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Advanced FLRA Statutory Training

Advanced FLRA Statutory Training. Union’s Right to Collective Bargaining. 5 U.S.C. § 7114(a)(1)

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Advanced FLRA Statutory Training

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  1. Advanced FLRA Statutory Training

  2. Union’s Right to Collective Bargaining • 5 U.S.C. § 7114(a)(1) A labor organization which has been accorded exclusive representation is the exclusive representative of the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering all employees in the unit.

  3. Bypass Defined • “Dealing directly” with unit employees concerning any matter affecting the employees’ conditions of employment. AFGE, Nat’l Council of HUD Locals 222, 54 FLRA 1267 (1998). • “Dealing directly” with employees interferes with the union’s rights under § 7114(a)(1) of the Statute “to act for . . . all employees in the unit,” and violates § 7116(a)(1) and (5) of the Statute. U.S. DOJ, Bureau of Prisons, FCI, Bastrop, Tex., 51 FLRA 1339 (1996).

  4. Bypass Occurs When: • An agency communicates directly with bargaining unit employees concerning grievances, disciplinary actions where the agency knows the employee is represented by the union, and other matters relating to the collective bargaining relationship. • Bastrop, Tex., 51 FLRA 1339 (1996); Dep’t of HHS, SSA, Balt., Md. & SSA, Reg. X, Seattle, Wash., 39 FLRA 298 (1991).

  5. Actions Held to be a Bypass • Negotiating a change in working conditions directly with an employee. SSA, 55 FLRA at 978 (1999); Air Force Accounting and Fin. Ctr., Lowry Air Force Base, Denver, Colo., 42 FLRA 1226 (1991). • Providing a disciplinary decision to employee rather than the union representative who represented employee. Dep’t of the Air Force, Sacramento Air Logistics Ctr., McClellan AFB, Cal., 35 FLRA 345 (1990); 438th Air Base Group (MAC), McGuire AFB, N.J., 28 FLRA 1112 (1987). • Communicating with an employee regarding a grievance that falls within the scope of the negotiated grievance procedure. U.S. DOJ, INS, N.Y. Office of Asylum, Rosedale, N.Y., 55 FLRA 1032 (1999).

  6. Actions Held NOT to be a Bypass • Polling: Management may directly solicit information from employees about its operations, so long as it does not attempt to use a poll or survey to bargain directly with them about matters subject to bargaining with the union. Dep’t of Treasury, IRS, Wash., D.C., 31 FLRA 832 (1988). • Agency dealings with employees where a union has no statutory rights do not constitute direct dealing in violation of the Statute. U.S. GPO, 23 FLRA 35 (1986) (EEO complaint with personal representative who was not also a union representative).

  7. Two aspects of collective bargaining

  8. Collective BargainingDefinition • 5 U.S.C. § 7103(a)(12) to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached

  9. Scope of Bargainingconditions of employment defined • 5 U.S.C. § 7103(a)(14) personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term shall not include policies, practices, and matters - • Relating to political activities • Relating to classification of any position; or • Specifically provided for by Federal statute. • Antilles Consolid. Educ. Ass’n, 22 FLRA 235 (1986).

  10. Conditions of Employment • The Authority applies a two-prong test: • Whether the matter pertains to bargaining unit employees, and • Whether there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. • Antilles Consolid. Educ. Ass’n, 22 FLRA 235 (1986).

  11. Are these Conditions of Employment? • Fitness centers • Access to military exchange facilities • Food services • Office space for the Union • Entry-level supervisory positions • Child care centers • Water coolers

  12. Scope of Bargaininglimited bylaw and government-wide rules • 5 U.S.C. § 7117(a) establishes that management is not obligated to bargain over proposals that are inconsistent with Federal law or any government-wide rule or regulation.

  13. Scope of BargainingManagement Rights Clause • 5 U.S.C. § 7106(a) establishes management rights under the Statute. The substance of management’s decision to exercise these rights is non-negotiable. • Right to determine the mission, budget, organization, number of employees and internal security practices • In accordance with applicable laws, hire, assign, direct, layoff, retain, suspend, remove, reduce in grade or pay, discipline, assign work, contract out, determine personnel, make selections for hiring, and other action as necessary to carry out the mission during emergencies. • Management rights are subject to § 7106(b).

  14. Scope of BargainingPermissive Subjects • 5 U.S.C. § 7106(b)(1) establishes permissive subjects of bargaining. • The parties may bargain over permissive subjects, but are not required to bargain. • Permissive subjects: • numbers, types, and grades of employees or positions; on the technology, methods or means of performing work.

  15. Scope of BargainingProcedures and Appropriate Arrangements • 5 U.S.C. § 7106(b)(2) and (3) require an agency to bargain over procedures and appropriate arrangements when it exercises its rights under the management rights clause. • Commonly referred to as bargaining over the “impact and implementation” of a change.

