1 / 28

California National Guard Directorate for Human Resources

2. . . Labor Relations Purpose

joy
Download Presentation

California National Guard Directorate for Human Resources

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


    1. 1 California National Guard Directorate for Human Resources Mr. Todd Morrow, Labor Relations “Supervisory Training ” todd.morrow1@us.army.mil (916) 854-3600, DSN 466-3600, CAGNET 6-3600 Born: 11/26/1964 Mena, Arkansas Retired Air Force: 21+ years spent as a Air Traffic Controller and Manager AF Experience: Supervised over 100+ while at Travis some being GS-12 Bargaining Unit Members. I’ve made some bad decisions initially because I didn’t know the differences required by law, regulation, and CBA of supervising federal employees. Luckily, I learned the importance of calling the ER/LR/HR office to avoid/mitigate complaints early on though… Education: B.S. in Psychology through GI Bill, M.S. in Human Resource w/ Organizational Leadership Graduate Certificate through VA Vocational Rehab Program. Many USDA Courses specializing in Employee and Labor Relations. The Federal Government has spent a lot of money in getting me smarter on ER/LR program management and I want to assist you in any employee challenges you may be faced with as well as procedurally correct. ER/LR Background: 2 years at Bureau of Land Management prior to arrival at Cal National Guard. I’m paid to advise supervisors/management on procedural guidance dealing with CBA and Technician Program for all disciplinary actions. Born: 11/26/1964 Mena, Arkansas Retired Air Force: 21+ years spent as a Air Traffic Controller and Manager AF Experience: Supervised over 100+ while at Travis some being GS-12 Bargaining Unit Members. I’ve made some bad decisions initially because I didn’t know the differences required by law, regulation, and CBA of supervising federal employees. Luckily, I learned the importance of calling the ER/LR/HR office to avoid/mitigate complaints early on though… Education: B.S. in Psychology through GI Bill, M.S. in Human Resource w/ Organizational Leadership Graduate Certificate through VA Vocational Rehab Program. Many USDA Courses specializing in Employee and Labor Relations. The Federal Government has spent a lot of money in getting me smarter on ER/LR program management and I want to assist you in any employee challenges you may be faced with as well as procedurally correct. ER/LR Background: 2 years at Bureau of Land Management prior to arrival at Cal National Guard. I’m paid to advise supervisors/management on procedural guidance dealing with CBA and Technician Program for all disciplinary actions.

    2. 2 Directorate for Human Resources (HRO) Responsibilities: Provides guidance and direction to all managers and supervisors on disciplinary responsibilities, rights, and obligations. Assists supervisors and managers with the procedural aspects of an action before issuance of a proposed action. Provides necessary training to managers and supervisors on the subject of this regulation. Represents and/or advises The Adjutant General (TAG) or TAG representative in disciplinary and adverse action cases. Provides general and procedural guidance and case information to the effected technicians. Primary Purpose is to provide comprehensive labor relations, adverse action and disciplinary consultation services to customer (management and supervisors). As well as, provide procedural guidance to technicians to include procedural rights.

    3. 3 Labor Relations Training FLRA and Unfair Labor Practice Interference and Discrimination Collective Bargaining Conditions of Employment Management Rights Formal Discussions Impact and Implementation (I&I) Grievance

    4. 4 Federal Labor Relations Authority (FLRA) Office of General Counsel Regions: Boston, D.C., Atlanta, Denver, Chicago, Dallas, and San Francisco Authority: 3 Member Panel (Appt by Pres) Federal Services Impasses Panel Office of Administrative Law Judges Investigate unfair labor practice (ULP) charges Prosecutes unfair labor practices complaints (Admin Law Judge) Investigates and decides representation petitions on behalf of Authority Provides training on the Statute Authority Reviews decisions of Admin Law Judges in ULP cases when exceptions are filed. Decides appeals of decisions of regional directors in representation cases. Rules on exceptions to decisions of arbitrators’ awards. Resolves negotiability disputes. FSIP Resolves bargaining IMPASSES between agencies and unions when voluntary arrangements, including the services of the Federal Mediation and Conciliation Service (FMCS) are unsuccessful. Authority Reviews decisions of Admin Law Judges in ULP cases when exceptions are filed. Decides appeals of decisions of regional directors in representation cases. Rules on exceptions to decisions of arbitrators’ awards. Resolves negotiability disputes. FSIP Resolves bargaining IMPASSES between agencies and unions when voluntary arrangements, including the services of the Federal Mediation and Conciliation Service (FMCS) are unsuccessful.

