FEDERAL LABOR RELATIONS AUTHORITY STATUTORY TRAINING PROGRAM

1
FEDERAL LABOR RELATIONS AUTHORITYSTATUTORY
TRAINING PROGRAM

• Scope of Bargaining
• Jean M. Perata
• Deputy Regional Director
• FLRA, S.F. Region
• jperata_at_flra.gov 415.356.5000, ext. 2012

2
TWO ASPECTS OF COLLECTIVE BARGAINING

• Scope of bargaining
• What can parties negotiate?
• Duty to bargain
• Whether and when is a party required to bargain?

3
CONDITIONS OF EMPLOYMENT

• Two factors are considered, when deciding if a
  matter to be negotiated involves a condition of
  employment of bargaining unit employees
• Whether the matter to be negotiated pertains to
  unit employees and
• The nature and extent of the effect of the matter
  to be negotiated on working conditions of
  employees
• See, e.g., Antilles Consol. Education Assn, 22
  FLRA 235 (1986) Dept of the Air Force, Eielson
  Air Force Base, 23 FLRA 605 (1986)

4
CONDITIONS OF EMPLOYMENT

• Defined in 5 U.S.C. 7103(a)(14)
• Includes personnel policies, practices and
  matters affecting working conditions
• Can be established by rule, regulation or in
  other ways.

5
MATTERS OUTSIDE SCOPE OF BARGAINING

• Conditions of employment do not include
• Matters relating to political activities
• Matters relating to the classification of a
  position
• Matters provided by federal law

6
MATTERS OUTSIDE SCOPE OF BARGAINING

• Also excluded from the scope of bargaining are
• Matters which are contrary to government-wide
  rules and regulations 5 U.S.C. 7117(a)(1)
• See, e.g., U.S. Dept of the Army, Headquarters,
  Fort Carson, 48 FLRA 168, 206 (1993) (OMB
  Circular A-76)
• Matters contrary to agency rules and regulations
  for which there is a compelling need 5 U.S.C.
  7117(a)(2)
• See, e.g., Dept of the Treasury, Bureau of
  Engraving and Printing, 29 FLRA 1436, 1441 (1987)

7
MATTERS OUTSIDE SCOPE OF BARGAINING

• Also outside the scope of bargaining are
  management rights, 5 U.S.C. 7106(a)
• Determine the mission, budget, organization,
  numbers of employees, internal security
  practices
• Hire, discipline employees
• Assign work to employees, contract-out work
• Fill positions and fill from any source
• Carry out agency mission in an emergency

8
PERMISSIVE TOPICS OF BARGAINING

• Examples of permissive topics
• 5 U.S.C. 7106(b)(1) topics Numbers, types and
  grades of employees and methods and means of
  performing work
• See, e.g., U.S. Dept of Veterans Affairs Med.
  Ctr., Lexington, Ky., 51 FLRA 386, 391-392 (1995)
  (numbers, types and grades) Am. Fedn of
  Government Employees, Local 644, 40 FLRA 831,
  (1991) (employees use of beepers when off duty
  is a method and means of performing work).

9
MORE PERMISSIVE TOPICS

• Examples of permissive topics
• Modifications of statutory rights (e.g.,
  pre-charge notification requirements two
  negotiated agreements for one unit etc.)
• See, Headquarters, Fort Sam Houston, Dept of the
  Army, 8 FLRA 394 (1982) (pre-charge notice)
• Matters that do not involve conditions of
  employment of unit employees and are not illegal
  (e.g., parking for public, supervisors)
• See, U.S. Dept of Health and Human Serv., Soc.
  Sec. Admin., 52 FLRA 677, 681-682 (1996) (parking)

10
PERMISSIVE TOPICS OF BARGAINING

• No party is required to negotiate on permissive
  topic
• Parties cannot insist to impasse on permissive
  topics
• Parties can pull out of negotiation on a
  permissive topic, short of reaching an agreement
• Agreements on permissive topics are binding
• Agency heads cannot disapprove permissive topics
  on 5 U.S.C. 7114 (c) review

11
NEGOTIABLE PROPOSALS

• 5 U.S.C. 7106(b)(2) allows for negotiation of
  procedures which management will follow when
  exercising management rights
• Negotiable procedure require management to take
  some action, but the action being required of
  management
• Must not directly interfere with the exercise of
  a management right or prevent management from
  exercising its rights
• See, e.g., U.S. Dept of the Army, Red River Army
  Depot, Texarkana, Tex., 44 FLRA 738 (1992)
  (procedure for assigning work negotiable)

12
NEGOTIABLE PROPOSALS

• 5 U.S.C. 7106(b)(3) provides for negotiation of
  appropriate arrangements for employees who are
  adversely affected by the exercise of a
  management right
• Appropriate arrangements can interfere with the
  exercise of management rights but they cannot
  excessively interfere with the exercise of
  management rights
• See, Kan. Army Natl Guard, 21 FLRA 24 (1986)

13
APPROPRIATE ARRANGEMENTS

• Appropriate arrangement proposals
• Are written in response to the exercise of a
  management right
• Must be an arrangement for adversely affected
  employees
• Must be sufficiently tailored to the adverse
  situation and employees affected by the adverse
  situation
• Cannot excessively interfere with the exercise of
  a management right

14
APPROPRIATE ARRANGEMENTS

• Determination of whether the arrangement is
  appropriate involves the balancing of competing
  interests -- unit employees and management's
• Union must articulate
• The nature and extent of the impact experienced
  by the adversely affected employees
• The extent to which the circumstances giving rise
  to the adverse affects are within the employees
  control

15
APPROPRIATE ARRANGEMENTS

• Management must articulate
• The nature and extent of the proposals impact on
  management's ability to deliberate and act
• Whether the negative impact on management's
  exercise of its right(s) is disproportionate to
  the benefits to be derived
• How the proposal relates to an effective and
  efficient government what are the benefits or
  burdens to the government

16
SCOPE OF BARGAINING

• Remember
• A union has the right to negotiate conditions of
  employment of unit employees. This does not
  include matters
• Relating to political activities
• Relating to classification of positions
• Provided by federal statute and government-wide
  rule or regulation
• Provided by agency rules or regulations for which
  there is a compelling need
• Contrary to 7106(a) management rights

17
SCOPE OF BARGAINING

• Remember
• A union has the right to negotiate conditions of
  employment of unit employees. The scope of
  bargaining includes
• Permissive topics of bargaining, although no
  party can be forced to agree to permissive
  matters
• Procedures management will follow in exercising
  its 7106(a) management rights
• Appropriate arrangements for employees adversely
  affected by management's exercise of its 7106(a)
  rights