Mid-term bargaining occurs during the term of the contract.  This usually involves one issue at a time, but can involve a number of issues. Oftentimes mid-term bargaining is connected to a proposal from Management to change working conditions, but the Union can also initiate mid-term bargaining on subjects not “covered by” the contract.  This is the type of bargaining that most Union Stewards will be performing during their tenure.

Duty to bargain in good faith

Bargaining in good faith is a requirement of the law – 5 U.S.C. 7114(b):

(b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation--

     (1) to approach the negotiations with a sincere resolve to reach a collective

     bargaining agreement;

     (2) to be represented at the negotiations by duly authorized representatives

     prepared to discuss and negotiate on any condition of employment;

     (3) to meet at reasonable times and convenient places as frequently as may be

     necessary, and to avoid unnecessary delays;

     (4) in the case of an agency, to furnish to the exclusive representative involved,

     or its authorized representative, upon request and, to the extent not prohibited by

     law, 

     data--

          (A) which is normally maintained by the agency in the regular course of

          business;
         

          (B) which is reasonably available and necessary for full and proper discussion,

          understanding, and negotiation of subjects within the scope of collective

          bargaining; and

          (C) which does not constitute guidance, advice, counsel, or training provided

          for management officials or supervisors, relating to collective bargaining; and

     (5) if agreement is reached, to execute on the request of any party to the

     negotiation a written document embodying the agreed terms, and to take such

     steps as are necessary to implement such agreement.

Both parties must make a sincere effort to reach agreement. The negotiators at the table must have full authority to reach an agreement – they cannot be puppets of others not present, who are pulling the strings. No delay games should occur. The information necessary for the Union to have in order to conduct a “full and proper discussion” of the issues must be provided by Management.

Failing to negotiate in good faith is an Unfair Labor Practice (see 5 U.S.C. 7116) and a side alleging that has occurred may file a ULP with the FLRA.

Management Rights

“Management Rights” are defined by law at 5 U.S.C. 7106:

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--

     (1) to determine the mission, budget, organization, number of employees, and

     internal security practices of the agency; and

     (2) in accordance with applicable laws--

          (A) to hire, assign, direct, layoff, and retain employees in the agency, or to

          suspend, remove, reduce in grade or pay, or take other disciplinary action

          against such employees;

          (B) to assign work, to make determinations with respect to contracting out,

          and to determine the personnel by which agency operations shall be

          conducted;

          (C) with respect to filling positions, to make selections for appointments from--

               (i) among properly ranked and certified candidates for promotion; or

               (ii) any other appropriate source; and

          (D) to take whatever actions may be necessary to carry out the agency

          mission during emergencies.

(b) Nothing in this section shall preclude any agency and any labor organization from negotiating--

     (1) at the election of the agency, on the numbers, types, and grades of

     employees or positions assigned to any organizational subdivision, work project, or

     tour of duty, or on the technology, methods, and means of performing work;

     (2) procedures which management officials of the agency will observe in exercising

     any authority under this section; or

     (3) appropriate arrangements for employees adversely affected by the exercise of

     any authority under this section by such management officials.

On many occasions Union Stewards have been told by managers that they cannot negotiate over a topic because it is covered by “Management Rights” or that Management need not notify or bargain with the Union on a subject because of “Management Rights”.

This is a misunderstanding of Management Rights.

Some managers have pointed out, for example, that 5 U.S.C. 7106(a) gives Management the right to order mandatory overtime, establish critical elements and performance standards, and contract out work. That is true.

However, all of the Management Rights listed in 7106(a) are “subject to” – meaning “subordinate to” – the 7106(b)(2) procedures and 7106(b)(3) arrangements negotiated with the Union. This only makes sense, as otherwise if 7106(a) allowed Management to exercise its authority at will, and procedures and arrangements negotiated under 7106(b) were optional and unenforceable, then those procedures and arrangements would be meaningless, the grievance procedure would be irrelevant, and any arbitrator’s authority would be nonexistent. As the Federal Labor Relations Authority explained in its decision in 51 FLRA No. 36:

Pursuant to this provision, an agency's authority to exercise the rights enumerated in section 7106(a) is expressly made "subject to" section 7106(b). Thus, the section setting forth the authority of agency management begins with the statement that such authority is limited by subsection (b). Consistent with the statement of this limitation in section 7106(a), section 7106(b) begins with the statement that "[n]othing in [section 7106] shall preclude an agency" from negotiating over the matters set forth in the three subsections that follow. This language compels the conclusion that, where a proposal concerns a matter encompassed within section 7106(b), it is negotiable, consistent with the terms of subsections (b)(1), (2), or (3), even though it may also affect the exercise of authority by a management official to take actions enumerated in section 7106(a)…. 

