What is Collective Bargaining?
Leave a commentJanuary 14, 2020 by jsafed
What is Collective Bargaining?
by Joseph Swerdzewski
If one is going to be successful at collective bargaining, then they, of course, first have to know precisely what collective bargaining is and when it takes place. Collective bargaining for federal agencies is mandated by the Statute. In short, the Federal Service Labor Management Relations Statute (Statute). The Statute is the law that gives unions the right to exist in the federal sector and sets the foundations of the federal sector bargaining system. The definition of collective bargaining in the federal sector can be found in Section 7103 (a) (12) of the Statute. The section provides:
“collective bargaining” means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession.
The questions and answers that follow explain the federal definition of collective bargaining in more detail:
What does it mean when the Statute says collective bargaining is a mutual obligation of the representative of an agency and the exclusive representative?
Each side in collective bargaining has the right to choose its own representatives without restriction. For example, a union cannot insist that the head of the agency be at the bargaining table, nor can the agency insist that the national head of a union be a bargainer. However, the bargainers for each side must have the authority to bind their side to an agreement. If they lack authority, this could be considered bad faith bargaining, which is an unfair labor practice. Each side is entitled to seek advice during bargaining. Management can speak to its legal counsel or agency higher-ups without being considered as engaging in bad faith bargaining. Similarly, a union can seek counsel from its legal representatives or union staff without fear of engaging in an unfair labor practice.
What are reasonable times for bargaining?
The times when bargaining will take place are to be mutually agreed upon. Neither side has the right to unilaterally dictate when bargaining will take place. Normally, the time and location of bargaining are set forth in the mutually agreed-upon ground rules (ground rules are discussed at length in Chapter 7). In the absence of ground rules, the parties must agree on a reasonable time. Unreasonably delaying bargaining could be considered bad faith bargaining. If parties to the bargaining cannot agree, the issue may be submitted to the Federal Services Impasses Panel (FSIP). (More about the FSIP in Chapter 2)
What is good faith bargaining?
As aforementioned, failing to engage in good faith bargaining can be considered an unfair labor practice. As it happens, considerable energy is occasionally spent at the bargaining table accusing the other side of bad faith bargaining. Many allegations of bad faith are made, but the standard of proof for bad faith is only rarely met. When looking at allegations of bad faith bargaining, the FLRA will look at the totality of the circumstances. What does that mean exactly? What follows are some of the concerns the FLRA will consider:
Did the parties approach negotiations with a sincere resolve to reach an agreement?
A statement by one side that it will never reach agreement on any agreement put forth could be considered evidence of not possessing a sincere resolve to reach an agreement.
Were parties represented by duly-authorized representatives prepared to discuss and negotiate any condition of employment?
A statement by a chief negotiator that he/she does not possess the authority to reach an agreement could be evidence of bad faith. However, a statement by a chief negotiator that he/she cannot agree to a specific union or management proposal may not be evidence of bad faith.
Did the parties meet as frequently as necessary and avoid unnecessary delay?
Unilaterally stalling negotiations, or refusing to meet at reasonable times, may be evidence of bad faith.
Did the parties explore and discuss each other’s positions?
Failing to allow a party to ask questions about a proposal, or to engage in back and forth discussion, may be considered evidence of bad faith.
Was an agreement reached with respect to conditions of employment?
A fundamental aspect of collective bargaining is that it must concern conditions of employment. If something is not a condition of employment, a union may not bargain over the matter. (More detail about what a condition of employment is can be found in Chapter 3.) The short definition of a condition of employment is that the matter must both pertain to bargaining unit employees and must concern the work of the employees.
If requested by either party, was a written document executed that incorporated any collective bargaining agreement reached?
A party to collective bargaining has the right to documented evidence of what was agreed upon by the parties. While oral agreements are enforceable, they are subject to credibility disputes, as to actually what was agreed upon. Ask that, if one party is refusing to put an agreement in writing, what is their motivation to live up to the agreement?
Neither party is compelled to agree to a proposal or to make a concession.
While a party cannot compel another party to the bargaining to agree to a proposal or to make a concession at the bargaining table, the FSIP can impose terms on either party, after FSIP assistance is sought.
What is a Collective Bargaining Agreement?
All agreements reached through collective bargaining are considered collective bargaining agreements, whether they are term agreements or midterm change bargaining agreements. Under the law, there is no difference in the application of the Statute for bargaining over a change in working conditions or bargaining for a new term collective bargaining agreement. While there are significant differences as to when term and midterm bargaining take place, the rules of negotiability are the same, regardless of the type of bargaining.
What are the types of collective bargaining in the federal sector?
There are essentially three types of collective bargaining in the federal sector. While there are differences in each, there also more commonalities. Each will be dealt with in more detail in subsequent chapters. The three types are as follows:
1) Term Bargaining
A term agreement is an agreement that has a specific term (number of years). The normal term for a federal sector collective bargaining agreement is three years; however, many have a five-year term as well. When most think of a collective bargaining agreement, they are often referring to a term agreement.
However, as aforementioned, midterm agreements are also collective bargaining agreements. When a new bargaining unit is formed, as a result of an election conducted by the FLRA, the parties will begin negotiations for their first term agreement. In all other instances when negotiations begin for a new term agreement, if a term agreement already exists will depend on the duration article of the existing collective bargaining agreement. Many duration clauses set forth specific periods when a collective bargaining agreement can be reopened, and if the agreement is not reopened during those specific periods it will continue in existence. Others establish when an agreement expires. Once an agreement expires, it can be reopened at any time by either party.
2) Midterm – Change Bargaining
Midterm change bargaining occurs at any time during the life of an existing term agreement, or after an agreement has expired. Also known as unilateral change bargaining, this takes place as a result of management wanting to make changes in working conditions, for which there is a duty to bargain.
3) Union-Initiated Midterm Bargaining
Unions have the right to initiate bargaining for new working conditions that are not currently “covered by” an existing term agreement. (The “covered by doctrine” is discussed at length in Chapter 3.) The union must notify management of its proposals, and management must bargain to the extent required by law.
Three things to remember about collective bargaining:
- Collective bargaining is a mutual obligation of the parties. Both union and management have the obligation to bargain as required by the Statute.
- Both sides must engage in good-faith bargaining. Whether or not a party is engaged in good-faith bargaining is based on a totality of the circumstances. Failure to bargain in good faith is an Unfair Labor Practice (ULP).
- There are three types of bargaining: 1) Term Bargaining, 2) Mid-Term Change Bargaining, and 3) Union-Initiated Bargaining.
For more information about Collective Bargaining see: A Guide to Successful Federal Sector Collective Bargaining and The Essential Guide to Federal Labor Relations written by Joseph Swerdzewski.
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