It is common when discussing bargaining over changes in working conditions that the parties consider themselves bargaining over the impact and implementation of the change. This so-called I and I bargaining arose from the Kennedy and Nixon Executive Orders on Federal Sector Labor Relations that were in effect before the Federal Serviced Labor Management Relations Statute was enacted in 1968. Congress, in enacting the Statute, established a new legal standard for the negotiability of proposals over changes in working conditions: procedures and appropriate arrangements.
Historically, the FLRA, when issuing a bargaining order in a ULP case where management made a unilateral change in working conditions, directs the parties to bargain over the impact and implementation of the change. However, when reviewing union proposals concerning such a change, it does not determine whether the proposals are negotiable impact and implementation proposals, but rather applies the test for statutory procedures and arrangements. The procedures and appropriate arrangements test applied to whether a proposal in term negotiations is negotiable is the same test as applied to whether a proposal in change bargaining is negotiable.
Where Do Procedures and Appropriate Arrangements Come From?
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) (2) and (3) provides that nothing in this section shall preclude any agency and any labor organization from negotiating: procedures which management officials of the agency will observe in exercising any authority under this section; or appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.
What are Procedures and Appropriate Arrangements?
As aforementioned, procedures and appropriate arrangements are the replacement for impact and implementation bargaining. The parties to a negotiation should no longer be bargaining over the impact and implementation of a change; instead, they should bargain over procedures and appropriate arrangements proposals.
Under this standard, one does not look at the impact of a change, but rather at the adverse effect from management’s action. In bargaining, it is not necessary to determine how much impact there is from a change. 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 from the exercise of management rights.
Procedures for exercising management rights are listed under section 7106(a) (1), (a) (2), and (b) (1) are negotiable. Management must bargain over procedures that management officials of the agency will observe in exercising management rights. Unlike for appropriate arrangements, no adverse effect need be shown for a procedure to be negotiable. An appropriate arrangement must mitigate the adverse effects from the management exercise of a management right. A procedure need not mitigate adverse effects.
The test to determine whether a proposal is negotiable is whether it directly interferes with the exercise of a management right. Procedures which do not “directly interfere” with a management right are negotiable.
Examples of negotiable procedures:
- Required advance notice of agency actions or specific events, e.g., Local 12, 61 FLRA at 220
- Prescribed how management would select employees for assignments, as long as management preserved the right to determine that the available employees were equally qualified, e.g., AFGE, Council 215, 60 FLRA 461, 467 (2004); U.S. Dep’t of Transp., FAA, 63 FLRA 502, 503 (2009); U.S. Dep’t of the Navy, Supervisor of Shipbuilding, Conversion & Repair, Gulf Coast, Pascagoula, Miss., 62 FLRA 328, 330 (2007); SSA, Chi. N. Dist. Office, 56 FLRA 274, 277 (2000)
- Required management to take certain actions, as long as the proposals or provisions did not specify the particular persons or positions who would take the actions, e.g., AFGE, Council 220, 65 FLRA 26, 728 (2011) (Council 220); NAIL, 62 FLRA 1, 3 (2007); NLRB, Wash., D.C., 61 FLRA 154, 161 (2005)
- Established advisory committees involving union participation that were outside, or that were not an integral part of management’s decision-making process, relating to the exercise of its rights under § 7106, e.g., NAIL, 62 FLRA at 3
- Required management to delay exercising its rights, pending the completion of bargaining or applicable appellate processes, e.g., Antilles Consol. Educ. Ass’n, 61 FLRA 327, 331-33 (2005)
- Established the procedures that management would observe in developing and implementing performance standards, e.g., Council 220, 65 FLRA at 728-29; POPA, 47 FLRA 10, 65-66, 70-71 (1993)
- Set forth the procedures that management would use in announcing or filling vacancies, e.g., Local 3354, 54 FLRA at 814-15
Examples of nonnegotiable procedures:
- Precluded agencies from exercising management rights, unless or until other events (other than completion of bargaining or applicable appellate processes) occurred, e.g., ACEA, 61 FLRA at 331-32
- Delayed implementation of management actions that were “necessary for the functioning of the agency,” e.g., ACEA, 61 FLRA at 332
