Frequently Asked Questions about the Authority's procedures for Resolving Negotiability Disputes
Q. What is a proposal?
A. A proposal is contract language that has not yet been agreed to by the parties. In this context, a proposal is the subject of a negotiability appeal.
Q. What is a provision?
A. A provision is contract language that has been agreed to by the local union and agency, to be a part of their collective bargaining agreement. However, the provision can be disapproved as illegal by the agency head during the 30 day review period after the local parties sign the contract. In this context, a provision is the subject of a negotiability appeal.
Q. What prompts the filing of a negotiability appeal/petition for review?
A. Several things do: 1) the union asks for a written allegation of non-negotiability and receives the agency's written allegation; 2) the union asks in writing for a written allegation of non-negotiability, and the agency does not reply within ten days of receipt; 3) the union does not ask for an allegation of non-negotiability, but receives an unsolicited, written allegation, which creates the option for the union to file an appeal; or 4) the agency head declares contract provisions to be contrary to law.
Q. How much time does the union have to file a petition for review?
A. The time limits depend upon what prompts the filing of the petition. The union has to file within 15 days of the date of service of a requested, written allegation of non-negotiability, or, if the agency does not respond to a written request for an allegation of non-negotiability, the union may file at any time after ten days from the agency's receipt of the request. If the agency provides an unrequested allegation of non-negotiability, the union has a choice: it may ignore it, or it may file within 15 days of the date of service. If the agency head disapproves a provision, the union must file within 15 days of the date of service of the disapproval letter.
Q. Where is the petition filed?
A. At the Federal Labor Relations Authority, Office of Case Intake and Publication.
Q. Can the petition be filed by fax?
Q. Does the union have to give the agency copies of the petition?
A. Yes. The union has to mail or deliver a copy of the petition to both the head of the agency and the chief negotiator who represented the agency at the bargaining table.
Q. What information goes into the petition for review?
A. The exact language of the proposals or provisions in question; a statement of the meaning of the proposals or provisions; an explanation of how the disputed language would operate and what impact it would have; an explanation of any special terms or initials; and a request for severance. Forms for the petition are available from the Authority.
Q. What does severance mean?
A. Severance is asked for by the union when it thinks that parts of a proposal or provision can stand alone even if other parts are found to be illegal or outside the obligation to bargain. The union must explain how the separate parts of the proposal or provision can be meaningful if they are allowed to stand.
Q. What happens after the petition for review is filed?
A. The parties will receive notice of a conference that they will be required to attend, which will be set for a specific time and date, usually within ten days after the petition is received.
Q. What if a party's representative is unavailable at the time and date of the post-petition conference?
A. The party should make every effort to get a substitute who is familiar with the case. On very rare occasions, a conference can be rescheduled. The party who needs the change should contact the other side to get its position on the postponement. If the union and agency agree about a postponement, they should present alternative dates and times along with a written request for a postponement. If the parties do not agree, one side can still ask for a postponement. The Authority can deny a request for a postponement, even if both sides agree, if there is not a good reason for a postponement. Absent extraordinary circumstances, a request to reschedule must be received by the Authority no later than five calendar days before the scheduled conference date.
Q. What happens at the post-petition conference?
A. The conference will be led by a representative of the Authority who will ask the union for any information that is needed. The agency will be asked to give all of its reasons for its position that the proposal or provision is non-negotiable. The conference will focus on what the contract proposal or provision means. Either the union or the agency, or both, may be asked to provide specific information. The parties will be offered the chance to participate in the Authority's voluntary alternative dispute resolution program, which can include mediation. The Authority's representative will prepare a written summary of the conference which will become part of the official record.
Q. What happens after the post-petition conference?
A. The agency has to file its statement of position.
Q. When is the agency's statement of position due?
A. Within 30 days after the agency head receives the petition for review, unless the Authority or its representative grants a request for an extension of time.
Q. What is the agency's statement of position?
A. This document is filed on a form or on plain paper, and it gives the agency's position on why the proposals or provisions are non-negotiable or are not within the agency's obligation to bargain. The agency must give its interpretation of the meaning and impact of the proposal or provision if it is different from the union's. The agency has to set forth all the reasons for its opinion about the contract language, such as management rights, or inconsistency with law or regulation. If the agency contends that it doesn't have to bargain, it must state the reason, such as, the topic is covered by the parties' collective bargaining agreement or a change in conditions of employment is too minimal to require bargaining.
