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Negotiability, Bargaining Disputes,
and Impasses

Different kinds of disputes may arise when unions and agencies attempt to bargain collectively to reach agreements concerning working conditions. The labor relations statute provides several different procedures to resolve these disputes. If you have a dispute over collective bargaining, you will be more likely to resolve the dispute fully if you pursue the appropriate procedure. The kinds of disputes described here include Bargaining Obligation Disputes, Negotiability Disputes, Bargaining Impasses, and Disputes over Contract Language. You can find information dealing with a specific negotiation situation or subject by searching Authority decisions and General Counsel Guidance.

Bargaining Obligation Disputes

Bargaining obligation disputes generally occur when a union or agency claims that, under the circumstances, it does not have an obligation to bargain with the other party, even though the proposal may be one that it is legal for unions and federal government agencies to negotiate about. If the refusal to bargain is not justified under the law, it may be an unfair labor practice (ULP), and the party seeking to bargain may file a ULP charge with the appropriate Regional Office. Examples of this kind of dispute are an agency's claim that it is not obligated to bargain over a change in employee working conditions because the change is not significant or because it already has an agreement with the union that covers this subject. The General Counsel has published a variety of General Counsel Guidance that explain the issues involved in particular bargaining disputes.

If an agency that is refusing to bargain also claims that specific proposals made by the union are not among the legal subjects of bargaining, the bargaining problem may also involve a negotiability dispute. The procedures for resolving negotiability disputes are explained below. There are specific Authority regulations that explain the procedural options of parties who have a negotiating problem that includes both a bargaining obligation dispute and a negotiability dispute.

Negotiability Disputes

Negotiability disputes occur where unions and agencies disagree over the legality of specific contract proposals or provisions. These disputes involve agency claims that a contract proposal made during bargaining involves a subject that is outside the duty to bargain under all circumstances. They also occur where an agency head disapproves negotiated contract language on the ground that it is contrary to law. Examples of these disputes include whether a proposal is contrary to a government wide regulation or whether it affects management rights set out in the Statute.

When an agency refuses to bargain over a proposal because it claims that it is not negotiable, the union may file an appeal with the Authority. There are specific regulations that govern when an agency claim of this sort triggers a right to file an appeal, and how the appeal is filed. Information that may help you if want to file or respond to a negotiability appeal are the Authority's forms for filings, the regulations, and the Guide to the FLRA Negotiability Appeals Process. Specific questions about appeals can be directed to the Authority's Case Control Office. Authority decisions in negotiability cases are appealable to the federal courts of appeal.

Alternative dispute resolution of negotiability issues is available through the FLRA's Office of Collaborative and Alternative Dispute Resolution, which applies interest based dispute resolution techniques to resolve these disputes without litigation.

Negotiability issues can also be resolved through the unfair labor practice (ULP) process. This is appropriate where the parties have both negotiability and bargaining obligation disputes. There are specific Authority regulations that explain the procedural options of parties who have a bargaining problem that includes both a bargaining obligation dispute and a negotiability dispute.

Bargaining Impasses

When an agency and union have negotiated over a particular subject and have reached an impasse, the Statute provides a mechanism to resolve their impasse. First, the parties must seek mediation assistance from a third party, such as the Federal Mediation and Conciliation Service (FMCS) in an attempt to informally resolve the matter. After this, they may seek assistance from the Federal Service Impasses Panel. After an investigation and determination is made concerning jurisdiction, the Panel has authority to recommend and/or direct a variety of informal and formal procedures to resolve the impasse. These include telephone conferences, mediation, fact finding, written submissions and arbitration by Panel Members or private arbitrators. If the dispute is not voluntarily resolved, the Panel may take final action by imposing contract terms. The merits of the Panel's decision may not be appealed to any court.

Information that would assist you in resolving a bargaining impasse includes the form for requesting FSIP assistance and the regulations. You can find out how the FSIP has resolved impasses over specific issues by reviewing FSIP decisions. A Guide to FSIP Procedures, which describes a variety of impasse resolution procedures, is also available.

Disputes over existing contract language

Where parties have agreed to contract language and then disagree over its interpretation, these disputes are generally resolved through negotiated grievance and arbitration procedures. In limited circumstances, where a party has repudiated existing contract language, the dispute may involve a ULP.


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