Negotiability disputes occur when a union and an agency disagree over the legality of contract proposals or provisions.
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:
- it conflicts with federal law, a government-wide rule or regulation, or an agency regulation for which there is a compelling need; or
- it concerns a matter that the agency may elect, but is not required, to negotiate under § 7106(b)(1) of the Statute.
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.
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:
- the proposed contract language is already "covered by" or included in an existing collective-bargaining agreement;
- the union has waived its right to bargain;
- an agency-initiated change is too minor to require bargaining (de minimis); or
- 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.
For a more detailed explanation of negotiability disputes, see the Authority's Guide to Negotiability or the Authority's Regulations.