8C Notice to the Labor Union of a Proposed Remedy

Notice to a labor union is required when a CO proposes a remedy that affects the CBA. When a CO proposes a remedy for a violation that is identified in the course of a compliance evaluation or complaint investigation that requires a change in or otherwise affects a CBA between the contractor and a labor union, the CO must notify the union in writing of the violation and invite the union to participate in the conciliation process. A remedy affecting a CBA is one requiring the modification, deletion or exception to an existing provision, or the addition of a new provision. The following are examples of some remedies that may impact the terms of a current CBA:

• Retroactive seniority;
• Temporary suspension of promotion or transfer provisions, or both; or
• Institution of or modification to a job posting process that applies to a workforce, job group or position covered by the CBA.

In a compliance evaluation, the CO sends this notice to the union if the contractor indicates that it wants to conciliate after receiving the NOV. Otherwise, the CO sends notice to the union when it issues the SCN. In a complaint investigation, the CO sends the notice to the union at the same time he or she sends the NORI to the contractor.

If the proposed remedy affects a CBA, a CO’s written notice to the union will:

• State the violation;
• Describe the portions of the proposed remedy which may affect the CBA; and
• Invite the union to participate in negotiation of the portion(s) of the proposed remedy that may impact the CBA.

The CO sends the notice to the president of the applicable union local by certified mail, return receipt requested; however, email or facsimile are permissible if confirmation of delivery and/or transmission is documented. A copy of the notice is also sent to the contractor.

The Regional Director, or designee, has signature authority for the notice to the union.

FCCM 7C04 and 7C05 provide further background and guidance on union involvement in the conciliation process.394 Although subsection 7C04 deals specifically with retroactive seniority as a remedy affecting a CBA, the description of procedures there are equally applicable to other remedies affecting a CBA. Below are the two typical union responses in the conciliation context:

a. Union Participation in Conciliation. If the union agrees to participate in conciliation, then it may participate on issues affecting the CBA. If conciliation is successful, the CO should ask the president of the union local to sign the CA.395

b. Union Refuses to Participate or Refuses to Sign CA.396 If the union refuses to participate in conciliation, or participates but will not agree to the proposed relief affecting the CBA by signing the CA, the CO will not include the nonadmissions clause in the CA. The nonadmissions clause is in paragraph 3 of the standard CA text, as described in FCCM 8H0l. Under such circumstances, the CO shall amend paragraph 1 of the standard CA text to reference that the union was invited to participate and its refusal to participate or to sign.397