UNDERMINING A NEGOTIABILITY APPEAL
NEGOTIATOR’S ALERT! Here is a case negotiators should not forget about. NTEU filed a negotiability appeal with FLRA over an issue arising out of term negotiations. However, later in those negotiations it agreed that even if the Authority found the proposal negotiable the parties would delay negotiations over the proposal until the contract reopened.
That probably sounds reasonable to most people, but not to the FLRA. As soon as it heard that the parties postponed negotiations, it declared that the negotiability request was pre-mature and dismissed it. The Authority declared that “to rule on the merits of the union’s proposal in these circumstances would be tantamount to rendering an advisory opinion contrary to section 2429.10 of the Authority’s rules and regulations.” (7 FLRA 610) So, be careful about doing something because it is reasonable. If the union files a negotiability appeal to get a decision, but is willing to postpone any resulting negotiations, do not put that in writing. Keep it an oral and secret deal. Otherwise, FLRA will force you to start all over again. And put this in your file of cases where the FLRA has shown little to no concern for practitioners who actually make the decisions as to how a workplace should be run and who thought this was a good idea.