presented by dave rodriguez and mj burke oct 25-27, 2011
TRANSCRIPT
Presented by Dave Rodriguez and MJ Burke
Oct 25-27, 2011
Recurring Topics and ThemesOverview of the collective bargaining cycle
The steps in the process, and actions under each stepWho does what – union, management, third partiesThe Labor Law (Statute) – what it requires, what each
Party is free to doReferences, resources, further developments
The Process of Bargaining a Local Supplement (LSA)Preparing and planning for bargainingAnalytical Frameworks: Learning How the FLRA
ThinksDoing the bargainingDealing with common bargaining issues; and with
tactics of the other side
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AFGE Districts (National Vice President for the District of which your Local is a part)
Other AFGE Locals that represent VA employees, such as Locals in your VISN.
Non-VA Locals and Councils that have gone through the experience of negotiating a term agreement or litigated a similar issue.
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Federal Mediation and Conciliation Service http://www.fmcs.gov 202 606-8100
Federal Labor Relations Authority (FLRA) AND its included but separate Federal Service Impasses Panel (FSIP)http://www.flra.gov 202-218-7770[This website contains: FLRA and FSIP decisions, laws they administer, regulations (governing the actions they perform and require Unions and Agencies to follow), and other useful information.]
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FLRA FSIPDecides what’s legal
to do (Unfair Labor Practices) and to bargain (Negotiability Review aka legality of language in a collective bargaining agreement)
Decides which language goes into a CBA, when the Parties can’t agree after negotiating and mediation assistance.
Must defer (punt on) issues presented to it which raise ULP allegations; or, Negotiability issues of first impression.
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FSIP and NegotiabilityBecause only the FLRA can decide what is
legal to negotiate, the FSIP cannot order language be put in a CBA if management claims it’s not negotiable and the FLRA has no precedent.
But the FSIP can apply prior decisions of the FLRA. So, if management says a Union proposal is not negotiable, but the FLRA has previously decided an equivalent proposal was negotiable, then the FSIP can order the Parties to put the Union’s proposal into their LSA (or other CBA).
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ULPs: Another Deferral SituationThe FSIP also lacks legal authority to decide if either Party committed an unfair labor practice during bargaining , and will very likely dismiss without prejudice an impasse case brought to it that involves an alleged ULP, Translation: if the Union claims DVA committed a ULP even if it doesn’t actually file a ULP charge, the FSIP will likely punt (decline jurisdiction) on the case.
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The Union will have to refile with the FSIP months or years later (after the problem the Union was trying to address may be stagnant).
So, it’s often better for the Union to not raise before the FSIP that the DVA committed a ULP during bargaining. Give the FSIP every opportunity to reach the disputed proposals on their merits.
Note: The ULP has to be filed within 180 days of when it became known to the Union.
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Example for DiscussionIn LSA negotiations, the Parties disagreed on which positions in the facility will be eligible for Telework. DVA also refused to give the Local information the Local requested and is entitled to by law, such as how much the facility pays for office space per square foot (rent, utilities, etc.). Eventually, an impasse was filed with the FSIP over the Telework issue and others. The Union also wants to file a ULP over the illegal DVA action. What is the ULP issue? What is the impasse (FSIP) issue? How, when, where should the information issue be handled? Without the requested information, what can the Union do to support its Telework proposal? 11
True or False or ???True or False or ???
“The bargaining process The bargaining process determines the outcome, but is determines the outcome, but is superseded by the outcome.”superseded by the outcome.”
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Translation:
It’s tempting to ‘keep track” of It’s tempting to ‘keep track” of who won the negotiations by what who won the negotiations by what happened on the way to the LSA.happened on the way to the LSA.
ButBut
What you end up with in the LSA What you end up with in the LSA is what counts.is what counts.
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Analytical FrameworksFor every term or concept in the labor law, the FLRA has established an Analytical Framework. The law is chapter 71 of Title 5.Analytical Frameworks tell Union reps what every part of the law means, in practice. A single term, like “waiver”, “good faith bargaining”, or “management right to assign work” has an Analytical Framework that can have hundreds of precedent cases in which the meaning of the term has been defined and refined. Use Analytical Frameworks to inform you at the table and in proceedings before the FSIP and the FLRA.
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So &%$# What?So, there are templates already in place – Analytical Frameworks – that tell negotiators what they have to argue or explain, point by point, in order to prevail in a dispute with DVA, during negotiations, in impasses before the FSIP, and in a ULP or negotiability case related to the LSA negotiations.