    5. 5 Unfair Labor Practice (ULP) Who should you call for guidance? Who may file a ULP? Timeliness Exception to Rule Who may file: Any person (individual, labor organization, or agency) may file. IAW 5 USC 7103 (a) (1) Charges may be filed against agencies or labor organizations. Timeliness: General rule: No complaint shall be issued on any unfair labor practice which occurred more than 6 months before filing the charge. Arbitration award – when it is reasonable to conclude that there has not been compliance. Internal Rev Svc., 61 FLRA 146 (2005) Exception to Rule: If the charging party was prevented from filing the charge by: A failure of a party to perform a duty owed, or Concealment, which prevented discovery, charging party may file within six months of learning of alleged violation. IAW 5 USC 7118 (a) (4) (b) Who may file: Any person (individual, labor organization, or agency) may file. IAW 5 USC 7103 (a) (1) Charges may be filed against agencies or labor organizations. Timeliness: General rule: No complaint shall be issued on any unfair labor practice which occurred more than 6 months before filing the charge. Arbitration award – when it is reasonable to conclude that there has not been compliance. Internal Rev Svc., 61 FLRA 146 (2005) Exception to Rule: If the charging party was prevented from filing the charge by: A failure of a party to perform a duty owed, or Concealment, which prevented discovery, charging party may file within six months of learning of alleged violation. IAW 5 USC 7118 (a) (4) (b)

    6. 6 Hypothetical Management changes a major policy on January 16. No notice is provided to the Union. Union learns of changes on August 28. Union Files ULP on September 19. Is the charge timely filed? Answer: Yes Air Force Accounting & Fin. Ctr., Lowry Air Force Base, Denver, Colo., 42 FLRA 1226 (1991) V. Analysis and Conclusions A. The Charge Was Timely Filed Section 7118(a)(4) of the Statute provides that no complaint may be issued based on any alleged unfair labor practice that occurred more than 6 months before the filing of the charge. The change in the AWS in the SJA Office occurred on January 16, 1989. Although the Union was aware that a memorandum had been issued in January 1989, to all AFAFC employees concerning expanded office coverage for all AFAFC offices, there was no knowledge by the Union of any schedule changes or plans to change schedules in the SJA Office. The Union found out about the change from a bargaining unit employee on August 28, 1989, and filed an unfair labor practice charge on September 19, 1989, 8 months after the change. The AFAFC argues that the time for filing an unfair labor practice charge runs from the date of the change and not from the date the Union was or should have been notified of the change. Therefore, AFAFC argues that the charge was filed untimely. In U.S. Department of the Air Force, Williams Air Force Base, Chandler, Arizona, 38 FLRA 549 (1990), the Authority adopted the Judge's finding that, under section 7118(a)(4), the 6-month time period for filing an unfair labor practice charge will not begin running until the alleged unfair labor practice is discovered, if the charging party was prevented from filing the charge during the 6 months after the alleged unfair labor practice occurred because of a failure on the part of the agency to perform a duty owed to the charging party, or because concealment prevented the discovery of the alleged unfair labor practice within the 6-month period. Here, the AFAFC failed to notify the Union of the change in employees' hours of work in the SJA Office, thereby failing to perform a duty owed to the Union. The Union was unaware of the change in the SJA Office until it discovered the change on August 28, 1989. While there is no evidence of an intentional concealment, the Union had no knowledge of the change in the AWS in the SJA Office within 6 months of the date the change occurred. Therefore, we find that the charge, filed within weeks after the Union learned of the change, is timely filed. The facts in Department of Labor, Department of the Treasury, and Veterans Administration cited by the AFAFC are distinguishable from those in this case. In the cases cited by the Respondent, the union found out about the change in conditions of employment prior to the 6-month time limit but did not file the unfair labor practice charges until after the 6-month time limit expired. In this case, the Union did not learn about the change until 7 months after the change and filed the unfair labor practice charge 1 month later.Answer: Yes Air Force Accounting & Fin. Ctr., Lowry Air Force Base, Denver, Colo., 42 FLRA 1226 (1991) V. Analysis and Conclusions A. The Charge Was Timely Filed Section 7118(a)(4) of the Statute provides that no complaint may be issued based on any alleged unfair labor practice that occurred more than 6 months before the filing of the charge. The change in the AWS in the SJA Office occurred on January 16, 1989. Although the Union was aware that a memorandum had been issued in January 1989, to all AFAFC employees concerning expanded office coverage for all AFAFC offices, there was no knowledge by the Union of any schedule changes or plans to change schedules in the SJA Office. The Union found out about the change from a bargaining unit employee on August 28, 1989, and filed an unfair labor practice charge on September 19, 1989, 8 months after the change. The AFAFC argues that the time for filing an unfair labor practice charge runs from the date of the change and not from the date the Union was or should have been notified of the change. Therefore, AFAFC argues that the charge was filed untimely. In U.S. Department of the Air Force, Williams Air Force Base, Chandler, Arizona, 38 FLRA 549 (1990), the Authority adopted the Judge's finding that, under section 7118(a)(4), the 6-month time period for filing an unfair labor practice charge will not begin running until the alleged unfair labor practice is discovered, if the charging party was prevented from filing the charge during the 6 months after the alleged unfair labor practice occurred because of a failure on the part of the agency to perform a duty owed to the charging party, or because concealment prevented the discovery of the alleged unfair labor practice within the 6-month period. Here, the AFAFC failed to notify the Union of the change in employees' hours of work in the SJA Office, thereby failing to perform a duty owed to the Union. The Union was unaware of the change in the SJA Office until it discovered the change on August 28, 1989. While there is no evidence of an intentional concealment, the Union had no knowledge of the change in the AWS in the SJA Office within 6 months of the date the change occurred. Therefore, we find that the charge, filed within weeks after the Union learned of the change, is timely filed. The facts in Department of Labor, Department of the Treasury, and Veterans Administration cited by the AFAFC are distinguishable from those in this case. In the cases cited by the Respondent, the union found out about the change in conditions of employment prior to the 6-month time limit but did not file the unfair labor practice charges until after the 6-month time limit expired. In this case, the Union did not learn about the change until 7 months after the change and filed the unfair labor practice charge 1 month later.

