Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 5 Chapter 5 I&I...

Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 5

Chapter 5

I&I Bargaining Disputes


I&I Bargaining Disputes

There are two types of disputes that arise in connection with bargaining on procedures and arrangements (i.e., impact bargaining):

a. Negotiability disputes.

b. Impasses.


Negotiability Disputes

An agency may raise a claim that a proposal is not negotiable (i.e., is outside the duty to bargain) at any stage in the bargaining process.

Although it is generally considered good practice to put forth such claims before the FSIP is engaged in efforts to resolve an impasse through voluntary agreement, negotiability concerns may be raised even then.



If an agency raises a negotiability concern, the FSIP will seek input from both parties as to whether the disputed proposal is within the duty to bargain.

The FSIP will decline jurisdiction if it determines that a valid negotiability dispute exists.



If the FSIP is able to determine, based on existing FLRA case law, that a proposal is within the duty to bargain, it is authorized to rule on the negotiability of a proposal.

If it determines a proposal is negotiable under current FLRA case law, it may accept jurisdiction over the dispute and move ahead with efforts to resolve it. Carswell Air Force Base, 31 FLRA 620.

Check the Toolbox for Carswell Air Force Base.



An interest arbitrator appointed pursuant to FSIP direction is also empowered to determine whether a matter is within the duty to bargain if he/she is able to do so based on current FLRA case law.

An interest arbitrator, like the FSIP, is not authorized to independently assess the negotiability of proposals, however. Social Security Administration, 25 FLRA 238.

Check the Toolbox for Social Security Administration.



A decision rendered by an interest arbitrator who is operating at the direction of the FSIP is subject to agency head review. A decision rendered by an interest arbitrator who is operating at the joint, voluntary request of the parties, however, is not subject to agency head review.

Rather, the parties are restricted to filing an arbitration exception under the rules pertaining to them if they believe the decision is not in compliance with the statute. Bureau of Reclamation, 41 FLRA 3, and INS, 37 FLRA 1346.

Check the Toolbox for Bureau of Reclamation.


Activity — It’s Your Call

Consider this scenario:

A proposal that would require the agency to staff a particular operation with a specific number of employees remains on the table after the union has sought FSIP assistance. The agency does not want to agree to the provision, which it finds overly restrictive. What do you think the agency should do?

a. Inform the FSIP the proposal is non-negotiable.

b. Not challenge the negotiability of the proposal in order to avoid a ULP.



The correct answer is (a). This proposal involves a 7106 (b)(1) matter and is negotiable only at the election of the agency.


Impasse Disputes

The FLRA has defined an impasse as that point in negotiations at which the parties are unable to reach agreement.

Before declaring negotiations to be at impasse, however, the FSIP seeks to ascertain that the parties have bargained in good faith and have exhausted all prospects of reaching voluntary agreement. U.S. Marine Corps, 44 FLRA 543, Davis-Monthan Air Force Base, 42 FLRA 1267, and Customs Service, 16 FLRA 198.

Check the Toolbox for US Marine Corps and Davis-Monthan Air Force Base.


Impasse Disputes

A party is deemed to have “invoked” the services of the FSIP when it has filed a written request for assistance with it, containing:

a. The parties.

b. The issues at impasse.

c. A specific request for assistance. Scott Air Force Base, 33 FLRA 532.

Check the Toolbox for Scott Air Force Base.


Impasse Disputes

In most cases, once a party invokes (i.e., actually seeks) the assistance of the FSIP, the agency is required to maintain the status quo “to the extent consistent with the necessary functioning of the agency.”

The FLRA has defined the phrase “necessary functioning” to mean “necessary for the agency to perform its mission.” In earlier case law, the FLRA used the similar term “overriding exigency” to denote situations that permitted agency action regardless of FSIP acceptance of an impasse. HUD, Kansas City, 23 FLRA 435 and Border Patrol, Laredo, 23 FLRA 90.

Check the Toolbox for HUD, Kansas City and Border Patrol, Laredo.


Impasse Disputes

An agency is also entitled to make a change, despite an impasse having been referred to the FSIP, where the agency is required by law to make the change. Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466.

Check the Toolbox for Alcohol, Tobacco and Firearms.


Impasse Disputes

An agency will not be found culpable of a ULP if it makes a change after referral to the FSIP when no proposals within the duty to bargain are at issue.

In making a change based upon its conclusion that no negotiable proposals remain at issue, however, the agency acts “at its own peril.” That is, it will be found culpable if any of the proposals at issue are ruled to be within the duty to bargain. Philadelphia Naval Shipyard, 51 FLRA 451 and U.S. Customs Service, 59 FLRA 703.

Check the Toolbox for Philadelphia Naval Shipyard, and Customs Service, 59 FLRA 703.




Upon the agency’s declaration of an impasse in bargaining and stating that it intends to implement its last offer in seven days, the union informs it that it intends to contact the FSIP. Absent any further notice from the FSIP or the union, seven days later the agency:

a. Must maintain the status quo.

b. May implement the change as planned.



The correct answer is (b). The union has apparently not invoked the services of the FSIP after sufficient notice.




The FSIP has advised the parties to obtain the assistance of an independent mediator-arbitrator to resolve an impasse referred to it. The mediator-arbitrator’s final award will:

a. Be subject to agency head review for compliance with law and governmentwide regulations.

b. Be subject only to the filing of an exception to an arbitration award.

c. Be subject to no review.



The correct answer is (a). Because the parties were directed to an interest arbitrator by the FSIP, the award is subject to agency head review.


Chapter 5 Summary• Bargaining disputes generally involve either negotiability

concerns or impasses.

• A party may raise a negotiability issue at any stage of the impact bargaining process.

• The FSIP and interest arbitrators are empowered to apply negotiability determinations of the FLRA contained in current case law.


Chapter 5 Summary

• The FSIP and interest arbitrators are not empowered to make independent negotiability assessments.

• The panel will decline jurisdiction if it determines that a valid negotiability dispute exists.

• If the panel determines a proposal is negotiable under current FLRA case law, it may accept jurisdiction over the dispute and move ahead with efforts to resolve it.


Chapter 5 Summary

• The FLRA has defined an impasse as that point in negotiations at which the parties are unable to reach agreement after having bargained in good faith and exhausted chances of voluntary agreement.

• A party must specifically request FSIP assistance in writing to “invoke” its services.

• In most cases, the agency must maintain the status quo after a timely invocation of the services of the FSIP.


Chapter 5 Summary

• An agency may make a change, regardless of FSIP invocation, if required by the “necessary functioning” of the agency or compliance with law.

• An agency may also make changes if no negotiable proposals remain at issue, though it acts at its own peril in doing so.


Contributing Authors & Recommended Resources

Contributing Author:Dennis K. Reischl - Curriculum Developer

Recommended Resources:

cyberFEDS®

Smart Answers for Federal Managers Web site.

Meeting the Supervisory Challenges of Federal Employee and Labor RelationsEdited by Herb Levine, LRP Publications, 2005.


Chapter 5 Assessment

Click on Assessments in the cyberFEDS® eLearning

navigation bar above to take the assessment.

Please note: When you successfully complete the final assessment, you will no longer have access

to this course. However, you will be able to print a certificate of completion.

Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 5 Chapter 5 I&I...

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