The Chronicles of LR

Installment 37

The Collective

Bargaining Process

In-Depth

Part 8

 

Bargaining Disputes

And Impasses

 

 

Hello NWP Members and Reps;

 

Welcome to LR Chronicles number 38.  This edition represents the last in the series of the in-depth explanation of the collective bargaining process.  By now, you have all of the information needed to actually conduct your local level negotiations for any change in conditions of employment, and specifically for the negotiations regarding the basic watch schedule and annual leave MOUs.  This final edition in the series will explain what needs to be done should your negotiations result in impasse and/or should the FAA declare that one or more of your bargaining proposals are non-negotiable.

 

More likely than not, any impasse or negotiability appeal that emanates from the local level will be handled and resolved at a higher level.  The reason being is that should either of these issues arise, a third party entity may become involved in the resolution.  While third party involvement will not preclude NATCA and the FAA from resolving the issue(s) ourselves, any resolution at that point will be handled at the regional and/or national level. 

 

That being said, any resolution regarding impasse or negotiability will absolutely require your involvement.  As the local level chief negotiator, you may be called upon in order to assist us at the regional and/or national level in resolving the dispute.  Additionally, should a third party become involved, you may be called upon to provide evidence and/or testimony in an official proceeding.  This may even be done via a subpoena.

 

In this edition of the LR Chronicles, I will again explain the importance of documentation regarding your local level negotiations, as well as explain what possibilities exist should any portion of your negotiations be elevated to the next higher level.  I will also cover the various laws that cover bargaining impasses and negotiability issues.  Additionally, I will cover and explain the various options that are available to NATCA and the FAA in the resolution of disputes of this nature.  Finally, I will cover the relevant case law that has emanated from these types of disputes.

 

Impasse and/or negotiability issues at the local level:

 

Local level bargaining, otherwise known as “mid-term” bargaining is contained in Article 7 of both the CBA and the white book.  Notwithstanding the differences in protocol to get there, for all intents and purposes, the language in both is the same concerning the resolution of a bargaining dispute.  Basically, what they both state is that after NATCA and the FAA believe they are at impasse, the exclusive avenue for resolution of either type of issue is through Title 5, Chapter 71, otherwise known as the Federal Service Labor-Management Relations Statute.  Regardless of what other laws, rules, regulations or procedures exist, both NATCA and the FAA have agreed that Title 5, Chapter 71 is the appropriate avenue in the resolution of these issues and governs any issue related to mid-term bargaining.

 

Should you ever hear anything different or should you have any questions or concerns regarding what law, rule, or regulation governs mid-term bargaining, it is best to contact your RVP or regional LR Lead.

 

Documentation:

 

As you will recall, over the course of the last nine editions of the LR Chronicles, the importance of documentation has been stressed to you with respect to your local level negotiations.  Documentation is extremely important in everything that you do as a NATCA representative and particularly when there is the possibility of third party involvement on an issue.  (See LR Chronicles numbers 8 and 9)  Considering the fact that these are YOUR local level negotiations and the fact that your local negotiations may result in a resolution above the local level and/or that may involve a third party proceeding, it is incumbent upon you to create and maintain a full and complete written record of what transpired in the negotiations so that once an issue is elevated above the local level, it may be easier to resolve that issue to our benefit, based on the documentation that you have created.  Without the appropriate and requisite documentation, these types of issues will be much more difficult to resolve regardless of the forum that will be used for resolution.

 

As stated in the previous editions, it is a distinct possibility that your documentation and/or testimony may make or break an appeal or an impasse proceeding.  Without a good and solid record of your negotiations, any issue which may be elevated could end up in a “he said/she said” scenario.  The best way for NATCA to prevail on any issue that is elevated above the local level, is to have and present good, solid documentation.  That begins and ends with you!  Once again, the importance of written documentation cannot be overemphasized. 

 

Relevant and applicable laws that cover bargaining disputes and impasses:

 

There are several laws under Title 5, Chapter 71, that cover bargaining disputes and impasses.  I will give a very brief explanation of each law below.  However, you need to keep in mind that the FLRA and the various courts of law issue case law on disputes that appear before them.  Therefore, just like with any other law, the various third parties further explain and interpret the words that appear in the law.  The following laws address bargaining disputes and impasses:

 

5 USC 7116(a)(6) and (b)(6):

 

Both federal Unions and federal agencies are required to cooperate in impasse procedures and decisions.  Failure to do so may result in an unfair labor practice (ULP) charge.  5 USC 7116(a)(6) makes it a ULP against an agency to refuse to cooperate in impasse procedures and decisions and 5 USC 7116(b)(6) makes it a ULP against a Union to do so.

