NO AGENCY NOTICE GIVES UNION BIG BARGAINING BONUS (PT. 1)

NEGOTIATOR ALERT!     Managers often fail to give the union advance specific notice of a pending change in conditions of employment.  That is a fact of life every union leader learns early.  But what too many managers have failed to learn is that when they fail to give proper notice they hand the union a bargaining power bonus.

Sometimes LR managers do not give notice because none of their colleagues told them about a pending change. Other times, the LR folks may believe the change is not a condition of employment, “de minimis,” “covered by” a current agreement, or something the union waived the right to negotiate over.  And there are even a few LR folks who deliberately withhold notice hoping the union will not recognize what is going on and that they can get away with something.

But no matter what the reason management takes an enormous risk every time it fails to provide notice.  The law requires that management’s notice contain five elements, which we have underlined in the following excerpt:

“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.” . . . 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 HHS, Okla. 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); IRS, 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.”  (61 FLRA 688 (2006)). See also 65 FLRA 422 (2011) for a recent affirmation of this precedent.

When management makes a change without complying with those legal requirements,it puts the union in a position to do several things it could not do if it had notice.  Here is a short list of them.

• ·        If LR had served notice, the union would have had about two weeks to invoke bargaining or lose the right to bargain at all.  Without notice, the union has up to six months after it learns of the change to demand bargaining or file charges.
• ·        If LR had served notice, the union would have had to make its decision to invoke bargaining and draft proposals based on what the notice said.  Without notice, the union has a chance to observe the change for six months, identify the good and bad parts, and then draft its proposals.
• ·        If LR had served notice, the union would have had to bargain promptly and even allow the change to go through if it was a management rights change.  Without notice, the union can demand that management undo the change, compensate anyone who has been harmed, and then begin bargaining to get union agreement to re-implement. A union can demand at lot at a bargaining table in return for allowing management to avoid undoing a change.
• ·        If LR had served notice, the union would have had to bargain and sign an agreement.  Without notice, the union can publicly criticize managers for breaking the law, which can undermine employee confidence in managers.

For example, if LR fails to notify the union that management is modifying the critical elements for an occupation, here is what the union can do with that.  It has the choice between demanding a rollback and bargaining immediately upon learning of the change or sitting back to watch what impact the change has.  While management may have thought the change was “de minimis,” with time the union can gather evidence to prove otherwise, e.g., counseling memoranda, decreased evaluations, critical work reviews, lost awards, etc.  That is evidence the union never would have had if advance notice had been served. Once the union decides to undo the change, it has a solid story to tell employees about how management has violated the law and how the union is going to bat for the employees.

In addition, the union then files a ULP charge with FLRA or it files a ULP grievance.  In fact, if there has been more than one change during the six month period the union can group all of them into one grievance (or charge) to boost management’s liabilities and cuts union costs. If management decides to fight the allegations rather than rollback the change, its liabilities usually increase—along with any attorney fees the union might earn from a back pay award.

At the hearing, the union can demand back pay, retroactive leave, priority consideration, lost overtime pay, missed performance awards, the destruction of records, modified evaluations, etc. for anyone harmed.  It can also ask that the ALJ/arbitrator order the agency head to sign a notice admitting that management violated the law and promising not to do it again.  Finally, the union can ask for a remedial order that management undo the change and bargain if it wishes to re-implement it.  Early in November, NTEU won a ULP case in which the FLRA sustained an arbitrator’s order that the agency reassign an employee back to a duty location from which it had moved him.

So, the moral of this story is that if LR knew what was good for it, it would always give the union notice.  If it thought the change was “de minimis,” “covered by” or whatever, it would say that along with a statement that it did not believe there was an obligation to bargain over the change.  Perhaps this would be called a courtesy notice. But whatever it is called, it would put the union on notice and force it to at least ask to bargain within a short period of time.  After that period ends, the agency can start to defend against a ULP allegation by claiming that the union never asked it to bargain despite notice.

Of course, if LR fails to do its job, for whatever reason, unions should use the extra clout that failure gives it and create a “teaching moment” for LR.

(Part 2 of this article will address what the union can do if it gets notice, but it is inadequate and lacks details. Watch for it.)