Collective Bargaining
What
YOU need to know!
AFGE
PROUD TO MAKE AMERICA WORK
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES • ARCM
TABLE OF CONTENTS
•
Statutory Bargaining Rights
Management Rights
Representation Rights and Duties
Federal Mediation a Conciliation Services
Negotiation Impasses / FSIP
Executive Order 13522
Unfair Labor Practices
Conditions of Employment
You the Negotiator
Negotiations / Power
Negotiations / Information
Negotiations / Time
The Golden Rules of Negotiations
The Art EL Craft of Bargaining
A Checklist of Negotiating Goals
When Can We Negotiate
Identifying Workplace Changes
Negotiations Strategy and Interest
Good Faith Bargaining
Ground Rules
Triggers for Bargaining
When / How You Might See a Change in Working Conditions
Eight Steps to Bargaining
Impact and Implementation Bargaining
Appropriate Arrangements
The Mid-Term Management Initiated Bargaining Process
Drafting Negotiable Proposals
Information
Union Must Show Particularized Need
Drafting Contract Language
Common Management Responses to Proposals a Union Request to Bargain
Covered By Doctrine
Negotiability
Negotiability Procedures
Negotiability Strategy
Negotiability, A Quick Peek
Agency Head Review
Dispute Resolution
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Statutory Bargaining Rights
5 U.S.C. § 7102: Grants employees the right "to engage in collective bargaining with
respect to conditions of employment through representatives chosen by employees
under this chapter."
5 U.S.C. S 7103 (a) (14): Defines conditions of employment as "personnel policies,
practices and matters, whether established by rule, regulation, or otherwise,
affecting working conditions, except that such term does not include policies,
practices, and matters (A)
relating to political activities prohibited under subchapter III of chapter
73 of this title;
(B)
relating to the classification of any position; or
(C)
to the extent such matters are specifically provided for by Federal
statute."
Restrictions on the substantive right to negotiate
White the above statutory language provides a very broad definition of what is
substantively negotiable in the federal sector, Congress felt it necessary to restrain
our right to bargain. These subjects that Congress exempted from substantive
negotiations are referred to as Management Rights and are outlined in S 7106 (a). The
agency has no obligation to bargain Management Rights.
5 U.S.C. S 7106 (a): The agency has the authority (i.e., Management Rights are
defined as the following rights):
(1)
"to determine the mission, budget, organization, number of employees
and internal security practices of the agency; and
(2)
in accordance with applicable laws(A)
to hire, assign, direct, layoff and retain employees in the agency,
or to suspend, remove, reduce in grade or pay, or take other
disciplinary action against such employees;
(13)
to assign work, to make determinations with respect to
contracting out, to determine the personnel by which the agency
operations shall be conducted;
(C)
with respect to filling positions, to make selections for
appointments fromamong properly ranked and certified candidates for
i.
promotion; or
ii.
any other appropriate source; and
(D)
to take whatever actions may be necessary to carry out the
agency mission during emergencies."
5 U.S.C. SS 7117 (a), (b): The taw also prohibits us from substantively negotiating in
conflict with government-wide regulations or regulations below the level of
government-wide (e.g., agency-wide) for which there is a compelling need.
Permissive Subjects of Bargaining
Subsection (b) of the statute outlines those subjects that the agency may, at its
option, substantively bargain with the union. These subjects are referred to as
Permissive Subjects of Bargaining.
5 U.S.C. S 7106 (b): "Nothing in this subsection shall preclude an agency and any
labor organization from negotiating (1)
at the election of the agency, on the numbers, types, and grades of
employees or positions assigned to any organizational subdivision, work
project, or tour of duty, or on the technology, methods, and means of
performing work;
(2)
procedures which management officials of the agency will observe in
exercising any authority under this section; or
(3)
appropriate arrangements for employees adversely affected by the
exercise of any authority under this section by management officials."
Whether a proposed change is substantively negotiable (we bargain the actual
decision and what it will look like) depends on whether it involves a management
right. Remember that Congress exempted many management decisions from the
realm of obligatory bargaining. However, the agency must always bargain the impact
and implementation of a decision that involves a substantive right.
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5 USC To6 (a)
(a)
Subject to subsection (b) of this section, nothing in this chapter shall affect the
authority of any management official of any agency—
(1)
to determine the mission, budget, organization, number of employees,
and internal security practices of the agency; and
(2)
in accordance with applicable laws—
(A)
to hire, assign, direct, layoff, and retain employees in the agency,
or to suspend, remove, reduce in grade or pay, or take other
disciplinary action against such employees;
(B)
to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted;
(C)
with respect to filing positions, to make selections for
appointments from-
(D)
(i)
among properly ranked and certified candidates for
promotion; or
(ii)
any other appropriate source; and
to take whatever actions may be necessary to carry out the
agency mission during emergencies.
5 USC 7106 (6)
[Impact Et Implementation]
(b)
Nothing in this section shall preclude any agency and any labor organization
from negotiating—
(1) at the election of the agency, on the numbers, types, and grades of
employees or positions assigned to any organizational subdivision,
work project, or tour of duty, or on the technology, methods, and
means of performing work;
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(2)
Procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3)
Appropriate arrangements for employees adversely
affected by the exercise of any authority under this section by
such management officials.
5 UNITED STATES CODE CHAPTER 71
§ 7114. Representation rights and duties
(a)(1) A labor organization which has been accorded exclusive recognition is the
exclusive representative of the employees in the unit it represents and is entitled to
act for, and negotiate collective bargaining agreements covering, all employees in the
unit. An exclusive representative is responsible for representing the interests of all
employees in the unit it represents without discrimination and without regard to labor
organization membership.
(b) The duty of an agency and an exclusive representative to negotiate in good faith
under subsection (a) of this section shall include the obligation (1) to approach the negotiations with a sincere resolve to reach a collective
bargaining agreement;
(2) to be represented at the negotiations by duly authorized representatives
prepared to discuss and negotiate on any condition of employment;
(3) to meet at reasonable times and convenient places as frequently as may be
necessary, and to avoid unnecessary delays;
(4) in the case of an agency to furnish to the exclusive representative
involved, or its authorized representative, upon request and, to the extent not
prohibited by law, data (A) which is normally maintained by the agency in the regular course of
business;
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(B) which is reasonably available and necessary for full and proper
discussion, understanding, and negotiation of subjects within the scope
of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or training
provided for management officials or supervisors, relating to collective
bargaining; and
(5) if agreement is reached, to execute on the request of any party to the
negotiation a written document embodying the agreed terms, and to take such
steps as are necessary to implement such agreement.
(c)(1) An agreement between any agency and an exclusive representative shall be
subject to approval by the head of the agency.
(2) The head of the agency shall approve the agreement within 30 days from the
date the agreement is executed if the agreement is in accordance with the
provisions of this chapter and any other applicable law, rule, or regulation (unless the
agency has granted an exception to the provision).
(3) If the head of the agency does not approve or disapprove the agreement within
the 30-day period, the agreement shall take effect and shall be binding on the agency
and the exclusive representative subject to the provisions of this chapter and any
other applicable law, rule, or regulation.
(4) A local agreement subject to a national or other controlling agreement at a higher
level shall be approved under the procedures of the controlling agreement or, if none,
under regulations prescribed by the agency.
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FMCS
The statute (5 USC 7119) gives the Federal Mediation and Conciliation Service a role in the
bargaining process; that is to assist parties "in the resolution of negotiation impasses."
(a)
The Federal Mediation and Conciliation Service shalt provide set -vices and assistance to
agencies and exclusive representatives in the resolution of negotiation impasses. The
Service shall determine under what circumstances and in what manner it shall provide
services and assistance.
(b)
If voluntary arrangements, including the services of the Federal Mediation and
Conciliation Service or any other third-party mediation, fait to resolve a negotiation
impasse—
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either party may request the Federal Service Impasses Panel
(1)
to consider the matter, or
the parties may agree to adopt a procedure for binding arbitration
(2)
of the negotiation impasse, but only if the procedure is approved
by the Panel.
The FLRA also has affirmed that the parties must submit to mediation before FMCS or some
other third-party neutral before FSIP can act.
"Of course, statutory and regulatory requirements concerning the resolution of impasses must
be observed. Those requirements include the use of FMCS or other third-party mediation
services to resolve negotiation impasses. See 5 U.S.C. 7119(a) and (b); 5 C.F.R. 2470.2(e),
2471.1. Consistent with these requirements, our decision here should not be read in any way
to mean that an agency is free to implement a change in working conditions simply because
the parties' dispute is pending before FMCS." Order Denying a Request for a General Ruling,
31 FLRA 1294 (1988).
5 UNITED STATES CODE CHAPTER 71
S 7119. Negotiation impasses; Federal Service Impasses Panel
(a)
The Federal Mediation and Conciliation Service shall provide services and
assistance to agencies and exclusive representatives in the resolution of
negotiation impasses. The Service shall determine under what circumstances
and in what manner it shall provide services and assistance.
(b)
If voluntary arrangements, including the services of the Federal Mediation and
Conciliation Service or any other third-party mediation, fail to resolve a
negotiation impasse (1)
either party may request the Federal Service Impasses Panel to consider
the matter, or
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(2)
the parties may agree to adopt a procedure for binding arbitration of the
negotiation impasse, but only if the procedure is approved by the Panel.
(c)(1) The Federal Service Impasses Panel is an entity within the Authority, the
function of which is to provide assistance in resolving negotiation impasses
between agencies and exclusive representatives.
(2)
The Panel shalt be composed of a Chairman and at least six other
members, who shall be appointed by the President, solely on the basis of
fitness to perform the duties and functions involved, from among
individuals who are familiar with Government operations and
knowledgeable in labor-management relations.
(3)
Of the original members of the Panel, 2 members shall be appointed for
a term of 1 year, 2 members shall be appointed for a term of 3 years,
and the Chairman and the remaining members shall be appointed for a
term of 5 years. Thereafter each member shall be appointed for a term
of 5 years, except that an individual chosen to fill a vacancy shall be
appointed for the unexpired term of the member replaced. Any member
of the Panel may be removed by the President.
(4)
The Panel may appoint an Executive Director and any other individuals it
may from time to time find necessary for the proper performance of its
duties. Each member of the Panel who is not an employee (as defined in
section 2105 of this title) is entitled to pay at a rate equal to the daily
equivalent of the maximum annual rate of basic pay then currently paid
under the General Schedule for each day he is engaged in the
performance of official business of the Panel, including travel time, and
is entitled to travel expenses as provided under section 5703 of this
title.
(5)(A) The Panel or its designee shall promptly investigate any impasse
presented to it under subsection (b) of this section. The Panel shall
consider the impasse and shall either (i)
Recommend to the parties procedures for the resolution of the
impasse; or
(ii)
Assist the parties in resolving the impasse through whatever
methods and procedures, including fact finding and
recommendations, it may consider appropriate to accomplish the
purpose of this section.
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(B)
(C)
If the parties do not arrive at a settlement after assistance by the Panel
under subparagraph (A) of this paragraph, the Panel may (i)
Hold hearings;
(ii)
administer oaths, take the testimony or deposition of any
person under oath, and issue subpoenas as provided in
section 7132 of this title; and
(iii)
Take whatever action is necessary and not inconsistent
with this chapter to resolve the impasse.
Notice of any final action of the Panel under this section shall be
promptly served upon the parties, and the action shall be binding on
such parties during the term of the agreement, unless the parties agree
otherwise.
Executive Order 13522 of December 9, 2009
Creating Labor-Management Forums to Improve Delivery of Government Services
By the authority vested in me as President by the Constitution and the laws of the United States
of America, and in order to establish a cooperative and productive form of labor-management
relations throughout the executive branch, it is hereby ordered as follows:
Sec. 3. Implementation of Labor-Management Forums Throughout the Executive Branch.
The head of each executive department or agency that is subject to the provisions of
(a)
the Federal Service Labor-Management Relations Act (5 U.S.C. 7101 et seq.), or any
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other authority permitting employees of such department or agency to select an
exclusive representative shall, to the extent permitted by law:
(i)
establish department- or agency-level labor-management forums by
creating labor-management committees or councils at the levels of
recognition and other appropriate levels agreed to by labor and
management, or adapting existing councils or committees if such groups
exist, to help identify problems and propose solutions to better serve
the public and agency missions;
(ii)
allow employees and their union representatives to have pre-decisional
involvement in all workplace matters to the fullest extent practicable,
without regard to whether those matters are negotiable subjects of
bargaining under 5 U.S.C. 7106; provide adequate information on such
matters expeditiously to union representatives where not prohibited by
taw; and make a good-faith attempt to resolve issues concerning
proposed changes in conditions of employment, including those involving
the subjects set forth in 5 U.S.C. 7106(b)(1), through discussions
in its labor-management forums, and
(iii)
evaluate and document, in consultation with union representatives and
consistent with the purposes of this order and any further guidance
provided by the Council, changes in employee satisfaction, manager
satisfaction, and organizational performance resulting from the labormanagement forums.
Sec. 5 General Provisions.
(a)
Nothing in this order shall abrogate any collective bargaining agreements in effect on
the date of this order.
(b)
Nothing in this order shall be construed to limit, preclude, or prohibit any head of an
executive department or agency from electing to negotiate over any or all of the
subjects set forth in 5 U.S.C. 7106(b)(1) in any negotiation.
(c)
Nothing in this order shall be construed to impair or otherwise affect:
authority granted by law to an executive department, agency, or the
head thereof; or
(ii)
functions of the Director of OMB relating to budgetary, administrative,
or legislative proposals.
(d)
This order shall be implemented consistent with applicable taw and subject to the
availability of appropriations.
(e)
This order is intended only to improve the internal management of the executive
branch and is not intended to, and does not, create any right to administrative or
judicial review, or any other right or benefit, substantive or procedural, enforceable
at law or in equity by any party against the United States, its departments, agencies,
or entities, its officers, employees, or agents, or any other person.
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5 UNITED STATES CODE CHAPTER 71
Unfair labor practices
7116
(a)
For the purpose of this chapter, it shall be an unfair labor practice for an agency—
(1)
to interfere with, restrain, or coerce any employee in the exercise by the
employee of any right under this chapter;
(2)
to encourage or discourage membership in any labor organization by
discrimination in connection with hiring, tenure, promotion, or other conditions
of employment;
(3)
to sponsor, control, or otherwise assist any labor organization, other than to
furnish, upon request, customary and routine services and facilities if the
services and facilities are also furnished on an impartial basis to other labor
organizations having equivalent status;
(4)
to discipline or otherwise discriminate against an employee because the
employee has filed a complaint, affidavit, or petition, or has given any
information or testimony under this chapter;
(5)
to refuse to consult or negotiate in good faith with a labor organization as
required by this chapter;
(6)
to fail or refuse to cooperate in impasse procedures and impasse decisions as
required by this chapter;
(7)
to enforce any rule or regulation (other than a rule or regulation implementing
section 2302 of this title) which is in conflict with any applicable collective
bargaining agreement if the agreement was in effect before the date the rule
or regulation was prescribed; or
(8)
to otherwise fail or refuse to comply with any provision of this chapter.
