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Collective Bargaining . Institute Prepared by the Field Services Department, AFGE. Factors Affecting Collective Bargaining. Good contracts are not bargained only at the negotiations table. Different factors affect the balance of power between the union and the Agency.

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collective bargaining

Collective Bargaining

Institute

Prepared by the Field Services Department, AFGE

factors affecting collective bargaining
Factors Affecting Collective Bargaining
  • Good contracts are not bargained only at the negotiations table.
  • Different factors affect the balance of power between the union and the Agency.

Prepared by FSD

factors affecting collective bargaining3

Factors Affecting Collective Bargaining

AT and AWAY FROM The Table

the agency s chips
The Agency’s Chips

Management

Rights Law

Rewarded for

Creating Conflict

Executive

Branch

Rewarded for Stalling and Dodging

$$$

Staff Support

Political FSIP

and FLRA

Enterprise

Mentality

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the union s chips
The Union’s Chips

Employees

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slide6
Each of these factors is a

source of power – the question is, what type?

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slide7

T

H

E

U

N

I

O

N

s

C

H

I

P

S

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components of power
Components of Power

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sources of pressure
Sources of Pressure:

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effect of union s power
Effect of Union’s Power
  • THEN
  • When the Union Uses Outside Pressure; and
  • Union Membership Grows; and
  • The Union is Prepared at the Table

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management bends
Management Bends
  • The Agency addresses employee concerns; and
  • Works around limits on negotiability

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it all comes together when

Union’s outreach to the employees, community leaders, politicians, the media, Agency customers, and government watchdogs put pressure on Management

It all comes together when:
  • ; and
  • The Union’s membership grows substantially; and
  • The Union has hard evidence and good legal analysis to support its bargaining demands; and
  • Management moves to reasonable positions that:
    • Address the substantive problems the employees have identified and
    • Work around limits on negotiability that are imposed under the Federal sector labor law.

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plan for the week
Plan for the Week
  • Monday – Bargaining as Conflict.

Bargaining Processes and Concepts.

  • Tuesday – Federal Sectorbargaining. Researchandresources.
  • Wednesday – Analytical Frameworks (aka “Thinking like the FLRA”).
  • Thursday – Bargaining practice and issue analysis.
  • Friday – optional half day: FLRA case update, critiquing language, general Q&A.

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the yeah but caution
The “Yeah, but…” Caution:

Collective bargaining is subject to loopholes,

re-interpretations, new arguments,

split hairs, and similar soft ground.

Success is rarely absolute, never permanent;

It’s determined by the situation,

not just by logic or precedent.

“What’s true” is subject to change, so--

Expect the unexpected.

Look for the exception to the rule.

Check to see what’s changed in the law.

Be alert for new approaches and possibilities.

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the big picture
The Big Picture
  • Mediation, Impasse, and Ratification are common but not essential.
  • Ratification and Review can cause recycling back to Negotiation.
  • Ratification can’t trump Impasse decisions.

Bargaining

Cycle

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the union
The Union
  • To represent employees in the bargaining unit as a whole.
  • To represent its own institutional needs.
  • To represent collective bargaining as being “in the public interest.”
  • To answers to employees through elections and ratification votes.
  • To look at what the problems are and the best ways to fix them, which may not be solely through negotiating.

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management
Management
  • To maintain institutional authority.
  • To accept changes and added benefits and protections, when it is persuaded they are needed (or ordered by a third party).
  • To promote their “turf” within the Agency.
  • To fix problems caused for one or more managers by previous collective bargaining agreements, laws, regulations, policies, budgets constraints, and the decisions of third parties (arbitrators, FLRA, other Federal agencies, and courts).

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neutrals

Neutrals:

Who they are and What they do.

Neutrals:

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federal labor relations authority flra
Federal Labor Relations Authority (FLRA)
  • Defines “appropriate units” and creates or modifies “bargaining units” and counts ballots to see which union, if any, represents the unit.
  • Investigates and prosecutes charges of Unfair Labor Practices (ULPs) against agencies, individuals, and unions.
  • Determines whether language can be negotiated and put into an agreement (“negotiability appeal”).
  • Decides if arbitration awards are legal.

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federal mediation and conciliation service fmcs
Federal Mediation and Conciliation Service(FMCS)
  • Helps the process of bargaining go smoother.
  • Not concerned with the outcome: if the parties agree, that’s what matters to the mediator.
  • Promotes collaborative programs to improve union-management relations (outside of bargaining).
  • Verifies, when asked by the FSIP, that further bargaining would not be useful (“declares the parties to be impassed”).

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federal service impasses panel fsip
Federal Service Impasses Panel(FSIP)
  • Brings closure to bargaining when the parties can’t.
  • Selects between proposals of the Union and Management; or, imposes its own solution.
  • Has no authority to make new negotiability decisions or to resolve ULP charges.
  • Language it orders parties to adopt is subject to agency head review, but not ratification.

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impasse
Impasse
  • It exists when more bargaining won’t bring about more agreement and issues remain unresolved.
  • Parties can become “un-impassed.” For instance, if one side feels pressure from constituents or just from being impassed, what was not acceptable may become acceptable.
  • Has consequences beyond the bargaining:

if the Union doesn’t act correctly, the Employer may be permitted to implement its last offer.

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arbitrators
Arbitrators
  • Self-employed, truly neutral, paid by the parties.
  • Make final and binding decisions* on grievances that were initiated under a collective bargaining agreement (“rights arbitration”).
  • Make final and binding decisions* on bargaining impasses (rare; “interest arbitration”).
  • Apply federal sector labor and personnel law, professional standards and practices, and their own judgment. You get what you pay for.

*Arbitral decisions can be reviewed, on a limited

basis, by the FLRA.

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arbitration
Grievance Arbitration:

Part of contract administration.

Neutral party interprets and applies existing language in a CBA to the facts of the dispute.

The decision is usually final and binding.

The language remains as it was.

Aka rights arbitration.

Interest Arbitration:

Bargaining “end game.”

Neutral party writes new CBA language after a hearing on the parties’ respective “interests”.

Final and binding but often seen as letting an outsider have too much control.

Alternative to job actions and lock-outs.

Arbitration

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courts
Courts

Upon petition by a party, courts can--

  • Review FLRA negotiability decisions;
  • Review FLRA review of certain arbitration awards;
  • Review FLRA decisions on ULPs;

Usually, the level of court review is by the

U.S. Court of Appeals; the level can rise to the

U.S. Supreme Court.

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factors affecting the practice of federal sector collective bargaining
Factors affecting the Practice of Federal sector collective bargaining:
  • The Government always changes (“reforms”) agency structure, HR and LR systems.
  • “Reformism” is part of the process – as much as “neutrals” like the FLRA and courts.
  • Concepts were created that are more limited than private sector collective bargaining: “Statutory Management Rights that narrow the Scope of bargaining”; and “Negotiability” and “Agency Head Review”—ways to make sure negotiated language is legal and Government stays sovereign.

Argument: The context of Federal Sector bargaining

shapes the Union’s bargaining strategy.

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a history of continuous change

A History of ContinuousCHANGE:

How Government Reformism Drives Changes and

Affects Workers

reform is constant 1870 1950
“Reform” Is Constant (1870-1950)
  • 1870 Pendleton Act - created the Civil Service.
  • 1921 - Budget and Accounting Act was enacted.
  • 1936-1937 Brownlow Committee – recommended the President be able to reorganize Exec Branch.
  • 1939 – the Hatch Act was enacted.
  • 1945 Government Corporations Control Act - regulated government “enterprises,” e.g. TVA.
  • 1949 - EO 10073 on Management of the Executive Branch; current Classification Act; GSA created.
  • 1949 First Hoover Commission - reported on downsizing government after WWII, using “modern management” ideas.

