Bargaining Training SCR Caucus 2012

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Bargaining Training SCR Caucus 2012

  1. 1. When there is a decision by an agency to change conditions ofemployment of unit employees, even if a protected management rightis involved, there is a duty to notify the union. Also, upon request bythe union, there is a duty to bargain on the procedures thatmanagement will follow in implementing its decision as well as onappropriate arrangements for employees expected to be adverselyaffected by the decision.This is often referred to as "impact and implementation" bargaining .Management has the right to decide whether to take actions listed in 5USC §7106 (a). However, unions are entitled, under succeedingsections §7106(b)(2) and (3), to negotiate with the agency theprocedures management officials of the agency will observe inexercising its authority under 7106; or appropriate arrangements forbargaining unit employees adversely affected by such managementdecisions.
  2. 2. 5 USC § 7106 (b)(3) requires agencies to bargain over union proposals thataffect the exercise of management rights if the proposals constituteappropriate arrangements for employees adversely impacted, or reasonablylikely to be negatively impacted by the exercise of a management right.A proposal is a valid "arrangement" when it is structured to lessen theimpact on identified employees and tailored to those employeesA proposal is an "appropriate" arrangement when it does not excessivelyinterfere with the management rights in question.Recent developments in case precedent require that agency negotiatorsraise an argument that a proposal excessively interferes with managementrights during the bargaining process, and declare it non-negotiable at thattime. If a proposal intended as an appropriate arrangement is agreed to byagency negotiators, it cannot be rejected at the level of agency head reviewconducted in accordance with 5 USC 7114 (c) unless it "abrogates" ornullifies the exercise of the right.Similarly, when an arbitrator enforces an agreement provision negotiated asan appropriate arrangement, the FLRA will not review the award under theexcessive interference standard. The award will be overturned only if itabrogates the management right.
  3. 3. Negotiability is a term used to describe thedetermination of whether a specific proposal is amandatory, permissive, or prohibited subject forbargaining. This determination requires the applicationof several "tests" or standards that have evolved throughdecisions rendered by the Federal Labor RelationsAuthority and the courts.Note that this guide provides information on hownegotiability is determined, not upon the negotiabilityof any specific topics. This guide uses the terms"proposal" and "provision." A proposal is a matteroffered for bargaining that has not been agreed to bythe parties. A provision is a matter agreed to by theparties and either subject to agency head review under5 USC §7114 (c) or already contained in an approvednegotiated agreement.
  4. 4.  A proposal does not qualify as a procedure if it directly interferes with the exercise of a management right. Social Security Administration, 94 FLRR 1-1146 , 49 FLRA 1408 (FLRA 1994); Wright-Patterson AFB, 80 FLRR 1-1199 , 2 FLRA 604 (FLRA 1980). 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 (whether a matter is already covered by an existing agreement, for example). However, a bargaining obligation question, standing alone, is not resolved in a negotiability proceeding. Federal Aviation Administration, 107 LRP 59207 , 62 FLRA 174 (FLRA 2007). If a union fails to dispute an agencys 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. Federal Correctional Institution, Waseca, Minn., 109 LRP 59945 , 64 FLRA 62 (FLRA 2009); Federal Aviation Administration, 108 LRP 5004 , 62 FLRA 337 (FLRA 2008). If the FLRA honors a partys 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. Federal Aviation Administration, 107 LRP 59207 , 62 FLRA 174 (FLRA 2007). The FLRA will adopt the unions interpretation of its proposals where that interpretation is consistent with the wording of the proposals. Environmental Protection Agency, 107 LRP 6280 , 62 FLRA 1 (FLRA 2007). The FLRA dismisses petitions for review where it is unable to determine from the wording of the proposal, and the unions explanation, exactly how the proposal would work, so as to be able to assess it under applicable law and regulation. Immigration and Naturalization Service, 91 FLRR 1-1432 , 42 FLRA 599 (FLRA 1991).
