LET‘S OVERTURN FLRA’S NUTTY & ILLEGAL PERMISSIVE BARGAINING PRECEDENT

Back in 1999, the Clinton Administration’s FLRA held that when an agreement expires containing a 7106(b)(1) permissively bargained provision, “A party’s right to terminate unilaterally a permissive bargaining subject is not contingent on first satisfying a bargaining obligation as to the substance, impact or implementation of the change.” (DOJ, FCI and AFGE, 55 FLRA 201 (1999))  For example, suppose a term agreement contains the requirement that, “For safety purposes, no employee will be required to remain in the office working overtime alone after hours.” This FLRA decision holds that the day the agreement expires the agency can notify the union that despite on-going negotiations over a new term agreement, and even the union’s proposal to continue the provision, the agency is immediately terminating the policy and will henceforth require employees to remain in the office alone after hours. AND THERE IS NOT A THING THE UNION CAN DO ABOUT IT! Why?  Because those three Clinton FLRA appointees concluded that “attaching bargaining obligations to termination of permissive bargaining provisions may discourage parties from engaging in bargaining on permissive subjects.” POPPYCOCK, we say, and here is why this decision should be overturned.

The FLRA’s Lack of Logic– Let’s start with the logical shortcomings of the FLRA position.

• Current case law holds that if the agency adopts a reg, policy or even a practice that is permissively negotiable, such as the overtime rule described above, the agency cannot change that policy or practice until it completes I&I bargaining. (SSA and AFGE, 64 FLRA 469 (2010)). Consequently, the 1999 ruling means that unions and employees have fewer rights if they put something in a collective bargaining agreement than if they convince management to put it into a reg, policy or practice that was not officially negotiated. RIDICULOUS!
• Current case law holds that if an agency adopts reg, policy, or practice that is a rock solid 7106(a) management right, e.g., no employees will be assigned after-hours overtime on Friday, it cannot change that until it completes I&I bargaining. (DOJ and AFGE, 55 FLRA 892 (1999)) Consequently, the Clinton Authority ruling means that unions and employees have fewer rights when a permissive management right is involved than a totally non-negotiable 7106(a) management right. ABSURD!
• Current case law holds that once a bargaining agency executes an agreement containing a permissively negotiated provisions, neither the agency head, Senate-confirmed departmental head, nor President can order the agency to change it for the life of the agreement. But according to FLRA the day the contract term ends the permissive provision can be unilaterally obliterated without any FLRA rationale for the sudden vast swing.  NONSENSICAL!
• Current case law does not obligate the agency to return to the policy or practice it was using before it permissively negotiated a new one for the term of an agreement. The agency is free to implement something never before tried.  For example, assume the union negotiated for the right to have Border Patrol Agents work in pairs when operating in high crime areas rather alone as had been the practice. Could the agency unilaterally replace the negotiated practice with providing individual Agents drone coverage to protect them in those areas rather than colleagues or contract out the work of the second Agent to armed private security personnel?   If so, then this FLRA holding amounts to an enormous benefit for agencies; it is the collective bargaining equivalent of a Get Out of Jail Free card for the agency. If the holding is that not broad, then just where is FLRA drawing the line and based on what statutory provision? LUNACY!

The only way to harmonize the statute’s treatment of the right to bargain 7106(b)(2&3) matters is to hold that negotiated permissive contract provisions cannot be changed until any requested I&I bargaining is complete, including FSIP involvement. (Of course, even there the agency is free to unilaterally implement before the completion of bargaining when necessary to the functioning of the agency.) The agency incurs no additional liability or obligation for maintaining the status quo than when it makes any other kind of change.  Given the statute states that bargaining is in the public interest, it is a stretch to even view this bargaining as a liability.

Finally, even if an agency does not like the thought of I&I bargaining at the time it wishes to change the permissively bargained contract rule, it can always bargain in the same term agreement for the right to reopen the permissive contract clause early or even layout in advance the I&I conditions which will apply if it decides to change the permissively bargained rule. In fact, if the thought of negotiating is so terrible it can merely refuse to bargain over the issue in the first place. So, once again it defies logic to take away via a statutory interpretation the right to bargain over an agency decision to change a permissively bargained clause when there are easy ways for agencies to minimize or avoid the alleged burden through bargaining.

The FLRA’s Disregard of the Statute– Now that the logic–or should we say absurdity—of the FLRA decision has been addressed, let’s turn to the law.

