The Chronicles of LR

Installment 34

The Collective

Bargaining Process

In-Depth

Part 5

 

The bargaining process

Beginning to end

 

 

Hello NWP Members and Reps;

 

Welcome to LR Chronicles number 35.  Thus far, I have discussed the various federal laws that cover collective bargaining in the federal sector, when and why bargaining is required, as well as the law that covers management rights and how those rights apply to collective bargaining.  I have also briefly discussed Union-initiated bargaining in accordance with Article 7 of the collective bargaining agreement.  In this, as well as the next edition, I will explain the logical order of the process of collective bargaining from beginning to end.

 

The vast majority of this explanation will be general in nature regarding changes to conditions of employment, rather than specific in nature as it would apply to the basic watch schedule and/or annual leave negotiations.  Although I will cover those specific negotiations at the local level, it is very important to understand the process as it applies to general changes in working conditions.  The process, as outlined below and in the next edition, is a step-by-step process that is a long-standing practice that has been in effect between NATCA and the FAA.  This process is supported by our CBA as well as arbitration decisions and FLRA case law.  Notwithstanding the differences between our CBA and the FAA’s white book regarding bargaining below the level of exclusive recognition, the FAA MUST be taken to task and held responsible for inappropriate conduct as it relates to bad faith bargaining.  If there are any issues with the FAA’s conduct in your local negotiations, you need to immediately contact your RVP or Regional LR Lead.

 

Notice of proposed changes and duty to bargain:

 

Should the FAA contemplate any change to working conditions or other conditions of employment, it is incumbent upon them to notify NATCA.  Typically, this notification needs to be in the form of a letter to the Union stating that they intend to make a change in personnel policies, practices and matters affecting working conditions.  Additionally, this notice should address what the change is as well as the time frame for implementation of the change.  The time frame for ALL changes to working conditions regarding NATCA and the FAA is not less than thirty (30) days.  This requirement is contained within Article 7 of both the CBA as well as the FAA’s white book.  Once the thirty (30) day notice is received, the timeline starts for the Union to respond.  Both the CBA and the white book state that the Union has fifteen (15) days in which to respond to a notice of proposed change.

 

However, as discussed in a previous edition, there is a difference between the CBA and the white book regarding from what level this notice shall be served.  As you will recall, the white book states that all bargaining, except for those issues to which they have agreed otherwise, shall be at the national level.  Therefore, be prepared to not receive a notice, unless the change is regarding any issue for which they have agreed to bargain below the level of exclusive recognition.  Even then, it has been the practice of the FAA, in the last 3 years to not even bother to serve notice at any level regarding negotiable changes.

 

Response to the notice of proposed change, should you receive one:

 

Should you receive a notice of proposed change, then all timelines as contained in Article 7 officially begin.  As you will notice, the fifteen (15) day response time is from the “receipt” of the notice and NOT the date of the notice.  This response to a notice of proposed change is strictly to request a meeting regarding the change.  If you do request a meeting, then in accordance with Article 7, the meeting shall be held within ten (10) days of the Union’s request.  This meeting is conducted so that both parties’ can review the proposed changes.  The Agency will be purposely covert in their initial notice.  Therefore, it is incumbent upon you to request the meeting in order to be fully and completely briefed as to the extent of the proposed change, as well as to ask any clarifying questions should you not have a full and complete understanding of the proposed change.  If the Agency cannot give you satisfactory answers to your questions, then you have a right to receive those satisfactory answers.  There is a process to follow should you not completely understand the FAA’s proposed changes. 

 

Below, is a sample response to a notice of proposed change should you receive that appropriate notice.  I highly suggest that you use similar language when requesting a meeting regarding any proposed change for which you receive notice.  This also may be done via email instead of formal letter if you prefer.  The response should include the name of the ATM (or whomever sent you the notice of proposed change), as well as the address of the facility.  I also suggest that you either hand-deliver the response, or fax it with a return receipt.  If it is hand-delivered, you need to have them sign for it as well as the date/time they signed.  Another option is to send it to them via certified mail, return receipt requested, which costs additional monies.  Regardless of the method that you choose to disseminate, the response should be addressed to your ATM:

 

I am in receipt of your notice of proposed change to working conditions and/or other conditions of employment, dated May 17, 2009, which I received on May 21, 2009.  These contemplated changes, as you know, directly impact the working conditions of bargaining unit employees that I represent.  As per Article 7 of the collective bargaining agreement, the Union requests a meeting in order to discuss these proposed change(s) so that the Union may fully and completely understand the extent of these proposed changes.  I, as the local Union representative, reserve the right to request the initiation of formal bargaining over all negotiable matters related to this issue.  In the interim, NATCA Local XXX requests that the Agency cease and desist from any actions regarding this matter, and I further request that the Agency shall not make any changes to working conditions, other conditions of employment, or practices until this requested meeting takes place and bargaining is complete.  Please contact me at your earliest convenience in order to schedule the requisite meeting.

 

Should you not receive a timely response to this letter, it is incumbent upon you to elevate the issue as appropriate.  All timelines contained in Article 7 will continue to run unless you request and receive agreement from the agency to hold those timelines in abeyance pending their response to this letter.  One tactic that is often used is to agree to a specific date or time frame (i.e. thirty days from receipt of all follow-up information) for the submission of a proposal at the end of the briefing.

 

Should you become aware of a change and you receive no notice from management:

 

This is the scenario that has repeatedly occurred since the FAA imposed their own rules on September 3, 2006.  There is a process that the NATCA National Office has developed for this exact scenario.  Should you become aware of local management making changes to working conditions or other conditions of employment, simply notify your RVP or Regional LR Lead.  Included in this notification, you need to clearly explain what the change is, what the previous practice was, and how it affects the bargaining unit employees of your facility.  The RVP or Regional LR Lead will notify the NATCA National Office and they will, in turn, send a letter to the FAA at the national level requesting a briefing under Article 7.  The notification to your RVP or Regional LR Lead needs to be done AS SOON AS you become aware of the offending change due to the timelines as outlined in Article 7.  The NATCA National Office, in their letter to FAA HQ, will name you (or your designee) as the point of contact (POC) for the issue.  Therefore, be sure to include all of your contact information, or that of your designee, when notifying your RVP or Regional LR Lead.

 

Additionally, you need to place local management on notice to not make any changes until formal bargaining is complete.  Below is a sample letter to send to your ATM:

 

NATCA Local XXX has recently become aware of the Agency’s plan to (state change here).  This planned change directly impacts bargaining unit employees that I represent.  As such, I request a full briefing regarding this matter.  I also reserve the right to request formal bargaining over all negotiable matters related to this issue.  In the interim, NATCA Local XXX expects the Agency will cease and desist from any actions regarding this matter and will not make any changes to current policies, practices or working conditions until a satisfactory briefing has been provided and bargaining is complete.  Please contact me at your earliest convenience to discuss this matter.

 

Full and complete briefing regarding proposed change OR lack of notification regarding any proposed change:

 

Regardless of whether or not you receive a notice of proposed change, the next step is that you receive the briefing that you requested.  Of course, the FAA being the FAA, more likely than not, will not offer a briefing.  Should the FAA not offer to brief the Union then again, you need to contact your RVP or your Regional LR Lead so that they can elevate the issue above the facility level.  Additionally, you need to file a grievance within twenty (20) calendar days of the denial to provide a briefing or within twenty (20) calendar days of no response to your request for the briefing.  This will allow elevation to arbitration should the RVP or Regional LR Lead not be successful in rectifying the situation to the district or service area level.

 

However, if the Agency offers a briefing at the local level, this shall be held within ten (10) days of the Union’s request, unless you agree to extend that time frame.  At the briefing, the Agency should expand on their initial notification to you (if you received one).  If they do not, then it is incumbent upon you to ask clarifying questions in order so that you may have a full and complete understanding of the change in order for you to properly prepare your proposals.  If you do ask any clarifying questions and the Agency does not provide satisfactory answers to your questions, you need to submit these questions to the ATM (or whomever gave you the briefing) and request, in writing, written responses to each and every question.  Along with the clarifying questions, it is a very good practice to request an extension of timelines in which to submit proposals.  As per Article 7, the Union has thirty (30) days, from receipt of the original notice, in order to submit written proposals.  Therefore, your timeline to submit written proposals begins from RECEIPT of the original notice.  This is, of course even if you received an original notice.  Otherwise, the timeline starts from the time that the Union became aware of the proposed change.  If you did receive a notice of proposed change, I would suggest that you request an extension of timelines or submit proposals, ONLY after you have received a briefing and/or you are satisfied that the briefing you received was full and complete and you fully understand the proposed change.  Otherwise, elevate the issue to your RVP or Regional LR Lead and let them handle the issue.

 

Regardless of whether you request a briefing or an extension of timelines for which to submit proposals, you MUST receive an answer from the Agency, IN WRITING.  You must remember that any “request” must be acknowledged in writing from the Agency, or it was NEVER granted!  Should you not receive a response, in writing, from the Agency, please contact your RVP or Regional LR Lead for appropriate guidance.  Lastly, should you not be able to rectify any alleged lack of notice or opportunity to bargain a proposed change in working conditions, file a grievance. 

 

Documentation:

 

It is VERY highly recommended that any and all communication regarding any facet of the bargaining process be in written form.  Although documentation is very important, regardless of what we do as a NATCA representative, it is extremely important in negotiations.  The reason being that more likely than not, any breakdown in negotiations will end up before a third party.  As I have said before in many editions of the LR Chronicles, as well as in classes that are taught in the NWP, you NEVER want to end up in a “he said/she said” scenario.  You want YOUR version of events to be the DOCUMENTED as well as the CORRECT version.  This is especially true concerning issues that arise before a third party.  Please document EVERYTHING!!

 

Submission of Proposals:

 

Once it has been determined that there is a change to conditions of employment and that a bargaining obligation exists, it is time to submit bargaining proposals.  Please remember, as stated earlier that bargaining proposals MUST be submitted within thirty (30) days of receipt of the original notice, provided that you received a notice and/or briefing.  If you received neither, you should contact your RVP or Regional LR Lead for guidance on how to proceed.  Also, please remember that this process mainly applies to a “statutory” obligation to bargain rather than a “contractual” obligation to bargain.  The “contractual” obligation to negotiate the BWS and/or annual leave MOUs take on a different process. 

With respect to bargaining, for the purposes of the LR Chronicles, there are two (2) types of proposals:

 

·       Ground Rules proposals; and

·       Substantive proposals.

 

Ground Rules proposals:

 

Although the specific term “ground rules” are not contained within 5 USC 7106(b)(2) and (3), the FLRA has nonetheless, determined that ground rules are mandatory subjects of bargaining because they concern conditions of employment.  Either party may lawfully insist on reaching a “ground rules” agreement BEFORE beginning substantive bargaining.  This applies to both Term (master CBA) and mid-term (MOUs) bargaining.

 

The authority to conduct ground rules bargaining is contained both within law and our CBA.  5 USC 7114(a)(4) states in part “in addition, the agency and the exclusive representative may determine appropriate techniques, consistent with the provisions of section 7119 of this title, to assist in any negotiation.”  Article 7, Section 8 of our collective bargaining agreement states “nothing in this article is intended to preclude the parties from formulating ground rules for mid-term bargaining issues.”

 

Simply stated, ground rules are agreed upon procedures that regulate the conduct of substantive negotiations.  There are many issues that may be negotiated as part of “ground rules” for substantive negotiations.  Outlined below, are just some issues you should consider when negotiating ground rules: 

 

·       Negotiating team make-up; this is your team.  You are allowed to chose who you want as part of your team as long as that is within the bounds of 5 USC 7131(a); (this is an official time issue)

·       Chief negotiator for each party; this is who is authorized to speak on behalf of each party, as well as the person who has full authority to bind each party to a course of action; (this should be the FACREP or the FACREP’s designee)

·       Mutually agreeable times and places for the conduct of negotiations;

·       Length of each bargaining session;

·       Who may call for a caucus and the length of each caucus;

·       Use of subject matter experts (SMEs), including notification to the other party on the use of SMEs and the official/duty time for Union SMEs; (be sure to include how far in advance notification must be given prior to the use of SMEs)

·       Use of observers; including notification to the other party and the duty status of any observer; (be sure to include how far in advance notification must be given prior to an observer being allowed in the negotiations)

·       When and how will the first substantive proposals be traded; will this be simultaneously or will the Union or management give their proposal first, including any timelines for responding to a proposal.  (see below regarding submitting ground rules and substantive proposals simultaneously)

·       Use of recording devices;

·       Official time for Union negotiators; (5 USC 7131)

·       Impasse and/or mediation procedures; (I will explain this in a future edition of the LR Chronicles)

·       TAU arrangements;

 

There is one very important fact to be considered regarding negotiating ground rules.  In accordance with FLRA case law, ground rules negotiations are designed to “further, not impede” substantive negotiations.  To that end, the FLRA has ruled that ground rules proposals MUST be submitted simultaneously with the Union’s substantive proposals.  Therefore, do not attempt to submit ground rules proposals without your U-1 substantive proposals, thinking that you can delay submission of the substantive proposals.  If you choose to do this, the FAA has no obligation to respond to your ground rules proposals.  However, there is a possibility that the FAA will agree with you to complete ground rules negotiations PRIOR to submitting and bargaining over substantive proposals.  If you reach such an agreement, you MUST obtain that agreement in writing.

 

It is not mandatory to negotiate ground rules.  You may do so if you choose.  However, if one party insists on ground rules negotiations, then it becomes mandatory for both parties.  If you are going to negotiate a relatively major issue that may result in a lengthy MOU, then it may be a good idea to negotiate a ground rules agreement.  Please be aware that “regressive bargaining” as explained in LR Chronicles number 34, applies to ground rules negotiations.

 

Below is some FLRA case law as it applies to ground rules negotiations:

 

·       Ground rules proposals must be designed to further, not impede, the bargaining for which ground rules are proposed.  (36 FLRA 524)

·       The negotiation and use of official time for representational purposes under 5 USC 7131(d) exists as an exception to the right to assign and direct employees.  (51 FLRA 1371)

·       Good faith bargaining extends to all phases of negotiations.  This includes the negotiation of ground rules at the beginning of the process as well as during later stages of bargaining.  (36 FLRA 524)

·       Just as in negotiating a comprehensive labor contract, when notified of a proposed change in practice, the Union has a right to insist upon negotiating a set of written ground rules.  (16 FLRA 602)

 

As you can see from this edition, there are many nuances to the bargaining process depending on how you discover a potential change in working conditions.  Regardless of whether or not you receive a notice of proposed change, it is important for you to contact your RVP or Regional LR Lead in order to receive the appropriate guidance on how to proceed with the issue.  Once again, this bargaining process mainly applies to the statutory obligation to bargain, but it may also apply to the contractual obligation to bargain.  If you ever have a question regarding the difference between the two, please contact your RVP or Regional LR Lead.

