1. Copyright 2007 © LRP Publications Chapter 4 Requests to Bargain Impact and Implementation Bargaining

2. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Request to Bargain Upon receiving notice of an intended change that will affect COE of bargaining unit employees, a union must request bargaining in a “timely manner” or waive (i.e., lose) the right to bargain on the matter. U.S. Customs Service, 16 FLRA 654. Check the Toolbox for US Customs Service.

3. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Timely Requests to Bargain “Timely manner” has been interpreted by the FLRA to mean a reasonable period of time before the announced implementation date. A request to bargain “at the 11th hour” may result in a finding that the union has waived, through inaction, its right to bargain. U.S. Customs Service, 16 FLRA 654.

4. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Activity — It’s Your Call Consider this scenario: The agency gave 10 days notice of an intended change to overtime scheduling procedures. Two days before implementation, the union requested bargaining. How did the FLRA rule on the request to bargain? Was it ruled: a.Timely, requiring the agency to bargain. b.Untimely, waiving the union’s right to bargain.

5. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Activity — It’s Your Call If you said (b), then you agreed with the FLRA’s ruling in U.S. Customs Service, 16 FLRA 654.

6. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Request to Bargain A proposal delivered at the 13th hour — that is, after a change has already been implemented — will also result in a finding that a union has waived its right to bargain in most cases. One notable exception is a situation in which management has made an immediate change in order to comply with law and, therefore, did not permit bargaining before the change was implemented. In such situations, a request to bargain presented within a reasonable period of time after implementation will be deemed valid. Wright-Patterson Air Force Base, 51 FLRA 1532. Check the Toolbox for Wright-Patterson Air Force Base.

7. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Negotiable Proposals A request to bargain in response to notification of an intended change must also result in proposals that are within the duty to bargain. Failure to raise proposals within the duty to bargain before the implementation date can result in a waiver of the right to bargain. Proposals that are not within the duty to bargain include those that: Are in conflict with law or governmentwide regulations. Outside the scope of (i.e., not reasonably related to) the change proposed by the agency. U.S. Customs Service, 59 FLRA 703. Check the Toolbox for U.S. Customs Service, 59 FLRA 703.

8. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Activity — It’s Your Call Consider this scenario: An agency proposed changes to a policy governing work assignment practices. In response, the union demanded that it renegotiate the entire labor agreement. How do you think the FLRA ruled in this situation? a.The demand to bargain the entire labor agreement was within the duty to bargain. b.The demand to bargain the entire labor agreement was not within the duty to bargain.

9. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Activity — It’s Your Call If you chose (a), then you agreed with the FLRA’s decision in Customs Service, 59 FLRA 703.

10. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 More Than a Request In order to keep its right to bargain alive, a union must do more than simply identify proposals it intends to negotiate. Within a reasonable period of time following the request to bargain, it must come to the table and commence actual bargaining. Failure to come to the table to bargain in a timely manner constitutes a waiver through inaction of its right to bargain. Social Security Administration, 18 FLRA 437. Check the Toolbox for Social Security Administration.

11. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Additional Request Requirement A request to bargain must originate at the level of bargaining unit recognition; e.g., from the national office of the union if the unit recognition is national. If a bargaining request originates at a different level — for example, from a local union steward in a national bargaining unit — the agency is not obligated to bargain.

12. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Request to Bargain The FLRA has ruled that a union may also keep its right to bargain alive by responding to notice of an intended change with a request for additional information. Naval Air Station, Whidbey Island, 41 FLRA 662. Check the Toolbox for Naval Air Station.

13. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Requests for Information In order to keep a union’s request to bargain alive, a request for information must meet the requirements of the “particularized need” test. The “particularized need” test requires, in general, that a union explain why specific information is needed — rather than merely desired, interesting, or possibly helpful — and generally explain how it will be used. IRS, Kansas City Service Center, 50 FLRA 661. Check the Toolbox for IRS, Kansas City.

14. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Requests for Information A union is not entitled to require that bargaining be postponed until it has received all of the information it has requested. If the agency has provided enough information to permit the union to adequately represent bargaining unit interests in bargaining, it is not protected in refusing to commence negotiations until all the information it seeks is provided. IRS, Kansas City, 18 FLRA 693. Check the Toolbox for IRS, Kansas City II.

15. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Activity — It’s Your Call Let’s consider another scenario: A union is notified of an intended change to the performance awards policy in 90 days. It tells management that it must retain the current policy until bargaining is completed. Some 77 days later the union presents a dozen proposals and again demands no changes be made before bargaining is completed. In this situation management: a.Must postpone implementation until bargaining is done. b.Can move forward because the union has waited too long.

16. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Activity — It’s Your Call The correct answer is (b). The union’s action is an 11th hour request.

17. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Chapter 4 Summary Upon notification that the agency intends to take an action that will have more than a de minimis effect on unit employees’ COE, a union must request bargaining within a reasonable period of time. Neither the statute nor case law specify how much time constitutes a “reasonable period of time” for purposes of responding to notice of an intended change. The presentation of proposals or a demand to bargain at either the 11th hour (just before the intended change), or at the 13th hour (after the change has already been implemented), will usually result in a finding that the union has waived its right to bargain.

18. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Chapter 4 Summary In order to be considered valid, a request to bargain must: –Originate at the level of recognition. –Raise or result in proposals that are within the duty to bargain. A union may also keep its right to bargain alive by requesting information in connection with the intended change that meets the “particularized need” criteria.

19. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 4 Chapter 4 Assessment Click on Assessments in the cyberFEDS® eLearning navigation bar above to take the assessment.