Prepared for the Prepared for the

National Association of National Association of Government Employees, NAGE, Government Employees, NAGE,

SEIUSEIU

November 17, 2011November 17, 2011

NOTES FROM THE FLRA WASHINGTON NOTES FROM THE FLRA WASHINGTON REGIONAL OFFICEREGIONAL OFFICE

5 PROBLEM AREAS IN ULP CASES5 PROBLEM AREAS IN ULP CASES

SUPPORTING EVIDENCE (PREPARE IT BEFORE SUPPORTING EVIDENCE (PREPARE IT BEFORE FILING YOUR CHARGE)FILING YOUR CHARGE)

DECIDING WHETHER TO FILE ULP OR GRIEVANCEDECIDING WHETHER TO FILE ULP OR GRIEVANCE RESPONDING TO AGENCY’S DENIAL OF OFFICIAL RESPONDING TO AGENCY’S DENIAL OF OFFICIAL

TIME (STATUTORY OFFICIAL TIME VS. TIME (STATUTORY OFFICIAL TIME VS. CONTRACT/CBA OFFICIAL TIME)CONTRACT/CBA OFFICIAL TIME)

GETTING THE DATA THE UNION NEEDS – GETTING THE DATA THE UNION NEEDS – ESTABLISHING PARTICULARIZED NEEDESTABLISHING PARTICULARIZED NEED

KNOWING WHEN AND WHAT WE CAN BARGAIN: KNOWING WHEN AND WHAT WE CAN BARGAIN: 1) THE RIGHT TO BARGAIN; 2) SUBJECTS OF 1) THE RIGHT TO BARGAIN; 2) SUBJECTS OF BARGAINING; 3) THINGS TO BE AWARE OF IN BARGAINING; 3) THINGS TO BE AWARE OF IN BARGAINING; 4) COVERED BY; 5) BYPASSBARGAINING; 4) COVERED BY; 5) BYPASS

2

SUPPORTING EVIDENCE + preparing to SUPPORTING EVIDENCE + preparing to file your chargefile your charge

Know the factsKnow the facts Know what evidence you have for the Know what evidence you have for the

violation(s)violation(s) Know the witnesses and how they can be Know the witnesses and how they can be

reachedreached Confirm that your witnesses will support the Confirm that your witnesses will support the

allegationsallegations Understand your “interests” rather than Understand your “interests” rather than

your “position”your “position” Think about what you really need, and make Think about what you really need, and make

some attempt at informal resolutionsome attempt at informal resolution

3

Section 7116(d) – no 2 bites at the appleSection 7116(d) – no 2 bites at the apple Repudiation – Repudiation – Dep’t of the Air Force, Warner Boins Dep’t of the Air Force, Warner Boins

Air Logistics CtrAir Logistics Ctr, 52 FLRA 225 (1996). Authority , 52 FLRA 225 (1996). Authority considers 1) nature and scope of breach of the considers 1) nature and scope of breach of the agreement, i.e. was it clear and patent? And 2) agreement, i.e. was it clear and patent? And 2) does the provision go to the heart of the parties’ does the provision go to the heart of the parties’ agreement?agreement?

Contract interpretation – Authority generally does Contract interpretation – Authority generally does not interpret CBAs. BUT, see not interpret CBAs. BUT, see IRSIRS, 47 FLRA 1091 , 47 FLRA 1091 (1993) – if a party defends against a ULP by stating (1993) – if a party defends against a ULP by stating a specific CBA provision allowed its conduct, we a specific CBA provision allowed its conduct, we will interpret the CBA.will interpret the CBA.

4

ULP OR GRIEVANCE: CHOOSING THE RIGHT FORUMULP OR GRIEVANCE: CHOOSING THE RIGHT FORUM

OFFICIAL TIME PROBLEMSOFFICIAL TIME PROBLEMS

Section 7131 of the Statute says it allSection 7131 of the Statute says it all Section 7131(a) – time representing the Union Section 7131(a) – time representing the Union

when you are negotiating a contractwhen you are negotiating a contract Section 7131(b) – no official time for internal Section 7131(b) – no official time for internal

union activitiesunion activities Section 7131(c) – time to participate in FLRA Section 7131(c) – time to participate in FLRA

proceedingsproceedings Section 7131(d) – all other official time. Section 7131(d) – all other official time.