The FLRA isn’t looking for creativity when you present an argument before it; it’s looking for you to follow the points it has already laid out in the Analytical Framework for the issue being disputed.
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Examples of Analytical FrameworksThere are Analytical Frameworks for:The definition of each management right (assign work, direct employees, determine its budget, determine internal security, etc.)Particularized need as a requirement for information requests the Union makes to DVA in order to bargain the LSA.Good faith bargaining.Compelling need as a basis for a Union proposal to be illegal for conflicts with a DVA regulation. (The Analytical Framework for compelling need is VERY hard for any agency to meet.)Etc. etc. etc.
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DiscussionIn your LSA negotiations, DVA claims a Union proposal is non-negotiable because it interferes with DVA’s rights to determine technology of performing work and to determine its budget. The proposal requires DVA to provide a telephone in each work unit for employees’ personal use to contact family members in emergencies.
What does the Union do about the DVA claim of non-negotiability?
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Where do I find Analytical Frameworks?In FLRA cases, especially negotiability and
ULP cases and exceptions to arbitrators’ awards. [www.flra.gov, decisions, search by keyword]
In FLRA cases in commercial databases like CyberFeds [www.feds.com]
In AFGE resources such as Bargaining for the Future.
In court decisions that review FLRA cases.From others in AFGE (FSED, your AFGE
District Office the NVAC, other Locals).18
“How can Management say this language is illegal? It’s been in our contract/MOU for umpteen years!”
__ T __ F
__ T __ F
__ T __ F
DVA has to be consistent about claiming language is legal or illegal.
The FLRA’s cases are precedents, so when something is negotiable, that’s that.
The labor law hasn’t changed, so the legality of proposals doesn’t change.
The legality of language doesn’t change.
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Stages of Bargaining
Early Bargaining = the Parties negotiate “bilaterally” (alone). During this stage, there are:
Discussion, compromise, information exchanged, proposals and counter-proposals exchanged.
Sign-off/initial off of agreed upon items.
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Mediation = the parties jointly OR either party unilaterally request(s) the Federal Mediator to join the negotiations to help them move toward agreement. Mediation can be ongoing or short-term. The reason Mediation is needed can be inability to find language both sides can agree on.The reason also can be a behavior, like disputes over what the Ground Rules require, or the Agency’s failure to provide requested information or to send empowered bargainers to the table. Once involved, the Mediator controls the process, but cannot force either Party to change its proposals.Parties are required to use Mediation before a request for Impasse Assistance is filed (with one major exception).
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Discussion“The Mediator’s job is to get the parties to agree, not to get them to agree on a solution/language that’s good for either side.”Assuming this statement is true,What should you expect the Mediator to say and do in dealing with the parties, especially when he works with each side in caucus – without the other side there?What should each Union negotiating team member do or not do when it is in the presence of the Mediator?
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Impasse = if issues remain unresolved after the Mediator has provided all useful assistance, either party or both parties together can ask the Federal Service Impasses Panel (FSIP) to assert its jurisdiction to bring negotiations to a conclusion.
The FSIP has very broad authority to resolve the impasse using any technique(s) it wants.
Unlike the Mediator, the FSIP can order the Parties to include in their LSA any language it feels is the best way to resolve the issues that were submitted to it.
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Ratification = the Union can submit the entire contract to its internal ratification process.Ratification is not a subject for bargaining (DVA can’t debate whether or how a Local ratifies the LSA).If the LSA is ratified, the parties execute (sign) the LSA and it moves to the next stage.If the LSA is not ratified, the Union can renegotiate language that was agreed to voluntarily. If the LSA is not ratified, the Union and DVA are still required to accept language that was imposed by the FSIP.So, ratification should include a way for the Union to determine which language caused the LSA to not be ratified, in order to determine whether language is subjec to renegotiation.
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Agency Head Review = if an agreement is the controlling (master) agreement or a supplement to it, the Agency Head has the right to review it to determine if any language in it is illegal (non-negotiable).The Agency Head cannot reject language for any reason except illegality.If the AHR results in language being disapproved, the Union has to file and win a negotiability appeal to keep the language in the LSA.The language can be modified by the Parties to “work around” the disapproval, but the Union must protect its language by filing the negotiability appeal even if it appears an informal resolution of the disapproval may happen.