(b)
For the purpose of this chapter, it shall be an unfair labor practice for a
labor organization—
(1)
to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
(2)
to cause or attempt to cause an agency to discriminate against
any employee in the exercise by the employee of any right under
this chapter;
(3)
to coerce, discipline, fine, or attempt to coerce a member of
the tabor organization as punishment, reprisal, or for the
purpose of hindering or impeding the members work
performance or productivity as an employee or the discharge of
the members duties as an employee;
(4)
to discriminate against an employee with regard to the terms or
conditions of membership in the tabor organization on the basis
of race, color, creed, national origin, sex, age, preferential or
nonpreferential civil service status, political affiliation, marital
status, or handicapping condition;
(5)
to refuse to consult or negotiate in good faith with an agency as
required by this chapter;
(6)
to fail or refuse to cooperate in impasse procedures and impasse
decisions as required by this chapter;
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(7)
(8)
(c)
(A)
to call, or participate in, a strike, work stoppage, or
slowdown, or picketing of an agency in a labormanagement dispute if such picketing interferes with an
agency's operations, or
(8)
to condone any activity described in subparagraph (A) of
this paragraph by failing to take action to prevent or stop
such activity; or
to otherwise fail or refuse to comply with any provision of this
chapter. Nothing in paragraph (7) of this subsection shall result
in any informational picketing which does not interfere with an
agency's operations being considered as an unfair labor practice.
For the purpose of this chapter it shall be an unfair labor practice for an exclusive
representative except for failure—
(1)
to meet reasonable occupational standards uniformly required for admission, or
(2)
to tender dues uniformly required as a condition of acquiring and retaining
membership. This subsection does not preclude any labor organization from
enforcing discipline in accordance with procedures under its constitution or
bylaws to the extent consistent with the provisions of this chapter.
(d)
Issues which can properly be raised under an appeals procedure may not be raised as
unfair labor practices prohibited under this section. Except for matters wherein, under
section 7121(e) and (f) of this title, an employee has an option of using the negotiated
grievance procedure or an appeals procedure, issues which can be raised under a
grievance procedure may, in the discretion of the aggrieved party, be raised under the
grievance procedure or as an unfair labor practice under this section, but not under
both procedures.
(e)
The expression of any personal view, argument, opinion or the making of any
statement which—
(1)
publicizes the fact of a representational election and encourages employees to
exercise their right to vote in such election.
(2)
corrects the record with respect to any false or misleading statement made by
any person, or
(3)
informs employees of the Governments policy relating to labor-management
relations and representation, shall not, if the expression contains no threat of
reprisal or force or promise of benefit or was not made under coercive
conditions,
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(A)
constitute an unfair labor practice under any provision of this chapter,
Or
(B)
I
constitute grounds for the setting aside of any election conducted under
any provisions of this chapter.
Conditions of Employment
Conditions of employment is the term used to refer to the physical, environmental
and operational features affecting employees' daily work lives.
Conditions of employment encompass "working conditions" which can range from the
size of an employee's work cubicle to the system for calculating employee incentive
awards. Other conditions of employment take the form of "fringe benefits."
Conditions of employment can be established through agency policies, collective
bargaining agreements or unwritten workplace practices that develop over time.
Matters "specifically provided for" in federal law fall outside the definition of
conditions of employment and are therefore not subject to bargaining. This means
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I
that some of the subjects of the greatest interest to federal employees--such as
wages or health benefits for GS employees--are not bargainable "conditions
employment."
•
Conditions of employment means personnel policies, practices, and matters,
whether established by rule, regulation or otherwise, affecting working
conditions.
5 USC 7103(a)(14)
"conditions of employment" means personnel policies, practices, and matters,
whether established by rule, regulation, or otherwise, affecting working
conditions, except that such term does not include policies, practices, and
matters (A) relating to political activities prohibited under subchapter III of
chapter 73 of this title;
(B) relating to the classification of any position; or
(C) to the extent such matters are specifically provided for by Federal
statute;
•
Conditions of employment do not include matters: a) relating to political
activities prohibited by statute, b) relating to the classification of any position,
or c) to the extent they are specifically provided for by federal statute. 5 USC
7103(a)(14)(A)(C).
> The agency did not change conditions of employment when it changed the
status of two employees from regular part time to intermittent. The agency
had already bargained with the union over procedures for taking adverse
actions. Because it adhered to those negotiated procedures, there was no
change in personnel policies, practices or matters affecting working conditions.
> The agency did not initiate a change in conditions of employment when the
employee requested reassignment and as a result lost her right to use a
government vehicle.
> Although the employee's working conditions changed when she was no longer
privileged to use a government vehicle, conditions of employment did not
change. The employee was voluntarily reassigned to a position not covered by
the policy allowing employees to use government vehicles. The policy itself is
the condition of employment and it never changed. Working conditions and
conditions of employment are related, but they are not the same thing.
✓ Conditions of employment did not change where the determination of work
assignments was made by a non-bargaining unit employee rather than a crew
chief or shop chief. The established practice of modifying work assignments in
response to mission and workload fluctuations did not change.
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Where an agency had a practice of assigning and reassigning employees to
different tours of duty in response to workload requirements, assigning
employees to an established, though seldom used, tour of duty did not change
their conditions of employment.
Conditions of employment did not change where the agency decided to bring
prisoners apprehended at one station to a different station for processing.
Although there was some increase in processing workload at the receiving
station, the requirement to process prisoners and the procedures for doing so
remained the same. There was no showing that employees were required to
process prisoners more expeditiously or with greater frequency.
•
FLRA precedent states, when a union receives adequate notice that the agency
intends to change a condition of employment and the union has not submitted
a bargaining request within contractual time limits, the agency is free to
implement the change without bargaining. An agency provides adequate
disclosure when it notifies the union of the scope and nature of:
1) what the change in condition of employment will be;
2) the certainty of the change; and
3) when the change will take place.
)0 Where a union is the exclusive representative of employees of a federal
agency, the Federal Service Labor-Management Relations Statute imposes upon
the agency a general obligation to negotiate in good faith over the conditions
of employment of the represented employees. 5 USC 7114, 5 USC 7117.
A notice of a change in conditions of employment must be adequate, i.e.
sufficiently specific and definitive to provide the union with a reasonable
opportunity to request bargaining. To be adequate, it must advise the union of
the planned timing of the change.
•
A union is considered to have consented to proposed changes in conditions of
employment when it faits to timely invoke the services of the FSIP. There is no
basis to distinguish between contract terms imposed by the FSIP and those
implemented by an agency after the union is given the opportunity to seek FSIP
assistance and fails to do so. The FLRA concluded that as a matter of public
policy, contract terms implemented in this manner should be treated as
binding agreements.
•
Policies, practices and matters relating to the classification of any position are
removed from the definition of conditions of employment, and by extension
17
from the duty to bargain, by virtue of 5 USC 7103(a)(14)(B). The FLRA
consistently has held that a proposal that assigns a specific grade level to a
position concerns a classification matter under 5 USC 7103(a)(14)(B).
•
The scope of the agency's obligation to bargain is limited. The agency need not
negotiate over a proposal that "seek[s] to regulate the conditions of
employment of members of other bargaining units and supervisory personnel."
t
An agency is fully empowered to bargain over, and to choose to agree to, a
contract proposal that directly implicates the working conditions of its
supervisors because such proposals address permissive subjects of bargaining.
•
To determine whether a proposal concerns a condition of employment, the
FLRA applies the two-prong test explained in Antilles Consolidated Education
Association, 92 FLRR 1-1377. 1)
1)Does the proposal pertain to bargaining unit employees? And
2) What is the nature and extent of the effect of the proposal on the
working conditions of the employees? More specifically, is there a nexus
between the proposal and the work situation or employment relationship
of bargaining unit employees?
)- Where a law is general in nature it will not remove a subject or topic from the
definition of conditions of employment.
'r If an agency contends that a matter is not a condition of employment because
it is contained in law, it must
a) identify the statute involved, and
b) explain why the statute removes the matter from the obligation to
bargain.
▪ If an agency has, either by law or regulation, unrestricted discretion to
prescribe a matter, it is not open to negotiation.
If a statute generally establishes a matter but leaves elements of it to agency
discretion, those matters may be negotiable.
•
Not every event, policy or practice qualifies as a condition of employment. To
qualify, there must be a direct link or nexus to the "work situation" or
"employment relationship."
The mere fact that a matter has been allowed to occur repeatedly over an
extended period of time does not render it a condition of employment.
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y Although a workplace concern may raise societal, ethical or environmental
concerns, that in itself does not qualify it as a condition of employment.
✓ The FLRA noted that a union proposal directed at the interests of the public
does not pertain to conditions of employment, even where the union or
bargaining unit employees are indirectly involved.
The mere fact that the proposal has some "fallout" on non-unit employees does
not disqualify the subject from bargaining, though a proposal directed primarily
at non-unit employees does not involve conditions of employment.
•
The ability of employees and dependents to use the agency's land for off-duty
hunting and fishing is not a condition of employment because they have no
relationship to the employees' effective functioning as fire fighters.
•
The factors an agency considers in taking disciplinary actions against
supervisors and managers may be of interest to bargaining unit employees, but
does not qualify as a condition of employment because it does not impact upon
them.
•
The forms, checklists and procedures used by supervisors to help them identify
potential problem employees do not affect the conditions of employment of
unit employees.
•
The physical design and layout of employee workspace involves conditions of
employment
).> The design and layout of an on-site physical fitness facility affects the working
conditions of bargaining unit employees where management encourages
physical fitness and employees are allowed to use the center during working
hours
> Issues surrounding employees physical work environment, such as a locker or
other secure space to store personal belongings, usually qualify as conditions of
employment.
ir
Conditions of employment may be established through unwritten "past
practices."
'e A "company picnic" held each year during work time was a condition of
employment.
19
•r.
The AU found there was a past practice of granting administrative leave for an
annual athletic competition and the Agency committed a ULP when it
unilaterally changed the practice.
▪ The provision of bottled drinking water for employees for an extended period
of time became a condition of employment through past practice.
•
The prices charged in VA cafeterias affected the conditions of employment of
bargaining unit employees and were therefore subject to bargaining.
NEGOTIATIONS
You the Negotiator
There are basically 2 types of negotiating philosophies:
(1)
Win-Lose - the negotiator attempts to triumph over management. This also
may lead to future retaliations by the loser.
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(2)
Win-Win - the negotiator attempts to reach an agreement that satisfies her
and the other side. This often leads to successful and long-term relationships.
They are much harder than Win-lose negotiations, but it is worth the effort.
Creativity is a key to Win-Win negotiations. If you are a creative negotiator, you will
keep inventing options for both sides to consider.
Desirable traits to have as a negotiator are:
(1) Patience
(2) Persistence
(3) Endurance
(4) Courage
(5) Skepticism
(6) Organization
(7) Willingness to take risk
(8) High aspiration level
(9) Constantly testing assumptions
(10) Good business sense
(11) Honesty
(12) Charm
(13) Optimism
Undesirable traits to have are:
(1) Fear of conflict
(2) Fear of failure
(3) Need to be liked
(4) Impatience
(5) Low tolerance for ambiguity
(6) Weak interpersonal skills
(7) Close mindedness
(8) Belligerence
Almost anybody can be a good negotiator. Bargaining is just good, common sense.
Good negotiators are not manipulators; they are people who can resolve conflicts in
ways that meet the needs of all sides. Sometimes negotiating is a embarrassing,
painful process but the discomfort you feel about asking for something you want is
nothing when compared to the agony of a lifetime of getting less than what you
deserve.
Always remember - the worst that can happen is that the other side will say "no".
21
#
74‘.
/so
r
"Careful. She's a tough negotiator. She can get a 3-year-old
out of a grocery store without buying a single piece of candy."
22
IF
Power
Power is a tool necessary in order to have successful negotiations. Power is your
leverage and its a means to an end. Whoever has the power/leverage is the side that
23
controls the debate and ultimately gets the resolution that comes closes to their
needs.
Power is not a goal or object. It is not the end result of your efforts or struggle. It is a
means to an end. It is a transport to a destination. Therefore you must work to
acquire power in order to have the influence in negotiations that you need in order to
be successful.
POWER IS THE CAPACITY TO GET THINGS DONE.
TO EXERCISE CONTROL OVER PEOPLE, EVENTS AND
SITUATIONS. POWER ISN'T GOOD OR BAD.
IT ISN'T MORAL OR IMMORAL.
IT ISN'T ETHICAL OR UNETHICAL.
ITS NEUTRAL!
Power is based upon perception. Believe firmly that you have power, and you will
convey that self-confident perception to others. You determine how the other side
sees you and react to you.
Remember the Wizard in the Wizard of Oz? He had no power. He merely conveyed
that he had power and the perception was embraced by others. The others assumed
he had power and acted accordingly. TEST YOUR ASSUMPTIONS!
The following 14 dynamics of power should assist you in resolving disputes and being
successful in negotiations.
(1)
The power of competition - Whenever you create competition for something,
whatever you have moves up in value. Never enter negotiations without
options.
(2)
The power of legitimacy - People at conditioned to regard anything printed
with awe. Printed words, documents and signs carry authority. Most people
tend not to question them. LEGITIMACY CAN BE QUESTIONED AND
CHALLENGED! Use the power of legitimacy when its advantageous for you to
do so and challenge that power when it's advantageous to do so.
(3)
The power of risk taking - You must be willing to take risk while negotiating.
Risking taking involves mixing courage with common sense. (With management,
common sense isn't common) If you don't take calculated chances, the other
side will manipulate you If you feel you must absolutely have something you
put yourself in a position where the other side can manipulate you.
24
INTELLEGENT RISK TAKING INVOLVES A KNOWLEDGE OF THE "ODDS" (are the
potential benefits worth the possible cost of failure?) PLUS A PHILOSOPHICAL
WILLINGNESS TO SHRUG YOUR SHOULDERS AND ABSORB A MANAGEABLE LOSS
WITHOUT WHINING. (That's the way the ball bounces attitude) A RISK YOU CAN
AFFORD WITHOUT BEING UPTIGHT ABOUT ADVERSE CONSEQUENCES.
