This memorandum discusses the scope of bargaining under the Federal Service Labor-Management Relations Statute. Regional Directors are frequently required to make decisions on the negotiability of union proposals in situations where management is seeking to make a change in a condition of employment. The memorandum serves as guidance to the Regional Directors in investigating, resolving, litigating and settling unfair labor practice charges where negotiability is an issue. It also is intended to assist parties in improving their labor-management relationship thereby avoiding litigation. I am making this Guidance Memorandum available to the public to assist union officials and agency representatives in working together to develop productive labor-management relationships, to avoid negotiability disputes and to obtain a better understanding, and take advantage, of the entire scope of bargaining under the Statute. This Guidance is a continuation of my Office's commitment to provide the participants in the Federal Service Labor-Management Relations Program with my views on significant topics. 1 / This Guidance reflects my views as the General Counsel of the Federal Labor Relations Authority and does not constitute an interpretation by the three-member Authority.
This Guidance is divided into four parts. Part I -- "Ways to Engage in Collective Bargaining In the Federal Sector" -- discusses how proper utilization of a predecisional involvement process and interest-based problem-solving techniques limits dramatically negotiability disputes. Part II -- "Differences Between the `Duty to Bargain' and the `Scope of Bargaining'" -- describes these two different statutory concepts and explains: when there is a duty to bargain; what constitutes good faith bargaining; and what the concept of negotiability means. Part III -- "Approaches to Obtaining the Benefits From the Scope of Bargaining Under the Statute" -- presents approaches which allow the parties to improve the effectiveness of bargaining within the current statutory scope of bargaining. In particular, this Part explains the concept of "appropriate arrangements" and suggests a protocol for parties to follow to develop meaningful, negotiable appropriate arrangement proposals. Part IV -- "Negotiability Disputes Should Not Impede Collective Bargaining" -- suggests some techniques to avoid negotiability disputes and not disrupt the collective bargaining process by filing unfair labor practice charges in unilateral change situations. Since a knowledge of the statutory scope of bargaining under the Statute is essential to implement these approaches and techniques, attached to the Guidance is a Summary of the Scope of Bargaining under the Statute.
Table of Contents
A. THE STATUTORY DUTY TO BARGAIN - "WHEN" and "WHETHER" PARTIES ARE REQUIRED TO BARGAIN
1. Term Negotiations for a Contract
2. Midterm Union Initiated or Union Initiated after Expiration of a Contract
3. In Response to a Management Change During the Term of a Contract or After a Contract Expires
B. HOW ARE THE PARTIES TO BARGAIN - GOOD FAITH BARGAINING
C. THE SCOPE OF BARGAINING - "WHAT" PARTIES ARE REQUIRED TO BARGAIN
D. WHAT IS NEGOTIABILITY?
A. BARGAINING OVER MATTERS WHICH ARE NOT CONDITIONS OF EMPLOYMENT IS PERMITTED AND THOSE AGREEMENTS ARE ENFORCEABLE
B. BARGAINING OVER LIMITATIONS OR CONDITIONS ON THE EXERCISE OF STATUTORY RIGHTS IS PERMITTED AND THOSE AGREEMENTS ARE ENFORCEABLE.
C. MATTERS ADDRESSED IN LAW OR GOVERNMENT-WIDE REGULATIONS ARE NOT ALWAYS OUTSIDE THE SCOPE OF BARGAINING
D. BARGAINING OVER APPROPRIATE ARRANGEMENTS WHICH ARE EXCEPTIONS TO MANAGEMENT'S EXERCISE OF ITS RESERVED RIGHTS
1. Duty to Bargain Section 7106(b)(3) Appropriate Arrangements For Employees Adversely Affected by Managements's Exercise of a Section 7106(a)(1), (a)(2) and (b)(1) Right
2. What is an Appropriate Arrangement?
3. Developing Appropriate Arrangement Proposals
a. Identify the Management Right Being Exercised.
b. Identify the Adverse Affect
E. WHEN AN AGENCY ALLEGES THAT AN EXISTING CONTRACT CLAUSE IS CONTRARY TO A SECTION 7106(a) MANAGEMENT RIGHT
F. SECTION 7106(b)(2) PROCEDURES
1. Draft Proposals Clearly and Plainly 2. Do Not Confuse the Concept of Negotiability with the Merits of the Proposal 3. Unions Should Curtail Bargaining Based on a Dispute Over Negotiability Only as a Last Resort
4. Determine Whether the Agency Believes the Entire Proposal or Just a Portion or Phrase of the Proposal Is Nonnegotiable
5. Explore Why the Agency Believes The Proposal Is Nonnegotiable
6. Discuss the Purpose of the Proposal
7. Ensure There Is Agreement on the Meaning of the Proposal and an Understanding Why the Agency Believes the Proposal to be Nonnegotiable Before Exploring Litigation Alternatives.
End of Table of Contents
Unions and agencies have used a variety of techniques to bargain collectively under the Statute and the predecessor Executive Order program. These range from sending proposals back and forth through the mail without discussion of their meaning to utilizing interest-based bargaining techniques and skills under a collaborative approach to labor-management relations. In my view, the techniques and processes utilized to bargain have a great impact on the actual scope of bargaining, i.e., the topics that are actually discussed, explored and agreed upon by the parties. The last Guidance issued by my Office concerned the concept of "pre-decisional involvement" and its implementation utilizing a team-based approach which relies upon interest-based problem-solving skills, techniques and strategies. Pre-decisional involvement is a term which represents those activities where employees through their elected exclusive representative are afforded by agency management the opportunity to shape decisions in the workplace which impact on the work the employees perform. In my view, the proper utilization of pre-decisional involvement lessens the significance of the legal concept of negotiability since parties are discussing interests concerning all types of matters that have not yet been decided, rather than a union reacting to a management decision. My Office remains committed to work with parties to establish effective pre-decisional involvement processes.
