I. HOW TO FILE AN UNFAIR LABOR PRACTICE CHARGE
A. What is an unfair labor practice charge.
An unfair labor practice charge (ULP) is an allegation that an agency (or a union) has violated one or more subsections of 5 USC Section 7116(a).
B. Who can file a charge?
Any individual, labor organization or agency can file a charge. An individual filing charges on behalf of the union must be authorized by the union to file charges.
C. When do you file a charge?
The time limit for filing an unfair labor practice charge (ULP) is six months, and it must be received in the appropriate regional office of the Federal Labor Relations Authority (FLRA) before the time limit expires. The postmark date means nothing; the time limits keep running until the charge is in the FLRA’s hands. By law, this six month time limit cannot be extended. A charge can be delivered in person, by regular mail, by certified mail, or by commercial delivery (such as UPS or Fedex), or by fax. However, if the charge is filed by fax, it cannot exceed two pages. If you file the charge by fax, do not send another copy by mail. It just confuses the heck out of the FLRA Regional Office, and sometimes the same case ends up with two case numbers!
D. How do you file a charge?
The charge must be filed on an FLRA Form 22. A letter is not sufficient. You can get a copy of FLRA form 22 from the FLRA’s website at www.flra.gov. If your Local subscribes to LRP cyberfeds they also have a copy under “forms”. There is another copy in this training material, but the one on the FLRA website allows you to fill in the blanks and print it out. Of course, if you don’t have computer access you can always get a copy by calling your friendly FLRA office and asking them to fax or mail you a copy.
Once the form is filled out, you should file an original and four copies with the appropriate FLRA Regional Office. (If you are filing by fax, just send one copy). Don’t know the address or telephone number of the appropriate FLRA regional office? Just look at the Rules and Regulations of the FLRA which can be found at 5 CFR Chapter XIV, Appendix A. (The appendix is immediately after 5 CFR part 2473, at the end of the Authority regulations). You can find these regulations in pretty much all the same places that you found the FLRA Form 22.
You are also required to serve one copy of the charge (but not any other documents) on the “Charged Party” — meaning the agency. This can be done by mail, fax, or personal delivery.
E. Who should the charge be filed against? (Question 1 on the form)
Generally, this will be the U.S. Department of Justice, Immigration and Naturalization Service, Washington D.C. The INS, Washington D.C. is the organization with which we have a bargaining relationship. Also, any Sector or Regional management are a part of the national agency, so by listing the charged party as the national, you automatically include all local management officials. Then in Question 3, activity or agency contact information, you have the option of listing the Regional or Sector management, if that’s where the particular charge arose. Please note that ULP charges can never be filed against an individual, only against an agency.
F. What sections of the Statute should be cited? (Question 5 on the form)
The answer to this question depends on the type of charge. Unfair labor practices by management are listed in 5 U.S.C. ‘ 7116(a) 1 through 8. All charges automatically involve a violation of subsection 1, and that subsection is printed on the FLRA’s form. Threats or intimidation because of union activities are subsection 1. Actual retaliation because of Union activity (as opposed to merely threatening) involves subsection 2. Any charges having to do with bargaining are a violation of subsection 5. A refusal to provide information or charges concerning formal discussions are violations of subsections 5 and 8. Charges concerning investigatory interviews are violations of subsection 8.
If you can’t figure out the proper subsection(s) to cite, either talk to someone who can help you (by calling your Local Union officers, or calling the local FLRA office and asking for assistance), or list all the subsections 1 through 8. The FLRA agents aren’t particularly fond of that, but it protects your time limits, and you can later file a partial withdrawal to take out the incorrect subsections.
G. What do I put in the big box for the basis of the charge (Question 6 on the form)?
Give a clear and very brief statement of the facts constituting the ULP, and the date and place of occurrence if you know them. You do not need to name employees in the charge, but it is okay to name supervisors. This is normally no more than one or two sentences. The idea is to provide enough detail so that management knows what they are accused of doing wrong when they read it. Save the details for the investigation process.
Example 1: In May 2001 management at the Tucson Sector implemented a new sector policy on tardiness without first completing bargaining with the union. {because of the way it is phrased, it is obvious in this example that the sector gave the Local notice, and the parties discussed this on at least one and maybe more occasions. But one sentence is all you need for the charge form. The details will be necessary for the investigation}
Example 2: On June 24, 2001 the union submitted a request for information to the Western Regional Office regarding a selection to a Criminal Investigator position in San Diego, California. On July 10, Western Regional Labor Relations Specialist Ima Creep requested additional clarification of the union’s particularized need. On July 21, the Union responded in writing. The agency has failed to respond or to provide the information. {you needn’t list all the information requested, or what the union said to clarify the original request. In fact, there may be other letters back and forth, or verbal conversations in which the union rep asked when the material was coming. Remember, all you have to do is provide enough information that everyone knows what the case is going to be about. If you just said “management failed to provide requested information to the union”, the charge would be rejected as too vague.
NEVER say “see attached” and attach other documents to the ULP charge form. You will provide the documents to the investigator once one is assigned, but DON’T attach them to the charge itself.
H. Why does the Form 22 ask about other procedures (Question 7)?
Some matters have the potential to be filed as a grievance, a formal EEO complaint, a ULP, or in some other statutory appeal, such as MSPB. 5 U.S.C. 7116(d) and 7121(d) requires that an individual or Union may file one of these types of appeals, but never more than one. In other words, you can’t file both a grievance and an unfair labor practice over the same issue; or both a grievance and an MSPB or EEOC appeal.
There is a two part test involved:
1. Is the subject matter of the grievance the same as the subject matter of the other appeal? You must look at the factual basis, the legal theory, and the aggrieved party.
2. If they are all the same, then First In Time Rule applies: the first appeal filed controls, even if the party realizes it’s a mistake and tries to withdraw it the next day to use a different appeal.
Note that the time limit for filing a grievance is thirty days, and the time limit for filing a ULP is six months. So take a few days or a week to figure out which is the most appropriate place to file your complaint. You only get one shot, and the first one filed is the only one that counts!
BUT if the matter is filed as both a ULP and a statutory appeal, the test is different.
1. If the factual basis for the ULP and the statutory appeal is the same, and
2. the legal theory supporting the ULP could have been raised in the other appeal;
then the FLRA will decline jurisdiction and dismiss the charge, even if the ULP was filed first in time! Small Business Administration, Washington, D.C. and Robert Wildberger, 51 FLRA 413 (1995).
I. What happens after the charge is filed?
As soon as the charge has been filed, you will receive a form letter telling you the name and telephone number of the Authority agent assigned to your case, and asking for any proof you have to support the allegations in the charge. The Union (not management) has the obligation to provide all documents, witnesses and any other necessary evidence. Figure out what you will need to provide the necessary evidence. Collect any documents, have the names and telephone numbers of witnesses. Be prepared! Some specific situations:
1.a(1) threats: make the employee write down what was said as soon as the person tells you about it. Have the employee include place, time of day, and who else was present (if anyone). Be sure they write down the statements as precisely as possible, verbatim if they can remember the exact words. Then have the employee sign and date this account. (This statement preserves the employees memory, because things may start to fade before the FLRA starts their formal investigation. Also, it has a lot of credibility because it is nearly a contemporaneous statement.)