    7. 7 Interference – The Legal Basis 5 U.S.C 7102 Employee’s Rights Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal

    8. 8 Interference by an Agency It is a violation of 7116 (a) (1) for an agency to interfere with, restrain or coerce an employee in the exercise by the employee of any right under the Statute. Examples of this conduct Threatening employees with reprisal if they exercise their rights under the Statute. Making implied threats against union representatives for assisting employees in filing and prosecuting grievances under the negotiated grievance procedure.

    9. 9 Hypothetical Employee told his supervisor that he was going to ask the Union to create a roster committee, which would create a system for tour of duty assignments. The supervisor told the employee that if he wanted to move into management, he shouldn’t step on anyone’s toes. The next week this employee and others were talking about the roster committee. The supervisor approached and said, “If you guys want to play hardball, I can play hardball.” An employee asked what he meant and was told by the supervisor that he should wait and see. Violation? Answer: Yes U.S. Penitentiary, Florence, Col., 52 FLRA 974 (1997) Order Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Penitentiary, Florence, Colorado shall: 1. Cease and desist from: (a) Making statements to employees, who are represented by the American Federation of Government Employees, Local 1301 (Union), the agent of the exclusive representative of its employees, to the effect that if the Union pursues an issue on behalf of one food line supervisor/foremen, then management will write-up all of the food line supervisors/foremen. (b) Making statements to its employees that would discourage them from seeking the Union's assistance or to the effect that seeking the assistance of the Union could prevent them from being promoted. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes of the Federal Service Labor-Management Relations Statute: (a) Post at its facilities where bargaining unit employees are located copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Warden and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. (b) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director of the Denver Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. The portion of the complaint in Case No. DE-CA-50625 as to which the Judge found no violation is dismissedAnswer: Yes U.S. Penitentiary, Florence, Col., 52 FLRA 974 (1997) Order Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Penitentiary, Florence, Colorado shall: 1. Cease and desist from: (a) Making statements to employees, who are represented by the American Federation of Government Employees, Local 1301 (Union), the agent of the exclusive representative of its employees, to the effect that if the Union pursues an issue on behalf of one food line supervisor/foremen, then management will write-up all of the food line supervisors/foremen. (b) Making statements to its employees that would discourage them from seeking the Union's assistance or to the effect that seeking the assistance of the Union could prevent them from being promoted. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes of the Federal Service Labor-Management Relations Statute: (a) Post at its facilities where bargaining unit employees are located copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Warden and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. (b) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director of the Denver Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. The portion of the complaint in Case No. DE-CA-50625 as to which the Judge found no violation is dismissed

    10. 10 Discrimination 5 U.S.C. 7116 (a) (2) It is an unfair labor practice for an Agency to encourage or discourage Union membership in a labor organization by discriminating in connection with hiring, tenure, promotion or other conditions of employment. 5 U.S.C 7116 (a) (4) It is an unfair labor practice for an Agency to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under the Statute. Evidence must initially demonstrate a prima facie case – Elements of a prima facie case: Employee was engaged in protected activity; Discriminatory action was taken against the employee; and Employee’s protected activity was a motivating factor in the Agency’s treatment of the emplo6yee. Related Matter What if management takes an action against an employee for what the employee did or said during a grievance meeting. Is that unlawful? What test should be applied in this situation? Conduct that constitutes “flagrant misconduct or otherwise exceeds the boundaries of protected activity” loses its protection.Evidence must initially demonstrate a prima facie case – Elements of a prima facie case: Employee was engaged in protected activity; Discriminatory action was taken against the employee; and Employee’s protected activity was a motivating factor in the Agency’s treatment of the emplo6yee. Related Matter What if management takes an action against an employee for what the employee did or said during a grievance meeting. Is that unlawful? What test should be applied in this situation? Conduct that constitutes “flagrant misconduct or otherwise exceeds the boundaries of protected activity” loses its protection.