  16. Scope of BargainingMandatory Subjects • Pertains to conditions of employment of the bargaining unit. • Procedures and appropriate arrangements concerning the exercise of management rights. • Does not include matters inconsistent with Federal law and government-wide rules and regulations.

  17. Appropriate Arrangements • The proposal must be an "arrangement" for employees adversely affected by the exercise of a management right. • The arrangement must be sufficiently "tailored" to compensate or benefit employees suffering adverse effects attributable to the exercise of management's right(s). • Is the arrangement “appropriate” or does it “excessively interfere” with the relevant management right(s)? Nat’l Ass’n of Gov’t Employees, Local R14-87 & Kan. Army Nat’l Guard, 21 FLRA 24 (1986) (KANG).

  18. “Arrangement” • Proposal must seek to mitigate adverse effects "flowing from the exercise of a protected management right."

  19. “Tailored” • The proposal must provide "balm" to be administered "only to hurts arising from" the exercise of management rights. • The proposal must not be so broad in sweep that the "balm" would be applied to employees indiscriminately without regard to whether the group as a whole is likely to suffer, or has suffered, adverse effects as a consequence of management action.

  20. “Appropriate” • The Authority weighs • the benefits afforded to employees under the arrangement • against • the intrusion on the exercise of management's rights.

  21. “Good Faith” Bargaining • It is an unfair labor practice for an agency or union to “refuse to consult or negotiate in good faith.” 5 U.S.C. § 7116(a)(5) or § 7116(b)(5). • Determination is based on the totality of circumstances.

  22. “Good Faith” BargainingFactors to Look For • Did the agency/union: • approach negotiations with sincere resolve to reach agreement? • have duly authorized representatives present? • meet as frequently as necessary? • avoid unnecessary delays? • execute/implement agreement? 5 U.S.C. § 7114(b)(1) – (5)

  23. Duty to Bargain: When Does It Arise? • Term negotiations. • AFGE, Interdepartmental Local 3723, AFL-CIO, 9 FLRA 744 (1982). • Mid-term proposals over subjects not already bargained. • U.S. Dep’t of the Interior, Wash., D.C. and U.S. Geological Survey, Reston, Va., 56 FLRA 45 (2000). • Proposed changes in conditions of employment. • Fed. Bur. of Prisons, FCI, Bastrop Tex., 55 FLRA 848 (1999). Dep’t of the Air Force, Wright-Patterson Air Force Base,51 FLRA 1532 (1996).

  24. Proposed Changes In Conditions of Employment • At any time, prior to making a change in a policy or practice concerning unit employees’ conditions of employment, an agency is required to provide the union with notice and an opportunity to bargain over those aspects of the change that are within the duty to bargain. Fed. Bur. of Prisons, FCI, Bastrop Tex., 55 FLRA 848 (1999).

  25. What Both Parties Need to Ask When a Change is Proposed: • Is there a “change?” • Is the impact on conditions of employment de minimis? • Is the proposed change “covered by the contract?” • Did the union waive its right to bargain over the proposed change?

  26. What is a Change? • The determination as to whether a change in conditions of employment has occurred involves a case-by-case analysis and an inquiry into the facts and circumstances regarding the agency's conduct and employees’ conditions of employment. SSA, Office of Hearings & Appeals, Montgomery, Ala., 60 FLRA 549 (2005); 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701 (1995); U.S. INS, Houston Dist., Houston, Tex., 50 FLRA 140 (1995).

  27. What Must an Agency Do When it Proposes a Change in Conditions of Employment? • Provide Union reasonable notice and opportunity to request bargaining. • If the union requests bargaining, respond. • Bargain to the extent required by the Statute. • Generally, maintain the status quo until the bargaining process is completed. • Cooperate with Federal Service Impasses Panel, if requested by union, prior to implementation. U.S. DOD, Defense Commissary Ag., Peterson Air Force Base, Colo. Springs, Colo., 61 FLRA 688 (2006); U.S. DOJ, INS, Wash., D.C., 56 FLRA 351 (2000); U.S. INS, Wash., D.C., 55 FLRA 69 (1999).

  28. What Must the Union Do to Protect its Right to Bargain? • Timely request to bargain. • Submit negotiable proposals. • Bargain in good faith. • Timely request FSIP assistance if impasse is reached. U.S. Dep’t of Labor, Wash., D.C., 60 FLRA 68, 70 (2004).

  29. The De Minimis Rule • The de minimis principle-the law does not concern itself with trifles or matters of insignificant consequence. • No duty to bargain over de minimis changes in conditions of employment. SSA, OHA, Charleston, 59 FLRA 646 (2004).

  30. Covered By Defense • An agency is not required to bargain during the term of an agreement over matters that are “contained in or covered by an agreement.” U.S. Dep’t of HHS, SSA, Balt., Md., 47 FLRA 1004 (1993).