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reform is constant since 1950 part 1
Reform is Constant (since 1950, Part 1)
  • 1953 - DHEW (now DHHS) was created.
  • 1955 Second Hoover Commission - proposed to create a Senior Civil Service (now SES).
  • 1959 - Advisory Commission on Intergovernmental Relations was established.
  • 1964 - Price Report issued to maximize the Federal government’s search for JBJ’s Great Society.
  • 1969 - Bureau of the Budget (now OMB) Circular A-95 was also intended to implement Great Society programs more efficiently.

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reform is constant since 1950 part 2
Reform is Constant (since 1950, Part 2)
  • 1962 - EOs 10987 and 10988 gave Federal sector unions new rights.
  • 1965 - Johnson ordered agencies to use Planning-Programming-Budgeting (PPB).
  • 1970-1978 - Various productivity improvement projects were conducted.
  • 1972 - Civil Rights Act of 1964 was amended to include affirmative action in agencies.
  • 1973 - Management by Objectives (MBO) used.

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reform is constant since 1950 part 3
Reform is Constant (since 1950, Part 3)
  • 1974 - Congressional Budget and Impoundment Control Act gave budgetary power to Congress.
  • 1976 - “Sunset laws” were passed to get government off the backs of taxpayers.
  • 1977 – President Ford told agencies to use Zero Base Budgeting (ZBB) to combine planning and budgeting, evaluate cost effectiveness.
  • 1978 - Civil Service Reform Act enacted

earlier reform ideas as well as R&D, merit

pay, & Chapter 71, (Federal sector labor law).

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reform is constant since 1950 part 4

1974 Congress.

Reform is Constant (since 1950, Part 4)
  • 1985 - Gramm-Rudman-Hollings Act – thrown out, re-enacted, failed to reduce deficit.
  • 1993-1997 - Government Performance and Results Act requires agencies to measure performance, show effects on society (“outcomes”).
  • 2001 - Patriot Act reorganized multiple Dept’s.
  • 2003 –New DoD and DHS HR systems replaceprotections with perceptions.
  • 2004 – Federal Workforce Flexibility Act – provides new incentives to keep talentedworkers.
  • 2005 – New round of BRAC closings/realignments.

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patterns in reformism
Patterns in Reformism
  • Reforms are perpetrated by both political parties for political reasons.
  • Reforms can start out as relatively harmless reports or executive orders.
  • Reforms can take decades to be adopted on a “permanent” basis.
  • Reforms aim to model government on “more efficient” private sector practices.
  • Reforms mirror society’s distrust of government and those who work in it.

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riding the wave of change
Government wants to

attract and keep “the

best” workers.

Government has to

“show” performanceimprovement.“

Government wants to

model itself on private

sector “enterprises.”

So, it has adopted family-

friendly benefits (Alternative

Work Schedules, childcare, job-

sharing, recruitment bonuses).

So, it is moving away from

longevity/service-based

pay systems & decisions.

So, some managers will

toss out fairness along with

the old personnel rules.

Riding the Wave of Change

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implications for unions
Implications for Unions:
  • Collective bargaining affects human resources management and is affected by political agendas.
  • Individual or group contribution is suspect or invisible without a strategic program to “prove it.”
  • Today’s idea (good or bad) is tomorrow’s reform – early awareness beats playing catch-up.
  • Agencies must [appear to] pursue improved performance.
  • Unions must differentiate themselves from politico-managers and earn credibility for workers’ contributions because , in an world that values‘limited government’ …

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goodness has very little to do with it
“goodness *has very little to do with it.”

* or merit or fairness or equity or service, etc.

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exercise 2
Exercise #2

Issues Analysis

-- Handouts –

Small Groups Report Back on Day 4

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dictionary of gao speak if you choose group 3
“Concerns”

“Challenges”

“Opportunities”

= Problems

= ‘work-arounds’/ obstacles

= Problems

Dictionary of “GAO-Speak” (If you choose Group 3)

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the strategy
The Strategy
  • Who does what?
  • For what purpose?
  • By when? (mile posts and overall)
  • How do we measure the effectiveness of the strategy?
  • When do we correct the strategy or how we’re following it?

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table time effectiveness50
Table Time Effectiveness

POWER

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sample strategy objective the federal sector reality
Sample Strategy Objective: The Federal Sector Reality

Move forward on agency performance

reforms, while protecting and expanding

workplace benefits and fairness.

Make sure “managerial flexibility” is

matched with “managerial accountability.”

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planning for collective bargaining

Planning for Collective Bargaining:

Selecting Your Strategy,

Using Your Resources

decisions decisions
Decisions, decisions…
  • What should we do to prepare for the bargaining?
  • Which areas need to be changed in the current agreement (or the agency’s policy)? Do any?
  • How much should we propose to change the agreement (or the agency’s policy)?
  • Should we use traditional adversarial methods or try to meet both parties’ concerns? On which issues?
  • What will we do when management says one of our proposals is non-negotiable?
  • Do we need Ground Rules?
  • Do we want ratification?

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strategic options
Strategic Options

1. Prepare or “wing it”?

  • Mobilization model : sees the union’s role as a single, integrated, and continuous combination of lobbying and stakeholder relations, employee involvement and membership growth, training, and research.
  • Middle ground – some blend of mobilization bargaining and traditional bargaining.
  • Traditional model : Sees bargaining as an isolated process that can be improvised; sees outcomes as being unavoidably determined by debating skills, threats/promises, & external forces.

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strategic options cont d
Strategic Options (cont’d)

2. Change the agreement or change its enforcement?

  • Change the Agreement: “Employees are having problems that are caused by the language of a policy or an agreement, so the only ‘fix’ is a new agreement.”
  • Change enforcement: “The real cause of the problem is lack of understanding by supervisors, managers, employees, and/or union reps; it can be fixed without negotiating for new language.”

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strategic options cont d59
Strategic Options (cont’d)

3. Change a little or change a lot?

  • A little: targets a few priority subjects, seeks “fixes” only for clearly demonstrable problems. “Let sleeping Articles lie.”
  • A lot: reopen or add many subjects, usually intending to drop or compromise on most demands --as part of “trade-offs” or “package deals” --by the end of the bargaining.

“Yeah, but, what if one side opts to ‘change a little,’ and the other opts to ‘change a lot’?”

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strategic options cont d60
Strategic Options (cont’d)

4. Interest-based or traditional techniques?

  • In IBB/”win-win”/principled bargaining/etc., problems are owned by either party and solutions are sought that meet the underlying common interests of both parties. Open and honest dialogue is necessary.
  • In traditional bargaining, proposals are adopted that each party believes will meet its needs, regardless of the effect on the other party. Deceit and manipulation are expected.

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strategic options cont d61
Strategic Options (cont’d)

5. Use Ground Rules or rely on “fairness”?

  • GRs are a mandatory subject of bargaining. They set out how the bargaining will occur and are a collective bargaining agreement (CBA). They often address size of the bargaining team, bargaining location and schedule, caucuses, support issues (phones, copiers, etc.), and official time and expenses.
  • “Fairness” without GRs allows the parties to deal with issues related to the conduct of the bargaining on an “as needed” basis, if and when they arise.