    11. 11 Hypothetical Union rep was on approved official time 20% to 25% of the time. Management told supervisor to issue Union rep a progress review and make negative comments on Union rep’s being away from the work unit, while acting on behalf of the Union. Supervisor issued Union rep a progress review, stating that as a member of a 4-person team, he should be producing 25% of unit’s work; in a 3-person unit, he should do 33% of work. Supervisor threatened Union rep with PIP, due to his “low productivity”, since he was not producing “his share” of unit’s work. Violation? Answer: Yes 22 FLRA 91 (1986) Case Summary THE EMPLOYER VIOLATED THE STATUTE BY URGING RETALIATION FOR PROTECTED ACTIVITIES AND BY DIRECT DEALINGS WITH UNIT EMPLOYEES. (1) The ALJ found that the complainant's second line supervisor violated 5 USC 7116(a)(1) by telling his immediate supervisor that his union activity should be a negative factor in his next Documented Progress Review (DPR), by suggesting that the complainant, a union official, should be placed on a Performance Improvement Plan for low productivity resulting from time spent on representational duties, and for timing the complainant's interviews, and not the interviews of other employees. The DPR issued to the complainant, by establishing a numerical productivity goal which was absent in other DPR's, also constituted an unfair labor practice. (2) The ALJ found that the employer's refusal to bargain with the alternate union representative when the regular representative was present and its denial of official time were based on arguable interpretations of the negotiated agreement. Therefore, the problems should have been raised under the grievance procedure, and not as a ULP's. (3) The ALJ found that the employer bypassed the union and bargained directly with a unit employee with regard to a proposed reorganization in violation of 5 USC 7116(a)(1) and (5). Moreover, the employer refused to bargain with the union over the impact and implementation of a reorganization which had more than a de minimis impact on unit employees.Answer: Yes 22 FLRA 91 (1986) Case Summary THE EMPLOYER VIOLATED THE STATUTE BY URGING RETALIATION FOR PROTECTED ACTIVITIES AND BY DIRECT DEALINGS WITH UNIT EMPLOYEES. (1) The ALJ found that the complainant's second line supervisor violated 5 USC 7116(a)(1) by telling his immediate supervisor that his union activity should be a negative factor in his next Documented Progress Review (DPR), by suggesting that the complainant, a union official, should be placed on a Performance Improvement Plan for low productivity resulting from time spent on representational duties, and for timing the complainant's interviews, and not the interviews of other employees. The DPR issued to the complainant, by establishing a numerical productivity goal which was absent in other DPR's, also constituted an unfair labor practice. (2) The ALJ found that the employer's refusal to bargain with the alternate union representative when the regular representative was present and its denial of official time were based on arguable interpretations of the negotiated agreement. Therefore, the problems should have been raised under the grievance procedure, and not as a ULP's. (3) The ALJ found that the employer bypassed the union and bargained directly with a unit employee with regard to a proposed reorganization in violation of 5 USC 7116(a)(1) and (5). Moreover, the employer refused to bargain with the union over the impact and implementation of a reorganization which had more than a de minimis impact on unit employees.

    12. 12 Collective Bargaining Under the Statute Union’s Rights to Collective Bargaining The Union is the exclusive representative of bargaining unit employees. 5 U.S.C. 7114 (A) (1) Union and management must bargain in good faith over conditions of employment affecting bargaining unit employees. 5 U.S.C. 7103 (a) (12) Duty to Bargain: When does it Arise? Term Negotiations Proposed changes in conditions of employment Mid-term proposals over subjects not already bargained When is the duty to bargain triggered? Where there is a change in “conditions of employment.” and the change is more than de minimis. and the union has not waived its right to bargain. and the change is not “covered by” the parties’ agreement.Duty to Bargain: When does it Arise? Term Negotiations Proposed changes in conditions of employment Mid-term proposals over subjects not already bargained When is the duty to bargain triggered? Where there is a change in “conditions of employment.” and the change is more than de minimis. and the union has not waived its right to bargain. and the change is not “covered by” the parties’ agreement.

    13. 13 Conditions of Employment 5 U.S. C 7103 (a) (14) Personnel policies, practices, and matters affecting working conditions, except Matters relating to political activities Classification of any position Matters specifically provided for by statute What must an agency do when it proposes a change in Employees’ conditions of employment? Provide Union reasonable notice and opportunity to request bargaining If the union requests bargaining, respond. Bargain to the extent required by the Statute. Generally, maintain the status quo until the bargaining process is completed. Cooperate with Federal Service Impasses Panel, if requested by union, prior to implementation. Scope of Bargaining Management Rights Clause – 7106 (a) Right to determine the mission, budget, organization, number of employees and internal security practices; In accordance with applicable laws, hire, assign, direct, layoff, retain, suspend, remove, reduce in grade or pay, discipline, assign worker, contract out, determine personnel, make selections for hiring, and other action as necessary to carry out the mission during emergencies. What must an agency do when it proposes a change in Employees’ conditions of employment? Provide Union reasonable notice and opportunity to request bargaining If the union requests bargaining, respond. Bargain to the extent required by the Statute. Generally, maintain the status quo until the bargaining process is completed. Cooperate with Federal Service Impasses Panel, if requested by union, prior to implementation. Scope of Bargaining Management Rights Clause – 7106 (a) Right to determine the mission, budget, organization, number of employees and internal security practices; In accordance with applicable laws, hire, assign, direct, layoff, retain, suspend, remove, reduce in grade or pay, discipline, assign worker, contract out, determine personnel, make selections for hiring, and other action as necessary to carry out the mission during emergencies.

