Labor Management Relations Glossary

Bargaining (negotiating)

A ubiquitous process--sometimes informal and spontaneous, sometimes formal and deliberate--of offer and counteroffer whereby parties to the bargaining process try to reach agreement on the terms of exchange. Deliberateness and a concern for bargaining strategy and tactics usually rise to the fore only when the stakes make such efforts worthwhile. Formal bargaining processes with associated rituals and bargaining routines vary, depending on their political, economic, and social context. Sometimes the formal requirements facilitate the process of reaching agreement; sometimes they become an end in themselves; and sometimes they are deliberately used in order to avoid or delay agreement. The process, as far as negotiations between collectivities is concerned--e.g., firms, unions, nations, and branches of government (e.g., budget negotiations between the President and the Congress)--has been analyzed into four subprocesses by Walton and McKersie in A Behavioral Theory of Labor Negotiations, 1965: distributive ("fixed pie") bargaining; integrative ("variable pie") bargaining (cf. "interest-based bargaining"); attitudinal structuring (cf. "partnering"); and intra-organizational bargaining, with real-world bargaining usually being a variable mixture of all four subprocesses.

Bargaining Agent

The union holding exclusive recognition for an appropriate unit (external link).

Bargaining Impasse (impasse)

When the parties have reached a deadlock in negotiations they are said to have reached an impasse in negotiations.* The statute provides for assistance by Federal Mediation and Conciliation Service(FMCS) mediators and the Federal Service Impasses Panel(FSIP) to help the parties settle impasses. If nothing avails, the FSIP can resolve the impasse by telling the parties what they are to put in their agreement or by ordering the use of interest arbitration by an agreed-upon private arbitrator. See § 7119. It is not, however, a ULP to refuse to comply with a FSIP order dealing with a permissive subject of bargaining. See 15 FLRA Nos. 65 and 100 - 104.

*Note: If the parties reach a bargaining impasse and the union timely invokes the services of the Impasses Panel, the agency must maintain the status quo to the maximum extent possible, consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action it deems appropriate. 18 FLRA No. 61. Failure to do so is an unfair labor practice and may result in a "make-whole" and/or status quo ante remedy. Regarding the "necessary functioning of the agency" exception to the duty to maintain the status quo, in 51 FLRA No.69, the Authority said that when an agency relies upon this exception and alters the status quo, it must be prepared to provide affirmative support for the assertion that the action taken was consistent with the necessary functioning of the agency. The Authority has also indicated that the phrase "consistent with the necessary functioning of the Agency," may be accurately paraphrased as "necessary for the [agency] to perform its mission." See 23 FLRA No. 10. Also see 16 F Nos. 31 and 32 on acting after bargaining to impasse and giving notice.

Bargaining Unit

See Appropriate Unit (external link).

Bargaining Unit Structure

The distribution of bargaining units by, e.g., size and location. It is often said that the bargaining unit structure in the Federal sector is "fragmented." Two additional appropriate unit criteria--effective dealings and efficiency of government operations--were among the changes Executive Order (EO) 11491 made over EO 10988 in order to combat the problem of fragmentation. EO 11491 was later amended to provide for unit consolidation procedures as another means of coping with unit fragmentation. See unit consolidation (external link).

Collective Bargaining

Literally, bargaining between and/or among representatives of collectivities (thus involving internal as well as external bargaining); but by custom the expression refers to bargaining between labor organizations and employers. See § 7103(a)(12) for a statutory definition.

Collective Bargaining Agreement (CBA)

See AGREEMENT, NEGOTIATED (external link).

Good Faith Bargaining

Defined by § 7114(b) as the duty to approach negotiations with a sincere resolve to reach a collective bargaining agreement, to be represented by properly authorized representatives who are prepared to discuss and negotiate on any condition of employment, to meet at reasonable times and places as frequently as may be necessary and to avoid unnecessary delays, and, in the case of the agency, to furnish upon request data necessary to negotiation. (There have been no FLRA decisions in which the Authority has addressed the issue of whether the refusal to explain or justify or otherwise discuss the meaning of proposals constitutes bad faith bargaining. However, in 54 FLRA No. 134, then Chairperson Segal, in a separate concurring opinion, took the position that the duty to bargain in good faith includes a duty to communicate). Violations of the duty to bargain in good faith are unfair labor practices. See, e.g., 6 FLRA No. 100 (refusal to bargain on a proposal substantially the same as a proposal FLRA has already found negotiable) and 18 FLRA No. 69 (surface bargaining).

I & I (Impact and Implementation) Bargaining

Even where the decision to change conditions of employment (including established practices) of unit employees is protected by management`s § 7106(a) rights, there is a duty to notify the union and, upon request, bargain on the § 7106(b)(2) procedures that management will follow in implementing its protected decision as well as on § 7106(b)(3) appropriate arrangements for employees expected to be adversely affected by the decision. Such bargaining is commonly referred to as "impact and implementation," or "I&I" bargaining, which is the commonest variety of midterm bargaining. For examples of  I&I unfair labor practicescases, see 50 FLRA No. 40 (use of covert electronic surveillance), 50 FLRA No. 51(creating a team of unit employees to eliminate a backlog), and 49 FLRA No. 139 (changing an unlawful past practice).