 

 

Mike Hull

NWP LR Lead

Installment 33

The Collective

Bargaining Process

In-Depth

Part 4

 

The obligation to

Bargain in good faith

 

 

Hello NWP Members and Reps;

 

Welcome to LR Chronicles number 34.  As discussed in LR Chronicles number 32, the duty to bargain a matter comes with five (5) caveats.  As a review, those caveats are:

 

·       The matter must be a condition of employment as defined in 5 USC 7103(a)(14);

·       The matter must be more than de minimis;

·       The matter cannot already be “covered-by” an existing collective bargaining agreement;

·       The matter cannot conflict with any federal law that applies to NATCA and the FAA; and

·       The matter cannot be inconsistent with a government-wide rule or regulation.

 

Once it has been determined that the FAA has the obligation to bargain a matter with you, they also have an obligation to do so in good faith.  This edition of the LR Chronicles will cover the obligation to bargain in good faith as well as the obligation to negotiate conditions of employment that are established by past practice.  Finally, I will cover what we, as the Union, can do should the FAA abrogate their obligation to bargain in good faith with NATCA.

 

Good Faith Bargaining:

 

Good faith bargaining requires that neither party to a negotiation attempts to intentionally mislead the other party about important matters being negotiated.

 

The duty to bargain in “good faith” is covered in five (5) sections of Title 5, Chapter 71.  Additionally and typical with Chapter 71 laws, the FLRA has issued case law regarding the duty to bargain in good faith.  Some of this case law will be outlined below.

 

The first section that covers the duty to bargain in good faith is 5 USC 7114(a)(4), which states in part “Any agency and any exclusive representative in any appropriate unit of the agency, through appropriate representatives, shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement.”

 

Simply stated, this section of Title 5 requires both NATCA and the FAA to bring representatives to the bargaining table with the authority to bind each respective party to a course of action, and to do so in good faith.

 

Two more sections of Title 5 that cover the duty to bargain in good faith, 5 USC 7116(a)(5) and 5 USC 7116(b)(5), make the refusal to bargain in good faith, an unfair labor practice (ULP).  This applies to an Agency ((a)(5)), and to a Union ((b)(5)).

 

Another section that covers the duty to bargain in good faith is 5 USC 7117(a)(1) which states “Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any federal law or any government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a government-wide rule or regulation.”  (5 USC 7117 covers more requirements regarding the duty to bargain in good faith, but for the purposes of the LR Chronicles, I will not cover the remainder of this provision.)

 

The attachment of the good faith requirement to permissive bargaining in the federal sector is underscored by the wording in 5 USC 7116(a)(5), which connects the good faith requirement to the process of bargaining, in contrast to 5 USC 7117, which addresses good faith in the context of the subject matter.  In other words, permissive topics are not excluded from the parameters of the good faith requirement.

 

This law simply states that any negotiation that takes place between NATCA and the FAA cannot violate any federal law or a rule or regulation that applies to the entire federal government.

 

The final section that I will cover regarding the duty to bargain in good faith is found in 5 USC 7114(b).  This particular section sets out three (3) broad principles governing this obligation.  5 USC 7114(b) states in part “The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation –

(1)to approach the negotiations with a sincere resolve to reach a collective bargaining agreement;

(2)discuss and negotiate on any condition of employment;

(3)to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays;”

 

Simply stated, each party to a negotiation in the federal sector must:

 

·       Approach bargaining with a genuine desire to reach agreement;

·       Send representatives to the negotiations that possess sufficient authority to bind their respective side;

·       Be willing to meet on a reasonable schedule and at convenient places in order to conduct the requisite negotiations; and

·       Not engage in unnecessary or unreasonable delays.

 

In deciding whether a Union or an Agency has breached the good faith bargaining obligation, the FLRA looks at the “totality of the conduct.”  This threshold is directly from FLRA case law which will appear below.  Additionally, the obligation to bargain in good faith extends to permissive subjects of bargaining because these subjects concern conditions of employment.

 

The obligation to bargain in good faith extends to all facets of the negotiations, including:

 

·       Ground Rules;

·       Substantive negotiations;

·       Meeting at reasonable times and convenient places;

·       Signing an agreement reached, if requested to do so by the other party;

·       Participation in mediation proceedings;

·       Participation in impasse proceedings.

 

When confronted with the assertion that a party is not bargaining in good faith, the FLRA attempts to determine the “overall pattern of conduct.”  In other words, they attempt to determine whether or not a party is intent on or at least sincere about reaching agreement. 

 

There is another form of bad faith bargaining that could be attributed to an agency, that being one of “repudiation.”  An agency may be found to have bargained in bad faith if they subsequently “repudiate” a previous agreement or provision.  The definition of repudiation, in accordance with Black’s Law Dictionary is “a contracting party’s words or actions that indicate an intention not to perform the contract in the future; a threshold breach of contract.”  In accordance with FLRA case law, in order for a party to be guilty of repudiation, the intent must be “clear and patent.”

 

One last issue with which you must be aware regarding the duty to bargain in good faith is known as “regressive bargaining.”  Regressive bargaining occurs when a proposal is advanced by a party to a negotiation stating one thing, then at a later time that party advances another proposal which can be construed to be somewhat less than what was offered previously.  The definition of “regress” as per Webster’s dictionary is “to return or revert to a former and usually worse condition.”  For example, when you are negotiating your basic watch schedule MOU, management submits a proposal that states:

 

“There shall be six (6) employees assigned to the day shift, eight (8) employees assigned to the swing shift, and two (2) employees assigned to the midnight shift.”

 

In response to this management proposal, you submit a proposal that states:

 

“There shall be eight (8) employees assigned to the day shift, ten (10) employees assigned to the swing shift, and three (3) employees assigned to the midnight shift.”

 

In response to the above proposal, management submits the following proposal to you:

 

“There shall be four (4) employees assigned to the day shift, six (6) employees assigned to the swing shift, and one (1) employee assigned to the midnight shift.”

 

As you can see, management regressed their previous proposal.  This is an Unfair Labor Practice (ULP) for bargaining in bad faith and should be filed accordingly. If you ever think that the agency is engaging in regressive bargaining, contact your RVP or regional LR Lead.  They will assist you with the best way to handle it.

 

Below is some case law that covers the duty to bargain in good faith:

 

·       The mere fact that implementation of a proposal would require an agency to exercise one or more of its management rights does not, in and of itself, place the matter outside the obligation to bargain.  (38 FLRA 1016)

·       Insisting on taping negotiation sessions, over the objection of the other side is evidence of bad faith.  (52 FLRA 339)

·       Attempting to control the designation of the other party’s bargaining team members as a pre-condition to negotiations is bad faith conduct.  (6 FLRA 439)

·       The “totality of the conduct,” taken together, an unwillingness to meet, inflexibility in discussing proposals and presenting the other side with ultimatums exhibit a lack of good faith bargaining.  (53 FLRA 1006)

·       Simply going “through the motions” does not constitute good faith bargaining.  A party does not act in good faith when it attempts to limit caucus time and refuses to resume negotiations after a break.  (18 FLRA 511)

·       An agency is required to send to the bargaining table representatives vested with the full authority to commit the agency to an agreement.  (23 FLRA 63) (How many times have you heard from management that “I have to check with the region” or “I have to check with HR.”)

·       A series of discussions between a manger and a Union official about the physical layout of a new facility constituted collective bargaining, and consequently, the manager’s refusal to sign an MOU reflecting the parties’ agreement on the issues discussed, constituted bad faith.  (53 FLRA 312) (This is a NATCA and FAA case regarding a new control tower in Louisville, KY.)

·       A finding of repudiation is a finding that the party failed to meet its statutory obligation to bargain in good faith.  (55 FLRA 951)

·       When a breach of an agreement is found to be “clear and patent,” in order to find the party repudiated the agreement, it must be determined that the provision breached goes to the heart of the agreement.  (51 FLRA 858)

·       Insisting that a previously agreed-upon permissive topic of bargaining be retained in a subsequent labor agreement to the point of creating impasse, constitutes bad faith bargaining.  (17 FLRA 221)

 

Past Practice:

 

In addition to working conditions that are established by a CBA, law, or an Agency regulation, working conditions can also be established by a “past practice.”  A past practice is defined as an existing practice, sanctioned by its use and acceptance that is not specifically contained in the CBA.  Additionally, past practices can be enforced through the negotiated grievance procedure because they are considered part of the CBA.

 

In order for a past practice to be enforceable, the practice must be:

 

·       A condition of employment;

·       Legal;

·       Fully recognized and accepted by both the Union and the Agency;

·       In effect for an extended period of time.

 

It is clear, based on FLRA case law, that past practices are NOT contained within a collective bargaining agreement.  Simply stated, a past practice is an existing practice sanctioned by use and acceptance, that is not specifically included in a collective bargaining agreement.  Additionally, Arbitrators may use evidence of past practices to interpret ambiguous contract language.

 

Under FLRA case law, a matter does not ripen into a condition of employment through an extended practice.  The practice itself must be a “condition of employment” for a “past practice” to be established.  Management may not unilaterally alter or otherwise change a past practice without notice to and opportunity to bargain the change in practice.  Even if a past practice has been deemed illegal (a violation of law), an Agency has an obligation to negotiate the cessation of the past practice.  Even if a past practice may violate law or a government-wide rule or regulation, it is required for an agency to provide the Union with the appropriate notice and opportunity to bargain any change in that past practice.  However, if a past practice has been deemed to be illegal, the Union may be limited in what it may negotiate.  The Agency may be allowed to cease the illegal practice and the Parties must negotiate its cessation. 

 

Below is relevant FLRA case law regarding past practices:

 

·       Conditions of employment may be established through unwritten past practices.  (53 FLRA 1228)

·       The mere fact that a matter has been allowed to occur repeatedly over an extended period of time does not render it a condition of employment.  (17 FLRA 890)

·       The provision of bottled drinking water for employees for an extended period of time became a condition of employment through past practice.  (38 FLRA 899)

·       It does not matter whether a working condition is specified in the contract or merely a past practice which has developed over time.  In either case, failure to afford the Union advance notice of an intended change constitutes bad faith bargaining.  (27 FLRA 322)

·       We have specifically held that an agency may not change unilaterally, a condition of employment established through past practice, even if the condition established by the practice differs from the express terms of the parties’ collective bargaining agreement.  (36 FLRA 567) and (39 FLRA 130)

·       The FLRA upheld the decision of an Administrative Judge (AJ) that the agency had an obligation to bargain with the Union over the removal of a television set from the break room after seven (7) years.  The AJ stated that the use of the TV set had, over the course of many years, become an established condition of employment.  (5 FLRA 817)

·       Discontinuing the practice of allowing officers to carry their weapons between home and work was a unilateral change.  Advance notice to the Union was required.  (52 FLRA 563)

·       Even where an existing practice violates the law, management must notify the Union of the intended change and entertain proposals over the impact and implementation of its decision.  (34 FLRA 635)

·       The AJ found there was a past practice of granting administrative leave for an annual athletic competition and the agency committed a ULP when it unilaterally changed the practice.  (56 FLRA No. 136)

 

Failure to bargain in good faith:

 

Now that I have discussed the FAA’s obligation to bargain in good faith, including written or unwritten practices, what is your recourse if you allege that the FAA is not fulfilling their obligation to do so?  There are four (4) options which you can pursue.  Those options are:

 

·       File a grievance;

·       File a ULP;

·       File a grievance with a ULP incorporated within the grievance; or

·       File a ULP for the bargaining infraction and a grievance for the impact to BUEs.

 

The option you choose will depend on the circumstances of and the level of bad faith bargaining.  For example, a grievance is appropriate for a violation of an agency rule or regulation and/or a collective bargaining agreement, while a ULP is appropriate for a violation of federal law.  As explained earlier, the failure of an agency to bargain in good faith can be a ULP that is incorporated within a grievance.  Arbitrators are authorized to rule on ULPs as part of a grievance.  However, they are not necessarily compelled to do so.  It all depends on the circumstances of each case.

 

Whenever you are faced with the agency possibly bargaining in bad faith, it is always best to contact your regional labor relations lead or your RVP prior to taking any action.  They will give you the assistance that you need in order to help you choose the correct path for redress.  This will be very important especially considering the fourth bullet above due to the fact that a grievance and a ULP may not be filed on the same issue.  You may need assistance in separating out the issues to ensure proper wording on both the grievance and the ULP.

 

As you can see, there is a very high threshold in accordance with the many federal laws that cover the duty to bargain in good faith.  Although I will cover documentation, as it relates to bargaining, in a future edition of the LR Chronicles, it is extremely important to document each and every conversation, correspondence, and negotiating session because you will have to “prove” your allegation to a third party.  The best way to “prove” your allegation is through good, solid documentation.

 

Please remember that the duty to bargain in good faith does not ONLY apply to the FAA.  The Union is also required by law to bargain in good faith.  5 USC 7116(b)(5) makes it an unfair labor practice against the Union, if the FAA can prove that you abrogated this obligation.

 

 

Mike Hull

NWP LR Lead

Installment 32

The Collective

Bargaining Process

In-Depth

Part 3

 

The three (3) subjects of

Bargaining and Article 7

 

 

Hello NWP Members and Reps;

 

Welcome to LR Chronicles number 33.  This edition will focus on the three (3) separate and distinct subjects of bargaining, explain each one, and outline the relevant FLRA case law that applies to each one.  Even mandatory subjects of bargaining, those which the FAA must negotiate, come with caveats of which you must be aware if you will negotiate on behalf of NATCA.  I will also cover and briefly explain “Union-initiated bargaining.”  In accordance with both the CBA and the FAA’s white book, the Union may initiate bargaining on personnel, policies, practices, and matters affecting working conditions that are not covered-by the CBA.  However, considering the fact that matters such as the basic watch schedule and annual leave negotiations are handled in accordance with the CBA, thus differentiating them from traditional Union-initiated proposals, I will only cover the highlights of Union-initiated bargaining.