However, for a variety of reasons, most parties at some point find themselves drafting proposals and dealing with the legal doctrine of negotiability. Moreover, our experience in processing unfair labor practice charges and working with parties to improve their labor-management relationships has shown that some parties do not take advantage of the entire scope of bargaining that now exists under the Statute. The purpose of this memorandum is to explore the scope of bargaining under the Statute and to highlight a process that will enable the parties to draft and negotiate meaningful proposals that are within the scope of bargaining defined under the Statute. Most significantly, the Guidance addresses the concept of "appropriate arrangements" and presents a process for parties to develop negotiable appropriate arrangement proposals.
The Guidance starts by discussing the difference between the duty to bargain and the scope of bargaining. It then explores the statutory scope of bargaining and presents suggestions to assist the parties in developing a full range of negotiable proposals.
The duty to bargain concerns when and whether parties are obliged to negotiate under the Statute. Absent any limitation that the parties voluntarily place on when or how they will engage in negotiations, 2 / there are three basic situations that trigger the statutory duty to bargain:
The Statute requires that parties to an exclusive bargaining relationship are required to negotiate a collective bargaining agreement upon request of either party. This principle is grounded in the Statute, in which "collective bargaining" occurs between an agency and the exclusive representative. 3 / The duty to bargain a collective bargaining agreement is at the level of exclusive recognition, 4 / although the parties may mutually agree to bargain below that level. 5 / An agency's failure to bargain a term agreement in good faith may result in the extension of the time period during which the exclusive representative status of the incumbent union may not be challenged. 6 /
Respectfully disagreeing with the Fourth Circuit 7 /, the Authority has adhered to the view of the D.C. Circuit 8 / that it had adopted and continues to hold that the duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters that are not contained in the collective bargaining agreement, unless the union has waived its right to bargain. 9 / This means that the Authority has interpreted the Statute to grant a right to unions to initiate bargaining even though there is a contract in existence. This right, however, is limited by other doctrines in certain circumstances. Thus, if the matter the union wishes to negotiate is "covered by" a contract, 10 / there is no duty to bargain and the midcontract bargaining right may not be exercised for that particular matter. Also, the right is extinguished if it has been clearly waived by the union; for example, the right was abandoned during bargaining in exchange for some other benefits. Further, if a union has placed limitations or conditions on its right in the contract, the failure to satisfy those conditions or limitations excuses the agency from negotiating midcontract. 11 /
There also is a duty to bargain after the expiration of a contract. My Office has taken the legal position that either party can compel bargaining over a mandatory term of an expired contract without renegotiating the entire expired contract. A union, for example, need not only engage in full term bargaining or bargaining in response to management changes once a contract expires. It would be anomalous to allow management to propose specific changes after a contract expires, but limit a union to only negotiating an entire new term agreement. In my view, both parties should be able to propose specific changes to existing conditions of employment. When presented with a proposed change, however, either party could insist on negotiating a full term agreement. 12 /
Prior to implementing a change in a condition of employment of bargaining unit employees, an agency is required to provide the exclusive representative with notice and an opportunity to bargain over those aspects of the change that are within the scope of bargaining under the Statute. 13 / When an agency exercises a reserved management right and the substance of the decision is not itself subject to negotiation, the agency is nonetheless obligated to bargain over the procedures to implement that decision and appropriate arrangements for unit employees adversely affected by that decision, but only if the resulting changes have more than a de minimis effect on conditions of employment. 14 / In assessing whether the effect of a change in conditions of employment is more than de minimis , the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change. 15 / I discuss below at pages 17-23 a process for developing negotiable appropriate arrangement proposals, whether in response to a change or during term negotiations or union initiated midterm bargaining.
Where an agency institutes a change in a condition of employment and the change is itself substantively negotiable, the agency must negotiate over the decision to make the change, rather than just procedures and appropriate arrangements. In those situations, unlike the exercise of reserved management rights, the extent of the impact of the change on unit employees is not relevant to whether an agency is obligated to bargain. 16 / If the matter is substantively negotiable, the entire decision is subject to bargaining.
Section 7114(a)(4) of the Statute requires agencies and exclusive representatives, "through appropriate representatives, [to] meet and negotiate in good faith for the purpose of arriving at a collective bargaining agreement." Section 7103(a)(8) defines "collective bargaining agreement" as "an agreement entered into as a result of collective bargaining . . . ." "Collective bargaining" is defined in section 7103(a)(12) as:
the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency 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, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession. . . .
Under section 7114(b), the duty of an agency and an exclusive representative includes the obligation to negotiate "with a sincere resolve to reach a collective bargaining agreement. . . ." If an agreement is reached, the parties are obligated, on the request of any party to the negotiations, to execute a written document embodying the agreed terms. 17 / An agreement, for purposes of section 7114(b)(5) of the Statute, is one in which authorized representatives of the parties come to a meeting of the minds on the terms over which they have been bargaining. In determining whether a party has fulfilled its bargaining obligation, the Authority considers the totality of the circumstances in a given case. 18 /
The scope of bargaining concerns what parties are required to negotiate under the Statute. Only matters that involve conditions of employment of bargaining unit employees are required to be bargained. Conditions of employment generally refer to those personnel policies, practices, and other matters, whether established by rule, regulation, or otherwise, which affect working conditions. 19 / The case law establishing the test for determining whether a proposal involves a condition of employment of bargaining unit employees is discussed in the attached Summary of the Scope of Bargaining Under the Statute. 20 /
The scope of bargaining remains the same regardless of the occurrence which triggered the duty to bargain. For example, the scope of bargaining for a new contract for a unit composed of 10 employees is identical to the scope of bargaining for a new contract covering 60,000 employees. 21 / Once the statutory duty to bargain is triggered, the scope of that bargaining remains a constant. Similarly, a level of management above the level of exclusive recognition may not lawfully limit the scope of bargaining at the level of exclusive recognition. 22 / For example, if a bargaining unit is located at a district office, regional management may not lawfully remove matters otherwise within the scope of bargaining merely by instructing the district that they have no discretion to bargain over certain matters. Decisions to exercise rights reserved to management by the Statute, of course, may be made by any authorized level within management. But that authority does not permit removing from the bargaining table matters that are within the scope of bargaining. For example, a level of management above the level of exclusive recognition (such as a military command) may instruct management at the level of recognition (a military facility within the command) on the manner in which management will exercise a reserved right throughout the entire command. But if that management action gives rise to a statutory duty to bargain at the level of recognition, that duty encompasses the full range of the scope of bargaining . In other words, the facility would be required to bargain over a negotiable appropriate arrangement proposal that conflicted with the command instruction. The facility could not lawfully declare that it could not bargain because the proposal conflicted with the instruction if, in fact, the proposal was a negotiable appropriate arrangement. 23 /
The concept of negotiability concerns whether a party is required to bargain over a particular proposal. If a proposal is nonnegotiable, a party is not required by the Statute to engage in collective bargaining over that proposal. Thus, the concept of negotiability has little relationship to the merit of the proposal. 24 / If the matter is negotiable, it is within the scope of bargaining. Of course, as noted above, even negotiable matters are not required to be bargained unless there is a corresponding duty to bargain.