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strategic options cont d62
Strategic Options (cont’d)

6. Ratification or no ratification?

Whether there will be ratification by the union is

an internal union matter; the union is not required

to bargain over whether or how it will be done.

However, the union is required to notify

management, in advance of the bargaining, if

ratification will be part of the process. Ratification

requires management to renegotiate language the

negotiators agreed on that the union members

rejected; but, the law does not require Mgt

to renegotiate the parts a third party imposed.

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strategic options cont d63
Strategic Options (cont’d)

7. Accept or reject management claims

that a union proposal is non-negotiable?

Option #1: keep negotiating and let the process

produce agreement as the parties’ real

concerns come out.

Option #2: withdraw or change the union’s

proposal to relieve management’s concerns.

Option #3: file a negotiability appeal immediately.

Option #4: file a negotiability appeal after the

bargaining has been completed.

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exercises bargain or enforce taking ratification off the table

Exercises: -Bargain or Enforce?-Taking Ratification Off the Table

Training Case:

-Notify, but don’t negotiate ratification

what does a negotiability appeal achieve
What does a negotiability appeal achieve?

If a proposal (not agreed to) is found to be

negotiable, the parties return to the table,

negotiate on the language, and include the

results in the Agreement; OR

If a provision (already agreed to or ordered)

is found to be negotiable, it is included in

the agreement without more bargaining (the

language was agreed to or ordered) but

disapproved under 5, U.S.C., 7114(c),

“Agency Head Review.”

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for your consideration techniques and tactics
for your consideration: Techniques and Tactics
  • Review: “Decisions, Decisions…”
  • Notify Management of ratification, but don’t bargain over it.
  • Designate a bargaining team purposefully.
  • Take advantage of the pro-Union features of the law: ratification, no requirement for agency head review, timing of negotiability appeals of proposals.
  • Play the game, but don’t let it play you. Test the assumption that there are no mutually beneficial solutions. Keep your eye on the prize, not just the process.

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critique of tee time exercise
[Critique of Tee Time Exercise]
  • What determined the session’s outcome?
  • Was it possible to change the outcome to benefit either or both parties? If so, how?
  • Brainstorm some purposeful statements or actions that might have been considered by each time, or the teams jointly, while they were preparing for the session, during the session, and after the session.

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slide72

You’re so reasonable after a couple of wine coolers, Marge!

Collective bargaining means “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 collectivebargaining

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...” -5 USC, §7103(a)(12)

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slide73
Conditions of employment means “personnel

policies, practices, and matters, whether

established by rule, regulation, or otherwise,

affecting working conditions, except that such

term does not include policies, practices, and

matters— (A) relating to political activities

prohibited under subchapter III of chapter 73 of

this title; (B) relating to the classification of any

position; or (C) to the extent such matters are

specifically provided for by Federal statute…”

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slide74
Under 5 U.S.C., §7114(b), “The duty of an agency

and an exclusive representative to negotiate in

good faith under subsection (a) of this section

shall include the obligation—

(1) to approach the negotiations with a sincere

resolve to reach a collective bargaining

agreement;

(2) to be represented at the negotiations by duly

authorized representatives prepared to discuss

and negotiate on any condition of employment;

(3) to meet at reasonable times and convenient

places as frequently as may be necessary, and to

avoid unnecessary delays;

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slide75

So THAT’s where “particularized need” came from!

(4) in the case of an agency, to furnish to

the exclusive representative involved, or

its authorized representative, upon

request and, to the extent not

prohibited by law, data—

  • which is normally maintained by the

agency in the regular course of business;

(B) which is reasonably available and

necessary for full and proper discussion,

understanding, and negotiation of subjects within

the scope of collective bargaining;

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slide76
and

(C) which does not constitute guidance, advice,

counsel, or training provided for management

officials or supervisors, relating to collective

bargaining; and

(5) if agreement is reached, to execute on the

request of any party to the negotiation a written

document embodying the agreed terms, and to

take such steps as are necessary to implement

such agreement.”

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agreement
Agreement

Collective bargaining agreement (CBA) “means an

agreement entered into as a result of collective

bargaining pursuant to the provisions of this

Chapter.” (Chapter 71).

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exercise what is a cba

Exercise: What is a CBA?

Training Case: Blueprint as CBA

slide79
Q: What essential elements must be present for there to be collective bargaining?
  • Formality?
  • Expiration of the old contract?
  • Exchange of proposals?
  • Authorized representatives?
  • Signatures of both parties?
  • Ground Rules?
  • Awareness that collective bargaining is occurring?
  • Other: _______________?

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slide80

A.: No particular element or elements must be present.

  • The totality of the circumstances determines whether collective bargaining occurred.
  • Parties can be engaged in collective bargaining without knowing it.
  • Decisions reached by the Union acting as exclusive representative and the Agency acting as the employer probably involved collective bargaining.

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q what format must a cba take
Q: “What format must a CBA take?”

A:Because the entire circumstances of a transaction between union and management determine whether collective bargaining was going on--

  • a CBA can take any format, name, or content.
  • contracts, memoranda (MOUs, MOAs, LOAs, RBOs, etc.), settlements, partnership decisions, even blueprints and more, can be enforceable CBAs.

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styles of bargaining
Styles of Bargaining
  • A traditional proposal is one

party’s answer to aproblem. “Owned”

by that party, it often arouses suspicion

and rejection – “How is that %#&!

going to hurt us with his/her proposal?”

  • An interest is one (or both) party’s

concerns on an issue. Using interests

implies a question – “Can a solution

be reached that addresses all interests?

If so, what is it?”

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interests proposals or both
Interests, Proposals, or Both?

Bargaining includes explanations, speeches,

demands, counter-proposals, explorations,

rejection, compromises, disagreement, game-

playing, and, occasionally, good faith and agreement.

Whether parties call their bargaining traditional,

adversarial and proposal-based; orwin-win,

principled, and interest-based, the chances are

greatest that different styles and tactics will be used

at different times and on different issues—

deliberately or in reaction to unexpected events.

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voluntary agreement
Voluntary Agreement
  • Before accepting, each party decides for itself whether it can “live with” a proposal or solution.
  • CBAs should be reduced to writing: if they can’t be, no meeting of the minds was reached.
  • A CBA must be committed to writing if either party wants it.
  • The agreement should be clear and unambiguous.
    • Arbitrators interpret ambiguous language to the disadvantage of the party that wrote it.
    • Litmus test: “Does someone who wasn’t in the negotiations understand what it means?”

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what did you say
“What did you say?”

“Sec. 1. Notwithstanding the provisions of

Handbook 871.3, employees may be given

additional time when warranted by the

circumstances.”

…..

“Sec. C.2.(iii). Practices that are appropriate

and legal may continue, subject to local

determination.”

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mediated agreement
Mediated Agreement
  • In the Federal Sector, use of a Federal Mediator is required before assistance of the Federal Service Impasses Panel (FSIP) can be requested.
  • The exception is: a Union can ignore mediation in order to obtain FSIP jurisdiction before the Agency implements a change. Agencies are allowed to implement if the FSIP has not asserted jurisdiction by the time the change was to be implemented.
  • The mediator and any notes will not be available after the negotiations as “evidence” of what a party said or intended.

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directed agreement
Directed Agreement

In the Federal Sector, a CBA can be imposed by the

FSIP or by an outside party who has been delegated

the FSIP’s authority. The FSIP has broad latitude over

procedures and disposition.