    14. 14 You be the Judge A group of 12 employees are moved 50 feet to new offices. The new space is smaller, has less space for storage, and is noisier. The move is permanent. Is there a duty to bargain? ORDER The Environmental Protection Agency, Region II, shall: 1. Cease and desist from: (a) Failing and refusing to negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning procedures and appropriate arrangements for employees adversely affected by the relocation of unit employees in the Water Resources Section, Technical Resources Branch, Water Division, Region II. (b) Relocating its unit employees without first notifying the American Federation of Government Employees AFL-CIO, the exclusive representative of its employees, and affording it the opportunity to negotiate, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning the impact and implementation of any such relocation of unit employees. (c) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the policies of the Statute: (a) Upon request, negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning procedures and appropriate arrangements for employees adversely affected by the relocation of unit employees in the Water Resources Section, Technical Resources Branch, Water Division, Region II. (b) Notify the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, of any intention to relocate its unit employees, and afford it the ooportunity to negotiate, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning procedures associated with the relocation and any appropriate arrangements for employees adversely affected by any relocation of unit employees. (c) Post at its facilities in Region II, New York, New York, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon reciept of such forms, they shall be signed by the Director of the Water Management Division, Environmental Protection Agency, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced or covered by any other material. (d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith. Issued, Washington, D.C. February 19, 1987. ORDER The Environmental Protection Agency, Region II, shall: 1. Cease and desist from: (a) Failing and refusing to negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning procedures and appropriate arrangements for employees adversely affected by the relocation of unit employees in the Water Resources Section, Technical Resources Branch, Water Division, Region II. (b) Relocating its unit employees without first notifying the American Federation of Government Employees AFL-CIO, the exclusive representative of its employees, and affording it the opportunity to negotiate, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning the impact and implementation of any such relocation of unit employees. (c) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the policies of the Statute: (a) Upon request, negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning procedures and appropriate arrangements for employees adversely affected by the relocation of unit employees in the Water Resources Section, Technical Resources Branch, Water Division, Region II. (b) Notify the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, of any intention to relocate its unit employees, and afford it the ooportunity to negotiate, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning procedures associated with the relocation and any appropriate arrangements for employees adversely affected by any relocation of unit employees. (c) Post at its facilities in Region II, New York, New York, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon reciept of such forms, they shall be signed by the Director of the Water Management Division, Environmental Protection Agency, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced or covered by any other material. (d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith. Issued, Washington, D.C. February 19, 1987.