Often, issues relating to whether a proposal is negotiable arise in the context of an unfair labor practice charge alleging a unilateral change in a condition of employment without fulfilling the statutory duty to bargain. In those situations, the Regions work with the parties to reach either a substantive resolution of the dispute or an agreement to return to the bargaining table. In so doing, the Regions often are involved in assisting the parties in developing proposals that are negotiable under the Statute. 25 / These unilateral change unfair labor practice situations differ from those negotiability disputes that arise during bargaining over a term agreement or other midcontract bargaining where there are no duty to bargain issues. 26 / These types of situations do not usually raise actionable unfair labor practice issues. Thus, the Regions are not normally involved. Rather the dispute is processed through the Authority's negotiability appeal procedures.
Our experience has shown that sometimes a party may not take advantage of an opportunity to craft a specific proposal because the other party initially responds to the request to bargain by asserting that the entire subject at issue is nonnegotiable. In my view, the parties in such situations would be better served if the party seeking to negotiate formulates negotiable proposals to present to the other party rather than only filing an unfair labor practice charge or negotiability appeal. For example, it is possible that the agency never intended to refuse to bargain over any particular proposal but merely set forth its view that the decision which triggered the request to bargain was the exercise of a management right. To establish an unfair labor practice violation, there must be implementation of a change in a condition of employment without affording the union the opportunity to request, engage in and complete bargaining. 27 / Filing an unfair labor practice charge without presenting a negotiable proposal could lead to a determination that the agency never refused to bargain. Similarly, to obtain a negotiability determination by the Authority, a union needs to present an actual proposal to the agency. 28 / Negotiability appeals without specific proposals could be dismissed by the Authority. 29 / Thus, in my view, parties are better served if the party requesting to negotiate, usually a union, actually formulates bargaining proposals prior to filing an unfair labor practice charge or a negotiability appeal. Only then will the other party be able to evaluate if the proposal is negotiable, rather than relying on a general position that a topic is nonnegotiable.
It is necessary to understand the scope of bargaining under the Statute prior to embarking on drafting proposals to present to the other party. The Authority has issued over 2,000 negotiability decisions since its inception in 1979. The resolution of each negotiability dispute, of course, relies upon the particular wording of each proposal and the meaning the parties give to that wording. Also, many negotiability disputes involve allegations that a proposal is nonnegotiable because it conflicts with different Federal statutes, government-wide regulations or compelling need agency regulations. Nonetheless, the Authority over the years has clearly delineated and provided guidance on the meaning and application of the various management rights in section 7106(a) and (b)(1) of the Statute and on the tests used to determine other issues affecting the scope of bargaining, such as whether a proposal affects a condition of employment or is an appropriate arrangement. The parties need to understand these tests in order to obtain the maximum benefit from the scope of bargaining under the Statute.
Attached is a Summary of the Scope of Bargaining under the Statute. A basic understanding of the scope of bargaining is necessary before a party develops meaningful proposals that are negotiable. This permits parties to bargain over the subject matter at issue rather than engage in a dispute over what, if anything, they will bargain about.
This part of the Guidance presents approaches that the parties may use to meet their bargaining obligations under the Statute. Utilization of these approaches, however, requires an understanding of the scope of bargaining under the Statute. Thus, the approaches are presented with the understanding that when dealing with parties, the Region first ensures a working knowledge of the scope of bargaining by the parties.
When reviewing bargaining proposals that an agency asserts do not concern a condition of employment of unit employees, the Authority has found that matters directly implicating conditions of employment of supervisors are outside the duty to bargain. 30 / However, if the parties agree to include such matters in a collective bargaining agreement, the provisions are not subject to section 7114(c) agency head disapproval. 31 / Similarly, such clauses are enforceable in arbitration. 32 / Thus, an agency is fully empowered to bargain over, and to choose to agree to, a contract proposal that directly implicates the working conditions of its supervisors because such proposals address permissive subjects of bargaining. Once an agency and a union agree to such a proposal, it is enforceable provided that it is otherwise consistent with the Statute.
Thus, just because a proposal does not pertain to a condition of employment as defined in the Statute and developed by Authority case law does not mean that it is always contrary to the Statute to bargain over that matter. Although bargaining is not required, it is also not prohibited. For example, an agency may negotiate over a competitive area for bargaining unit employees even though that competitive area encompasses unrepresented employees and supervisors. Similarly, an agency and union may bargain over any matter which is not a condition of employment as long as it is not otherwise outside the scope of bargaining. For example, use of a military base's recreation areas by unit employees working at the base may be bargained even if not a condition of employment as long as it is not outside the scope of bargaining for some other reason.
