SEQUESTER BARGAINING STRATEGY
Once management announces that a furlough is reasonably foreseeable (or any impact on unit employees is likely from sequester), the union has a right to bargain. We already shared our thoughts on some proposals to make in an earlier post; now it is time to share some strategy tips to deal with the probability that many agencies will start implementing the furlough days before bargaining has finished.
Before we get into the details, here is the single most important thing to remember about bargaining over any sequester furloughs. The union has enormous power in these negotiations—probably more than it has had in any negotiations it has ever done. Management not only has to offer every employee an opportunity to give an oral reply before it implements any furlough, but it also must complete bargaining, which can take a very long time. If management ignores either obligation it gives the union a very good chance of forcing the agency to give back pay for any furlough days it improperly forced on employees. In short, management has to make a deal with the union or risk a very large back pay liability.
The bargaining plan begins with recognizing that management cannot implement cuts or furloughs unless it has first completed bargaining. There are a few exceptions for things like emergencies and the “necessary functioning” of the agency, but it is far too early in the fiscal year for management to be able to make a case for either in almost any agency. Check out NTEU, 64 FLRA 127 (2009) for a good explanation of the “necessary functioning” defense.
While no one wants to deliberately drag out bargaining to delay the furloughs, neither should any union negotiator favor taking short cuts to finish the negotiations early—unless they achieve virtually every bargaining goal.
For example, the first bargaining requirement is that management gives the union “specific notice” of the cuts its plans. That generally means management must identify which employees will be impacted, how they will be impacted, what they are likely to lose as a result of that impact, and when the impact will begin.
No one should be willing to accept a notice from management that merely says something like “our employees will be furloughed for between 4 and 14 days starting as early as April on days to be determined in the future.” Nor should unions accept an even a more specific description of the furlough that addresses those issues unless management also describes how it is going to adjust workload, work standards, and work procedures to accommodate the employees having less time to get the work done. Unions can waive this requirement, but why?
The next requirement is that management give the union the information it needs to prepare proposals, bargain, and ultimately go through impasse. At a minimum, the union should request whatever information management failed to provide as part of its “specific notice” obligation.
It probably has a right to see the “books” too. FEDSMILL believes that the union is entitled to know if there are other options for saving money that they could pursue as an alternative to a furlough and how management arrived at the number of days that it did.
Put the information demand in writing or send via e-mail to establish a record. Explain why you need it, e.g., to prep for bargaining, draft proposals, counter anticipated management arguments, etc. Management will probably try to hide behind a claim that the union has failed to show a “particularized need.” That case law is a nightmare. FLRA and the DC circuit have designed it as a full employment program for labor lawyers because not even with an assist from divine intervention could anyone predict how FLRA and the courts will rule on a set of facts. But a good case precedent for unions to work from is the following which establishes its right to data to verify that management has no choice but to exercise a management right: “However, it is unnecessary to decide whether these explanations provide the requisite specificity to establish particularized need because the Charging Party’s subsequent explanation — that it needed the information to determine whether there was a legitimate operational need for the Respondent’s proposed change to the parties’ agreement — provides such specificity.” AFGE, 65 FLRA No. 45 (2009)
Once the union puts proposals on the table, it can expect management to declare some non-negotiable because there is so little FLRA case law on what is negotiable in connection with furloughs. At that point the union gets to decide whether to petition FLRA at that moment to deal with the allegations of non-negotiability or to wait until the doorstep of impasse. Management might also allege a covered-by defense, but it is unlikely that would work against all the union proposals given how unprecedented this situation is.
The final trap door found at this step of the process is that often management will ask the union for permission to start implementing while bargaining proceeds, e.g., let them at least put out notice letters and start the oral reply process. If your union does that, be sure to describe in writing precisely what it is letting management do and where they no longer can move to implementation. For example, can they accept an employee’s request to take LWOP now in lieu of whatever furlough days he may have to serve? That is up to the union, but be crystal clear about what you are giving up.
We have nothing to pass on in terms of how the parties interact while bargaining, but the union should not let these discussions drag on.
As soon as management suggests that it is at impasse, “has no more to give,” is “at the end of the line,” or anything like that, the union should petition FMCS and FSIP to get involved. An old management trick used at this stage is to announce that the union has its final offer and it is implementing in three days. If it says anything like that, the union should immediately respond that it intends to move the dispute to impasse in the next day or two, confirm that via e-mail as soon as possible in order to create an indisputable record, and then get something into FSIP before the alleged implementation date.
If management implements early at any stage of the bargaining process, the union can file a ULP with FLRA to seek back pay for any furlough days forced on employees prior to completing bargaining. Under most contracts it has the option to file a grievance instead alleging the same thing and put the case before an arbitrator. Given the glacial pace at which FLRA ALJs move cases, an arbitrator will get a quicker decision. Their ALJ’s are a disgrace. In a good year each issues four decisions of about 20 pages. The kid next door turns in four 20-page research papers every four month term at his junior college. But, we digress.
The union should have two goals in any negotiations over sequester cuts. First, try to lessen the potential impact on employees in all areas, not just in terms of getting they some control over when they serve their furlough days. Second, take advantage of every bargaining right it has and do not make a procedural error. Doing so will put the union in a good position to seek back pay through a ULP for any furlough days or other financial harm employees suffer. They are equally important goals in almost every case.
Of course, our advice should not be taken as legal advice. If a skilled attorney looks at your facts and suggests you do things differently,then follow that advice.