UNION’S OPTIONS WHEN AN AGREEMENT PROVISION IS DECLARED UNENFORCEABLE

FLRA long ago ruled that even if an agency agreed to a particular agreement provision (or FSIP imposed it) and the agency head approved it as legal, the agency can declare it legally unenforceable at any time during the life of the agreement.  That leaves a union and its members very vulnerable to the agency agreeing to something just to get a new agreement in place and then gutting the heart of that deal by voiding a clause for something as simple as a single word in the provision.  Here is how a union can protect itself it that situation. Continue reading

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WHEN IS AN AGENCY PROPOSAL EVIDENCE OF BAD FAITH BARGAINING

If you are looking for proof that the agency has engaged in bad faith bargaining, be sure to examine the proposals it has made. The courts have held in the private sector that if “…a demand is clearly designed to frustrate agreement on a collective-bargaining contract,” it can be grounds for declaring that the agency bargained in bad faith. That puts the union on the remedy doorstep of voiding any contract that came out of that bad faith bargaining. For example, an “unrealistically harsh or extreme proposals can serve as evidence that the party offering them lacks a serious intent to adjust differences and reach an acceptable common ground.” See Liquor Indus. Bargaining Group, 333 N.L.R.B. 1219, 1220 (2001) for a good discussion of this body of law. Here are some signs proposals are evidence of bad faith bargaining:  Continue reading

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ARBITRATING CASES FOR NON-MEMBERS:  MUNCHAUSEN-BY-UNION SYNDROME

Any union leader who thinks dues-paying members’ money should be spent arbitrating cases for non-members is — 

  1. Out of his/her mind
  2. Has a low self-image
  3. A coward
  4. Uniformed about the law
  5. Keeping their own union weak
  6. All of the above.

That’s right. The Answer is “6.”  Sorry, if you think that is harsh, but it is based on decades of experience running high-membership unions. Here’s why.  Continue reading

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A NEW GROUND RULE CONTROVERSY 

Given the Trump Panel’s vicious attack on unions, it is no surprise that unions are working hard to reduce the Panel’s power.  One way to do that is to block an arguably illegal Panel final order from being implemented soon or ever, if possible. We ran across one last week that is bound to complicate Panel proceedings. The union proposed the following: Given the union’s retention of the right to ratify any final agreement before execution and given the potential that the union could have jurisdictional, legal, and substantive objections to the validity of a Panel decision, the agency accepts that union member ratification will be delayed until any objections to Panel proceedings are concluded so long as the union timely invokes the process or processes for challenging Panel decisions. This in no way lessens any statutory right the union has to delay implementation of an illegal Panel order.  Continue reading

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WHAT IS SURFACE BARGAINING? 

To begin, it is illegal.  It is also what Trump’s executive orders virtually mandate that all management negotiators do.  Finally, it is something union negotiators should learn to recognize because it could be the key to voiding an anti-union, anything-but-neutral FSIP decision.  So, we thought we would share some of the signs that management is engaging in surface bargaining.  If you spot an agency engaging in a few of the elements of surface bargaining, you should strongly consider filing a ULP grievance asking that the agency be required to go back to the beginning of bargaining to start again—but legally this time. A surface bargaining ULP charge, like almost any other good faith bargaining matter, would turn on a review of the totality of negotiations.  But, that does not mean a union has to wait until bargaining is over before it files a charge. If it has several examples of the agency’s surface bargaining it can sustain a case.  What follows is a list of statements from FLRA and judicial decisions that identify examples of surface bargaining, along with a Fedsmill comment after each.  Continue reading

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WHAT DO SELECTING OFFICIALS OWE BQ CANDIDATES–AGAIN? 

We can’t say this often enough.  When Selecting Officials non-select BQ candidates, especially those with higher scores than the selectee, the Selecting Official (SO) must provide the non-selected applicant something more than a vague, subjective, zero-content, non-verifiable reason why he/she was rejected. If the SO refuses to do it voluntarily, simply file an EEO complaint (or grievance alleging contract and EEO violations) and the SO will be forced to go on the record and under oath.  Continue reading

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THE CHAIRMAN’S FAVORITE MANAGEMENT BLUNDER

One of the best ways to teach is to tell a story and our chairman reels off one after another at board meetings.  But he has a favorite and it involves a case precedent that has not been cited by the FLRA since 1991.  Here is what happened.  It was early in 2007, during one of those periods where the political party in charge had installed an anti-union group of anything-but-neutral, knuckle-dragging, tongue-swallowers on the FSIP—much like today. As if that was not bad enough for the chairman’s union, the agency was led by a mean-spirited, operate-from-the-shadows, LR weasel who sent a truly obnoxious, hyped-up, union-hating chief negotiator out to do his dirty work. Imagine Mr. Clean hyped up on crystal meth and throw in a record-setting amount of arrogance about his self-declared superiority to any union rep on earth. That was the setting when the union had to negotiate a new term agreement and our chairman was the chief negotiator. Obviously, with the next Presidential election 18 or so months away, the best strategy was to figure out how to stall bargaining—and then pray—just like it is today. Continue reading

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UNION REP TEST #9  (Ratifying FSIP Orders)

QUESTION: What happens when a union refuses to ratify a term agreement partially based on an order from the Panel?  Can the agency just turn around and ask the Panel to impose the entire contract, including those issues the parties had agreed upon before going to the Panel?  If so, doesn’t that just mean that a decision not to ratify will merely delay implementation of the same agreement a couple of months? Continue reading

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FSIP BACKS OFF

The Panel does not publicize its decisions over whether or not to take jurisdiction, but they are very important to the LR community nonetheless.  In the case of Patent and Trademark Office and POPA, 20 FSIP 045 (June 2020) we see yet another instance of the union outmaneuvering the agency so as to block FSIP from putting one more collective bargaining agreement through its mean-spirited, anti-union meat-grinder. Knowing how to block the Panel from taking jurisdiction may be the most important skill a union negotiator can have these days as the Administration looks to crush unions. (Similarly, knowing how to avoid jurisdiction pitfalls is just as critical a skill for agency negotiators, as the PTO management team proved so convincingly in this case.) Fedsmill.com has posted many pieces on what blocks FSIP from taking a case that go into issues not involved in this PTO-POPA case. Among them are the following:

Just type in FSIP to the Fedsmill.com search box if you want to see them all.  Here is how the union blocked the Patent and Trademark Office management from getting FSIP’s union-hating help. Continue reading

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UNION REP TEST #8 (Part 2) – Prohibited Personnel Practices (PPP) 

This continues the self-assessment of your knowledge of prohibited personnel practices. Read through the hypothetical situations provided under each PPP and decide what you think.  The correct responses are posted below the quiz questions. Continue reading

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