While it is not unlawful to bargain and come to agreement on subjects which are not conditions of employment, a union cannot insist to impasse on such subjects because they are permissive in nature. 33 / Insisting to impasse on permissive subjects of bargaining is an unfair labor practice. 34 /
Similarly, other matters are outside the scope of bargaining but their negotiation is not unlawful if the parties agree to negotiate those matters. Thus, parties are not required to negotiate limits or conditions on the exercise of their statutory rights, but they are not precluded from doing so if they deem it in their best interest. It is not unlawful for either party in collective bargaining to make proposals which limit or condition the exercise of statutory rights. It only is an unfair labor practice when the party insists to impasse on this limitation. For example, a party need not negotiate over who will represent that party in negotiations during the life of the agreement, but parties may agree to bargain over such matters. Similarly, although there is no duty to bargain below the level of exclusive recognition, the parties may choose to bargain over certain matters at local levels. Such matters are outside the scope of bargaining -- they are permissive. However, they are not unlawful to bargain -- bargaining is not required, but it also is not prohibited. A party may revoke its decision to bargain anytime up until agreement and a party may not insist to impasse on such a permissive subject. However, once an agency and a union agree to such a permissive proposal and incorporate it as a provision of an agreement, it is enforceable provided that it is otherwise consistent with the Statute. 35 / Permissive subjects agreed upon by the parties do not terminate automatically at the expiration of contract. Rather, they terminate when a party notifies the other that it will no longer be bound by the provision. 36 /
The Statute does not totally preclude bargaining over matters addressed in law or government-wide regulation. Rather, as long as a proposal does not conflict with the law or government-wide regulation, and the law or government-wide regulation does not divest the agency of discretion over the matter addressed in the proposal, the matter may be subject to negotiations. This approach requires the parties to carefully examine the wording of the law and government-wide regulation and any legislative history of the law or explanations of the government-wide regulation. Avoiding negotiations over matters addressed in law or government-wide regulation without exploring whether there is any room for negotiations artificially limits the scope of bargaining under the Statute.
The management rights clause in the Statute, section 7106(a)(1) and (2), sets forth those matters which are outside the scope of bargaining. However, the exercise of these management rights are "[s]ubject to subsection (b)" of section 7106. 37 / Although they may limit some of management's discretion in exercising its rights, proposals that qualify as procedures and appropriate arrangements under section 7106(b)(2) and (3) of the Statute are within the scope of bargaining. Similarly, the management rights set forth in section 7106(b)(1) of the Statute are outside the mandatory scope of bargaining, although management may elect to bargain over these subjects. 38 / Again, even if management elects not to bargain section 7106(b)(1) rights, appropriate arrangements and procedures concerning those elective rights are within the scope of bargaining. Should an agency and union at the level of exclusive recognition agree upon a section 7106(b)(1) subject, similar to a matter that is not a condition of employment, that contract clause may not be disapproved under section 7114(c) agency head review, 39 / and is enforceable in arbitration. 40 /
Our experience has revealed that the majority of disputes over whether a proposal is negotiable or not center initially around whether the proposal interferes with a management (section 7106 (a)) right or an elective (section 7106(b)(1)) right, and if it does, whether the proposal constitutes an appropriate arrangement. As noted above, my Office is of the view that when formulating proposals, parties may not be gaining the entire benefits of the Statute if they do not focus on creating appropriate arrangement proposals. Before discussing a methodology to develop appropriate arrangement proposals, however, it is necessary to understand the basic tests utilized by the Authority to determine whether a proposal is an arrangement that is appropriate.
Again, prior to bargaining over negotiable proposals there must be a statutory duty to bargain. Once there is such a duty to bargain, however, the scope of that bargaining remains constant. Thus, during term negotiations, all proposals within the scope of bargaining under the Statute are bargainable. Similarly, during union initiated bargaining during the term, or after the expiration, of a contract, proposals that are within the Statute's scope of bargaining are subject to bargaining. When management makes a change in a condition of employment, the duty to bargain over appropriate arrangements is triggered if the change has more than a de minimis impact on employees' working conditions. This test only triggers the duty to bargain and does not determine whether a particular proposal is within the scope of bargaining under the Statute.
Many participants in the Federal sector labor-management relations program use the term impact and implementation when referring to bargaining under section 7106(b)(2) and (3) of the Statute. However, the concept of "impact" bargaining was dramatically changed over ten years ago when the Authority adopted the D.C. Circuit rationale and established a new test to determine whether a proposal is an appropriate arrangement under section 7106(b)(3). 41 / Thus, the test no longer is only concerned with whether a proposal addresses the impact of the change. Rather, since 1986, the appropriate arrangement test requires a determination whether the proposal is an arrangement for employees adversely affected by the exercise of a management right which is appropriate. 42 /
In determining whether a proposal is within the duty to bargain under section 7106(b)(3), the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." 43 / The adverse effect need not flow from the management right that a given proposal affects. 44 / The claimed arrangement must also be sufficiently "tailored" to compensate or benefit only employees suffering adverse effects attributable to the exercise of management's right(s). 45 / Section 7106(b)(3) brings within the scope of bargaining proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. 46 / However, proposals that are so broad in their 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 under section 7106 are outside the scope of bargaining.
If the proposal is an arrangement that is sufficiently tailored, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights.
It is significant to recognize that an appropriate arrangement, by definition, directly interferes with a reserved management right. Indeed, the concept of appropriate arrangements only comes into play when a proposal directly affects a management right. If a proposal does not directly affects a management right and is otherwise within the statutory duty to bargain, it is negotiable. Accordingly, Congress and the Authority have not made management rights sacrosanct, but rather have created a system where some proposals may indeed be negotiable even though they interfere with and restrict management in the exercise of its rights. The key is for the parties to develop proposals that, although they may place limitations on management rights, nonetheless are negotiable because they are appropriate arrangements.