2.(a)(5) bargaining charges: you will need to provide a copy of any notice you received, the Union’s demand to bargain, all proposals submitted, at least a summary record of what meetings were held and what agreements the parties reached, any notice of the implementation date, and the Union’s contact to the FMCS or FSIP for assistance. Finally, you or other witnesses you provide to the FLRA investigator will have to explain how this change impacts employees.
Refusal to allow union representation during an investigation: The witnesses will be the employee who was being questioned and the union representative involved.
J. The Intervention Policy
Under the FLRA’s current Intervention Policy, if the FLRA Regional Office thinks the case is appropriate, they can suggest formal intervention, which is similar to mediation. Both parties must agree to participate; there is no penalty for declining. The FLRA Region is supposed to try to use a different person for the settlement, someone other than the employee who will actually investigate the charge if the intervention is unsuccessful. See section 2423.2(b) of the regulations.
K. The Actual Investigation
When giving an affidavit, if important details are left out, insist that they be included. You have the right to refuse to sign anything that is incomplete or inaccurate. If the affidavit is taken over the telephone and mailed to you, rewrite it if it is not sufficient. This happens a lot more often than it should. No one is going to look out for your charge except you; if the investigator is trying to work fast and missing the important points, you have to straighten them out.
L. Dismissals
1. If the Regional office decides there is not enough evidence to issue a complaint, the investigator will call up the Charging Party, explain in a few sentences the reasons for their decision to drop the case, and ask you whether you want a dismissal letter, or whether you would rather withdraw the charge.
a. If the charge is withdrawn, management is notified of the fact that the case has been withdrawn, but they are not told the reasons why. (It will be obvious to management that the FLRA was going to drop the case, but management doesn’t know the exact reasons for the FLRA decision. Sometimes this can be real important.)
b. If you disagree with the FLRA and you want to appeal the dismissal of the charge, you must take a dismissal letter. The dismissal letter will spell out the reasons why the FLRA Regional Office is dropping the case, and a copy of the dismissal letter goes to management.
2. You must decide whether to withdraw or take a dismissal letter based on the facts of the individual case. It all depends on the circumstances; there is no automatic advantage of one over the other.
M. Grounds For Appealing A Dismissal.
There are five, and only five, bases for granting an appeal. You must fit your case within one of these five, or the dismissal of your charge will be upheld:
1. The Region did not consider material facts. You must state the facts, and what evidence supports those facts (the testimony of a particular witness, for example, or a specific letter), and explain how those facts would result in finding a ULP.
2. The Region’s decision is based on a fact that is clearly erroneous. You must identify the erroneous fact, and what evidence establishes it is clearly erroneous, and then explain how a different factual finding would have resulted in finding a ULP. An example would be where the dismissal is based upon the Union’s failure to timely demand to bargain, when the Union has a letter demanding to bargain in writing within the time limits.
3. The dismissal is based upon an incorrect statement of law. You must explain why the rule of law relied on by the Region is incorrect, and what you think the correct rule of law would be.
4. There is no Authority precedent on the legal issue in the case. You must identify the legal issue you believe is new, and state what rule of law you think should be argued to the Authority. An example of a case where this was used are the cases involving bargaining over 7106(b)(1) management rights after the Executive Order was issued. In order to get the Authority to rule on this issue, the General Counsel’s Office has argued that once a Union has made proposals that fall within (b)(1), [such as numbers of employees assigned to a tour of duty, technology, or methods and means of performing the work] the Executive Order indicates that the President has elected to bargain on behalf of the agencies, and the agencies may not decline.
5. The manner in which the investigation was conducted has resulted in prejudicial error. You must describe the improper manner in which the investigation was conducted, and explain why it was improper, and how it resulted in prejudicial error.
N.Prosecutorial Discretion.
In theory, the FLRA could dismiss a charge even if the violation has been proved, if the FLRA Region decides the case isn’t worth pursuing. The following criteria are supposed to be used to determine whether the FLRA Region should exercise this discretion and dismiss the charge.
a. Nature of the Violation (How serious or trivial is it? Technical violation only?).
b. Harm to the Bargaining Relationship (Degree of harm to the Union as an institution).
c. Harm to Employees (Magnitude of harm to a particular individual or employees generally).
d. Pattern of Conduct (Repeated violations of similar conduct, the level of the individual charged with the ULP, past history of the party).
e. Cure (Has the agency cured the violation, for example by rescinding the policy and voluntarily mitigating any adverse impact). Was the ULP effectively cured?
f. Remedy (Lack of a need for any affirmative remedy).
g. Changed Circumstances (Have circumstances changed which render the dispute moot, or litigation inappropriate?).
h. Precedent (Does the case present a novel issue which could affect an important legal or remedial precedent for future cases?)
If the FLRA office believes that you have proven your case, but it is just too trivial for them to bother with it, they will dismiss based on “prosecutorial discretion”. I am more inclined to take a dismissal letter if this is the reason given for dropping a case, and then appealing the matter.
O.Remedies:
If a complaint is issued, what kinds of remedies will the FLRA seek?
Section 7118(a)(7) provides that remedies can include an order to: (1) cease and desist from any unfair labor practice; (2) require the parties to renegotiate a collective bargaining agreement and that the agreement, as amended, be given retroactive effect; (3) require reinstatement of an employee with back pay in accordance with the Back Pay Act 5 U.S.C. 5596; or (4) any combination of the above, or such other action as will carry out the purpose of the Statute.
II. A FEW OF THE RIGHTS COVERED BY THE FLRA
A. The Right To Be Free From Threats Or Retaliation Because of Union Activity
1. Union activity is not something that only officers of the Union engage in. Union activity can be something as simple as asking to speak to a Union representative, or filing a grievance.
2. Threats are covered by section 7116(a)(1) C but note section 7116(e) which covers personal opinions which are not threatening. Section 7116(e) says the expression of any personal opinion or view shall not be illegal if it contains no threat of reprisal. If a supervisor is sitting at a lunch table with a couple of employees and, in the course of a conversation says he doesn’t really think Unions are a good idea, that comment would fall under 7116(e) and is not illegal. If the same supervisor tells an employee if she files that grievance, she’ll never get another day shift assignment, that is a threat.
3. Retaliation is covered by 7116(a)(2) or (4). The Agency may not discriminate against employees because of their Union activities in any aspect of their employment, including promotion or work assignments. The Union must be prepared to show that if it weren’t for the Union activity, the individual would have received the work assignment or promotion or team award or whatever.
$ In U.S. Geological Survey, Caribbean District Office, San Juan, Puerto Rico, and AFGE, 50 FLRA 548 (1995), the agency called a meeting with the Union to inform the Union it was going to lay off five of the fifteen temporary employees due to budget problems. The Union indicated that it would file a ULP because three of the five chosen for layoff were Union organizers. Management took a ten minute caucus, then announced it would terminate all fifteen instead. The Authority found the termination of the additional ten employees was in retaliation for the Union’s threat to file a ULP, which is protected activity. Even though they were temporary employees, the Authority ordered ten of them reinstated with backpay.