When so much is at stake when you take a risk, consider sharing that risk so
that its on others shoulders as well as your own. By doing so, you spread the
risk and defuse and diffuse the risk. Be rational, not impulsive. Never take a
risk out of pride, impatience or a desire to get it over with.
(4)
The power of commitment - Persuade others to help. Get them involved in the
planning and decision-making and they will shoulder part of the burden. People
support that which they help to create. The ability to gain the commitment of
others magnifies the impact of your words and gives you power. Involvement
begets commitment. Commitment begets power.
( 5)
The power of expertise - Present yourself as having expertise. Establish your
background and credentials early in the confrontation. Whenever possible,
actually have the savvy others assume you have. Don't be pretentious. When
"the Expert" from the other side confronts you, don't be over impressed. Train
yourself to occasionally say, "I don't understand. You lost me minutes ago" Or
"Can you explain that in layman's terms?" Keep a dash of irreverence with a
dash of innocence and combine it with polite persistence and the asking of
questions. This will change the attitude of the so-called expert.
(6)
The power of the knowledge of needs - In all negotiations, there are 2 things
being bargained for.
(a) The specific issues and demands which are stated openly, and
(b) The real needs of the other side, which is rarely verbalized.
If you can establish a reasonable guess about what the other side need's you can
predict with remarkable certainty what will happen in any interaction. To be
successful all you have to do is determine the needs and then fulfill them.
(Creatively) If it's worth your time, than it's worth preparing yourself to get a good
resolution.
( 7)
The power of investment - if you have something difficult to negotiate - an
emotional issue, or a concrete item that can be stated numerically, such as
cost, price, etc., deal with it at the end of negotiation after the other side has
made a hefty expenditure of energy and a substantial time investment. If it
surfaces at the beginning of the negotiations, acknowledge it, chat about it but
25
put it off till later. Return to it after the other side has invested a lot of time
with you.
(8)
The power of rewarding or punishing - If you are aware of the other sides
perceptions and needs, and if you know they think you have power over them,
you can control their behavior.
Management will not negotiate with you in any significant way unless they're
convinced that you can and might help them - or can and might hurt them.
In an adversarial relationship, if the other side believes that you might help or
hurt them do not defuse that perception of power unless you get something in
return, such as a concession or repositioning on your part that truly benefits
you or the relationship. Let the other side wonder until you have received what
you're shooting for. Don't eliminate options and reduce the other sides stress
unless you receive a tradeoff.
(9)
The power of identification - You will maximize your negotiability to you get
others to identify with you. You get others to identify with you by acting
professional and reasonable and in turn you gain cooperation, loyalty and
respect.
Try to convey understanding and empathy. Speak to the other side's needs,
hopes, dreams and aspirations. Approach them on a human level with the hope
that you can help them solve their problem.
(10)
The power of morality - Deal with the other side based on their frame of
reference and not yours. What is their foundation and their beliefs? If it's their
religion to hit their heads against a wall 25 times every morning in order to feel
holy, then speak from that frame of reference. Not yours. Shape your dialogue
to reflect their understanding and values and morals.
(11)
The power of precedent - Don't act as though your limited experience
represents universal truths. Force yourself to go outside your experience by
testing assumptions. Don't lock yourself into time worn ways of doing things.
(I've always done it this way before, or it has always worked like this before.)
(12)
The power of persistence - Always be persistent when negotiating. Wear the
other side down. Outlast them!
(13)
The power of persuasive capacity - to persuade you must do 3 things:
Make sure the other side understand what you're saying and put reasons
(a)
in analogies that relate to your experiences.
26
(b)
Evidence must be overwhelming that it can't be disputed,
(c)
The other side believing you must meet your existing needs and desires.
If you want to persuade the other side, show the immediate relevance and value of
what you're saying in terms of meeting their needs and desires.
(14) The power of attitude - Try to regard all encounters and situations as a game,
as the world of illusion. Pull back a little and enjoy it all. Do your best but
don't fall apart if everything doesn't pan out the way you'd like it. Things are
seldom what they seem. Train yourself to say, "If everything goes wrong, will
my life end?" If the answer is no, teach yourself to say, "big deal', "who cares',
"so what?" Develop the attitude of caring but not caring that much. If you
develop such an attitude, 3 things will follow:
(a)
You'll have considerably more energy; because you'll always have
energy to do the things you enjoy doing.
(b)
You'll be under reduced stress, and
(c)
You'll get better results; because your attitude will convey your
feeling of power and mastery of your life and current situation.
Negotiations
Information
When negotiating it is to your advantage to have as much information as possible
about the person and/or organization you're bargaining with. In fact, information is
the most powerful asset any negotiator can have, The negotiator, who focuses on
27
gathering information before deciding, makes few mistakes and is always able to
exploit the weakness of the other side. Why? Because you are rarely fooled.
Information can be divided into 3 general categories:
(A)
Information about the other negotiator
(B)
Information about your position, and
(C)
Information about management's perceptions and position.
INFORMATION ABOUT THE OTHER NEGOTIATOR (MANAGEMENT)
(A)
When dealing with management whether a first line supervisor, manager or director,
attempt to discover their status inside the agency. Does he/she have the authority to
negotiate? Can he cut a deal alone? Does someone else have to approve it? How has he
negotiated in previous negotiations? What is his pattern or method?
PLEASE KEEP IN MIND THAT CONFLICT RESOLUTION IS ALSO A KEY FACTOR
IN NEGOTIATIONS. HOW HAS THE MANAGER RESOLVED CONFLICT IN THE
PAST?
Also, personal information is very useful as an icebreaker. Something like birthdays,
anniversary, hobbies, children's names, last prison sentence, etc.
Try to visit the work area in advance and familiarize yourself with the facilities and
develop personal relationships with other management people in the area.
(B)
INFORMATION ABOUT YOUR POSITION
By knowing all the information about your position before you walk in the room, you
have a better chance of acting rationally and not emotionally. Ask yourself;
1.
When do I deadlock?
2.
What are the consequences of a deadlock?
3.
What is the cost of a deadlock?
4.
What are my alternatives to negotiating?
5.
Do I have alternatives to negotiating that are especially attractive?
6.
What are my real underlying needs?
7.
What justification will I provide for the positions I take?
8.
What is my negotiating target or goal?
28
9.
What external pressures affect my negotiability?
10.
Can I deal with or control these factors in advance?
11.
What is my deadline?
12.
Can this deadline be changed?
13.
What are the consequences of failing to meet the deadline?
(C) INFORMATION ABOUT THE OTHER SIDE'S PERCEPTION & POSITION
As you deal with management over any matter of issues, grievances reorgs, concerns,
transfer or abolishment of Functions, etc., always attempt to state their position
better than they can. Don't just focus on their weaknesses; seek out the strong points
of their position. Questions to have addressed;
What are management's strong points?
1.
2.
How will you deal with those arguments?
3.
What justification can you provide for your position in meeting those
arguments?
4.
What is their deadline? Be aware of personal deadlines such as weekends, or
personal commitments, or staff meetings or institutional deadlines.
5.
Why are they negotiating or bargaining or trying to resolve this issue?
6.
What brought them to the table?
7.
Are they accountable to any other person that has a stake in these
negotiations?
8.
Have they been involved in other or previous negotiations of a similar sort?
9.
With whom?
10.
What concessions did they make?
11.
What positions did they take?
(a)
Are there real or underlying needs as opposed to the demands they are
making or positions they are taking? IF YOU KNOW THEIR NEEDS, YOU
(b)
ALMOST ALWAYS HAVE CONTROL OF THE PROCESS!
79
12.
Do they have authority to close the deal? If not, why not?
13.
Who has it?
Information is valuable when you are trying to adjust a grievance and settle a case.
Oftentimes we may have a tendency to keep talking and not shut up and that is not in
your best interest in gathering information. SILENCE IS GOLDEN!
The best negotiators are those that talk only 40% of the time. You should not be
afraid to let management dominate the conversation. Let them talk! The more they
talk, the more information you can gather than what you would give up and you can
avoid making unnecessary mistakes.
The best negotiators are those who regularly ask the other side questions, give them
options to consider and work actively to wean information from management.
Ask open-ended questions. Open-ended questions usually begin with: Who, what,
when, where, and how.
Close-ended questions call for a yes or no answer. The problem with close-ended
questions is that you may get an answer from management that you don't like and the
answer now becomes a position.
Once management takes a position they tend to harden and defend it. So let them
talk, spew and spit and encourage them to do so! If management wants to say
something, don't interrupt. Let them talk themselves dry!
NEGOTIATIONS
TIME
In any negotiation, expect the most significant concession behavior and any
settlement action to occur close to the deadline. That being the case, IF YOU KNOW
THE OTHER SIDES DEADLINE AND THEY DON'T KNOW YOURS THAT MEANS YOU
HAVE THE EDGE.
30
Their stress level will increase and they will make concessions in order to meet the
deadline. Every "other side" has a deadline. If they did not have some pressure to
negotiate, you would not find them. Sometimes (oftentimes) the other side acts
nonchalant and the nonchalant posture is effective. It works because you feel the
pressure of your own time constraints, which always appear greater than theirs. At
the same time, keep in mind that deadlines are more flexible than you realize.
1. Who gives the deadlines?
2. Who imposes them?
3. The contract?
4. Internal factors at the agency?
5. External factors at agency?
Ultimately it is you who give the deadline and since this is the case, you never need
blindly follow a deadline. Analyze the deadline. Since it is a product of negotiation, it
might as well be negotiable.
Ask yourself;
1. What will happen if you go beyond the deadline?
2. What is the certainty of the detriment or penalty?
3. What is the extent of the punishment?
4. How great is the risk you are taking?
LEARN THE OTHER SIDES DEADLINE AND TRY NOT TO REVEAL YOUR TRUE
DEADLINE. THAT IS A POWERFUL BARGAINING TOOL IN SEEKING CONCESSIONS AND
THE RESOLUTION THAT YOU DESIRE.
Most concession behavior and settlements will occur at or beyond the deadline, SO BE
PATIENT!
Patience pays so remain calm and keep alert for the favorable moment to act. IF YOU
DO NOT KNOW WHAT TO DO, DO NOTHING!
If the situation is adversarial, make sure that you don't reveal your deadline to the
other side.
You cannot achieve the best outcome quickly; you can achieve it only slowly and
perseveringly. Take your time and be cool. Deadlines can work to your advantage,
only if you protect it and use it properly. Deadlines that are a product of negotiations
are negotiable. Therefore, even if the contract stipulates a deadline, it is still
negotiable. Remember extensions?
31
The Golden Rules of Negotiation
Every process has rules. Here are the top 15 rules that can make any negotiation a
successful process:
32
1.
Seek a win-win situation. In a win-win situation, you really want both parties
to feel good about themselves, the deal, and the entire process of the
negotiation. You don't want to be too greedy. Never go into a negotiation
process with the attitude of "my way or the highway!" Win-win doesn't mean
you split things down the middle by any means, either! You really have to
strive to make both parties winners, but when you go for the win, win!
2.
Expect to winl Go in with the attitude that you intend to get everything on the
"need" list and some things on your "wish" list.
3.
Learn from experience. Negotiation is not a game, because in a game you
have winners and losers. You should go into a negotiation seeking that win/win
and trying to make sure everyone feels good about the whole process. Once I
did play the negotiation like a game and, being competitive, I wanted to win! I
wanted it "My way or NO way"! WRONG ATTITUDE! On one negotiation years
ago, with me taking that attitude, both parties lost. The deal didn't go through
because I wouldn't listen and be flexible. I took the wrong approach with the
"my way or no way" attitude and didn't practice the "give and take process" and
treated the negotiation like a game. That experience taught me a lesson I've
never forgotten.
4.
Everything is negotiable, even the process. You can pick the place and whom
you would like present at the meeting. When you start talking to them, try and
recognize their tactics or negotiating styles. Maybe they're using a goodguy/bad-guy routine or using invisible managers as an excuse not to answer or
commit to a question or point in the negotiation. Call the vendor on their
tactics. If its good-guy/bad-guy, tell them to come back to the table after they
work out their differences. If they use the absent manager as an excuse, ask
for their manager to be present or on the phone during your next meeting. You
can also let them know that if they don't provide you with the information you
requested from them before the meeting to prepare yourself, you won't even
meet with them. Do what's comfortable for you and remember, you're in
control!
5.
NEVER attack the demand, only the rationale behind the demand. This is a
very important point! Let's say someone quotes you a high price for their
product, your first response, as mine has been in the past, is to say, "ARE YOU
CRAZY?" Don't say that, don't go there, don't react at all. Ask them how they
came up with that price and how they support it and move on from there. If
you attack what they say, you put them on the defensive and they'll probably
attack you back, and that gets you nowhere! When they give you the rationale
behind their proposal, then you can break it down and attack the rationale
behind the demand. You might need time to digest and do more homework on
their rationale and, if you do, there is nothing wrong with asking to postpone
33
the meeting until you have had a chance to review their methodology. Really
try to understand your opponents position; you don't have to agree with it, but
it does help you to try and understand it!
6.
Don't settle for too little. When the vendor makes an offer, check both your
want and your wish lists and review your best options. If you have reached a
point where the vendor says, "Lets split the difference," that probably means
you're settling for too little if you agree. Now if you suggest that approach,
make sure you've done your math and analysis right to keep the numbers
working in your favor!
7.
Be creative...think out of the box. I once negotiated the printing of a
newsletter for a senior citizens group, where pricing was very important! I got
the printer to reduce his rates by offering a quarter-page within the newsletter
for him to advertise his business. This way he could advertise to over 500
people six times a year, and it didn't cost the seniors group anything to get him
to lower his price.
8.
Learn to listen. During the process of the negotiation, you might start focusing
too much on what you want to say and stop really listening to the other side.
Listening is one of the most essential aspects of successful negotiating, but one
that's always taken for granted.
9.
Give and take. Look at the example of the senior centers newsletter. We
conceded a quarter-page of space in the newsletter, but getting the lower cost
was a major opportunity for us. Be sure that when you give up something, you
get something in return. Negotiation is a process — a series of give and takes
constantly open to adjustments, changes, and renegotiation.
10.
Use silence as a technique. People tend to become uncomfortable with
silence, so use it to your advantage! If a point is brought up that raises an
eyebrow, just sit there and raise that eyebrow. Don't let them off the hook by
responding. Let them talk their way out of it and see where it goes!
11.