 

In order to understand the laws, as they apply to the three (3) subjects of bargaining, there are two definitions with which you should be aware, especially as you read the relevant case law below.  Those definitions are:

 

·       Proposal – A matter offered for bargaining that has not been agreed to by the parties;

·       Provision – A matter that is used to refer to a clause that is contained within a labor agreement; and

·       Provision – Also used to define a matter that has been disapproved by the Agency Head pursuant to 5 USC 7114(c).  (I will explain “Agency Head Review” in a later edition.)

 

As mentioned in LR Chronicles number 31, there are three (3) subjects within the scope of bargaining.  They are:

 

·       Prohibited;

·       Permissive;

·       Mandatory.

 

As a review, prohibited subjects of bargaining, as contained in 5 USC 7106(a), means that the FAA cannot, even at their election, negotiate the substance of any of these reserved rights.  However, the Agency must negotiate the procedures and appropriate arrangements (explained later) surrounding these rights.

 

Permissive subjects of bargaining, as contained in 5 USC 7106(b)(1), means that the FAA may, but cannot be forced to negotiate the substance of any of these rights.  Just like prohibited subjects of bargaining, the FAA must negotiate the procedures and appropriate arrangements (explained later) surrounding these rights.  Thus, it is possible to approach a permissive subject of bargaining, through other mechanisms that the Agency does not elect to negotiate.

 

Mandatory subjects of bargaining, as contained in 5 USC 7106(b)(2) and (3) are required subjects of bargaining by the FAA, regardless of whether or not these subjects may infringe on a prohibited or permissive subject of bargaining.  However, the mere fact that bargaining is required on a particular subject does nothing to guarantee agreement on a proposal.  As mentioned in a previous edition of the LR Chronicles, neither the FAA nor the Union is required to reach agreement over a proposal.  Instead, both Parties must engage the bargaining process in good faith.  Should the Parties fail to reach agreement on a particular proposal, they have a variety of avenues to seek redress.  The FLRA has issued very relevant case law regarding these subjects of bargaining.  In general, a proposal affects the exercise of a management right ONLY if it prohibits, requires, or restricts the exercise of a management right.

 

FLRA Case Law applying to the three subjects of bargaining:

 

Regarding prohibited subjects of bargaining; 5 USC 7106(a):

 

·       Agency managers are not authorized to waive these statutory rights, or to agree to provisions that effectively negate their ability to exercise them.  However, the statute permits the negotiation of procedures and appropriate arrangements for the exercise of these rights that actually limit these Agency rights.  (44 FLRA 1405)

·       The Agency’s right to assign employees includes the right to determine which employees will be assigned to a particular position.  (44 FLRA 1405)

·       The fact that a proposal will cause an increase in the cost of Agency operations, will not in itself, render the proposal non-negotiable.  (47 FLRA 980)

·       If the proposal would result in substantial additional costs to the Agency which are not offset by compensating benefits, it is outside the obligation to bargain.  (47 FLRA 980)

·       The negotiation and use of official time for representational purposes under 5 USC 7131(d) exists as an exception to the right to assign and direct employees.  (51 FLRA 1371)

·       The Agency’s right to determine the number of employees relates to the total number of employees of an agency, not to the placement of employees within an agency.  (36 FLRA 298)

·       The right to assign work includes the right to determine when work will be performed, and the employees or positions to which work will be assigned.  (60 FLRA 785)

 

Regarding permissive subjects of bargaining; 5 USC 7106(b)(1):

 

·       A proposal is permissive if the language explicitly relates to the numbers, types, or grades of employees.  (55 FLRA 1145)

·       A proposal is permissive if its integral relationship to the numbers, types, or grades would determine those numbers, types, or grades.  (55 FLRA 1145)

·       Although an Agency cannot be compelled to bargain over the substance of 7106(b)(1) matters, it is still required to bargain concerning the impact and implementation of them.  (54 FLRA 360)

·       A Party may withdraw from the negotiation of a permissive matter at any point prior to agreement.  (52 FLRA 677) (24 FLRA 56)

·       Because 7106(b)(1) is an exception to section 7106(a), an Arbitrator’s award enforcing an agreement made under 7106(b)(1) will not be disturbed even though it affects a management right contained in 7106(a).  (62 FLRA 90)

·       A contrary to law exception will not be applied to an Arbitrator’s award enforcing a provision concerning a permissively negotiated matter.  (61 FLRA 377)

·       A proposal interfering with a management right and at the same time falling within the permissive scope of bargaining is permissively negotiable.  (Montana ACT, 22 F. 3d 1150)

·       Work means the particular objectives that the Agency was established to accomplish.  (61 FLRA 48)

·       Means is any instrumentality, including an agent, tool, device, measure, plan, or policy used by the Agency for accomplishing or furthering the performance of the Agency’s work.  (19 FLRA 1180)

·       Technology is the technical method that will be used in accomplishing or furthering the performance of the Agency’s work.  (19 FLRA 1180)

·       A method is the way an Agency chooses to accomplish its work.  (19 FLRA 1180)

·       An agency or a Union may elect to cease bargaining on a permissive topic at any time prior to reaching agreement, without committing an unfair labor practice.  (21 FLRA 1046)

·       A “method” is the way an Agency performs its work, while a “means” is an instrumentality, such as an agent, tool, measure, plan, or policy used by an agency to further its mission.  (55 FLRA 1145)

·       A method describes “how” while a means specifies “with what.”  (61 FLRA 48)

 

Regarding Mandatory subjects of bargaining; 5 USC 7106(b)(2) and (3):

 

These are known as procedures and appropriate arrangements, otherwise known as impact and implementation bargaining.  Since these subjects of bargaining are entitled “mandatory” subjects of bargaining, please remember that the FAA MUST negotiate these subjects with you, regardless of whether or not the matter encompasses a reserved management right (5 USC 7106(a)), or a permissive subject of bargaining (5 USC 7106(b)(1)).  This is because the FLRA has determined that procedures and appropriate arrangements are an exception to both reserved (prohibited) as well as permissive management rights.

 

Procedures – 5 USC 7106(b)(2):

 

This is the “implementation” portion of “impact and implementation” bargaining.  A procedure is defined as those “procedures” that management must observe in exercising their rights as enumerated in 5 USC 7106(a) and 5 USC 7106(b)(1).  Please remember that a procedure is an exception to both prohibited and permissive management rights.  To put it simply, if your proposal addresses how management rights will be exercised by management, it may constitute a negotiable procedure.  The threshold used by the FLRA in order to determine whether or not a proposal constitutes a negotiable procedure is that the proposal does not “directly” interfere with the exercise of that management right.

 

The following represents some FLRA case law regarding procedures in accordance with 5 USC 7106(b)(2):

 

·       The fact that a proposal will cause an increase in the cost of Agency operations will not, in itself, render the proposal non-negotiable.  (47 FLRA 980)

·       In order to establish that a proposal directly interferes with an Agency’s right to determine its budget, the Agency must show either that it; a) would prescribe the allocation of a specific amount of funds to a program or function, or b) would create additional costs that are significant, unavoidable, and not offset by compensating benefits.  (36 FLRA 894)

·       A proposal does not qualify as a procedure if it directly interferes with the exercise of a management right.  (49 FLRA 1408)

·       The FLRA will adopt the Union’s interpretation of its proposal where that interpretation is consistent with the wording of the proposal.  (62 FLRA 1)

·       Proposals addressing the use of part-time employees do not conflict with an agency’s right to determine “types” of employees used to conduct operations.  (38 FLRA 211) (It must be remembered here that NATCA and the FAA have negotiated a contract provision regarding part-time employees.  Be careful of the “covered-by” issue here.)

 

The basic watch schedule is a perfect example of a possible “procedure.”  Often times, when bidding a specific schedule, bargaining unit employees will want to know which supervisor will be responsible for a specific shift and/or crew.  A proposal that the FLRA has deemed to be an acceptable procedure is having the Agency require their management officials bid their schedule prior to bidding by bargaining unit employees.  This procedure does not interfere with management rights to have the schedule bid in a timely manner.  Instead, by having management officials bid and then having bargaining unit employees bid their schedules, the Parties have merely agreed to a “procedure” for bidding.

 

Outlined below are some examples of how to turn a non-negotiable proposal into a negotiable procedure:

 

Example 1: You are negotiating your BWS and want a particular shift to be a flex shift, but management is resistant.  You submit the following proposal;

 

“All employees shall be afforded the opportunity to flex thirty (30) minutes on the 0700 shift.”

 

As written, this proposal is non-negotiable as it directly interferes with the management right to assign work.  However, you can make this a negotiable procedure by rephrasing the proposal to:

“All employees shall be afforded the opportunity to flex thirty (30) minutes on the 0700 shift, on a case-by-case basis, subject to management approval.”

 

Example 2: You are negotiating your annual leave MOU and you submit the following proposal;

 

“All employees shall be afforded the opportunity to take a minimum of five (5) consecutive or non-consecutive weeks of Prime Time annual leave.”

 

As written, this proposal is non-negotiable because, among other things, it directly interferes with the management right to assign work.  However, you can make it negotiable by adding four (4) words to the proposal:

 

“Subject to staffing considerations, all employees shall be afforded the opportunity to take a minimum of five (5) consecutive or non-consecutive weeks of Prime Time annual leave.”

 

Appropriate Arrangements – 5 USC 7106(b)(3):

 

This is the “impact” portion of “impact and implementation” bargaining.  An appropriate arrangement is defined as an “arrangement” that is narrowly tailored to benefit only those employees that may suffer an adverse affect by the exercise of a management right.  Additionally, this “adverse affect” cannot be based merely on speculation that an employee “may” suffer an adverse affect.  These “adverse affects” must outweigh the burden placed on management and their rights, nor can it prevent management from acting at all to exercise a management right.  Based upon the above, if you craft your proposal properly, even if it limits or restricts management rights, it still may be considered, by the FLRA, as an appropriate arrangement.  Lastly, the appropriate arrangement cannot “excessively” interfere with a management right.  Just like “procedures,” an appropriate arrangement exists as an exception to both prohibited and permissive management rights.  This means that if your proposal is crafted properly, it can “interfere” with those management rights as long as it does not “excessively” interfere. 

 

When crafting your appropriate arrangement proposals, you need to take into consideration the following four (4) requirements as outlined by the FLRA:

 

·       Identify the management right being exercised;

·       Identify the adverse affect of that management right on employees;

·       Identify the adversely affected employees;

·       Develop the proposal that is “appropriately” and “narrowly” tailored.

 

These requirements, collectively, are known as the “excessive interference test.”  If your proposal is confined to the four requirements above, the FLRA will apply a two-prong balancing test in order to determine the appropriateness of the “arrangement:”

 

·       Determine whether the proposal interferes with the exercise of a management right(s);

·       Weigh the benefits to the employees adversely affected against the intrusion on the exercise of the management right(s).

 

To summarize, a proposal is an arrangement if it is intended to apply only to employees somehow adversely affected by the exercise of a management right AND the proposal must provide a remedy to those adversely impacted.

 

Outlined below is FLRA case law as it pertains to appropriate arrangements:

 

·       In order to constitute an appropriate arrangement, a proposal must mitigate the adverse affects flowing from the exercise of a management right, but cannot excessively interfere with its exercise.  (21 FLRA 24)

·       In order to constitute an appropriate arrangement, a proposal must be tailored to benefit employees suffering from a reasonably foreseeable adverse affect flowing from the exercise of a management right.  (92 FLRR 1-8030)

·       Proposals based on speculation as to future events do not constitute appropriate arrangements.  (53 FLRA 967)

·       A proposal or provision that would prevent management from acting at all to exercise a management right is not an appropriate arrangement.  (37 FLRA 309)

·       A proposal that would require the Agency to deviate somewhat from a desired policy, but would not preclude the accomplishment of the Agency’s internal security objective, does not excessively interfere with the management right.  (62 FLRA No. 51)

·       Terms such as “fair and equitable” when used in proposals that govern the exercise of a management right constitute substantive limitations on the exercise of that right, and thus affect that right.  (53 FLRA 539)

·       To qualify as an appropriate arrangement, a proposal must deal with the adverse effects of a management action, not merely seek a general improvement in working conditions.  (29 FLRA 1587)

·       To qualify as an appropriate arrangement, a proposal must identify effects or reasonably foreseeable effects on employees that flow from the exercise of management’s rights and how those effects are adverse.  Proposals that are purely speculative or hypothetical about the effects on employees are not appropriate arrangements.  (56 FLRA No. 131)

·       Proposals that conflict with government-wide regulations generally don’t qualify as appropriate arrangements, though in some cases they may.  (29 FLRA 380)

·       When an agency is required to take an action by law, application of the appropriate arrangement test is inappropriate.  (37 FLRA 500)

·       In order to have a disputed proposal considered as an appropriate arrangement, a Union must identify it as such.  (31 FLRA 988)

 

Lastly, if a proposal is too broad in its scope and/or affects employees outside of those adversely affected by the exercise of the management right, the proposal will be found, by the FLRA, as outside the duty to bargain.  Additionally, when an Agency refuses to bargain, a Union is not obligated to show it made negotiable proposals in order to prove it is entitled to bargain.  The FLRA has concluded that the Agency could not avoid its bargaining obligation by objecting to proposals and remedies sought by the Union only after the Agency unlawfully refused to bargain.

 

The FLRA has found that proposals requiring compensation to employees whose training was delayed by the exercise of the management right to assign work, served as an appropriate arrangement.  The proposal was narrowly tailored to impact ONLY those employees whose raises were delayed due to the exercise of a management right.  Because of the narrow tailoring, the FLRA determined that management was still able to exercise its rights without an overly burdensome consequence. 

 

Outlined below is an example of how to turn a non-negotiable proposal into a negotiable appropriate arrangement:

 

Example: The agency is going to install a new piece of equipment at your facility and has agreed to negotiate its implementation at the local level.  This piece of equipment is called DATR.  You want the bargaining unit that you represent to be protected from possible disciplinary action as well as protect them from OEs/ODs etc.  To that end, you submit the following proposal to management:

 

“All employees shall be granted immunity from responsibility for all operational errors, operational deviations, technical violations, and other similar incidents for a period of sixty (60) days after DATR is operational.”

