UNION REP TEST #17 (Drafting Midterm Change Proposals)

One of the very best things a union can do for employees is to stop implementation of an agency proposed change in working conditions until the union has fully explored the proposed change through information requests and midterm bargaining. At the center of that process is not only the union’s right to submit bargaining proposals, but also its skill at drafting them. Described below is a hypothetical proposed agency change followed by a series of True-False questions.  Test yourself on the questions.  The answers are at the end of the questions.

Imagine that you represent a division of 100 employees who all do essentially the same work and the agency proposes to implement a new reporting system for one group of them which includes about 20 unit employees.  This system will take twice as long to complete each day as the system others use, yield much more detailed data about employee performance (quality and quantity), and for the first time identify the cause of any deficiency.  The union has asked you to draft bargaining proposals responsive to this looming change, which means you need to refresh your knowledge of the case law about proposals by going through the questions below.

QUESTIONS (True or False)

1. You can propose that the agency drop this idea totally until the term contract reopens in two years.
2. You can propose to add some performance appraisal protections for all 100 employees in the division.
3. You can propose that the union will get copies of the group’s quantity and quality measures for the 180 days before the new system is put in place and for every 180 days period after it is put in place.
4. You can propose that the union has a right to reopen any midterm agreement on this change after 180 days of its implementation.
5. You can propose that before the parties substantively discuss the proposed change and union demands that they resolve all outstanding grievances involving any of the 20 employees.
6. You can propose that the 20 impacted employees be given preference in the assignment of agency parking spaces.
7. You can propose that the agency provide employees with three hours of time during the first 90 days of the new system to meet with agency stress counselors.
8. You can propose that should any provision of the midterm agreement be found to be unenforceable, all data from the new reporting system will be retroactively unusable by the agency for appraisal purposes.
9. You can propose that the agency will “reasonably take into account the reduction in productive work time the new reporting requirements demand when evaluating these 20 employees.”
10. You can propose that the agreement and the change will not go into effect until 60 days after agency head review, during which time the system will be live so that employees can practice using it but the agency will not retain or use any data from that time period.

ANSWERS

1. FALSE It is a management right to design its performance appraisal system and proposing it delay implementation for this long of a period would be considered a violation of that right. So, while the union can propose this, it should expect the agency to declare it non-negotiable. If this is the only union proposal, the agency would have the right to immediately implement its system because technically the union would not have presented a proposal that obligated the agency to negotiate. While the union could keep the proposal on the table—if it is one of many– throughout bargaining to see if it can get any voluntary concession from the agency about delaying implementation, it MUST take it off the table before the dispute goes to FSIP.  If it does not, the agency can claim the union forced it to impasse demanding to bargain an issue it is not obligated to bargain.  Most often that gives the agency the right to unilaterally implement its last best offer and the change.
2. FALSE Although this does not interfere with the agency’s right to implement the change, appropriate arrangement proposals must be limited to those who are impacted by the change. By addressing the other 80 employees in the division, this becomes non-negotiable. The requirement is that proposals be “narrowly tailored” to just those adversely affected.
3. TRUE  Even though the statute says the union must establish “particularized need” when it demands information from an agency, FLRA has ruled that standard does not apply when the union bargains for information.
4. TRUE  Reopener proposals, even short-term ones like this are almost always negotiable.
5. FALSE  The primary problem here is the proposal has established a pre-condition which the union demands be met before it will bargain. The agency has the right for the union to begin bargaining over a proposed midterm change in a reasonable period of time after it notifies the union of the change. Refusing to bargain until certain hurdles are cleared is illegal. The union could probably bring relevant grievances up during bargaining and suggest a deal which resolves a grievance along with an agreement section, so long as it drops any written or formal references to settling grievance before it gets to FSIP.
6. FALSE  The law requires the union’s proposals in response to an agency-initiated mid-term change stay with the scope of the change the agency proposed. Parking space preference has nothing to do with performance reporting systems. Again, the union could probably leave it on the table as one of many proposals during the phases of bargaining before FSIP to see if the agency will bite. However, it would be bargaining suicide to still have it on the table once FSIP is petitioned.
7. FALSE  Or at least we doubt this is a legal proposal. The right to bargain “appropriate arrangement” requires that the union proposal address some adverse impact that is “reasonably foreseeable.” You can expect the agency to argue that stress attacks are not and therefore it is not obligated to bargain over them. Check out this post for some of our favorite appropriate arrangement proposals.
8. TRUE  Agencies have the right to refuse to enforce contract provisions that violate law, even if the legality of a provision only becomes clear through a FLRA decision issued a year after your agreement is in effect. Consequently, union have the right to negotiate an appropriate arrangement to protect employees from that.  Because that situation would mean that the parties never had a complete agreement it seems to us that the reasonable negotiated remedy is that the entire situation should be returned to the status quo ante before the agreement was implemented. After all, that is the penalty if the agency implements a change without
9. MAYBE  FLRA has issued decisions for an against demanding that an agency exercise a management right fairly, equitably or reasonably . But an interesting strategy emerges if the agency does declare this non-negotiable. Law permits the union to take the proposal off the table and send it to FLRA for a negotiability ruling, which typically takes a year or more. Law also permits the union to substitute a proposal addressing procedures and appropriate arrangements that would be implemented in its place until the proposal is ruled negotiable and the parties reach agreement on it.  The union could then submit a quite complex 7106(b)(2-3) proposal that would be far more onerous than merely assuming the reasonableness burden, which might make the agency think twice about declaring the initial proposal non-negotiable.The second strategy that comes into play is that if the union has a proposal awaiting a negotiability ruling, it can ask the Panel to delay taking jurisdiction on the grounds that the agency is attempting to bargain only part of the dispute. PIECEMEAL. If the Panel refuses to do so, the union can challenge the implementation of any Panel decision on those grounds as well as on the grounds that the agency head can only approve entire agreements, not partial ones.  If the agency implements the change nonetheless there is a good likelihood that a ULP grievance will result in it being ordered to reevaluate employees as if the data were not available and grant any retroactive benefits as appropriate, e.g., awards, priority considerations, etc.
10. TRUE  Unions are allowed to negotiate the implementation date of an agreement rather than go along with the common practice of implementing on the day after it is approved by the agency head. Typically, a delay is needed to brief employees on the change and the terms of the negotiated agreement.