Size shouldn't matter unless you want it to. When you work on a contract and
your counterparts have years of negotiating experience, or the money amount
involved is something you could retire on for the rest of your life, don't be
intimidated! It's all a matter of perspective! To illustrate this point, I'd like to
use a story used for millennia that still makes a big point. We all know the
story of David Et Goliath, where David approached King Saul and asked him to
let him fight Goliath. Well the King's first response was to tell David he was too
small and Goliath was too big, but David was very persuasive and the King
finally let him go fight Goliath. We all know how the battle ended. But did you
know that when David came off the battlefield to the cheers of his army,
34
someone from that army then asked him "David, weren't you scared? He was so
big!"? To which David replied, "I didn't see him as too big. I saw him as too big
to miss!"
12.
Never negotiate out of fear. All too often, people make mistakes and early
concessions just to get a deal over with. Think of the negotiation and the
person sitting opposite you as too big to miss. No one every stated it better
then John F, Kennedy at his Inaugural Address, January 20, 1961, as he became
the 35th President of the United States: "Let us never negotiate out of fear.
But let us never fear to negotiate."
13.
Don't concede much at first. You should never go into a negotiation and give
up some vital piece of strategic information, for example,
1)
you're the only game in town or
2)
we love this system and want it, let's talk! You lose too many
advantage points this way, points that give an unfair advantage to
your opponent.
14.
It ain't over till it's over! Yogi Berra made this line famous and he was so right
when it comes to negotiating. It ain't over tilt you get a clear signed contract.
Just make sure you get everything in writing, don't assume anything! You want
to take people at their word, but many things are stated throughout a
negotiating process. Make sure you get all details worked out, from
distribution, how long you can keep the historical data, etc., and then get all
the details in the written contract or an addendum to your current contract.
15.
Maintain good relationships. If you try and succeed at achieving a win/win
negotiation, then you'll end up with a good relationship you can build on. But
make sure you maintain it. As time goes on, you will probably have to
renegotiate your contract and that probably means some changes. Make sure
you don't have to face a vendor still smarting from memories of a humiliating,
hurtful past negotiation.
The Art & Craft of Bargaining
Maximize your strength (and for the ammarance of itl
35
•
Show a unified team at all times - build trust within your team
> Coordinate mobilization efforts with bargaining efforts
> Use caucuses effectively - decide on rules for calling caucuses
> Agree in advance when and how to use side bars
> Never introduce or agree to a proposal until its been discussed in caucus
> Justify your proposals - use different committee members to present
> Keep emotions in check - avoid apologetic or defensive tones
> Deal quickly and firmly with verbal attacks from management
> Don't make idle threats - back up your table talk with actions in the field
•
Bring members to the bargaining table to observe and show support
Analyze management
> Know all you can about management negotiators
•
Evaluate management's seriousness by how well they justify their positions
> Ask questions to learn more about management's positions - pretend to know
less to encourage management to reveal more
> Put yourself in management's place to better understand their positions
Technical Skills
Cost out proposals and use the information to make decisions
> Write good contract language - use tested language if possible
> Take good notes on bargaining sessions
> Be aware of what is happening at the table at alt times
> Take action to deal with dynamics that aren't in your interest
Closing the Deal
> Think ahead a few steps before making proposals
> Know what you what the final agreement to be
> Build momentum by starting with issues that can be solved
• Accentuate the positive parts of your proposals
36
•
Use bargaining jargon (e.g., is my proposal in the ballpark?) to explore possible
compromises
•
Skip tough issues and come back later
•
Bring in a new face
Employ more pressure tactics
•
Allow management to save face
•
Package several issues together with compromises by both sides
•
Reward management, verbally, for making compromises
'r Discuss possible compromises, "off the record" (no one taking notes)
• With the approval of the committee, have one or two negotiators from each
side meet
• Build trust
•
With caution use a mediator
Don't Leave anything on the table.
Keep settlement in mind - keep good records of what has been agreed to, and
issues still open
•
Concessions - make sparingly, get something for it, give small and make it seem
big
Don't be put off by "no"
'9, Beware of:
Bargaining environments that put you at a disadvantage (on the bosses
"turf" isolation from membership, etc...)
Management that uses the "good cop / bad cop" routine
▪ Your emotional needs (and management's) that might get in the way of
an agreement
Making decisions when you are tired and worn out
•
Prepare yourself physically and mentally for the last day(s) and hour(s) of
bargaining
1-
Sometimes you can get more at the end in return for promising to recommend
ratification
37
A CHECKLIST OF NEGOTIATING GOALS
When you assess the proposals and plans of your negotiating team, check to see if
they have taken at least the following items into account:
Will employee rights be improved or will employees be protected from the
most significant adverse effects of a management change?
Will employees be given an opportunity to participate in making key workplace
decisions?
Will pressure be put on managers to implement a workable system and to
change it if it does not work as planned, e.g. re-openers and evaluation
mechanisms?
will the proposals respond to the problems employees have that are associated
with the basic issue you are negotiating?
Will the union be helped in its effort to get more members, e.g. will we get
visibility, credit, access?
Will the negotiations give the steward system what it needs to enforce the
agreement and grow? (Add any others you believe your local should adopt)
WHEN CAN WE NEGOTIATE?
The union and/or its locals have a right to bargain at many opportunities. Listed are
some situations, along with some key characteristics of each.
TERM NEGOTIATIONS
The exclusive representative can ask to negotiate in the absence of a term
agreement or when an existing one is about to terminate. This is a statutory
right.
•
The union can demand to negotiate over any negotiable employment condition
item so long as a waiver of that right does not exist.
MID-TERM CONTRACT REOPENERS
The exclusive representative or its locals can create this right only by negotiating a
clause in the contract that specifically provides the right to renegotiate a portion of
the contract or that permits additional items to be negotiated.
LOCAL SUPPLEMENTAL BARGAINING
38
The exclusive representative, or a negotiating local, must assign the tower
level body a right or obligation to bargain as part of the negotiations over the
term contract or some other contract.
You can only negotiate over the issues assigned you from the higher level
contract.
You may not change the terms of the higher level contract or otherwise violate
it.
MANAGEMENT-INITIATED MID-TERM BARGAINING
When management makes a change in employment conditions, the union has
the statutory right to negotiate over the substance, impact or implementation.
The impact of the change need only be reasonably foreseeable versus
immediate and actual for the obligation to arise. (29 FLRA 891)
The fact that a contract permits management to make a change in an area
using its discretion does not undo the obligation to negotiate with the union.
(19 FLRA 454)
This right may be waived by existing contract language covering the issue, or
by the union clearly li unmistakably manifesting an intent to waive the right
(during negotiations or otherwise).
You are limited to bargaining proposals that deal with the change management
made.
If the issue is bargainable in substance, the impact of the change is irrelevant
to whether management must bargain. If it is not substantively bargainable,
i.e., the union can only bargain impact and implementation, the impact of the
change on unit employees is relevant to whether there is an obligation to
bargain. The change must be more than de minims or of minimal impact (19
FLRA 290 and 29 FLRA 307)
IDENTIFYING WORKPLACE CHANGES
In order to have a right to bargain over an employer-initiated change, the change
must do several things.
It must be a change in personnel policies, practices, or working conditions.
It must involve bargaining unit work or positions.
39
It must be a change from past practice. To be a past practice, something must be
consistently exercised over an extended period of time and followed by both parties,
or followed by one party and not challenged by the other.
The change must not be "de minims." That involves a consideration of the following
factors:
The nature and extent of the change
The duration and frequency of the change
The number of employees affected
The extent of bargaining over analogous changes.
UNION-INITIATED MID-TERM BARGAINING
Irrespective of whether management makes a change in employment conditions, the
union as the exclusive representative can demand to bargain over any subject that
has not been specifically addressed in an existing contract or which has not otherwise
been waived by the clear and unmistakable actions of the union.
CHANGES MANAGEMENT MUST BARGAIN
Below are some examples of changes management can make, but must bargain over
with the union in advance of making the change.
1.
2.
There is a reorganization of an office that affects employees, e.g. promotion
opportunities are limited (13 FLRA 203 or 22 FLRA 91), an office is relocated
(25 FLRA 843), or the location of a break area is changed (24 FLRA 714).
There is a freeze on promotions (25 FLRA 541).
3.
A work operation is discontinued causing some employees to work less time (19
FLRA 136) or employees are put on forced annual leave due to a shutdown (21
FLRA 814).
4.
New duties are added to a position or duties are changed (11 FLRA 419 and 8
FLRA 1405 623). Employees are suddenly rotated through the duties of the
position description (24 FLRA 743) or their supervisor has changed resulting in
tougher or new working conditions (30 FLRA 346).
5.
Employees are required to use new forms as part of their job (10 FLRA 235, 16
FLRA 56) or the process used to review their work, even their travel vouchers,
is changed (4 FLRA 488, 5 FLRA 173, 21 FLRA 1015).
6.
The way work is counted to do a performance appraisal is changed (7 FLRA 42).
40
I
7.
There is a change in working hours/shifts (8 FLRA 605), there is an increase in
overtime (14 FLRA 499, 19 FLRA 136) or there is an increase in travel required
for a job (16 FLRA 845).
8.
There is a change in a qualification for an assignment (17 FLRA 254) or there is
a change in critical elements and performance standards (16 FLRA 1135).
9.
There is a change in safety equipment or procedures (25 FLRA 914, 26 FLRA
704).
10.
An employee is required to participate in a study or a pilot (26 FLRA 344).
However, negotiations over the pilot do not waive the union's right to negotiate
again when the pilot project is fully implemented or expanded (10 FLRA 182).
Negotiations Strategy and Interests
Negotiations provide your local with a unique opportunity to have an immediate and
lasting impact on employees' work lives. They also give you an opportunity to involve
employees in addressing their issues through your local, and if they are not already
41
members, negotiations give them a personal reason to join. You should develop a
negotiations strategy that builds our union.
A successful strategy should include:
• A method to gather information you need to represent the employees
effectively
Bargaining unit involvement
tfi Communication of needed information to all involved parties
➢ Involvement of the appropriate committees in your local (i.e., legislative,
membership, negotiations, representation, etc.)
▪ Involvement of a Cooperation Council or Labor-Management Relations
Committee
➢
A way to communicate the results of the negotiations
In developing a negotiations strategy, it is also useful to remember the fundamental
interests that AFGE has in almost any negotiations. These interests are outlined
below.
➢ Involvement Interest. We are always interested in giving members an
opportunity to be involved in developing solutions to bargaining problems,
implementing a solution, and assessing a solution. People are more satisfied
when they feel that they have had some influence over their own lives and the
learning experience encourages them to get more involved.
▪ Visibility Interest. We want members and other employees to see very clearly
that AFGE is working on their behalf and the benefits a particular negotiation
produced for the bargaining unit. Without visibility, most employees will
attribute to management benefits that they receive.
•
Credit Interest. We want members and other employees to give AFGE credit
for what we do for them at the bargaining table. They should understand how
bad things could have been and how we improved the situation. After all, why
support any organization if it does not make things better for you?
•
Substantive Interest. We want to make sure that principles important to the
employees and to the union are protected in the negotiations process. What
solutions do the employees need from the bargaining? What is of immediate
value and what do they value the most? Some of the important principles that
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AFGE values include seniority, due process, parity both among the bargaining
unit and with management, etc.
Relationship Interest. What should this negotiations do for you in terms of
your relationship with the "other side" and with your own constituents? Your
relationship interest often means that you have to find a way both to help the
other side save face and to have the union come out of the bargaining looking
good.
Structural Interest. As a local, you have a need to maintain and grow so that
you can continue to participate equally, fully and effectively in the continuing
relationship with management. Different organizations have different needs
because of their nature and how their Leaders want them to evolve. Are you
aware of what the average AFGE local needs to grow?
r Implementation Interest. After you reach agreement, you will need a process
for implementing the deal.
Good Faith Bargaining
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Good faith bargaining is a general term used to describe the bundle of dos and don'ts
that control the interplay between union and management negotiators. When one side
or the other deviates from the principles of good faith bargaining, this conduct is an
unfair tabor practice. A breach of the obligation to deal in good faith is typically
remedied by the FLRA through its ULP machinery. Specific rulings concerning good
faith bargaining are not found in a single location. Instead, these principles have been
borrowed from the private sector's many years of experience under the National Labor
Relations Act, as well as established through individual case decisions of the FLRA and
the courts.
1. The Federal Service Labor Management Relations Statute sets out three broad
principles governing good faith bargaining:
A. the parties must approach bargaining with a genuine desire to reach
agreement;
B. the representatives each side sends to the bargaining table must possess
sufficient authority to engage in meaningful give and take; and
C. each side must be willing to meet on a reasonable schedule and not
engage in unnecessary delays. 5 USC 7114(b)(1), (2) and (3).
2. Good faith bargaining requires that neither side attempt to intentionally
mislead the other about important matters being negotiated.
3. In deciding whether a party is acting in good faith, the FLRA will look at the
totality of the conduct." Taken together, an unwillingness to meet, inflexibility
in discussing proposals and presenting the other side with ultimatums exhibit a
lack of good faith bargaining.
4. Simply "going through the motions" does not constitute good faith bargaining. A
party does not act in good faith when it attempts to limit caucus time and
refuses to resume negotiations after a break
5. Good faith bargaining extends to all phases of negotiations. This includes the
negotiation of ground rules at the beginning of the process as well as during the
later stages of bargaining.
6. An agency is required to send to the bargaining table representatives vested
with the full authority to commit the agency to an agreement.
Exclusive representation
1. Where a union is the exclusive representative of employees of a federal
agency, the Federal Service Labor-Management Relations Statute imposes upon
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the agency a general obligation to negotiate in good faith over the conditions
of employment of the represented employees.
2. Until such time as a union is formally recognized by the agency or certified by
the FLRA as the exclusive representative of a bargaining unit including agency
employees, an agency is under no obligation to bargain with it. 5 USC
7114(a)(1).
Conditions of employment
1. By far the most frequent breach of good faith bargaining occurs when agency
management changes a condition of employment, but fails to give the union
advance notice and an opportunity to bargain.
2. In order to trigger the obligation to bargain in good faith, a contemplated
change must be of substance. It must be more than trifling or inconsequential.
But if a planned changed will impact bargaining unit employees or if some
impact is "reasonably foreseeable', there is a duty to bargain
Bad faith conduct -- examples
1. A series of discussions between a manager and a union official about the
physical layout of a new facility constituted collective bargaining, and
consequently the manager's refusal to sign an MOU reflecting the parties'
agreement on the issues discussed constituted bad faith.
2. Insisting upon tape recording negotiation sessions, over the objection of the
other side, is evidence of bad faith conduct.
3. Attempting to control the designation of the other party's bargaining team
members as a precondition to negotiation is bad faith conduct.
4. Absent an explicit agreement to the contrary, an agency is not within its rights
in refusing to bargain further following a non-ratification vote by unit
members.