 

As written, this proposal is non-negotiable for two main reasons; 1) it applies to ALL employees at the facility regardless of whether or not they will use DATR; and 2) the immunity period of sixty days applies regardless of the nature of the incident that created the error.  You can make this into a negotiable appropriate arrangement and take care of BOTH issues by rephrasing the proposal to:

 

“All employees, required by the agency to use DATR, shall be granted immunity from responsibility for all operational errors, operational deviations, technical violations, and other similar incidents for a period of sixty (60) days after DATR is operational.  The sixty (60) day immunity period shall apply to any incident in which DATR has been determined to be a causal factor in the incident.”

 

 

Union Initiated Bargaining:

 

In accordance with our collective bargaining agreement, the Union may also initiate bargaining on changes to working conditions and other conditions of employment that are not contained within the CBA.  This is a right established in Article 7, Section 6 of our CBA.  This provision allows the Union to initiate bargaining at any level, local, regional and/or national.  The FAA’s imposed conditions of employment limits the Union initiated bargaining, like most other bargaining obligations, to the national level (the level of exclusive recognition.)

 

If you ever want to request Union initiated bargaining with the FAA at your facility, please contact your RVP or Regional LR Lead.

 

In this edition, I have covered an “in-depth” review of management rights.  It must be remembered that all of your bargaining, regardless of the matter or subject of that bargaining, will, in some way affect the exercise of management rights.  If you follow this edition of the LR Chronicles when crafting your proposals and during negotiations, the ability for NATCA to prevail before a third party will be much greater.

 

It is very important to know and understand that if you are ever in doubt or ever have a question or a concern regarding any aspect of negotiations, you should contact your regional labor relations lead or you’re RVP.

 

 

Mike Hull

NWP LR Lead

Installment 31

The Collective

Bargaining Process

In-Depth

Part 2

 

When and why

Bargaining is required

 

 

Hello NWP Members and Reps;

 

Welcome to LR Chronicles number 32.  In the last edition, I explained some of the laws that cover collective bargaining.  As I stated in that edition, there is much more law to be covered for a full understanding of the bargaining process and to prepare for local level negotiations regarding the basic watch schedule (BWS) and annual leave.  I will outline the remaining laws in this, as well as future editions of the LR Chronicles in order to ensure that you have all of the information necessary to be able to conduct your local level bargaining.

 

Prior to reviewing the information in this edition, there are two important issues that must be understood.  The first is the fact that your local level negotiations should result in written agreements.  As I stated in the last edition, it is required that “upon request of either party,” any and all negotiations result in a “written document outlining the provisions agreed upon.”  You are taking a chance if you agree to incorporate your “alleged” agreement in a local order, SOP, or other local level document that the FAA can change at any time.

 

The second issue is the fact that you can and should conduct both the BWS and annual leave negotiations simultaneously.  One is not dependent on the other.  Please keep in mind that it may be necessary to borrow from one, while negotiating the other.  If you have issues that could cross-over from one to the other, you should be negotiating them at the same time.

 

Beginning with this edition, and for the next several editions of the LR Chronicles, I will explain the process of how bargaining is required and conducted.  I will explain when and why bargaining is required and take you through the actual bargaining process, from beginning to end.  I will also place the different steps and the sequence of bargaining in a logical order so that it will be easy to understand.

 

You must be clear as to what, if anything, you may or may not negotiate at the local level.  The first step in the bargaining process is to determine whether or not the FAA is required to bargain with you at the facility level.  This is otherwise known as bargaining “below the level of exclusive recognition.”

 

Level of Recognition for Bargaining:

 

In accordance with case law issued by the Federal Labor Relations Authority (FLRA), it is well established that an Agency (FAA) is only required to bargain with an exclusive representative (NATCA) at the “level of exclusive recognition.”  To negotiate “below” the level of exclusive recognition can only be done at the election of the Agency.”  This is known as a “permissive” subject of bargaining” in accordance with 5 USC 7106(b)(1).  (See LR Chronicles number 31).  In the case of NATCA and the FAA, the level of exclusive recognition resides at the national level in Washington, DC.

 

During negotiations for our collective bargaining agreement (CBA) in 1997 and 1998, the FAA elected to agree (permissively) to local and regional level negotiations for all issues.  During the negotiations in 2005 and 2006, the FAA elected to bargain below the level of exclusive  recognition only for certain issues including:

 

·       Basic watch schedule;

·       Annual leave;

·       Recognition and awards program;

·       Overtime

 

The FAA did not agree to bargain at the regional level for any issue.  In other words, in accordance with the imposed conditions of employment (ICE), all bargaining must take place at the national level, except for those issues where they have elected otherwise.  This is what gives you, at the local level, the right to negotiate your respective BWS and annual leave MOUs.

 

Below, is some relevant case law issued by the FLRA regarding bargaining below the level of exclusive recognition:

 

·       The request to bargain must come from the level of exclusive recognition.  (16 FLRA 80) (This does not include any issue mentioned above due to the fact that the FAA already agreed to bargain those subjects below the level of exclusive recognition.)

·       There is no statutory requirement that a Party bargain below the level of recognition.  It is however, a permissive matter.  (53 FLRA 1269)

·       A mandatory bargaining obligation exists only at the level of recognition.  Bargaining below the level of recognition is permissive.  (62 FLRA 174) (Again, this does not include BWS or annual leave negotiations)

·       Proposals to bargain local level agreements (i.e., those below the level of recognition, such as local supplemental agreements where there is a national level recognition) are permissive.  Such agreements are not found under 5 USC 7106(b)(1), but are permissive nonetheless because they would involve a waiver of a Party’s rights under Title 5, Chapter 71.  (53 FLRA 1269) and (54 FLRA 630)

 

Duty to bargain:

 

Once it is determined that the FAA must bargain with you at the facility level, the next step is to determine what they are required to bargain.  The FAA has a contractual requirement (a requirement that was even carried into the white book) to bargain both BWS and annual leave with you at the local level.  Therefore, they are obligated to fulfill that requirement.  However, this requirement comes with a few caveats with which you must be aware:

 

·       The subject of negotiations must be a “condition of employment” (5 USC 7103(a)(14));

·       The subject matter must be “more than de minimis;”

·       The subject matter must not already be “covered-by” the collective bargaining agreement (CBA);

·       The subject matter cannot conflict with any Federal law that applies to NATCA and the FAA; and

·       The subject matter cannot be inconsistent with any Government-wide rule or regulation.

 

Conditions of Employment:

 

Bargaining in the federal sector is restricted to those matters that are conditions of employment.  The definition of a condition of employment is very broad in nature and is found in 5 USC 7103(a)(14), which states “Conditions of employment means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters-

(A)                       Relating to political activities prohibited under Subchapter III of Chapter 73 of this title;

(B)                       Relating to the classification of any position; or

(C)                       To the extent such matters are specifically provided for by federal statute;”

 

In addition to this definition found in law, the FLRA has issued its “interpretation” of a condition of employment in case law that they have issued.  They have consistently held that a matter is a condition of employment “if it has a direct relationship with an employee’s work situations or employment relationships.”  When dealing with bargaining proposals as they relate to conditions of employment, the FLRA will consider two (2) main issues, in order to determine whether or not those proposals are consistent with the definition and case law above.  Those two issues are:

 

·       Whether the proposal deals with bargaining unit employees (BUEs); and

·       The nature and extent of the effect of the matter on the working conditions of BUEs, and whether or not a direct link exists between the proposal and the work situation.

 

As you can see, the scope of the FAA’s bargaining obligation is limited.  For example, the FAA is not obligated to negotiate over a proposal that affects the conditions of employment of members of other bargaining units or supervisory personnel under certain circumstances.  (See case law below)  However, the FAA may bargain over proposals, at their election, that directly implicate the conditions of employment of supervisory personnel because those proposals are considered permissive subjects of bargaining.  Lastly, a condition of employment may be established through unwritten past practices.  (I will explain this later)

 

The following, represents some case law issued by the FLRA regarding conditions of employment:

 

·       General criteria or procedures for choosing individual seating assignments within the office are negotiable conditions of employment.  (36 FLRA 655)

·       Proposals that affect some individuals outside of the bargaining unit may be negotiable if the matter “vitally affects” the conditions of employment of bargaining unit employees.  (44 FLRA 1405)

·       The mere fact that a proposal has some “fallout” on non-unit employees does not render that proposal non-negotiable, although a proposal primarily aimed at non-unit employees does not involve conditions of employment.  (11 FLRA 475)

·       Where a law is general in nature, it will not remove a subject or topic from the definition of conditions of employment.  (27 FLRA 132)

·       If an agency contends that a matter is not a condition of employment because it is contained in law, it must; a) identify the statute involved, and b) explain why the statute removes the matter from the obligation to bargain.  (93 FLRR 1-8004)

·       If a law generally establishes a matter, but leaves elements of it to agency discretion, that matter may be negotiable.  (27 FLRA 132)

 

De Minimis:

 

The FAA is required to bargain over the impact and implementation of a change in bargaining unit employees’ conditions of employment provided the change has more than a de miminis effect.  The De Minimis test applies to all changes in conditions of employment, whether they are substantively negotiable or result from the exercise of a non-negotiable management right.

 

De Minimis is a Latin term that means “trifling,” “minimal,” or “insignificant.”  As mentioned above, in order for the FAA’s bargaining obligation to trigger, the matter in question must be “more than de minimis.”  Although the FAA may “allege” that a matter is only de minimis, the final decision on whether or not it actually is, rests with the FLRA.

 

Below is some case law regarding the de minimis standard:

 

·       While technically constituting a change, some modifications in the work environment are so small or inconsequential that no advance notice to the Union is required.  (15 FLRA 922)

·       In assessing whether the effect of a decision on conditions of employment is more than de minimis, the FLRA looks to the nature and extent of either the effect, or the reasonably foreseeable effect of the change.  (103 LRP 34789)

·       The removal of a water cooler had more than a de minimis impact.  (37 FLRA 25)

·       The fact that a change affects only one employee will not necessarily render it de minimis.  (60 FLRA 620)

 

Over the past several years, the FAA has broadened the scope of the de minimis doctrine.  As a result, the FAA has made a practice of having a knee-jerk reaction to many NATCA proposals by claiming that the proposed change has a de minimis impact upon the bargaining unit.  They have used this to allege that there is no bargaining obligation.  If the FAA attempts to assert that a matter is “de minimis” during your negotiations, you should contact your RVP or regional LR Lead.

 

Covered-by Doctrine:

 

Regardless of whether or not a change involves a reserved management right, the FAA does not have an obligation to bargain prior to making a change in working conditions, if the subject matter is “covered-by” the CBA. 

 

“Covered-by” is meant to be a defense to an alleged failure to satisfy a bargaining obligation.  The FAA is not required to bargain over a proposal that is already “covered-by” the existing CBA.  Much like the “de minimis standard,” the FAA may declare a matter “covered-by” and refuse to negotiate that matter.  Once again, the final decision on whether or not a matter is covered-by the existing CBA rests with the FLRA.  In order to determine whether a matter is covered-by, the FLRA applies a two-prong test:

 

·       Is the matter “expressly contained” in the CBA; and

·       Is the matter “inseparably bound up with” and thus plainly an aspect of an issue covered by the CBA.

 

Only the first prong of this two-prong test applies to bargaining between NATCA and the FAA!  In analyzing the first prong, it is necessary to determine if the item being discussed could have been “reasonably considered” during negotiations for the CBA.  For example, overtime is covered in the CBA and the Agency will routinely assert that any discussion regarding overtime is “covered-by” the CBA.  If the agency is installing a major piece of equipment at your facility that may require mandatory overtime over a protracted period of time, then you may argue that this was beyond the scope of what could have been reasonably considered at the bargaining table during negotiations for the CBA.  The impact of the mandatory use of overtime over a protracted period of time can and should require procedures and/or appropriate arrangements in order to mitigate the impact or adverse affect.  Once again, if the FAA attempts to assert that a matter is “covered-by,” you should contact your RVP or regional LR Lead.

 

Relevant case law issued by the FLRA regarding the “covered-by doctrine” appears below:

 

·       The covered-by doctrine operates to prevent bargaining, not require it.  (57 FLRA 459)

·       The covered-by doctrine does not only apply to term agreements.  If the parties have negotiated a memorandum of understanding or similar agreement on a particular subject, it may also serve to preclude bargaining on that subject.  (60 FLRA 68)

·       If the subject matter in dispute is only tangentially related to the agreement provision and not a subject that should have been contemplated as within the scope of the provision, it is not covered-by the agreement.  (56 FLRA 906)

·       Where a dispute concerns only an Agency’s contractual duty to bargain rather than a statutory duty, the covered-by doctrine does not apply.  (57 FLRA 934)  (This is a perfect example of your local level BWS and annual leave negotiations, due to the fact that the obligation to bargain those subjects is a contractual obligation.)

·       Under prong 1 of the covered-by doctrine, a proposal will be found to concern a matter expressly contained in the agreement only if it would have the effect of conflicting with or modifying the agreement.  (61 FLRA 437)

 

This edition of the LR Chronicles is meant to give you the basic principles of when and why bargaining is required.  If there are any questions concerning this edition, please contact your regional Labor Relations Lead or your RVP.

 

Mike Hull

NWP LR Lead

Installment 30

The Collective

Bargaining Process

In-Depth

Part 1

 

The basic laws that cover

Collective bargaining

 

 

Hello NWP Members and Reps;

 

Welcome to LR Chronicles number 31.  As promised to you in LR Chronicles number 29, this, as well as the next several editions of the LR Chronicles will provide you with an in-depth explanation of the “collective bargaining process.”  Collective bargaining in the federal sector is a very complex and extensive subject.  Collective bargaining, from start to finish, contains many facets and nuances with which you must become familiar if you will bargain with the Agency.

 

While this multiple-part Chronicle is mainly geared to local-level negotiations regarding the basic watch schedule (BWS) and annual leave negotiations, it may also be used to bargain any subject and at any level.  Unfortunately, we are operating under the Agency’s imposed conditions of employment (ICE), which limits bargaining at any level below the level of recognition.  However, considering that we have a new Administration in the White House and a new Congress/Senate, the subjects for which you may bargain at the local level could very well be expanded.  Regardless, the NATCA National Office has been delegating matters to the local level for negotiations.

 

In order to grasp the full effect of bargaining in the federal sector, it is necessary to understand the various laws that cover collective bargaining.  These laws can be found in Title 5, Chapter 71, otherwise known as the Federal Service Labor-Management Relations Statute (FSLMRS) or “the statute.”  In this first edition of the “collective bargaining process,” I will outline and explain some of the more general federal laws that cover collective bargaining.  In future editions, I will explain the more specific federal laws as they relate to specific matters of bargaining as well as case law from the Federal Labor Relations Authority (FLRA).

