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Negotiability, Bargaining Disputes, and
Impasses
Different kinds of disputes may arise when unions and agencies
attempt to bargain collectively to reach agreements concerning working
conditions. The labor relations statute provides several different procedures
to resolve these disputes. If you have a dispute over collective bargaining,
you will be more likely to resolve the dispute fully if you pursue the
appropriate procedure. The kinds of disputes described here include Bargaining
Obligation Disputes, Negotiability Disputes, Bargaining Impasses, and Disputes
over Contract Language. You can find information dealing with a specific
negotiation situation or subject by searching Authority decisions and General Counsel
Guidance.
Bargaining Obligation Disputes
Bargaining obligation disputes generally occur when a union or
agency claims that, under the circumstances, it does not have an obligation to
bargain with the other party, even though the proposal may be one that it is
legal for unions and federal government agencies to negotiate about. If the
refusal to bargain is not justified under the law, it may be an unfair labor
practice (ULP), and the party seeking to bargain may file a ULP charge with the
appropriate Regional Office. Examples
of this kind of dispute are an agency's claim that it is not obligated to
bargain over a change in employee working conditions because the change is not
significant or because it already has an agreement with the union that covers
this subject. The General Counsel has published a variety of General Counsel
Guidance that explain the
issues involved in particular bargaining disputes.
If an agency that is refusing to bargain also claims that
specific proposals made by the union are not among the legal subjects of
bargaining, the bargaining problem may also involve a negotiability dispute.
The procedures for resolving negotiability disputes are explained below. There
are specific Authority regulations
that explain the procedural options of parties who have a negotiating problem
that includes both a bargaining obligation dispute and a negotiability dispute.
Negotiability Disputes
Negotiability disputes occur where unions and agencies disagree
over the legality of specific contract proposals or provisions. These disputes
involve agency claims that a contract proposal made during bargaining involves
a subject that is outside the duty to bargain under all circumstances. They
also occur where an agency head disapproves negotiated contract language on the
ground that it is contrary to law. Examples of these disputes include whether a
proposal is contrary to a government wide regulation or whether it affects
management rights set out in the Statute.
When an agency refuses to bargain over a proposal
because it claims that it is not negotiable, the union may file an appeal with
the Authority. There are specific regulations that govern when an agency claim
of this sort triggers a right to file an appeal, and how the appeal is filed.
Information that may help you if want to file or respond to a negotiability
appeal are the Authority's forms for
filings, the regulations, and the
Guide to the FLRA Negotiability Appeals
Process. Specific questions about appeals can be directed to
Case Intake and Publication. Authority
decisions in negotiability cases are appealable to the federal courts of
appeal.
Alternative dispute resolution of negotiability issues is
available through the FLRA's Office of
Collaborative and Alternative Dispute Resolution, which applies interest
based dispute resolution techniques to resolve these disputes without
litigation.
Negotiability issues can also be resolved through the unfair labor
practice (ULP) process. This is appropriate where the parties have both
negotiability and bargaining obligation disputes. There are specific Authority
regulations that explain the procedural options of parties who have a
bargaining problem that includes both a bargaining obligation dispute and a
negotiability dispute.
Bargaining Impasses
When an agency and union have negotiated over a particular subject
and have reached an impasse, the Statute provides a mechanism to resolve their
impasse. First, the parties must seek mediation assistance from a third party,
such as the Federal Mediation and Conciliation
Service (FMCS) in an attempt to informally resolve the matter. After this,
they may seek assistance from the Federal
Service Impasses Panel. After an investigation and determination is made
concerning jurisdiction, the Panel has authority to recommend and/or direct a
variety of informal and formal procedures to resolve the impasse. These include
telephone conferences, mediation, fact finding, written submissions and
arbitration by Panel Members or private arbitrators. If the dispute is not
voluntarily resolved, the Panel may take final action by imposing contract
terms. The merits of the Panel's decision may not be appealed to any court.
Information that would assist you in resolving a bargaining
impasse includes the form for requesting
FSIP assistance and the regulations. You can find out how the FSIP has
resolved impasses over specific issues by reviewing
FSIP decisions. A
Guide to FSIP Procedures, which
describes a variety of impasse resolution procedures, is also available.
Disputes over existing contract
language
Where parties have agreed to contract language and then disagree
over its interpretation, these disputes are generally resolved through
negotiated grievance and arbitration procedures. In limited circumstances,
where a party has repudiated existing contract language, the dispute may
involve a ULP.
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