Acts that don't rise to the level of bad faith
Reviewing and declaring an FSIP-ordered provision non-negotiable does not, in and of
itself, constitute bad faith bargaining.
Refusal to continue bargaining until the union agrees to abide by negotiated ground
rules is not bad faith.
Although withdrawal from a tentative agreement may be evidence of bad faith, it is
not a per se act of bad faith, particularly if the withdrawing party provides reasons
and otherwise exhibits cooperative behavior.
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Tentatively agreeing to a non-mandatory topic of bargaining and withdrawing
agreement before it becomes final does not constitute bad faith.
It is not bad faith to refuse to continue bargaining when the only proposals being
discussed are nonnegotiable.
Repudiation of an agreement
The theories of repudiation of an agreement and a simple agreement violation are
different. When a party claims repudiation, it is charging the other party with an
unlawful act -- an unfair labor practice.
A finding of repudiation is a finding that the party failed to meet its statutory
obligation to bargain in good faith.
In order for a party to be found guilty of repudiation, the breach of the agreement
must be clear and patent. Where the meaning of a particular term is unclear, a
party's reasonable interpretation of that term, even if it is not the only reasonable
interpretation possible, wilt not be viewed as a clear and patent breach.
When a breach of agreement is found to be clear and patent, in order to find the
party repudiated the agreement, it must be determined that the provision breached
goes to the heart of the agreement.
The interpretation of a contract must begin with its plain meaning. When the
language of an agreement can bear only one reasonable interpretation, the FLRA may
not create an ambiguity by crediting extrinsic evidence offered by a party who is
seeking to nullify the terms of the agreement.
Ground Rules
46
Before commencing negotiation of a collective bargaining agreement, the parties
usually negotiate a ground rules agreement. Matters addressed include the bargaining
schedule, size of negotiating teams, payment of travel and per diem, the location of
negotiation, how impasses will be handled, and a variety of other matters. It is not
uncommon for the parties to reach impasse on such matters and use the services of
the FMCS and FSIP before substantive negotiations begin.
1. Ground rules concern conditions of employment and are a mandatory subject
of bargaining.
2. Either party may lawfully insist on reaching an agreement on ground rules
before commencing negotiations on substantive matters.
3. Ground rules proposals must, at a minimum, be designed to further, not
impede, the bargaining for which the ground rules are proposed.
4. The duty to bargain over ground rules is not limited to the negotiation of a
term agreement. There is also a duty to bargain over ground rules for
bargaining occurring during the term of an agreement.
5. Because the obligation to bargain ground rules is inseparable from the
obligation to bargain in good faith, a party may not insist on bargaining over
ground rules that do not enable the parties to fulfill their mutual obligation.
6. The duty to execute, upon request, a written document embodying agreed
terms applies to ground rules agreements.
7. Negotiating ground rules is an integral part of the bargaining process. Members
of the union's bargaining team are entitled to statutory official time for this
purpose.
Issues
1. The agency failed to negotiate in good faith when it violated the ground rules
by insisting on bargaining by e-mail rather than face-to-face.
2. A proposal to include as an appendix to the agreement the ground rules for
negotiating a successor agreement was within the duty to bargain.
3. An agency had no duty to bargain over a union ground rules proposal that would
have tied bargaining over a specific change in conditions of employment to the
negotiation of a new term collective bargaining agreement.
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4. A union proposal specifying how management representatives would address
union representatives during collective bargaining was like any other ground
rules proposal seeking to regulate the negotiation process, and was therefore
negotiable.
5. An agency's declaration of the number of representatives it will have in
negotiations does not preclude the union from bargaining ground rules
providing for additional union negotiators, as well as the number allowed by
statute.
6. Regardless of the number of negotiators designated by the agency, the union
may also bargain for note takers, observers and resource persons to be present
at negotiations on official time.
7. A union proposal to be represented on official time by a specified number of
negotiators does not, standing alone, unlawfully dictate the number of
representatives management will have.
8. A proposal requiring official time to prepare proposals and counterproposals
prior to the start of across-the-table negotiations is negotiable.
9. A ground rules proposal requiring a grant of official time to prepare for
bargaining over agency-initiated changes in conditions of employment is within
the duty to bargain.
I
Triggers for Bargaining:
48
When / How You Might See a Change in
Working Conditions
Term contract is in reopener window
1. Poll bargaining unit to find out what issues are important.
2. Use occasion as a local-building opportunity.
3. Be sure to identify the reopener period correctly, e.g., between 60 and 90 days
prior to the termination date of the contract.
Management notifies the Union of its desire to make a change in
working conditions-this is the way it's supposed to work:
1. Management notifies you of a change, and you request a briefing and
bargaining.
2. Be sure you know your contract's rules for such bargaining: time frames for
submitting proposals, etc.
3. Union initiates changes pursuant to our midterm right to negotiate
4. The Supreme Court has determined that so long as the issue is not "covered
by" an existing agreement, the Union has a right to pursue midterm
negotiations.
5. Consider new statutory or regulatory changes that impact employees, e.g.,
transit subsidy increases, compensatory time for travel, child care subsidies.
Management makes a unilateral change in working conditions
1. The Union can file a ULP or grievance ULP, but also demand to bargain and
submit proposals.
2. Could be on a small scale, e.g., one manager's change, as opposed to an
agency-wide change.
Strategic planning document changes
1. Review high-level strategic documents and assess how those changes may
impact working conditions of those in your bargaining unit
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2. These type of documents may include: budget documents, annual priorities
documents, reports to Congress, responses to GAO investigations, etc.
3. You will usually need request a briefing to understand fully the impact of
changes.
4. Example: Management wants to change its priority work. This change in
priority could mean a need for additional retraining, an impact on current
inventory levels, reassignment of employees to specialty groups, or relocation.
Impact on employees left behind due to downsizing
For example, employees that remain in the agency may have to pick up more work.
This change could have an impact on evaluations and therefore, awards, training,
inventories, and even employees' abilities to take advantage of programs like
flexiplace and AWS.
8 Steps to Bargaining
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Notice
Step 1:
Management must give the union "specific" notice of its proposed change. Specific notice
requires more than a passing reference to the change. The notice must provide a specific
date for the change and describe the conditions under which it will occur. Our agreements
require that notice of changes be provided to chapter presidents (or their designees) in some
form of written or electronic communication. Informal discussions generally do not constitute
notice. Once formal notice is received it is critical to review your contract to determine the
time frames that must be followed during the negotiations process.
NOTE: If a local official receives an informal briefing and the agency goes forward with the
initiative without objection from the union, the FLRA may find that informal notice was
sufficient and the union has waived its right to bargain.
Step 2:
Demand to Bargain and Request a Briefing
Once the local has received notice of a proposed change it is important to move quickly to
decide if the union wants to negotiate. The law allows a very short period for this, especially
for emergencies or other conditions outside of management control.
As a general rule, it is suggested that the union both submit a request to bargain and request
a briefing over the change. The request to bargain provides formal notice to management
that the union intends to negotiate. The request for a briefing gives us the opportunity to
receive additional information and gives us time to develop our proposals. If the union does
not object to the proposed change, it can simply not respond to the notice and management
will move forward with implementation.
Briefing
Step 3:
The briefing is our opportunity to get a detailed explanation of the substance of the proposed
change as well as managements rationale for the change. You should go into this meeting
with a list of questions you need answered to explain managements proposals. It is also
suggested that you be accompanied by a steward or member who is directly affected by the
change and understands the nature of the work impacted by the change.
NOTE ON INFORMATION REQUESTS: During these initial steps of bargaining, you may learn
about various reports, studies or other documents that management developed, used or relied
upon in making a particular decision. This information is relevant to the negotiations and
therefore you may file an information request asking for any or all of this information if you
believe it will assist you in bargaining. Relevant information may include: a list of impacted
employees, business case analysis, surveys, Booz Allen studies, etc. The more information in
your possession, the better you position yourself to bargain knowledgeably and forcefully.
Drafting Proposals
Step 4:
Most agreements require that proposals be submitted within a specific time frame after the
union receives either its briefing or notice of the proposed change if no briefing occurs. It is
critical that you submit timely proposals if the union wants to negotiate. When drafting your
initial set of proposals, do not be overly concerned whether every proposal is negotiable simply cover all the areas over which the union wants to bargain and worry about
negotiability later. You can always modify your proposals during bargaining.
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Negotiations
Step 5:
Representatives of both parties meet at reasonable times and places to negotiate.
Management cannot bargain directly with employees and avoid the union Leadership.
Moreover, if the union designates which leader is to receive bargaining notices, then
management cannot pick the union leader with whom it wants to deal.
At this stage, generally you are seeking to reach an agreement that obtains certain
rights/benefits for the bargaining unit and/or protects employees against the impact of the
change. Sometimes, however, you may be slow and deliberate in your approach, because the
change is not viewed as advantageous to the bargaining unit.
Impasse
Step 6:
When either parties feels that further negotiations are pointless, it may declare the matter at
impasse. If an impasses is reached, management can implement its last best offer, unless the
union announces that it wants management to continue to bargain with it AND the union
seeks assistance of the FMCS and then the FSIP
It is important that if we declare impasse, we be ready to proceed to the next step of the
process immediately. Delays at this stage could result in a waiver of our right to object
should the agency unilaterally implement.
Step 7:
Federal Mediation and Conciliation Service (FMCS)
After an impasse is declared the next step is to seek assistance from the Federal Mediation
and Conciliation Service. Typically, the party declaring the impasse contacts the FMCS;
however, even if the agency declares impasse, the local should consider contacting the FMCS
to avoid unilateral implementation of the change. The role of the FMCS is to attempt to
mediate a resolution of the impasse. The FMCS is not empowered to implement a binding
agreement on the parties. Once the FMCS has determined that no further action on its part
will facilitate an agreement, the parties will be certified at impasse.
Step 8:
Federal Service Impasses Panel (FSIP)
This is the final stage of the process. The Federal Service Impasses Panel has the authority to
reach a final binding resolution of the bargaining impasse. The FSIP can assert jurisdiction and
decide the issue itself, it can assign a Panel arbitrator to hear the dispute and render a
decision, or it can send the parties to a third party mediator arbitrator, who is empowered to
render a binding decision. The Panel can accept the agency's final proposal, the union's final
proposal, or dictate its own solution.
NOTE: It is important to remember that you should not delay between each of these steps.
Doing so could result in management implementing the change and a finding that you waived
your right to bargain prior to implementation. In the worst case, you could even be found to
have waived your right to bargain entirely.
Impact & Implementation Bargaining
52
What is it?
The Federal Service Labor-Management Relations Statute specifically excludes certain
"management rights" from an agency's duty to bargain. These rights are set forth at 5 USC
7106(a), and include the right to determine the agency's organizational structure, the
right to hire, assign and discipline employees, and the right to assign work.
Although agencies are not required to bargain over whether these management rights
wilt be exercised, the union is entitled to a say in how these rights are exercised. To
that end, Section 7106(b)(2) of the statute requires the agency to negotiate over
union-proposed "procedures" for exercising a particular management right. The agency
is also required, by virtue of Section 7106(b)(3), to negotiate "appropriate
arrangements" for employees who will be adversely affected by the exercise of a
management right.
How does the bargaining obligation arise?
The obligation to bargain over impact and implementation proposals does not arise
until agency management seeks to make a change that will result in a reasonably
foreseeable adverse impact upon the conditions of employment of bargaining unit
employees, provided the parties have not already negotiated provisions that apply to
the intended changes.
This means that the obligation to bargain does not come into play until after agency
management has determined that it intends to make a change affecting conditions of
employment. There is no statutory obligation to respond to bargaining demands
presented before a final decision has been made.
When must the agency bargain?
For starters, answer the following questions:
1.
Will the intended action produce an actual change?
2.
If so, will the change at issue concern "conditions of employment"?
3.
Will the intended change affect the conditions of employment of bargaining unit
employees?
4.
If so, will the change have more than a de minimis impact on unit employees?
5.
Does the change involve the exercise of a statutory management right?
6.
Does the change involve a matter that is not already covered by (i.e., already
addressed within the scope of) the collective bargaining agreement?
53
If the answer to all six of these questions is "yes," you must bargain over the impact
and implementation of the change.
The obligation to bargain over impact and implementation does not arise until agency
management seeks to make a change that will result in a reasonably foreseeable
changes to the conditions of employment of bargaining unit employees.
Does the change involve a condition of employment?
As defined by in 5 USC 7103(a)(14), a condition of employment consists of "personnel
policies, practices and other matters affecting working conditions, whether
established by rule, regulation or otherwise."
Policies and Practices. Policies are usually formal, written rules, such as the agency
merit promotion plan and procedures for assigning overtime.
Practices, on the other hand, are usually patterns of behavior that have been followed
long and consistently enough to become unwritten rules.
Established rule, whether written or unwritten, that pertains to the personnel
matters applicable to employees will generally qualify as a condition of employment.
Under the definition provided in 5 USC 7103(a)(14), however, other "matters affecting
working conditions' . may also constitute conditions of employment. Such "other matters"
may address a variety of workplace features; for example, parking arrangements,
office design, availability of bottled water, and safety issues.
Will the intended change affect bargaining unit employees?
The union only has authority to negotiate on behalf of employees within the bargaining
unit it represents. See 5 USC 7103(a)(12) and 7114(a)(l).
Will the change result in more than de minimis impact on unit employees?
The FLRA will consider the nature of the change and the extent to which it will
impact bargaining unit employees. It considers several factors in reaching that
determination. The FLRA will consider the number of employees affected by the
change, though this factor is not controlling. Accordingly, a change that has a major
impact on just one employee will still not be considered de minimis. The duration of a
change may also provide some indication as to whether the change is de minimis.
Does the change involve the exercise of a statutory management right?
The duty to engage in impact and implementation bargaining is limited to changes
involving the exercise of one of the rights reserved to management by Section 7106(a)
or 7106(b)(l).
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If the change does not involve the exercise of a management right, the agency is
obligated to bargain over the "substance of the change (i.e., whether or not the
change should be made at all), as opposed to bargaining only as to the "procedures
and arrangements" (i.e., impact and implementation) of management's decision.
Does the change involve a matter 'covered by' (i.e., already addressed within the
scope of) the collective bargaining agreement?
An agency is not required to engage in impact and implementation bargaining over a
change if the matter in question is already addressed (i.e., covered by) a collective
bargaining agreement.
This so-called "covered-by" doctrine prevents either party from attempting to
negotiate its way out of a provision that it has already agreed to, or from returning
endlessly to the bargaining table to address yet another aspect of an issue that should
have been considered part of the agreement already reached.
