Bargaining A Local Supplemental Agreement To the 2011 AFGE/NVAC-DVA

Bargaining A Local Supplemental Agreement To the 2011 AFGE/NVAC-DVA Presented by Dave Rodriguez and MJ Burke Oct 25-27, 2011

Recurring Topics and Themes • Overview of the collective bargaining cycle • The steps in the process, and actions under each step • Who does what – union, management, third parties • The Labor Law (Statute) – what it requires, what each Party is free to do • References, resources, further developments • The Process of Bargaining a Local Supplement (LSA) • Preparing and planning for bargaining • Analytical Frameworks: Learning How the FLRA Thinks • Doing the bargaining • Dealing with common bargaining issues; and with tactics of the other side

Resources: Field Services and Education Department (FSED), AFGE National Office, 202 639-6406 fsed_grp@afge.orgwww.afge.org, members only, member benefits and resources, collective bargaining Bargaining for the Future – language that’s legal, useful, and in previous FLRA and court decisions (cases referenced). See it on AFGE Casetrackor request it from FSED. -------------------------------------------it -------------------------

National VA Council • 540 345-6301 • http://www.afgenvac.org • afgenvac@aol.com

AFGE Districts (National Vice President for the District of which your Local is a part) • Other AFGE Locals that represent VA employees, such as Locals in your VISN. • Non-VA Locals and Councils that have gone through the experience of negotiating a term agreement or litigated a similar issue.

Federal Mediation and Conciliation Service http://www.fmcs.gov 202 606-8100 Federal Labor Relations Authority (FLRA) AND its included but separate Federal Service Impasses Panel (FSIP) http://www.flra.gov 202-218-7770 [This website contains: FLRA and FSIP decisions, laws they administer, regulations (governing the actions they perform and require Unions and Agencies to follow), and other useful information.]

FLRA FSIP • Decides what’s legal to do (Unfair Labor Practices) and to bargain (Negotiability Review aka legality of language in a collective bargaining agreement) • Decides which language goes into a CBA, when the Parties can’t agree after negotiating and mediation assistance. • Must defer (punt on) issues presented to it which raise ULP allegations; or, Negotiability issues of first impression.

FSIP and Negotiability • Because only the FLRA can decide what is legal to negotiate, the FSIP cannot order language be put in a CBA if management claims it’s not negotiable and the FLRA has no precedent. • But the FSIP can apply prior decisions of the FLRA. So, if management says a Union proposal is not negotiable, but the FLRA has previously decided an equivalent proposal was negotiable, then the FSIP can order the Parties to put the Union’s proposal into their LSA (or other CBA).

ULPs: Another Deferral Situation The FSIP also lacks legal authority to decide if either Party committed an unfair labor practice during bargaining , and will very likely dismiss without prejudice an impasse case brought to it that involves an alleged ULP, Translation: if the Union claims DVA committed a ULP even if it doesn’t actually file a ULP charge, the FSIP will likely punt (decline jurisdiction) on the case.

The Union will have to refilewith the FSIP months or years later (after the problem the Union was trying to address may be stagnant). • So, it’s often better for the Union to not raise before the FSIPthat the DVA committed a ULP during bargaining. Give the FSIP every opportunity to reach the disputed proposals on their merits. Note: The ULP has to be filed within 180 days of when it became known to the Union.

Example for Discussion In LSA negotiations, the Parties disagreed on which positions in the facility will be eligible for Telework. DVA also refused to give the Local information the Local requested and is entitled to by law, such as how much the facility pays for office space per square foot (rent, utilities, etc.). Eventually, an impasse was filed with the FSIP over the Telework issue and others. The Union also wants to file a ULP over the illegal DVA action. What is the ULP issue? What is the impasse (FSIP) issue? How, when, where should the information issue be handled? Without the requested information, what can the Union do to support its Telework proposal?

True or False or ??? “The bargaining process determines the outcome, but is superseded by the outcome.”

Translation: It’s tempting to ‘keep track” of who won the negotiations by what happened on the way to the LSA. But What you end up with in the LSA is what counts.

Analytical Frameworks For every term or concept in the labor law, the FLRA has established an Analytical Framework. The law is chapter 71 of Title 5. Analytical Frameworks tell Union reps what every part of the law means, in practice. A single term, like “waiver”, “good faith bargaining”, or “management right to assign work” has an Analytical Framework that can have hundreds of precedent cases in which the meaning of the term has been defined and refined. Use Analytical Frameworks to inform you at the table and in proceedings before the FSIP and the FLRA.