Agencies and unions may negotiate official time Agencies and unions may negotiate official time in addition to what is described in 7131(a) and in addition to what is described in 7131(a) and (c); official time the parties negotiate must be (c); official time the parties negotiate must be “reasonable“reasonable

5

OFFICIAL TIME PROBLEMS, CONT’DOFFICIAL TIME PROBLEMS, CONT’D

In other words, all official time issues other In other words, all official time issues other than (a) and (c) are covered by the parties’ than (a) and (c) are covered by the parties’ agreement. agreement.

For a denial of OT to be a ULP, the For a denial of OT to be a ULP, the dispute must fall under (a) or (c) or be dispute must fall under (a) or (c) or be analyzed as Repudiation, as discussed analyzed as Repudiation, as discussed above. Otherwise, a dispute about OT above. Otherwise, a dispute about OT must be brought as a grievancemust be brought as a grievance

6

Section 7114(b)(4) requires agency to furnish data, to Section 7114(b)(4) requires agency to furnish data, to extent not prohibited by law, that is 1) normally extent not prohibited by law, that is 1) normally maintained; 2) reasonably available; 3) necessary for full maintained; 2) reasonably available; 3) necessary for full and proper discussion, understanding and negotiation of and proper discussion, understanding and negotiation of subjects within the scope of bargaining; and 4) not subjects within the scope of bargaining; and 4) not guidance, advice, counsel or training for mgmt officials or guidance, advice, counsel or training for mgmt officials or SVs relating to bargaining.SVs relating to bargaining.

IRS, Washington and IRS, Kansas City Serv. Ctr., IRS, Washington and IRS, Kansas City Serv. Ctr., 50 50 FLRA 661 (1995) – To show data is FLRA 661 (1995) – To show data is necessarynecessary, U must , U must establish “particularized need” i.e., establish “particularized need” i.e., Why it needs the Why it needs the data; How it will use it; How the use of the data data; How it will use it; How the use of the data relates to the U’s representational duty relates to the U’s representational duty

7

How do we get the data we need from How do we get the data we need from the Agency? the Agency?

It’s not enough to show the data would be useful. It’s not enough to show the data would be useful. Union must show data is required in order for U to Union must show data is required in order for U to represent BUEs.represent BUEs.

Request must be specific enough for agency to Request must be specific enough for agency to decide whether data is necessary.decide whether data is necessary.

Union must justify the scope of its request, i.e. time Union must justify the scope of its request, i.e. time periods, geographic locations, departments, etc.periods, geographic locations, departments, etc.

Be conscious of privacy concerns. Include an offer of Be conscious of privacy concerns. Include an offer of redactionredaction

Consult the new OGC Guidance on info requests Consult the new OGC Guidance on info requests issued 10/31/2011, at www.flra.gov.issued 10/31/2011, at www.flra.gov.

8

How do we get the data we need from How do we get the data we need from the Agency? Cont’dthe Agency? Cont’d

WHEN AND WHAT CAN WE BARGAIN?WHEN AND WHAT CAN WE BARGAIN?

The duty to bargain arises in 3 contexts: 1) term The duty to bargain arises in 3 contexts: 1) term negotiations; 2) mid-term negotiations; 3) changes in negotiations; 2) mid-term negotiations; 3) changes in conditions of employment (unless conditions of employment (unless de minimis, de minimis, “covered “covered by,” or union waiver. See, by,” or union waiver. See, Dep’t of Labor, Dallas, TX Dep’t of Labor, Dallas, TX , 65 , 65 FLRA 677 (2011)FLRA 677 (2011)

Subjects of bargaining: matters related to working Subjects of bargaining: matters related to working conditions, subject to certain exceptionsconditions, subject to certain exceptions

Management rights, 7106(a)Management rights, 7106(a) Permissive subjects, 7106(b)(1) – at the election of the Permissive subjects, 7106(b)(1) – at the election of the

agencyagency Bargaining the substance, not just I&I – if not 7106(a) or Bargaining the substance, not just I&I – if not 7106(a) or

(b) or otherwise prohibited, fully negotiable (Ex.: (b) or otherwise prohibited, fully negotiable (Ex.: assignmt of pkg spaces, certain leave procedures, sign assignmt of pkg spaces, certain leave procedures, sign in/out sheets, ee awards programs, protective overalls)in/out sheets, ee awards programs, protective overalls)

