The Mystery of Bargaining Over Management Rights

Can a federal union bargain over management rights? As the author explains, the answer is not so simple.

Can a federal union bargain over management rights? On the face of it, the answer should be no – that’s why they are called management rights. Why would they be called management rights if the union can bargain over them?

However, as with many other aspects of the Federal Service Labor Management Relations Statute (Statute) that governs labor relations in the federal sector, the answer is not quite that easy, and the process for determining the negotiability of those rights can be quite mysterious.

If Forrest Gump had been a federal sector labor relations practitioner, he might have changed his iconic line to: Negotiability is like a box of chocolates you never know what you’re going to get. Depending on who you are bargaining with, who does the agency head review and who are the members of the Federal Labor Relations Authority (FLRA) you may come out with very different answers as to what’s negotiable. 

There have now been over 40 years of decisions on negotiability issued by the FLRA and yet it is still not always easy to determine what is negotiable. We are in the second generation of labor relations practitioners who have to deal with the question of what is negotiable but, in some ways, negotiability is no easier for them than it was for the practitioners who broke in the new law. It also doesn’t help that as Administrations change and the members of the FLRA change, there also can be changes in how negotiability is looked at. This is particularly difficult if an Administration appoints members who have a preference for overturning long standing precedent as the union’s would argue was the preference of the past Administration’s appointed members. 

There are so many rules

If you want to understand negotiability you have to understand the rules. The problem is there are so many of them. I have written a book about federal sector bargaining: A Guide to Successful Federal Sector Collective Bargaining, which explains the rules in detail. We don’t have enough space in this article to go through all the information needed to fully understand negotiability so instead this will be a short primer on negotiability rules.

Federal Law and Government Wide Rules and Regulations

Agreements that are reached cannot be inconsistent with Federal Law or government wide rules and regulations. That seems pretty straight forward. However, the union may make proposals concerning federal law or government wide regulations if the law or regulation gives an agency discretion with how it carries out the law. There are other minor exceptions but this is probably the biggest exception to the general prohibition on bargaining over federal law and government wide regulations.

For the most part federal laws and government wide rules and regulations are treated the same. However, there is one big exception. If Congress passes a law during the life of a collective bargaining agreement that law goes into effect regardless of its effect on the collective bargaining agreement. However, if a new government wide rule or regulation is issued, it cannot go into effect until after the collective bargaining agreement expires. In fact, in accordance with Section 7116 (a)(7) it’s an unfair labor practice to enforce any rule of regulation which is in conflict with any collective bargaining agreement if the agreement was in effect before the rule or regulation was prescribed. 

Agency Regulations 

Agency regulations for purposes of bargaining have a number of different names. They are variously called regulations, orders, policies, standard operation procedures and other agency specific names. The key consideration is not what they are called but whether they are issued at agency level and they concern conditions of employment of bargaining unit employees. They are treated very differently than government wide regulations. An agency must bargain over its regulations to the extent there is no compelling need for the regulations. There are three “illustrative criteria” of compelling need: (a) The regulation is essential to the effective and efficient accomplishment of the mission of the agency; (b) The regulation is necessary to ensure the maintenance of basic merit principles; or (c) The regulation implements a mandate of law or Governmentwide regulation in an essentially nondiscretionary manner (5 U.S.C. § 7117, 5 CFR § 2424.50).The agency must support why the union’s proposal is non-negotiable because there is a compelling need for the regulation or a specific part of the regulation affected by the proposal. 

Conditions of Employment

A union proposal that deals with a matter that is not a condition of employment of bargaining unit employees is non-negotiable. As I have always told classes on federal sector labor relations the way to prove to people you are extremely knowledgeable about labor relations is to simply whisper to them: Antilles Consolidated School District. This will let them know that you are really in the know. This is a very old FLRA case that defines what a condition of employment is. It simply sets two standards. For something to be a condition of employment it must pertain to bargaining unit employees and it must pertain to the work of bargaining unit employees. If a proposal fails to meet these two standards it is non-negotiable. This is why union proposals concerning supervisors are non-negotiable. They are not in the bargaining unit. This is also why unions can bargain over procedures for distribution of overtime because overtime relates to the work of employees. While they can bargain over these procedures the question then becomes whether their actual proposals are negotiable. That will be the topic of the next section. Before you even get to the question of whether a proposal is a negotiable procedure the first question that should be answered is whether the proposal deals with a condition of employment.

Management Rights

This article started by talking about management rights. When it comes to management rights, Congress giveth and Congress taketh away. Congress gave very significant rights to management. However, Congress didn’t stop there. I always tell classes, somewhat tongue in cheek, that if a management negotiator for General Motors was able to get all the federal sector management rights – rights that management gets automatically, into a GM – UAW contract the negotiator would probably be given an island in the Bahamas as a bonus. That’s how important those management rights are. By the same token, Congress taketh away the full power of these rights by giving the union the right to bargain over mitigating the adverse effects on bargaining unit employees as a result of the exercise of these management rights. 

Procedures and Appropriate Arrangements

These union bargaining rights provided by Congress are called procedures and appropriate arrangements. There are rules with respect to what is a negotiable procedure and what are negotiable appropriate arrangements. Negotiable procedures must meet the “directly affects test”. Did the proposed procedure directly affect the exercise of a management right? The test for appropriate arrangements has five parts with the failure to meet any of these resulting in a proposal being determined non-negotiable. To determine whether a proposal is an appropriate arrangement a union must be able to show the following:

  • What management right under Section 7106(a) management is exercising
  • What are the adverse effects on employees from exercise of the management right – “Adverse Effects” cannot be speculative or hypothetical?
  • The proposal is tailored to only those adversely effected 
  • The proposal does not excessively interfere with a management right
  • The benefits to employees must be weighed against the intrusion on the exercise of management rights

Most of the time these rules are left until the issue is submitted for a negotiability determination. I don’t recall anyone ever using them at the bargaining table. Even though I have frequently heard proposals being described non-negotiable. These rules are only seemingly relied on when facing actual litigation. However, having a basic understanding of negotiability would help the parties to better understand whether something is truly non-negotiable or not. This could avoid a lot of lost time arguing over whether something is negotiable or not when neither side is really sure.

About the Author

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email [email protected] or subscribe to JSA’s newsletter.