In other words, Management’s authority to take actions under 7106(a) is limited by the procedures and arrangements, pursuant to 7106(b), that have or will be reached through collective bargaining.

Basically what this means is that:

1) If Management is going to exercise its rights they must be in accordance with past agreements, especially the contract. Acting in violation of the contract is subject to a grievance or other appropriate avenue of appeal.

2) If Management is going to exercise its rights on a subject not covered by the contract, or for which the contract has an “opener”, then Management must notify and negotiate as appropriate with the Union, generally (unless there is an emergency) prior to initiating the action or implementing the plan. Failing to notify or negotiate with the Union is subject to a grievance or ULP charge or other appropriate avenue of appeal.

Negotiability: “Negotiable” vs. “Non-Negotiable”

Negotiability is a concept that describes whether a proposal is legal subject to or eligible for bargaining. If a Union proposal is negotiable, then Management has a legal obligation to bargain over it. In the federal labor-management context, a synonym for “negotiable” would be “legal”. Even more accurate: “obliged to bargain” means the same as “negotiable”. If a Union proposal is non-negotiable then that means Management has no obligation to bargain over it.

If there is a dispute as to whether a proposal is negotiable or not, a negotiability appeal may be filed with the FLRA (read below for more information).

The term “non-negotiable” really covers two issues.

First of all, a proposal by the Union can be non-negotiable because it is not legal or valid – it conflicts with a law or a governing regulation, or interferes too much with the exercise of a Management Right (how much is too much? – that is discussed below). That means that even if Management agrees to it accidentally or in error, that provision in a contract or a local agreement is not legally valid or enforceable. If Management later violates that provision, a grievance/arbitration over that violation would not be upheld by the FLRA.

Second of all, some issues – informally called “(b)(1)” issues because they come from 5 U.S.C. 7106(b)(1) – are negotiable, but only at the election of Management. That means that Management can choose whether or not to bargain over them. These topics include the numbers of employees, the tour of duty, or the means of performing work. If Management chooses to negotiate over them and “(b)(1)” proposals are incorporated into the contract or a local agreement, they are binding on Management and they are enforceable through the grievance procedure. During bargaining, a manager may say that a Union’s “(b)(1)” proposal is “non-negotiable”, but in that context the phrase simply means that Management chooses not to negotiate over it and therefore Management has no obligation to do so.

Examples

Here is an example that was alluded to in the “Management Rights” section above:

Mandatory Overtime

Management does have the right to assign mandatory overtime, but here are some negotiable proposals (meaning that Management is obligated to bargain over them and, if adopted, become legally enforceable) that unions have made on this subject:

Upon request, the employer shall relieve an employee from an overtime assignment if there is another qualified employee available for assignment and willing to work. 16 FLRA No. 132

Also, the Authority ruled this proposal was negotiable:

An employee shall have the right to refuse an overtime assignment provided he has a legitimate reason and a qualified employee is available to take his place. 25 FLRA No. 9

A possible provision in the LMA could read:

In the event an employee does not desire to work overtime, the Employer shall make an effort to accommodate the employee's request to be excused from overtime work, provided that another qualified employee, who normally performs the work, is available for the overtime. 

So, while Management can order mandatory overtime, the Union can negotiate for proposals for how that will be implemented, even proposals that would excuse an employee from mandatory overtime in certain circumstances.

Impasse

An impasse occurs after both sides have met and bargained over a proposal on a number of occasions, but simply cannot reach an agreement. This applies in cases where there is no negotiability question.

When there is an impasse, the resolution of the issue may be referred to the Federal Services Impasse Panel, which is an independent body that will issue a ruling within the parameters of what is being proposed. The FSIP will either adopt Management’s proposal, the Union’s proposal, or strike a compromise in between the two.