TEST YOURSELF: The Specific Notice Obligation
We have said it often before. The biggest process mistake management can make while bargaining is to violate this obligation, and aggressive enforcement of this obligation by the union increases its visibility, credibility, and bargaining clout. Simply stated, the law requires management to give the union “specific notice” of any change in conditions of employment before the agency can implement the change. But there are a lot of subtleties and details union negotiators should know well. We have posed 10 True-False questions below followed by the answers. Test yourself to get a sense of how well you know this area of law.
#1- The employer has the burden of proving that the union received a specific and detailed notice if the union alleges it never did. T or F
#2- If an employer’s notice describes not only the nature of the proposed change, but also the scope, it meets the FLRA’s notice criteria. T or F
#3- The FLRA will tolerate no exception to the obligation to identify the timing of the proposed change. T or F
#4- If an employer gives the union the complete operating manual detailing how a new work flow process will work, it meets its notice obligation. T or F
#5- The FLRA believes it helps the bargaining process for an employer to inform the union that the change it is proposing is non-negotiable. T or F
#6- If the employer meets with the union to describe one change and during the meeting mentions another pending change, the union has received adequate notice of both changes and now has the burden invoke negotiations or waive the right. T or F
#7- If the union’s designated chief negotiator learns of a change while attending a meeting of her own work group where she and her colleagues are briefed on pending changes in their operations, the union has received adequate notice. T or F
#8- FLRA case law sets a specific numbers of days in advance of a proposed change that the union must be given adequate notice. T or F
#9- The employer can never provide notice of a proposed change too early. Tor F
#10- The union can designate whomever it wants as the representative that is to be formally notified of a change, even someone outside the bargaining unit. T or F
#1- TRUE. “Where, as here, an agency asserts waiver of bargaining rights as a defense to an allegation that it failed to bargain over a change in conditions of employment, it bears the burden of establishing that the exclusive representative received adequate notice of the change.” (See 53 FLRA 79 (1997)) This is the most compelling reason why employers should always give notice in writing, preferably via e-mail which seems like it will be an eternal record, and offer to brief the union further before demanding a decision as to whether the union wishes to bargain.
#2- FALSE. There appear to be five elements of an adequate notice, although the FLRA has never put it that way. They are underlined them below for emphasis. “For example, the notice must apprise the exclusive representative of the scope and nature of the proposed change in conditions of employment, the certainty of the change, and the planned timing of the change.” Army Corps, Memphis, 53 FLRA at 82; Ogden, 41 FLRA at 699 (notice of a furlough that did not specify either the number of employees to be furloughed or the expected date of the action was inadequate); Department of Health & Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, Oklahoma City, Oklahoma, 31 FLRA 498, 508-09 (1988) (although union was aware of impending changes in one hospital, notice was inadequate because union was never informed of the area-wide application of the change), aff’d as to other matters, 885 F.2d 911 (D.C. Cir. 1989); Internal Revenue Service (District, Region and National Office Unit and Service Center Unit), 10 FLRA 326, 327, 340 (1982) (notice that was conditional and qualified was not adequate). The notice must be sufficient to inform the exclusive representative of what will be ‘lost’ if it does not request bargaining.” (See 61 FLRA 688 (2006)).
#3- FALSE, BUT STAY TUNED. “With respect to the issue of setting a specific date, in GSA, 15 FLRA at 24, the Authority held that where it can be clearly ascertained that a change in conditions of employment will be forthcoming, there is no requirement that an agency provide the exact date of the change in providing notice. Thus, contrary to the GC’s argument, there is no absolute requirement that to be sufficient, a notice must contain the exact date of implementation.” (See 61 FLRA 688 (2006)). However, this decision seems to conflict with a D.C Circuit Court decision two years earlier that affirmed the need for the employer to announce the timing of the change. “To be adequate, “[n]notice … must be sufficiently specific and definitive to … provide the exclusive representative with a reasonable opportunity to request bargaining. For example, the notice must apprise the exclusive representative of the … planned timing of the change.” U.S. Army Corps of Eng’rs, Memphis Dist., 53 F.L.R.A. 79, 82 (1997) (citation omitted). Notices that omit the timing of a change are therefore inadequate. See, e.g., Ogden Air Logistics Ctr., Hill Air Force Base, 41 F.L.R.A. 690, 698 (1991) (finding a notice inadequate because “it did not specify either the number of employees to be placed in a nonpay status or the expected date of the actions”); U.S. Patent & Trademark Office, 2001 WL 1035062 (FLRA May 24, 2001) (“PTO’s … notice was not adequate as it did not state or otherwise indicate when hiring and/or implementation of the plan or payments of the recruitment bonuses would be offered or commenced.”). We see no basis for reaching a different result where, as here, the timing of a change deviates significantly from what appears in a notice.” Either way, the union lacks accurate information about the timing of the change as actually implemented and may therefore be unable to make an informed decision about whether to request bargaining over the change. (See 369 F.3d 548 (2004)). So, this case law is not as settled as practitioners would like.