4. Discipline of Union Officers or Stewards
In general, employees have the right to form, join, or assist a labor organization without fear of penalty or reprisal. 5 U.S.C. section 7102. However, an agency may discipline an employee acting on behalf of a labor organization for flagrant misconduct. Remarks or conduct that are of such an outrageous and subordinate nature as to remove them from the protection of the Statute constitute flagrant misconduct. Factors used to make this determination include: (a) the place and subject matter of the discussion; (b) whether the employee’s outburst was impulsive or designed; (c) whether the outburst was in any way provoked by the employer’s conduct; and (4) the nature of the intemperate language and conduct. Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, MO and NFFE, Local 1827, 17 FLRA 71 (1985), at p. 80. Some examples:
$ Department of the Air Force, Grissom Air Force Base, IN and AFGE, AFL‑CIO, 51 FLRA 7 (1995): Statements by Union’s Vice-President to Labor Relations Officer You can’t be that f—ing stupid, lady … I always knew you was stupid, I knew you was goddamn stupid were not flagrant misconduct, and 14 day suspension overturned.
$ AFGE, National Border Patrol Council and Department of Justice, Immigration and Naturalization Service, El Paso Border Patrol Sector, 44 FLRA 1395 (1992): Grievant calling a supervisor an asshole and a space cadet did not constitute flagrant misconduct.
B. Bypass of Union / Negotiating directly with employees
A bypass occurs when management negotiates directly with employees while ignoring the Union, or when management deals directly with employees to put pressure on the Union. An example of a bypass would be a situation where a supervisor asks employees at a meeting to think of better ways to arrange the work schedule. A couple of employees come up with suggestions, the group discusses the suggestions, and then management implements the idea the most employees favor. In this example, management is negotiating directly with the employees.
1. Questionnaires can be a bypass, but not always. In one case, a questionnaire that only elicited facts (and not opinions) from employees was not a violation. In another case, a poll where employee views and opinions were solicited on soon-to-be-made changes was found to be a violation. The poll was found to put pressure on employees to support a certain type of change.
2. Committees formed by management which include bargaining unit employees may also constitute a bypass which violates the Statute, but again it depends on the circumstances. If the committee was not discussed in advance with the Union, if the employee members of the committee were hand picked by management, and if the committee is discussing working conditions of employees, then the committee may well be illegal. The committee definitely violates the Statute if it can effectively recommend changes to the Agency which are then implemented. In that situation, the committee is acting on behalf of all employees as a replacement for the Union.
3. There are times when the Union may agree with the Agency to form a special committee to look at a particular problem. This type of committee is not illegal.
C. The Union’s Right to be Represented at Formal Discussions
1. Covered in Section 7114(a)(2) of the Statute, or Article 31 of the Agreement. A formal discussion is a meeting which meets certain fairly strict formality requirements. The Agency must give the Union advance notice and an opportunity to be present, and to participate in, a formal discussion. This includes the right to ask questions, but the Union representative may not disrupt or take over the meeting, or raise topics not included in the meeting.
2. Some of the elements of formality include: whether advance notice of the meeting is given to the employees, whether there is a set agenda for the meeting, whether the meeting takes place away from the normal work desks of the employees, whether higher management is involved, whether more than one supervisor or manager is present, and whether attendance is mandatory.
III. BARGAINING UNDER THE FEDERAL SECTOR LABOR LAWS
A. General Considerations
The following are some of the questions the FLRA will ask before deciding whether the Agency committed an unfair labor practice by failing or refusing to bargain:
1. Was there a change at all?
The first question that the FLRA will ask is whether there was any change. This question will be answered on a case by case basis, and may not be as obvious as it appears. For example, the FLRA held, in a case involving INS Inspectors, that using a 4:00 p.m. to midnight shift was not a change. The employees normally worked 3:00 p.m. to 11:00 p.m., but on eight occasions over the last seven years, they had been assigned to work 4:00 p.m. to midnight instead. The Union argued that since the shift had not been used for the past year, the assignment was a change that required notice to the Union. The Authority found that employees were routinely reassigned to different shifts based on anticipated workload, and that the 4:00 p.m. shift was established seven years earlier, and used from time to time. Therefore, there was no change. See U.S. Immigration and Naturalization Service, Houston District, Houston, Texas and American Federation of Government Employees, Local 3332, 50 FLRA 140 (1995); Space Systems Division, LA Air Force Base, 45 FLRA 899 905 (1992); VA Medical Center, Memphis Tennessee, 42 FLRA 712 (1991); and VAMC, Veterans Canteen Service, Lexington, Kentucky, 44 FLRA 179 @ 187 (1992).
2. Did the change affect the working conditions of bargaining unit employees?
a. Management does not have to bargain with the Union on a change that does not affect bargaining unit employees. For example, a change in how supervisors will be evaluated is not considered a change that affects employees. The term conditions of employment is defined in Section 7103 (a)(14) as personnel policies, practices, and matters affecting working conditions. Technically, if the change doesn’t affect conditions of employment, there’s nothing to bargain about, and the case will be dismissed.
3. The de minimis standard.
a. Basically, is this too insignificant to waste time talking about it? If management has a very strong interest in making the change, and there is almost no impact on employees, the change may not be bargainable. The number of employees affected does not determine whether a change is significant or not. A change that has a significant impact on just one employee is bargainable because it has a significant impact.
b. The Authority Agent assigned to your case will ask you how the change will impact employees. You will need to be able to explain this, and don’t assume that anything is obvious. You don’t have to wait until employees are actually affected if you can predict how the change will hurt employees. For example, if the Sector comes up with a new rule saying anyone who is five minutes late will be terminated, you needn’t wait until someone is actually fired before filing a ULP charge. The impact in that case is predictable. To use the Authority’s language, Look at the nature and extent of the reasonably foreseeable effects of the change.
4. Did the Union receive notice of the change?
Was the notice clear and specific as to the nature of the change? The Agency must provide notice which is sufficient to enable the Union to develop bargaining proposals. If the Union needs clarification on aspects of the Agency’s proposed change, the Union should submit a request for information (this topic will be covered separately).
5. Did the Union make a timely demand to bargain?
This is absolutely essential. The responsible Union representative must make a request to bargain, and it must be done on a timely basis. This means when in doubt, make a request to bargain. Under the provisions of the current (1995) Collective Bargaining Agreement, the time limit to respond to proposed changes in conditions of employment at the Local level is 10 calendar days. Develop a simple form to make this easy on yourself. Remember, under the Collective Bargaining Agreement, you must do more than simply say the Union would like to bargain. You must also submit proposals.
6. Is the subject matter covered by the collective bargaining agreement?
This is discussed in Part III-B below. Remember, the covered by test does not apply once the Agreement has expired (see Part III-C below).
7. Did the Union clearly and unmistakably waive its right to negotiate?
Always deny the Union waived its right to negotiate. It is very rare for a Union to waive such a right, although it happens occasionally. Sometimes management will argue that if the Union didn’t bargain on an issue in the past, the Union has waived its right to bargain on that matter for all eternity. This is total nonsense. A waiver only occurs when the Union knowingly gives up a legal right in exchange for something else. Silence is not a waiver.
