Negotiability

Negotiability disputes

Negotiability disputes occur when a union and an agency disagree over the legality of contract proposals or provisions

Proposal Cases

A negotiability dispute may occur when a union and an agency involved in collective bargaining disagree about whether the agency is required, or permitted, to negotiate over a matter proposed by the union.  The union may file a petition for review with the Authority if the agency alleges that its duty to bargain does not extend to the proposed matter because:

  1. it conflicts with federal law, a government-wide rule or regulation, or an agency regulation for which there is a compelling need; or
  2. it concerns a matter that the agency may elect, but is not required, to negotiate under § 7106(b)(1) of the Statute.

Provision Cases

A negotiability dispute may also occur when an agency head, conducting agency-head review under § 7114(c) of the Statute, disapproves a contract provision that the union and the agency at the local level agreed upon.  The union may file a petition for review with the Authority if the agency head alleges that the provision is not in accordance with law.

Bargaining-Obligation Disputes

Generally, unions may not use the negotiability-appeals procedure to resolve bargaining-obligation disputes, which differ from negotiability disputes.  A bargaining-obligation dispute arises when an agency alleges that there is no obligation to bargain over a matter because:

  1. the proposed contract language is already "covered by" or included in an existing collective-bargaining agreement;
  2. the union has waived its right to bargain;
  3. an agency-initiated change is too minor to require bargaining (de minimis); or
  4. the matter does not pertain to the conditions of employment of bargaining-unit employees.

A union seeking to resolve a bargaining-obligation dispute should file an unfair-labor-practice charge.

Filing a negotiability appeal

A union may file a petition for review with the Authority if the parties are involved in a negotiability dispute.  In most cases, the agency’s statement of position is due after the post-petition conference, which the Authority schedules ;to gather information regarding the proposals or provisions in dispute.  After the union receives a copy of the statement of position, the union must file a response to the statement.  And after the agency receives the union's response, the agency may file a reply.

Time Limits for Filing

  • Petition for Review:  The union must file its petition for review within 15 days after the date of an agency's allegation of nonnegotiability.  But if the agency fails to respond to a union's request for an allegation of nonnegotiability, then the union must wait at least 10 days after its request, and then it can file its petition for review at any time. 
  • Agency's Statement of Position:  The agency must file its statement with the Authority within 30 days from when the agency receives the union’s petition for review.
  • Union's Response:  If the union wants to dispute any of the claims in the agency’s statement of position, then the union must file a response within 15 days of receiving the agency’s statement.
  • Agency's Reply:  The agency may file a reply to the union’s response within 15 days after the agency receives a copy of the response.

You can find these time limits, as well as additional information about the procedural requirements for filings in a negotiability dispute, in the Authority's Regulations.

How to File

The Authority prefers that parties use the FLRA's eFiling system.  However, copies of the standard negotiability-proceeding forms are available here for parties wishing to file by mail.

Additional resources

For a more detailed explanation of negotiability disputes, see the Authority's Guide to Negotiability or the Authority's Regulations.

Alternative dispute resolution for negotiability disputes is available through the Collaboration and Alternative Dispute Resolution Office, which applies interest-based dispute-resolution techniques to resolve these disputes without litigation.