  5. 5.  Specific functions and decisions have been reserved to management by Section 7106(a) of the Federal Service Labor- Management Relations Statute. Title 5 USC §7106 (a). These include an agencys determination of its mission, budget, and organization as well as the overall number of employees it will employ and its internal security practices. In accordance with applicable laws, the agency also has the right to hire, assign, direct, lay off, and retain employees; to suspend and remove employees; and to take other disciplinary actions. The agency retains the right to assign work, to determine the personnel needed to conduct operations, and to make decisions regarding the contracting out of work. The right to make selections is also exclusive to the agency. Finally, an agency has the right to take whatever actions are necessary in cases of emergency. The above actions are often referred to as prohibited subjects of bargaining, and generally, they may not be waived.
  6. 6.  From 10-1089-1317440 - DC Circuit Court - Mission Critical Roster “Section 7106(a) gives an agency an exclusive, non-negotiable right to assign work but, under § 7106(b), it may bargain with the representative of its employees over the “procedures” it will use when it exercises that authority and the “appropriate arrangements” it will make for any employee “adversely affected” by a particular action. An agreement prescribing such “arrangements” and “procedures,” that is, the “impact and implementation” of an agency’s management right, therefore covers the content of the agency’s decisions made under that rubric. See Dep’t of Navy, 962 F.2d at 50 (“Although an agency is not required to bargain with respect to its management rights per se, it is required to bargain about the impact and implementation of those rights”). Article 18, specifically in sections (d) and (g), reflects the parties’ earlier bargaining over the impact and implementation of the Bureau’s statutory right to assign work. See § 7106(b) (permitting bargaining over the “numbers, types, ... or positions assigned to any ... work project[] or tour of duty”). Specifically, these provisions represent the agreement of the parties about the procedures by which a warden formulates a roster, assigns officers to posts, and designates officers for the relief shift.”
  7. 7.  ABROGATION TEST. A test the Federal Labor Relations Authority (FLRA or Authority) formerly applied in determining whether an arbitration award enforcing a contract provision affecting managements § 7106(a) rights is deficient. Under that test (which was in existence for 12 years), an award enforcing a contractual provision that is an "arrangement" for employees adversely affected by the exercise of managements § 7106(a) rights would not be set aside unless it "abrogated" those rights--i.e., unless it left management no discretion at all with respect to the management right(s) at issue. For lead cases see 37 FLRA Nos. 20, 67, 70, 103 and 38 FLRA Nos. 3 and 21.
  8. 8.  However, Section Title 5 USC §7106 (b) provides that the procedures for exercising management rights are negotiable, as are appropriate arrangements proposed by a union. Subsection (b)(1) provides that an agency may, at its discretion, negotiate some matters that are normally viewed as management rights. Commonly referred to as the permissive scope of bargaining, these are: the numbers, types, and grades of employees assigned to an organizational subdivision, and the technology, methods, and means of performing work. This guide refers briefly to particular management rights. Several Quick Start Guides address specific management rights in detail. See links below. The decision in Environmental Protection Agency, 110 LRP 57877 , 65 FLRA 113 (FLRA 2010) means that the FLRA will no longer apply the excessive interference test to the awards of arbitrators enforcing agreement provisions negotiated as appropriate arrangements. Now, an award will be overturned only if it "abrogates" (waives) a management right. At the bottom of this Quick Start Guide are rulings where an arbitrators award affected or excessively interfered with the exercise of a management right. These rulings were issued before the excessive interference test was replaced with the abrogation standard, and are included because it is not known how they would have been resolved if the abrogation standard had been applied (for example, it is possible that the abrogation standard wouldve been met). The guide will be updated regularly as more decisions are issued applying the abrogation test
  9. 9.  The matters enumerated in 5 USC 7106 (b)(1) are generally referred to as the permissive topics for bargaining. These are: The numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty; and The technology, methods, and means of performing work. An agency may elect to negotiate over the substance of union proposals addressing these matters or it may lawfully refuse to bargain. There is considerable overlap between the permissive scope of bargaining and the nonnegotiable management rights contained in Section 7106(a). Where a proposal concerns a permissive matter and at the same time affects the exercise of a management right, it is viewed as permissive because Section 7106(b)(1) was intended as an exception to Subsection (a). Permissive bargaining extends beyond the scope of Section 7106(b). For example, an agency may, but does not have to, negotiate over the manner in which it fills supervisory positions. A union may, but is not required to, negotiate a waiver of a statutory right. A party has the unilateral right to terminate a permissibly negotiable agreement upon expiration of the agreement.