Notifying the union
Notice of the proposed change must be sufficiently specific to allow the union to form
a reasonable determination of whether it should request bargaining. The notice must
apprise the exclusive representative of the scope and nature of the proposed change
in conditions of employment, the certainty of the change, and the planned timing of
the change. The agency needs to tell the union what it intends to do and when it
intends to do it.
The union's response
Once it has received adequate notice of a change involving the exercise of a
management right, the union must either request impact and implementation
bargaining or acquiesce in the change without bargaining. If it decides to bargain over
the matter, the union must request bargaining within a reasonable time period.
Failure to request bargaining in a timely manner wilt result in a finding that the union
has waived its right to bargain over the change.
Waiver
There are several ways in which a union can waive its right to bargain over the impact
and implementation of a change.
First, the union may simply fail to respond to the agency's notice of the change. The
agency bears the burden of proving that the union received adequate notice of the
change.
A second basis for waiver occurs if a union responds to notice of an intended change
with a defective request to bargain. When a union responds with a request to bargain
but then fails to follow through by seeking to meet with management to engage in
actual bargaining, and/or fails to provide any proposals.
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A third type of defect in the union response to an agency notice of intended change
occurs when a union provides proposals that are not within the duty to bargain, i.e.,
that are not negotiable.
A similar defect occurs when a union responds with proposals that are not directly
responsive, i.e., not limited to the scope of the intended change. In order to fall
within the duty to bargain, proposals must address the reasonably foreseeable
adverse effects on employees.
A forth waiver is for a union simply to fail to make a request to bargain in a timely
manner,
A fifth way in which waivers can occur is through an explicit (as opposed to implied
through silence or inaction) waiver of the union's right to bargain. A waiver claimed
on this basis, however, must be "dear and unmistakable," as opposed to merely
inferred.
Yet another situation in which waiver may occur is where the union responds in a
timely manner and actually bargains a matter to impasse, but then fails to request
FSIP assistance when the agency announces that it intends to implement its last offer.
Request a briefing & bargaining
The union must respond to a notice of the proposed change with a proposal of its
own. The union must put forth proposals that are within the duty to bargain and then
actively pursue negotiation of them.
The union can request a briefing and bargaining and submit a status quo proposal until
alt statutory bargaining obligations are met.
Since impact and implementation bargaining is carried out in response to the exercise
of management rights, the union's proposal must represent either a "procedure" by
which those rights will be exercised, or an "appropriate arrangement" for employees
who will be adversely affected by the exercise of a management right.
Bargain Ground Rules
A proposal that there be ground rules before the parties engage in substantive
negotiations is itself a mandatory subject of bargaining. However, parties cannot be
required to engage in ground rules negotiations until they know the scope of the
proposals or changes to an existing contract the other party wishes to make.
While having ground rules at all is a mandatory subject of bargaining, certain
procedures in the ground rules that would require a waiver of one party's statutory
rights are permissive.
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Procedures
A procedure can best be described as a prescribed manner in which a management
right will be exercised, i.e., the way in which the right will be exercised. In order to
be negotiable under Section 7106(b)(2), however, a proposed procedure must not
"directly interfere with the substantive exercise of a management right.
Appropriate Arrangements
Arrangements can best be described as those things that will be done to mitigate the
adverse effects upon unit employees brought about by the exercise of a management
right, i.e., what will be done.
Information requests
Upon receiving notice of a proposed change, the union may request more information.
Section 7114(b)(4)(B) requires the agency to furnish the union's exclusive representative
with data that is "reasonably available' and "necessary" for the negotiation of subjects
within the scope of collective bargaining.
The burden remains on the union to demonstrate a "particularized need" for the
information that it is requesting. In order to satisfy the "particularized need"
requirement, the union must state, with specificity,
1. why it needs the information,
2. explain how it intends to use the requested information, and
3. the connection between that use and the union's representational
responsibilities under the statute.
Appropriate Arrangements
57
Although management rights listed in 5 USC 7106(a) are not open to negotiation as to
the decision to exercise them, the procedures and appropriate arrangements involved
in such exercise are negotiable. 5 USC 7106(b)(2) and (3).
An appropriate arrangement for employees adversely affected by the exercise of a
management right is one that does not excessively interfere with the management
right.
Excessive interference is something more than direct interference.
In order to qualify as an appropriate arrangement a proposal must:
1)
Address a reasonably foreseeable adverse effect flowing from a
management action;
2)
Be tailored to benefit or compensate employees suffering such adverse
effects.
Terms such as "fair and equitable" when used in proposals that govern the exercise of
a management right constitute substantive limitations on the exercise of that right,
and thus affect the right.
A proposal requiring the agency to apply its policies in a fair and consistent manner
placed a substantive limitation on the exercise of management rights, but was ruled
an appropriate arrangement. The proposal did not require that the policies
themselves be fair.
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THE MID-TERM MANAGEMENT
INITIATED
BARGAINING PROCESS
1) PROPOSED CHANGE
If no change from past practice, the employer implements without union notice.
If decision constitutes change, union files grievance and/or unilateral implementation
ULP. If union has waived right to bargain over change, implement. If there is no
waiver, union files grievance and/or unilateral implementation ULP.
2) NOTIFY UNION
If no request to bargain, implement as notified. If no notice, grievance and/or ULP
Unilateral implementation or bypassing the union.
TIP: Notice must describe what the policy or change will be (17 FLRA #40);
specific implementation date not required (15 FLRA 6).
TIP: Five days notice is too little (11 FLRA 3 68).
3) UNION REQUESTS TO BARGAIN
Brief the union; the union submits timely and specific proposals. If management
refuses to bargain, grievance and/or ULP.
TIP: Union entitled to reasonably available and necessary information (17 FLRA
#92); information must be furnished timely (11 FLRA 111).
TIP: Just opposing implementation or demanding continuation of status quo not
enough where substance not bargainable (18 FLRA 77)
4) NEGOTIATIONS
Bargain, reach agreement, execute. If bargaining conduct is bad, union files bad faith
ULP. If reasonable and necessary information is denied, the union, files grievance
and/or ULP.
5) IMPASSE
If change implemented before bargaining complete, union files grievance and/or ULP.
6) NOTIFY UNION OF INTENT TO IMPLEMENT
If no response from union, Agency implements last best offer.
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TIP: Give employer immediate notice of impasse petition or lose right to
oppose implementation (5 FLRA 39)
7) UNION SEEKS FMCS ASSISTANCE TIMELY [Delay implementation until bargaining
complete.]
8) MEDIATION [If agreement reached, execute.]
9) NOTIFY UNION OF INTENT TO IMPLEMENT [If no response from union, implement
last best offer.]
10) UNION SEEKS FSIP ASSISTANCE TIMELY [FSIP mediation produces agreement,
execute. Negotiability issues appealed or dropped. FSIP imposes final and binding
decision, execute. If change implemented before FSIP finished union files a ULP.]
11) AGREEMENT EXECUTED
This follows ratification of agreement by union members, if union demands. Failure to
ratify, requires renegotiation of agreement. If management implements without
ratification, ULP filed.
12) AGREEMENT SUBJECT TO APPROVAL PROCESS
If portion of or all disapproved, union renegotiates or appeals
TIP: Employer has 30 days to approve or contract implemented
13) AGREEMENT IMPLEMENTED; TERM BEGINS
14) RESOLUTION OF ULP'S AND NEGOTIABILITY ISSUES
If bargaining ordered, process begins anew; remedies must be implemented.
DRAFTING NEGOTIABLE PROPOSALS
Law empowers us to negotiate over 7103(a) - personnel policies, practices, and
working conditions. However, the union may not negotiate:
'i- 7103(a)
•
7106(a)
-
-
political activities, classification, matters provided by law.
mission, budget, organization, number of employees, internal security.
7106(a) • to hire, assign, direct, layoff and retain, suspend, remove, reduce in pay or
take other disciplinary action, to assign work, to contract out, to determine
personnel, to make selections, to act in emergencies.
•
7106(b) - at the election of the agency to determine numbers, types, grades,
employees and positions assigned to organizational subdivisions, work projects, tours
of duty; to determine technology, methods, and means of doing work.
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•
7117 - government-wide regulations.
•
7117 - A compelling need for a regulation.
SUBSTANCE VERSUS IMPACT AND IMPLEMENTATION BARGAINING
The SUBSTANCE of a decision is negotiable so tong as it does not "directly interfere"
with a management right.
When a matter is SUBSTANTIVELY nonnegotiable, the IMPACT of the decision is
negotiable so long as you do not "excessively interfere" with a management right. The
following criteria are applied to determine excessive interference:
1. The nature and extent of impact on employees from change.
2. Degree of employee control over adverse impact.
3. The effect on management.
4. Disproportionate impact on management.
5. The effect on government efficiency.
When a matter is SUBSTANTIVELY nonnegotiable, the procedures management uses to
IMPLEMENT a decision are also negotiable.
MODEL IMPACT AND IMPLEMENTATION PROPOSALS
When something is not negotiable in substance, you have to write your proposals
dealing with the adverse impact of the decision and the implementation procedures.
Examples of how to do that are provided below. Your proposals can:
> Provide employees' reinstatement preference to jobs they were forced out of
(29 FLRA 380).
.. Prohibit any management right from being implemented punitively 01
FLRA 241).
•
Bar management from violating law and regulation when implementing its
decision (31 FLRA 37) as well as write the law into the contract to inform
employees (31 FLRA 566).
•
Reasonably delay the implementation of a right (33 FLRA 147).
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fr Force management to give the union the data it relied on to make a policy
decision (31 FLRA 322);
e Force management to conduct a study of its implemented decision to gather
facts (31 FLRA 566);
Label the early days of a newly implemented decision a study period and
preserve the right to renegotiate once the study is complete (33 FLRA 454).
Require management to give employees advance notice of a decision
•
(31 FLRA 360);
Require management to solicit employee wishes prior to making a decision (25
FLRA No. 26);
e Require management to give employees written notice of the fact it has made
a decision (33 FLRA 711);
e
Permit employees an opportunity to respond to and rebut management's
decision (31 FLRA 566); and require management to give employees in writing
the reasons it made a nonnegotiable decision (32 FLRA 982; 33 FLRA 711).
e Require management to take all reasonable steps to avoid adverse impact on
employees from a decision (32 FLRA 1023, 31 FLRA 566) as well as to provide
reasonable accommodations to adversely effected employees (31 FLRA 117).
Determine where employees assigned to a particular position will be located, if
management has already decided their work will be done in several locations
(31 FLRA 1110).
e
Force management to define a term and provide examples, e.g. what is a
timely act (31 FLRA 566).
;" Give the union representation on management committees that engage in
review and fact-finding, but not on ones that make decisions or
recommendations on nonnegotiable matters (30 FLRA 1236).
e Require implementation of a management decision be done in a fair and
equitable manner (32 FLRA 380).
e Give employees administrative time to do certain tasks (26 FLRA 76).
fr Offer management an option of using a nonnegotiable system such as selection
by seniority, or a negotiable one (2 FLRA 77).
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)• Ask that employees be assigned to light duty (29 FLRA 1491).
Negotiate that certain events be defined as evidence of a change in working
conditions, e.g. a change in the performance standard (29 FLRA 1389).
)=. Negotiate for extra training when employees are transferred to a new job
through no fault of their own (29 FLRA 73 and 29 FLRA 348).
•
Give employees the right to refuse to do certain tasks because of their belief
that there is a reasonable risk of death or serious bodily harm (29 FLRA 726).
•
Give displaced employees the right to written, persuasive reasons for their nonselection when applying for resetection to a previously held job (27 FLRA 191).
*b- Provide employees unmeasured (unevaluated) work time when moving to a new
job (26 FLRA 612 and 25 FLRA 384).
'fr Call for the waiver of qualification requirements to assist placing employees in
new jobs when they are adversely affected (25 FLRA 1041).
Obligate the employer to pursue cost-saving methods in response to budgetary
shortfalls other than the ones it proposes to the union (25 FLRA 306).
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Information
The duty to bargain in good faith includes the obligation to provide to an exclusive
representative, upon request, and to the extent not prohibited by law, data that is
normally maintained in the regular course of business and reasonably available and
necessary for full and proper discussion, understanding and negotiation of collective
bargaining subjects. The obligation does not extend to data that is guidance, advice,
counsel, or training provided for management officials or supervisors, relating to
bargaining. 5 USC 7114(b)(4).
1. Failure to provide information that meets the criteria of 5 USC 7114(b)(4) is a
ULP.
2. Merely allowing a union to review requested material in the presence of agency
representatives is not sufficient to meet the obligation to provide information.
3. A union may expand its right to information through collective bargaining.
4. When a union attempts to obtain information through the bargaining process,
the requirements of 5 USC 7114(b)(4) are not applicable.
5. A union may waive its right to information, but the waiver must be clear and
unequivocal.
6. In the absence of a collective bargaining relationship there is no obligation to
provide information to a union.
'Reasonably available' is in a spectrum
1. Under FLRA precedent, the statutory requirement that data be "reasonably
available" would exclude data that is available only through "extreme or
excessive means".
2. The 5th U.S. Circuit Court of Appeals found that the appropriate standard for
whether data requested is "reasonably available should be something "near[]
the middle" of a spectrum between "readily available" and available only
through "extreme or excessive means."
3. The FLRA declined to address a new standard for whether data requested is
"reasonably available" in light of DOJ V. FLRA, noting that in the present
64
matter, the Authority need not "reexamine the appropriate standard...because
the record shows that, under any legitimate standard, the data requested is
reasonably available."
4. The agency bears the burden of establishing that information is not "reasonably
available" because its production would be unduly burdensome.
5. Information was "reasonably available" which required three weeks effort to
compile.
6. Information was "reasonably available' which required approximately 150 staff
hours of effort to compile.
7. Information consisting of 5,000 to 6,000 documents located in numerous
locations and requiring substantial effort to locate and reproduce was not
"reasonably available."
Union must show 'particularized need'
1. A union seeking information under the statute must articulate a "particularized
need" for it, rather then merely making an unsupported assertion that it is
necessary.
2. To establish a particularized need, the union must articulate specifically why it
needs the information and how it intends to use the information. It must
establish a connection between the requested information and its
representational duties.
3. In determining whether there is a particularized need for requested
information, an agency is justified in demanding an explanation of the union's
need for each document requested.
4. Simply stating that records are needed to allow the union to audit management
actions is not sufficient to establish a particularized need.
5. A "particularized need" statement need not be so specific as to require a union
to reveal its strategy or the identity of potential grievants.
6. Even when a "particularized need" is established it will not necessarily justify
release of information if the value of the information to the union is
outweighed by the privacy interests of one or more individuals.
7. Overruling the FORA, the 10th U.S. Circuit Court of Appeals determined that if
a union establishes a particularized need for some, but not all of the
65
information it requested, it is entitled to that information for which the need
was established.
