FSIP, DE FACTO NEGOTIABILITY DISPUTES & ULP’s

Agencies are obligated by executive order to refuse to negotiate over certain union proposals. So, what happens if a union makes proposals that directly clash with the provisions of Trump’s executive orders? One union has set out to find out with the following term agreement proposals:

Section U – The local chapter president and chief steward will be entitled to use up to 100% of their work year on official time to tend to labor-management business.

Section V – The agency will provide the union a space of at least 250 square feet of enclosed lockable space in each agency location of more than 300 unit employees.  This space shall be for the sole use of the union in connection with labor-management business and will be provided at no cost to the union.

Section W – The union will be provided three hours per bargaining unit employee per year to use as official time by its representatives performing labor-management business.

Section X – Unit employees shall receive a reasonable amount of compensated time to confer with designated union representatives about matters for which they can seek relief under the law or agreement.

Section Y – The agency will pay the reasonable travel and per diem costs of the union negotiators entitled to official time to engage in mid-term bargaining.

The union anticipates that the agency may try to avoid stating that the proposals are non-negotiable in the hopes that these core proposals do not trigger a piecemeal bargaining dispute that blocks the FSIP from taking jurisdiction.  However, under regulation, unions are permitted to file negotiability appeals even if an agency refuses to provide an affirmative statement or written declaration that the proposals are non-negotiable. Given that these proposals unquestionably clash with provisions of the Trumpian orders which are binding on agency negotiators, this union will proceed claiming the orders themselves are declarations of non-negotiability. (If the agency attempts to tell FLRA it does not object to the negotiability of these proposals with the expectation that will result in a quick dismissal, the union’s plan is to file a ULP grievance alleging the agency is making misleading statements, a known ULP.)

But the union’s plans and options do not stop there.  The substance of each of these proposals has been found to be negotiable in prior FLRA decisions. That permits the union to file a ULP grievance on some or all the proposals over which the agency refuses to negotiate. The grievance would go before a private neutral not selected by the President and on to the court of appeals, if necessary.  In the meantime, the union would have a strong case that it is not obligated to bargain further over the rest of the agreement proposals until all issues are on the same table. That would block FSIP jurisdiction –or at least it should under law.

This stalemate would not have been possible if the President had instructed agency officials merely to try to reach certain bargaining objectives.  However, by barring the agency negotiators from considering these proposals, the President has created the perfect set of facts for a union to allege that the agency is refusing to negotiate over a matter even if it never says a word protesting negotiability.

It will be interesting to watch this play out over time.  The obvious agency response to this union maneuver would be to get an exemption from the obligations of Trump’s orders – or pray on bended knees that the orders are ruled illegal by some judge. That would remove a very substantial obstacles to getting their contracts before FSIP where Chairman Carter’s team will surely do just as much harm to the unions as Trump’s orders.