Impact and implementation – next slide Impact and implementation – next slide 9

WHEN AND WHAT CAN WE BARGAIN, CONT’D WHEN AND WHAT CAN WE BARGAIN, CONT’D

Impact and Implementation (section 7106(b)Impact and Implementation (section 7106(b)(2) and (3)) – (2) and (3)) –

Even if mgmt makes a decision to exercise Even if mgmt makes a decision to exercise a mgmt right, or mgmt makes a decision a mgmt right, or mgmt makes a decision on a permissive subject that it has chosen on a permissive subject that it has chosen not to bargain with the Union, there is still not to bargain with the Union, there is still a duty to notify the Union and, upon a duty to notify the Union and, upon request, bargain over the adverse impact request, bargain over the adverse impact of the decision and the procedures for of the decision and the procedures for implementing the change. implementing the change. DHS, Customs DHS, Customs and Border Prot., El Paso, TX , and Border Prot., El Paso, TX , 65 FLRA 422 65 FLRA 422 (2011). (2011).

10

THINGS TO BE AWARE OF IN BARGAININGTHINGS TO BE AWARE OF IN BARGAINING

When a subject concerns a mgmt right, mgmt may When a subject concerns a mgmt right, mgmt may inform the union that mgmt has decided to bargain only inform the union that mgmt has decided to bargain only over I&I (impact and implementation).over I&I (impact and implementation).

I&I proposals must be narrowly tailored to address the I&I proposals must be narrowly tailored to address the adverse impact and can’t excessively interfere with the adverse impact and can’t excessively interfere with the exercise of a mgmt right.exercise of a mgmt right.

If the subject concerns a negotiable matter, mgmt may If the subject concerns a negotiable matter, mgmt may inform the union that “we would like to …” or “we plan inform the union that “we would like to …” or “we plan to…,” and the U can request bargaining, including to…,” and the U can request bargaining, including proposals that mgmt not make the change, or make it in proposals that mgmt not make the change, or make it in a different way.a different way.

If the subject concerns a permissive subject, either party If the subject concerns a permissive subject, either party can withdraw from bargaining short of reaching an can withdraw from bargaining short of reaching an agreement. (Agreements reached are binding, though.)agreement. (Agreements reached are binding, though.)

11

THINGS TO BE AWARE OF IN BARGAINING, CONT’DTHINGS TO BE AWARE OF IN BARGAINING, CONT’D

When a CBA expires, either party can elect not to be When a CBA expires, either party can elect not to be bound by its permissive terms.bound by its permissive terms.

Neither party may insist to impasse on a permissive Neither party may insist to impasse on a permissive subject.subject.

Ground rules for bargaining is a mandatory subject of Ground rules for bargaining is a mandatory subject of bargaining. (That is, ground rules are not “permissive;” a bargaining. (That is, ground rules are not “permissive;” a party cannot “elect” not to negotiate ground rules.)party cannot “elect” not to negotiate ground rules.)

Note the difference between whether there is a duty to Note the difference between whether there is a duty to bargain over a subject, and whether or not a specific bargain over a subject, and whether or not a specific Union proposal is negotiable. The difference dictates Union proposal is negotiable. The difference dictates whether you should pursue a ULP or a negotiability whether you should pursue a ULP or a negotiability appeal. appeal.

12

THINGS TO BE AWARE OF IN BARGAINING, CONT’D – THINGS TO BE AWARE OF IN BARGAINING, CONT’D –

“COVERED BY” “COVERED BY” A party is not required to bargain over matters contained A party is not required to bargain over matters contained

in or covered by an existing agreement. in or covered by an existing agreement. The test for whether a matter is covered by an existing The test for whether a matter is covered by an existing

agreement has 2 prongs: Is the subject agreement has 2 prongs: Is the subject “expressly “expressly contained” contained” in the agreement; or is the matter in the agreement; or is the matter “inseparably bound up with and plainly an aspect “inseparably bound up with and plainly an aspect of” of” something in the agreement?” something in the agreement?” SSA, Balt.SSA, Balt., 47 FLRA , 47 FLRA 1004 (1993). 1004 (1993).

