EXECUTIVE SUMMARY
See also: Guidance to the FLRA Regional Directors and Summary of the Scope of Bargaining
This Executive Summary of the General Counsel of the Federal Labor Relations Authority's Guidance Memorandum to Regional Directors discusses the concept of 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 and avoiding litigation. The Guidance Memorandum is 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 divided into four parts. Part I -- "Ways to Engage in Collective Bargaining In the Federal Sector" -- discusses how proper utilization of a pre-decisional 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.
Yes. Unions and agencies have used a variety of techniques to bargain collectively under the Statute and the predecessor Executive Order program. In the General Counsel's view, proper utilization of a pre-decisional process and the use of an interest- based problem-solving approach to statutory collective bargaining could avoid negotiability disputes.
Parties may realize the entire statutory scope of bargaining by understanding the legal rules for determining whether a proposal is negotiable and drafting meaningful proposals, especially appropriate arrangement proposals.
The duty to bargain concerns when and whether parties are obliged to negotiate under the Statute. Absent any limitations that the parties voluntarily place on when or how they will engage in negotiations, there are three basic situations that trigger the statutory duty to bargain: (1) term negotiations for a contract at the level of exclusive recognition; (2) midterm union initiated bargaining during the term of an agreement or union initiated bargaining after expiration of a contract; and (3) in response to a management change during the term of a contract or after a contract expires.
The Statute provides that parties to an exclusive bargaining relationship are required to negotiate a collective bargaining agreement upon request of either party at the level of exclusive recognition. These are term negotiations.
The Authority has adhered to the view of the D.C. Circuit 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 "covered by" the collective bargaining agreement, unless the union has waived its right to bargain.
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. 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. Where an agency institutes a change in conditions 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.
The Statute requires the parties to bargain in good faith. This requires the parties to meet and negotiate for the purpose of arriving at a collective bargaining agreement. The parties have the mutual obligation to select authorized representatives who meet at reasonable times and bargain to reach agreement with respect to the conditions of employment affecting bargaining unit employees. If requested by either party, the parties are required to execute a written document incorporating any collective bargaining agreement reached. The parties must demonstrate a sincere resolve to reach a collective bargaining agreement.
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.
Generally no. 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. 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. Although higher levels of management may make management decisions binding on management at a lower level within the organization, higher level management may not lawfully remove matters from the bargaining table that are otherwise within the scope of bargaining merely by instructing the lower level that they have no discretion to bargain over certain matters.
The concept of negotiability concerns whether a party is required to bargain over a particular matter. 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. 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. However, if an agency implements a change in a condition of employment in the face of a negotiable proposal timely submitted by a union, the implementation is an unfair labor practice.
Negotiability disputes that arise during bargaining over a term agreement or other midcontract bargaining where there are no duty to bargain issues 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.
Yes. In the General Counsel's view, parties 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. 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. 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. Similarly, to obtain a negotiability determination by the Authority, a union needs to present an actual proposal to the agency.
Yes. Although many parties bargain by utilizing "pre-decisional involvement" and interest-based methods, most parties at some occasion find themselves drafting proposals and dealing with the legal doctrine of negotiability. The parties need to understand these legal rules in order to obtain the maximum benefit from the scope of bargaining under the Statute.
A permissive subject of bargaining is a matter outside the scope of bargaining. Bargaining is not required, but it is not prohibited. Examples of permissive subjects of bargaining are proposals that directly implicate supervisors' conditions of employment and matters that place limitations on the exercise of a statutory right.
Yes. Parties are fully empowered to bargain over, and to choose to agree to, a contract proposal that does not concern a condition of employment, such as procedures for applying for supervisory positions or competitive areas, 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. Once such matters are included in a collective bargaining agreement, the provisions are not subject to section 7114(c) agency head disapproval simply because they do not involve a condition of employment. Although bargaining is not required and a party cannot insist to impasse on such matters, bargaining is not prohibited.
Yes. 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. For example, there is no duty to bargain below the level of exclusive recognition, but the parties may choose to bargain over certain matters at local levels. Again, once an agency and a union agree to such a permissive proposal, it is enforceable provided that it is otherwise consistent with the Statute.
No. 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.
The management rights clause in the Statute, section 7106(a)(1) and (2), sets forth those matters which are outside the scope of bargaining. These subjects are commonly referred to as prohibited subjects of bargaining.
Elective subjects of bargaining, also referred to as permissive, are set forth in section 7106(b)(1) of the Statute. Parties may, but are not required to, bargain over section 7106(b)(1) matters. Should an agency and union 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 and is enforceable in arbitration.
Appropriate arrangements are exceptions to management's exercise of its reserved rights. A proposal that directly affects a section 7106(a) or (b)(1) management right may nonetheless be negotiable if it qualifies as an appropriate arrangement. The exercise of management rights are "[s]ubject to subsection (b)" of section 7106. Proposals that qualify as procedures and appropriate arrangements under section 7106(b)(2) and (3) of the Statute are within the scope of bargaining, even though they may limit some of management's discretion in exercising its section 7106 rights. 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 elective subjects. 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.
Yes. Many disputes over whether a proposal is negotiable or not center initially around whether the proposal interferes with a management right (section 7106(a) or (b)(1)), and if it does, whether the proposal constitutes an appropriate arrangement. In the General Counsel's view, parties may not be gaining the entire benefits of the Statute if they do not focus on creating appropriate arrangement proposals.
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, absent other contractual constraints. 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 triggers the duty to bargain and does not determine whether a particular proposal is within the scope of bargaining under the Statute.
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. Further, the claimed arrangement must also be sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of a management's right. If the proposal is an arrangement, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with a management right. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's right.
Proper attention in developing proposals in response to the exercise of a management right and during the course of bargaining by both parties allows the parties to develop meaningful negotiable proposals and affords 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 Guidance presents and develops the following process:
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. 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.
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. The current legal test for identifying procedures has been questioned. This presents an 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.
Proper utilization of a pre-decisional process and the use of an interest-based problem-solving approach to statutory collective bargaining could avoid negotiability disputes. The Guidance offers other suggestions on how the parties may further discuss the dispute in an attempt to return to the process of collective bargaining: