CAN FSIP DENY A UNION THE RIGHT TO BARGAIN OVER UNSPECIFIED FUTURE CHANGES?

Not long ago Trump’s Panel ruled that an agency was free to determine the amount of the annual wage increase in each year of the new, multi-year agreement without bargaining with the union. The agency did not have to give the union advance, specific notice of the amount nor bargain over the impact and implementation. Moreover, having given the agency limitless discretion, the union had virtually no way to grieve the figure the agency picked. According to the Panel, the union was to sit there throughout the life of the agreement and take whatever increase the agency deigned to bestow on the employees—or no unit employee increase at all if that is what the agency wanted to do. But, can the Panel do that?

Way back in the 1998 an agency proposed it be allowed to negotiate term agreements with each of the locals that made up the bargaining unit rather than with the single official exclusive representative.  When the agency asked the Panel to impose that, the union filed a ULP charging that it cannot be forced to let the Panel decide whether it would retain what is a statutory right, i.e., to negotiate one agreement covering the entire unit.  The Authority agreed holding that neither party had to bargain over “unilateral rights specifically vested in one party.”  FLRA went on to say that a right is specifically vested in one party when one of two conditions are met.

These unilateral rights may be specifically spelled out in the Statute, as they are in section 7106(b)(1), where permissive bargaining over particular subjects is linked to management’s right to act unilaterally over these subjects. Id. Unilateral rights may also be rooted in more general statutory and policy consideration, as in the rule in both the private and federal sectors that the tape recording of bargaining is a permissive subject and parties have a unilateral right to refuse to tape record bargaining sessions.

The Authority found the right to negotiate one agreement covering an entire unit was a unilateral right of the union based on the following reasoning:

We hold that the Respondent’s proposal to negotiate separate agreements within one bargaining unit is a permissive subject of bargaining, because the Statute provides exclusive representatives a right to negotiate with “an agency.” In short, the case law and the Statute indicate that there are certain features of collective bargaining that any party may rely on. One such feature is that the basic bargaining relationship is between one union and one employer. This principle is grounded in the Statute, in which “collective bargaining” occurs between “an agency” and “the exclusive representative.” 5 U.S.C. 7103(a)(12), 7114(a)(1), (b). FDA, 53 FLRA 1269 (1998)

In other words, the Authority found the right to bargain only one agency-wide agreement was based on only two words in the statute, i.e., “an agency” and related case law.

Based on that it would seem the Panel did not have the right to give the agency the right to set wages each of a multi-year agreement without any bargaining. For example,

• Section 7103(a)(14) gives the union a right to “an agreement.” But the Panel gave the agency the right to make changes for years without any agreement.
• Section 7114(a)(1) gives a union the right to act for employees in the unit.  But the Panel’s decision prevents the union from acting over agency compensation decisions.
• Section 7114(b) requires an agency to bargaining in “good faith.” But the Panel’s decision requires the union to live with future changes in conditions of employment without specific notice in advance of the change details, any right to bargain, any right to demand information from the agency substantiating the agency’s decisions, or the right to ask the Panel to decide when the union objects to the agency’s decision.
• Section 7101 says collective bargaining is good for the country but the Panel said it is not.

The Panel rejected the union’s opposition in this recent case to it taking jurisdiction over the agency compensation proposal saying that rather than take away its right to bargain over future wage increases it was giving it the right to bargain over them now. Of course, the Panel ignored the fact that the agency was not providing the union specific, advance notice of what the specific future wage increases would be so that it could bargain intelligently, assemble evidence in opposition, have a sincere discussion over the specific proposal, nor was it giving the union any chance to argue before a Panel that the agency’s future decision was wrong.  Stated differently, the Panel said the union had the right to bargain over the agency proposal now, but without any of the foundational elements of negotiations. How is that different than  suspending or taking away the unions right to bargain at all?

Back in the mid-80’s another federal agency asked the Panel to give it the right to implement its proposed midterm changes after seven weeks of bargaining, irrespective of whether the parties had reached impasse yet. That was found to be an illegal demand because the union had no obligation to bargain away its right to delay change until impasse assistance concluded. In this most recent case the Panel did not even give the union seven weeks advance notice.

Another interesting parallel exists with a D.C. Circuit decision where the court refused to enforce a Panel-ordered interest arbitrator’s award because the union changed its proposals after concluding FMCS assistance. The Judge pointed out that the parties never bargained over the proposals and indeed the Agency had refused to bargain over them calling them non-negotiable. Under those circumstances, the judge found there could be no impasse on the issue and therefore the Panel had no jurisdiction over them. Here is what the judges wrote.

It is indisputable that the parties never bargained over several of the new proposals included in the revised package that the Union submitted to the interest arbitrator. Of these, proposals 20, 23, 24, 26, and 42 became part of Article 19. The Agency had refused to negotiate over these proposals with the Union, asserting duty-to-bargain and negotiability objections. In fact, the Union had filed an unfair labor practice charge against the Agency (which the Authority dismissed as untimely) precisely because PTO had refused to bargain. Clearly, when the interest arbitrator turned his attention to these particular proposals, the parties had never negotiated over them, let alone reached an impasse, and thus the arbitrator had no authority to award these proposals as part of the contract. POPA v. FLRA, 26 F.3d 1148 (1994)

If the union in this recent case can show it refused to bargain over the agency proposal it would seem this court’s precedent prevented the FSIP from taking jurisdiction over the issue.

Unions have a number of options in these situations.

• If they retained the right to ratify the provisions not decided by FSIP they can hold a vote among the members and vote down the agreement.  They do not have to say why. That would not just force the agency back to the table, but require it to continue the working conditions of the former agreement until the new one is finalized.
• They can file a ULP claiming the agency insisted to impasse on a proposal that at best was permissively negotiable. A related allegation would be that the proposal was unduly harsh and unreasonable, designed to avoid bargaining. Check out Pease Co. v NLRB, 666 F.2d 1044 (1981) (quoting NLRB v. United Clay Mines Corp., 219 F.2d 120, 125 (6th Cir.1955)).   “Unusually harsh and unreasonable proposals may support a finding of bad faith bargaining.”  NLRB v. Wright Motors, Inc., 603 F.2d 604 (7th Cir. 1979)
• They can and should refuse to sign the agreement.  If an agency head’s decision to disapprove even a single clause of a new term agreement bars implementation of any portion of that agreement, then the same should apply when unions successfully claim a clause is illegally imposed.  Of course, the union should file its own ULP before it does so.  Otherwise, the agency might file one of the refusal to sign and put the entire dispute before the FLRA General Counsel who appears to have only contempt for unions.

The agency may implement the Panel decisions anyway, but if the unions prevail in the ULP in all likelihood the agency will have to undo any damage done by the Panel-imposed orders and distribute lots of back pay and attorney fees.