 

 

5 USC 7103(a)(8) and (a)(12):

 

These two laws define a “collective bargaining agreement” as well as “collective bargaining.”  5 USC 7103(a)(8) states “collective bargaining agreement means an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter.”  5 USC 7103(a)(12) states “collective bargaining means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession.”  Basically, these two laws mean the following:

 

·       Any time NATCA and the FAA enter into negotiations, the parties are engaged in collective bargaining.  When a term negotiation is completed, the parties label the agreement a “Collective Bargaining Agreement.”  Local, regional, and national negotiations completed during the life of a Collective Bargaining Agreement culminate in crafting a Memorandum of Understanding (MOU).

·       NATCA (the exclusive representative) and the FAA (the Agency), are collectively known as “the Parties” and must meet at reasonable times to conduct bargaining.  This must be agreed to by both Parties and is normally done via a written document known as “ground rules.”  (Ground rules will be explained in a future edition of the LR Chronicles;)

·       The Parties must negotiate “in good faith.”  (This will be explained in a future edition of the LR Chronicles;)

·       The Parties may only negotiate “conditions of employment.”  (This will be explained in a future edition of the LR Chronicles as part of the “duty to bargain;”)

·       If an agreement is reached as a result of collective bargaining, this must be memorialized in a written document, if requested by the FAA or NATCA;

·       Neither NATCA nor the FAA is required to “make a concession” or “agree to a proposal” should they determine that concession or proposal is not in their best interest.

 

Regarding the last bullet above, neither party is required to make a concession or otherwise agree to a proposal offered by the other party.  While this will be covered in a future edition of this multiple-part LR Chronicle, in a nutshell, this means that regardless of how the proposal is crafted, even if it is 100% in compliance with all federal laws covering collective bargaining, if one party is simply not in agreement with that proposal, they are free to reject that proposal due to the fact that they just simply do not agree with the proposed language.  Remember, just because something is negotiable, does not mean that the parties must agree.  If the parties cannot reach agreement, they may find themselves at “impasse,” which will be discussed later in this multiple-part Chronicle.

 

 

5 USC 7114(b):

 

This particular law also covers “good faith bargaining” but covers much more.  5 USC 7114(b) states “the duty of an agency and an exclusive representative to negotiate under subsection (a) of this section shall include the obligation-

 

(1)To approach negotiations with a sincere resolve to reach a collective bargaining agreement;

(2)To be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment;

(3)To meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays;

(4)In the case of an agency, to furnish to the exclusive representative involved, or to its authorized representative, upon request and, to the extent not prohibited by law, data-

(A)            Which is normally maintained by the agency in the normal 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, related to collective bargaining; and

(5)If agreement is reached, to execute on the request of either party to the negotiation a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement.”

 

Regarding number (2) above, this simply means that each Party, the Union and the Agency, must send representatives to the bargaining table that have the authority to reach agreement should a proposal be agreed upon.  Number (4) (A) through (C) above is otherwise known as an “information request.”  When you are preparing for your negotiations, in conducting your research, if you are ever in doubt as to whether or not you have all of the information necessary in order to allow you to conduct your negotiations, it is a good idea to submit an information request in accordance with 5 USC 7114(b)(4).  For example, if the subject of negotiations is a local level BWS or annual leave MOU, you may need to submit an information request for “all FAA orders, rules, and/or regulations, at all levels,” so that you can properly prepare for and conduct negotiations for the BWS or annual leave.  This information request would require the agency to give you all of their rules and regulations covering BWS and/or annual leave.  The information request must be limited to the subject of the negotiations.  Should you find it necessary to submit an information request, ensure that you submit it well in advance of the scheduled negotiations, so that you receive the information in time to finish your research and to submit negotiable proposals.

 

 

5 USC 7116(a)(5) and (b)(5):

 

These provisions of law cover what is known as an Unfair Labor Practice (ULP).  A ULP is a “charge against an Agency” or a “charge against a Union” that is deemed to violate any provision of Title 5, Chapter 71.  5 USC 7116(a)(5) states “for the purpose of this chapter, it shall be an unfair labor practice for an agency to refuse to consult or negotiate in good faith with a labor organization as required by this chapter.”

 

Similarly, it is also a ULP for the Union to not bargain in good faith.  5 USC 7116(b)(5) states “for the purpose of this chapter, it shall be an unfair labor practice for a labor organization to refuse to consult or negotiate in good faith with an agency as required by this chapter.”

 

5 USC 7131:

 

This provision of law addresses official time for negotiations.  I am only going to cover two subsections out of this law as these two sections are the only subsections that you will use in your local level negotiations.  5 USC 7131(a) states “Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceedings during the time the employee otherwise would be in a duty status.  The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes.”

 

5 USC 7131(d) states “Except as provided in the remaining subsections of this section –

 

(1)Any employee representing an exclusive representative, or

(2)In connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.”

 

5 USC 7131(a) simply states that the Union can have no more negotiators on official time than the agency has on its negotiating team.  However, this does not preclude the Union from having any amount of negotiators on our team, as long as they are not on official time.  Official time for negotiations will also be covered in several other editions, in this multiple-part chronicle, such as ground rules and impasse proceedings.

 

Official time for negotiations is required to be approved by the agency, in the amount negotiated and agreed upon by NATCA and the FAA in accordance with 5 USC 7131(d)(2).

 

5 USC 7106:

 

This provision of law is entitled “management rights.”  As the name implies, management does have certain rights as outlined in this section of Title 5, Chapter 71.  5 USC 7106 is divided into two (2) subsections that cover three (3) different subjects of bargaining.  It is extremely important for you to know and understand all three subjects of bargaining due to the fact that it is from within this provision of law where you will craft your bargaining proposals.  Each and every proposal must meet the requirements of federal law, or you run the risk of having your proposal rejected by the agency as “being outside the duty to bargain” or “interfering with management rights.”  In a future edition of the LR Chronicles, I will explain the Union’s rights and options should this ever occur from the management official with which you are negotiating.  This is known as a “negotiability appeal.”

 

The three (3) subjects of bargaining under 5 USC 7106 are:

 

·       Prohibited;

·       Permissive; and

·       Mandatory

 

Prohibited subjects of bargaining:

 

Prohibited subjects of bargaining are contained in 5 USC 7106(a), which states “subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency –

 

(1) To determine the mission, budget, organization, number of employees, and internal security practices of the agency; and

(2)In accordance with applicable laws –

(A)               To hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

(B)              To assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;

(C)             With respect to filling positions, to make selections for appointments from –

(i) among properly ranked and certified candidates for promotion; or

(ii) any other appropriate source; and

(D)             To take whatever actions may be necessary to carry out the agency mission during emergencies.”

 

Although these are entitled “prohibited” subjects of bargaining, there is still a way to negotiate these subjects.  Prohibited subjects of bargaining means that the FAA cannot negotiate the SUBSTANCE of these subjects.  For example, in accordance with 5 USC 7106(a)(1) above, the FAA has a right to determine the “internal security practices” of the agency.  If the Union wanted to negotiate a provision regarding the agency’s decision to require FAA employees to wear identification badges, that is THEIR right to determine.  The Union could not propose that “no BUE shall be required to wear an identification badge.”  That proposal, as written would be determined non-negotiable because the agency has already determined that employees shall be required to wear identification badges.  However, what the Union CAN and SHOULD propose are the “procedures” and “appropriate arrangements” surrounding the FAA decision to require employees to wear identification badges.  These “procedures” and “appropriate arrangements” will be explained later on in this edition of the LR Chronicles.

 

 

Permissive subjects of bargaining:

 

Permissive subjects of bargaining are contained in 5 USC 7106(b)(1), which states “nothing in this section shall preclude any agency and any labor organization from negotiating –

 

(1) At the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;”

 

As the name implies, it is permissible for the FAA to negotiate the SUBSTANCE of these permissive subjects of bargaining.  However, if they choose to not negotiate the SUBSTANCE of these subjects, they cannot be forced.  (Dept of Justice, INS and AFGE, Nat’l Border Patrol Council, 52 FLRA 56, 256, 260)  There was a time during the 1990s where a federal agency was required to negotiate the substance of permissive subjects of bargaining.  This requirement came via an Executive Order (EO) signed by President William Clinton on October 1, 1993.  The EO was entitled “Number 12871, Labor-Management Partnerships.”  In part, EO 12871 stated “the head of each agency subject to the provisions of Chapter 71, of Title 5, United States Code shall: negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same…”  However, very shortly after President George W. Bush came into office in 2001, he repealed EO 12871.

 

That being said, there is a way to negotiate permissive subjects should the FAA elect to not negotiate the substance of these subjects.  Just like prohibited subjects of bargaining, the agency is required to negotiate the procedures and appropriate arrangements surrounding, permissive subjects of bargaining, any change of working conditions meeting the definition of a “condition of employment.”  (This term and all that it encompasses will be explained in a later edition of the LR Chronicles.)  Procedures and appropriate arrangements are described below.  An example of a permissive subject of bargaining, for example, would be directly related to the BWS negotiations that will be occurring shortly for all facilities.  As per 5 USC 7106(b)(1), nothing precludes the FAA from negotiating “…the numbers, types, and grades of employees or positions assigned to any…tour of duty.”  Therefore, if you, as the Union’s negotiator for your facility, proposed that there “shall be seven (7) CPCs and three (3) developmentals or CPCs-in-training assigned to the day and swing shifts respectively on any given day,” you would be well within your right to do so.  However, the FAA, based on that proposal, could notify you that your proposal is a “permissive” subject of bargaining, negotiable only at the election of the agency, and one in which the agency elects to not negotiate.”  This is well within their right to do so.  However, if you craft your proposal as a “procedure” or an “appropriate arrangement,” the FAA MUST negotiate that proposal with you.  Once again, procedures and appropriate arrangements are described below, as well as in future editions of this multiple-part LR Chronicle.

 

 

Mandatory subjects of bargaining:

 

These subjects of bargaining are contained in 5 USC 7106(b)(2) and (3) which states “nothing in this section shall preclude any agency and any labor organization from negotiating –

 

(2) Procedures which management officials of the agency will observe in exercising any authority under this section; or

(3)Appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.”

 

As you saw in the explanation for “prohibited” subjects of bargaining, the plain language of “subject to subsection (b)” gives us our framework with which to craft our proposals.  In other words, although management has their rights under prohibited and permissive subjects of bargaining, those rights are ALL subject to the Union’s right to negotiate procedures and appropriate arrangements surrounding the agency’s rights under law.

 

As you can see, it is MANDATORY for the FAA to negotiate, with the Union, any proposal crafted under (b)(2) and (b)(3), REGARDLESS of whether or not it falls under 5 USC 7106(a) or 5 USC 7106(b)(1).  However, as the Union’s negotiator, you MUST know how to craft (word) your proposal so that it meets the definition and intent of a “procedure” or an “appropriate arrangement.”  Determining whether a proposal is within the duty to bargain under 5 USC 7106(b)(3) is set forth in National Association of Government Employees (NAGE) and Kansas Air National Guard (KANG), 21 FLRA 309.  The FLRA initially determines whether or not a proposal is intended to be an “arrangement” for employees adversely affected by a management right.  This will be fully explained in the next edition of the LR Chronicles.  Since every single possible scenario cannot be covered regarding the BWS or annual leave negotiations, assistance is simply a phone call or an email away.  When you have crafted your proposals, prior to submitting them to management, make that phone call or send that email to your RVP or your regional Labor Relations (LR) Lead.  We are all here to give you any assistance that you may need.

 

These procedures and appropriate arrangements will be explained in future editions of the LR Chronicles when we discuss how to craft your proposals specifically related to the BWS and annual leave negotiations.  Suffice it to say here that regardless of what you want or need to accomplish for your particular facility regarding BWS and annual leave negotiations, there are many ways to negotiate within the bounds of the law.  As mentioned above, you’re RVP and/or your regional LR lead will assist you in every facet of your negotiations.

 

 

Mike Hull

NWP LR Lead

Installment 29

Alternative Work

Schedules (AWS)

 

 

Hello NWP Members and Rep;

 

Welcome to LR Chronicles number 30.  As promised in the last edition of the LR Chronicles, this edition will explain what you need to know regarding all aspects of AWS.  I will explain definitions of AWS, what regulation of the FAA cover AWS, what is needed by you in order to negotiate AWS for your facility, and give you some case law from the FLRA that will assist you in determining negotiable proposals for AWS.  Please keep in mind, as you read this edition, that NATCA recognizes our ONLY collective bargaining agreement (CBA), that being the “Green Book.”

 

The Office of Personnel Management (OPM) has specific guidelines to be followed by agencies regarding all aspects of AWS.  However, since the FAA has their own Personnel Management System (PMS), as authorized by FAA Personnel Reform in 1996, they are free to accept or reject the OPM guidance regarding AWS.  However, the agency MUST comply with our CBA regarding any negotiated aspect of Basic Watch Schedules (BWS), including, but not limited to AWS.  Therefore, I will mainly concentrate on what appears in our CBA and what appears in FAA regulations regarding AWS, considering the fact that our CBA is determined to be a valid exception to and will override any FAA regulation.

 

The availability of Alternative or Flexible Work Schedules within the Federal service stems from the “Flexible and Compressed Work Schedules Act of 1978 (“The Act”), as amended in 1986.

 

The federal law that covers the establishment and termination of flexible or compressed work schedules is 5 USC 6131.  This law states that an Agency shall not establish or continue such schedules if the Agency determines that a particular flexible or compressed work schedule has had or would have an “adverse agency impact.”

 

This law defines adverse agency impact as:

 

·       A reduction of the productivity of the agency;

·       A diminished level of services furnished to the public by the Agency; or

·       An increase in the cost of Agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed schedule).

 

Established case law places the full burden of proving an adverse agency impact on the Agency.

 

In accordance with 5 USC 6131, should there be a bargaining impasse between an Agency and a Union, that impasse is presented to the Federal Service Impasses Panel (FSIP) for resolution.  However, it is important to note that the FSIP has a specific protocol for addressing matters related to work schedules.  As with any time you believe impasse is a possibility, you should contact your Regional Vice President and Labor Relations representative to discuss the appropriate steps that must be taken.