8. Did the Union submit any negotiable proposals?
a. If the Union submits two proposals and both of them are non-negotiable, then management has met its bargaining obligation. It gave the Union notice and a chance to bargain, but the Union didn’t submit any negotiable proposals. When it comes time to negotiate, the Union must have some negotiable proposals.
b. BUT once the union has submitted a demand to bargain and a group of proposals, the agency must respond to the union. In one of our own cases, INS and National Border Patrol Council, AFGE 56 FLRA 351 (5/5/00) [100 FLRR 1-1092], the Union received a 3A notice of a new policy on body searches of detainees. The Union submitted a group of proposals along with the demand to bargain. INS never bothered to respond, but simply implemented the new policy. When a ULP was filed, their defense was that all of the proposals were not negotiable. The Authority refused to look at the proposals. Instead it held that INS committed a ULP when it failed to respond to the Union. If the Agency had informed the Union that it felt bargaining was completed because the proposals were not negotiable, the union would have had a chance to either modify the proposals, file a negotiability appeal, or seek the assistance of the FSIP. Implementing the new policy without even speaking to the Union was a ULP.
c. Compare this to AFGE Local 48 and Bureau of Indian Affairs, Aberdeen Washington 56 FLRA 59 (2/29/00) [100 FLRR 1-1050]. In that case, management gave an employee written instructions on how to handle correspondence. The union demanded to bargain, and the agency responded with a letter stating that they didn’t believe there was any obligation to bargain, because the change was within its management right to assign work, and any impact was de minimis. Unfortunately, the union then filed a negotiability appeal, which was dismissed because there were no specific proposals to be evaluated, and by then it was too late to file a ULP (the six month time limit was up). What the union should have done was either put a specific proposal on the table, or file a ULP for refusal to bargain.
9. Assuming that the Agency gave notice and met with the Union representative, but the two parties did not reach any agreement:
a. If the Agency wishes to legally implement its proposal, it must give notice that it believes the parties are at impasse, and that it is implementing its last proposal.
b. The Union then has a reasonable amount of time to request the services of the Federal Service Impasses Panel (FSIP). In one case, 12 days was found to be reasonable, and in another, 6 days was held to be reasonable. If the Union has not requested the assistance of the FSIP, then the Agency is free to implement.
c. The Agency may not implement anything beyond its last proposal. If the Agency goes beyond its final proposals in implementing the changes, it has committed an unfair labor practice.
10. Bad Faith Bargaining by an Agency
In addition to a refusal to bargain on a change in working conditions, there are other types of bad faith bargaining violations:
a. Repudiation of an agreement (see part III-E below).
b. Repudiation of a grievance settlement.
c. Unreasonable delays.
d. Failure to respond to a request for information.
B. The Covered By Doctrine
The “Covered By” Doctrine is a management defense to a ULP charging that it has made a unilateral change without bargaining. The doctrine first appeared in U.S. Dept. of Health and Human Services, Social Security Administration, Baltimore, MD 47 FLRA 1004 (1993). As a general rule, if the subject matter is covered by the collective bargaining agreement, the Authority will dismiss the charge. In order to decide whether something is covered by the Agreement, the FLRA will apply the following two part test:
1. Is the subject expressly contained in the Agreement?
a. If the subject is already in the Agreement, the union doesn’t get to bargain about it again until the next round of contract negotiations, even if you just thought of a really great proposal that isn’t in the contract. For example, if you want to bargain on travel and per diem, and there is a contract section covering travel and per diem (Article 26), the subject is expressly contained in the Agreement, and there is no further right to bargain. The Union has already had the opportunity to bargain, and the agreed upon terms are in the Agreement. You have to live with the terms contained in the Agreement until a new contract is bargained and put into effect.
b. This rule applies regardless of whether the Union is proposing to bargain on something, or management is proposing changes. Both sides must adhere to the Agreement. For example, if management proposes requiring employees to submit vouchers within 48 hours of a trip, the Union may refuse to bargain because the subject is covered by the Agreement.
2. Is the subject inseparably bound up with or plainly an aspect of a subject covered by the Agreement?
a. In general, the language of the contract will help determine whether a matter is plainly an aspect of a contract section. In looking at the contract language, look at whether the topic in dispute is obviously part of something included in the contract.
b. Should the parties “have reasonably contemplated that the agreement would foreclose further bargaining over the matter? Recently the Authority has clarified that intent is another aspect of this second part of the test. (For a while, it was regarded as a separate, third part of the test). If the parties meant for the contract language to take care of a particular situation, then it’s “plainly an aspect of” a subject covered by the contract. To evaluate intent, the FLRA and the courts will look at the bargaining history, and the expressed intentions of the negotiators at the bargaining table, as well as the words of the Agreement itself.
c. Some examples: (i) In Navy Resale Activity, Naval Station, Charleston, SC and Federal Employees Metal Trades Council of Charleston, 49 FLRA 994 (1994), the parties’ agreement had a provision addressing changes in work schedules, and required seven days notice to an employee before changing their scheduled hours. The agency reduced the work hours of all employees by about ten percent. The FLRA found that while the agreement did not explicitly address the question of an across-the-board reduction in hours, that topic was “inseparably bound up with and . . . plainly an aspect of the agreement provision dealing with changes in work schedules.
(ii) The new cases which clarified and changed the test for the covered by doctrine are U.S. Customs Service, Customs Management Center, Miami, FL and NTEU, Chapter 137 56 FLRA No. 136 (9/29/00) [101 FLRR 1-1019]; and U.S. Department of the Treasury, Internal Revenue Service and NTEU 56 FLRA No. 151 (9/29/00); [101 FLRR 1-1034]. In the Internal Revenue Service case, Article 15 of the National Agreement addressed Reassignments, which were defined as either a change in duties/position or a move to a different commuting area. The Agency moved nine employees from one floor to another floor of the same office building, with no change in job duties. When the union demanded to bargain, the agency refused, claiming that it was covered by Article 15. The Authority had no trouble finding that a office relocation was not “plainly as aspect of” Article 15, and rejected the agency’s assertions that the parties intended office relocations to be covered by that Article.
(iii) It has been predicted that the change in the covered by test will make it harder for agencies to prove a matter is covered by an agreement, and easier for unions to prove an unfair labor practice, because intent is no longer a separate ground for finding a matter covered by the agreement, but instead is part of the second prong of the test.
3. If a subject is only tangentially (slightly) related to the provisions of the contract section, then the Authority will not regard it as covered by the Agreement, and the Union has the right to bargain. For example, in Social Security Administration, Area IX of Region IX and AFGE, Council 147, 51 FLRA 357 (1995), details of up to 120 days outside the commuting area were NOT “covered by the agreement, because the contract article was explicitly limited to details of 30 days or less inside the commuting area.
When a subject is spelled out in the contract, it falls within the first prong of the test (#1 above). As a practical matter, the problems arise when a subject is not spelled out in the contract. Management will point out whatever related provisions they can find, and insist the subject is inseparably bound up with a contract provision, or that the Union should have understood that the Agreement would foreclose further bargaining (the second part of the test above). In that situation, your job as a Union representative is to argue that the matter is only “tangentially related” to the contract provisions.
