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?