WHY CAN’T PARTIAL TERM AGREEMENTS BE IMPLEMENTED?

FLRA has held section 7114(c) contemplates that a negotiated agreement generally will be treated as an integrated and complete document rather than as a collection of articles and sections. It has pointed to the following words in that section as the basis for that, “the agreement, not a portion thereof,” is subject to agency head. It has even gone so far as to declare that to allow agency heads to review and approve or disapprove partial agreements, absent mutual agreement to allow that, “…would produce chaotic results…,” and listed several practical reasons for that position.

First, if FLRA were to hold that each individual provision was subject separately to the approval process a situation could result where some portions of the same agreement were approved, some were disapproved, and some went into effect automatically based on an agency’s failure to act within the 30-day time limit.

Second, given the nature of negotiations, it could be very difficult to reliably ascertain the execution date of a particular provision.

Third, “give and take” is one of the cornerstones of collective bargaining. Thus, it would not be unusual for parties having reached tentative agreement on a particular provision to reconsider that agreement in efforts to come to an agreement on another provision. Moreover, one segment of an agreement may affect the meaning of another segment.

Consequently, the date of execution that triggers the time limits for agency head review (which in turn triggers the date the agreement can be implemented) is the date on which no further action is necessary to finalize a complete agreement. It is not the dates on which agreement is reached as to individual pieces of that agreement or even most of the agreement while pieces are tied up in negotiability disputes or ULP allegations. (Check our POPA and PTO, 41 FLRA 795 (1991))

Moreover, if there are pending negotiability or “obligation to bargain” ULP issues an agency would be guilty of a ULP if it insisted on presenting a partial version of the agreement to the Panel for resolution.  Given that agency heads can only exercise review of a partial agreement if both parties agree the same applies to Panel involvement. Insisting that the Panel take jurisdiction and decide anything less than every issue involved in a term agreement when one party objects amounts to insisting to impasse on a non-mandatory subject of bargaining. Check out FDA and AFGE, 53 FLRA 1269 (1998) for cases establishing that principle as well as leading to further case law.