Negotiability Appeals

Negotiability issues arise when there is a question whether a particular proposal is within the duty to bargain. Management must advise the union when it believes that a given proposal is inconsistent with law, rule, or regulation. Prior to doing so, the activity must contact the Headquarters, Army (HQDA) labor relations office. If a union proposal is declared nonnegotiable, the union may appeal this assertion to the Federal Labor Relations Authority (the Authority or FLRA).

Federal law and government-wide regulations limit negotiations. As such, if the union proposal conflicts with a law or government-wide regulation, after consulting with HQDA, the union’s proposal will be declared nonnegotiable.

The same is true for regulations issued by a Federal agency (e.g., DoD) or a primary national subdivision of that agency (i.e., HQDA). However, unions may challenge a claim that a union proposal is not negotiable because it conflicts with the agency regulation. When such challenges are made to the FLRA, the agency must demonstrate that a “compelling need” exists for the regulation. This requires that the agency show the regulation is

  • essential, as opposed to helpful or desirable, to the accomplishment of the agency's mission or the execution of functions of the organization;
  • necessary to insure the maintenance of basic merit principles; or
  • implements a mandate to the agency or its primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature.

A union has 15 days from receipt of the agency's assertion of nonnegotiability in which to file a petition with the FLRA challenging that assertion. The agency should provide a written allegation of nonnegotiability only after receiving a written request from the union and after consultation with HQDA. The union is required to provide the FLRA both the precise language that is in dispute and its interpretation of the meaning of the proposal.

Agency management then has an opportunity to respond to the union petition. Headquarters, Department of the Army or the Department of Defense prepares the agency response. The FLRA thereafter renders a decision. That decision may be to dismiss the union's petition if the proposal is outside the duty to bargain. If the proposal is negotiable, the FLRA will direct the agency to bargain the issue if requested to do so by the union. Should an agency refuse to comply with a bargaining order, the FLRA has authority to seek enforcement in Federal court. The union or the agency may appeal the FLRA negotiability decision with the U.S. Court of Appeals.

Content last reviewed: 11/15/2016-DAH