• Nothing in the language of the statute exempts agencies from having to bargain I&I when they want to make a change in a permissively bargained contract provision. Indeed, nothing in the statute even remotely suggests that permissively bargained matters are to be given any kind of special consideration. Given that lawmakers know how to draft exceptions to a fundamental statutory entitlement if they wish, legal tradition dictates another one cannot be assumed as FLRA did. There are already about 30 of them.
• The very 5 USC 7101 foundation of the law holds that bargaining is a good thing and in the public interest, e.g. “[a] primary purpose of the Statute is to promote collective bargaining and the negotiation of collective bargaining agreements.” So, why is FLRA treating bargaining in this situation as something bad? of the Navy v. FLRA, 962 F.2d 48, 59 (D.C. Cir. 1992)
• FLRA has held that before an agency can unilaterally change a permissively negotiated contract clause it must give the union specific notice of its change decision. “Even if the provision constitutes a permissive subject of bargaining, a finding that is unnecessary to make in this case, it does not terminate automatically upon expiration of an agreement. It terminates only when a party notifies the other that it will no longer be bound by the provision.” (51 FLRA 1532 (1996)) The obligation to give notice of a change is something that flows from the obligation to bargain in good faith.  If there is no bargaining in this situation, why does even a part of the 7114 good faith obligation apply? That statutory provision either applies in its entirety or not at all.
• Any time an agency decides to abandon the practice established by a permissively negotiated contract clause, it creates a new policy or practice. It is metaphysically impossible to do otherwise. For example, if an agency decides to no longer follow the negotiated method of doing some work, then a new method replaces that, even if the new policy is that every manager has discretion to set the process him or herself. So, why is not the replacement policy or practice one which must be bargained over before termination of the existing practice?
• Before the Clinton trio spoke in 1999, the FLRA never thoughtfully addressed the issue. The concept was first raised under the Executive Order by the Federal Labor Relations Council in 6 FLRC 310. It was dealing with another bargaining question unrelated to permissively bargained contract clauses when it decided to toss in a throw away comment that was not litigated by the parties. The Council said that agency management retains the right upon expiration of the negotiated agreement to unilaterally change provisions relating to “permissive” subjects of bargaining. It was dicta, at best, and ambiguous dicta at that. Did it mean that the agency can unilaterally decide the substance of the change, which would be logical, or that it can implement the change without any kind of union I&I involvement?
• After the Council’s pronouncement, the Authority double down on its sloppy reasoning. In some cases it wrote that at the termination of an agreement containing permissively negotiated clauses agencies were not “bound” to continue bargaining over the subject—and we agree with that. (See 14 FLRA 644 and 37 FLRA 144)  In other cases it ruled agencies were no longer bound by the negotiated clause itself—and we disagree with that leap (See 21 FLRA 1062).  In still other cases, it held that agencies can actually “unilaterally change provisions contained therein relating to permissive subjects of bargaining.” (1 FLRA 455).  Those are three very different things, which suggests that the Authority itself is uncertain as to what the law provides.  Even more importantly, at no time prior to the 1999 ruling did the Council or Authority ever clearly say that there was no right to bargain I&I in these situations. The Clinton trio came up with that themselves.

What Now?  We suspect that very soon this issue will wind up before the Trump FLRA because the President’s recent Executive Orders threatened agency officials if they did not unilaterally terminate and replace any permissively bargained contract provisions at the earliest opportunity.  So that will raise the question of how this should play out.

To begin, the FLRA and/or courts should hold that a permissively negotiated contract provision, or at least the practice created by it, remains enforceable at the end of the agreement’s term until any requested negotiations are completed, including FSIP assistance, absent the legitimate exceptions like the necessary functioning defense. Moreover, the fact that the agency negotiated the permissive issue in the past would have no bearing on its statutory right to refuse to negotiate over that issue in the future.

Second, the agency must serve just as specific a notice of the proposed replacement policy or practice as it would in any other midterm negotiations. (For example, if it decides that it will no longer assign Border Patrol Agents in pairs, what will its assignment practice or policy be?)  It goes without saying that the agency has the unilateral right to decide the substance of the replacement placement policy or practice, but the implementation procedures and appropriate arrangements would be negotiable.

Third, given that any proposed change in a 7103(a) condition of employment is negotiable, the Authority probably should quickly address the question of whether any requested negotiations remain part of the bargaining to replace the full term agreement or do they, at the agency’s option, proceed independently as mid-term negotiations.  If the latter, it should give thought to the scope of those negotiations. See FLRA v. United States Dep’t of Justice, 994 F.2d 868 (D.C. Cir. 1993).  Additionally, often an agency will agree to a permissive contract term in return for a major union concession. Should the union have the right to take back that concession if the proposed change is treated as a mid-term negotiations?

Fourth, the Authority should step up to the question of whether both kinds of permissive negotiations should be treated the same. The most common form of permissive negotiations are those addressed in 5 USC 7106(b)(1). Each of the listed subject areas deals with a condition of employment.  However, the less prominent areas of permissive negotiations is when an agency negotiates over a topic not listed in 5 USC 7106(b)(1) and also not a condition of employment. For example, bargaining over how supervisors will be selected is a permissive topic of negotiations because it is not a condition of employment. Bargaining over local negotiations in a nationwide unit or bargaining waivers are also permissive topics for the same reason. Given that even I&I matters are not negotiable over those latter matters, a good argument exists that they can be unilaterally changed.

Fifth, the Authority should recognize that the parties themselves have more than enough tools and options to deal with the issue of terminating a permissively negotiated provision. For example, the agency can bargain for a union waiver of the right to engage in I&I bargaining over the issue at the end of the agreement, demand the right to reopen the issue months before the remainder of the agreement terminates, or even pre-bargain any I&I issues. If change is needed urgently enough, it can even invoke the “necessary functioning” exception to preserving the status quo. The union, on the other hand, can refuse to offer a valuable concession unless its bargaining rights are fully protected, propose a poison pill be attached to the agency’s right to unilaterally terminate a permissive provision, or pre-determine a negotiable substitute. Unlike the Clinton Administration’s conclusion that it needed to protect agencies from themselves, a future FLRA decision should admonish the parties to take care of any concerns themselves.