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Implementation = after Agency Head Review and resolution of any negotiability disputes, the contract goes into effect (implementation).
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Pay Attention to Time Limits
If the Agency Head fails to review the LSA within 30 days after it was signed, the contract is in effect as signed.
If the Union fails to file a negotiability appeal within 15 days after receiving ANY written notice that the LSA was disapproved, it loses the right to challenge the Agency Head’s disapproval; the disputed language is out of the LSA even if, in fact, it was negotiable (legal).
A timely Agency Head disapproval is valid even if it fails to identify which language was disapproved and even if it is not addressed to the Union. WHEN IN DOUBT, FILE A NEGOTIABILITY APPEAL ON TIME; IF YOU WEREN’T TOLD WHICH LANGUAGE WAS DISAPPROVED, SAY THAT IN THE APPEAL - BUT GET IT FILED ON TIME.
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In other words,During negotiations, the Union controls whether and when to file a negotiability appeal. Unless it requests, in writing, DVA’s written allegations of non-negotiability, no time limit applies and perhaps a negotiability appeal will not become necessary at all.
BUTAfter negotiations, DVA controls the negotiability appeal process through its ability to disapprove language from the LSA. If that happens, the Union MUST file a timely negotiability appeal or it will lose the disputed language without a fight.
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What you can do if DVA says a Union Proposal Is Non-Negotiable?
Ask DVA for case citations that support their claim; then check the cases yourself. Read the entire case.
Do your own research for the most recent cases on the issue. Read the entire case.
Change your proposal if you agree it could be non-negotiable.
Use the “appropriate arrangements” approach.If you disagree with the claim, leave the language
on the table; it’s a ULP for DVA to allege language is illegal if the FLRA has said language presenting the same negotiability issue is legal.
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What can make a Union proposal illegal aka “non-negotiable”?In general, it’s illegal if it conflicts with a
federal law (including management rights), or an existing government-wide regulation, or a DVA regulation for which a compelling need exists.
If a proposal addresses the same subject but does not conflict with such law/regulation, it is legal. The Union has the right to bargain how discretion in a law/regulation is going to be exercised.
DVA saying it’s illegal doesn’t make it illegal.30
Appropriate ArrangementsUnder 5 U.S.C. 7106(b)(3), a Union proposal can
be negotiable even if it conflicts with an Agency’s exercise of its Statutory management rights.
The test follows the Analytical Framework for appropriate arrangements, which balances the extent of interference with the benefit to employees who are adversely affected by the management right.
If the extent of interference is excessive, then the language is not legal.
You can win and require DVA to bargain on a proposal using the “appropriate arrangements” law.
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Bottom line: NegotiabilityDon’t accept a DVA claim of non-negotiability on its
face – many times Agencies use the words without any caselaw to support their claim. Read and apply FLRA precedent.
Be open to language that “works around” any legitimate claims of non-negotiability. Ask DVA to propose such language, or modify your own proposal.
If DVA refuses to do that, publicize to the workforce that management is refusing to talk about/not interested in their concerns.
Challenge DVA by filing a negotiability appeal if language on the table is negotiable. If the language does conflict with a management right, use “appropriate arrangements”.
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DiscussionIf, during negotiations, DVA claims a
Union proposal(s) is illegal, what can you do about that claim? (Numerous options)
If, on Agency Head Review, DVA disapproves language from the LSA, what can you do about that claim? (One requirement, one option)
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What Are Ground Rules? Why Are They Used?
Ground Rules are a (negotiated) collective bargaining agreement (CBA) that contain how another agreement – LSA, MOU, or Master Agreement – will be negotiated.
Ground Rules serve the same function as any other union-management agreement, specifying each party’s rights and responsibilities during the subsequent negotiations. They are subject to differing interpretations by the parties, and to the same enforcement procedures as any other CBA.
Ground RulesThis constitutes the Ground Rules between
____ (the Agency) and ____ (the Union) concerning [a subject] or [the parties contract].
Effective date (upon signing)Bargaining schedule (Start Aug 3, negotiate
from 8-5, M-F until the agreement is concluded) with reasonable/2 15-minute breaks and 1-hour lunch
Caucus called at any time by either partyChief spokesperson – 1 for each partySize of Teams (only in duty status; no limit on
number of members not in duty status.)