The experience of the Office of the General Counsel in processing unfair labor practices and assisting parties in improving their relationships has shown that some unions develop bargaining proposals in response to management's exercise of a section 7106(a) or (b)(1) management right without consideration as to whether those proposals are negotiable appropriate arrangements. Our experience also has shown that some agencies declare proposals nonnegotiable as directly interfering with reserved management rights without attempting to explore with the union why the agency has taken that position and how the proposal at issue could be modified so as to result in further bargaining. Rather, it is not until there is an allegation of nonnegotiability and the filing of either an unfair labor practice charge with a Regional Office or a negotiability appeal with the Authority that the concept of negotiability is addressed. Again, remember, the concept of negotiability is not that "the agency does not agree with the union's proposal," but rather that "the agency has no obligation to discuss that proposal with the union because the agency believes it is nonnegotiable."
In my view, proper attention in developing proposals in response to the exercise of a management right and during the course of bargaining by both parties will allow the parties to develop meaningful negotiable proposals and afford the parties the opportunity to actually bargain over the issue, instead of arguing over what they will bargain about. The concept of negotiability only means that there is bargaining over the proposal, not that either party must agree to the proposal. Unfortunately, a few parties spend more time and effort arguing over whether they should be bargaining rather than actually bargaining over the matter at issue. To assist the Regions when working with parties to avoid negotiability disputes and to concentrate their efforts on effectuating collective bargaining rather than arguing over whether there should be bargaining, the following process is offered:
a. Identify the Management Right Being Exercised
If bargaining in response to a proposed management action, first determine whether the management action at issue constitutes the exercise of a management right under section 7106 of the Statute. If the action is not the exercise of a management right, the union may develop proposals that conflict with the proposed action as long as they are otherwise within the statutory scope of bargaining, discussed in the attachment. If the action is associated with a management right, identifying the particular management right at issue will assist the union in developing proposals that are arrangements and that are appropriate (see numbers b.-d. below).
If bargaining a term agreement, it also is necessary to identify the management right that is causing the harm that the appropriate arrangement proposal is attempting to alleviate. Although there is no impending action, as in unilateral change bargaining, the test used by the Authority to determine whether a proposal is an appropriate arrangement is the same.
b. Identify the Adverse Affect
In unilateral change bargaining, after obtaining appropriate notice of the proposed exercise of a management right that triggers a statutory duty to bargain, the union initially identifies the adverse affects or reasonably foreseeable adverse affects on bargaining unit employees that flow from the exercise of that management right. 47 / This requires the union to understand what the proposed management action involves and exactly how it will adversely affect unit employees. This initial identification is crucial since it is this adverse affect which is targeted to be lessened by the appropriate arrangement proposals to be presented by the union. If the union cannot identify the adverse affect created by the exercise of a management right, the union most likely will find it difficult to successfully explain why its proposal is an arrangement and why that arrangement is appropriate. Thus, before drafting proposals, the probability of creating a meaningful negotiable appropriate arrangement is increased if the adverse affect is initially identified. Proposals that address purely speculative or hypothetical concerns or are otherwise unrelated to management's exercise of its reserved rights are not arrangements. Thus, the proposal must be directed at the harm that flows from the exercise of the management right that is being exercised.
Similarly, in term negotiations, there still is the requirement to identify the harm which adversely affects employees which renders the proposal an arrangement.
c. Identify Adversely Affected Employees
A proposal is an arrangement only if it is intended to alleviate the adverse affect on employees affected by the exercise of that management right. The proposal must be sufficiently "tailored" to compensate or benefit only those employees suffering adverse effects resulting from the exercise of a management right. Care must be taken to include within the coverage of the proposal only those employees that have been or reasonably could be negatively affected by the management action.
d. Develop Meaningful Proposals That Are Appropriate
A proposal that is an arrangement (intended to alleviate the adverse affects of the exercise of a management right on those employees impacted) must not excessively interfere with any management right. A proposal may affect a management right which is not the same right that management exercised in causing the adverse affect. In other words, the adverse affect which a proposal attempts to alleviate need not flow from the same management right that a given proposal affects. For example, management may give notice that it intends to make a change by exercising its management right to determine its internal security practices. The union proposal intended to alleviate the adverse affect on employees by the exercise of that management right (internal security practices), however, may directly interfere with a different management right, such as the right to assign employees.
The key is whether the proposal is appropriate or whether it is inappropriate because it excessively interferes with a management right. Recall that all negotiable appropriate arrangements interfere to some extent with a management right. The critical factor in determining whether a proposal excessively interferes with a management right is the extent to which the proposal's benefits to harmed employees outweighs the limitations it places on the management right.
Accordingly, when formulating a negotiable appropriate arrangement, after recognizing the harm generated by management's exercise of its right and identifying those unit employees adversely affected, it is necessary to develop a proposal that benefits employees to a greater extent than the proposal restricts management.
Disputes over the interpretation and application of an existing contract clause sometimes lead an agency to repudiate that clause based on its belief that the clause affects a section 7106(a) management right. In these circumstances, if the contact clause was an arrangement when negotiated, the Authority will enforce that clause unless it "abrogates" a section 7106(a) management right. 48 /
Under this legal analysis, even though the clause may have been nonnegotiable at the time of bargaining, i.e., although an arrangement, the clause excessively interfered with a management right, once it has been negotiated into a contract that has survived section 7114(c) agency head review, the applicable legal test changes from excessive interference to abrogation. Thus, if a contract provision is an arrangement for employees adversely affected by the exercise of a management right and it does not abrogate that right, it is lawful and cannot be repudiated.