- Conditioned the exercise of management rights on the agreement of employees or a union, e.g., AFGE, Local 3529, 57 FLRA 172, 175 (2001)
- Required agencies to give advance notice of investigative interviews, when the decisions not to do so were part of the agencies’ investigative techniques, e.g., AFGE, Local 701, Council of Prison Locals 33, 58 FLRA 128, 134 (2002)
- Prevented agencies from determining employee qualifications, e.g., Fed. Emps. Metal Trades Council, 44 FLRA 683, 687-89 (1992)
- Prescribed or precluded assignments to particular individuals identified by name or title, e.g., Council 220, 65 FLRA at 728-29
- Required management to assign employees certain duties, at the employees’ option, e.g., AFGE, Local 1020, 47 FLRA 258, 263 (1993)
- Precluded management from assigning employees certain duties, e.g., U.S. DOD, Def. Contract Audit Agency, Cent. Region, 47 FLRA 512, 520 (1993)
- Required management to reassign employees to sites designated by the employees, e.g., NLRB, 60 FLRA 576, 579 (2005)
- Required agencies to use competitive procedures to fill vacancies, where the requirements prevented management from considering other applicants, or using any other appropriate source in filling such vacancies, e.g., U.S. DOD, Ala. Air Nat’l Guard, Montgomery, Ala., 58 FLRA 411, 413 (2003)
A proposal may not be a negotiable procedure but may meet the test for a negotiable appropriate arrangement. A union filing a negotiability appeal can designate the proposal to be both a negotiable procedure and/or an appropriate arrangement. However, the union must then explain how it meets each of the tests for both.
Congress prohibited unions from bargaining over the decision to exercise Section 7106 management rights. For 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 eliminate entirely the adverse effects, but the union may be able to reduce them significantly.
As aforementioned, when management makes a change in working conditions, it is not a question of what the impact of the change is, but rather what the adverse effects on employees from the exercise of management rights are. The amount of impact from a change is only looked at in determining if the change is more than de minimis, and therefore gives rise to the duty to bargain.
When determining whether a union proposal is an appropriate arrangement the union’s proposal the following criteria must be met:
- 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/are 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 and must identify the effects, or reasonably foreseeable adverse effects, on employees that flow from exercise of management rights. The adverse effects need not flow directly from the management right management is exercising. 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 that deals with what might possibly happen, as opposed to what is foreseeable, will not be considered negotiable.
- Proposals must be tailored only to those adversely affected. Proposals must be “tailored” to compensate or benefit employees suffering adverse effects resulting from the exercise of management rights.
- Proposals cannot excessively interfere with management rights. Determining whether a proposal is “appropriate” or inappropriate because it excessively interferes with relevant management rights.
- Weigh benefits to employees against 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.
Appropriate Arrangements Example
Example: Duty free lunch*
Proposal: Once children are seated in the cafeteria, teacher partners may alternate lunchroom student supervision duties to allow each partner a duty-free time at lunch.
What is the management right?
Assign work under Section 7106(a)(2)(B)
What is the adverse effect on employees?
Teachers assigned lunchroom duties cannot do other things.
Employees have expectations they will be allowed to eat lunch while not performing duties.
Were effects speculative or hypothetical?
No, employees were not able to eat their lunch without this additional duty.
Was proposal tailored to those affected?
Yes, it only affected employees who were working at lunchtime.
Did proposal excessively interfere with management rights?
Management had the right to require both teachers to be in the lunchroom when necessary, so there was no excessive interference.
How did benefits to employee compare with intrusion on management rights?
Benefits afforded teachers are significant, such as being able to use duty free time for personal reasons, for example, preparation for class, etc. Management ability to ensure supervision necessary to preserve lunchroom discipline would not be severely restricted. Management could determine when it was not feasible to allow duty free time because of other requirements.
Conclusion: Provision is Negotiable
*Overseas Education Association, Fort Rucker Education Association and Department of Defense Dependent Elementary and Secondary Schools, Fort Rucker Department Schools, Fort Rucker, Alabama, 53 FLRA No. 76, 53 FLRA 941 (1997)