FEDERAL LABOR RELATIONS AUTHORITY STATUTORY TRAINING PROGRAM

1. FEDERAL LABOR RELATIONS AUTHORITYSTATUTORY TRAINING PROGRAM Scope of Bargaining Jean M. Perata Deputy Regional Director FLRA, S.F. Region jperata@flra.gov; 415.356.5000, ext. 2012

2. TWO ASPECTS OF COLLECTIVE BARGAINING • Scope of bargaining – • What can parties negotiate? • Duty to bargain – • Whether and when is a party required to bargain?

3. CONDITIONS OF EMPLOYMENT • Two factors are considered, when deciding if a matter to be negotiated involves a condition of employment of bargaining unit employees – • Whether the matter to be negotiated pertains to unit employees; and • The nature and extent of the effect of the matter to be negotiated on working conditions of employees See, e.g., Antilles Consol. Education Ass’n, 22 FLRA 235 (1986); Dep’t of the Air Force, Eielson Air Force Base, 23 FLRA 605 (1986)

4. CONDITIONS OF EMPLOYMENT • Defined in 5 U.S.C. 7103(a)(14) – • Includes personnel policies, practices and matters affecting working conditions • Can be established by rule, regulation or in other ways.

5. MATTERS OUTSIDE SCOPE OF BARGAINING • Conditions of employment do not include: • Matters relating to political activities • Matters relating to the classification of a position • Matters provided by federal law

6. MATTERS OUTSIDE SCOPE OF BARGAINING • Also excluded from the scope of bargaining are: • Matters which are contrary to government-wide rules and regulations [5 U.S.C. §7117(a)(1)] See, e.g., U.S. Dep’t of the Army, Headquarters, Fort Carson, 48 FLRA 168, 206 (1993) (OMB Circular A-76) • Matters contrary to agency rules and regulations for which there is a compelling need [5 U.S.C. §7117(a)(2)] See, e.g., Dep’t of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436, 1441 (1987)

7. MATTERS OUTSIDE SCOPE OF BARGAINING • Also outside the scope of bargaining are management rights, 5 U.S.C. §7106(a)— • Determine the mission, budget, organization, numbers of employees, internal security practices; • Hire, discipline employees; • Assign work to employees, contract-out work; • Fill positions and fill from any source; • Carry out agency mission in an emergency

8. PERMISSIVE TOPICS OF BARGAINING • Examples of permissive topics: • 5 U.S.C. §7106(b)(1) topics: Numbers, types and grades of employees and methods and means of performing work See, e.g., U.S. Dep’t of Veterans Affairs Med. Ctr., Lexington, Ky., 51 FLRA 386, 391-392 (1995) (numbers, types and grades); Am. Fed’n of Government Employees, Local 644, 40 FLRA 831, (1991) (employees’ use of beepers when off duty is a method and means of performing work).

9. MORE PERMISSIVE TOPICS • Examples of permissive topics: • Modifications of statutory rights (e.g., pre-charge notification requirements; two negotiated agreements for one unit etc.) See, Headquarters, Fort Sam Houston, Dep’t of the Army, 8 FLRA 394 (1982) (pre-charge notice) • Matters that do not involve conditions of employment of unit employees and are not illegal (e.g., parking for public, supervisors) See, U.S. Dep’t of Health and Human Serv., Soc. Sec. Admin., 52 FLRA 677, 681-682 (1996) (parking)

10. PERMISSIVE TOPICS OF BARGAINING • No party is required to negotiate on permissive topic; • Parties cannot insist to impasse on permissive topics; • Parties can pull out of negotiation on a permissive topic, short of reaching an agreement; • Agreements on permissive topics are binding; • Agency heads cannot disapprove permissive topics on 5 U.S.C. §7114 (c) review

11. NEGOTIABLE PROPOSALS • 5 U.S.C. §7106(b)(2) allows for negotiation of procedures which management will follow when exercising management rights • Negotiable procedure require management to take some action, but the action being required of management • Must not directlyinterfere with the exercise of a management right or prevent management from exercising its rights See, e.g., U.S. Dep’t of the Army, Red River Army Depot, Texarkana, Tex., 44 FLRA 738 (1992) (procedure for assigning work negotiable)

12. NEGOTIABLE PROPOSALS • 5 U.S.C. §7106(b)(3) provides for negotiation of appropriate arrangements for employees who are adversely affected by the exercise of a management right • Appropriate arrangements can interfere with the exercise of management rights but they cannot excessivelyinterfere with the exercise of management rights See, Kan. Army Nat’l Guard, 21 FLRA 24 (1986)

13. APPROPRIATE ARRANGEMENTS • Appropriate arrangement proposals • Are written in response to the exercise of a management right • Must be an arrangement for adversely affected employees; • Must be sufficiently tailored to the adverse situation and employees affected by the adverse situation • Cannot excessively interfere with the exercise of a management right

14. APPROPRIATE ARRANGEMENTS • Determination of whether the arrangement is “appropriate” involves the balancing of competing interests -- unit employees’ and management's • Union must articulate • The nature and extent of the impact experienced by the adversely affected employees • The extent to which the circumstances giving rise to the adverse affects are within the employees’ control

15. APPROPRIATE ARRANGEMENTS • Management must articulate • The nature and extent of the proposal’s impact on management's ability to deliberate and act • Whether the negative impact on management's exercise of its right(s) is disproportionate to the benefits to be derived • How the proposal relates to an effective and efficient government – what are the benefits or burdens to the government

16. SCOPE OF BARGAINING • Remember – • A union has the right to negotiate conditions of employment of unit employees. This does not include matters: • Relating to political activities: • Relating to classification of positions; • Provided by federal statute and government-wide rule or regulation; • Provided by agency rules or regulations for which there is a compelling need; • Contrary to §7106(a) management rights

17. SCOPE OF BARGAINING • Remember – • A union has the right to negotiate conditions of employment of unit employees. The scope of bargaining includes: • Permissive topics of bargaining, although no party can be forced to agree to permissive matters; • Procedures management will follow in exercising its §7106(a) management rights; • Appropriate arrangements for employees adversely affected by management's exercise of its §7106(a) rights