As discussed in the bulletin, there are two dramatic revisions to the Federal Labor Relations Authority's (FLRA's) negotiability regulation. The first is the establishment of a post-petition conference. At that conference, representatives from the union, activity management, this office and the FLRA will discuss and clarify the intent of the proposal. (Field Advisory Services and your MACOM may also participate.) The second change is the requirement that the agency raise in its statement of position not only arguments regarding the negotiability of the proposal but also any arguments concerning the duty to bargain at the installation level regardless of whether the proposal is negotiable. (Arguments not raised in the statement of position cannot generally be raised in future proceedings.)
There is quite a difference between a negotiability dispute and a duty to bargain dispute. A negotiability dispute is a disagreement between the agency and the union concerning the legality of a proposal. Examples would be where the parties disagree whether a proposal affects management's rights, constitutes a procedure or appropriate arrangement 5 USC sections under 7106(b)(2) or (3) or is consistent with a government-wide regulation. (See revised regulation, 5 CFR 2424.2(c).) A question concerning the duty to bargain "known as bargaining obligation dispute" -is a disagreement over whether, in the specific circumstance involved, the parties are obligated to bargain over a proposal that otherwise would be negotiable, e.g., the proposal does not concern bargaining unit employees' conditions of employment.(See revised regulation, 5 CFR 2424.2(a).) Responsibility for identifying duty to bargain issues associated with particular proposals rests with the installation.
To assist installations in determining whether there is a "duty to bargain" obligation associated with a proposal being declared nonnegotiable, the attached checklist has been developed. (The checklist can also be used to determine the duty to bargain even when a proposal is otherwise negotiable.)
When an activity seeks to declare a proposal nonnegotiable, it should review the attached checklist to determine whether there is also a bargaining obligation dispute. Activities should coordinate any declaration of nonnegotiability with their MACOM, and this office or Field Advisory Services. An activity seeking to declare a proposal nonnegotiable should be prepared to discuss the negotiability of the proposal as well as any duty to bargain issues with higher headquarters and at the post-petition conference with the FLRA.
Should you have any questions concerning this checklist or the procedures to follow in a negotiability dispute, please contact David Helmer at DSN 221-3889 or (703) 325-3889.
Checklist to Help Determine the Duty to Bargain
The following provides a list of reasons why a particular proposal may fall outside an activity's duty to bargain. This listing does not address whether a proposal is nonnegotiable (i.e., violates management's rights or government-wide law, rule or regulation.) Please review the checklist as part of the process for declaring a union proposal nonnegotiable. If you can answer "Yes" to any of these questions, you may not have an obligation to bargain over the particular proposal. (Of course, even if a proposal falls within one of these categories, you may still wish to bargain over the matter.)
___ Does the proposal directly affect non-bargaining unit employees' conditions of employment? (E.g., supervisors, customers.)
___ Does the proposal directly affect the conditions of employment of employees in other bargaining units?
___ Does the proposal concern matters outside of the working relationship? (E.g., swimming in the installation lake after working hours.)
___ Is the subject matter of the proposal covered by (included in) the parties' agreement?
___ Did the parties previously negotiate over the proposal and elect not to include it in the negotiated agreement?
___ Does the management initiated change, which is the subject of the negotiations, have a de minimus affect on the bargaining unit employees?
___ Has the union specifically waived its right to negotiate over the matter?
___ Does the proposal limit management's statutory rights? (E.g., requiring management to notify the union 15 days prior to filing a ULP charge.)
___ Was management authorized to take the action it is proposing by the terms of the parties' agreement?
___ Does a law or government-wide rule or regulation provide the agency sole and exclusive discretion to take a particular action?