MAKING NEW PROPOSALS AFTER BARGAINING BEGINS
There is a little-known court case that authorizes union negotiators to make totally new proposals in the middle of negotiations.
Many management negotiators will claim it is bad faith bargaining for the union to come up with new proposals after bargaining begins. Some will even propose adding a clause such as the following to the term contract rules about mid-term negotiations: “The union will not add to its opening proposals once bargaining begins.” A few unions may have already agreed to similar words. However, it is not necessarily bad faith and management cannot insist on a proposal like that without violating the law itself.
The D.C. Circuit Court ruled that unions have the right to make new proposals, not just related counter-proposals, after the bargaining has begun. It held that a interpreting a contract clause as prohibiting new proposals was wrong.
It appears to lock the Union into its initial bargaining position by permitting the agency to ignore as untimely any subsequent expression amplifying, supplementing, or clarifying the initial proposal. And it would effectively prevent the Union from developing proposals based on accurate information properly and timely requested from, but not promptly delivered by, the agency. The agency would need only delay its response to the Union’s request for information until the 15-day period had elapsed — as the Medical Center did in this case — in order to avoid bargaining over any proposal submitted after that time. The agency would be rewarded, under this reading, for providing insufficient information when notifying the Union of proposed changes and for tardy responses to valid information requests. This cannot be the intended meaning of Article 11 of the CBA. (NAGE, 363 F.3d 468) (The FLRA adopted the decision as law in NAGE, 60 FLRA 446)
Consequently, if you want to put proposals on the table after bargaining has begun, the safest course is to relate them to new information you have received. Ideally, it would be information you received from management pursuant to an information request or discussion at the bargaining table. But if it is information you received from others, then you are safest to point out to management that it had an obligation to give the union the information when it proposed the change as part of its four-part obligation to notify the union of the scope of the change, its nature, its timing and what the union or unit employees will lose as a result of the change.
If you already have contract language which prohibits you from submitting new proposals after bargaining begins, this case may give you an opportunity to void it. If you cannot do so during the life of the agreement, then you should consider declaring it void once the contract terminates as a permissively bargained provision.
(Originally posted April 23, 2012. As always, check with your own legal counsel about that because FEDSMILL.com does not provide legal advice.)