The abrogation inquiry requires a different assessment of the burdens that a provision would impose and, in general, permits a greater degree of interference with the exercise of a section 7106(a) management right. In particular, that inquiry defers to the parties' assessment of the burdens imposed, as evidenced by their agreement to include the provision in their contract. The result is that the agency must comply with what otherwise might have been a nonnegotiable contract provision. 49 /
Procedures which management officials of the agency observe in exercising any authority under section 7106(a)(1), (a)(2) and (b)(1) are negotiable. However, unlike appropriate arrangements, the Authority has held that proposals on procedures cannot "directly interfere" with a management right. Thus, proposals that are procedural in nature but which are inconsistent with the exercise of a management right do not constitute procedures under section 7106(b)(2) of the Statute. 50 / On the other hand, if a proposal does not directly interfere with a management right, there would be no need to argue that it is a procedure. As such, section 7106(b)(2) does not place any matters within the scope of bargaining that would not otherwise be within that scope. The Authority has recognized that section 7106(b)(2) requires reexamination. 51 / This represents an excellent opportunity for a party to develop a test case to present to the Authority to obtain an understanding of the meaning of procedures under section 7106(b)(2) of the Statute.
As noted at the beginning of this Guidance, proper utilization of a pre-decisional process and the use of an interest-based problem-solving approach to statutory collective bargaining could avoid many negotiability disputes. But just as parties at some point find themselves drafting proposals in response to actions taken by the other side, parties also sometimes find themselves enmeshed in negotiability disputes. Rather than immediately instituting litigation, I suggest that parties further discuss the dispute in an attempt to return to the process of collective bargaining. These are some suggestions to assist the parties in this endeavor:
Some negotiability disputes arise because the parties have different interpretations of the proposed language. Indeed, the Authority decides upon the meaning of a proposal before it decides negotiability cases, as do the Regional Directors when making negotiability determinations as part of processing an unfair labor practice charge. 52 / Prior to curtailing negotiations because of a negotiability dispute, a union should ask the agency to present its interpretation of the proposal and describe how the agency perceives the proposal will impact on its operations.
No party is required to agree to any proposal. Merely because a party may deem a proposal without merit does not render that proposal nonnegotiable. Should a party deem the proposal unacceptable on its merits, the proper forum to discuss the merit of the proposal is the collective bargaining process, not through litigation.
The collective bargaining process is better served if the parties are able to discuss the negotiability issues and move forward in their negotiations by addressing the negotiability concerns and the concerns which prompted the proposal in the first instance. Resort to litigation before a third party should only be invoked when the parties have a legal issue that requires a definitive legal answer, rather than a dispute caused, in whole or in part, by a breakdown in communications or a non-productive labor-management relationship.
Sometimes an agency may assert that a proposal is outside the scope of bargaining when their objection pertains only to a specific segment of a proposal, or even one word. If this fact is communicated between the parties, they may be able to continue bargaining over the matter while avoiding the issue of negotiability. Again, do not confuse the merits of a proposal with its negotiability. The key is to continue communicating and bargaining rather than stopping the process with litigation.
Communicating over what specific action the agency believes the proposal would prohibit or unduly impede the agency from undertaking could alleviate any misunderstandings among the parties over the meaning of the proposal. For example, if the agency asserts a proposal would preclude the agency from taking a certain action and the union's intent was not to preclude that action, the proposal may be modified to resolve, what in essence is, a communication problem and not a negotiability dispute. Similarly, sometimes adding a phrase or clause alleviates the reasons why an agency believes a proposal to be nonnegotiable.
Sometimes, there is no disagreement over the purpose of the proposal, but the parties disagree as to the manner in which that purpose is to be effectuated by the proposal. It may be possible to draft alternative proposals which achieve the same goal but which avoid negotiability issues. Again, the goal is to continue talking and bargaining, rather than terminating the process with litigation.
If all else fails, do not leave the table until both parties have a common understanding over the intent and meaning of the proposal and the reason why the agency believes it to be nonnegotiable. Agreeing on the intent and meaning of the proposal, and articulating the reasons why nonnegotiability is alleged, may result in resolution of the negotiability dispute and will expedite any litigation process, if invoked.
Footnotes Follow:
1. Previous public guidance memoranda have been issued on "The Duty to Bargain Over Programs Establishing Employee Involvement and Statutory Obligations When Selecting Employees for Work Groups" (August 8, 1995), "Guidance on Investigating, Deciding and Resolving Information Disputes" (January 5, 1996), "Proper Descriptions of Bargaining Units and Identification of Parties to the Collective Bargaining Relationships in Certifications" (December 18, 1996), "The Duty of Fair Representation" (January 27, 1997), "The Impact of Collective Bargaining Agreements on the Duty to Bargain and the Exercise of Other Statutory Rights" (March 5, 1997) and "Pre-Decisional Involvement: A Team-Based Approach Utilizing Interest-Based Problem Solving Principles" (July 15, 1997).
2. See Internal Revenue Service, Washington, D.C. , 47 FLRA No. 193, 47 FLRA 1091 (1993) and the OGC Guidance on "The Impact of Collective Bargaining Agreements on the Duty to Bargain and the Exercise of Other Statutory Rights" (March 5, 1997).
3. 5 U.S.C. §§ 7103(a)(12) (defining "collective bargaining") and 7114(a)(1) and (b) (setting forth the duty to bargain in good faith).
4. Department of Health and Human Services, Social Security Administration , 6 FLRA No. 33, 6 FLRA 202 (1981), cited with approval in U.S. Food and Drug Administration, Northeast and Mid-Atlantic Regions , 53 FLRA No. 110, 53 FLRA 1269, 1274 (1998), reconsideration denied , 54 FLRA No. 68 (1998) ( FDA, Northeast ) (a party is only required to negotiate with the certified exclusive representative and agency, respectively).
5. FDA, Northeast , 53 FLRA at 1274 ("The fact that parties to a consolidated unit are not required to bargain locally does not, however, foreclose such bargaining if both parties desire to engage in it.").
6. U.S. Geological Survey, Caribbean District Office, San Juan, Puerto Rico , 53 FLRA No. 86, 53 FLRA 1006 (1998) (the agency's misconduct was sufficiently egregious and pervasive throughout the certification year as to warrant a complete renewal of the union's certification year).