 

There are several FAA regulations covering workweeks, tours of duty, work schedules and AWS, including Compressed Work Schedules (CWS) and Flexible Work Schedules (FWS):

 

·       Human Resources Policy Manual (HRPM), Leave and Work Schedules (LWS) 8.14 (Workweeks, Tours of Duty, and Work Schedules)

·       HRPM, LWS 8.15 (Alternative Work Schedules)

·       HRPM, LWS 8.17 (First 40/80-Hour Tours of Duty)

·       Human Resources Operating Instruction (HROI), Compressed Work Schedules

·       HROI, Flexible Work Schedules

 

LWS 8.14 Definitions:

 

Administrative Workweek – “in the FAA, the administrative workweek is the 7-calendar day period, which begins at 0000 hours Sunday and ends at 2400 (midnight) hours the following Saturday.”

 

Basic Workweek – “the 40-hour workweek for full-time employees.”

 

Regularly Scheduled Work – “regularly scheduled work means work that is scheduled in advance of the administrative workweek.”

 

Tour of Duty – “tour of duty means the hours of a day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitutes an employee’s regularly scheduled administrative workweek.”

 

Core Time (Hours) – “those designated hours and days during the biweekly pay period established by the agency when an employee must be present for work.”

 

The agency has “Basic Work Requirements” for both full-time and part-time employees:

 

·       Full-time employees are required to work eighty (80) hours in a pay period;

·       Part-time employees are required to work thirty-two (32) to sixty-four (64) hours in a pay period.

 

The FAA has two (2) different types of AWS:

 

·       Compressed Work Schedules (CWS);

·       Flexible Work Schedules (FWS).

 

Compressed Work Schedules (CWS):

 

In accordance with LWS 8.15, there are two types of CWS in the FAA:

 

·       A 4-10 schedule; and

·       A 5-4/9 schedule.

Employees working a CWS cannot earn or use credit hours except where allowed by the CBA.

 

 

4-10 Schedule:

 

The basic work requirement under a 4-10 schedule consists of 10 hours per day, 40 hours per week, and 80 hours per pay period, with three days off per work week and six days off per pay period.  Additionally, the employee selects arrival and departure times.

 

An employee working the 4-10 schedule who are excused from work on holidays are entitled to their basic rate of pay for that day, not to exceed 10 hours.  Likewise, employees that work holidays under the 4-10 schedule are entitled to holiday pay for all hours worked on the holiday, not to exceed 10 hours.

 

5-4/9 Schedule:

 

Under this plan, employees work 9 days per pay period.  This schedule is accomplished by working for 9 hours, 8 days per pay period and 8 hours for 1 day per pay period.  Additionally, employees must work a fixed schedule and must be present or otherwise accounted for by leave and/or other approved absence during core hours for 4 days in week one of the pay period and 5 days in week two of the pay period.

 

 

Flexible Work Schedules (FWS):

 

In accordance with LWS 8.15, there are five (5) options of FWS.  These options are:

 

·       Flexi tour;

·       Gliding;

·       Variable day;

·       Variable week;

·       Maxi flex

 

Flexi tour:

 

An employee selects their daily arrival time, subject to management approval, in advance of the upcoming pay period.  The employee works a fixed schedule with designated arrival and departure times, 8 hours per day, and 5 days per week.  The arrival and departure times are fixed until a new schedule is requested and approved. 

 

Gliding:

 

An employee elects to vary the arrival times on a daily basis, without management approval, and the employee works a variable schedule of 8 hours per day, and 5 days per week. 

 

 

Variable Day:

 

The employee elects to vary the arrival and departure times and they also elect to vary the length of the day.  However, management may require such daily variations requested and approved in advance of each pay period.  The employee works a 40 hour week and an 80 hour pay period.  Core hours are in effect all five days of the workweek. 

 

Variable Week:

 

The employee may vary the daily arrival and departure times, the length of the workday and days per week, and the length of the workweek.  However, management may require such daily and weekly variations requested and approved in advance of each pay period.  The employee works 80 hours in the pay period and core hours are in effect all 5 days of the workweek. 

 

Maxi flex:

 

Employees may vary the daily arrival and departure times, the length of the workday and the length of the workweek.  However, management may require such daily and weekly variations requested and approved in advance.  The employee works 80 hours in a pay period and may work less than five days per week and/or less than ten days per pay period. 

 

Under an FWS, overtime, night differential and holiday pay are limited to a maximum of eight (8) hours for all five options.

 

Employees are allowed to earn and use credit hours, with management approval, if they are working a flexible work schedule.  However, in accordance with our CBA, either of the two types of CWS and “maxi flex” work schedules are not authorized at facilities that operate 24 hours per day.

 

NOTE**For all seven (7) types of AWS schedules listed above, the employee must be present or otherwise accounted for by leave and/or other approved absence during core hours.

 

Below is some very important case law regarding AWS.  I am providing this case law to you in order to assist you in preparation for your BWS negotiations:

 

·       Alternative work schedules are a fully negotiable topic, subject to the provisions of the Act or other laws superseding the Act.  (23 FLRA 872) (The negotiability of this matter is subject to the provisions of our CBA regarding “Covered-by” which will be explained in a future edition.)

·       Proposals establishing work hours, core times and core days and the maximum hours employees may work during a day are negotiable to the extent that they comply with the Act.  (5 FLRA 441) (The negotiability of this matter  is also subject to the provisions of our CBA)

·       Generally, the only basis for an acceptable non-negotiability claim is an assertion that a proposal for an AWS is in conflict with the provisions of the Act as set forth in 5 USC 6131.  (23 FLRA 872) (If during negotiations, the agency asserts a proposal is non-negotiable, contact your LR Lead or RVP)

·       Questions as to whether an AWS would conflict with the Act are subject to negotiability determinations by the FLRA.  (32 FLRA 879) (Again, contact your LR Lead or RVP if you have questions on non-negotiability)

·       The Agency bears full burden of proof regarding establishment or termination of an AWS.  (97 FSIP 117) (5 USC 6131) (The agency also must follow the provisions of the laws in order to terminate an AWS)

·       A proposal that would have required non-unit personnel or a specific bargaining unit employee to accept an AWS was non-negotiable.  (27 FLRA 349) (An employee cannot be forced into an AWS.  An employee must volunteer to work an AWS)

·       A proposal to allow employees temporarily assigned to other parts of the agency to continue working under their AWS is negotiable.  (29 FLRA 348) (This can be used to negotiate for employees to keep an AWS that are temporary medically disqualified or for controllers that become Staff Specialists during the year)

·       Although the Act renders flexible and compressed work schedules generally negotiable, Agency management retains the right to determine the Agency’s hours of operation and can require the presence of that number of employees necessary to meet operational needs.  (42 FLRA 1196)

·       Hours of work constitute a condition of employment.  (50 FLRA 140) (This means that it is negotiable)

·       A change in starting and/or quitting times constitutes a change in a tour of duty.  (33 FLRA 532) (This means that it is negotiable)

·       Management’s right to assign employees to tours of duty does not affect the right of Unions to negotiate flex time arrangements.  (38 FLRA 1136)

·       A proposal that called for the establishment of an array of tours of duty with set starting and quitting times, but which did not require management to assign any particular number of employees to any of them was negotiable as an appropriate arrangement.  (44 FLRA 1570) (This is also subject to the provisions contained within our CBA)

·       A proposal that would have limited the number of employees management could assign to a particular shift was not negotiable.  (46 FLRA 1152)

·       A proposal that would have required the Agency to allow a specific percentage of employees to be absent under an AWS, regardless of the Agency’s operational needs was non-negotiable.  (20 FLRA 35)

 

It is important for all of us to know how case law plays into our negotiations.  While case law has significant impact should something go awry in the negotiations, such as impasse or a negotiability appeal, it has little impact in the actual negotiations with your counterpart.  The reason being, that the FAA more often than not will either just blatantly disregard established case law, or they will disagree with you as to its application to your day-to-day negotiations.  This however, does not preclude you from raising this case law during your negotiations, and in fact, you should raise it if it is applicable to the discussion at hand.

 

If you are ever faced with any scenario where the Agency disregards the case law that you have provided, call your respective Labor Relations Lead or your RVP.  If necessary, they can raise the issue to their level in an attempt to work out the situation.

 

When you get ready to negotiate your respective BWS MOUs, you should become familiar with the Agency’s regulations regarding AWS.  You also should compare those regulations with the provisions of our CBA, specifically Articles 32 and 34.  When doing so, please keep in mind that our CBA is determined to be a valid exception to the Agency’s regulations.

 

Should there be any questions regarding AWS, you should contact your FACREP, Regional LR Lead or your RVP.

 

 

Mike Hull

NWP LR Lead

Installment 28

The Collective

Bargaining Process

Overview

 

 

Hello NWP Members and Reps;

 

Welcome to LR Chronicles number 29.  This edition of the LR Chronicles will be a “crash course” in bargaining and negotiations.  This edition will basically be a “bargaining 101” class.  Considering the fact that we have many new FACREPs in our region, this edition will be mainly for them, but also will be a possible refresher for some of our more seasoned FACREPs.  I will only cover the highlights of bargaining in this edition.  Whether I use the term “bargaining” or the term “negotiations,” for this edition of the LR Chronicles, those terms are synonymous.

 

Beginning with this edition, I want to ensure that ALL FACREPs are properly and appropriately prepared to conduct bargaining on the basic watch schedule (BWS) and annual leave MOUs.  To that end, the next several editions of the LR Chronicles will be dedicated to this very important issue.  Recognizing the fact that this edition is a “crash course” in bargaining, the next edition will be a full explanation of the different types of Alternative Work Schedules (AWS).  All FACREPs have the right to negotiate the use of AWS as part of their basic watch schedules.  However, as per our CBA, the use of AWS has limitations for certain facilities.

 

Beginning with the May edition of the LR Chronicles (LR Chronicles number 31), there will be a multiple-part edition in which all of the different facets of the collective bargaining process will be broken down and explained in-depth.  Bargaining to reach agreement on an issue is a very complex and extensive subject that has many nuances. 

 

To ensure that all FACREPs have all of the information that they need in order to prepare for and conduct their respective BWS and annual leave negotiations, beginning with this edition of the LR Chronicles, I will be sending out two (2) editions per month.  You can expect one at the end of each month (as usual) and you can also expect one in the middle of each month.  My goal is to get all relevant information to you by the end of June or the middle of July.  There will be more editions after that regarding the collective bargaining process, but they will focus on what happens if you cannot reach agreement or if you feel the Agency has engaged in “bad-faith bargaining.”  Both of which will more likely than not, be handled above the facility level.

 

To begin, there are several federal laws that encompass bargaining.  Additionally, our own CBA, as well as the Agency’s imposed conditions of employment (ICE) cover bargaining during the mid-term.  However, the vast majority of rights and responsibilities of bargaining in the federal sector emanate from case law issued by the Federal Labor Relations Authority (FLRA).  One of the responsibilities charged to the FLRA is the interpretation of federal law that covers bargaining.  The FLRA does this in many ways, including, but not limited to previously issued FLRA case law, previously issued Court decisions, and reviewing Congressional intent of federal law.

 

Title 5, Chapter 71 Laws that cover collective bargaining:

 

Several laws cover collective bargaining under the Federal Service Labor-Management Relations Statute (FSLMRS), otherwise known as “Title 5, Chapter 71” or “The Statute.”  It is extremely important that everyone who will negotiate with the Agency on behalf of NATCA and our membership become familiar with these provisions of law.  They are:

 

·        5 USC 7103(a)(12) (Definition of collective bargaining)

·        5 USC 7103(a)(14) (What is a condition of employment)

·        5 USC 7106 (All of it) (Management Rights)

·        5 USC 7114(b)(4) (Information Requests)

·        5 USC 7116(a)(5) (Refusal to negotiate in good faith)

·        5 USC 7116(a)(6) (Refusal to cooperate in impasse proceedings)

·        5 USC 7117(a)(1) (Duty to bargain in good faith)

·        5 USC 7119(a) and (b) (Utilizing the Federal Mediation and Conciliation Service (FMCS))

·        5 USC 7119(c)(1) (Utilizing the Federal Service Impasses Panel (FSIP))

·        5 USC 7119(c)(5)(A), (B), and (C) (Reaching agreement at impasse proceedings)

·        5 USC 7131(a) (Official time for negotiations)

 

Level of Recognition for Negotiations:

 

In accordance with FLRA case law, it is well established that the Agency is only required to bargain with an exclusive representative at the level of “exclusive recognition.”  To negotiate beyond the level of recognition is only done at the election of the Agency.  That kind of subject of negotiations is a “permissive subject of bargaining” in accordance with 5 U.S.C. 7106(b)(1). In the case of NATCA and the FAA, the level of exclusive recognition is at the “national level.”

 

During the negotiations for the CBA in 1997 and 1998, the FAA elected to agree to local and regional level bargaining for all issues.  During the negotiations in 2005 and 2006, the agency elected only to bargain below the national level for a few issues, such as the basic watch schedule, annual leave, recognition and awards, and distribution of overtime.

 

Notice of proposed changes to the Union and Duty to Bargain:

 

The first step in the bargaining process is a notice to the Union, from the Agency, should they contemplate any changes to working conditions of employees contained within the bargaining unit.  However, in accordance with federal law as well as FLRA case law, the requirement for an agency to notify and bargain with the exclusive representative has a few caveats, including:

 

·        The contemplated change must be a “condition of employment”

·        The contemplated change must be more than “de minimis” in nature;

·        The contemplated change must not already be “covered-by” the CBA.

 

“De minimis” is a Latin term meaning “trifling,” “minimal,” “insignificant.”

 

“Covered-by” is used as a defense to alleged failure to satisfy a statutory bargaining obligation.  In order to determine whether an issue is covered-by the existing CBA, the FLRA applies a two-part test.  Prong one is whether or not the matter is “expressly contained” in the agreement.  If it is not, prong two is whether or not the matter is “inseparably bound up” with and thus, plainly an aspect of an issue covered by the CBA.

 

Union response to a notice of proposed change:

 

The second step of the bargaining process is the Union response to an Agency notice of proposed change.  In accordance with our CBA, the Agency must give thirty (30) days notice of a proposed change, and once received; the Union has fifteen (15) days to request a meeting regarding the change.  This request for a meeting/briefing should be done in writing and should use the following language: “NATCA requests a full briefing on this matter.  NATCA also reserves the right to request the initiation of formal bargaining over all negotiable matters related to this issue.  In the interim, NATCA expects the Agency will not implement any proposed changes until a briefing has been provided and, if NATCA determines bargaining to be necessary, until the conclusion of any bargaining in accordance with the CBA and/or the Federal Service Labor-Management Relations Statute.”

