In teaching collective bargaining classes, one of the most important subjects is bargaining over procedures and appropriate arrangements. I often use the example of the Plumtrician.
Procedures and appropriate arrangements are found in the management rights section of the Statute. They are intended to allow a union to bargain over the exercise of management rights. Section 7106 (b) provides, in part, nothing in this section shall preclude any agency and any labor organization from negotiating—
(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.
Congress prohibited unions from bargaining over the decision to exercise Section 7106 management rights. As an example, a union cannot bargain over the decision to reassign employees which is the exercise of management’s right to assign work. This means it cannot stop the reassignment of the employees.
However, if employees are adversely affected by the reassignment, the union can bargain to mitigate these adverse effects. Mitigate does not mean totally eliminate. In many cases it is impossible to totally eliminate the adverse effects but the union may be able to significantly reduce them.
When management makes a change in working conditions, it is not a question of what the impact of the change is but rather whether there are adverse effects on employees from the exercise of management rights.
The amount of impact from a change only is looked at in determining if the change has substantial impact and therefore gives rise to the duty to bargain. If there is substantial impact a union can bargain over procedures and appropriate arrangements to mitigate the adverse effects of the exercise of a management right.
The standard to determine whether there is a duty to bargain over a change for almost 40 years has been “de minimus”. The change was required to be more than de minimus. A recent FLRA decision change this long held standard to substantial impact.
What are Procedures and Appropriate Arrangements?
Procedures and appropriate arrangements are the replacement for impact and implementation bargaining. See my Article: Why Do People Still Say Impact and Implementation?. You don’t bargain over the impact and implementation of a change, you bargain over procedures and appropriate arrangements proposals.
Under this standard, there must be an adverse effect from management’s action not impact. If a change has substantial impact, it must be bargained over. Not only must there be adverse effects, but a union proposal to be negotiable must mitigate the adverse effects on the exercise of management rights.
Procedures for exercising management rights under section 7106(a)(1), (a)(2) and (b)(1) are negotiable. Unlike for appropriate arrangements, no adverse effect need be shown for a procedure to be negotiable.
The test to determine whether a proposal is a negotiable procedure, is whether it directly interferes with the exercise of a management right. Procedures which do not “directly interfere” with a management right are negotiable.
When determining whether a union proposal is an appropriate arrangement the union’s proposal must meet the following criteria:
- What management right under §7106(a) is management exercising? A union can only file a negotiability appeal claiming its proposal is negotiable as an appropriate arrangement if management is exercising a management right. The union must establish which management right(s) is being exercised.
- What are the adverse effects on employees from exercise of the management right? The union must show what adverse effects its proposal is trying to mitigate. Union must identify the effects or reasonably foreseeable adverse effects on employees that flow from the exercise of management rights. If there are no adverse effects from the management change the proposal will not be considered negotiable.
- The “adverse effects” cannot be speculative or hypothetical. Adverse effects can be foreseeable but cannot be speculative or hypothetical. A proposal which deals with what might possibly happen as opposed to what is foreseeable will not be considered negotiable.
- Proposals must be tailored to only those adversely affected. Proposals must be “tailored” to compensate or benefit employees suffering adverse effects resulting from the exercise of management rights. A proposal can not cover the bargaining unit as a whole, if only a segment of the bargaining unit is affected.
- Proposals cannot excessively interfere with management rights. Determine whether proposal is “appropriate” or whether it is inappropriate because it excessively interferes with relevant management rights.
- The benefits to employees must be weighed against the intrusion on the exercise of management rights – benefits cannot be speculative. In determining appropriateness weigh benefits afforded employees under the arrangement against the intrusion on management rights. If the benefit is greater than the proposal, if it meets the other criteria, is negotiable.
Plumtrician – Case Study
Management has notified the Union it intends to combine the job duties of plumbers and electricians to establish a new job of plumtrician. (I am not sure there is such a job as plumtrician but it makes for a good example.) The plumtricians will do both high voltage electrical work and high-pressure plumbing. All current plumbers and electricians will be required to perform both sets of duties. The Union has demanded to bargain over this change in working conditions.
Let’s look at this scenario from a procedures and appropriate arrangements perspective:
Criteria 1. What management rights were being exercised by management in proposing the change? It’s clear that assigning new duties is exercising the management right to assign work.
Criteria 2. What were the adverse effects of creating plumtricians? This is a very important question. If there are no adverse effects, then the union will not be able to make negotiable proposals.
It is important to understand that both parties should try to determine the adverse effects. The union needs to know the adverse effects if it is to make negotiable proposals. Management needs to know the adverse effects if it is to determine what the parties can agree to in order to mitigate these effects or even change its original action to take these adverse effects into consideration.
Let’s brainstorm and list a few adverse effects:
- Change of shifts – may need new shifts to cover the need for both skills
- Pay – greater pay for doing 2 jobs instead of 1
- Loss of job – not able to make transition from a plumber to having the skills as an electrician or vice versa.
- Serious bodily injury – not able to perform high voltage electrical work or high-pressure plumbing resulting in death or serious injury.
Criteria 3. Are these adverse effects speculative or hypothetical? Let’s take a look at 2 of these adverse effects. If someone is not able to do the electrician duties or plumber duties required to be a plumtrician they may no longer hold the job and could be removed form employment. So, loss of job is not speculative or hypothetical. It is easily foreseeable that if someone does not know how to do these duties they could be electrocuted or suffer injury from water under high pressure.
Let’s look at a potential union proposal:
Union Proposal: Management will not assign the duties of Plumtrician until such time as employees have been able to successfully complete training and receive the appropriate craft certification. If the employee is a plumber, he/she will not be assigned electrician duties until he/she has been certified as an electrician.
Criteria 4. Is this proposal tailored to employees adversely effected by the change? It is clear that the proposal affects only employees who will be required to perform both skills.
Criteria 5. Does the proposal excessively interfere with management’s right to assign work? This can be a very difficult standard to apply. If you are the union, it is very easy for you to say, no it doesn’t excessively interfere and if you are management, you can easily find excessive interference. First, does the union proposal stop management from implementing the change at all. The answer is management can implement the change but its implementation may be delayed. Does that delay excessively interfere with the right to assign employees? The rationale behind the union proposal would be that employees should be given proper training to avoid loss of job or serious injury.
Criteria 6. The next step is to weigh the benefits to employees against the intrusion on management rights. The benefit to employees receiving training must be weighed against the delay to implementation which is an intrusion on management’s right to assign. Under these circumstances it can be found that the benefit of a delay for employees to receive training outweighs the intrusion on management’s right to assign work. Preventing loss of life could be judged to be a greater benefit than the delay in implementation.
While there may not be such a position as plumtrician, there are many instances where management has decided to make changes in working conditions. Any union proposals to mitigate the adverse effects of these changes must meet the criteria for being a negotiable procedure or appropriate arrangement.