President Biden, in Executive Order 14003, issued a policy that requires federal agencies to bargain over 5 U.S.C. 7106 (b)(1). Section 7106(b)(1) of the Federal Service Labor-Management Relations Statute (the Statute) provides:
Nothing in this section shall preclude any agency and any labor organization from negotiating . . . 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[.]
Section 7106 (b)(1) has a long and complicated history. The Statute states that Agencies may elect to bargain over the subjects contained in the Section.
Election in this section is another way of saying bargaining is permissive. An Agency does not have a legal obligation to bargain over Section 7106 (b)(1), however, it may choose to bargain, at its option, as it may choose to bargain over other permissive subjects.
There has been little bargaining over Section 7106 (b)(1) during the history of the Statute. Bargaining has only taken place when it has been required by Executive Order.
President Clinton mandated bargaining over Section 7107(b)(1) in Executive Order 12871. President Obama provided for the establishment of several pilot projects for bargaining over Section 7106 (b)(1). Now President Biden has mandated Section 7106 (b)(1) bargaining in his Executive Order 14003 as stated above.
Since there rarely was a requirement to bargain over Section 7106(b)(1), there is a lack of understanding of the section on the part of both Agencies and unions. Section 7106 (b)(1) is split into two separately described sets of bargaining rights. One set of rights deals with the numbers, types, and grades of employees assigned to any organizational subdivision, work project, or tour of duty. The second set deals with technology, methods, and means of performing work. Each of the rights described has a unique meaning. This article will deal solely with methods and means of performing work.
The Statute states that if management elects to bargain, the union may make proposals over the methods and means of performing work. The FLRA has defined both what a method is and what a means of performing work is. A method is the way in which the agency performs its work – the “how.” A means is any instrumentality, including an: Agent, Tool, Device, Measure, Plan, or Policy an agency uses to accomplish, or further the performance of, its work. The “with what.”
The FLRA has developed a test to determine if a proposal is a method and means of performing work. To be a method and means there must be:
- Direct and integral relationship between agency’s chosen method/means and accomplishment of agency’s mission; and
- Proposal would directly interfere with the mission-related purpose for which the method/means was adopted.
Some of the issues the FLRA has dealt with when deciding methods and means are placement of workstations, the smoking policy at a health facility, wearing of uniforms, and physical exams of scientific personnel.
Several of the case decisions issued by the FLRA on methods and means dealt with proposals where there was no obligation to bargain over (b)(1) because the Agency had not elected to bargain, however, since the issue was raised the FLRA decided the case. Consequently, if there was a finding that a proposal met the requirements of Section 7106 (b)(1) the FLRA did not order bargaining but simply stated that the proposal was bargainable if the Agency elected to bargain over it. In one case, the Agency argued the union’s proposal was a (b)(1) proposal and the union argued that it never asserted the proposal was a (b)(1) proposal. The FLRA found that both parties to a negotiability dispute can argue the proposal is a (b)(1) proposal.
With the Executive Order policy requiring bargaining over Section 7106 (b)(1), it must be understood that a union must prove that its proposal is a method and means by showing the direct relationship between the Agency’s chosen method/means and that the proposal must directly interfere with the mission-related purpose for which the method and means were adopted.