FUBAR: POPE’S PERMISSIVE POPPYCOCK

QUESTION: Why should a union never accept a management offer to sign contract language over a Section 7106(b)(1) permissive subject, such as method and means, technology, numbers, grades, etc.? ANSWER: Because Carol Waller Pope, Chair of the FLRA, has made sure the union will regret it.

Imagine that the union negotiated into its new term contract a rule that employees will always conduct a certain risky task in pairs rather than alone as is the current practice.  Employees likely would be delighted and union leaders would be slapping one another backs with congratulations for getting management to bargain over a permissive topic, e.g., numbers of employees.

But their joy may last only as long as that contract is in effect because FLRA has bestowed on management the right to unilaterally change that practice when the contract terminates.   While management must give the union advance notice that it is going to change the practice, it need not bargain substance, impact or implementation of the change.  Nothing stands between it and the right to unilaterally change back to the old practice or even a new one. This FLRA precedent is the bargaining equivalent of a Get-Out-of-Jail card.

This rule started with the Federal Labor Relations Council, FLRA’s predecessor under the collective bargaining system created by executive order.  The Council confronted a case where the IRS unilaterally eliminated all the NTEU institutional benefits in an expiring contract.  The FLRC found that to be an unfair labor practice, but gratuitously tossed in the following words which had nothing to do with the facts before it:

“Of course, just as in the situation where no collective bargaining agreement has previously existed, agency management, upon the expiration of a negotiated agreement, retains the right to unilaterally change provisions contained therein relating to ‘permissive’ subjects of bargaining, i.e., those matters which are excepted from the obligation to negotiate by section 11(b) of the order, and either party may change matters which are outside the scope of such obligation under section 11(a) of the order. Consequently, absent the parties’ agreement to the contrary, the parties are not obligated to maintain those matters upon the expiration of the agreement.” IRS, Ogden, UT and NTEU,  6 FLRC 310 (1978)

Note that the Council made no distinction between-

• ·        matters that are conditions of employment, but subject to bargaining only if management wishes to bargain over them because of Section 11(a) of the Executive Order said they were, just like Section 7106(b)(1) today, and
• ·        matters that do not involve conditions of employment as the concept is defined in 5 USC 7103(a).

Bargaining over the number of employees assigned to a task is an example of the first while demanding local negotiations despite the unit being nationally certified is an example of the second.

Once the FLRA took over, it continued the FLRC’s failure to distinguish between matters made permissive by 7106(b)(1) versus those rendered permissive by operation of 7103(a) and wrote the rule as follows:

It is well-settled that, with certain exceptions not relevant hereto, upon the expiration of a negotiated agreement, existing personnel policies and practices and matters affecting working conditions continue as established and cannot be changed unilaterally unless a “permissive” subject of bargaining is involved. DOD, Dept. of Navy and Lodge 830, IAMAW, 4 FLRA 760 (1980)

In 1999 the Authority removed any doubt as to whether unions even had a right to negotiate over the impact and implementation of the substantive change, e.g., the numbers of employees assigned a task.

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, FBP, Danbury, CT and AFGE, Council of Prison Locals, 55 FLRA 201 (1999)

If something inside you is gently signaling that rule makes no sense, your instincts are not working right.  This precedent is total nonsense, and another one of those areas where the FLRA has fouled up beyond all reason (FUBAR) the day-to-day practice of labor relations.

The Authority has imposed a case law precedent that requires that the union forfeit its rights to negotiate even impact and implementation issues when management terminates a permissively negotiated contract provision upon expiration of that contract—no matter what the statutory basis for the permissiveness of the provision.  However, if the same rule work about  employees performing certain tasks in pairs was established unilaterally by the agency personnel manual, past practice, a higher-level management command, or even a federal judge, the union would retain the right to bargain at impact and implementation (appropriate arrangements) once management decided to change the original rule.  The same would be true if management changed that work-in-pairs practice because of the passage of a new law, or implementation of a new government-regulation.

So, why does the union not have the right to bargain I&I over a change in a permissively negotiated contract clause?  We at FEDSMILL.com can’t think of a good one, but the Authority has offered two.  First, it believes that if management had to negotiate over changing a permissively bargaining work rule they would refuse to bargain in the first place. (See DOJ, FBP, Danbury, CT and AFGE, Council of Prison Local,55 FLRA 201 (1999)) Second, it claimed that this would promote stability in labor relations. (See FAA, Seattle, WA and PASS, 14 FLRA 644 (1984))

The first is oxymoronic and the second seems to be counter-intuitive.  Isn’t it more likely that the unilateral change will promote resistance and retaliation from the union—as well as resentment among employees? Those can be very harmful to management.

On top of the irrational and sloppy FLRC/FLRA reasoning, the Authority has ignored one of life’s metaphysical certainties, namely, whenever an existing practice is terminated it is always replaced by a new practice.  If the negotiated rule was to provide that employees work in pairs and management wants to change that, it must replace it with a new rule, e.g., will employees work alone, in groups of three, accompanied by a dog, etc. Even if the union has no right to impede the termination of the existing practice through I&I bargaining, why does it not have I&I bargaining rights over the new practice before it is implemented to replace the prior one?

All this case law and reasoning was put in place before Chairwoman Pope took over. One of the critical moments in its development occurred in FAA and  PASS, 20 FLRA 548 (1985), one of the notorious Frazier-McGinnis productions, that conflated both categories of permissive bargaining.  However, Madam Chair Pope has cited 55 FLRA 209 at least 12 times in subsequent decisions.  That makes it her policy.

Not that anyone is asking us, but here is how the Authority could get out of this mess with a degree of self-respect.  It could draw a distinction between matters permissive pursuant to 7106(b)(1) and those permissive because they fall outside the 7103 definition of a condition of employment.  It should recognize a right to negotiate I&I matters in the former situation, but nothing for the latter.  Unions do not need a statutory right to preserve a practice of permissive contract clause granting it the right to local bargaining.  They can address how changes will occur at the time they negotiate the rule into the contract.  If it does not like management’s insistence on a right to unilaterally terminate, it can decide which is more important to it. If management does not like the union’s insistence on preservation of the old practice until bargaining is complete on a new one, it can refuse to put the rule in the contract.  But it will still have to bargain if it ever ants to change the rule.

Until Ms. Pope, or one of her brethren, lead an effort to correct this foolishness, unions should consider the following alternatives to a management proposal to write a 7106(b)(10) practice into a contract: have them put it in a letter they send the union, their manual, or even just into open practice.  The union can agree not to bargain over the change as an enticement.

Frankly, we are hoping that the Chair leads the change effort herself.  She distinguished herself as a solid thinker during the dark ages under Chairwoman Cabaniss—or at least the U.S. Court of Appeals thought so when they often adopted her decisions over Cabaniss’.