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.
#1- “It is well established that when an agency gives the impression that it is futile for the union to attempt negotiations over its proposals, the agency has failed to engage in good faith bargaining in violation of the Statute…Accordingly, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute when it foreclosed bargaining over the impact and implementation of its decision.” (Fedsmill- So, if an agency refuses to even discuss a union proposal it is a sign of a violation. Trump’s order barring agency managers from offering more than one hour of official time per person is great proof that it is futile to bargain with an agency negotiator over that.) DOJ, FCI, Bastrop, TX and AFGE, Local 3828, 55 FLRA 848 (1999)
#2- “Loera [a management team member] obviously did not care what the [union] proposals were, as he had never seen them. Although one would assume that Loera as Respondent’s highest official at the meeting, would have some familiarity of the Union’s proposals and would be the one to consider their impact, it is clear that his role in the meeting was merely to make the Union aware of the reasons why the change was needed and not to engage in any meaningful discussion about the proposed changes or seek agreement.” (Fedsmill- This agency rep Loera admitted he never even looked at the union proposal before rejecting it and only talked to the union about the management proposal.) Indian Health Service, Crownpoint, New Mexico, 53 FLRA 1161. (1998)
#3- At the outset of bargaining the agency negotiator told the union, “One way or another the scheduled shift change will happen and there will be no delay in starting the new shifts” and, further that the changes would be implemented “. . . without any interruption in `direct patient care’ the schedule shift change will happen and there will be no delay in starting the new shifts on October 1, 1995…” The FLRA held that communicated to the union that bargaining would be futile, “it is not difficult to see this meeting as ‘merely an informational briefing to the Union concerning [Respondent’s] plans and not collective bargaining.’” (Fedsmill- This happened in the same case as the one above. We can’t help but wonder how an agency is going to allege that it will not discuss travel and per diem reimbursement or certain official time matters if those matters are found to be negotiable under law.) Indian Health Service, Crownpoint, New Mexico, 53 FLRA 1161. (1998)
#4- “At the very least, PTO was obliged to accept POPA’s request to negotiate, to examine its proposals, and to respond by actually discussing those proposals (even if the initial response to some of the proposals was to raise legitimate questions as to their negotiability)…. PTO did not do even this much, and its failure to do so violated section 7116(a)(1) and (5).” (Fedsmill– So, if your agency does not want to listen to the union’s explanation and supporting evidence behind a proposal that is a sign of surface bargaining. Also note management explanations for rejecting union proposals that lack any substance or logic. This FLRA decision was not enforced by the circuit court due to a technicality; the court did not reject the FLRA’s reasoning.) Patent and Trademark Office and POPA, 45 FLRA 1090 (1992)
#5- “Thus, the collective bargaining relationship envisioned by the Statute requires that each party have the ability to function as an equal partner within the relationship…. In this matter Respondent, among other things, unilaterally set the dates for negotiations, which should have been by mutual agreement, imposed deadlines on the submission of proposals, during negotiations sought to limit the Union’s caucus time and refused to return to the bargaining table on the matter after negotiations were disbanded….The record shows that throughout negotiations, Respondent attempted to limit the Union’s caucus time and to apply pressure to the Union’s negotiation team, pointing out that negotiations had been set for two days; referring to caucus time as a waste of time; telling the Union to return to the bargaining table; stating that valuable time was being wasted; reminding the Union that expenses for the Union negotiation team were being paid by management and that their absence from the bargaining table represented a breach in good faith bargaining; and, disbanding negotiations and refusing to return to the bargaining table. In all the circumstances of this case, I agree with the General Counsel that caucus time was part of the negotiation process and that it was improper for Respondent to interfere with that time or to attempt to supervise Union negotiators. Respondent showed no reason why Union negotiators could not have been allowed sufficient time to formulate acceptable counter-proposals, that the Union negotiators misused their time or that the time for negotiation could not have been extended pursuant to the parties prior agreement.” (Fedsmill– So, if the agency is unilaterally imposing logistical rules during negotiations or even threatening the union if it does not agree to the agency’s unilateral decision about the length of a caucus, it hands the union an example of surface bargaining. Trump’s orders that agencies complete bargaining in a very short period of time are leading agencies to do precisely this.) Social Security Administration and AFGE, 18 FLRA 511 (1985)
