Negotiability In Depth: Management Rights and Beyond August 17, - PDF document

Slide 1 Negotiability In Depth: Management Rights and Beyond August 17, 2017

Slide 2 Disagreement between a union and an agency concerning the legality of a proposal or a provision Negotiability In Depth: Management Rights & Beyond 8/17/2017 2 • 5 C.F.R. § 2424.2(c).

Slide 3 Under the Statute, parties are obligated to bargain over proposals concerning bargaining-unit employees’ conditions of employment, provided that the proposals are not inconsistent with:  federal law,  government-wide regulation, or  an agency rule for which there is a compelling need. Negotiability In Depth: Management Rights & Beyond 8/17/2017 3 • 45 FLRA 603, 606-07.

Slide 4 Under the Statute, parties are obligated to bargain over proposals concerning bargaining-unit employees’ conditions of employment, provided that the proposals are not inconsistent with:  federal law,  government-wide regulation, or  an agency rule for which there is a compelling need. Negotiability In Depth: Management Rights & Beyond 8/17/2017 4

Slide 5 § 7103(a)(14) Personnel policies, practices, and matters, established by rule, regulation, or “otherwise,” affecting working conditions Exceptions  “Political activity” under the Hatch Act  Classification matters  Matters “specifically provided for by [f]ederal statute” Negotiability In Depth: Management Rights & Beyond 8/17/2017 5 Exceptions: 5 U.S.C. § 7103(a)(14)(A)-(C). • Hatch Act: 5 U.S.C. §§ 7321-7326. • Classification matters: 5 C.F.R. § 511.101. • Matters “specifically provided for by [f]ederal statute”: next slide.

Slide 6  Reference to matter not enough  Agency must have no discretion  Example where established: • 57 FLRA 373, 383 (wage rates for GS employees)  Example where not established: • 56 FLRA 664, 665-66 (law concerning Ag’s optical and dental plan preserved Ag’s discretion to negotiate over that matter) Negotiability In Depth: Management Rights & Beyond 8/17/2017 6

Slide 7 If an agency has discretion over a matter, then it must bargain over proposals concerning that matter • But, if discretion is “sole and exclusive,” it would be contrary to law to require bargaining over that matter Authority examines the plain wording and legislative history of the statute or reg • Examples = “without regard to the provisions of any other law” or “notwithstanding any other provision of law” Negotiability In Depth: Management Rights & Beyond 8/17/2017 7 • Discretion: e.g. , 55 FLRA 1, 4-5. • Sole and Exclusive discretion: e.g. , 59 FLRA 331, 346, 351. • Authority examines plain wording: 58 FLRA 246, 248-50; 47 FLRA 884, 895. • If a government-wide regulation is at issue, the Authority may also consider the interpretation of the agency that promulgated the regulation. E.g. , 59 FLRA 331, 341-45.

Slide 8 Department of the Air Force v. FLRA , 844 F.3d 957 (2016)  DC Circuit stated that a statute need not contain “phrases like ‘notwithstanding any law’ to place a subject outside an agency’s duty to bargain.”  “Given Congress’s focus [in Title 10] on defining a military benefit, which has nothing at all to do with terms and conditions of civilian employment, it would have had no reason to include a ‘notwithstanding’ clause exempting that benefit from” laws such as the Statute. Negotiability In Depth: Management Rights & Beyond 8/17/2017 8

Slide 9 The Authority considers two factors in deciding whether a proposal involves a condition of employment: 1. Whether the matter proposed to be bargained pertains to bargaining-unit employees; and 2. Is there a “direct connection” between the matter and the work situation or employment relationship of the unit employees? Negotiability In Depth: Management Rights & Beyond 8/17/2017 9 • Two-part test: Antilles , 22 FLRA 235, 236-37.