    15. 15 You be the Judge As a result of technology changes, there was less warehouse work to be performed. Fewer employees were needed to inventory goods and prepare pallets for delivery to the Commissary. Therefore, Management reassigned two employees from the pull crew in the warehouse to the produce department in the Commissary. Management notified the Union before the reassignment was implemented because it involved changing the employees’ hours of work and there was a contractual requirement to provide advance notice of changes in hours. When the Union requested to bargain on the reassignments, Management refused and asserted that the action was taken to avoid a RIF. The contract addressed RIF and provided for reassignments to avoid RIFs. Was there a duty to bargain over the reassignments? Answer: No U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 49 FLRA No. 130, 49 FLRA 1444 (1994) Applying SSA to the facts in this case, we conclude first that the disputed reassignments of the pull crew employees were taken to avoid or minimize a potential RIF. As such, the reassignments are clearly encompassed by the first sentence of Article XIV, which expressly addresses reassignments as a means of avoiding or minimizing a RIF. In this connection, we conclude that the second sentence of the provision, which requires notice to the Union of the implementation of "officially approved" RIFs, and the third sentence, in which the Respondent "agrees to provide . . . information [at the time of the notice] so that the Union may prepare impact and implementation proposals[,]" specifically address RIFs and not reassignments made to avoid or minimize RIFs. Interpreted in the context of the provision as a whole, we find it reasonable to conclude that the subject matter of the proposals at issue herein--the impact and implementation of reassignments made to avoid or minimize a potential RIF--is inseparably bound up with and plainly an aspect of the subject discussed in Article XIV so as to foreclose further negotiations on that matter. In this regard, we find it significant that, in Article XIV, the parties reached agreement on the use of the reassignments to avoid or minimize a potential RIF, and also reached agreement on impact and implementation bargaining regarding other matters.(4) It is clear to us that, in agreeing to this provision, the parties contemplated, or should have contemplated, that the provision would be interpreted as foreclosing further bargaining over reassignments to avoid RIFs. We recognize that Union President Denton testified that it was not the Union's intention at the time it negotiated Article XIV to give up its right to bargain over the impact of any reassignment to avoid a RIF. We also recognize, however, the Respondent's contention that impact and implementation bargaining was "on the minds of the parties" during the negotiation of Article XIV and, as such, the absence of any provision for it in the "reassignment portion" of that provision means that it is "safe to assume the parties consciously omitted [impact and implementation bargaining over reassignments]." Respondent's Exceptions at 15. In our view, having specifically bargained over the Respondent's obligation to reassign employees to avoid a RIF as well as the obligation to bargain over the impact and implementation of a RIF, the parties should have contemplated that further bargaining over the impact and implementation of reassignments to avoid or minimize a potential RIF would be foreclosed unless they expressly stated otherwise.(5) Based on the foregoing, we conclude that the subject matter of the Union's proposals was covered by the parties' agreement. See Navy Resale Activity, Naval Station, Charleston, South Carolina, 49 FLRA 52 (1994). Accordingly, we conclude further, consistent with SSA, that the Respondent was not obligated to bargain with the Union over the impact and implementation of its decision to reassign employees to the produce department, and we will dismiss the complaint.(6) VI. Order The complaint is dismissed.Answer: No U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 49 FLRA No. 130, 49 FLRA 1444 (1994) Applying SSA to the facts in this case, we conclude first that the disputed reassignments of the pull crew employees were taken to avoid or minimize a potential RIF. As such, the reassignments are clearly encompassed by the first sentence of Article XIV, which expressly addresses reassignments as a means of avoiding or minimizing a RIF. In this connection, we conclude that the second sentence of the provision, which requires notice to the Union of the implementation of "officially approved" RIFs, and the third sentence, in which the Respondent "agrees to provide . . . information [at the time of the notice] so that the Union may prepare impact and implementation proposals[,]" specifically address RIFs and not reassignments made to avoid or minimize RIFs. Interpreted in the context of the provision as a whole, we find it reasonable to conclude that the subject matter of the proposals at issue herein--the impact and implementation of reassignments made to avoid or minimize a potential RIF--is inseparably bound up with and plainly an aspect of the subject discussed in Article XIV so as to foreclose further negotiations on that matter. In this regard, we find it significant that, in Article XIV, the parties reached agreement on the use of the reassignments to avoid or minimize a potential RIF, and also reached agreement on impact and implementation bargaining regarding other matters.(4) It is clear to us that, in agreeing to this provision, the parties contemplated, or should have contemplated, that the provision would be interpreted as foreclosing further bargaining over reassignments to avoid RIFs. We recognize that Union President Denton testified that it was not the Union's intention at the time it negotiated Article XIV to give up its right to bargain over the impact of any reassignment to avoid a RIF. We also recognize, however, the Respondent's contention that impact and implementation bargaining was "on the minds of the parties" during the negotiation of Article XIV and, as such, the absence of any provision for it in the "reassignment portion" of that provision means that it is "safe to assume the parties consciously omitted [impact and implementation bargaining over reassignments]." Respondent's Exceptions at 15. In our view, having specifically bargained over the Respondent's obligation to reassign employees to avoid a RIF as well as the obligation to bargain over the impact and implementation of a RIF, the parties should have contemplated that further bargaining over the impact and implementation of reassignments to avoid or minimize a potential RIF would be foreclosed unless they expressly stated otherwise.(5) Based on the foregoing, we conclude that the subject matter of the Union's proposals was covered by the parties' agreement. See Navy Resale Activity, Naval Station, Charleston, South Carolina, 49 FLRA 52 (1994). Accordingly, we conclude further, consistent with SSA, that the Respondent was not obligated to bargain with the Union over the impact and implementation of its decision to reassign employees to the produce department, and we will dismiss the complaint.(6) VI. Order The complaint is dismissed.

    16. 16 Labor Relations Training Management Right – 5 USC 7106 Determines the mission, budget, organization, number of employees, and internal security of the agency; and Has authority to hire, assign, direct, layoff, and retain employees in the agency; Has the authority to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; determines who will perform work, when the work will be performed, establishes the qual’s and skills needed to perform the work, decides whether a particular employee is qualified to perform the work, can vary tours of duty and make changes to an employee’s scheduled hours of duty to carry out the mission BUT have to notify the union of changes AND possibly negotiate the changes failure to do this is a ULP determines who will perform work, when the work will be performed, establishes the qual’s and skills needed to perform the work, decides whether a particular employee is qualified to perform the work, can vary tours of duty and make changes to an employee’s scheduled hours of duty to carry out the mission BUT have to notify the union of changes AND possibly negotiate the changes failure to do this is a ULP

    17. 17 Labor Relations Training Management Right – 5 USC 7106 – cont. May assign work, make determination with respect to contracting out and determine personnel by which agency operation shall be conducted. In filling positions, make selections for appointments from properly ranked and certified candidates for promotion; or other appropriate source; and, Take whatever actions may be necessary to carry out the agency mission during emergencies