4. Covered by is a defense to a refusal to bargain ULP. For example, the Union files a ULP saying either the Agency made a unilateral change, or the Agency refused to bargain on a Union proposal. Management then defends its actions by saying it had no duty to bargain because the matter is covered by the Agreement.
a. The Agency’s interpretation of the Agreement does not have to be right. The ULP will still be dismissed, and the Union will have to take a grievance to arbitration to get a ruling on the meaning of the Agreement.
b. The Agency need only show that the general subject matter is covered by the Agreement, not the specific details of the disputed proposal.
c. The Agency does not have a duty to tell the Union it is relying on the covered by doctrine when it refuses to bargain. But the Authority has also said (in the same case) that an agency cannot engage in deceptive bad faith practices. So make the Agency tell you why they aren’t bargaining.
(i). Never ask management if they think something is covered by the contract. They will always say it is. Instead, ask them why they aren’t bargaining.
(ii). If management gives you a reason why and doesn’t mention that they think its covered by the contract, then you can argue they have engaged in deceptive bad faith practices if they try to argue the covered by defense after you have filed the ULP charge.
C. Expired Agreements
1. The FLRA has yet to rule on this issue, but the General Counsel of the FLRA has published the following theory, which is binding on all FLRA Regional Offices in prosecuting cases:
a. The covered by doctrine no longer applies after an agreement expires. There is a different test, which is related but not the same.
This distinction is important, because before the 1995 agreement was signed, the Agency was regularly using the covered by doctrine as its excuse for not bargaining.
b. Under the General Counsel’s theory, there is a different standard for expired contracts:
(1) No changes in past practices can be made without first bargaining and reaching agreement with the other party.
(2) All contract terms covering conditions of employment are automatically considered past practices, and those terms must continue to be followed.
(3) Permissive subjects of bargaining which are included in the contract can be rejected by either party at any time by simply giving notice to the other that they do not intend to follow those contract provisions any longer.
i.Portions of Articles 3 and 3A (designating various levels of bargaining) are permissive. But last time around, neither party rejected those provisions, so they stayed in effect.
ii.Anything covered by Section 7106(b)(1) is also permissive. This includes agreements on the numbers, types, and grades of employees assigned to a tour of duty or a particular organizational subdivision; and provisions on the technology, methods and means of performing work.
c. How does this differ from the covered by doctrine?
(1) Remember the two part test (Section III-B above)? When a contract has expired, only the first part stays in effect. That is, if the subject matter is expressly contained in the Agreement, then there is no obligation to bargain over it even after the contract expires.
(2) The second part of the test are no longer used. If something is not expressly contained in the Agreement language, then management cannot implement a change without bargaining and reaching agreement with the Union.
d. Under the General Counsel’s theory, the FLRA will not consider whether a particular subject is inseparably bound up with or plainly an aspect of a topic covered by the Agreement. Nor will the Authority decide whether the parties reasonably should have understood that the agreement would foreclose further bargaining over a matter. After expiration of the contract, if the subject is not expressly contained in the language of the agreement, it must be bargained before management can change it.
2. Past Practices. A past practice is something which evolves at the workplace, rather than in the Agreement or through agency regulations. A past practice always involves a working condition, and what is actually being practiced in the workplace, not what higher level management has directed, or thinks is being done. An example might be if the agency regulations require an employee to call in every day when sick, but in your Sector, employees are only required to call in every third day.
a. In order for a past practice to become an established condition of employment, which management cannot change without bargaining with the Union, the practice must be consistently followed for a substantial period of time, and known to both parties. If the practice is intermittent, or is too remote in time, then it will not be regarded as an established past practice. Office of Workers Compensation Programs, Boston, MA and AFGE Local 948, 56 FLRA No. 94 (8/31/00), [100 FLRR 1-1136].
b. When the Agency changes a past practice, it must give the Union notice and bargain (if the Union demands bargaining) before changing the past practice, just as it must give notice and bargain before making changes to its written policies. However, management frequently refuses to bargain when changing a past practice, claiming that it is simply enforcing the existing rules. This is a violation of the Statute. Remember, though, that in order to be a past practice, the practice must be known to both management and the Union, and consistently followed. Just because supervisors occasionally look the other way and allow an employee to get away with something does not create a practice.
c. Under FLRA case law, either party can request bargaining to change existing past practices.
1.The duty to bargain exists only at the level of exclusive recognition, unless mutually delegated to a lower level. See Immigration and Naturalization Service, US Border Patrol, Del Rio, TX and AFGE, National Border Patrol Council, Local 2366, 51 FLRA 768 (1996); reconsideration denied 51 FLRA 1561 (1996).
D. Statutory Rights in the Collective Bargaining Agreement:
In general, you can still file an unfair labor practice charge with the Authority if management violates the FLRA’s Statute, even if it is in the CBA. The “Covered By” Doctrine does not generally apply
1. Examples of Statutory Rights included in the NBPC’s 1995 Agreement:
a.Article 4, Section B mirrors the Agency’s management rights under Section 7106 of the Statute
b.Article 4, Section I and Article 31, Sections A and B mirror Union rights under Section 7114(a)(2) of the Statute
2. But what if management tries to claim it is covered by the Agreement?
For example, this could come up if the Union filed a ULP charge claiming that management failed to give the Local an opportunity to be present at a formal discussion meeting, and the Agency defended by saying that under the terms of the parties’ Agreement, it didn’t have to give the Union any notice (even though the law otherwise would have required the notice).
3. The Authority uses a completely different test when statutory rights are involved. It is a two step process:
a. First the Authority will ignore the contract (put on blinders) and determine whether the Agency’s conduct would normally be a ULP.
b. If the Agency’s conduct would normally be a ULP, then the Authority will take off the blinders and look at the Agreement. The Agency must show not just that the subject is included in the Agreement, but also that its interpretation of the language is in fact the correct interpretation.
(1) The Authority in this situation will act just like an arbitrator, and determine the meaning of the Agreement.
(2) If the Agency has acted in accordance with the negotiated Agreement, it will not be found to have violated the Statute. The parties are always free to bargain away rights granted to them by law.
4. How can you distinguish between a contractual right and a statutory right?
a. A statutory right is a right that would exist even if the parties did not have a contract.
(1) An example would be the Union’s right to information under Section 7114(b)(4) of the Statute
(2) Statutory rights are enforceable through the ULP procedure.
b. A contractual right is a right or a condition of employment set out in a negotiated Agreement.
(1) Contractual rights are enforceable through the grievance and arbitration procedures.
(2) Violations of contractual rights are not ULPs. The only exception to this is when the contract violation amounts to a repudiation.
E. Grievances versus ULP Charges
1. In general, if management violates the terms of the Agreement, a grievance must be filed. If management violates the terms of the Statute, a ULP charge can be filed. The only exception to this is where management has decided to repudiate the Agreement. Caution: The FLRA almost never finds a repudiation. If management is violating the contract, file a grievance!