8. Unions may be required to demonstrate the need for information that would
cover an extended period of time as part of establishing the particularized
need for information.
9. A general "audit" approach doesn't constitute a particularized need. For
example, a request to examine the records of all an agency's performance
awards to see if any of them were improperly processed probably won't meet
the particularized need standard.
10. The agency's failure to provide the union with memoranda relating to the
agency's policy governing disciplinary actions was not a ULP, because the
union's assertion of particularized need lacked specificity.
11. Representing an individual, the union established a particularized need for
sanitized disciplinary records by stating that it needed the records in order to
compare the disciplinary measures taken against other employees for similar
offenses.
Timeliness concerns
1. Information must be provided in a timely manner.
2. The mere fact that producing requested information will require the
expenditure of time and/or result in costs does not exempt an agency from the
obligation to provide it.
3. Under certain circumstances, agencies may be required to provide information
to a union even if it was not available at the time of request, but subsequently
becomes available to the agency.
Information -- In general
1. There is no obligation to provide information in a matter that does not impact
upon bargaining unit employees.
2. The right to information extends not only to that which is required for the
negotiation of agreements, but also information necessary to investigate,
evaluate or pursue a grievance.
3. MSPB case law regarding the disclosure of information is not binding upon the
FLRA.
66
4. The FLRA will not apply a necessity test to determine whether a proposal
requiring the agency to provide information is negotiable. In negotiations, the
issue is what the union may bargain for, not what it is entitled to by statute.
5. Overruling a decision of the FLRA, the D.C. Circuit held that a bargaining
proposal requiring the agency to provide the union a massive number of
documents didn't interfere with the agency's right to assign work, even though
it would place a heavy burden on the agency.
6. When denying a request for information, the agency must assert its
countervailing anti-disclosure interests. The FLRA will find a ULP if the agency
faits to establish a countervailing interest or if the union's need outweighs such
interest.
Exclusive representatives have rights
1. An exclusive representative is entitled to receive information that meets the
criteria of 5 USC 7114 in preparation for an arbitration hearing.
2. An exclusive representative is entitled to information necessary to determine
whether to file a ULP charge.
3. An exclusive representative is entitled to information pertaining to a proposed
or actual disciplinary action against a bargaining unit employee it represents
Privacy
1. Employees have significant privacy interests in the disclosure of disciplinary
information because its release could prove embarrassing and stigmatizing.
2. Employees names and home addresses are not disclosable.
3. The release of information regarding performance appraisals for employees
who are not represented by the union is protected information and cannot be
released under FOIA due to Privacy Act violations.
4. Witness statements may or may not be disclosable, depending whether the
information within them is necessary for the union to understand the facts of
the case and provide adequate representation.
Agency's duties and obligations
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1. An agency may be required to produce information that does not exist in the
precise format requested, but which can be extracted from records within the
agency's control.
2. An agency is not relieved of the duty to provide requested information merely
because it is available to the union from another source
3. Failure to comply with a Freedom of Information Act (FOIA) request is not a
ULP.
4. Although a union is not entitled to receive information that does not exist, an
agency is required to inform it of that fact.
5. Destroying requested information constitutes a ULP.
6. Agencies are normally required to provide overtime and compensatory time
records upon request.
7. An agency is required to provide information regarding non-unit positions when
it is necessary to the union to fulfill its representational responsibilities; e.g.,
for the purpose of making comparisons between various disciplinary actions.
8. An agency may not charge for information to which a union is entitled under 5
USC 7114.
PRIVACY ACT
The Privacy Act of 1974 was enacted to give citizens more control over the type of
information collected by the federal government about them and the manner in which
that information was used. The Acts central provision is Section 552a(d)(1), which
provides that each agency maintaining a system of records must:
Upon request by any individual to gain access to his record of to any
information pertaining to him which is contained in the system, permit him
and upon his request, a person of his own choosing to accompany him, to
review the record and have a copy made of all or any portion thereof in a
form comprehensible to him...
No reason for the request need be given or should be sought. FTC v. Shaffner, 626
F.2d 32 (7th Cir. July 14, 1980).
PROTECTIONS
68
The Privacy Act achieves its objective by granting the following protections:
1.
Agencies must publicly report the existence of all systems of records
maintained on individuals.
2.
Information contained in these record systems must be accurate, complete,
relevant, and up-to-date.
3.
Procedures, through which individuals can inspect records and correct
inaccuracies about themselves in federal files, must be available.
4.
Information gathered about an individual for one purpose cannot be used for
another purpose without that individual's consent.
5.
Agencies must maintain an accurate accounting of the disclosure of records
and, with certain exceptions, make those disclosures available to the subject
of the record.
6.
Agencies must collect information to the greatest extent practicable directly
from the subject individual in most situations. For example, a Court awarded
damages for mental distress resulting from an improper, secret investigation
that violated Section 552 a(e)(2). The agency did not interview the employee
until three years after beginning the investigation, when it began speaking to a
number of third parties. Johnson v. IRS, 700 F.2d 971 (1983).
7.
Limitations upon the use of social security numbers for identification.
8.
Enforcement sanctions.
TYPE OF INFORMATION AVAILABLE
1.
The Privacy Act applies only to personal records maintained by agencies of the
executive branch of the Federal government. Through the Act, an individual
can obtain access to personal records concerning himself or herself.
2.
Agencies are required to release records to the requestor in a form which is
comprehensible. For example, all computer codes and unintelligible notes
must be translated into understandable language.
FEES
69
Under the Privacy Act, agencies are permitted to charge a fee to cover the actual
cost of copying records. However, an agency cannot charge for locating or preparing
the records for inspection.
EXEMPTIONS
Certain systems of agency records can be exempted from disclosure. Each agency is
required to publish annually in the Federal Register the existence and characteristics
of all records systems, including those which have been exempted from access.
RELATIONSHIP OF SECTION 7114 TO PRIVACY ACT AND FOIA
As you can see, these three statutes are interrelated. Often information could be
requested under both 7114 or FOR. Where the rights of a union to receive
information conflict with the privacy rights of an individual, the union may be able to
obtain the information under the "routine use provision of the Privacy Act as long as a
particularized need is shown. However, the result may not be the same for a request
made under the FOR.
The question is which statute should you use in requesting information from the
agency. Of the three statutes providing access to agency information, by far the most
valuable to you as an AFGE steward is the CSRA [7114(b)(4)]. The vast majority of
information you will need to request will be relevant and necessary to a grievance,
potential grievance or negotiations. Therefore, your first consideration should be to
file a 7114 request.
MEMBERSHIP AND ACCESS TO INFORMATION
The aggressive use of your access to information rights, coupled with basic publicity
efforts, can provide a substantial boon to your membership recruitment figures. It is
frequently the information that is uncovered through a thorough and persistent use of
your access to information rights, particularly under Section 7114 that will provide
you with "the winning hand" in both grievances and mid-contract negotiations.
70
DRAFTING CONTRACT LANGUAGE
The process of drafting language, or evaluating proposed language, is filled with
opportunities as well as hazards. You can accept language that is unclear or that
simply is not an accurate reflection of what your agreement was, or you can build in
certain safeguards which will actually enhance the clarity of your agreement.
To understand this aspect of negotiations you need to know the rules of contract
writing, as well as the various tactics that can enhance an agreement's clarity:
I.
Contract Interpretation
A.
Clear and unambiguous language overrides all other interpretation
considerations, e.g. bargaining history and the intent of the parties.
B.
Words will be given their normal dictionary meaning (or special federal sector
meaning) unless the parties specifically agree in the contract to another
meaning.
C.
Words will not be considered excess or surplus in an agreement unless there is
no obvious meaning.
D.
Words and phrases will be interpreted consistent with the use of these same
words and phrases elsewhere in the agreement. Agreements are interpreted as
a whole.
E.
When you list a series of items, it is assumed that all others items are to be
excluded from the list.
F.
General terms following specific terms draw their meaning from the specific
terms.
G.
Specific language overrides general language.
H.
Clear past practices continue as long as they are not repudiated by an
agreement.
I.
Language must be interpreted to be consistent with taw and regulation.
J.
Language must be clear, (i.e., capable of no other interpretation) before a
waiver, forfeiture or absurd result will be found in its meaning.
71
Tips on How to Avoid or Get around the Problem of
Negotiating Clear Language
Often in negotiations the problem is not getting conceptual agreement but rather
trying to agree on the words to be used to describe that agreement. Professional
negotiators use a variety of tactics to get over this hurdle. Some are described below.
When you can't agree on clear, unambiguous language, a purposefully
ambiguous word or phrase helps get agreement, e.g., "reasonable," "fair and
objective," etc.
B.
Where you are asked to trust managements good intentions to properly
interpret a vague word or clause, build in a safety valve that requires
management to trust you, e.g., an early re-opener clause.
C.
When management asks you to accept a vague word or clause, but assures you
it means "X", don't be reluctant to write a note on the bargaining proposal that
you accept management's language because they assure you it means "X".
When you have a clear past practice on an issue, (e.g., reassignment) don't feel
you have to go out and negotiate for it every time the issue arises. Suggest to
management that the union sees no need to request negotiations if the past
practice is going to be followed.
E.
When management sends you a letter proposing a change and describes the
procedure to be used, consider merely accepting that letter as the terms of
employment to be followed.
72
Common Management Responses to
Proposals and Union Requests to Bargain
Management will often try to avoid negotiations by asserting a defense, which, if
correct, negates its obligation to negotiate over a certain initiative or over a certain
proposal. The two most common defenses are a declaration of non-negotiability and
covered by. Management may also claim that a change in working conditions is "de
minimis" and therefore outside its duty to bargain.
MANAGEMENT ASSERTS DEFENSE OF NON-NEGOTIABILITY
Management invokes this defense when it claims that a proposal violates federal law,
government-wide rule and/or regulation, or one of its reserved management rights.
For example, if the union proposes who will perform certain work, management will
often assert that the proposal violates its right to assign work and is therefore nonnegotiable. Similar assertions can be made referencing the right to determine
budget, internal security practices or any of the rights found in 5 U.S.C. §S 7106 (a)
and (b) (1).
Steps in Non-Negotiability Process
1.
Agency declares a proposal non-negotiable.
2.
Review the proposal.
3.
Change the proposal to make it negotiable if you agree with management's
declaration of non-negotiability. If possible, you might want to engage in
interest bargaining at this stage so that you can craft your language to meet
your needs while avoiding any interference with management's right or a
provision of law, rule or regulation. This route is preferred because it avoids
the lengthy process of challenging an agency's declaration of non-negotiability.
4.
Request the assertion of non-negotiability in writing if you believe your
proposal is clearly negotiable (after consulting with your field representative)
and begin the negotiability review process contained in 5 U.S.C. S 7117 (c).
Once you begin this process, the issue is off the table and it is isolated from
bargaining.
5.
Management puts its assertion in writing and gives it to the union.
6.
The union must file a petition with the FLRA challenging the assertion within 15
days of receiving a written declaration of non-negotiability.
7.
Management has 30 days to respond and set out its rationale for declaring that
a proposal is non-negotiable.
73
8.
The union has 15 days to respond to management's arguments.
9.
The FLRA issues a decision on the basis of the record, or it can hold a hearing
at its discretion.
Note on the non-negotiability process: This procedure is supposed to be an
"expedited" review of the agency's non-negotiability determination, but it is anything
but quick. This process will take months to complete - it is not uncommon for it to
take a year or more. Once you receive the decision, the best you can hope for is a
determination that the agency must bargain the proposal, so you are right back in the
negotiations process. As you can see, it is best to avoid this pitfall and work to make
your proposal negotiable or find another means of accomplishing your interest.
MANAGEMENT ASSERTS DEFENSE OF COVERED BY
The union does not have a right to negotiate if the matter is "covered by" an existing
contract (e.g., CBA, LOU, MOU). You need to know your term agreement and other
agreements to know whether the issue is in fact "covered by" an existing agreement.
The FLRA has interpreted this doctrine to mean that we do not have a right to bargain
in a midterm forum under the following circumstances:
1.
An existing contract "expressly covers" the topic over which we wish to
negotiate. The language of your proposal does not have to be word for word
what appears elsewhere, there need only be similarity.
2.
Your proposals and the existing contract language are similar enough such that
the FLRA determines that the proposals are "inseparably bound up with" the
language in the existing contract. The FLRA will determine whether the matter
is so closely tied to a negotiated area that further bargaining should not be
required. Has your issue normally been covered with the issue that is already
in a contract? Example: The process to develop performance standards is
normally part of a performance appraisal term contract article, so proposals
related to performance standards may be inseparably bound up with that
contract article.
Notes on covered by doctrine: There used to be a third prong to the "covered by" test
(a "reasonably should have been contemplated" prong), but the FLRA has since
determined that the issue of intent, including an examination of bargaining history, is
an integral component of the second prong. U.S. Customs Service, Customs
Management Center, Miami, FL and NTEU, Chapter 137, 56 FLRA 809 (2000).
An agency can assert the covered by defense at any time during the bargaining
process. That is to say, the agency may begin bargaining with you and then pull the
plug on the entire process, claim covered by and then implement. In fact, an agency
does not have to notify the union that it is asserting a "covered by" defense and use
of the defense is not evidence of bad faith.
74
Although the "covered by" doctrine attempts to balance the resolution of disputes
through bargaining with ongoing negotiations over the same general subject matter,
the FLRA's doctrine tends to inhibit rather than promote collective bargaining. The
FLRA has applied "the matter" in a general sense, rather than seeking to find exact
language in an existing agreement. This analysis has resulted in the FLRA engaging in
contract interpretation, not merely enforcing the Statute.
MANAGEMENT ASSERTS DEFENSE THAT CHANGE IS DE MINIMIS
Management has no duty to bargain over a change in working conditions if the change
is de minimis. Management invokes this defense when it seeks to avoid negotiations
altogether, rather than in response to a particular proposal.
Until very recently, a claim that a change was de minimis could only be asserted when
a management right was involved. In other words, regardless of how trivial the
change was, if it involved substantively negotiable matters, the agency had to
bargain. This is no longer the case. If the matter is substantively negotiable, but the
agency determines that the substance of the change itself is de minimis, the FLRA has
said the agency has no obligation to bargain. See Social Security Administration,
Office of Hearings and Appeals, Charleston, SC and Association of Administrative Law
Judges, International Federation of Professional and Technical Engineers, AFL-CIO, 59
FLRA 646 (2004).