  • Procedures include: more bargaining, factfinding, written submissions, “final offers” to be decided as a whole, informal discussions (“mediation with a hammer”), interest arbitration, or a combination.
  • Disposition can include: accepting one party’s language, combining both parties’ language, writing new language, or dropping both parties’ language.

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directed agreement89
Directed Agreement
  • The FSIP decides the merits of impasses by looking at demonstrated need and other agreements. (Evidence not argument.)
  • The FSIP’s choice of language is subject to agency head review (or arbitration exception if interest arbitration was used), but not ratification. An agency does not have to renegotiate language that was ordered by the FSIP but not ratified by the Union, and the Union must accept the non-ratified language in that situation.

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so why is ratification important
So, why is ratification important?

Childcare!

Upward Mobility!

Because its lets the members accept or reject language that was resolved by voluntary agreement. Ratification is the members’ vote on issues the negotiators didn’t want to risk taking to the FSIP.

Training!

Yeah! Seniority!

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directed agreement fsip jurisdiction
Directed Agreement: FSIP Jurisdiction
  • The FSIP cannot resolve ULPs, and may dismiss a case pending resolution of ULP issues. It’s faster for the Union to ask the FSIP to resolve the impasse, and to file a ULP later.
  • The FSIP can resolve negotiability issues raised in an impasse by applying FLRA precedents to proposals that present the substantially identical negotiability issue, even if the language is different.
  • But the FSIP has no authority to resolve negotiability issues that the FLRA has not yet decided. The FSIP may dismiss a case pending resolution of such new negotiability issues.

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expired agreement
Expired Agreement
  • Term agreements expire.
  • When they do, the conditions they established continue if neither party acts to change them–
    • If an expired provision affects a mandatory subject of bargaining, it can be changed through negotiation. (Notice and bargaining are required.)
    • If an expired provision affects a permissive subject of bargaining it can be changed unilaterally by the party for whom the agreement was permissive. (Notice is required.)

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agency unfair labor practices
Agency Unfair Labor Practices

§ 7116(a). For the purpose of this chapter, it shall be an unfair labor practice for an agency— (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment; (3) to sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status;

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slide94
(4) 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 this chapter; (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; (6) to fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter; (7) to enforce any rule or regulation (other than a rule or regulation implementing section 2302 of this title) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed; or (8) to otherwise fail or refuse to comply with any provision of this chapter.

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union unfair labor practices
Union Unfair Labor Practices

§ 7116(b) For the purpose of this chapter, it shall be an unfair labor practice for a labor organization— (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

(2) to cause or attempt to cause an agency to discriminate against any employee in the exercise by the employee of any right under this chapter;

(3) to coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member’s work performance or productivity as an employee or the discharge of the member’s duties as an employee;

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(4) to discriminate against an employee with regard to the terms or conditions of membership in the labor organization on the basis of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status, political affiliation, marital status, or handicapping condition;

(5) to refuse to consult or negotiate in good faith with an agency as required by this chapter;

(6) to fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter;

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(7)(A) to call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency’s operations, or(B) to condone any activity described in subparagraph (A) of this paragraph by failing to take action to prevent or stop such activity; or

(8) to otherwise fail or refuse to comply with any provision of this chapter.

Nothing in paragraph (7) of this subsection shall result in any informational picketing which does not interfere with an agency’s operations being considered as an unfair labor practice.

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(c) For the purpose of this chapter it shall be an unfair labor practice for an exclusive representative to deny membership to any employee in the appropriate unit represented by such exclusive representative except for failure— (1) to meet reasonable occupational standards uniformly required for admission, or 2) to tender dues uniformly required as a condition of acquiring and retaining membership.

This subsection does not preclude any labor organization from enforcing discipline in accordance with procedures under its constitution or bylaws to the extent consistent with the provisions of this chapter.

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look up in the air it s not a bird it s not a plane

“Look…up in the air…it’s not a bird, it’s not a plane..”

It’s the Exclusive Representative!

exclusive representative
Exclusive Representative
  • The Union,
  • Upon being certified as such,
  • Has the sole legal right and duty

to represent employees in the

bargaining unit

  • On matters concerning their

conditions of employment.

  • And must abide by DOL

standards for democratic

procedures (elections, etc.)

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there are 2 kinds of members
Bargaining Unitis the

description of the

positions the Union

must represent as a

group.

A person whose

position is in that

description is a

“member of the

bargaining unit”

The Union is AFGE.

A person who joins

AFGE is a “Union

member.”

There are 2 Kinds of “Members”

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why does it matter
Unit members are

treated alike on matters

covered by a CBA or

affecting conditions of

Employment (COE).

Unit members have no

ability to participate in

internal Union decisions.

On matters not

covered by a CBA or

affecting COEs, union

members can be given

different treatment than

non-members of the union.

Union members have

the right, among others,

to vote in elections and

on ratification of a CBA.

Why does it matter?

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q what if the interests of 2 bargaining unit members conflict with each other
Q: What if the interests of 2 bargaining unit members conflict with each other?

A: The Union’s is required to represent the bargaining unit as a whole/group. Agreeing to give certain employees advantages like seniority that “disadvantage” other employees (who have less seniority) does not conflict with the Union’s duty, provided it did not act in order to discriminate illegally (against non-members, to punish employees who voted against having a Union, etc.)

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references and resources

References and Resources:

--Available to the Public

--Available from A.F.G.E.

hardcopy purchase from gpo
(hardcopy, purchase from GPO)
  • Title 5, United States Code, which includes
  • 5 U.S.C., Chapter 71, the Federal Service

Labor-Management Relations Statute (also

available separately).

  • Title 5, Code of Federal

Regulations (3 volumes).

  • Decisions of the Federal Labor Relations

Authority (FLRA) and the Federal Service

Impasses Panel (FSIP).

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online 1
(online 1)
  • Title 5, United States Code:

http://assembler.law.cornell.edu/usc

ode/html/uscode05/usc_sup_01_5.ht

ml

  • Title 5, Code of Federal Regulations:

http://www.gpoaccess.gov/cfr/index.html

  • Decisions of the FLRA and the FSIP:

http://www.flra.gov/

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online 2
(online 2)
  • AFGE Website: http://afge.org/
  • THOMAS (Library of Congress legislative information): http://thomas.loc.gov/
  • Office of Personnel Management (OPM):

http://www.opm.gov/

  • Google: http://www.google.com/
  • CyberFeds ($ubscription service):

http://www.cyberfeds.com/CF3/splash.jsp

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afge publications
AFGE Publications
  • Steward’s Manual
  • Collective Bargaining Manual
  • Handbook of Collective Bargaining Terms
  • Local Officer’s Resource Manual
  • Rep Wing
  • Government Standard

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afge resources
AFGE Resources
  • Website: www.afge.org
  • National Vice Presidents and National Reps
  • AFGE National Office (202) 737-8700
  • Field Services Department (202) 639-6406
  • National bargaining councils
  • Local officers and reps

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dimensions of bargaining
SUBSTANCE is “what got done”

The outcome

Meeting of the minds (or not)

PROCESS is “how it went”

Intervening acts that produced the outcome

Behaviors and statements made before an issue was concluded

Dimensions of Bargaining

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Bargaining unit

Conditions of employment

Exclusive Representative

Designee(s)

Employer/Agency

Neutrals: FMCS, FLRA, FSIP

Union member

Bargaining unit member

Bargaining team members

Chief Negotiator (Chief Spokesperson)

Subject Matter Expert (SME)

Who….

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means what
Bargaining unit

Conditions of employment

Exclusive representative

= The part of an Agency for which the Union has been certified as the exclusive representative.