  10. 10.  The "covered by" doctrine is used as a defense to an alleged failure to satisfy a statutory bargaining obligation. Conversely, with grievances involving a dispute concerning whether a contractual, as opposed to a statutory, bargaining obligation has been violated, the arbitrator must interpret the contract to determine whether the parties have complied with the agreement. Department of Defense, National Guard Bureau, 102 LRP 15615 , 57 FLRA 934 (FLRA 2002). When a party alleges a proposal is covered by an existing agreement, the Federal Labor Relations Authority/FLRA applies a two part test. Under prong one the FLRA determines whether the matter is expressly contained in the agreement. If it is not, prong two asks whether the matter is inseparably bound up with, and thus plainly an aspect of a subject covered by the contract. Internal Revenue Service, 101 FLRR 1-1117 , 57 FLRA 126 (FLRA 2001).
  11. 11.  From 10-1089-1317440 - DC Circuit Court - Mission Critical Roster If a collective bargaining agreement “covers” a particular subject, then the parties to that agreement “are absolved of any further duty to bargain about that matter during the term of the agreement.” Dep’t of Navy, 962 F.2d at 53.* For a subject to be deemed covered, there need not be an “exact congruence” between the matter in dispute and a provision of the agreement, so long as the agreement expressly or implicitly indicates the parties reached a negotiated agreement on the subject. NTEU, 452 F.3d at 796 (internal quotation marks omitted). An agreement between an agency and its employees’ designated representative must be construed “in view of the policies embodied in the [Statute].” Id. at 797. When the question is whether an agreement “covers” a matter, we must answer bearing in mind the importance of finality to collective bargaining. See Dep’t of Navy, 962 F.2d at 59 (the “covered by” doctrine ensures the parties’ “stability and repose” during the term of their agreement).
  12. 12.  Date: Tuesday, April 03, 2012 To: Paul Layer, Chief of LMR Federal Bureau of Prisons From: Michael A. Castelle, Sr., NFPC/CPL-#33 Subject: Invocation of Union’s Rights to Bargain over the Implementation of Reasonable Accommodations Coordinators in the Federal Bureau of Prisons On or about January 6, 2012, the Council of Prison Locals was informed by Ken Hyle, Deputy General Counsel via email that the Human Resources Managers at every institution and Office are considered Reasonable Accommodations Coordinators. There is no provision in the Human Resources Manual Program Statement 3000.03 which confirms Mr. Kyle’s assertion. Therefore translating into the fact that this process has not been formally negotiated with the Council of Prison Locals. This action on the behalf of the Agency has a direct impact on the working conditions of the bargaining unit employee and is therefore negotiable in accordance with Title 5 USC and all other applicable Federal Rules, Laws and Regulations. Reasonable Accommodations Coordinators is a provision to the Department of Justice Reasonable Accommodations Manual, and in which the Federal Bureau of Prisons is a component. Reasonable Accommodations is a provision of 29 CFR § 1614.102 (a)(8) and is therefore a part of the EEO process in the Federal Government. There is a direct conflict of interest in the Reasonable Accommodations process having the Human Resources Manager as Reasonable Accommodations Coordinators based on their role in the Fitness for duty process and the potential removal of an employee from the Agency based on the employee’s physical or mental condition. Which is causing a “Chilling” affect towards those employee requesting a reasonable accommodation but not limited to the fact the HRM’s are not “Neutral” in this process and not see as impartial participants to the bargaining unit employee. Therefore, pursuant to Article 25, Section (f) and Articles 3, 4, and 7 of the parties Master Agreement, as well as requirements outlined in 5 U. S. C § 7114 (a) (2) (A) I am here by invoking the Union’s Right to negotiate all changes in working conditions of the bargaining unit employees in the Federal Bureau of Prisons being affected by the agency’s unilateral decision to have all the HRM at the institution and office level to perform the duties of the Reasonable Accommodations Coordinators. The Union is demanding a cease and desists of any implementation pursuant to FLRA Case precedence relating to bargaining. Mr. Layer, if you or you representative is unclear, perplexed, bewildered or simply do not understand what is being stated above please contact this Union Advocate at your earliest convenience.