So &%$# What? So, there are templates already in place – Analytical Frameworks – that tell negotiators what they have to argue or explain, point by point, in order to prevail in a dispute with DVA, during negotiations, in impasses before the FSIP, and in a ULP or negotiability case related to the LSA negotiations. The FLRA isn’t looking for creativity when you present an argument before it; it’s looking for you to follow the points it has already laid out in the Analytical Framework for the issue being disputed.

Examples of Analytical Frameworks There are Analytical Frameworks for: • The definition of each management right (assign work, direct employees, determine its budget, determine internal security, etc.) • Particularized need as a requirement for information requests the Union makes to DVA in order to bargain the LSA. • Good faith bargaining. • Compelling need as a basis for a Union proposal to be illegal for conflicts with a DVA regulation. (The Analytical Framework for compelling need is VERY hard for any agency to meet.) • Etc. etc. etc.

Discussion In your LSA negotiations, DVA claims a Union proposal is non-negotiable because it interferes with DVA’s rights to determine technology of performing work and to determine its budget. The proposal requires DVA to provide a telephone in each work unit for employees’ personal use to contact family members in emergencies. What does the Union do about the DVA claim of non-negotiability?

Where do I find Analytical Frameworks? • In FLRA cases, especially negotiability and ULP cases and exceptions to arbitrators’ awards. [www.flra.gov, decisions, search by keyword] • In FLRA cases in commercial databases like CyberFeds [www.feds.com] • In AFGE resources such as Bargaining for the Future. • In court decisions that review FLRA cases. • From others in AFGE (FSED, your AFGE District Office the NVAC, other Locals).

“How can Management say this language is illegal? It’s been in our contract/MOU for umpteen years!” __ T __ F __ T __ F __ T __ F DVA has to be consistent about claiming language is legal or illegal. The FLRA’s cases are precedents, so when something is negotiable, that’s that. The labor law hasn’t changed, so the legality of proposals doesn’t change. The legality of language doesn’t change.

Stages of Bargaining Early Bargaining = the Parties negotiate “bilaterally” (alone). During this stage, there are: • Discussion, compromise, information exchanged, proposals and counter-proposals exchanged. • Sign-off/initial off of agreed upon items.

Mediation = the parties jointly OR either party unilaterally request(s) the Federal Mediator to join the negotiations to help them move toward agreement. • Mediation can be ongoing or short-term. • The reason Mediation is needed can be inability to find language both sides can agree on. • The reason also can be a behavior, like disputes over what the Ground Rules require, or the Agency’s failure to provide requested information or to send empowered bargainers to the table. • Once involved, the Mediator controls the process, but cannot force either Party to change its proposals. • Parties are required to use Mediation before a request for Impasse Assistance is filed (with one major exception).

Discussion “The Mediator’s job is to get the parties to agree, not to get them to agree on a solution/language that’s good for either side.” Assuming this statement is true, • What should you expect the Mediator to say and do in dealing with the parties, especially when he works with each side in caucus – without the other side there? • What should each Union negotiating team member do or not do when it is in the presence of the Mediator?

Impasse = if issues remain unresolved after the Mediator has provided all useful assistance, either party or both parties together can ask the Federal Service Impasses Panel (FSIP) to assert its jurisdiction to bring negotiations to a conclusion. • The FSIP has very broad authority to resolve the impasse using any technique(s) it wants. • Unlike the Mediator, the FSIP can order the Parties toinclude in their LSA any language it feels is the best way to resolve the issues that were submitted to it.

Ratification = the Union can submit the entire contract to its internal ratification process. • Ratification is not a subject for bargaining (DVA can’t debate whether or how a Local ratifies the LSA). • If the LSA is ratified, the parties execute (sign) the LSA and it moves to the next stage. • If the LSA is not ratified, the Union can renegotiate language that was agreed to voluntarily. If the LSA is not ratified, the Union and DVA are still required to accept language that was imposed by the FSIP. • So, ratification should include a way for the Union to determine which language caused the LSA to not be ratified, in order to determine whether language is subjec to renegotiation.

Agency Head Review = if an agreement is the controlling (master) agreement or a supplement to it, the Agency Head has the right to review it to determine if any language in it is illegal (non-negotiable). • The Agency Head cannot reject language for any reason except illegality. • If the AHR results in language being disapproved, the Union has to file and win a negotiability appeal to keep the language in the LSA. • The language can be modified by the Parties to “work around” the disapproval, but the Union must protect its language by filing the negotiability appeal even if it appears an informal resolution of the disapproval may happen.

