TEST YOURSELF #1- The Late Bargaining Demand
How do you respond when an LR specialist rejects your request to bargain over a management-proposed space change because your demand was a day or two late under the contract? Here are a few more facts to consider before you answer. Once you have outlined what you would do, compare it to our approach which is included below. Now for the additional facts.
Assume that your contract states, “The union may request bargaining within ten work days after receiving notice of a proposed change from management.” You were two days late because you were called in for jury duty the day it was due and did not return until two days later. The specific e-mail notice of the change you received read as follows: “Management proposes to move Keisha Allen from her private office to a nearby cubicle within the next 60 days. This must be done because we are about to hire an employee who has greater need of a private office than Ms. Allen. Ms. Allen’s cubicle will be 6′ by 8′ with 5′ high walls. She will be assigned appropriate storage space nearby for necessary materials and records.”
This notice was virtually identical to one you received a week before which announced management’s proposed move of Bill Wittington from his private office in the same work group as Keisha to a cubicle. Management agrees that you timely invoked bargaining over that move and is postponing it until there is an agreement.
You called the LR specialist when you received his refusal to bargain Keisha’s move to see if anything could be worked out and he refused. Actually, he said his hands were tied by the big boss who had hired these new employees and promised them private offices.
Finally, you know with certainty that Keisha is going to be so mad that you failed to timely invoke bargaining that she is going to withdraw from the union and probably take two other employees with her.
Given the situation, what arguments and tactical responses are available to you in order to “motivate” management to change its mind–or force it to if it does not voluntarily see the right thing to do?
Pause to Outline Your Own Answer:
A FEDSMILL.com Approach:
We would probably file a grievance alleging a ULP. Although management’s formal notice of the change is not bad as shown by the fact that you were able to decide based on it to invoke bargaining, the union has a statutory right to a “specific notice” of all the significant details of the proposed change. There are five elements to a specific notice: 1-the nature of the change, 2-the scope of it, 3-the certainty of it, 4-the proposed implementation date, and 5-what the employees and/or union will lose as a result of this change. A good argument can be made that the formal notice provide items 2, 4 and 5. (Check out the FEDSMILL.com article entitled, “No Agency Notice Gives Union a Big Bargaining Bonus” for a more thorough explanation of what “specific notice” entails.)
But that is not the only argument that management has committed a ULP. We would also allege that by giving separate notices proposing to move Allen and Wittington management was engaging in piecemeal bargaining. Piecemeal bargaining is not a concept the FLRA has yet broadly adopted. But the NLRB has, and that alone is reason to try to get it established in the federal sector. The idea is that a party has the right to negotiate over an entire contract rather than over single issues in independent bargaining sessions. One court put it this way by quoting the NLRB: it “is well settled that the statutory purpose of requiring good-faith bargaining would be frustrated if parties were permitted, or indeed required, to engage in piecemeal bargaining.” (See Dupont v. NLRB, 2007)
Finally, we would allege in the ULP grievance that while we may not have met the contract target for timely invoking negotiations, we have a statutory right to invoke bargaining so long as it is done timely. The FLRA has issued several decisions vaguely describing what its considered timely invocation of bargaining under the statute, but from the prospective of the august editorial board at FEDSMILL.com, case law allows us to invoke bargaining so long as the agency has not yet moved to implement the change.
Do not be too troubled by the contract target of ten works days. First of all, it is hardly a clear and unmistakable waiver of your statutory right. If the contract read, “must invoke bargaining within ten work days” or “is only allowed ten work days to invoke bargaining,” the union would have a problem. But that word “may” gives you wiggle room.
Second, check the past practice to see if there have been instances of the union being allowed to invoke after the tenth day. The practice could override or at least weaken management’s restrictive interpretation of contract language. Third, look over the bargaining history of the ten-day clause. If at one point in bargaining management had proposed wording that included phrases such as “must invoke” or “is only allowed ten days in which to invoke,” that hurts its chances of arguing for a strict application of the “may invoke” clause.
While those are the details of the ULP charges alleged in the grievance, we would also hunt around to see if this move violates any agency manual provisions or even a contract clause. Perhaps the agency’s own rules require certain procedural steps be taken before a move that the agency has not followed. Or perhaps Keisha engaged in protected activity recently and the move is in retaliation for that.
As for the remedy, we would request that Keisha be moved back to her private office, that management bargain over any continued demand that she move to a cubicle, that any performance errors Keisha was charged due to the move to cramped quarters be removed and her appraisal adjusted, that she be reconsidered for any performance awards distributed in the interim, that management post a notice similar to what the FLRA normally orders posted for 60 days admitting to a violation of law, and any other appropriate remedy.
(If you are asking yourself why we would not file the ULP with FLRA to avoid the cost of an arbitration hearing, our reasoning is simple. If you file this charge with FLRA, it has the right to decide not to take the case. It can reject your charge and thereby end any claim you have. The FLRA General Counsel can do this even if technically the law was violated because the GC has the right to decide that the violation is not significant enough to process or she does not have the staff to do everything. She also has the power to settle the case with management for a weak remedy, such as a promise to admit an error in return for not having to give Keisha her office back. Our preference at FEDSMILL.com is to control whether a case goes to hearing, what we settle for, and how fast it is pushed through the system. We can only do that by processing our charges through the grievance-arbitration procedures.)
If this multi-charge grievance does not get serious attention and a change of heart from management immediately (or at least before Keisha has to start boxing up her stuff), then we would step up the pressure. Among our options are the following:
1. File an EEO charge alleging that the decision to move Keisha amounted to illegal discrimination. We would throw the kitchen sink at management alleging it was based on gender, race, national origin, and age if she is 40 or over. After all, until you get more facts about who is getting her old office and why, you do not know that it was NOT discrimination. At a minimum, filing an EEO charge will get someone else in addition to LR demanding that the managers who decided to make Keisha move explain themselves; it is also likely to produce valuable data. If you push the charge to a complaint, those managers would have to give testimony under oath. But file the EEO charge after filing the grievance because management may argue that the grievance and EEO charge are about the same thing and the union must choose one. In that case, we would choose the grievance process and amend the grievance to include the discrimination charges.
2. Use the union’s right to initiate bargaining mid-term by proposing an entirely different layout for the office and/or an open window period for employees selecting their work space by seniority. Unless the matter is already covered-by the contract, you have the right to do so and push the dispute all the way to the FSIP for a decision.
3. Share the news with other employees via your local’s normal communication channels, e.g., a newsletter, e-mail updates, etc. Of course, there are two ways to design this story. One approach would be to report it as a general news item for the membership. We doubt that management will care about that. Another way would be to report it in a way that other employees feel offended by what happened to Keisha and personally threatened by the chance that it could happen to them. Management will care about that.
4. Casually advise LR that when it comes time to reopen negotiations over the term contract you will use management’s actions in this case to demand a language improvement, e.g., that there will be numerous exceptions to the ten-day target, that no change can be implemented until the union waives its right to bargain—as opposed to having to ask to bargain, that the ten day reference will be replace by the more flexible “will demand bargaining timely” standard.
5. We would move negotiations over the Wittington move at a much slower pace than we might otherwise. For example, we would demand information in the Wittington bargaining that might complicate and delay progress.
(If any managers are peaking at this posting, do not be upset. Under the facts, the management representatives had the power to waive the ten-day time limit and did not. It also could have made a counter-offer asking the union for some concession in return for ignoring the ten-days. Or it could have realized that the two-day delay was too petty to start a fight over. It did not and consequently must accept the risks that go with that position.)
If you believe there is a better answer, use the blog box below to share your thoughts. We welcome them.