= Aspects of the bargaining unit’s worklife that are related to the employment relationship. An agency is not required to negotiate on such aspects that affect supervisors, managers, or others outside the bargaining unit.

= The Union; the only entity that can speak for one or more members of the bargaining unit.

…means what?

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means what cont d
Designee(s)

Employer/ Agency

Neutrals

= the person or persons authorized by the Union to speak or act for the Union.

= the employer organization that has been identified as the Union’s counterpart within the government.

= Federal Mediation and Conciliation Service

= Federal Labor Relations Authority

= Federal Service Impasses Panel

= Arbitrators

= Courts

…means what? (cont’d)

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means what cont d118
Union member

Bargaining unit member

Bargaining team members

= person who pays dues and is accepted as a member; dues are paid through payroll deductions or directly to the Union.

= Person who occupies a position in the bargaining unit, whether or not a union member.

= Persons designated by the Union to conduct negotiations.

…means what? (cont’d)

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means what cont d119
Chief Negotiator/ Spokesperson

Subject Matter Expert (SME)

= person who chairs the Union’s bargaining team in caucuses and during negotiation sessions; authorized to “sign off” on agreements, send and receive correspondence, etc.

= person who is accepted by both parties as being able to explain laws, regulations, or policies in a specified area.

…means what? (cont’d)

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scope of bargaining
Scope of Bargaining
  • Many terms of employment (such as overtime and leave) are set by law; therefore, Unions and agencies cannot change those terms through negotiations.
  • Laws leave employment issues incomplete: as subjects for further details in regulation, or as options available to Agencies, or both. Those details and options can be bargained.

Such details and options are within the scope of bargaining . They are “matters” Unions can negotiate on.

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examples laws scope of bargaining
AWS

Insurance

Premiums

Law vs Law

The Compressed and Flexible Work

Schedules Act says AWS is bargainable.

The amount of the employee’s share is

set by law; but the law doesn’t specify

that such premiums must be paid

currently So, proposing to pay

retroactively when an employee returns

from furlough is within the scope of

bargaining.

Where two laws conflict on exercising

discretion, specific intent is required to

make the discretion bargainable.

Examples: Laws & Scope of Bargaining

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scope of bargaining cont d
Scope of Bargaining (cont’d)

Besides laws, regulationsaffect the scope of

bargaining:

Bargaining proposals can’t conflict with government-

wideregulations. But, where government-wide

regulations give the agency discretion to do or not to

do something, in most cases the scope of bargaining

includes how that discretion is exercised.

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Occasionally, an agency’s discretion is not

bargainable. When management takes that

position, the Union can file a negotiability

appeal to resolve the issue.

No* regulation, whether government- wide or issued by an agency, can be implemented in a bargaining unit if it conflicts with an effective collective bargaining agreement.

*Except a regulation about prohibited personnel practices. (This exception is so rare, it’s barely worth noting.)

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scope of bargaining cont d124
Scope of bargaining (cont’d)

Agency regulations are bargainable, but :

  • If the Union had an opportunity to bargain

when the regulation was implemented,

management is not required to bargain again until

the contract is negotiated again (unless that earlier

agreement says otherwise, such as in a reopener).

2. The Agency can claim there is a “compelling

need” for the regulation; if it makes that claim, the

question can be resolved in a negotiability appeal.

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bargaining over agency regulations
Bargaining Over Agency Regulations
  • Handling allegations of “Compelling Need.”
  • Content of the Reg: Management Rights versus Substantively Bargainable matters and procedures.
  • Midterm bargaining over Agency regulations that were previously implemented legally.

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compelling need
“Compelling Need”

(a) The rule or regulation is essential, as distinguished

from helpful or desirable, to the accomplishment of the

mission or the execution of functions of the agency or

primary national subdivision in a manner that is

consistent with the requirements of an effective and

efficient government.

(b) The rule or regulation is necessary to ensure the

maintenance of basic merit principles.

(c) The rule or regulation implements a mandate to the

agency or primary national subdivision under law or

other outside authority, which implementation is

essentially nondiscretionary in nature.

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agency regulation includes management rights
Agency Regulation Includes “Management Rights”

When Agency regulations include provisions

that exercise management rights—

  • The same analysis applies to negotiability as would be the case if the management right were being exercised in any context.
  • Unions can “lock in” a regulation for the term (duration) of a term agreement, except for those provisions of the regulation that contain the exercise of a management right.

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previously implemented regulations
Previously-Implemented Regulations
  • If an Agency regulation has been implemented, the scope of bargaining depends on whether the CBA that is to be negotiated is a term CBA or not.
  • If the CBA is a term agreement, previous implementation is no bar to re-negotiating the regulation; consistent with other limits, it is within the scope of bargaining.
  • If the CBA is an MOU, the Agency has no obligation to bargain on the regulation at all, until the next term CBA negotiations, unless it proposes to make mid-term changes. (This is a duty to bargain “at all” situation, and is true without regard to the language of the Union’s proposals.)

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5 u s c section 7106
5 U.S.C., Section 7106
  • The labor law describes three kinds of bargaining subjects—
    • Prohibited – it’s illegal to bargain on these
    • Permissive – Agencies and Unions can choose to bargain on these, at the request of the other party.
    • Mandatory – Agencies and Unions must bargain on these, upon the request of the other party.

.

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7106 a illegal subjects
7106(a) – Illegal Subjects

(a)Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency—

(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and

(2) in accordance with applicable laws—

(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

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slide132
(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;

(C) with respect to filling positions, to make selections for appointments from—

(i) among properly ranked and certified candidates for promotion; or

(ii) any other appropriate source; and

(D) to take whatever actions may be necessary to carry out the agency mission during emergencies.

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7101 b 1 permissive subjects
7101(b)(1) – Permissive Subjects

(b) Nothing in this section shall preclude any agency and any labor organization from negotiating— (1)at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;

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about permissive subjects
About Permissive Subjects…
  • 7106(b)(1) is not a comprehensive list of permissive subjects.
    • For example, an Agency can choose not to bargain on proposals that affect conditions outside the bargaining unit.
    • For example, a Union can choose not to bargain on matters that involve internal union business.
  • Once in an agreement, a provision on any permissive subject is just as enforceable during the life of the agreement as any provision on a mandatory subject.

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7106 b 2 3 mandatory subjects
7106(b)(2) & (3) Mandatory Subjects

(2) procedures which management officials of

the agency will observe in exercising any

authority under this section; or

(3) appropriate arrangements for employees

adversely affected by the exercise of any

authority under this section by such

management officials.

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scope of bargaining mgt rights
Scope of bargaining: Mgt Rights

Proposals involving management rights areas

are generally negotiable if they address the

ways management rights are to be

implemented (the “how”); but the decision to

exercise management rights in a particular

way (the substance or the “what”) usually is

out of bounds. However,

1. Management can choose to bargain on matters it is not required to bargain on – these are “permissive subjects” for Mgt.

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scope of bargaining mgt rights137
Scope of bargaining: Mgt Rights

2. The Union can negotiate to reduce adverse effects on employees of the exercise of a management right, even if that negotiation conflicts, to an extent, with a management right – the “appropriate arrangements” approach.

3. Proposals that concern bargainable conditions of employment are negotiable even if they also involve a management right.

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scope of bargaining mgt rights138
Scope of Bargaining: Mgt Rights

4. Proposals that provide procedures by which management rights will be exercised, but don’t involve the management right itself, are negotiable.