  13. 13.  Before commencing negotiation over a 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 Federal Mediation and Conciliation Service and the Federal Service Impasses Panel before substantive negotiations begin. This guide addresses in general principles that have been developed and the disputes that have been resolved governing the negotiation of ground rules.
  14. 14. Either party may lawfully insist on reaching an agreement on groundrules before commencing negotiations on substantive matters. ScottAFB, 92 FLRR 1-1379 , 46 FLRA 640 (FLRA 1992).
  15. 15. An agencys declaration of the number of representatives it willhave in negotiations does not preclude the union from bargainingground rules providing for additional union negotiators, as well asthe number allowed by statute. Environmental Protection Agency,84 FLRR 1-1578 , 15 FLRA 461 (FLRA 1984).
  16. 16. Pursuant to Title 5 United States Code and the Master Agreement, the Unionis invoking itsright to bargain over the proposed change, e.g., Unit ManagementScheduling, or Changes in Office Assignments.Even if this have been negotiated on the Nation level I still have the right tohave local negotiation.Please keep in mind that with the initiation of this bargaining requestwe expect a "status quo ante" be maintain and no changes take place untilbargaining is completed through impasse.Please notify me when we can negotiate ground rules.If there are any question or concerns please contact me.
  17. 17.  Informal discussions with management do not constitute bargaining, and if it’s not annotated in writing, it’s simply hearsay between the parties. The “Hearsay Rule”: a rule that declares not admissible as evidence any statement other than by a witness while testifying at the hearing and offered into evidence to prove the truth of the matter state.
  18. 18.  Section a. In prescribing regulations relating to personnel policies and practices and to conditions of employment, the Employer and the Union shall have due regard for the obligation imposed by 5 USC 7106, 7114, and 7117. The Employer further recognizes its responsibility for informing the Union of changes in working conditions at the local level. Section b. On matters which are not covered in supplemental agreements at the local level, all written benefits, or practices and understandings between the parties implementing this Agreement, which are negotiable, shall not be changed unless agreed to in writing by the parties. Section c. The Employer will provide expeditious notification of the changes to be implemented in working conditions at the local level. Such changes will be negotiated in accordance with the provisions of this Agreement.
  19. 19. Suppose an agency and union bargained over the implementationof a new policy on geographic reassignments, but never reached apoint of agreement. The agency notified the union it wouldimplement the policy. The union didnt respond. The agencyordered the first round of reassignments, and the uniondemanded bargaining, contending that it never agreed to thepolicy. Must the agency bargain?Not necessarily. The Federal Labor Relations Authority has foundthat a union may waive its right to bargain over a change inconditions of employment either explicitly through agreement, orimplicitly through inaction. By not responding to the agency orinvoking the Federal Service Impasses Panel, the union may haveimplicitly waived its right to bargaining over a change inconditions of employment.
  20. 20.  An agency may be guilty of an unfair labor practice when it changes the conditions of employment of bargaining unit employees without notifying the union and providing it with an opportunity to bargain over the change. There are times when the union has the right to bargain over the substance of the change. When the change involves an exercise of management rights, the union may bargain only over its impact and implementation. However, there are occasions when a change in conditions of employment does not give rise to a duty to bargain. There have also been cases where the Federal Labor Relations Authority found the union waived its right to bargain. The alleged failure to bargain over a change is one of the most frequently occurring ULP complaints.