7. Social Security Administration v. FLRA , 956 F.2d 1280 (4th Cir. 1992); Patent and Trademark Office v. FLRA , 991 F.2d 790 (4th Cir. 1993); U.S. Department of Energy, Washington, D.C. v. FLRA , 106 F.3d 1158 (4th Cir. 1997); and United States Department of the Interior v. FLRA, 132 F.3d 157 (4 th Cir. 1997), cert. granted sub nom. , FLRA and National Federation of Federal Employees, Local 1309 v. Department of the Interior, Washington D.C. 118 S. Ct. 2059 (1998) (Nos. 97-1184 & 97-1243).
9. Internal Revenue Service , 29 FLRA No. 12, 29 FLRA 162, 166 (1987) and National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office , 53 FLRA No. 59, 53 FLRA 539, 551-54 (1997) ( PTO ).
10. See the Office of the General Counsel Guidance "The Impact of Collective Bargaining Agreements on the Duty to Bargain and the Exercise of Other Statutory Rights" (March 5, 1997) (Covered by/Contract Interpretation Guidance) for a discussion of the "covered by" doctrine.
11. See Covered by/Contract Interpretation Guidance for a discussion of the "contract interpretation" doctrine.
12. Cf. United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas , 51 FLRA No. 68, 51 FLRA 768 (1996), reconsideration denied , 51 FLRA No. 127, 51 FLRA 1561, 1565 (1996), affirmed sub nom. , AFGE, National Border Patrol Council, Local 2366 v. FLRA , 114 F. 3d 1214 (D.C. Cir. 1997) (Authority held no midterm refusal to bargain over an assignment policy because the contract had expired and midterm bargaining requires an existing contract, noting that the sole theory of the violation advanced was a refusal to engage in midterm bargaining) and Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio , 51 FLRA No. 125, 51 FLRA 1532 (1996) (no refusal to bargain at the union's request on an incentive awards program because the union did not pursue pre-implementation bargaining).
13. U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee , 53 FLRA No. 14, 53 FLRA 79, 81 (1997) and Department of the Air Force, Scott Air Force Base, Illinois , 5 FLRA No. 2, 5 FLRA 9 (1981).
14. Department of Health and Human Services, Social Security Administration , 24 FLRA No. 42, 24 FLRA 403, 407-08 (1986).
15. General Services Administration, Region 9, San Francisco, California , 52 FLRA No. 112, 52 FLRA 1107, 1111 (1997) (Chair Segal dissenting as to other matters).
16. Air Force Logistics Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia , 53 FLRA No. 149, 53 FLRA 1664, 1669 (1998) (Member Wasserman dissenting) (Authority declines to reexamine sua sponte its precedent that the de minimis doctrine applies only to section 7106(b)(2) and (3) bargaining).
17. U.S. Department of Transportation Federal Aviation Administration, Standiford Air Traffic Control Tower Louisville, Kentucky , 53 FLRA No. 42, 53 FLRA 312, 319 (1997) ("The fact that the sessions were conducted in a partnership atmosphere, as opposed to traditional collective bargaining, does not preclude a conclusion that the sessions constituted collective bargaining within the meaning of the Statute. The definition of collective bargaining set forth in section 7103(a)(12) does not prescribe any particular method in which collective bargaining must occur. It is well recognized that collective bargaining may occur in a variety of ways, including the use of collaborative or partnership methods") (citation omitted).
18. Army and Air Force Exchange Service , 52 FLRA No. 27, 52 FLRA 290, 304 (1996) and U.S. Department of the Air Force Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio , 36 FLRA No. 62, 36 FLRA 524, 531 (1990) (factors considered in finding bad faith bargaining were attempts to avoid bargaining, failing to respond to demands to bargain, failing to propose dates for negotiations, leaving bargaining meetings and ground rules proposals designed to avoid negotiations).
20. Antilles Consolidated Education Association and Antilles Consolidated School System , 22 FLRA No. 23, 22 FLRA 235 (1986).
21. An exception is when there is an agency or primary national subdivision rule or regulation for which there is a compelling need under section 7117(a)(3) of the Statute. See attachment summarizing the scope of bargaining, including compelling need agency regulations.
22. Again, a compelling need agency rule or regulation issued by an agency or primary national subdivision above the level of exclusive recognition may limit the scope of bargaining.
23. Office of Personnel Management v. FLRA , 864 F.2d 165 (D.C. Cir. 1988)(Government-wide regulations cannot preclude bargaining over appropriate arrangements).
24. One exception is where the merit of a proposal is examined when determining if a proposal, which is an arrangement under section 7106(b)(3), is "appropriate." See the discussion below at pages 17-23 on developing negotiable appropriate arrangement proposals.
25. This bargaining situation was described on page 9 "In Response to a Management Change During the Term of a Contract or After a Contract Expires."
26. These bargaining situations were described on page 7 "Term Negotiations for a Contract" and on page 8 "Midterm Union Initiated or Union Initiated After Expiration of a Contract."
27. See , e.g. , Social Security Administration, Gilroy Branch Office, Gilroy, California , 53 FLRA No. 122, 53 FLRA 1358 (1998) (section 7116(a)(1) and(5) violation for scheduling appointments for claim representatives on Fridays without first completing bargaining).
28. Section 2424.4 of the Authority's negotiability regulations requires a petition for review to contain "[a] statement setting forth the express language of the proposal sought to be negotiated as submitted to the agency. . . ."
29. See , e.g. , American Federation of Government Employees, National Veterans Administration Council and U.S. Department of Veterans Affairs, Washington, D.C. , 42 FLRA No. 91, 42 FLRA 1327, 1331 (1991) (proposal not sufficiently specific and delimited to determine whether it is negotiable) and National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base New London, Groton, Connecticut , 35 FLRA No. 108, 35 FLRA 1006, 1007 (1990) (negotiability petition for review dismissed since the petition for review did not contain the express language of the proposal sought to be negotiated).
30. See , e.g. , American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C. , 51 FLRA No. 42, 51 FLRA 491 (1995)(proposal setting competitive areas for supervisors and managers is not a condition of employment).