Slide 10 Is there a “direct connection” between the matter and the work situation/employment relationship of the employees? 866 F .2d 1443 7 FLRA 123  On the Agency premises Proposal: “Employer agrees to  Paid for by Agency grant off-duty personnel  Used to recognize employees hunting and fishing recreation and foster a productive work at headquarters, in relationship accordance with California  Agency required those who did State Fish and Game not attend picnic to work their Regulations” regular shift Negotiability In Depth: Management Rights & Beyond 8/17/2017 10

Slide 11 Four groups of non-unit personnel: 1. employees in other bargaining units; 2. supervisors; 3. non-supervisory employees not in any bargaining unit; and 4. non-employees Negotiability In Depth: Management Rights & Beyond 8/17/2017 11 • 952 F.2d 1434, 1442 (D.C. Cir. 1992)

Slide 12  If the proposal directly determines conditions of employment of employees in other units: prohibited subject  Principle of exclusive recognition Negotiability In Depth: Management Rights & Beyond 8/17/2017 12 • 65 FLRA 1052, 1054

Slide 13  Proposals that directly implicate supervisors’ conditions of employment are permissive subjects of bargaining  Cannot be disapproved by Agency head and are enforceable in arbitration Negotiability In Depth: Management Rights & Beyond 8/17/2017 13 • The Statute does not expressly prohibit bargaining over matters that directly implicate the working conditions of managers and supervisors. Thus, there is no clear statutory basis for concluding that bargaining over such matters is prohibited. 52 FLRA 677, 681; e.g. , 61 FLRA 336, 339; 52 FLRA 677, 682.

Slide 14  Proposals directly implicating working conditions of non-employees or employees not in any bargaining unit are outside duty to bargain unless they “vitally affect” unit employees’ conditions of employment.  Is the proposal’s effect on unit employees’ conditions of employment “significant and material, as opposed to indirect or incidental”? Negotiability In Depth: Management Rights & Beyond 8/17/2017 14 • 952 F.2d at 1442-43. • E.g. , 64 FLRA 723, 727; 58 FLRA 344, 348.

Slide 15 Under the Statute, parties are obligated to bargain over proposals concerning bargaining-unit employees’ conditions of employment, provided that the proposals are not inconsistent with:  federal law,  government-wide regulation, or  an agency rule for which there is a compelling need. Negotiability In Depth: Management Rights & Beyond 8/17/2017 15 Summary • Duty to bargain over BU employees’ conditions of employment • Bargaining over supervisors’ conditions of employment = permissive • Bargaining over conditions of employment of employees in other units = prohibited • Bargaining over conditions of employment of non-employees or employees not in a unit = outside duty to bargain • Unless the proposal vitally affects BU employees = mandatory • Statute leaves an Agency with discretion = must bargain, but with sole and exclusive discretion = can’t bargain.

Slide 16 § 7117(a)(1) Proposals and provisions that are inconsistent with a government-wide rule or regulations are outside duty to bargain “Government-wide”: Rules, regulations, and official declarations of policy that are generally applicable throughout the federal government and are binding on the federal agencies and officials to whom they apply  If CBA preceded gov’t-wide regulation, CBA governs until it expires • Exception: gov’t-wide regulations that implement 5 U.S.C. § 2302 (prohibited personnel practices) Negotiability In Depth: Management Rights & Beyond 8/17/2017 16 • E.g. , 53 FLRA 403, 416. • CBA preceded: e.g. , 65 FLRA 817, 819. • 60 FLRA 398, 399 n.6 (Government-wide regulations, other than regulations implementing 5 U.S.C. § 2302, do not control over conflicting provisions in an agreement if the agreement was in effect before the date the regulation was prescribed).

Slide 17 § 7117(a)(2) Proposal or provisions that are inconsistent with an agency rule or regulation are within the duty to bargain unless the agency shows that there is a “compelling need” for its rule or reg  The compelling-need exception does not apply if the union involved “represents . . . a majority of employees in the issuing agency or . . . subdivision” to whom the rule/reg applies. Negotiability In Depth: Management Rights & Beyond 8/17/2017 17 • 5 U.S.C. § 7117(a)(3); see 68 FLRA 407, 408-09.