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 under 5 USC §§ 7106(b)(2) or (3), or is inconsistent with a government-wide regulation. (See Federal Labor Relations Authority (the Authority or FLRA) 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 with the union, even if the proposal would otherwise be negotiable, e.g., managements termination of swimming at the installation pool after hours as this does not normally affect the employees working conditions. (See FLRA regulation, 5 CFR § 2424.2(a).) Responsibility for identifying duty to bargain issues associated with particular proposals rests with the installation. Advice and guidance can be obtained from the Civilian Personnel Advisory Center or the installation labor attorney.
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 the HQDA labor relations office. 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.
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 determining whether there is a duty to bargain. 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 discuss with the union its concerns regarding the matter in question.)
___ 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 no more than a de minimus affect on the bargaining unit employees?
___ Has the union specifically waived its right to negotiate over the matter?
___ 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?