2. Repudiation of the Agreement occurs only when management indicates that it is aware the contract requires them to do something, but they have decided not to honor the contract anymore, and they are going to do something else. The parties must agree on the meaning of the contract language. If there is any dispute, it is not a repudiation. For example, suppose management announced that henceforth, all travelers would be required to submit travel vouchers within 48 hours of the completion of travel. The Union points out that Article 26, sections E and F set out a different time frame, but management indicates that it has decided not to follow those portions of the Agreement anymore, and begins requiring all employees to submit the vouchers within 48 hours.
3. The test for Repudiation:
a. The contract breach must be clear and patent. Look at the nature and the scope of the breach.
b. The nature of the contract section breached must go to the heart of the parties’ agreement.
4. What makes a contract breach clear and patent?
a. Was the contract term ambiguous, or unclear? If there’s any room for interpretation, then it isn’t clear and patent.
b. Was management’s interpretation of the agreement reasonable, or at least plausible?
c. Was management’s interpretation of the agreement a mistake?
Even if management’s interpretation is wrong, and constitutes a breach of the agreement, not all violations of a negotiated Agreement amount to a ULP for repudiation. Most of the time, it’s simply a contract violation, to be remedied through the grievance procedure.
d. Did management disown, reject, or refuse to recognize the validity of the Agreement? If so, it is a repudiation.
5. When does a breach of an Agreement involve the heart of a contract?
a. Was the breach contrary to the agreement’s purpose?
b. Was the matter at issue a significant concern to unit employees?
6. The danger of filing a ULP for repudiation.
a. Most disputes over contract violations are NOT repudiations.
b. Section 7116(d) of the Statute says that a person may file either a grievance or a ULP over the same issue, BUT NOT BOTH.
c. Bottom line: If you file a ULP for repudiation and the charge is dismissed because the FLRA Regional office thinks the evidence shows the Agency violated the contract, but not that they repudiated the contract C you’re out of luck. Section 7116(d) prohibits you from filing a grievance, and the Agency gets away free.
d. Moral of the story: Check with a Council officer before filing a ULP on repudiation. If in doubt, file a grievance.
IV. THE UNION’S RIGHT TO INFORMATION UNDER SECTION 7114(b)(4)
A. The Basic Rules
The law states that an agency must furnish information to authorized Union representatives upon request, to the extent not prohibited by law. This obligation only applies to data:
(A) which is normally maintained by the agency in the regular course of business;
(B) which is reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining.
Some important concepts to remember when requesting information:
1. The right to information is limited to data.
Asking questions like why are you doing this is not a request for data. (However, it might be a legitimate part of the bargaining process.) Data can include computer records or videotapes, for example. It is not limited to paper documents.
2. The data must be normally maintained by the Agency in the regular course of business.
The physical location of documents is not relevant, only that the information is subject to the Agency’s control or can be retrieved and provided to the Agency upon request. Documents maintained by the Office of Inspector General (OIG) are not maintained by INS or the Border Patrol, because INS does not control access to OIG files. (See Department of Justice, Office of the Inspector General, Washington, D.C. and Immigration and Naturalization Service, Border Patrol, El Paso, TX and AFGE, National Border Patrol Council, 45 FLRA 1355 (1992))
3. The data must be reasonably available.
The information must be accessible to the Agency through means not excessive or extreme. Social Security Administration, 36 FLRA 943 (1990) [90 FLRR 1-1439]. Where OPR or OIG determines that allegations are substantiated, a copy of the investigation, with attached exhibits, is released to INS. Where INS provided the Union with a copy of the investigation report, but not the exhibits, a violation was found because the exhibits were reasonably available to INS from OIG. (See DOJ, Washington, DC and I&NS, Northern Region, Twin Cities, MN and OIG, Washington, D.C. and NBPC, AFGE, 46 FLRA 1526 (1993)).
4. If the request is voluminous or burdensome, the Agency may be excused from complying. Look at the expense of compiling the requested data. It must be truly astronomic before the Agency is excused. In addition, if the Agency thinks a request is too burdensome, it must tell the Union, and give the Union an opportunity to modify the request. At one time, this issue was frequently litigated. Now, however, union requests for large amounts of data usually fail to meet the particularized need test (discussed immediately below). See, for example, United States Customs Service, South Central Region, New Orleans District, New Orleans, LA and NTEU, Chapter 168 53 FLRA 789 (1997) [97 FLRR 1-1131].
B. The Concept of Particularized Need
When is information necessary to the Union? If the Union does not show particularized need, it will not receive the information.
This area of the law has changed dramatically since about 1995. In the past, all a Union representative had to do was show that the information was relevant or useful, which would apply to nearly anything the Union asked for, and the FLRA would order the Agency to supply the information. Now the Authority has changed how it looks at information cases.
1. Current use of term particularized need.
a. In order to receive requested data, the Union must state specifically why it needs the information, including the uses to which the Union will put the information and the connection between those uses and the Union’s representational responsibilities under the Statute. The Authority has said that this requirement will not be satisfied merely by showing that requested information is or would be relevant or useful to a Union. Instead, a Union must establish that requested information is required in order for the Union adequately to represent its members. Internal Revenue Service, Washington, D.C., and Internal Revenue Service, Kansas City Service Center, Kansas City, MO and NTEU, Chapter 66, 50 FLRA 661 (1995), at pp. 669-670.
b. The Authority did say that the degree of specificity required of a Union must take into account the fact that, in many cases, the Union may not be aware of the contents of a requested document. In addition, the Authority has held that a Union is not required to reveal its strategies or give the names of potential grievants if they prefer to remain anonymous.
c. The rules of the MSPB or the EEOC do not govern whether the union has shown a particularized need. For example, the MSPB does not allow evidence from other work groups in a different location with different supervisors to be used in a disparate treatment argument. But if a union requests all similar disciplinary actions taken against other employees in the Sector and states that it needs the information in order to show disparate treatment, it has met the particularized need test. Internal Revenue Service, Austin District Office, Austin Texas 51 FLRA 1166 (1996) [96 FLRR 1-1034]. In another case, where the union showed the agency had a nationwide discipline program with a standard table of penalties, and that at least one arbitrator had considered the consistency of discipline among various activities, the union was entitled to the information requested nationally. Federal Bureau of Prisons and AFGE Local 171 55 FLRA 1250 (1/24/00), [100 FLRR 1-1033].
d. In challenging the filling of vacancies, the Authority has held that information concerning the external recruitment process used by an agency to fill vacancies for which bargaining unit employees are eligible is an appropriate subject for an information request. The union had requested sanitized copies of applications, rating and ranking worksheets, the scores of applicants, and the selection certificates. The union’s request referred to the specific vacancy announcements and clearly informed the agency that it needed the information to decide whether the agency had violated merit principles, and also to decide whether to file grievances. The agency refused, claiming external recruitment is outside the scope of the union’s representation duties. The Authority disagreed, and found that the union had met the particularized need test. Health Care Financing Administration and AFGE Local 1923, 56 FLRA 503 (7/26/00), [100 FLRR 1-1121].
e. If the Union is requesting an internal management document, the Union must state why it wants the document, and if the document is not crucial or essential to the Union’s purpose, the Union will not get it. NLRB v. FLRA, 952 F.2d 523 (D.C. Cir. 1992). This is a very heavy burden of proof. Basically, you must show that the Union cannot possibly meet its statutory responsibilities unless it receives the internal management documents.