 

Regardless of whether or not they provide a briefing, or even respond to your letter/email, it is imperative that you submit negotiable proposals within the established timelines.  Failure to do so may result in a determination that you waived your right to bargain.

 

No notice of impending change:

 

As stated above, when the Agency contemplates a change in working conditions that may only affect your facility, they may not notify you.  The reason is due to their white book stating that all bargaining will be at the national level except for those issues which they choose to negotiate below the level of recognition.  However, this does NOT relinquish their right to notify NATCA under the CBA and law.  Therefore, should you become aware of any changes that affect your BUEs, it is extremely important that you contact your RVP or Regional LR Lead as soon as you become aware of the change.  There is a procedure that is set up at the national level for these situations.  Your RVP or Regional LR Lead will give you the appropriate guidance.

 

Meeting/Briefing regarding proposed changes:

 

The third step in the bargaining process is for the Union to receive a full and complete briefing regarding the change(s) contemplated by the Agency.  The purpose of the briefing is for the Union to fully understand the proposed change, in its entirety.  Once the Union has a full understanding of the issue, it can properly formulate and submit negotiable proposals.  If you ask questions in the briefing that the Agency cannot answer, or answer to your satisfaction, contact your RVP or Regional LR Lead for the appropriate guidance.  In accordance with the CBA, there are strict timelines for the submission of proposals, so make the contact sooner rather than later.

 

Submitting proposals regarding Ground Rules for bargaining:

 

Prior to the actual substantive bargaining for a change in working conditions, a Union has a right to propose and bargain the “Ground Rules” for the actual substantive bargaining.  However, in accordance with FLRA case law, submitting a proposal for Ground Rules, does not remove the Union’s requirement to also submit substantive proposals within established timelines in accordance with our CBA, as mentioned above under “Union response to a notice of proposed change.”  Ground rules form the basis for the substantive negotiations and cover such issues as:

 

·        How many members on each respective negotiating team;

·        Identifies each Chief Negotiator who will have the full authority to bind each respective side regarding any aspect of negotiations;

·        Official time for the Union’s negotiators;

·        When and where bargaining sessions will take place;

·        How long a bargaining session will last;

·        When a caucus may be called and by whom;

·        When a break may be called and by whom.

 

In accordance with FLRA case law, there are specific requirements regarding ground rules negotiations.  If you ever find yourself wanting or needing to negotiate ground rules, contact your RVP or Regional LR Lead for the appropriate guidance.

 

Submitting substantive proposals regarding changes in working conditions:

 

It is extremely important to document all of your proposal submissions as well as all of your bargaining sessions.  When a proposal is submitted to management, it should contain the language that you desire, as well as a label for each proposal.  Of course, the first proposal that is submitted is labeled “U-1.”  The “U” stands for Union and the “1” indicates that it is the Union’s first proposal.  Likewise, the proposals submitted to the Union by management should be labeled “M-1” or “A-1.”  The “M” stands for management and the “A” stands for Agency.

 

Depending on what is agreed between the parties regarding the submission of proposals, the appropriate exchange of proposals should be:

 

·        U-1

·        A-1

·        U-2

·        A-2

·        U-3 and so on.

 

This example is used if it was the Union that submitted the first proposal.  Do not negotiate with yourself.  If you have submitted a “U-1”, then it is incumbent upon the agency to answer your proposal with their “A-1.”  However, if you have discovered a problem with your preceding proposal and you need to correct it, you may do so as long as you do not receive the Agency’s response to that proposal.  You can do this by submitting a “U-2r” or “U-3r.”  The “r” stands for revised and you should also notify the agency in the form of a letter that you needed to make changes to the most recent proposal and that they should disregard the previous submission.

 

Tentatively Agreed Upon (TAU):

 

It is very important to document all of your bargaining sessions.  You should have, at a minimum, one other person with you in all of your bargaining sessions.  The function of the other person is to take notes during each session.  The “note-taker” is responsible for getting everything in writing that is said by each negotiator in all sessions.  This completed document will become the “bargaining history” for the issue that you are bargaining.  Bargaining history is extremely important in any third party action.  Without bargaining history, a third party is only left to decide any breach of an agreement based on the plain language of the Agreement and any testimony provided in a third party proceeding.  It is never good to have bargaining history end up in a “he said/she said” scenario.

 

As you are in your bargaining sessions, if you and the Agency are in agreement on any specific provision of the proposal, you and the Agency’s Chief Negotiator should “TAU” that provision.  This is done by either initialing or signing all provisions to which agreed, as well as noting the date on which the provision(s) was/were agreed.

 

Once you have the language that you want and you TAU that provision with the Agency, do not reopen that provision.  There is a past practice in negotiations between NATCA and the FAA that a TAU’d provision can only be reopened by mutual agreement of the Parties.  Should you ever find yourself needing or wanting to reopen a TAU’d provision, prior to doing so, contact your RVP or Regional LR Lead for guidance.

 

Agreement:

 

Once all provisions within a proposal have been TAU’d, you have an Agreement.  In accordance with federal law (5 USC 7103(a)(12)), if requested by either Party, both Parties must sign the Agreement that is reached.

 

Agency Head Review:

 

The very last step in the bargaining process is afforded to the Agency under 5 USC 7114(c).  This is where the Head of an Agency (or their designee) may approve or disapprove the negotiated Agreement within thirty (30) days of its execution (signed).  An Agency Head may ONLY disapprove an executed Agreement if any provision within that Agreement violated federal law or a Government-Wide regulation.

 

Should the Agency Head not approve the Agreement AND serve the Union with its disapproval within the thirty (30) day requirement, the Agreement becomes in full-force and effect.  However, should any provision within that Agreement be deemed contrary to law or Government-Wide regulation by a third party, that provision becomes unenforceable.  If the Agency Head disapproves any portion of the Agreement, even just one word, then the entire Agreement is un-enforceable unless both NATCA and the FAA agree to otherwise.

 

**NOTE**   The following provision should be included in your Ground Rules proposal or your substantive proposal should you decide to not submit a Ground Rules proposal:  “Should the Agency Head determine that any provision of this Agreement be deemed contrary to law, the remaining provisions will be in full force and effect and binding on both Parties.”

 

Subjects of Bargaining:

 

In accordance with Title 5, Chapter 71, there are three (3) subjects of bargaining.  They are as follows:

 

·        Prohibited (5 USC 7106(a))

·        Permissive (5 USC 7106(b)(1))

·        Mandatory (5 USC 7106(b)(2) and (b)(3))

 

Impasse:

 

A bargaining “impasse” is reached when there is no further movement or concessions to be made by either the Union or the Agency.  Federal law does not mandate that either the Union or the Agency to agree to or make concessions in bargaining.  5 USC 7103(a)(12) states in part “…but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession.”

 

In accordance with federal law and FLRA case law, there are very strict rules and procedures that must be followed in the case of a bargaining impasse.  If you ever find yourself at a possible impasse, contact your RVP or Regional LR Lead immediately.

 

As stated at the beginning, this edition of the LR Chronicles is meant to be a “crash course” in the collective bargaining process.  In the coming months, I will fully explain, in detail, that which has been covered in this edition.  I will also ensure that I have all future and relevant editions to you in time for your respective BWS and annual leave negotiations.

 

It is extremely important for all NATCA representatives that bargain on behalf of NATCA and our membership to be intimately familiar with all aspects of bargaining and negotiations.  If you are ever in doubt as to a course of action, you need to contact your RVP or Regional LR Lead.

 

If there are any questions, please feel free to contact me.

 

 

Mike Hull

NWP LR Lead

Installment 27

Conduct and

Discipline

 

 

Hello NWP Reps and Members;

 

Welcome to LR Chronicles number 28.  When the Agency alleges some form of wrong-doing by an employee, they must conduct a full and complete investigation to ensure that the alleged wrong-doing was actually committed.  Should the outcome of the investigation result in a positive determination, the Agency is then responsible for determining what, if any, corrective action is necessary to remedy the problem.  When considering any discipline imposed upon an employee, it is important to understand the framework for the review of any such Agency action. The FAA is required to only take disciplinary or adverse actions against an employee when such action will promote the efficiency of the service.  Thus, the FAA must prove by a preponderance of the evidence that the discipline imposed against an employee is necessary to promote the efficiency of the service.

 

To guide this assessment, the Merit Systems Protection Board (MSPB) and the Federal courts have an established body of law interpreting the efficiency of the service standard.  For an Agency to sustain an adverse action based on alleged employee misconduct, it must prove by a preponderance of the evidence each of the following three (3) elements which Federal courts and the MSPB have interpreted the efficiency of the service standard to embody:

          1.       That the employee actually committed all the elements of the alleged misconduct;

          2.       That there is sufficient nexus (connection) between the misconduct and the efficiency of the service to sustain the adverse action; and

          3.       That the particular penalty imposed has been appropriately chosen for the specific conduct involved and is based on a consideration of the factors relevant to promotion of service efficiency.

 

Efficiency of the Service Concept:

A disciplinary/adverse action may ONLY be taken for "such cause as will promote the efficiency of the service."  This is captured in our CBA in Article 10, Section 3, which states “disciplinary/adverse actions shall not be taken against an employee except for such cause as will promote the efficiency of the service.  Any action taken by the Agency shall be supported by a preponderance of the evidence.” In addition, it is a Prohibited Personnel Practice for an agency to take an action based on conduct that does not adversely affect the performance of the employee or the performance of others. Thus, the Agency must prove that any disciplinary or adverse action for misconduct was taken to promote the efficiency of the service. Among the activities that have been held to constitute appropriate grounds for adverse actions are:

·        Lying about qualifications on pre-employment documents;

·        Falsification of government documents

·        Threatening supervisors

·        Violations of the standards of conduct

·        Gambling on government property

·        Abuse of leave

·        Misuse of a government vehicle.

This is only a partial list of grounds that may qualify.   A disciplinary or adverse action promotes the efficiency of the service if the grounds for the action relate to either an employee's failure to accomplish his/her duties satisfactorily, or to some other legitimate government interest.

The requirement that disciplinary/adverse actions be taken only for "such cause as will promote the efficiency of the service" has been interpreted to mean that when the disciplinary/adverse action is based on off duty conduct, the Agency must particularly show a "nexus" (connection) between the conduct and the efficiency of the service.  This is also captured in our CBA in Article 4, Section 2, which states “An employee’s off-the-job conduct shall not result in disciplinary action, unless such conduct hampers his/her effectiveness as an employee or affects the public’s confidence in the Agency.”

In establishing the existence of a nexus, an agency need not present proof of a direct effect on the employee’s job performance if the employee's conduct is adverse to the agency's mission. The MSPB has found that the statutory requirement to show that an agency's action promotes the efficiency of the service obligates the agency to prove by a preponderance of the evidence that there is a nexus between the off-duty misconduct and the employee's job. The Board has held that under ordinary circumstances the agency will be obligated to produce, at the employees hearing, evidence which tends to connect the employee's misconduct to the efficiency of the service.

 

When the Agency contemplates any corrective action or discipline, it relies upon its own directives and guidance.  Specifically, the Agency relies upon their own FAA Order.  It is a Human Resources Policy Manual (HRPM), entitled “ER-4.1, Standards of Conduct.”  This HRPM outlines the acceptable and unacceptable conduct of FAA employees.  ER-4.1 covers, among other things:

 

·        Employee Responsibilities;

·        Safeguarding and use of information;

·        Use of Federal equipment, property and personnel;

·        Observing Safety regulations;

·        Unauthorized absence and tardiness;

·        Defamatory or irresponsible statements;

·        Workplace violence; and

·        Alcohol and Drugs.

 

In addition to ER-4.1, there is a Human Resources Operating Instruction (HROI) entitled “Table of Penalties (TOP).”  This HROI outlines suggested penalties for a wide range of offenses.  Additionally, it outlines an increasing severity of penalties based on whether or not the alleged offending action is a first, second, or third offense from a particular employee.  For example, an offense of “unexcused tardiness” ranges in severity from a:

 

·        “reprimand to a 5-day suspension” for a first offense;

·        “5-day to 10-day suspension” for a second offense;

·        “10-day suspension to removal” for a third offense.

 

There is one very important point to keep in mind regarding the table of penalties.  It is only intended to be used as a guide.  Management officials are given great leeway in determining an appropriate penalty for a specific alleged offense.  The following is an excerpt from the table of penalties:

 

“The listed offenses and suggested penalties are provided as guidance.  This TOP is not designed to cover every possible offense.  Managers may initiate disciplinary measures, up to and including removal, for offenses not listed.  Where a range of penalties is listed, a manager may select the penalty, including the most severe penalty, which is believed warranted.  When describing a charge, care should be exercised to cite only those portions or phrases of the offense that apply.  For instance, offense number 5 of this TOP is “failure or delay in carrying out orders.”  Do not charge the employee with failure and delay if the employee only delayed in accomplishing a task.  The charge must be accurately described and the supporting specification must be specific and supportive of the charge.”

 

Additionally, NATCA and the Agency have elected to negotiate a procedure that covers what is contained within ER-4.1 and the table of penalties.  This procedure is contained within Article 10, Section 13 of our collective bargaining agreement.  “Although not exhaustive, the Agency's table of penalties should be used, when applicable, as a guide to determine an appropriate penalty.  If applicable, appropriate penalties for offenses unlisted in the table of penalties may be derived by comparing the nature and seriousness of the offense to those listed in the table, the employee's previous history of discipline, and other relevant factors in each individual case.  In assessing penalties, consideration will be given to the length of time that has elapsed from the date of any previous offense.  As a general guide, a two (2) year time frame should be used in determining freshness.”

In addition to ER-4.1, and the table of penalties, the Agency must also comply with our collective bargaining agreement (CBA) as well as a few very important decisions articulated by 3^rd parties.  Two of those decisions in particular are the “Douglas Factors,” articulated by the Merit Systems Protection Board (MSPB) in a landmark case entitled “Douglas v. the Veterans Administration,” and a 1966 Arbitration decision that came to be known as the “Just Cause Concept.”