5. A management right is what the FLRA, not the agency, defines it as. The FLRA has defined every management right, including concepts, multi-part tests, balancing tests, and other “analytical frameworks” (operating definitions).

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which wins cba proposals v laws v regs
Which wins? CBA/Proposals v Laws v Regs

Einstein, I’m not!

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overview proposals v mgt rights
Overview: Proposals v Mgt Rights
  • When a union proposal involves a management right, the proposal is negotiable under any of these 5 analyses—

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examples of negotiable proposals
Mgt decides to adopt a new performance appraisal system.

Mgt establishes a mandatory table of penalties for discipline.

The Union proposes

providing training to

employees on how they

will be affected by the new

system.

The Union proposes

that suspensions under

the new table will include

all calendar days, not just

work days.

Examples of Negotiable Proposals

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examples of negotiable proposals142
Management proposes to ban personal phone calls because they tie up incoming customer calls.

Management proposes to RIF 5% of the workforce.

The Union proposes that

management provide a

phone line in the work

area for personal calls.

The Union proposes

that RIF’d employees

be recalled first if positions

are re-established for which

the employee is qualified.

Examples of Negotiable Proposals

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which analysis should i use
“Which analysis should I use?”
  • It depends on the reason(s) Management raises for saying language is non-negotiable.
  • The FLRA generally decides cases on the “record created by the parties” in each case.
  • Substantially equivalent language can be negotiable or non-negotiable, depending on the circumstances, and the arguments and reasons Management and the Union make.

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slide144

Exercises: -Is It Negotiable?-Analytical framework: Disputed status of proposal under different sections of 7106

Training Case: Interference with management rights

negotiability v unfair labor practice ulp
Negotiability

A dispute over proposed words –

whether they’re legal to include

in a collective bargaining

agreement. This concept is

unique to the Federal sector.

The Union is its own

advocate.

Resolved using negotiability

regs, 5 C.F.R., Part 2424.

ULP

A dispute about whether

there is or is not an

obligation related to

bargaining (at all,

provide data, etc.).

The FLRA investigates

and prosecutes/

dismisses.

Resolved using ULP regs,

5 C.F.R. Part 2423.

Negotiability v. Unfair Labor Practice (ULP)

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congratulations
Congratulations!

Stop! Take a Break!

You now know these analytical

frameworks: scope of bargaining,

the Union’s right NOT to bargain

(CBA conflicts with regulations

issued while the CBA is in effect),

and negotiability v. ULP.

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avoid agency head review when possible
Avoid Agency Head Review When Possible

5 U.S.C. §7114(c)(4) says: “A local agreement

subject to a national or other controlling

agreement at a higher level shall be approved

under the procedures of the controlling

agreement or, if none, under regulations

prescribed by the agency.”

  • Translation: Parties must negotiate, at either’s request, on an alternative to agency head review (AHR) for CBAs other than the “controlling” agreement—local supplementals, MOUs/MOAs/ LOAs/settlements, etc. Otherwise, the default is whatever the Agency wants, including AHR.

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why does it matter if ahr applies
Why does it matter if AHR applies?
  • Because AHR leads to negotiability appeals, which can result in language being found non-negotiable, it can only make the agreement worse, not better (knocks out language the parties agreed on without necessarily inserting new language).
  • It could nullify language the Union agreed to reluctantly as part of a package (you get the bad language but not the good).
  • It will likely delay implementation of the CBA, for months or even years.

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alternatives to ahr
Alternatives to AHR
  • There is no limit on what can be substituted for AHR as the “trigger” to make CBAs other than “controlling agreements” effective.
  • Options include: This agreement shall be effective-
    • “Upon execution [signatures] by the [Chief Negotiators] [entire bargaining teams].”
    • “Upon ratification by the Union and execution by the Parties.”
    • “On [a specified date].”
    • Anything that works for the Parties.

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ahr applies to a controlling agreement
AHR Applies to a “Controlling Agreement”

5 U.S.C. §7114(c)(1) says: “An agreement

between any agency and an exclusive

representative shall be subject to approval

by the head of the agency.”

  • Translation: The agency head has the right to review a main CBA between the parties. The FLRA says this applies initially and to any “supplements or amendments” to it. So, there’s a critical distinction between “supplementals to the controlling agreement” and “local supplemental agreements.”

An agreement

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the critical distinction
A controlling agreement itself, and any supplements or amendments to it, can be implemented only upon application of the agency head review law (if the agency remembers to submit such changes to the agency head).

Any other agreement, including local supplemental agreements, can be implemented by alternative procedures the parties negotiate as part of the controlling agreement (no right to agency head review).

The critical distinction--

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how does it work
How does it work?

The “controlling agreement” contains

language that provides the procedures for

implementing any or all other agreements

between the parties. Those procedures are

subject to bargaining, including impasse.

The procedures do not have to make

mention of agency head review, only how

another agreement will become effective.

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some language options to avoid ahr
Some Language Options to Avoid AHR
  • “Only this controlling agreement, or amendments and supplements to it, are subject to agency head review. All other agreements shall be effective [upon ratification and execution] [the day after they are ratified and signed] [upon ratification and execution. Execution shall occur not more than seven days after the Union has notified the Employer that the agreement was ratified] [etc.].”

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to agency head review
To Agency Head Review:

Agency Head Review has a strict time limit. If the Agency Head/designee doesn’t notify the Union, within 30 calendar days after execution, that an agreement was disapproved, the agreement is effective on the 31st day. See 5 U.S.C. 7114(c)(3): “If the head of the agency does not approve or disapprove the agreement within the 30-day period, the agreement shall take effect and shall be binding on the agency and the exclusive representative subject to the provisions of this chapter and any other applicable law, rule, or regulation.”

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covered by

“Covered By”

An Invention for Agencies to Avoid

“Further” (“Midterm”) Bargaining

can mgt avoid bargaining over changes it proposes to make
Can Mgt avoid bargaining over changes it proposes to make?
  • In 1993, the FLRA invented the “covered

by” framework because agencies complained they

had to negotiate constantly.

  • The test says: If a matter is “covered by” a CBA,

there is no statutory requirement for management to

bargain “further” on that matter with the Union

during the term of the CBA. The Union had its

chance to bargain, and the Agency is free to make

changes without bargaining if the “matter” is

covered by the [term] CBA.

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term cba v other cbas
Means contract , term

Agreement, controlling

Agreement - any CBA

that includes a set

duration (term).

Not limited by FLRA’s

restriction on “further

bargaining” aka “the

covered by” defense

against refusal to

bargain.

“Bargain further” means

“midterm”, “changes to COEs,”

“impact and implementation” (“I

and I”); usually results in an

MOU/MOA/ LOA/etc.

Agencies aren’t required to

“bargain further” before

implementing changes

during the term agreement if

the change is “covered by” the

term agreement.

Term CBA v. OtherCBAs

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slide159

I wonder why they call it a “DEFENSE”

Because Management would rather get all defensive than admit bargaining would make the change easier for everyone.

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the two prong test of the covered by analytical framework
The two-prong test of the “Covered By” Analytical Framework
  • Prong 1: If the agreement expressly encompasses the matter, the matter is “covered by” the agreement.
  • Prong 2: If not, the FLRA determines whether the matter sought to be bargained is an aspect (“inseparably bound up with”) of matters already negotiated. If it is, the matter is “covered by” the agreement. The analysis under Prong 2 will, as deemed necessary, consider the parties, the bargaining history, or intent, as components of the record evidence.