Q. Where is the statement of position filed?
A. At the FLRA's Office of Case Intake and Publication in Washington, D.C.
Q. Must the union respond to the agency's statement of position?
Q. When must the union respond to the agency's statement of position?
A. Within 15 days after the union receives the statement.
Q. What should be included in the union's response to the statement of position?
A. The union should state all the reasons why the agency is incorrect, including factual and legal matters. If the agency raises management rights, the union should raise any exceptions to management rights, such as elective negotiability, or negotiable procedures or appropriate arrangements. If the union thinks the agency's arguments are wrong, it should explain why it thinks the proposal or provision does not conflict with the law.
Q. Can the agency reply to the union's response?
A. Yes. The agency can file a reply.
Q. When is the agency's reply due?
A. Within 15 days after the agency receives a copy of the union's response to the statement of position.
Q. What should be included in the agency's reply?
A. The agency's reply should be limited to responding to the new matters raised in the union's response. The agency should give all of the reasons why the union's arguments are not correct. If the union has asked for severance and the agency disagrees, it should explain why it thinks severance is inappropriate.
Q. Why is there an agency reply when the federal labor statute sets out only three steps - the petition, the statement of position, and the response?
A. The Authority recognizes that the union might not raise some arguments until after it has the benefit of reading the agency's statement of position. Allowing the agency to file a reply to new material is fair, just like the union has the chance to file a response to the agency's arguments.
Q. Are there any other filings permitted, after the agency reply?
A. If either party makes a written request and shows extraordinary circumstances for filing a supplemental or additional document after the four filings described above, the Authority can grant permission to do so.
Q. Will there be a hearing?
A. There may be, but not typically. Either party can ask for a hearing, and should give the reasons for its request. However, the Authority does not have to hold a hearing, even if both parties want one.
Q. If there is no hearing, how does the Authority find out what the facts and arguments are?
A. The Authority relies most on the documents that the parties file. However, the Authority can ask for additional information through written questions or a fact-finding conference.
Q. If the agency claims in its response that it won't negotiate because the contract language is not within its obligation to bargain, on the basis that it's already covered by the collective bargaining agreement or for some other reason, how will that be resolved?
A. There are several options. If it's timely, a union could file a grievance or unfair labor practice charge regarding the agency's refusal to bargain. If that happens, unless the agency has argued that it has a compelling need for an agency regulation that is counter to the contract language, the Authority will dismiss the petition for review, without prejudice to it being refiled later. The bargaining obligation question would get resolved in another forum. However, if the union does not file an unfair labor practice charge or a grievance that claims an unfair labor practice, the Authority will decide the agency's defense on the bargaining obligation, as well as the legality of the disputed language. The filing of a negotiability appeal does not stop or change the time limits for filing a grievance or ULP charge.
Q. Why is a case treated differently when a compelling need argument is raised?
A. A federal court has ruled that if an agency raises an argument that disputed language is non-negotiable because it conflicts with an agency regulation for which there is a compelling need, that claim needs to be decided before an unfair labor practice determination can be made. As a result, the negotiability case will proceed, even if an unfair labor practice charge or grievance has been filed.
Q. Do the parties have to use the forms provided by the Authority?
A. No, but their use is encouraged. If the parties do not use the forms, they must provide all of the information that is required by the regulations and referred to on the forms.
Q. What happens if a party does not comply with the regulations or requirements?
A. If non-compliance is minor or technical, the Authority can give the party a chance to correct the mistake. However, if the union or the agency does not comply in an important way, it can count against the non-complying party and it may affect its case. If a union doesn't cooperate or comply, it could have its petition dismissed. If an agency doesn't cooperate or comply, it could be ordered to bargain or to withdraw disapproval of a contract provision.
Q. What are the responsibilities of the parties to support their cases?
A. The union has the responsibility to make and support its arguments, and the agency has the responsibility to make and support its arguments. Both parties must respond to what the other side is arguing. If a party fails to respond, it could be viewed as agreement with the other side. If a party doesn't set out an argument or give support for its viewpoint, it may adversely affect its case - even if the argument or support, if made, would have changed the outcome.
Q. How will the Authority set out its decision?
A. The Authority will issue a written decision that explains its ruling. If it finds something to be legal and within the obligation to bargain, the Authority will issue an order to bargain about the proposal or an order to rescind disapproval of the provision. If the Authority decides that something is electively negotiable, it will state that determination. If the Authority decides that a proposal or provision is non-negotiable because it's illegal or there is no duty to bargain, it will dismiss the petition.
Q. What happens if an agency does not comply with an order to bargain or to rescind disapproval?
A. The union should bring the agency's non-compliance to the attention of the Regional Director within a reasonable period of time after the 60 day period to appeal to court has passed. The Authority will then look into the matter and take reasonable steps to be sure that the agency complies.
Q. What happens if a party does not agree with the Authority's decision?
A. A party that is aggrieved by the Authority's final order can file an appeal during the 60-day period beginning on the date that the order was issued. The appeal is filed in a United States court of appeals.