Implementation = after Agency Head Review and resolution of any negotiability disputes, the contract goes into effect (implementation).

Pay Attention to Time Limits • If the Agency Head fails to review the LSA within 30 days after it was signed, the contract is in effect as signed. • If the Union fails to file a negotiability appeal within 15 days after receiving ANY written notice that the LSA was disapproved, it loses the right to challenge the Agency Head’s disapproval; the disputed language is out of the LSA even if, in fact, it was negotiable (legal). • A timely Agency Head disapproval is valid even if it fails to identify which language was disapproved and even if it is not addressed to the Union. WHEN IN DOUBT, FILE A NEGOTIABILITY APPEAL ON TIME; IF YOU WEREN’T TOLD WHICH LANGUAGE WAS DISAPPROVED, SAY THAT IN THE APPEAL - BUT GET IT FILED ON TIME.

In other words, During negotiations, the Union controls whether and when to file a negotiability appeal. Unless it requests, in writing, DVA’s written allegations of non-negotiability, no time limit applies and perhaps a negotiability appeal will not become necessary at all. BUT After negotiations, DVA controls the negotiability appeal process through its ability to disapprove language from the LSA. If that happens, the Union MUST file a timely negotiability appeal or it will lose the disputed language without a fight.

What you can do if DVA says a Union Proposal Is Non-Negotiable? • Ask DVA for case citations that support their claim; then check the cases yourself. Read the entire case. • Do your own research for the most recent cases on the issue. Read the entire case. • Change your proposal if you agree it could be non-negotiable. • Use the “appropriate arrangements” approach. • If you disagree with the claim, leave the language on the table; it’s a ULP for DVA to allege language is illegal if the FLRA has said language presenting the same negotiability issue is legal.

What can make a Union proposal illegal aka “non-negotiable”? • In general, it’s illegal if it conflicts with a federal law (including management rights), or an existing government-wide regulation, or a DVA regulation for which a compelling need exists. • If a proposal addresses the same subject but does not conflict with such law/regulation, it is legal. The Union has the right to bargain how discretion in a law/regulation is going to be exercised. • DVA saying it’s illegal doesn’t make it illegal.

Appropriate Arrangements • Under 5 U.S.C. 7106(b)(3), a Union proposal can be negotiable even if it conflicts with an Agency’s exercise of its Statutory management rights. • The test follows the Analytical Framework for appropriate arrangements, which balances the extent of interference with the benefit to employees who are adversely affected by the management right. • If the extent of interference is excessive, then the language is not legal. • You can win and require DVA to bargain on a proposal using the “appropriate arrangements” law.

Bottom line: Negotiability • Don’t accept a DVA claim of non-negotiability on its face – many times Agencies use the words without any caselaw to support their claim. Read and apply FLRA precedent. • Be open to language that “works around” any legitimate claims of non-negotiability. Ask DVA to propose such language, or modify your own proposal. • If DVA refuses to do that, publicize to the workforce that management is refusing to talk about/not interested in their concerns. • Challenge DVA by filing a negotiability appeal if language on the table is negotiable. If the language does conflict with a management right, use “appropriate arrangements”.

Discussion • If, during negotiations, DVA claims a Union proposal(s) is illegal, what can you do about that claim? (Numerous options) • If, on Agency Head Review, DVA disapproves language from the LSA, what can you do about that claim? (One requirement, one option)

What Are Ground Rules? Why Are They Used? • Ground Rules are a (negotiated) collective bargaining agreement (CBA) that contain how another agreement – LSA, MOU, or Master Agreement – will be negotiated. • Ground Rules serve the same function as any other union-management agreement, specifying each party’s rights and responsibilities during the subsequent negotiations. They are subject to differing interpretations by the parties, and to the same enforcement procedures as any other CBA.

Ground Rules • This constitutes the Ground Rules between ____ (the Agency) and ____ (the Union) concerning [a subject] or [the parties contract]. • Effective date (upon signing) • Bargaining schedule (Start Aug 3, negotiate from 8-5, M-F until the agreement is concluded) with reasonable/2 15-minute breaks and 1-hour lunch • Caucus called at any time by either party • Chief spokesperson – 1 for each party • Size of Teams (only in duty status; no limit on number of members not in duty status.)