2. What is the Agency’s duty to respond?
a. The requirements placed upon the Agency in handling Union requests for information have also changed. An agency denying a request for information must assert and establish any countervailing anti-disclosure interests. In the Authority’s words, an agency may not satisfy its burden by making conclusory or bare assertions; its burden extends beyond simply saying no.
b. The most common of the possible countervailing anti-disclosure interests is an assertion that the Privacy Act prohibits disclosure of the requested information to the Union. The Privacy Act will be discussed in greater detail below.
c. All of the defenses which were previously available to an agency faced with a request for information remain valid defenses. The basic outlines of the law have not changed. Thus, for example, when the information is not available or does not exist, the Agency is not obligated to provide the information, but it must tell the Union. Similarly, when the information does not exist in the form in which the Union requested it, the Agency is not obligated to provide it, but must offer to provide the data in some other form.
3. The FLRA is using a sort of interest-based approach to information cases. As a matter of policy, the regional FLRA offices that investigate charges have been told to look at whether the Union made a good faith and reasonable attempt to accommodate an agency’s anti-disclosure interests, or whether the agency made a good faith and reasonable attempt to accommodate the Union’s need for information. If an agency makes a reasonable offer of accommodation, and the Union rejects it, the FLRA Region may dismiss a ULP charge on the grounds that the agency made a valid response. In theory, at least, this works both ways. For example, if the Union makes a reasonable offer to accept sanitized information (in response to the agency’s Privacy Act concerns), and the agency rejects the offer, a ULP complaint should issue.
4. The Authority has indicated that even if the agency has a legitimate reason for not providing the information to the Union, an agency refusal to tell the Union the reasons for nondisclosure of the requested information, or a refusal to discuss with the Union alternative methods to meet both its own and the Union’s interests, is an independent bad faith bargaining violation. In this case, the Union won’t get the information, but the agency will be found to have committed an unfair labor practice in violation of section 7116(a)(5) of the Statute, and will be required to engage in such communication in the future.
5. An unreasonable delay in responding is, in itself, a violation of the Statute. A five month delay is unreasonable and is a violation. (See Department of Justice, Office of Justice Programs and AFSCME, Local 2830, 45 FLRA 1022 (1992))
C. The Privacy Act
The Privacy Act can severely limit the information available to the Union. It is now FLRA policy that when a Union files a charge alleging a refusal to provide information, the Region will investigate whether the Privacy Act prohibits releasing the information, even if the agency never raises Privacy Act as a defense. If the FLRA thinks the Privacy Act would prohibit the release of the information, the ULP charge will be dismissed.
1. The Privacy Act prohibits the disclosure of any document concerning a federal employee if it is contained in a system of records and the individual does not consent. 5 U.S.C. ‘ 552a. But there are exceptions.
a. Section (b)(2) says that if disclosure of the information would be required under the Freedom of Information Act (FOIA), then it’s exempt.
b. Section (b)(3) says disclosure is permitted for a routine use, which is defined as a use compatible with the purpose for which it was collected.
Each of these two exceptions will be addressed below.
2. Freedom of Information Act (FOIA) C 5 U.S.C. ‘ 552.
a. FOIA generally holds that information must be disclosed, but in exemption (6), it says that information in personnel files, medical files, and other similar files must be withheld if disclosure of the information would constitute a clearly unwarranted invasion of personal privacy. Information contained in personnel files, medical files, and other similar files may only be released if the public interest in disclosure outweighs the employee’s privacy interests.
b. The United States Supreme Court determined that the only legitimate public interest is the extent to which the requested information would shed light on the agency’s performance of its mission (i.e. its statutory duties as an agency), or otherwise inform the general public of the activities of the Government. The requested documentation must open agency action to the light of public scrutiny. (U.S. Dept. of Justice v. Reporter’s Committee For Freedom of the Press, 489 U.S. 749 (1989))
c. For years after the issuance of this Supreme Court case, the FLRA kept insisting that the public interest in collective bargaining set out in the introduction to the Statute (Section 7101 says that labor organizations and collective bargaining are in the public interest) were sufficient to meet the public interest requirement, and outweighed the individual employee’s privacy interests. After losing a number of court battles, the FLRA in 1995 changed its analysis. See Department of Transportation, Federal Aviation Administration, New York Tracon, Westbury, NY and NATCA, New York Tracon Local, 50 FLRA 338 (1995). Now the Union’s status as the exclusive representative of the employees will be ignored, and a Privacy Act defense will be evaluated as if the Union was a member of the general public.
3. The Routine Use Exception
a. If management responds to a request for information by asserting that the Privacy Act applies, the first thing the Union should do is demand that they identify what system of records contains the requested information. They must identify the system of records. The Privacy Act only applies to information contained within a system of records. The three most common systems of records applying to documents the Union might request are:
OPM/GOVT-1 contains employee personnel folders, including names, home addresses, phone numbers, past work experience, education, training, life insurance, etc.
OPM/GOVT-2 contains employee performance appraisals and awards.
OPM/GOVT-3 contains disciplinary and adverse actions.
b. Even if management identifies the system of records, that is not the end of the inquiry. Remember the exceptions: If certain information is covered by the Privacy Act, disclosure is still permitted for a routine use, which is defined as a use compatible with the purpose for which it was collected.
(i). OPM has listed the routine uses in the Federal Register. See 61 Fed.Reg. 36919 (July 15, 1996). All three of the systems of records listed above include disclosure to labor unions when relevant and necessary as one of the routine uses.
(1) See subsection (j) for OPM/GOVT-1
(2) See subsection (e) for OPM/GOVT-2
(3) See subsection (a) for OPM/GOVT-3
(ii). But watch out! As explained below, OPM’s definition of relevant and necessary is not the same as what the Authority used to call relevant and necessary.
c. According to OPM, information in the above three systems of records is relevant and necessary, and may be disclosed if:
(i). it bears a traceable, logical and significant connection to the purpose to be served; and
(ii). adequate alternative disclosure means or information sources aren’t available to satisfy the Union’s informational needs.
4. The Effect of the Privacy Act On A Local Union’s Request For Information
a. Personal identifiers, such as names or social security numbers, are no longer releasable to the Union unless the employee consents. Since the new Privacy Act test issued in FAA, Westbury, supra, at least 20 Authority decisions involving the Privacy Act have been published. The Authority has not found in a single case that release of unsanitized documents enhances any public interest. In each case, the Authority has found that the public interests that would be served by disclosure of the information could be equally well served by disclosure of sanitized information. See, for example, Department of the Interior, Bureau of Mines, Pittsburgh Research Center and AFGE, Local 1916, 51 FLRA 276 (1995; Department of Transportation, Federal Aviation Administration, Little Rock, AR and NATCA, Local LIT, 51 FLRA 216 (1995); and Department of Justice, Office of Justice Programs and AFSCME, Local 2830, 50 FLRA 472 (1995).
b. If the Local believes it needs unsanitized documents (containing the names of employees), it should be aware of the following:
(i). The Union must meet a separate personalized need test for the personal identifiers. That is, the Local will have to show why it needs the names, the specific uses to which the Local will put the names, and the connection between those uses and the Local’s representational responsibilities. Department of Labor, Washington, D.C. and National Council of Field Labor Locals, AFGE, 51 FLRA 462 (1995).