 

Collective Bargaining Agreement:

 

Article 10 of our CBA covers the process to be followed by the Agency when it contemplates the issuance of a disciplinary or an adverse action.  By definition, a disciplinary action covers any action taken by the Agency up to and including a suspension of fourteen (14) days.  This includes oral and written admonishments, as well as written reprimands.  An adverse action covers any action taken by the Agency to suspend an employee for more than fourteen (14) days, up to and including termination.  An adverse action also includes a reduction in grade or pay, as well as furloughs of thirty (30) days or less for reasons other than a lapse in Congressional appropriations.  Such adverse actions are also within the domain of the MSPB.  As such, it is important to note that all FAA employees have a statutory right to pursue a remedy through the MSPB’s processes in lieu of the grievance procedure.  An employee CANNOT, however, pursue a claim through both avenues. 

 

NOTE* This Article does NOT apply to the removal of probationary employees!

 

The NATCA representative that is representing an employee in a disciplinary/adverse action, MUST become familiar with the inner workings of Article 10 in order to ensure the Agency fully follows this negotiated process.  As an overview:

 

Section 5:  (Does not apply to oral and written admonishments or written reprimands)

 

·        The Agency must give written notice to the employee proposing a disciplinary/adverse action;

·        This written notice must be a minimum of thirty (30) days prior to the action taking affect, as provided for in 5 USC 7513(b)(1);

·        The notice must state the specific reason for the action;

·        The employee has an opportunity to reply to the notice both orally and in writing within fifteen (15) days from the date the employee receives the notice;

·        If the action the Agency is taking is under the “crime provision” as per 5 USC 7513(b), then the employee has a reasonable amount of time to reply, but not less than seven (7) days.

·        The employee’s representative, as designated by the Union, may participate in the oral reply;

·        The Agency MUST consider the employee’s reply;

·        Then the Agency shall give the employee a written decision concerning the action that they proposed.

 

Section 6:  (This section is part and parcel to Section 5 and covers actions that involve reductions in grade or pay, or removal for unacceptable performance)

 

·        The requirements of Section 5 also apply to this Section;

·        If the Agency’s decision is to sustain the removal or downgrade, the decision letter MUST specify the instances of unacceptable performance;

·        The final decision MUST be concurred with by a management official that is in a higher position than the management official who proposed the action;

·        The final decision may ONLY be based on those instances of unacceptable performance which occurred within one (1) year prior to the date of the written notice.

 

Section 7:  (Applies to written reprimands)

 

·        No advance notice is required for the issuance of a reprimand;

·        The reprimand must state the specific reason for the action;

·        The employee may present an oral or written reply, within fifteen (15) days of receipt of the reprimand;

·        If the reprimand is sustained, a copy of it, along with the employee’s written reply, will be placed in the employee’s official personnel folder.

 

Section 10:  (Union representation for employee reply and amount of time authorized)

 

·        Up to sixteen (16) hours in cases involving removal, reduction in grade or pay, furloughs of thirty (30) days or less (for reasons other than a lapse in Congressional appropriations), or suspensions of more than fourteen (14) days;

·        Up to eight (8) hours in all other cases;

·        Union representative receives official time;

·        Employee receives duty time;

·        All times may be extended by the Agency upon request.

 

 

The FAA cannot administer the processes for disciplinary and adverse actions in a vacuum; recognized legal precedent must also inform any Agency action.  One of these decisions was promulgated by the MSPB and has been directly incorporated into the Parties’ CBA.   Article 10, section 14 requires that “in making its determination that disciplinary/adverse action is necessary and when determining the appropriateness of a penalty, the Agency shall consider the factors as outlined in Douglas v. Veterans Administration, 5 MSPB 313 (1981).” Basically, the decision in Douglas states that agencies must consider a set of twelve (12) factors, in determining an appropriate penalty to a disciplinary or adverse action.  When NATCA incorporated Douglas into the contract language covering disciplinary and adverse actions, the Union expanded the level of protection provided to employees.  Under the principles established in Douglas, only adverse actions (an agency action that involves a penalty greater than a fourteen (14) day suspension) are subject to the twelve factors.  NATCA’s CBA requires the application of the twelve Douglas factors to any discipline.  Thus, even a one-day suspension is subject to the scrutiny of the Douglas factors.

 

The “Douglas Factors” as outlined in 5 MSPB 313 are:

 

1)     The nature and seriousness of the offense and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.

2)     The employee's job level and type of employment, including supervisory or fiduciary roles, contacts with the public, and prominence of the position.

3)     The employee's disciplinary record.

4)     The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.

5)     The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon the supervisor's confidence in the employee's ability to perform assigned duties.

6)     Consistency of the penalty with those imposed upon other employees for the same or similar offense.

7)     Consistency of the penalty with any applicable agency table of penalties.

8)     The notoriety of the offense or its impact upon the reputation of the agency.

9)     The clarity with which the employee was on notice of any rules they violated in committing the offense, or had been warned about the conduct in question.

10)Potential for the employee's rehabilitation.

11)Mitigating circumstances, surrounding the offenses such as unusual job tensions, personality problems, mental impairment, harassment, bad faith, malice, or provocation on the part of others involved in the matter.

12)The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

Any discipline imposed by the Agency must withstand the scrutiny of “The Seven Tests of Just Cause.”  This “Just Cause” standard was articulated in a decision by Arbitrator Carroll Daugherty.   Arbitrator Daugherty’s award, often referred to as the “Daugherty Decision,” established a single standard to determine if the disciplinary/adverse action of an employee can be upheld as a “just cause” action.  Enterprise Wire Co. and Enterprise Independent Union, 46 LA 359 (1966). This 1966 decision has been widely accepted by all third parties that decide cases, such as the FLRA, the MSPB, arbitrators and Courts of law.

 

In the Seven Tests of Just Cause, an agency MUST be able to answer YES to ALL of the following seven questions:

1.     Notice: Did the Employer give, to the employee, forewarning or foreknowledge of the possible or probable consequences of the employee's disciplinary conduct?

2.     Reasonable Rule or Order: Was the Employer's rule or managerial order reasonably related to

(a)  the orderly, efficient, and safe operation of the  Employer's business; and

(b) the performance that the Employer might properly expect of the employee?

3.     Investigation: Did the Employer, before administering the discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

4.     Fair Investigation: Was the Employer's investigation conducted fairly and objectively?

5.     Proof: At the investigation, did the "judge" obtain substantial evidence or proof that the employee was guilty as charged?

6.     Equal Treatment: Has the Employer applied its rules, orders and penalties even-handidly, without discrimination to all employees?

7.     Penalty: Was the degree of discipline administered by the Employer in a case reasonably related to:

(a)  the seriousness of the employee's proven offense, and

(b) the record of the employee in his service with the Employer?

The efficiency of the service standard and the just cause doctrine come into play at every phase of the discipline process.  Ultimately, the Agency’s actions will be reviewed by a third party and any discipline imposed must meet these standards.  However, a thorough understanding of the Agency’s burden, when disciplining employees, will benefit representatives prior to such third party review.    These elements will come into play when reviewing the information relied upon by the Agency, providing a response to the proposed discipline, and filing a grievance over any imposed discipline. 

 

Mike Hull

NWP LR Lead

Installment 26

New HROI on

Drugs and Alcohol

 

 

Hello NWP Members and Reps;

 

Welcome to LR Chronicles number 27.  On July 1, 2008, the FAA placed into effect their new conduct and discipline order.  This new order is entitled Human Resources Policy Manual (HRPM) “ER 4.1, Standards of Conduct.”  In addition to the many changes to ER 4.1, the agency also made significant changes to their document entitled Human Resources Operating Instructions (HROI) “Table of Penalties (TOP)”, which among other things, increased the penalties for many of the offenses contained therein.  At the same time, the agency instituted a brand new regulation that has a significant impact on all FAA employees, including those that do not hold a safety or security sensitive position.  This new regulation is entitled Human Resources Operating Instruction (HROI) on “Drugs and Alcohol.”  This edition of the LR Chronicles will focus on this new regulation as well as explain the intricacies of it and its impact on NATCA bargaining unit employees (BUEs).

 

To begin with, ER 4.1 has a specific section that is dedicated to drugs and alcohol.  In its entirety, paragraph 15 states:

 

“15. Drugs and Alcohol:

 

a.     DOT Order 3910.1 provides information on the drug and alcohol program and specifically identifies those FAA positions designated as TDP’s.  Also refer to Human Resources Operating Instructions (HROI) – Drugs and Alcohol, for further information.

b.     The FAA is concerned with the decision of any employee who inappropriately or illicitly uses illegal and legal substances.  Illegal substances include, but are not limited to, cocaine, marijuana, opiates, amphetamines and phencyclidine.  Legal substances include alcohol, prescription and over-the-counter (OTC) medications.  These substances can affect the employee’s work performance and/or conduct and have an adverse impact on the employee’s credibility.  For instance, a person’s credibility could be seriously impacted when an employee is in the workplace, and although not drunk, still smells of alcohol.  Often others do not wish to work around a person smelling of alcohol or do not trust the judgment or decision making skills of the employee.

c.      As an employer with responsibility for aviation safety, the FAA is especially concerned when an employee’s actions could affect the safety or security of the National Airspace System (NAS) and/or the flying public.  The confidence of the flying public depends upon absolute trust in the integrity of the air transportation system.  FAA must be sure that employees are operating without the constraint of drugs or alcohol, or the consequences of such abuse, such as a hangover.  Alcoholic beverages are prohibited on any FAA owned or leased property. Employees occupying Testing Designated Positions (TDP), who inappropriately or illicitly use substances, on or off the job, place their jobs in jeopardy.  This includes arrest for drug and alcohol related crimes, such as driving under the influence (DUI).  Employees must avoid this kind of off-duty behavior since it indicates irresponsibility and lack of judgment and is incompatible conduct while occupying a TDP.  As stated in employee responsibilities, employees occupying safety-or security-sensitive positions must report an arrest for an alcohol or drug-related infraction before the start of their next scheduled work shift and, in addition, safety-sensitive employees must report such an infraction within 48 hours to the Regional Flight Surgeon.  In addition, employees occupying safety-sensitive duties must immediately report to their manager any use of prescription and OTC drugs.  The FAA will not allow any employee known to inappropriately or illicitly use substances to perform any safety-or security-sensitive duties until the FAA has determined that such an employee is no longer a risk to public safety or national security.”

 

 

More specifically, the agency’s new HROI on drugs and alcohol mirrors the Department of Transportation (DOT) regulation on “Drug-and-Alcohol-free Departmental Workplace”, otherwise known as DOT Order 3910.1.  As you will see from the paragraphs that follow, there are specific requirements that the agency must follow regarding drugs and alcohol, as well as specific requirements and assurances to which an employee in this situation must adhere.  For example, paragraph 2i of the agency’s new ER 4.1 states “Immediately report known or suspected violations of law, regulations or policy through appropriate channels and fully participate in inquiries.  For instance, this includes immediately reporting an operational error or deviation or reporting any personal violation that has the possibility or appearance of impacting on the employee’s position (e.g., employees occupying safety-or security-sensitive positions reporting an arrest for an alcohol or drug-related infraction before the start of their next scheduled work shift and, in addition, safety-sensitive employees must report such an infraction within 48 hours to the Regional Flight Surgeon.”

 

Regarding the HROI on drugs and alcohol, there are specific procedures that the agency, as well as employees must follow in order to comply with the agency’s regulations, and also those of the DOT.  As a matter of fact, the HROI on drugs and alcohol specifically states that “this HROI is established to supplement DOT Order 3910.1 to provide for specific procedures pertinent to the FAA.”

 

In accordance with the new HROI, there are eight (8) categories of alleged infractions, three (3) of which have no opportunity for rehabilitation and as such, may result in an employee’s removal from the federal service.  Those are:

 

·        Drug trafficking or refusal to comply with procedures during collection or testing;

·        On-duty use or on-duty possession of illegal drugs; and

·        On-duty use of alcohol (TDP Employees).

 

All three of these infractions state “no opportunity to enter into a Treatment and Rehabilitation Program (TRP) or Last Chance Agreement (LCA) is afforded to any employee for an infraction in this paragraph.”

 

The other five (5) alleged infractions all offer an opportunity to enter into a TRP and LCA.  They are:

 

·        Positive drug test in violation of DOT/FAA policy;

·        Positive alcohol test in violation of DOT/FAA policy;

·        Not ready for duty status;

·        Abstinence period failures; and

·        Off-duty misconduct by a Testing Designated Position (TDP) employee.

 

There is one last alleged infraction in this HROI that deals with “repeated misconduct/post-treatment and rehabilitation plan failures.  “Should any employee fall under this category, it will be up to the sole discretion of the Regional Flight Surgeon (RFS) to determine whether or not that employee has violated any abstinence requirement of a previous TRP or LCA.”  Should it be determined that an employee has violated any previous TRP or LCA, that employee will also be terminated.  However, if an employee has a repeated misconduct that was previously on a TRP via a self-referral, they will receive a proposed termination notice with one final opportunity to enter into another TRP via a LCA.

 

There are five (5) key definitions with which to familiarize yourself regarding this HROI.  Those definitions are:

 

Last Chance Agreement (LCA) – A LCA includes pertinent information that clearly defines the terms and conditions of the employee’s employment and that failure to comply will result in the implementation of a disciplinary/adverse action.  The LCA is developed and monitored by the responsible management official.  Only the management official may make changes to the LCA.

 

There are two (2) very important consequences of which everyone needs to be aware PRIOR to signing a LCA.  The first consequence is that by signing and accepting the LCA, the employee will be agreeing to give up any and all appeal rights to which he/she is otherwise entitled in accordance with law and/or CBA.  This includes filing a grievance or any other statutorily provided right for redress.  This fact will be made clear and state as such with the LCA.

 

The second consequence in signing and accepting the LCA is the fact that regardless of the circumstances which led to the LCA, the employee will be agreeing to abstain from alcoholic beverages as well as any substance that contains alcohol for the remainder of their FAA career,  even if the event that led to the LCA was a drug infraction.

 

Should an employee be offered a LCA and not accept the terms and conditions contained therein, and/or refuse to sign it, the proposed disciplinary/adverse action that was proposed will be implemented.  This means that the removal of the employee from Federal service for a TDP employee.

 

There is a very important point to remember when dealing with a LCA or any interviews regarding a LCA.  The FAA, at the regional level (HR in the Regional Office) more often than not conducts these interviews telephonically with the employee.  As such, this is considered a Weingarten meeting and as a result, the provisions of Article 6, Section 1 apply.  The employee is entitled to Union representation if they request it and they have a reasonable fear