HOW UNIONS FORFEIT MID-TERM BARGAINING RIGHTS
Although FLRA has issued close to a half-dozen decisions upholding the concept described below, unions still are making the mistake that forfeits their right to bargain over mid-term changes. So we thought we would refresh a few recollections. In POPA, 66 FLRA 247, Management made a mid-term proposal to change one part of a performance awards program and the union responded with proposals addressing the full range of performance award program issues. Management promptly notified the union that most of the union’s proposals were “outside the scope of its change” and therefore management was not obligated to bargain over them. When POPA refused to limit the bargaining to just management’s change, management unilaterally implemented the change and the union filed a ULP grievance challenging that. It lost and here is why.
The arbitrator and the FLRA found against the union. FLRA said that during management-initiated midterm bargaining “. . . an agency is obligated to bargain only over proposals that are reasonably related to the proposed change….” That was hardly news given cases such as 22 FLRA 62 (1986) and FLRA v. United States Dep’t of Justice, 994 F.2d 868 (D.C. Cir 1993)
If an agency raises this defense, unions are well-advised to think deeply before ignoring it because if the agency is right on even one out of a few dozen proposals in all likelihood FLRA will rule that the agency had the right to unilaterally implement its change without having to bargain.
We get it that unions want to at least be thorough in dealing with the impact and implementation of a change on ALL existing working conditions. So here are some ideas for how to deal with the situation. First, you can agree to sever the proposal allegedly outside the scope of bargaining, file a ULP to eventually force the agency to bargain over them with retroactive effect and continue to bargain over the remaining proposals. Do not refuse to continue bargaining over the proposals with the scope of the change while you wait for the ULP to be resolved.
Second, you can officially pull the proposal off the table, while letting the agency know that if it chooses to offer a concession respond to the outside the scope proposal it might bring substantial concessions. Stay away from a guaranteed linkage or anything else that looks like a demand.
Third, you can pull the allegedly improper proposal off the I&I table and immediately submit a union-initiated proposal for the same thing—so long as it clears all the other rules that apply to any bargaining proposals, e.g., it is not blocked by a covered-by defense, it is negotiable, etc. So long as you do not demand that the two separate bargaining events be joined or otherwise linked, you should be able to move them along in parallel.