IS ROCKET BARGAINING LEGAL?
One of the two parties involved in negotiating a term agreement is usually far more eager to get the deal done ASAP than the other one. When the FSIP is loaded with anti-union political operatives, rather than actual labor relations professionals, as it is today, the eager party is management. And the fastest way to get a final deal is to propose in ground rules bargaining that once the negotiation begins it continue nonstop until FMCS mediation has concluded. That is then followed by a momentary pause before FSIP takes over and rubber stamps whatever the agency is demanding. If the union will not agree to that voluntarily, the agency asks the Panel to impose it. It is a great scheme for management, but is it legal? There is good reason to believe it is not legal for the agency to insist to impasse on a schedule that rockets the union through the bargaining process to which it is entitled by statute. For example, …
the statute states at 5 USC 7114 that, “The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation…to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays.” There is very little case law fleshing out what this good faith criterion means and most of what does exists deals with one party dragging its feet to delay any agreement. However, if the Congressional drafters had only wanted to prohibit endlessly dragging out negotiations over months and years they only needed the last four words of that quoted provision. The reference to reasonable times would have been redundant and unnecessarily misleading.
Moreover, there are obvious situations where a proposed schedule can be unreasonably short or otherwise unreasonable. For example, if the agency puts a 100-page contract proposal on the bargaining table and demands that the parties only schedule two days of bargaining before entering impasse that reeks of unreasonableness. Or what about an agency proposing that bargaining occur every workday between 6 p.m. and 6 a.m. while demanding that the union team members also report to their normal jobs between 8 a.m. and 5 p.m.? The employees would only have two hours to sleep.
Unions have numerous legitimate needs to schedule breaks during a bargaining schedule. After going through a package of proposed revisions unions often need time away from the face-to-face table discussions to think through a strategy for drafting information demands. Once that information is received, they generally need more alone time to analyze it, review it with counsel, to prepare counterarguments or adjusted proposals.
Nor should anyone forget that the union bargaining team is REPRESENTING others. Team members are not at the table merely to tend to their own personal needs. As representatives, they have a duty to regularly brief the people who have designated them on what the agency is proposing before the team responds to the agency. (Can you imagine a seller’s real estate agent countering a buyer’s offer without getting the seller’s approval of the offer in advance?) How would it ever be reasonable to deny the union team the opportunity to consult with the people it represents before it should be expected to make any commitments or counters?
Agencies could expedite that process by giving the union team official time to do so before Trump’s executive orders. However, it would now likely to a career-killer for an agency to offer a union even 8 hours of duty time to do that. It will matter little to the White House folks that agency team leaders are using their duty time away from the table to brief their principals. It seems reasonable to us that the union be allowed a break from the table to brief their own principals at the conclusion of the agency’s presentation on each package of its proposals and before the union is expected to submit counter-proposals. If this cannot occur during the duty day when employees are present, the union will need additional breaks in the schedule to do so via mailings, surveys, multiple small group meetings, zoom sessions, etc.
Unions also often have a legitimate need to investigate issues away from the bargaining table before they can respond. For example, assume that an agency proposes to lengthen the amount of advance notice an employee must give before using non-emergency FMLA leave. Wouldn’t the union likely need to contact members who have taken such leave in the past to get more details about the various circumstances that would require non-emergency FMLA to fully understand the impact of the change? Personally, we would also want time away from the table to research case law in the federal sector and beyond dealing with non-emergency FMLA requests. A union team member cannot accomplish any of that while jawing with the agency at a bargaining table nor should they be expected to do it on their private time irrespective of the demands of their private life.
An additional need for a significant break in the bargaining schedule would be if the union chooses not to submit its opening proposals until after the agency has submitted its and briefed the union on them. This could occur where the agency, not the union, is proposing to reopen and modify a term agreement. Nothing in the law obligates a union to propose changes before it sees what changes the party initiating the bargaining is proposing. Nor does it seem to foster good faith, efficient or effective bargaining to force a party happy with the status quo to make proposals before it has seen what the initiating party wants to change. Personally, if pushed into that situation we would make ludicrously excessive demands to not only complicate bargaining but also preserve maximum flexibility.
So, agencies should not be surprised if unions charge them with bad faith bargaining ULPs for insisting to impasse on an unreasonably short or condensed bargaining schedule. This is particularly legitimate where the union has explained in some detail why it might need breaks throughout the bargaining and can point to agency proposals in other negotiations where the agency wanted numerous breaks in the schedule. Nor should agencies be shocked if the union refuses to sign or comply with an equally unreasonable Panel-imposed bargaining schedule. Panel decisions must be consistent with the reasonable times requirements of the statute and imposing a bad faith bargaining process violates law. (5 USC 7119)
As for unions, challenging agency ground rule proposals or a Panel decision as not providing a reasonable amount of time to negotiate will not be an easy case to win. But there is no reason to ignore the option during these anti-union days when neither wants to give the union any room to breathe.