#4- FALSE. Consistent with the obligation that a notice identify what will be lost pursuant to the change, the notice must specifically identify the change. It is not adequate to force the union to hunt for it though hundreds or even dozens of pages in a technical manual. “With regard to the change in the staffing requirement, the Judge found that, even if the Union president received the staffing memo, it could not have provided her with adequate notice and an opportunity to bargain because it made no mention of a change. In this regard, the staffing memo does not mention any change, but simply identifies security personnel and rules for staffing posts. Moreover, contrary to the Respondent’s specific assertion, the memo does not indicate on the top of its second page that a change is being made, but states only that ‘THE FOLLOWING ARE THE 913th SECURITYFORCES POST LISTING[S]. THE FIRST FIVE POSTS HAVE TO BE MANNED AT ALL TIMES.’ Therefore, as found by the Judge, even if someone had identified the requirement for staffing the five posts as a change, the memo refers to it in the present tense, as already in effect.” (See 57 FLRA 852 (2002))
#5- FALSE. “To require an exclusive representative to request negotiations after it had been informed by a responsible agency official that the matter was nonnegotiable would again appear futile or pointless….Indeed the record shows that Lelchook informed the Union that ‘they were going to raise the fee.’ Clearly an increase in parking fees was ‘going to happen.’” (See 44 FLRA 988 (1992))
#6- FALSE. Passing references in meetings held for other purposes generally are not adequate notices. That is why the employer should put the details in writing. “Accordingly, while the Respondent had anticipated that the use of guards to collect the parking fees would be of great concern to the Union, the Respondent’s statement in the foregoing context did not register on any of the Union representatives and could not reasonably have been expected to do so. Based upon the foregoing, the Authority concludes that the statements in regard to the use of guard force personnel in collecting the fees, made during a discussion of the amount of daily parking fees to be charged, were passing references, in a different context, and, therefore, were neither specific nor clear enough to provide adequate notice to the Union of the change in working conditions as required by the Statute.” (See 9 FLRA 575 (1982)) In a subsequent case, the FLRA’s Chief ALJ demonstrated the futility of an employer trying to blame the union for not understanding what it was saying. “Given the lack of any written notice, the fact that only passing reference was made to such placement in the context of discussions focusing on adversely affected employees (job elimination or downgrading), and the fact that it did not ‘register’ on as astute and intelligent a negotiator as Tobias, I conclude that IRS did not provide NTEU with adequate notice at that time.” (See 16 FLRA 777 (1984))
#7- FALSE. “The Administrative Law Judge determined that Union steward Price was an appropriate individual to receive notice on behalf of the Union. He further determined that Price’s presence at the staff meeting, albeit as an employee, and his testimony that he decided not to seek bargaining because he considered the reorganization to this time to have no impact, constituted a reasonable basis upon which to conclude the Union had sufficient notice of the reorganization. Accordingly, he recommended the complaint be dismissed on the grounds the Union had sufficient notice and failed to request bargaining….There is no evidence in this case that the Respondent in any way sought to give appropriate notice of the reorganization to the Union. While the Union might have requested negotiations based upon the chance knowledge of its agent, the failure of the Activity to give appropriate notice to that agent or other union official AS A UNION REPRESENTATIVE impeded the ability of the Union to perform as an equal partner with Activity management. Thus, Respondent’s failure to provide appropriate advance notice to the Union did not comply with the obligation to consult in good faith as required by the Statute, in violation of sections 7116(a)(5) and (1) of the Statute. Having found the Respondent violated sections 7116(a)(5) and (1) of the Statute by its failure to give appropriate advance notice of a reorganization to the Union, the Respondent will be required to cease and desist from such conduct, and to post an appropriate notice.” (See 4 FLRA 512) Consequently, management would be wise to ask the union for a clear statement as to just which of its representatives is to receive these notices.
#8-FALSE. “Further, the notification to Ward, even if he had been the appropriate person to notify, was not sufficient because it was given immediately before the details went into effect. Notification of a change must be sufficiently in advance of the event to permit the union and the activity to meaningfully meet and confer, which necessarily involves ample opportunity for the union to fully explore the matter.” (See 39 FLRA 1060 (1991)) So, if the parties want the security to know with certainty when the union must invoke negotiations or waive the right, they should stipulate that date in their contract.
#9- FALSE. If the scope of what the union can bargain changes between the completion of bargaining over the proposed change and the actual date of the change, the union has the right to reopen negotiations and stop implementation. “The Authority’s ruling thus rests on a factual inaccuracy, i.e., that ‘there was nothing in the Union’s January 2001 proposals that could not also have [been] submitted in April 1997.’ In fact, as the union points out, the ruling required it to do the impossible: ‘to have presented its proposal on childcare tuition assistance prior to the time government-wide regulations authorized agencies to use appropriated funds for this purpose.’ Pet’r’s Br. at 23. The intervening change in law not only undermines the Authority’s reasoning but also distinguishes this case from Department of the Treasury, Internal Revenue Service, 20 FLRA 403 (1985), on which the Authority relies. In IRS, the Authority held that a two-year delay in the implementation of a proposed change created no new bargaining obligation because ‘the nature and degree of the impact of the change in 1983 did not differ from the impact that was foreseeable when Respondent developed its plan in 1981.’ Id. at 406, quoted in Resp’t’s Br. at 22. But here, contrary to the Authority’s contention, the new law did affect the impact of the SAS closure. Specifically, the law gave the depot a new way to mitigate the loss of child-care services, i.e., offering tuition assistance to employees who moved their children from the closed SAS facility into private child-care programs, and thus provided the union with a reason to request bargaining—a reason it lacked in 1997. IRS therefore provides no support for the Authority’s decision.” (See 369 F.3d 548 (D.C. Cir. 2004)).
#10- TRUE. “The Respondent argues that apart from contract and past practice, the Union’s stewards held themselves out as empowered to “deal with” the Respondent by processing and negotiating changes. Exceptions at 14. However, as previously discussed, the Union is entitled to designate representatives for specific purposes….Thus, even if the Union’s stewards represented the Union with regard to the processing and negotiation of changes, the Respondent was still obligated to provide initial notice to the individual designated by the Union for that purpose.” (See 57 FLRA 852 (2002)). So, be sure you not only have the union designate who is to receive notice, but that you get that information from the proper union leader. Typically, that is the top elected leader of the body that holds the exclusive recognition certificate, even if that person is outside the unit. (See 23 FLRA 209 (1986))
If you want to learn more about the notice obligation check out these FEDSMILL articles: