Fred, Fern, The FLRA—And Specific Notice of Change
By Frank D. Ferris - Monday, February 8, 2010
Frank Ferris has over 35 years experience in federal sector labor relations as a union leader, manager, and university faculty member. He holds a doctorate from the University of Southern California and has published extensively in the field. The opinions of the author expressed herein are not necessarily those of his employer(s), e.g., the National Treasury Employees Union, where he serves as the elected National Executive Vice President. The ideas in this article are taken from the author’s new book that critiques FLRA case law and provides advice on how to bargain more effectively using case law.
Late last week the Federal Labor Relations Authority (FLRA) decided that one party can demand that the other party bargain ground rules for reopening the term contract before the demanding party reveals what changes it wants in the contract. That is likely to spark lots of conversations like the one below between Fred and Fern.
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A union's chief negotiator, let's call him Fred, walks into the office of the management chief negotiator, let's call her Fern, to say that it is time to open the term contract and that the union wants to open it to make changes. "Fair enough." says Fern, "What are we going to bargain about?"
FRED: "I do not have to tell you before we bargain and sign the ground rules."
FERN: "Well, can you tell me if the union wants five changes, fifty changes, or a hundred and fifty changes?" Or, maybe you can give me a hint about what kind of issues we will talk about. For example, does the union want changes in its institutional rights, employee money benefits, and/or non-economic issues? Or maybe even tell me whether this is primarily about headquarters employee issues or field issues so that I know where we might want to bargain?"
FRED: "Sorry, Fern, we have decided to keep all of that secret until after the parties sign the ground rule."
FERN: "Fred, I have no idea how many people management will want on its team unless I know what we will be bargaining about. And unless I know that, you will not know how many people your team can bring on official time. Remember how 7131(a) works?"
FRED: "The union wants seven people on official time. Trust me; you will want that many once you see our proposals."
FERN: "Thanks for the reassurance, but management will want to make its own decision about the size of its team—if that is OK with the union. Let me approach this another way. Even if seven is the right number, I need to know what kind of people to bring to the table so I can see when they are available. If I need our budget people or some Customer Service manager, it is hard to schedule them at certain times of the year. If need our Counsel folks, I have to work around their litigation calendars. But if this is just about some technical personnel issues, such as revamping the promotion and performance articles, then we just need personnel folks and we can get them pretty much anytime we want.
FRED: "There you go again, obsessing about all the practical parts of launching term negotiations. Put them out of your mind and focus on what the statute and FLRA says about bargaining."
FERN: "OK, let me give you another scenario. Assume I agree to seven team members and fly then to D.C along with the management team. And assume that management contracts with a hotel for sleeping rooms, meeting space and computer equipment for what we believe will be six months of negotiations. And, finally, assume that we have given temporary promotions to some of your unit members to replace the managers on our team who will have to devote all their time to bargaining. In other words, assume management has spent very big bucks to bargain--and that you do not reveal until day one of the bargaining that the union has only one proposal—and I believe it is non-negotiable. Why would I ever take that financial risk?"
FRED: "You are getting a little stressed. Let me change the subject. How about using the same bargaining schedule we used last time around? Isn't that reasonable?"
FERN: "How does management know what kind of a schedule it will need until I know who needs to be at the table, how many need to be there, whether I can get enough agency space for the two teams, and the impact that will cause on meeting all our other responsibilities? The statute gives you information to bargain the substance of a term contract or WHAT the working conditions will be; opening demands are merely information we both need to intelligently bargain over HOW we are going to bargain. Without them, there is no way for either party to make a demonstrated need argument."
FRED: "Nothing in the statute says I have to give you our proposals before we decide the ground rules for bargaining over those changes."
FERN: "I am not even asking for your proposals. A list of the articles you want to open and what issues are in them will do fine. For example, if you want to reopen the Promotion article, do you want to change just the career ladder criteria or the entire article beginning to end? That would at least give me something to work with. Right now, for all I know you are going to propose ten totally new articles, like creating that pre-tax parking fee payment program I have read about in the union newsletter. If you want that, I am going to need tax law people on my team and more than a little time to prepare with OPM and OMB folks. Besides, if you are initiating bargaining, the bottom line is that FLRA says you owe me specific notice of what changes you want."
FRED: "Not any more. Didn't you read that when it comes to term negotiations the
'specific notice' obligation does not apply? What are you doing with all your time if you are not following FLRA case law developments? How are you going to get that pay-for-performance bonus money redirected from your colleagues' base salaries to yours?"
FERN: "What are you rambling about? Did you read this specific notice thing in The Onion or maybe an old copy of Mad Magazine?"
FRED: "On January 28, 2010 FLRA ruled that when one party opens an existing term contract the other party is obligated to negotiate ground rules dealing with team size, bargaining schedule, location, and starting dates before it has any idea of what it will be bargaining over. Let me read you two sentences, ‘The union offers no case support for its claim that the same notice requirements that apply in management-initiated change cases apply to negotiating ground rules. Moreover, ground rules do not implicate the same requirements as bargaining over mid-term changes.'"
FERN: "Are you on drugs? How could anyone think either party can settle typical ground rules issues without having some reasonable knowledge about what will be on the table?"
FRED: "Are you suggesting that FLRA does not have enough staff experience over there to know what it actually takes to successfully launch term negotiations?"
FERN: "Don't ask and I won't tell. Are you saying that FLRA held that bargaining ground rules without any knowledge of what the parties will be bargaining over promotes efficient and effective collective bargaining?"
FRED: "No, not really. It decided not to even bother with how this decision aligns with the statutory goals. But, it did say the following, ‘Further, as the obligation to bargain over ground rules is inseparable from the obligation to bargain in good faith, a party may not insist on bargaining over ground rules that do not enable the parties to fulfill their mutual obligation.'"
FERN: "What a minute. Let me get this straight. In one sentence FLRA wrote bargaining, ‘over ground rules is inseparable from the obligation to bargain in good faith,' and in another nearby sentence it separated them by creating a special bargaining-conduct test just for ground rules, something about enabling ‘the parties to fulfill their mutual obligation?"
FRED: " Well, they did not create it. That was done in 1990. But, yup, this FLRA sure did restate it. You have a problem with the Authority saying the two kinds of bargaining are inseparable in one sentence and saying they do not implicate the same thing?" [At this point, Fern muttered something that, if the microphones picked it up correctly, cannot be printed in a amily blog. After a deep breath and what looked like a moment of silent prayer, Fern resumed.]
FERN: "Duhhhhhh! How can they take a single simple statutory obligation like good faith bargaining and say that it applies differently to two bargaining situations after saying throughout the statute's history that the good faith obligation applies equally to all types of bargaining? That concept goes back to 1984."
FRED: "Apparently, FLRA thinks specific notice is only important in management-initiated midterm bargaining where there is a potential for a unilateral change accusation and management raising prior specific notice as proof of a waiver of the union's right to bargain. Otherwise, it is not an essential part of the good faith bargaining obligation."
FERN: "There was the same potential for a unilateral change allegation and union waiver defense in term negotiations as there is in any mid-term negotiations. Where is the difference?"
FRED: "FLRA did not tell us. And don't ask me how they distinguished specific notice from waiver. I would have said they are two sides of the same thing. You can't have a waiver without specific notice having been given, and once you have specific notice there is a potential for waiver. They seem to be metaphysically inseparable, but the FLRA sees it differently."
FERN: "Wow! So, the Authority thinks that in term bargaining neither party has give the other specific proposals when it demands bargaining, or even tell the other what it generally wants to bargain over. You can just tell me that you want to bargain, and I have to negotiate ground rules for the bargaining and then show up on day one ready to deal with anything under the sun."
FRED: "Seems that way. They said that outside of management-initiated midterm bargaining one party becomes obligated to bargain merely when the other party says it wants to bargain. The obligation exists before the initiating party reveals what it wants to bargain over."
FERN: "That's nuts. Answer this. If we wind up at the FSIP over the ground rules, how will FSIP know whether the union needs $500., $5,000., $50,000., or $500,000. in travel and per diem? What facts will it have to base its decision upon? For all the Panel or I will know, you could demand $100,000 in travel and then only open on one issue."
FRED: "Don't you think the FLRA thought about stuff like that? They have probably already told the FSIP how to handle that, but I have to admit there is nothing in the decision about it."
FERN: "Did this decision point to any case law precedent underlying it?"
FRED: "Well, there is mention of 25 FLRA 579 in which the employer was wrong to insist that once the union failed to ratify the first term contract that it had to justify its request to come back to the table in writing and submit all its new proposals before returning to the table."
FERN: "You and I have talked about that case, and I know for certain the word ‘notice,' much less the phrase ‘specific notice,' is not mentioned anywhere in that case. Moreover, did this new case decided last week even involve the issues of advance submission of actual proposals or a need to justify a request to bargain in writing issue?"
FRED: "No. Strange, isn't it? But FLRA saw a parallel to that case."
FERN: "What happens if we agree or the FSIP decides that bargaining will start 30 days after we sign the ground rules, and then you propose to change every one of the 2,100 sentences in the current agreement? How do I possibly get ready for that in 30 days?"
FRED: "Well, I guess that someone will tee up those legal issues in another case and in two or three years we will all have an answer. It is part of the full employment programs for labor lawyers which apparently takes precedence over the actual goals listed in the statute."
FERN: "What is the impact of this decision on the long-standing practice throughout government of the parties actually exchanging proposals or some other specific notice before bargaining ground rules, like the employer is obligated to do in mid-term bargaining?"
FRED: "FLRA seems to be saying that giving the other party advance notice of what you want to change at a term table is a permissive subject of bargaining. Either party can refuse to bargain over a demand to get proposals before completing ground rules bargaining. Just between you and me, I like our practice of exchanging opening proposals or goals before bargaining ground rules. After all, the more information that is on the table, the more effective, efficient, and amicable the bargaining is."
FERN: "So, why are you REALLY not giving me some idea of the bargaining issues in advance? I cannot think of one good reason that either party would want to start bargaining with the other party totally unprepared to discuss about certain issues. It is a sure way to needlessly stretch out bargaining."
FRED: "I am only withholding the proposals here because I want to stretch out bargaining, raise management's anxiety, and take some revenge on the commissioner who screwed us in that midterm negotiations last week."
FERN: "Obviously. FLRA has given the parties another tactical tool to use against one another when they are angry or looking for revenge and you want to use it."
FRED: "Yup! I also don't see anything in this decision that is a positive contribution to bargaining. How does this enable ‘the parties to fulfill their mutual obligation' to bargain sincerely much less avoid unnecessary delays. Had the FLRA gone the other way and demanded some level of specific notice to trigger ground rules bargaining or at least before going to FSIP on ground rules, it would have avoided this potential delaying tactic and made everyone's job much easier."
FERN: "OK, when will I get your proposals or even a list of desired changes? After we sign the ground rules, the day bargaining starts, before we go to FSIP, on the night of the first full moon after we start bargaining, Sam Gompers' birthday?"
FRED: "Apparently, there is no requirement to tell you what changes we want by any date certain. By the way, is management going to want term contract modifications, and, if so, when will we get an idea of what changes you want?"
FERN: "Fred, if you think I am giving you any information about the changes we want without getting, at least simultaneously, your list, then you must have been beamed aboard some alien space ship recently and rewired by the reigning, extraterrestrial, thumb-less idiot. Is this conversation all a joke? Are we on Candid Camera? Is this a GAO sting?"
FRED: "Well, you make a couple of good points about needing to know what we are bargaining over before we settle the ground rules. What do you have in mind for ground rules?"
FERN: "My dear Freddie, now that neither of us has to tell the other what we actually want to bargain over in the term contract, why would I have to tell you what I want to bargain over in the ground rules? Both situations involve bargaining and have nothing to do with management-initiated midterm bargaining. So, bingo, no notice is needed according to this decision. . Why don't you just try to read my mind if you want to know what we would want for ground rules? Or maybe get a ouija board? "
FRED: "Fern, surely FLRA did not mean to apply this holding to ground rule proposals. How could any bargaining ever get started if neither side knows what the other proposes even for ground rules?"
FERN: "Go ask FLRA. Maybe they want us to bargain ground rules in two stages. Stage one would be solely about when the parties have to tell each other what term contract changes they want. Stage two would kick in after that information is exchanged and focus on how the parties will bargain over the changes at issue."
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The conversation just reported, although fictional so far, explains the effect of the FLRA's newest decision on practitioners. However, the roles were reversed to dramatize the impact of this decision on management. In the actual case discussed, it was management that refused to give the union notice of what it wanted to bargain before management insisted that the ground rules be signed—and FSIP agreed that was OK Best of luck to all of us. (A related discussion of this issue can be found in Collective Bargaining Law For the Federal Sector (2009), published by www.deweypub.com/store/.
 Dept. of Treasury, IRS and NTEU, 64 FLRA No. 67 (2010)
 Under the Statute, however, the obligation to bargain over any matter, including ground rules, stems from the parties' obligation to "bargain in a good faith effort to reach agreement with respect to . . . conditions of employment[.]" 5 U.S.C. 7103(a)(12). As the obligation to bargain over ground rules is inseparable from the parties' mutual obligation to bargain in good faith, it is clear that a party may not insist on bargaining over ground rules which do not enable the parties to fulfill their mutual obligation. Stated simply, we conclude that ground rules proposals must, at a minimum, be designed to further, not impede, the bargaining for which the ground rules are proposed. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, OH and AFGE, Council 214, 36 FLRA 524 (1990)