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hypothetical example of covered by
Hypothetical Example of “Covered By”

The term agreement (“the contract”) has an

Hours of Work Article. Three months into the

3-year term, the Agency announces it will

add new tours of duty. If tours of duty are

“covered by” the Article, the agency may have no

duty under the law to bargain “further” with

the Union when it implements the new tours.

It can go forwared without engaging in “midterm”

bargaining aka “bargaining over changes to

conditions of employment”.

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example cont d
Example (cont’d)

But, let’s say the Midterm Bargaining article says:

“Either party may request to bargain whenever

changes are proposed by the other party.”

For these parties, there would be a contractual

obligation to bargain concerning the new tours of

duty, even though the “covered by” test still

exists: parties can obligate themselves by

contract to do “more” or “less” than the law

requires (waiver), but neither party can be forced

to agree to such waivers or have waivers imposed

by the Impasses Panel.

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covered by rejected
“Covered By” Rejected
  • In Customs Management Center, Miami, FL and NTEU , 56 FLRA No. 126 (2000), Management tried to avoid bargaining over a Union proposal to grant employees administrative leave to participate in a physical fitness competition.
  • Under Prong 1, the FLRA rejected the Agency’s claim because a contract

provision covering admin excusal

for up to 59 minutes dealt with a

different “matter” – tardiness.

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covered by rejected164
‘Covered By’ Rejected:
  • Under Prong 2, the Agency claimed the “matter” also was covered by a contract provision that memorialized a past practice and allowed employees 3 hours a week for physical fitness training.
  • Held: The union’s proposal was not “covered by” the contract because the bargaining history did not show the parties contemplated attendance

at the physical fitness competition when

they negotiated the fitness program

provision.

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you can win a covered by dispute
You can win a ‘Covered By’ Dispute
  • In a number of cases, ALJs and the FLRA have found that the Agency was not allowed to use “covered by.”
  • Reasons include: the term CBA did not address a local office relocation, only nationwide ones; the term CBA was decided by an interest arbitrator, who did not have the particular “matter” before him/her; etc.
  • Although the FLRA sides with management often, “covered by” is not always a lost cause – just like Agencies’ “non-negotiable” claims in earlier years, “covered by” is the Agencies’ current all-purpose excuse for not bargaining.

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effects of covered by aren t permanent
Effects of “Covered By” Aren’t Permanent
  • When the term contract expires,

there is no longer a CBA that

“covers” any subjects.

  • Therefore, “further” bargaining

is available, as renegotiation.

  • In contract negotiations, the Union can address any changes Management implemented unilaterally under the “covered by” framework.

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slide167
Aha!

You got it “covered.”

So “covered by” doesn’t keep us from putting anything on the table when we re-do the contract every three years, right?

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minimizing effects of covered by
Minimizing Effects of “Covered By”
  • Don’t put “everything but the kitchen sink” on

the bargaining table when you negotiate the term agreement, especially if the plan is to withdraw proposals. “Asking for the moon” and settling for nothing plays into the rationale for “covered by” by making a “matter” part of the bargaining history and therefore subject to “covered by”.

  • Propose a contractual requirement to bargain whenever either party proposes a change to COE; or, at least, when a matter has not been “comprehensively” or “exhaustively” addressed in the term CBA. (However, be aware the FLRA currently regards such requirements as being permissive, not mandatory, for the Agency.)

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minimizing effects of covered by169
Minimizing Effects of “Covered By”
  • Propose a contractual requirement to negotiate certain matters if the Agency proposes changes: RIFs, hours of work, leave, performance management, and others that are priority for your bargaining unit employees (BUEs).
  • Include a non-specific reopener of the entire term agreement, such as 1 year or 18 months after it became effective; either party could reopen it without limitation.
  • In such a non-specific reopener, limit the number of Articles (“matters”) that can be reopened to a manageable number, such as 5.

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what s next for covered by
What’s Next for “Covered By”?

A union proposed that the Agency would bargain mid-term on matters not “specifically addressed” in the term CBA. The FLRA ruled the proposal was non-negotiable because it was not required by the Statute, and, therefore, permissive.

In March, 2005, a federal court sent the case back

to the FLRA to explain why some labor-management

determinations that depart from the general

Statutory scheme (like scope of bargaining) are

joint while others (like contractual alternatives to

“covered by”) are seen by the FLRA as unilateral .

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training cases covered by broadly interpreted covered by formulation of the matter

Training Cases: -Covered By – Broadly Interpreted-Covered By – Formulation of the Matter

-Covered By – Not Found

-Covered By – Ordered Revisited (03-05)

the union s right to information
The Union’s Right to Information--
  • Is in section 7114(b)(4), but has been restricted by the FLRA’s particularized need test.
  • Involves how the parties handle a Union’s request:
    • Both parties have a duty to discuss in detail a dispute about requested information; silence, or general (“conclusory”) statements do not satisfy this duty.
    • The parties must try to resolve the dispute, compromising when appropriate; the Union cannot exceed its legitimate needs: for example, if sanitized information meets the need, the Union is not entitled to unsanitized information.

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Involves what the parties must consider. When the Union requests information under the labor law, it must tell the Agency:
    • The purpose for requesting the information;
    • The uses to which the Union will put the information; and
    • How the purpose relates to the Union’s role as the exclusive representative.

This test does not apply if information is

requested under the Freedom of Information Act

or is a separate contractual right of the Union.

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exercises info request what if management says no

Exercises: -Info Request-What if Management Says ‘No’?

Training Cases:

-After-acquired information

-Info refusal constituted a ULP

negotiability appeals

Negotiability Appeals:

Overview and Pointers

negotiability appeals177
Negotiability Appeals
  • Avoid them when you can – the FLRA takes control of part of your contract negotiations.
  • Pay attention to language – “as written your proposal is non-negotiable” is an opening to make it negotiable or learn why it shouldn’t be changed.
  • Research the precedents to find out what language is negotiable (or not); and why .
  • Don’t rush into an appeal. Keep negotiating on other subjects until you have no other options.
  • Follow the Negotiability Regs and don’t miss a deadline. Always file ASAP, <several days early.

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one kind of appeal is in the law
One Kind of Appeal is In the Law
  • 5 U.S.C. §  7117(c)(1): “…if an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Authority in accordance with the provisions of this subsection.”
  • For identification purposes, we call this an “allegation during negotiations.”

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sequence of filing events allegation during negotiations
Sequence of Filing Events: Allegation During Negotiations
  • Agency says language is non-negotiable.
  • If and when Union wants to, it requests the Agency’s written allegation of non-negotiability.
  • Agency provides written allegations (or had specified time to provide them).
  • Union files negotiability appeal within 15 calendar days after “service” of the Agency’s allegations or expiration of the time period.

If the Union misses the time limit to file an appeal, it

cannot require the Agency to negotiate on the language

until the next term CBA negotiations.

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another kind of appeal was created by the flra
Another kind of appeal was created by the FLRA
  • When an Agency Head disapproves a CBA under the “Agency Head Review” law (5 U.S.C. 7114(c), the FLRA decided that’s equivalent to an allegation of non-negotiability, even though it occurred after bargaining was concluded and the CBA was signed.
  • For identification purposes, we call this an “disapproval allegation.”

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sequence of filing events disapproval allegation
Sequence of Filing Events:Disapproval Allegation
  • Agency Head provides timely* notification to the Union that the CBA was disapproved.
  • Union files negotiability appeal within 15 calendar days after “service” of the Agency’s disapproval.

If the Agency Head doesn’t disapprove the CBA within 30

calendar days after execution, the entire CBA is in effect.

