the union properly invoked negotiations, did it complete bargaining over the proposed change and reach an agreement or meeting of the minds?

If those were the only questions raised by the facts of this case, the FLRA could have given practitioners a clear rule to follow in similar circumstance, e.g., the notice was adequate, the union failed to bargain over the proposed changes, and hence the MOUs and practices they created were no longer in effect.

But the case involves complications. The local supplemental MOUs were likely products of permissive negotiations below the level of recognition. That gives management the right to unilaterally terminate the MOUs after notifying the union of the pending termination, but not necessarily the right to avoid I & I bargaining over the impact or any replacement practice.  Did that play a role in the Authority’s analysis?  It never said.

The union also argued that despite the resolution of all those questions, management had kept some of the practices in effect after 2005, which arguably would have made their original notice misleading, deceptive and legally defective.

Finally, the union had only alleged that the change violated the 2005 agreement obligation to notify the union of proposed changes.  It never alleged that management had also violated the statutory bargaining obligation.

FLRA should have explained the role that each of those played in the rule.  Was the permissive nature of the local MOUs irrelevant or determinative?  Did the arbitrator’s finding that none of the 2005 practices had continued significant? Was the decision limited to the alleged violation of this specific agreement or is this the rule that statute would likely have delivered?

We will say it once again. We realize the Authority wants to only address the facts and issues before it in a case—just as if they were a federal court. However, they differ from a court because they are also charged with providing leadership for the entire LR program.  FLRA owed us some clarity as to the rules for terminating midterm MOUs in situations like this.

Until we get that, it appears that unions should listen for any notice that the agency proposes not just to terminate the MLA, but also any MOU in effect during its life and the practices those MOUs may have created. Once received, the union should not only ask to bargain over the MOU terminations, but also request a clearer notice as to what practices the agency proposes to replace the existing practices with. For example, if a local midterm MOU provides that the local union may supplement its opening midterm proposals over a proposed local management change up to 28 days after submission of the initial proposals, what practice does management intend to replace that with, e.g., no limit, a one day limit, no supplements? On top of that the union should either propose detail additions to the national agreement applicable to specific locations covered by the previous MOUs or a simple sentence stating that the MOUs will remain in effect or at least the practices they established remain in effect until specific notice of what practices will replace them. Finally, if management does make a unilateral change, charge it with violating the contract bargaining obligation as well as the statutory one. It is easier for FLRA to overturn a statutory interpretation than an arbitrator’s contract interpretation.