    18. 18 Labor Relations Training Formal Discussion Title 5 USC, Section 7114, Representation Rights and Duties. LIUNA CBA, Article 7, Section 2 “The Union will be given the opportunity to be present at formal discussions between Management and employees concerning grievances, personnel policies and practices or other matters affecting general working conditions of employees …” Some examples: Grievance Meeting: If a informal/formal grievance is filed; the union must be notified so they have an opportunity to be present during meeting to address grievance. U.S. DOJ, INS, N.Y. Office of Asylum, Rosedale, N.Y., 55 FLRA 1032 (1999). Meeting to discuss policies and procedures concerning annual leave U.S. DOD, Def, Logist. Ag., Def. Depot Tracy, Tracy, Cal., 37 FLRA 952 (1990) Interview in preparation for an arbitration hearing or ULP hearing Dep’t of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyo., 31 FLRA 541 (1988).Some examples: Grievance Meeting: If a informal/formal grievance is filed; the union must be notified so they have an opportunity to be present during meeting to address grievance. U.S. DOJ, INS, N.Y. Office of Asylum, Rosedale, N.Y., 55 FLRA 1032 (1999). Meeting to discuss policies and procedures concerning annual leave U.S. DOD, Def, Logist. Ag., Def. Depot Tracy, Tracy, Cal., 37 FLRA 952 (1990) Interview in preparation for an arbitration hearing or ULP hearing Dep’t of the Air Force, F.E. Warren Air Force Base, Cheyenne, Wyo., 31 FLRA 541 (1988).

    19. 19 Labor Relations Training Formal Discussion (cont.) The opportunity to be represented at a formal discussion means more than merely the right to be present. The right to be represented also means the right of the union representative to comment, speak and make statements. Not entitled to take charge, usurp, or disrupt the meeting. Comments must be governed by a rule of reasonableness; respect for orderly procedures.

    20. 20 Labor Relations Training Discussions that are not Formal Discussions Work Assignments Progress Reviews Performance Appraisals Performance Counseling Counselings on Conduct However, should any discussion become formal or investigatory, and the employee reasonably believes disciplinary action is contemplated, union representation may be requested. Counseling session with employee and supervisor F.E. Warren Air Force Base, Cheyenne, Wyo., 52 FLRA 149 (1996). Meeting to inform two employees of a temporary reassignment in duties. Bureau of Filed Operations, SSA, S.F., Cal., 20 FLRA 80 (1985). Discussion limited to manner in which four specific employees reported their productivity. U.S. GPO, Pub. Documents Distrib. Ctr., Pueblo, Colo., 17 FLRA 927 (1985).Counseling session with employee and supervisor F.E. Warren Air Force Base, Cheyenne, Wyo., 52 FLRA 149 (1996). Meeting to inform two employees of a temporary reassignment in duties. Bureau of Filed Operations, SSA, S.F., Cal., 20 FLRA 80 (1985). Discussion limited to manner in which four specific employees reported their productivity. U.S. GPO, Pub. Documents Distrib. Ctr., Pueblo, Colo., 17 FLRA 927 (1985).

    21. 21 Hypothetical The supervisor reported to the manager that no one had volunteered for overtime. The manager directed that the employees be assembled immediately for a meeting. The manager told employees that their names would be placed on the overtime roster and if no one volunteered, mandatory assignments would be made. The brief meeting ended after this announcement. Answer: Not a formal discussion Marine Corps Logistics Base, Barstow, Cal., 45 FLRA 1332 (1992). VI. Analysis and Conclusions We find that the Respondent did not violate the Statute by failing to provide the Union with notice of and the opportunity to attend the January 22 meeting because, for the following reasons, we conclude that the meeting was not a formal discussion under section 7114(a)(2)(A) Statute. In determining whether a discussion or meeting is formal, within the meaning of section 7114(a)(2)(A) of the Statute, the Authority considers the totality of the facts and circumstances in a case. See generally, National Treasury Employees Union v. FLRA, 774 F.2d 1181, 1189-91 (D.C. Cir. 1985) (NTEU v. FLRA). Among other factors, the Authority examines: (1) whether the individual who held the meeting is a first-level supervisor or is higher in the management hierarchy; (2) whether any other management representatives attended; (3) where the meeting took place; (4) how long the meeting lasted; (5) how the meeting was called; (6) whether a formal agenda was established; (7) whether employee attendance was mandatory; and (8) the manner in which the meeting was conducted. For example, Labor, 32 FLRA at 470. In this case, the disputed meeting was held on the shop floor and lasted only 10 minutes. Thus, neither the length nor the location of the meeting suggest that it was a formal discussion of working conditions. In addition, it is undisputed that: (1) only one management official, a first-level supervisor, attended the meeting; (2) no agenda was prepared for the meeting; and (3) no notes of the meeting were taken. In our view, these matters, which indicate how management intended to conduct, and conducted, the meeting also support a conclusion that the meeting lacked requisite formality to satisfy the requirements of section 7114(a)(2)(A) of the Statute. Answer: Not a formal discussion Marine Corps Logistics Base, Barstow, Cal., 45 FLRA 1332 (1992). VI. Analysis and Conclusions We find that the Respondent did not violate the Statute by failing to provide the Union with notice of and the opportunity to attend the January 22 meeting because, for the following reasons, we conclude that the meeting was not a formal discussion under section 7114(a)(2)(A) Statute. In determining whether a discussion or meeting is formal, within the meaning of section 7114(a)(2)(A) of the Statute, the Authority considers the totality of the facts and circumstances in a case. See generally, National Treasury Employees Union v. FLRA, 774 F.2d 1181, 1189-91 (D.C. Cir. 1985) (NTEU v. FLRA). Among other factors, the Authority examines: (1) whether the individual who held the meeting is a first-level supervisor or is higher in the management hierarchy; (2) whether any other management representatives attended; (3) where the meeting took place; (4) how long the meeting lasted; (5) how the meeting was called; (6) whether a formal agenda was established; (7) whether employee attendance was mandatory; and (8) the manner in which the meeting was conducted. For example, Labor, 32 FLRA at 470. In this case, the disputed meeting was held on the shop floor and lasted only 10 minutes. Thus, neither the length nor the location of the meeting suggest that it was a formal discussion of working conditions. In addition, it is undisputed that: (1) only one management official, a first-level supervisor, attended the meeting; (2) no agenda was prepared for the meeting; and (3) no notes of the meeting were taken. In our view, these matters, which indicate how management intended to conduct, and conducted, the meeting also support a conclusion that the meeting lacked requisite formality to satisfy the requirements of section 7114(a)(2)(A) of the Statute.