Ground RulesOfficial Time and expenses for all phases,
including 3rd party proceedings and __ prep.Suitable meeting room and caucus room
will be provided by the Agency, along with usual office facilities (PCs, printers, fax machine, phones, regs, cases)
No official notes, either party can keep its own notes
No recordings
Ground Rules – Other Topics• mediator contacts will be joint or either party may contact the mediator – by law, the Union has – and
should not waive - its right to get mediation unilaterally.
* how to handle negotiability disputes – (RISKY)• publicity/contact with employees and others – it’s a union right, don’t limit it or waive it.ratification – if discussed with management, the discussion is ONLY for informational purposes. It’s not a subject to be bargained over. But, be sure you notify management prior to bargaining that the Union will use a ratification process prior to signing the agreement, if that will be the case.* Others?
Other Points About Ground RulesArticle 46, Local Supplements, contains a
Section that lays out Ground Rules for LSA negotiations. Do you have to use them for your LSA? Can additional Ground Rules be negotiated for each Local/Installation? Why/Why Not?
When Ground Rules are being properly negotiated, what happens if the Parties can’t /don’t reach an agreement on them?
What do you do if DVA insists on language for GRs over which the Union is not required to bargain? Examples: ratification, negotiability procedures.
Ground Rules ExerciseIn small groups, write 3 ground rules that your Local will submit to Management at your installation(s). Be specific, clear, and brief about what you want. Include any issue(s) you’ve experienced when negotiating prior ground rules, or expect to experience in the upcoming LSA negotiations.
Please report back to the full group in ___ minutes.
Have You Negotiated Without Ground Rules?
Not having Ground Rules is like not having a contract – you’re at the mercy of the good intentions/good graces of DVA managers.
Ground Rules are regarded by the FLRA as a mandatory subject of bargaining; if either party proposes them, they’re on the table.
Have YOU ever negotiated without Ground Rules? How about negotiating grievance or ULP settlements?
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Prepared by FSED 41
The Big Picture
• Mediation, Impasse, and Ratification are common but not essential.
• Ratification and Review can cause recycling back to Negotiation.
• Ratification can’t trump Impasse decisions.
Bargaining Cycle
Prepared by FSED 43
The Union’s roles are--The Union’s roles are-- To represent employees in the
bargaining unit as a whole. To represent its own institutional needs. To represent collective bargaining as
being “in the public interest.” To account to employees through
elections and ratification votes. To look at what problems employees
want fixed, and the best ways to fix them--which may not be [solely] through bargaining.
Prepared by FSED 44
Management often sees its roles as being--To maintain institutional authority.To accept changes and added benefits
and protections, when it is persuaded they are needed (or ordered by a third party).
To protect their “turf” within the Agency. To fix problems caused for one or more
managers by previous collective bargaining agreements, laws, regulations, policies, budget constraints, and the decisions of third parties (arbitrators, FLRA, other Federal agencies, and courts).
Prepared by FSED 45
Federal Labor Relations Authority (FLRA)Federal Labor Relations Authority (FLRA)Defines “appropriate units” and creates
or modifies “bargaining units” and counts ballots to see which union, if any, represents the unit.
Investigates and prosecutes charges of Unfair Labor Practices (ULPs) against agencies, individuals, and unions.
Decides if arbitration awards are legal.Determines whether/which language is Determines whether/which language is
legal, i.e., can be negotiated and put into legal, i.e., can be negotiated and put into an agreement (“negotiability appeal”).an agreement (“negotiability appeal”).
Prepared by FSED 46
Federal Mediation and Conciliation ServiceFederal Mediation and Conciliation Service (FMCS)(FMCS)Promotes voluntary programs to improve
union-management relations (outside of bargaining).
Helps the process of bargaining go smoother.
Not concerned with the outcome - if the parties agree, that’s what matters to the mediator.
Verifies, when asked by the Federal Service Impasses Panel (FSIP), that further bargaining would or would not be useful (“declares the parties to be impassed”).
Techniques mediator use--Suggesting alternative approaches to
issues when the Parties’ proposals are not compatible with each other.
Suggesting “package deals” in which each party gets something and gives up something else, thus resolving multiple issues or even Articles in one step.
Probing each side separately to determine which issues a Party is NOT committed to, or on which a Party is NOT united.
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The Mediator also . . .Assists in solving process problems, such as
Disputes over the Ground Rules;Information needed by the Union in
order to bargain;Anything else that gets in the way of
progress – not just when the proposals are stalled.
Don’t forget to notify FMCS in advance that you’re
going to be going into negotiations.Prepared by FSED 48