31. American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama , 53 FLRA No. 60, 53 FLRA 606 (1997) (contract provision requiring bargaining over competitive areas including supervisors may not be disapproved under section 7114(c)).
32. See American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration , 52 FLRA No. 65, 52 FLRA 677 (1996) (an arbitration award applying a contract clause addressing parking privileges for supervisors is lawful).
33. Federal Deposit Insurance Corporation, Headquarters , 18 FLRA No. 92, 18 FLRA 768 (1985) (a proposal that would require a union to waive its right to utilize statutory impasse procedures is permissive and insistence to impasse is an unfair labor practice).
34. FDA, Northeast , 53 FLRA at 1269 (negotiation of two separate collective bargaining agreements with a union representing one bargaining unit is a permissive subject of bargaining and insistence to impasse was an unfair labor practice).
35. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base , 51 FLRA No. 125, 51 FLRA 1532 (1996) (parties' agreement to establish contractual time limits for submitting proposals allow an agency to refuse to bargain over untimely proposals). See Covered By/Contract Interpretation Guidance for a discussion of the "contract interpretation" doctrine.
36. See , e.g. , Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington , 14 FLRA No. 89, 14 FLRA 644 (1984).
38. See U.S. Department of Commerce, Patent and Trademark Office , 54 FLRA No. 43 (1998) (Member Wasserman dissenting in part), petition for review filed sub nom. Patent Office Professional Association v. FLRA , No. 98-1377 (D.C. Cir., August 17, 1998) (Executive Order 12871 "Labor-Management Partnerships" is not an election to bargain under section 7106(b)(1) of the Statute). The rules applicable to permissive subjects are equally applicable to section 7106(b)(1) elective topics.
39. National Association of Government Employees, Local R-4 75 and U.S. Department of the Interior, National Part Service, Blue Ridge Parkway , 24 FLRA No. 7, 24 FLRA 56, 62 (1995).
40. United States Department of Labor (OSHA) and National Council of Field Labor Locals , 34 FLRA No. 96, 34 FLRA 573, 577 (1990).
41. National Association of Government Employees, Local R14-87 and Kansas Army National Guard , 21 FLRA No. 4, 21 FLRA 24 (1986) ( KANG ).
43. United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA , 960 F.2d 1068, 1073 (D.C. Cir. 1992). See American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command Fort McPherson, Georgia , 51 FLRA No. 14, 51 FLRA 133, 141 (1995) (a provision that addresses an adverse effect that results from the denial of a negotiated benefit - rather than the exercise of a management right - is not an arrangement).
44. See , e.g. , National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office , 49 FLRA No. 24, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part).
45. See e.g. , National Association of Government Employees, Local R-14-23 and U.S. Department of Defense, Defense Commissary Agency, Kelly Air Force Base, Texas , 53 FLRA No. 131, 53 FLRA 1440, 1443-44 (1998) and American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service , 51 FLRA No. 108, 51 FLRA 1308, 1319 (1996) ( AFGE, NBPC ) (proposals which concern all employees, not just those adversely affected by the exercise of a management right, are not arrangements).
47. See , e.g. , National Education Association, Overseas Education Association, Fort Bragg Association of Educators and U.S. Department of Defense, Department of Defense Domestic Dependents Elementary and Secondary Schools , Fort Bragg, North Carolina , 53 FLRA No. 71, 53 FLRA 898, 915, 918 (1997) ( NEA/OEA ) (proposal is not an arrangement where the union does not identify any adverse effects on employees, either actual or reasonably foreseeable) and National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, Washington, D.C. , 53 FLRA No. 78, 53 FLRA 967, 974 (1997) (proposal is not an arrangement where the union does not establish that it is reasonably foreseeable that bargaining unit employees will be downgraded as a consequence of the establishment of advisor positions).
48. Department of Defense, Warner Robins Air Logistics Center, Robins Air Fore Base, Georgia , 40 FLRA No. 106, 40 FLRA 1211, 1212 (1991) (the Authority applies the "abrogation test" in unfair labor practice cases when an agency repudiates a contract provision which it deems nonnegotiable under section 7106(a) of the Statute) and Department of the Treasury, U.S. Customs Service and National Treasury Employees Union , 37 FLRA No. 20, 37 FLRA 309, 314 (1990) (a contract provision which "abrogates" or "precludes" an agency from exercising a management right inherently cannot constitute an appropriate arrangement and thus the contract provision is contrary to law).
49. The Authority also has suggested that the inquiry for determining whether negotiated provisions, in contrast to bargaining proposals, are appropriate may more properly involve whether the management right(s) at issue have been "abrogated," rather than the excessive interference test. PTO , 53 FLRA at 572 n. 14.
51. It has been questioned whether, in light of the Authority's decision in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky , 51 FLRA No. 36, 51 FLRA 386 (1995), the Authority must revise its analytical framework for determining whether a proposal or provision is a procedure within the meaning of section 7106(b)(2). In that decision, the Authority stated that section 7106(b) is indisputably an exception to section 7106(a). Although agreeing that the precedent addressing section 7106(b)(2) warrants reexamination, the Authority indicated it would do so when the matter is clearly presented on an adequate record. PTO , 53 FLRA at 569 n. 12.
52. In interpreting a disputed proposal, the Authority looks to its plain wording and any union statement of intent. If the union's explanation is consistent with the plain wording, the Authority adopts that explanation for the purpose of construing what the proposal means and, based on its meaning, deciding whether it is, or is not, within the scope of bargaining. Where a proposal is silent as to a particular matter, a union's statement clarifying the matter will be adopted if it is otherwise consistent with the wording of the proposal. When a union's explanation is not supported by a reasonable construction, however, the explanation is deemed inconsistent with the plain wording, and the Authority does not adopt it for the purpose of determining whether the proposal is within the scope of bargaining. NEA/OEA , 53 FLRA at 907.