UNION’S OPTIONS WHEN AN AGREEMENT PROVISION IS DECLARED UNENFORCEABLE
FLRA long ago ruled that even if an agency agreed to a particular agreement provision (or FSIP imposed it) and the agency head approved it as legal, the agency can declare it legally unenforceable at any time during the life of the agreement. That leaves a union and its members very vulnerable to the agency agreeing to something just to get a new agreement in place and then gutting the heart of that deal by voiding a clause for something as simple as a single word in the provision. Here is how a union can protect itself it that situation.
To begin, let’s focus on an example. Suppose during negotiations the parties put together a deal settling several disputes and among them was the core concession that the union would agree not to grieve letters of reprimand or one-day suspensions. In return, the agency agreeing to delay implementing any suspension of more than one day until any grievance and arbitration proceedings over that suspension had concluded. However, about 30 days into the new agreement the agency declared that the agreement to postponement implementation of suspensions violated law and was unenforceable.
First, a union can disagree with the agency, file a grievance/ULP and ultimately get an FLRA or even court decision upholding the legality of the clause. If the agency is proven wrong, the normal remedy would be to retroactively restore the provision and make the union/members whole for any damage. However, that can take years and there is no guarantee the union will win.
Second, if the agency’s claim is based on its assertion that the clause now violates 7106(a) management rights or some other law or regulation that gives the agency discretion, the union can insist that the practice established by the allegedly illegal clause remains in effect until the parties negotiate a replacement. That would be no different from when an agency wants to change a past practice considered a management right.
Third, it can propose during term negotiations provisions which protect it from being victimized by an agency without any recourse. For example,
- Should the agency declare a provision of the implemented agreement unenforceable during the life of the agreement, it will maintain the practice established by that clause to the fullest extent of its discretion under law or government-wide regulation. The practice shall continue until notice of the replacement practice has been served and negotiations completed. (Frankly, this merely restates a statutory right.)
- Should the agency have no discretion under law or government-wide regulation to continue the practice established by the allegedly unenforceable clause, no new practice shall be installed to replace the unenforceable one until notice of the replacement practice has been served and negotiations continued. (This also merely restates a statutory right. An agency would need to prove a business necessity to implement a new practice immediately.) The agency will use whatever discretion available to it to minimize to the maximum extent possible any adverse impact on the union or employees, e.g., any loss of right or benefit, until a new term agreement has been negotiated.
- In addition to enforcing the entitlements of subsections 1 and 2 above, the union may challenge via litigation the correctness of the agency’s opinion that the agreement clause is unenforceable without diminishing the entitlements of subsections 1 and 2. Should the union prevail, any subsequently reached agreement shall be void and the agency shall retroactively reinstate the originally agreed provision as well as make the union/employee whole for any losses.
- Upon receiving notice that a clause is unenforceable, the union shall have the option in lieu of 1 or 2 above of —
- voiding any portion of the agreement that was part of a package of proposals leading to adoption of the allegedly unenforceable provision and reinstating any previous related provision or practice, or
- voiding the entire term agreement with an immediate return to the provisions of the prior term agreement until a new term agreement is implemented.
We could suggest even more procedural protections to propose as part of negotiations, but you get the idea.
We will not be surprised if agencies declare non-negotiable proposals like we just outlined. Given that we cannot find any case where FLRA has ruled on a similar proposal, the Panel would have to delay taking jurisdiction over the entire impasse until FLRA or the courts have ruled unless both parties agree to engage in piecemeal bargaining.