Ground Rules • Official Time and expenses for all phases, including 3rd party proceedings and __ prep. • Suitable meeting room and caucus room will be provided by the Agency, along with usual office facilities (PCs, printers, fax machine, phones, regs, cases) • No official notes, either party can keep its own notes • No recordings

Ground Rules – Other Topics • mediator contacts will be joint or either party may contact the mediator – by law, the Union has – and should not waive - its right to get mediation unilaterally. * how to handle negotiability disputes – (RISKY) • publicity/contact with employees and others – it’s a union right, don’t limit it or waive it. • ratification – if discussed with management, the discussion is ONLY for informational purposes. It’s not a subject to be bargained over. But, be sure you notify management prior to bargaining that the Union will use a ratification process prior to signing the agreement, if that will be the case. * Others?

Other Points About Ground Rules • Article 46, Local Supplements, contains a Section that lays out Ground Rules for LSA negotiations. Do you have to use them for your LSA? Can additionalGround Rules be negotiated for each Local/Installation? Why/Why Not? • When Ground Rules are being properly negotiated, what happens if the Parties can’t /don’t reach an agreement on them? • What do you do if DVA insists on language for GRs over which the Union is not required to bargain? Examples: ratification, negotiability procedures.

Ground Rules Exercise In small groups, write 3 ground rules that your Local will submit to Management at your installation(s). Be specific, clear, and brief about what you want. Include any issue(s) you’ve experienced when negotiating prior ground rules, or expect to experience in the upcoming LSA negotiations. Please report back to the full group in ___ minutes.

Have You Negotiated Without Ground Rules? Not having Ground Rules is like not having a contract – you’re at the mercy of the good intentions/good graces of DVA managers. Ground Rules are regarded by the FLRA as a mandatory subject of bargaining; if either party proposes them, they’re on the table. Have YOU ever negotiated without Ground Rules? How about negotiating grievance or ULP settlements?

The Big Picture • Mediation, Impasse, and Ratification are common but not essential. • Ratification and Review can cause recycling back to Negotiation. • Ratification can’t trump Impasse decisions. Bargaining Cycle Prepared by FSED

Roles in Bargaining

The Union’s roles are-- • To represent employees in the bargaining unit as a whole. • To represent its own institutional needs. • To represent collective bargaining as being “in the public interest.” • To account to employees through elections and ratification votes. • To look at what problems employees want fixed, and the best ways to fix them--which may not be [solely] through bargaining. Prepared by FSED

Management often sees its roles as being-- • To maintain institutional authority. • To accept changes and added benefits and protections, when it is persuaded they are needed (or ordered by a third party). • To protect their “turf” within the Agency. • To fix problems caused for one or more managers by previous collective bargaining agreements, laws, regulations, policies, budget constraints, and the decisions of third parties (arbitrators, FLRA, other Federal agencies, and courts). Prepared by FSED

Federal Labor Relations Authority (FLRA) • Defines “appropriate units” and creates or modifies “bargaining units” and counts ballots to see which union, if any, represents the unit. • Investigates and prosecutes charges of Unfair Labor Practices (ULPs) against agencies, individuals, and unions. • Decides if arbitration awards are legal. • Determines whether/which language is legal, i.e., can be negotiated and put into an agreement (“negotiability appeal”). Prepared by FSED

Federal Mediation and Conciliation Service(FMCS) • Promotes voluntary programs to improve union-management relations (outside of bargaining). • Helps the processof bargaining go smoother. • Not concerned with the outcome - if the parties agree, that’s what matters to the mediator. • Verifies, when asked by the Federal Service Impasses Panel (FSIP), that further bargaining would or would not be useful (“declares the parties to be impassed”). Prepared by FSED

Techniques mediator use-- • Suggesting alternative approaches to issues when the Parties’ proposals are not compatible with each other. • Suggesting “package deals” in which each party gets something and gives up something else, thus resolving multiple issues or even Articles in one step. • Probing each side separately to determine which issues a Party is NOT committed to, or on which a Party is NOT united.

The Mediator also . . . Assists in solving process problems, such as • Disputes over the Ground Rules; • Information needed by the Union in order to bargain; • Anything else that gets in the way of progress – not just when the proposals are stalled. Don’t forget to notify FMCS in advance that you’re going to be going into negotiations. Prepared by FSED

Bargaining A Local Supplemental Agreement To the 2011 AFGE/NVAC-DVA