  21. 21. When an agency proposes to change conditions ofemployment pursuant to an exercise of itsmanagement rights, it has an obligation to notifythe union and to bargain at the unions request overprocedures and arrangements. General ServicesAdministration, 108 LRP 6377 , 62 FLRA 341 (FLRA2008).
  22. 22. An agency has no obligation to bargain over a changethat has a de- minimis impact on conditions ofemployment. This is true whether the change wouldbe negotiable as to substance or impact. Associationof Administrative Law Judges v. FLRA, 105 LRP 4813 ,397 F.3d 957 (D.C. Cir. 2005); Social SecurityAdministration, 104 LRP 8793 , 59 FLRA 646 (FLRA2004).
  23. 23. In assessing whether the effect of a change inconditions of employment is more than de minimis,the FLRA looks to the nature and extent of either theeffect or the reasonably foreseeable effect of thechange on bargaining unit employees. GeneralServices Administration, 108 LRP 6377 , 62 FLRA341 (FLRA 2008); Internal Revenue Service, 101 FLRR1-1034 , 56 FLRA 906 (FLRA 2000).
  24. 24. Conditions of employment is the term used to describe those matters thatare ripe for collective bargaining either as to their substance or, whenthey involve the exercise of a management right, their impact andimplementation. 5 USC 7103 (a)(14) defines conditions of employment as"personnel policies, practices, and matters, whether established by rule,regulation, or otherwise, affecting working conditions." The statuteexcludes certain matters from the definition. These are policies, practicesand matters relating to prohibited political activities or the classificationof any position. Also excluded are matters specifically provided for byfederal statute.Conditions of employment include both the environmental andadministrative aspects of employment, everything from the physicaldesign and layout of employee workspaces to work schedules, proceduresfor leave approval, disciplinary procedures, and an endless array of othermatters.The terms "conditions of employment" and "working conditions" are oftenused interchangeably by practitioners. However, the language of thestatute would seem to indicate they mean different things.
  25. 25. To determine whether a proposal concerns a condition ofemployment, the FLRA applies a two-part test: 1) whether theproposal pertains to bargaining unit employees; 2) whether there is anexus between the proposal and the work situation or employmentrelationship of bargaining unit employees.
  26. 26. The Federal Employees Flexible and Compressed Work Schedules Actof 1982, 5 USC 6120 et. seq., provides for the establishment of workschedules other than the traditional eight-hour day, 40-hour week.Employees within a recognized bargaining unit are included in workschedules covered by the act only if such schedules are bargainedwith the exclusive representative. The Federal Labor RelationsAuthority has declared that all aspects of alternative work schedulesnegotiated under the act are subject to bargaining over any agencyobjections that such schedules interfere with management rights.The Federal Service Impasses Panel is the major third-party playerunder the terms of the Work Schedules Act. It is charged withdetermining whether a particular work schedule causes an "adverseagency impact" as that term is used in the act.
  27. 27. To establish adverse agency impact, an agency must show that aparticular work schedule contained in a collective bargainingagreement caused, or if still a proposal not yet agreed to, is likelyto cause, a reduction in productivity, a diminished level ofcustomer service, or an increase in cost (other than a reasonableadministrative cost related to the process of establishing theflexible or compressed schedule). Federal Bureau of Prisons, 108LRP 48963 , 08 FSIP 68 (FSIP 2008); 5 USC 6131 (b).Agency arguments of adverse impact must be more thanspeculative. FCI Schuylkill, Minersville, Pa., 106 LRP 73106 , 06FSIP 111 (FSIP 2006).In order to prove adverse impact, the record must containevidence linking the alleged adverse impact to the work scheduleat issue. March Air Reserve Base, 107 LRP 10571 , 07 FSIP 31 (FSIP2007).

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