There is, however, no duty to give notice if the agreement already contains provisions dealing with procedures and appropriate arrangements related to the type of change at issue. Suppose, e.g., that the agreement contains an article on details which sets forth the procedures management is to follow when detailing employees and on arrangements for employees adversely affected by details. If management changes the conditions of employment of certain employees by detailing them in accordance with the agreement`s requirements, there is no duty to give notice and bargain. This important exception to the duty to give notice of greater than de minimis changes in conditions of employment is sometimes referred to as the "covered by" doctrine, described above. See, e.g., 47 FLRA No. 114, 48 FLRA No. 10, 48 FLRA No. 89, 49 FLRA No. 130, and 56 FLRA No. 136.

Interest-based Bargaining

A bargaining technique in which the parties start with (or at least focus on) interests rather than proposals; agree on criteria of acceptability that will be used to evaluate alternatives; generate several alternatives that are consistent with their interests, and apply the agreed-upon acceptability criteria to the alternatives so generated in order to arrive at mutually acceptable contract provisions. The success of the technique depends, in large measure, on mutual trust, candor, and a willingness to share information. (Compare with the duty to bargain in good faith.) But even where these are lacking, the technique, with its focus on interests and on developing alternatives, tends to make the parties more flexible and open to alternative solutions and thus increases the likelihood of agreement.

IBB often is contrasted with "position-based" bargaining, in which the parties start with proposals (which implicitly are solutions to known or inferred problems). However, even in position-based bargaining the parties normally are expected to justify their proposals in terms of their interests by identifying the problems to which the proposals are intended as solutions. (There is no case law in which FLRA has held that a refusal to so justify proposals constitutes bad faith bargaining.) Once the interests are on the table, the parties are in a position to evaluate their initial and subsequent proposals--whether generated by group brainstorming (a common method of generating alternatives in IBB) or by more customary methods--in terms of the extent they are likely to effectively and efficiently solve problems without creating additional problems. For an analytical treatment of the process, see Walton and McKersie`s discussion of "integrative" bargaining in A Behavioral Theory of Labor Negotiations. For a popular treatment of the process, see Getting to Yes, by Fisher and Ury.

Midterm Bargaining

Literally, all bargaining that takes place during the life of the contract. See, e.g., 51 FLRA No. 68. Usually contrasted with term bargaining--i.e., with the renegotiation of an expired (or expiring) contract. Midterm bargaining includes I&I bargaining, union-initiated midterm bargaining on new matters; and bargaining pursuant to a reopener clause. It excludes matters that are already "covered by" the term agreement. In NFFE v. Interior, 526 U.S. 86 (1999), the Supreme Court, finding that the statute was ambiguous on the matter of midterm bargaining, held that FLRA's interpretation was entitled to considerable court deference. After the Court's remand, the Authority, in 56 FLRA No. 6, in effect reaffirmed the position it held before the 4th Circuit held that a union had no right to initiate midterm bargaining. That is, FLRA held that "agencies are obligated to bargain during the term of a collective bargaining agreement on negotiable union proposals concerning matters not 'contained in or covered by' the existing agreement unless the union has waived its right to bargain about the subject matter involved."

Permissive Subjects of Bargaining

There are, as the Authority noted in 44 FLRA No. 4, at least three types of proposals dealing with so-called "permissive subjects of bargaining": proposals dealing with (1) matters covered by § 7106(b)(1)--i.e., with staffing patterns, technology, and methods and means of performing the agency`s work, (2) matters that are not conditions of employment of bargaining unit employees (e.g., procedures for filling supervisory positions; employee recreational access to agency launch), and (3) other (such as permitted waivers of statutory rights).

Regarding 7106(b)(1) permissive subjects, it should be noted that although, under the statute, an agency can "elect" not to bargain on a (b)(1) matter, agencies had been directed to bargain on (b)(1) matters by § 2(d) of EO 12871. This requirement was rescinded when EO 12871 was revoked by EO 13203.

Regarding waivers of statutory rights, see 34 FLRA No. 55, where FLRA said that "[m]anagement rights under section 7106(a) cannot be waived or relinquished through collective bargaining."

Regardless of type, once agreement is reached on a permissive subject of bargaining, that agreement cannot be disapproved by the agency head during a § 7114(c) review of the agreement, and is enforceable under the negotiated grievance procedure. See 45 FLRA No. 43 and 53 FLRA No. 60, # X. Such a provisions can, however, be unilaterally terminated when the contract expires. See 14 FLRA No. 89 and 55 FLRA No. 37, where FLRA said: "A party`s right to terminate unilaterally a permissive subject is not contingent on first satisfying a bargaining obligation as to the substance, impact or implementation of the change." Nor is it a ULP to refuse to comply with a FSIP order dealing with a permissive subject of bargaining. See 15 FLRA Nos. 65 and 100 - 104.

Scope of Bargaining

Matters about which the parties can negotiate. See negotiability disputes (external link).

Union-initiated Midterm Bargaining on New Matters

Absent a bargaining waiver, the union has the right to initiate bargaining on matters not "covered by" the CBA. In NFFE v. Interior, 526 U.S. 86 (1999), the Supreme Court, disagreeing with the "absolutist" views of both the D.C. and the 4th Circuits and instead finding that the statute was ambiguous on the matter of midterm bargaining, held that FLRA's interpretation was entitled to considerable court deference. After the Court's remand, the Authority, in 56 FLRA No. 6, in effect reaffirmed the position it held before the 4th Circuit held the union had no right to initiate midterm bargaining.

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