#6- “Good faith bargaining during negotiations requires that neither party mislead the other as to its intentions, and it is essential that the Union and management agents do not engage in misrepresentations at the time.” (Fedsmill– So, if an agency said during ground rules bargaining that it was going to do something, e.g., allow the union multi-hour caucuses, but then did not do that during bargaining it has “mislead” the union. If the agency suddenly prohibited or punished long caucuses after allowing long ones it should also be charged with unilaterally changing a working condition without advance notice to and bargaining with the union. Under law it does not seem to matter that the agency deliberately misled the union or that it was part of a larger scheme to engage in bad faith bargaining.) Veterans Administration, Wash. DC and VA Medical Center, Leavenworth, KS and AFGE, Local 85, 32 FLRA 855 (1988)
#7- (Fedsmill– We wrap up this overview of surface bargaining behavior with an excerpt that highlights what agencies should do in bargaining—or at least the kind of bargaining behavior that would be considered good faith. Note particularly the underlined actions.) “While I agree with the General Counsel that no agreement was reached between the parties in respect to the relocation, record facts convince me that Respondent and the Union did engage in negotiations thereon. Thus, commencing [on] February 18 supervisor Toscano discussed the impending move and gave details thereof to the Union representative. When Bailey submitted counterproposals on February 20, Toscano discussed them and, although rejecting same as not alleviating the inequitable distribution of the clerical work, she explained why management deemed the union proposals inadequate. Moreover, the chart submitted by the bargaining agent was considered by the supervisor who contended the arrangement suggested by the Union resulted in three clericals working with three CRs and one clerical with two CRs. Toscano also pointed out that office worker Karen Munson would not, as a Title II reviewer, be in a quiet place to handle claims. When Bailey advised the supervisor that one of the clericals wanted to be in Title II rather than Title XVI, Toscano agreed to put the clerical in Title II and move her desk. When Bailey mentioned that two of the clericals were adverse to sitting next to one another, Toscano consented to separate them. At the conclusion of the meeting the supervisor informed the Union that, unless some better suggestion was forthcoming, management intended to implement the move on February 27. The foregoing demonstrates a “give and take” position on the part of Respondent with respect to the relocation, and the concessions granted by management shows, in my opinion, that the employer engaged in bargaining.
“Subsequent discussions between the parties reinforces the conclusions that good faith negotiations occurred. Thus, on February 23 the parties resumed discussions, and on February 24 Toscano met with Bailey in the morning as well as with the Union representative and employees in the afternoon. At the earlier session the supervisor discussed a chart prepared by a clerical as an alternative to the proposed reorganization. Toscano explained why she believed the said suggestion by the Union would still leave an uneven distribution of the workload. In the later session, at the request of Bailey, Toscano spoke to employees re the locations of the staff upon the reorganization, and she answered questions raised by the employees. Once again the parties met to discuss another counterproposal by the Union. On February 26 Toscano discussed a proposal submitted that date and told Bailey it was not better than the one to be implemented. In addition, Bailey gave management a request to defer implementation of the planned move. Finally, on February 27 manager Hernandez met again with Bailey, advised her he couldn’t defer the move because of the very large intake of redet cases, and stated that the relocation would begin that day….The continued meetings and discussions between the parties re the relocation of the office staff persuades me that management did not enter into negotiations with a fixed determination to implement its plan and not bargain with the Union thereon.” Department of Health and Human Services, Social Security Administration, Baltimore, MD and AFGE, 16 FLRA 217 (1984)