    22. 22 Labor Relations Training Impact and Implementation Bargaining (I&I) When management wants to make a change affecting conditions of employment - The Union must be given reasonable advance notice of the proposed change; Must be given the right to bargain over the procedures that management will use to implement the proposed changes; and Given the opportunity to bargain over appropriate arrangements for employees adversely impacted by the change. “Appropriate arrangement” a proposal must mitigate the adverse affects from the exercise of a management right, but cannot “excessively interfere” with its exercise. It needs to benefit the employees suffering from reasonable adverse affects “Appropriate arrangement” a proposal must mitigate the adverse affects from the exercise of a management right, but cannot “excessively interfere” with its exercise. It needs to benefit the employees suffering from reasonable adverse affects

    23. 23 Labor Relations Training Impact and Implementation Bargaining (I&I) – (cont) Conditions of Employment, 5 USC 7103 (a) (14) … means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions … LIUNA CBA: Notice to union with a 30 calendar day suspense. A request to bargain, the parties will meet w/in 10 days after the receipt of a request to arrange for negotiations. de minimus effect re: duty to bargain – Example: The removal of a water cooler had more than a di minimus impact – how? The removal of reserved parking spaces has a de minimus impact when the affected employees retained free parking in the same area and plenty of spaces were available. LIUNA CBA: Notice to union with a 30 calendar day suspense. A request to bargain, the parties will meet w/in 10 days after the receipt of a request to arrange for negotiations. de minimus effect re: duty to bargain – Example: The removal of a water cooler had more than a di minimus impact – how? The removal of reserved parking spaces has a de minimus impact when the affected employees retained free parking in the same area and plenty of spaces were available.

    24. 24 Hypothetical You’ve recent taken over a large shop and quickly ascertain some employees are not coming to work timely as scheduled. You decide to call an all hands meeting and put in place a SOP for taking leave so its clear if an employee needs to take time off they must get your approval first. The same week you have this meeting; one of your employees fails to show and/or follow your new SOP for taking leave. Your SOP clearly indicates any employee who fails to follow the leave SOP will be suspended. You try to call Labor Relations but no answer. You decide to call employee in your office after he shows up to ascertain his side of story. A change to the TPR Annual Leave Regulation as well as the CBA would be considered a change in condition of employment. Thus you should have discussed the SOP leave procedure with Labor Relations prior to making any changes. If management felt a change was needed, they should have I & I.A change to the TPR Annual Leave Regulation as well as the CBA would be considered a change in condition of employment. Thus you should have discussed the SOP leave procedure with Labor Relations prior to making any changes. If management felt a change was needed, they should have I & I.

    25. 25 Labor Relations Training Grievance Any complaint – by an employee, labor, organization, or agency concerning any matter relating to employment of an employee; the effect or interpretation, or claim of breach of a CBA; or, any claimed violation, or misapplication of any law, rule, or regulation affecting conditions of employment.

    26. 26 Labor Relations Training Grievance - (cont.) California National Guard Full-Time Personnel Regulation 912 Applies to technician who are not eligible for Union representation, e.g., manager, supervisor, confidential employee, and employees engaged in personnel work in other than a purely clerical capacity.

    27. 27 Labor Relations Training Grievance – (cont.) An employee may handle his own grievance. The Union shall be provided the opportunity to attend and present its views at discussions between Management and employees concerning any formal grievance. The right to be present does not extend to informal discussions of personal issues between the employee and Management.

    28. 28 Labor Relations Training Grievance – (cont.) CBA, Article 10, Grievance and Arbitration Procedures The exclusive procedure available to the employee for grievance procedures. Every effort will be made to settle the grievance at the lowest possible level. The employee may present a grievance without fear of restraint, coercion, discrimination, or reprisal.

    29. 29 J1 Manpower and Personnel Websites http://www.calguard.ca.gov/cahr/ http://www.calguard.ca.gov/j1 QUESTIONS?

More Related