This test applies both changes in conditions of This test applies both changes in conditions of employment and to the negotiability of specific U employment and to the negotiability of specific U proposalsproposals

13

THINGS TO BE AWARE OF IN BARGAININGTHINGS TO BE AWARE OF IN BARGAININGCOVERED BY, CONT’DCOVERED BY, CONT’D

2 new decisions on “covered by.” 2 new decisions on “covered by.” NFFE, Fed. District 1, Local 1998, IAMAW and Dep’t of NFFE, Fed. District 1, Local 1998, IAMAW and Dep’t of

State, Passport Svcs, Wash., DC State, Passport Svcs, Wash., DC 66 FLRA No. 26 (Sept. 66 FLRA No. 26 (Sept. 20, 2011) – on negotiability appeal, holding that U 20, 2011) – on negotiability appeal, holding that U proposals re office space were not “covered by” because proposals re office space were not “covered by” because matter was not “expressly contained in the CBA and, as matter was not “expressly contained in the CBA and, as to the second prong of “covered by,” no barg history or to the second prong of “covered by,” no barg history or other evidence that matter was inseparably bound up other evidence that matter was inseparably bound up with matters expressly covered in CBA.with matters expressly covered in CBA.

NTEU and Dep’t of the Treasury, IRS, Accts Mgmt and NTEU and Dep’t of the Treasury, IRS, Accts Mgmt and Compliance Servs, Wage and Investmts and Small Compliance Servs, Wage and Investmts and Small Bus/Self Employed Div.Bus/Self Employed Div., 66 FLRA No. 35 (Sept 28, , 66 FLRA No. 35 (Sept 28, 2011) – similar analysis in review of arb award.2011) – similar analysis in review of arb award.

14

BYPASSBYPASS

Dealing directly with BUEs on a matter involving Dealing directly with BUEs on a matter involving conditions of employment for which agency has a duty to conditions of employment for which agency has a duty to deal with the U as exclusive representative. deal with the U as exclusive representative. U. S. DOJ, U. S. DOJ, Bureau of Prisons, FCI, Bastrop, TXBureau of Prisons, FCI, Bastrop, TX, 51 FLRA 1339 , 51 FLRA 1339 (1996). Includes encouraging employees to put (1996). Includes encouraging employees to put pressure on U to take a certain course of action. pressure on U to take a certain course of action. USDA, USDA, Food Safety and Insp. Serv.Food Safety and Insp. Serv., 59 FLRA 68 (2003)., 59 FLRA 68 (2003).

Communicating directly with employees re grievances, Communicating directly with employees re grievances, disciplinary actions and similar matters where agency is disciplinary actions and similar matters where agency is aware U represents the ee (aware U represents the ee (BastropBastrop). This includes ). This includes delivering a decision letter in a disciplinary matter to ee delivering a decision letter in a disciplinary matter to ee where A knows U represents the ee. where A knows U represents the ee. McGuire AFBMcGuire AFB, 28 , 28 FLRA 1112 (1987) (known as a “FLRA 1112 (1987) (known as a “McGuireMcGuire bypass”). bypass”).

15

BYPASS, CONT’DBYPASS, CONT’D

Most recent bypass decision – Most recent bypass decision – SSA, ODAR, SSA, ODAR, Nat’l Hearing Ctr and Assoc. of ALJs, IFPTE, Nat’l Hearing Ctr and Assoc. of ALJs, IFPTE, 66 66 FLRA No. 36 (Sept. 28, 2011) – Agency FLRA No. 36 (Sept. 28, 2011) – Agency committed a ULP by sending unit employees a committed a ULP by sending unit employees a job solicitation for supervisory positions at a new job solicitation for supervisory positions at a new National Hearing Center after agreeing to meet National Hearing Center after agreeing to meet with union to meet to discuss the opening of the with union to meet to discuss the opening of the Center. Center.

16

WIND UP AND QUESTIONSWIND UP AND QUESTIONS

Barbara KraftBarbara Kraft

Regional Director, Washington Regional OfficeRegional Director, Washington Regional Office

Federal Labor Relations AuthorityFederal Labor Relations Authority

1400 K St., NW, Room 2201400 K St., NW, Room 220

Washington, DC 20424Washington, DC 20424

(202) 357-6029, ext. 6018(202) 357-6029, ext. 6018bkraft@flra.gov

www.flra.govwww.flra.gov

17