In the SSA case, the agency unilaterally reduced the number of reserved parking
spaces assigned to the agency's administrative law judges (ALJs) Parking was a
substantively negotiable area, so the ALJs claimed the agency violated the statute by
failing to bargain. The FLRA ruled that the agency's decision had a de minimis effect
on the employees since no AU was unable to find parking in the same lot after the
number of assigned space was reduced. Therefore, the FLRA determined that the
agency was not required to bargain its decision. This case is a major departure from
prior precedent. Now agencies have the ability to issue a substantive change without
bargaining so long as the impact is deemed "de minimis."
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'Covered By' Doctrine
"Covered by" is the term used to refer to a legal doctrine holding that management
does not have to engage in midterm bargaining on those subjects that are already
contained in or covered by an existing collective bargaining agreement. In
establishing the doctrine, the FLRA explained that an agency should be free from a
requirement to continue negotiations over conditions of employment already resolved
by previous bargaining. At the same time, a union should be secure in the knowledge
that the agency may not rely on the agreement to unilaterally change conditions of
employment that were not the subject of bargaining.
•
The covered-by doctrine is a defense to a claim that an agency failed to
bargain over a change in conditions of employment. It excuses parties from
bargaining on the ground that they already bargained and reached agreement
on the matter at issue.
•
The alleged unlawful refusal to bargain may be by an agency under 5 USC
7116(a)(5), or by a union under 5 USC 7116(b)(5).
'or A matter is covered by an existing agreement if it is explicitly contained in the
agreement (prong I), or if it is inseparably bound up with a matter contained in
the agreement and thus an aspect of the matter contained in the agreement
(prong II).
•
The covered by doctrine operates to prevent bargaining, not require it.
`r. Responding to a refusal to bargain allegation, an agency may assert the
covered by defense and at the same time contend that a provision of the
agreement, a zipper clause or reopener for example, allowed it to avoid
bargaining.
Applicability
The covered by doctrine does not apply only to term agreements. If the parties
have negotiated a memorandum of understanding or similar agreement on a
particular subject, it may also serve to preclude future bargaining on that
subject.
If the subject matter in dispute is only tangentially related to the agreement
provision and not a subject that should have been contemplated as within the
scope of the provision, it is not covered by the agreement
•
In a split decision, Chair Cabaniss dissenting, the FLRA held that the covered by
doctrine does not apply to an agency policy implemented after a union waives
its right to bargain over the impact of the policy. However, the FLRA has found
76
that an agency policy implemented after a union has waived its right to bargain
constitutes a collectively bargained agreement.
'y The covered by doctrine applies to expired collective bargaining agreements.
Where a dispute concerns only an agency's contractual duty to bargain rather
than a statutory duty, the covered by doctrine does not apply, because the
issue is one of contract interpretation.
Prongs I and II
➢
Under prong I of the covered by doctrine, a proposal will be found to concern a
matter expressly contained in the agreement only if it would have the effect of
conflicting with or modifying the agreement.
➢ In determining whether a matter is inseparably bound to a matter contained in
an agreement under prong II, the FLRA may consider the intent of the parties
and bargaining history. Intent and history do not constitute a separate prong of
the covered by defense.
Waiver
• An agency may agree to bargain over any matter not specifically addressed in
an agreement and thus waive a portion of the covered by defense.
•
An agency does not waive the covered by defense simply because it does not
assert it at the time the union requests bargaining. If a matter is covered by an
agreement, an agency may act unilaterally without providing any reasons.
77
I
NEGOTIABILITY
Negotiability is a term used to describe the determination of whether a specific proposal is
within the statutory obligation or discretion of an agency to bargain.
A proposal does not qualify as a procedure if it directly interferes with the exercise of a
management right.
A proposal is a matter offered for bargaining that has not been agreed to by the parties. A
provision is a matter that has been disapproved by the agency head pursuant to 5 USC
7114(c). 5 CFR 2424.2. The term "provision!' is also used to refer to a clause that is contained
within a labor agreement.
Two types of arguments may be raised in negotiability proceedings: negotiability disputes
concerning the legality of a proposal, and bargain obligation disputes concerning whether a
party must bargain over a proposal that may be otherwise negotiable. However, a bargaining
obligation question, standing alone, is not resolved in a negotiability proceeding.
If a union fails to dispute an agency's claim that a proposal impacts the exercise of a
management right, and fails to support a claim that the proposal is subject to an exception to
managements rights, the FLRA will find the proposal outside the duty to bargain.
If the FLRA honors a party's request to group proposals because they concern the same
subject matter, and it finds one of the proposals outside the duty to bargain, it will declare
all proposals in the grouping also outside the duty to bargain.
The FLRA will adopt the union's interpretation of its proposals where that interpretation is
consistent with the wording of the proposals.
The FLRA dismisses petitions for review where it is unable to determine from the wording of
the proposal, and the union's explanation, exactly how the proposal would work, so as to be
able to assess it under applicable law and regulation.
There is no statutory requirement that a party bargain below the level of recognition. It is,
however, a permissive matter.
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I
I
NiEtikOICIAIIILITY 1PROCEDITRES
After an agency makes an allegation of non-negotiability, each party has the opportunity to
argue its case in two submissions. 5 CFR part 2424, Subpart C.
The union's initial petition for review must set forth the exact wording of the proposal, along
with an explanation of its meaning and how it is intended to work. 5 CFR 2424.22.
The agency must file a statement of position setting forth its specific objections to the
proposal with appropriate explanation and citations. 5 CFR 2424.24.
The union must respond to the agency's statement of position stating any disagreements with
the agency's position with citations, The response is specifically limited to matters raised by
the agency in its statement of position. 5 CFR 2424.25.
The agency may reply to the union's response. The reply is limited to arguments made for the
first time in the union's response. 5 CFR 2424.26.
The FLRA will not consider arguments raised by a party that appear in the wrong submission.
Failure by a party to address any assertion made by the other party will be deemed a
concession to that assertion.
Either party may request a hearing, but a hearing will be granted only when the request or
the record raises factual issues that must be resolved in order to determine the negotiability
of the proposal.
Where a union offers no argument or authority to counter an agency contention that a
proposal affects management rights and does not assert that the proposal is an exception to
management rights under Section 7106(b), the proposal will be declared outside the duty to
bargain.
In its response to an agency's statement of position, the union's failure to address the agency's
contention that a proposal affected the exercise of management rights constituted
acceptance of that assertion.
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NEGOTIABILITY STRATEGY
Not only is it necessary to know how to write negotiable proposals, it is also very
helpful to know how to strategically respond to management's assertion of nonnegotiability.
Under the law, the negotiability process goes as follows:
1.
Management asserts non-negotiability.
2.
The union requests the assertion in writing; bargaining over the proposal ends.
3.
Management puts its assertion in writing.
4.
The union files a petition with FLRA.
5.
Management files its arguments with FLRA in 30 days.
6.
The union has 15 days to respond with arguments.
7.
The FLRA decides the case.
Here is how AFGE must handle these problems:
1.
Management asserts nonnegotiability.
2.
AFGE ignores management and keeps bargaining.
3.
We look for ways to fix the problem language.
4.
We explore packages and unilateral management actions around the issue.
5.
We search for acceptable language that the FLRA has already held negotiable.
6.
We consider dropping the substantive proposal for Impact and Implementation
language and an appeal.
7.
We ask for management's written assertion at the last moment, e.g. at FMCS or
FSIP; once this is done, the process is the same as above (beginning with step
#3).
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Negotiability, a quick peek
Agencies looking at union proposals often use a series of questions in a first screening.
These include:
1. Does the proposal affect a working condition or "condition of employment"?
2. Does the proposal affect unit employees?
3. Does the proposal violate a law?
4. Does the proposal violate a government-wide regulation?
5. Does the proposal violate an agency regulation?
6. Does the proposal violate management rights?
7. Does the proposal fall into the "permissive area?
8. Is the proposal a procedure for exercising management rights?
9. Is the proposal an appropriate arrangement for employees adversely affected
by a management right?
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Agency Head Review
Once the agreement is executed, the agency head, or the person to whom this authority has
been delegated, has the right to disapprove any provision of the agreement that conflicts
with law, rule, or binding regulation.
The approval process is limited to identifying and rejecting contract provisions that conflict
with law or government-wide regulations.
Where even one clause in a complete term agreement is disapproved, the entire agreement is
disapproved and does not become effective until that dispute is resolved.
Where the agency negotiators have knowingly or unknowingly agreed to contract provisions
involving permissive subjects of bargaining, the agency head does not have the right to
disapprove them solely on the grounds that they were permissive subjects that he or she did
not agree to bargain.
5 USC 7114 (c) provides that an agreement between a union and an agency is subject to
approval by the head of the agency. The agency head is required to approve the agreement
within 30 days of the date of its execution if the agreement is in accordance with the
provisions of the statute and other applicable laws, rules or regulations. If the agency head
fails to approve or disapprove the agreement within the 30-day window, the agreement takes
effect and becomes binding on the parties
(c)(1) An agreement between any agency and an exclusive representative shall be subject to
approval by the head of the agency.
(2)
The head of the agency shall approve the agreement within 30 days from the date the
agreement is executed if the agreement is in accordance with the provisions of this chapter
and any other applicable law, rule, or regulation (unless the agency has granted an
exception to the provision).
(3)
If the head of the agency does not approve or disapprove the agreement within the 30-day
period, the agreement shall take effect and shall be binding on the agency and the
exclusive representative subject to the provisions of this chapter and any other applicable
law, rule, or regulation.
(4)
A local agreement subject to a national or other controlling agreement at a higher level
shall be approved under the procedures of the controlling agreement or, if none, under
regulations prescribed by the agency.
If the agency head disapproves an agreement, the union may file a negotiability petition with
the Federal Labor Relations Authority, challenging the agency head's determination that a
provision is unlawful. The petition must be filed in accordance with the requirements of 5
CFR Part 2424.
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Procedural matters
A notice of agency head disapproval must be in writing and served on the union by one of the
methods permitted in 5 CFR 2429.27.
There is no requirement that an agency head's disapproval of an agreement must be made
with any particular degree of specificity. The agency must support its allegations of nonnegotiability with specificity and rationale only after being served with a union's negotiability
petition.
In demonstrating service by mail, the document must be correctly addressed so that it is
delivered by mail to the intended recipient. When the agency head's disapproval was not
properly addressed and was received after the 30-day deadline, the agreement had already
gone into effect.
5 USC 7114 (0(4) allows the parties to establish in a controlling agreement the time frame for
approval of local supplemental agreements. If no such time frame is established, the 30-day
time limit in Section 7114 (c)(2) will apply.
Review in general
When the parties have reached an agreement on a matter covered by the permissive scope of
bargaining, it cannot be disapproved upon agency head review because it is not contrary to
law.
A contract with an automatic renewal or "rollover provision is subject to agency head review
upon renewing itself.
The head of an agency may delegate the authority to review collective bargaining
agreements.
When an agreement becomes effective following an agency head's failure to disapprove it in a
timely fashion, any provisions conflicting with law or government-wide regulation are
unenforceable in arbitration or any other proceeding.
Execution of aareement
The date of execution of a collective bargaining agreement is that date on which no further
action is necessary to finalize the agreement and to render it complete as an instrument. In
most cases, this is the day on which representatives of the parties sign it.
An agreement must be executed if either party requests, but execution is not necessary for
making a factual finding that an agreement has been reached.
Normally, the date of execution of an agreement is the date local negotiators sign it.
However, the parties may provide for other arrangements, for example, the signature of a
higher level manager.
If an interest arbitrator appointed at the direction of the FSIP dictates the terms of an entire
agreement, the date of execution for the purpose of agency head review is the date the
award is served on the parties.
If an interest arbitrator writes the terms of only some parts of an agreement, the date of
execution is not necessarily the date of service, particularly if the parties continue
bargaining.
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Effect of disapproval
Upon disapproval of any portion of an agreement, the entire agreement is disapproved and
the agency is free to refuse to implement any provisions of the agreement.
The parties may agree to implement those provisions of an agreement not disapproved by the
agency head and under such agreement the provisions will be enforceable.
Review of FSIP and interest arbitrators' decisions
An agency head has the authority to disapprove a provision ordered by the FSIP on the basis
that the provision is unlawful.
Where the agency head disapproves a provision ordered by the FSIP and the provision is later
ruled not contrary to law, the agency will be found to have violated the statute.
An agency head's rejection of a provision ordered by the FSIP may be challenged through the
negotiated grievance procedure where an arbitrator has the authority to make a negotiability
determination on the provision disapproved by the agency head.
Interest arbitrators' awards issued pursuant to the direction of the FSIP are subject to agency
head review. But awards issued when the parties voluntarily engage in interest arbitration are
not. These awards may be challenged under the exceptions procedures contained in 5 USC
7122.
Government - wide rules
Government-wide rules or regulations are those regulations and other official declarations of
policy that are binding on agencies and the officials to which they apply.
Proposals that conflict with government-wide rules and regulations are generally not within
the duty to bargain.
Government-wide issuances that merely state advice or guidance do not bar negotiation of a
proposal.
Regulations
Agencies may not enforce any conflicting rule or regulation that is promulgated after the
effective date of a labor agreement unless the rule or regulation implements.
An agency's own regulations may bar negotiation of a proposal if:
The union involved does not represent a majority of the agency's employees,
a)
and
b)
There is a compelling need for the regulation. 5 USC 7117(a)(2).
The FLRA defines a compelling need regulation as one that is:
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1)
Essential, rather than merely helpful or desirable to the accomplishment of the
agency's mission;
2)
Necessary to ensure maintenance of basic merit principles; or
3)
Implements a mandate or order. 5 CFR 2424.11.
Permissive
Insisting that a previously agreed-upon permissive topic of bargaining be retained in a
subsequent tabor agreement to the point of creating an impasse constitutes bad faith
bargaining.
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Dispute Resolution
There are three different dispute resolution mechanisms covered by federal labor
relations law:
1. Impasse procedure
2. Grievance procedure
3. Unfair labor practice procedure.
Impasses can occur any time the parties bargain with one another. In the private
sector, a strike or walkout may be the result of an impasse. However, in federal labor
relations, a formal process exists to end these disputes. The process requires
mediation, and if that fails, use of a panel created by the law or an arbitrator to end
the dispute.
Grievances of employees in a bargaining unit are covered by whatever grievance
procedure the parties bargain after the collective bargaining agreement goes into
effect. Grievances are broad in scope in federal labor relations and can cover almost
any matter of dissatisfaction on the part of an employee. While employees may file a
grievance at any time, only a union or the agency may take a case to arbitration.
Unfair labor practices are allegations that the federal labor relations law was
violated. In other words, an employee, union or managements right has been
violated. Grievances and unfair labor practices may not involve the same issue. An
unfair labor practice, if determined valid, is prosecuted by the FLRA.
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