(ii). The FLRA will not order the release of sanitized information if the Union only requested unsanitized documents. This is a change from the FLRA’s old policy. The Union must communicate to the Agency that it is willing to accept sanitized documents during the give-and-take process the FLRA now requires. In other words, if the Local requests unsanitized documents, and the Agency responds by asserting the Privacy Act prohibits releasing the requested documents (it should also explain why it feels this way), then the Local must tell the Agency it is willing to accommodate the Agency’s concerns by accepting the data in sanitized form. If the Union does not indicate it will accept sanitized data, the FLRA will not consider whether the Agency should have provided the information in sanitized form.
(iii) If the requested documents concern only one employee, it is not possible to sanitize the documents to protect that employee. Even if the Union already knows exactly who the employee is, the Authority has held that the employee still has a privacy interest. Since it is impossible to sanitize the documents to hide the identity of one employee, the Union will be denied the information. See Department of Justice, Federal Correctional Facility, El Reno, Oklahoma 51 FLRA No. 52 (1995).
In one case, an agency threw the Union representative out of a meeting involving settlement negotiations over an employee’s MSPB appeal (the employee did not want the Union to be present). When the Union filed a ULP, the agency defended by saying the Union’s presence was a violation of the Privacy Act, as attendance at the meeting would result in the disclosure of disciplinary matters, and the resulting settlement agreement, all of which is protected by the Privacy Act. But the FLRA correctly held that the Privacy Act protects only records. Moreover, the settlement negotiations meet the definition of a formal discussion, and the Union has a right to be present at all formal discussions. See General Services Administration and AFGE, Local 236, 53 FLRA 925 (1997).
5. Summary:
An agency asserting the Privacy Act bars disclosure must show:
a. that the information sought by the Union is contained in a system of records;
b. that disclosure would implicate employee privacy interests; and
c. the nature and significance of those privacy interests.
If the Agency in a ULP hearing makes this showing, then the Union (or the FLRA attorney handling the hearing) must EITHER :
a. establish that disclosure is permitted for a routine use, as defined by OPM;
OR
b. identify a public interest cognizable under FOIA, and demonstrate how disclosure will serve that public interest. (The public interest in collective bargaining, or the Union’s statutory duties and responsibilities will no longer be considered. Only the extent to which the requested information would shed light on the agency’s performance of its mission, or otherwise inform the general public of the activities of the Government, will be considered.)
V. DEVELOPING NEGOTIABLE PROPOSALS
A. A subject matter is substantively negotiable only if it concerns working conditions of bargaining unit employees and it does not involve any management rights under section 7106(a). If the subject matter is substantively negotiable, the Union can propose that the change not be made, or the Union can propose modifications to the change itself. Conditions of employment are defined in 7106(a)(14).
Example: increasing the price of soft drinks from 50 to 55 cents. (Marine Corps Logistics Base, Barstow, CA and AFGE, Local 1482, 46 FLRA 782 (1992); and 47 FLRA 454 (1993) (same case on reconsideration); see also Department of Veterans Affairs Medical Center, Veterans Canteen Service, Newington, Connecticut and National Association of Government Employees, Local R1‑109, SEIU, AFL‑CIO, 47 FLRA 631 (1993) [increasing the prices in canteen]) Since this is substantively negotiable, the Union could propose that the price of soft drinks be lowered to 45 cents. In fact, the Authority ordered the Agency to lower the price to 45 cents for the same length of time it had raised it to 55 cents. This is the type of bargaining that goes on all the time in the private sector. But for federal employees, very few things are substantively negotiable.
B. Management rights under Section 7106(a) include the right:
1.To determine the mission, budget, organization, number of employees, and internal security practices of the agency
2.To hire, direct, layoff, or discipline employees
3.To assign work, to contract out work, and to determine the personnel by which agency operations shall be conducted
4.To fill positions by making selections from among properly ranked and certified candidates, or from any other appropriate source.
C. If the Agency proposes a change that falls within the area of management rights, the Union still has the right to bargain, but the bargaining is limited to what is generally called impact and implementation. After listing the management rights in section 7106(a), the law goes on in section 7106(b) to say that nothing in the management rights section shall preclude an agency and a Union from bargaining:
1.procedures which management officials of the agency shall observe in exercising any authority under this section, or
2.appropriate arrangements for employees adversely affected by the exercise of any authority under this section by management officials.
D. What does impact and implementation bargaining include?
1. If a change has an impact on employees, or if impact on employees is reasonably foreseeable (predictable), then the Agency must bargain over that impact, even though the subject matter of the change itself is a management right.
2. Impact can be based upon the foreseeable effects of change on family, travel, and/or educational plans. See Veterans Administration Medical Center, Phoenix, AZ and AFGE, Local 2382, 47 FLRA 419 (1993), where a one hour change with one employee’s schedule interfered with the employee’s second job.
E. What are appropriate arrangements under Section 7106(b)(3)?
A proposal that directly interferes with a management right is still negotiable if it qualifies as an appropriate arrangement. To qualify, the proposal: (a) must be intended as an arrangement for employees adversely affected by the exercise of a management right; and (b) must not excessively interfere with the exercise of management’s right. (See AFGE, Local 2612 and Department of the Air Force, Griffiss Air Force Base, Rome Laboratory, Rome, NY, 46 FLRA 578 (1992)) This is often called the excessive interference test.
1. Appropriate arrangements really include more than traditional impact and implementation bargaining. It means you can bargain on things within 7106(a), as long as it’s an appropriate arrangement.
2. If you are asserting that a proposal is an appropriate arrangement, you must clearly communicate this. The FLRA will not find a proposal to be an appropriate arrangement unless the Union makes this assertion.
F. Items negotiable at management’s option under Section 7106(b)(1) and the effect of the new Executive Order:
Section 7106(b)(1) says that an agency may elect to bargain 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.
1. Prior to the enactment of the new Executive Order, this was entirely at the agency’s option; agencies could choose to bargain or not at their whim.
2. Executive Order 12871 of October 1, 1993, requires the head of each agency to negotiate over the subjects set forth in 5 U.S.C. Section 7106(b)(1), and instruct subordinate officials to do the same.
3. It would seem from this language that the Agency no longer has the option of refusing to bargain on these items, but the Executive Order specifically says it does not create any right to administrative or judicial review, which means that if an agency ignores it, the Union cannot go to the FLRA or to court to enforce the Executive Order.
4. If local management (at the Sector level, for example) bargains on a matter that is permissive under section 7106(b)(1) then that discretion to bargain cannot be disapproved by an agency head when the agreement is submitted for agency head review under section 7114(c). See NAGE, Local R4‑75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA 56 (1986) at p. 62. The agency head can only disapprove provisions that are outside the duty to bargain (contract provisions that are illegal).