But, if the disapproval is timely and the Union misses the

time limit to file an appeal, the language is deleted from

the CBA and cannot be renegotiated until the next term

CBA negotiations.

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there s a big difference
Allegation During Negotiations

Union controls the timing by requesting written allegations at the right time for it.

If found negotiable, the parties negotiate on the proposal.

Disapproval

Allegation

Agency controls the timing by issuing a disapproval that starts the clock.

If found negotiable, the provision is implemented without further negotiation.

There’s a Big Difference

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the basic analytic framework
The Basic Analytic Framework
  • A proposal is negotiable unless it is excluded because it conflicts with law, government-wide regulation, agency regulation for which a compelling need exists, or impermissibly affects a Management Right. If none of these exclusions applies, the language is negotiable.
  • The Union doesn’t have to show a proposal or provision is negotiable; it has to refute the Agency’s reasons for alleging the proposal or provision is non-negotiable.
  • The Basic Analytic Framework takes an inclusive approach.

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how much conflict makes language non negotiable
In the case of federal laws, government-wide regulations, or agency regulations for which a compelling need exists, any degree of conflict makes the proposal or provision non-negotiable.

In the case of a Management Right, language is negotiable if it is an appropriate arrangement that does not excessively interfere with the exercise of a Management Right.

How much conflict makes language non-negotiable?

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negotiable procedures
Negotiable Procedures
  • Disputed language is a negotiable

procedure if it doesn’t interfere with or

involve the exercise of a management right.

  • Demonstrating disputed language is a procedure nullifies the need to demonstrate that the language is negotiable as an “appropriate arrangement” or involves a permissive subject of bargaining.

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examples of procedures
Examples of Procedures
  • Management will consider internal applicants before filling vacancies using outside applicants.
  • The parties will survey the bargaining unit and the Agency will incorporate their views about Z.
  • Seniority among employees who do W work on straight time will be used to select employees for overtime. Reverse seniority will be used to select if non-volunteers are needed.
  • Employees will receive a reasonable amount of additional time, for good cause shown, to respond to proposed discipline.

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training cases arrangements requirement under 7106 b 3 proposal 16 is appropriate arrangement

Training Cases:-Arrangements requirement under 7106(b)(3)-Proposal 16 is appropriate arrangement

when should the union use the appropriate arrangements framework
When should the Union Use the Appropriate Arrangements Framework?
  • When the Agency claims that the disputed language conflicts with a Management Right, as the FLRA has defined it, and the Union believes the Agency may be right.
  • Not to refute an Agency claim that the disputed language conflicts with a federal law, a government-wide regulation, or an Agency regulation for which a compelling need exists.

Note: Nothing precludes the Agency from raising

multiple bases to allege non-negotiability; in that

case, you MUST respond to each basis.

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hypothetical agency allegation
Hypothetical Agency Allegation

“The Union’s proposal is non-negotiable because it violates 5 U.S.C. 610.301, 5 C.F.R., 610.803(b), Agency Handbook 7801, and the Management Rights to assign work, direct employees, and determine its budget.”

The Union must refute every argument (basis)

the Agency makes in its written Statements to

the FLRA. Silence is agreement.

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how do you refute the allegation
How do you refute the allegation?
  • Make a list of all of the reasons the Agency raises as obstacles to bargaining.
  • For each reason, research especially FLRA decisions. As appropriate, research the legislative history, the issuing agency’s website when a government-wide regulation is involved (OPM, DOL, etc.), GAO reports and Comptroller General decisions, and court decisions.
  • When researching FLRA decisions, note all “tests,” “analytical frameworks,” etc. and address every element of every test or framework.
  • Include quotations, citations, and conclusions in providing written arguments to the FLRA.

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what are the elements of an appropriate arrangement
What are the elements of an “Appropriate Arrangement”?

Demonstrate—don’t just allege—that the

disputed language is an arrangement:

  • Show there are foreseeable adverse effects on the employees who would benefit from the disputed language;
  • Show how those effects are the result of the exercise of a management right;
  • Show how the disputed language would reduce the adverse effects; and

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Show how the proposal is tailored to only those employees who are adversely affected; or that it is intended to eliminate the possibility of an adverse effect on employees who can’t be identified.

Then, demonstrate the arrangement is

“appropriate”:

  • Show that the degree of interference with the Management right is slight.
  • Show that the benefit to employees is extensive.
  • Show that the language promotes effective and efficient government.

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example of appropriate arrangement
Example of Appropriate Arrangement

“In order to advantageously aid in the understanding of [documents] in future searches, the office shall allow the unit member to add notations to documents on the [new] automated system. The automated system shall allow the unit member to view the notations at the same time the document is displayed.”

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The Agency alleged the proposal interfered with its Management Right to determine the technology of performing work.
  • The FLRA agreed, but found the proposal is an appropriate arrangement:
    • It was intended to prevent employees—who were allowed to make notations on hard-copies of documents—from being disadvantaged by the Agency’s decision to adopt a new automated database system.

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The degree of interference with the management right was not excessive because (1) The proposal did not require that the notations be made in the automated database itself, only that they be employees be allowed to make them for documents in the automated database; and (2) the Agency’s ability to determine its technology would be almost entirely unaffected, while the benefit to employees would be significant.

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ten tips for positive bargaining outcomes
Ten Tips for Positive Bargaining Outcomes

10. Write enough language to address the issue, but not too much to scare off the FLRA. The FLRA prefers limited language to “air tight” language that leaves management without options to handle unusual situations. A partial solution is better than a complete loss.

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9. Tie your proposals to the overall bargaining plan. Manage time so all priority issues get necessary attention at the table; be open to reevaluating which objectives can be won through bargaining, and which are better attacked using pressure tactics – lobbying, media contacts, employee mobilization, etc.

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8. If Management says your proposals are non-negotiable, ask WHY –which analytical framework and FLRA cases Management is relying on. Avoid negotiating against yourself. When possible, do negotiability research before you write proposals, but in in case as soon as negotiability issues are raised at the table. Don’t request Management’s written allegations until you know you want to appeal the language that’s currently on the table.

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7. Negotiability requires research, writing, and presenting arguments; be prepared to go the extra mile. You don’t have to write a book, but you have to understand and address the technical points that affect negotiability.

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6. Use the lingo of the applicable analytical frameworks. Copying language from, and citing, FLRA decisions is good practice—it shows you’ve done your homework, and it provides YOU a road map through your negotiability appeal that’s already been invented. Magic words are good, but usually not crucial—but the concepts in the FLRA’s analytical frameworks are essential.

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5. In your argument, address all of the points that are mentioned in the analytical frameworks. You won’t win the appeal if you try to “sneak one by on the outside corner.”

4. Be sure your proposal is consistent with your explanation of what it means. Be specific in explaining what it means and especially what it doesn’t mean.

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3. Address all points raised by Management. The FLRA makes its decisions based on the record created by the parties for each case. In your argument, don’t avoid any Management allegation that’s relevant to negotiability. How your opponent argues determines how you must respond.

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2. Tell and show the FLRA the ways a proposal is negotiable –it’s substantively bargainable, a procedure, a permissive subject over which the Agency elects to bargain, an appropriate arrangement, or more than one way if they apply. Silence is waiver.

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Know and use the applicable regs. These are in Title 5, Code of Federal Regulations, Parts 2424 (Negotiability) and 2429 (Miscellaneous Requirements). You get one crack at the FLRA, and you have to make it count.

Good Luck!

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