  31. Covered By • Prong 1: Is the subject matter of the change “expressly contained” in the collective bargaining agreement? If not, expressly encompassed . . . • Prong 2: Is the subject matter of the change “inseparably bound up with,” and plainly an aspect of, a subject covered by the agreement? U.S. Customs Serv., Customs Mgmt. Ctr., Miami, Fla., 56 FLRA 809 (2000); U.S. Dep’t of HHS, SSA, Balt., Md., 47 FLRA 1004 (1993).

  32. Information • Section 7114(b)(4) of the Statute provides that the duty of an agency to negotiate in good faith shall include the obligation to furnish the exclusive representative, upon request and, to the extent not prohibited by law, data, which is: • Normally maintained by the agency in the regular course of business; • Reasonably available; and • Necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; • And does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to bargaining.

  33. Normally Maintained • Data is normally maintained if the agency • Possesses and maintains the data • In the regular course of business • Has the information within its control FDA, Mid-Atlantic Region, Phila., Pa., 48 FLRA 424 (1993); see also U.S. DOJ, Wash., D.C., et.al., 46 FLRA 1526 (1993); Dep’t of HHS, SSA, Balt., Md. & SSA, New Bedford Dist. Office, New Bedford, Mass., 37 FLRA 1277 (1990).

  34. Reasonably Available • Data is not “reasonably available” if it is only available through extreme or excessive means. • Data must exist • Agency is not required to create data. • Agency may be required to create documents from existing data (e.g., from computer database. See Dep’t of the Air Force, Hdqts., Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 28 FLRA 306 (1987), rev’d on other grounds, FLRA v. Dep’t of the Air Force, No. 87-1387 (D.C. Cir. Aug. 9, 1990)). Fed. Bureau of Prisons, Wash., D.C., 55 FLRA 1250 (2000); Dep’t of HHS, SSA, 36 FLRA 943 (1990).

  35. Necessary • Necessary for full and proper discussion, understanding, and negotiation of collective bargaining subjects • IRS, Wash., D.C. & IRS, Kan. City Serv. Ctr., Kan. City, Mo., 50 FLRA 661 (1995).

  36. Necessary • All aspects of the union’s “representational responsibilities” under the Statute • Filing a grievance Health Care Financing Admin., 56 FLRA 503 (2000). • Contract negotiations NLRB v. FLRA, 952 F.2d 523 (D.C. Cir 1992). • Contract administration NLRB v. FLRA, 952 F.2d 523 (D.C. Cir 1992). NATCA, MEBA/AFL-CIO, RDU Local, 55 FLRA 254 (1991).

  37. Particularized Need • Union must state, with specificity • Why it needs the data • How it will use the data • How the data’s use relates to the union’s representational responsibilities under the Statute U.S. Customs Serv., S. Cent. Region, New Orleans District, New Orleans, La., 53 FLRA 789 (1997); Dep’t of HHS, SSA, N.Y. Region, N.Y., N.Y., 52 FLRA 1133 (1997); U.S. DOL, Wash., D.C., 51 FLRA 462 (1995).

  38. Scope of Request • Union may be required to specify • Type of data requested • Time period (e.g., weeks, months, years) for which the data is requested • Organizational area (e.g., department, region, office) for which the data is requested U.S. Customs Serv., S. Cent. Region, New Orleans Dist., New Orleans, La., 53 FLRA 789 (1997).

  39. Agency Response • Agency must: • Timely respond to an information request. SSA, Balt., Md. & SSA, Office of Hearings & Appeals, Kan. City, Mo., 60 FLRA 674 (2005). • Inform union if requested information does not exist. SSA, Dallas Reg. Dallas, Tex., 51 FLRA 1219 (1996). • Raise objections or concerns about disclosure of requested information. DOJ, Fed. Bureau of Prisons, FCI, Forrest City, Ark., 57 FLRA 808 (2002).

  40. Privacy Act • Information is not releasable if release would violate the Privacy Act BUT • Documents may be sanitized to permit disclosure U.S. DOJ, Fed. Bureau of Prisons, Fed. Detention Ctr., Houston, Tex., 60 FLRA 91 (2004); U.S. Dep’t of VA, VA Med. Ctr., Dallas, Tex., 51 FLRA 945 (1996).

  41. Union’s Request • The Union asked for the following: (1) the recruitment announcement; (2) the related "knowledge, skills, and abilities," task examples, and any other rating and ranking criteria; (3) the rating and ranking worksheet and scores of qualified applicants; and (4) the applications of the top three applicants. • Information could be redacted to comply with the Privacy Act. HCFA, 56 FLRA 156 (2000).

  42. The Union’s Need • The Union stated that it needed the information to determine whether the Agency had misapplied or violated established merit promotion procedures in the rating and ranking of applications filed under the recruitment announcement. The Union advised that it had been contacted by bargaining unit employees who had applied under this announcement and believed that irregularities had occurred. Additionally, the Union noted, one unit employee whom the Union was representing was in the process of pursuing a complaint of discrimination, and the information requested would facilitate an informed election as to the appropriate forum in which to file an EEO appeal.

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