 

5 USC 7117(c):

 

This law covers bargaining obligation disputes and negotiability disputes as explained below.

 

5 USC 7118(a)(4)(A):

 

This law provides the timelines in which to file a ULP.

 

5 USC 7119(a):

 

This law defines and covers under what circumstances mediation is appropriate for a bargaining impasse.  It is required that mediation is the first step in any bargaining impasse.  Although the law specifically mentions the Federal Mediation and Conciliation Service (FMCS), it is not required that their services be utilized.  Any certified mediator may be used as long as there is agreement among both parties to use the services of any particular mediator.

 

5 USC 7119(b):

 

This law explains that should mediation not be successful in resolving a bargaining impasse, the next step is to enlist the services of the Federal Service Impasses Panel (FSIP).  The FSIP is otherwise known throughout the law as “The Panel” per 5 USC 7103(a)(7). 

 

5 USC 7119(c):

 

This law explains what the FSIP is as well as their make-up, how they are selected to serve, and for how long each panel member serves in their respective position.

 

5 USC 7131(a) and (c):

 

These laws cover the official time authorized for a Union representative to participate in bargaining disputes and impasses.  These laws further state, that it is the FLRA that determines the appropriateness of, as well as the amount of official time to be authorized.

 

5 USC 7132(a) and (b):

 

These laws authorize the FLRA, the FSIP, and/or a court of law to issue subpoenas that require attendance and/or testimony from any federal employee related to any bargaining impasse or dispute.  The subpoena may also include a requirement to produce documentary evidence.  These laws also make it a possible contempt of court charge should any employee not comply with an appropriately issued subpoena.  

 

5 USC 7134:

 

This law authorizes the FLRA, the FSIP and the FMCS to promulgate and maintain the laws by which they are governed.  All three of these entities have done so.

 

 

Reasons for elevation of local level negotiations:

 

There are three (3) reasons in which you may need to elevate a local level issue as a result of negotiations or the breakdown thereof.  Those reasons are:

 

·       A bargaining obligation dispute;

·       A Negotiability dispute; and/or

·       A bargaining impasse.

 

The first two may appear to be similar as they both will end up before the FLRA for resolution.  However, among other differences, the main differences between the two are the forum that will be used to resolve each one as well as the Agency’s rationale for rejecting the Union’s efforts to negotiate. 

 

Bargaining obligation dispute:

 

This type of dispute occurs when the Union or the agency alleges that it has no obligation to bargain over a specific proposal irrespective of the legality of the proposal.  In this situation, the party asserting that there is no bargaining obligation is declaring that there is no legal requirement for them to reach an agreement. .  For example, the FAA may tell you that it has no obligation to bargain because you’re proposal; is “covered-by” an existing agreement is “de minimis” in nature, or it is not a “condition of employment.”  (See LR Chronicles number 32)  Because the party does not believe it is required to enter into negotiations, it will not bargain. A bargaining obligation dispute is resolved through the negotiated grievance procedure (Article 9) that alleges an unfair labor practice (ULP) charge, or by filing a ULP.  Then, the third party must determine whether or not the bargaining obligation has been triggered.  If the third party believes that the matter requires negotiations (i.e. that the impact upon bargaining unit employees is more than de minimis, the parties have not negotiated an  agreement that covers the subject, and it is clearly a condition of employment), then refusal to bargain will be deemed inappropriate. In no case is a bargaining obligation dispute, by itself, handled through a negotiability proceeding.

 

Negotiability dispute:

 

This type of dispute occurs when the Union or the agency alleges that a specific proposal or provision conflicts with a federal law and/or a government-wide rule or regulation.  There are two (2) circumstances when this allegation may be made. The first is when the Union or the agency advances a proposal for bargaining and the other party questions the legality of the proposal.  This occurs in the midst of bargaining.  The second possible time where a negotiability dispute occurs is after the parties at the local level have reached an agreement.  After that agreement is made, the agency will conduct the Agency Head Review.  At that point, the Agency may assert that a negotiated provision (or the entire agreement) is contrary to law.   (See LR Chronicles number 36 for agency head review)  This type of dispute is resolved via a “negotiability proceeding.”  In these situations, there should not be an issue regarding the parties’ obligation to negotiate.  The subject in dispute concerns whether the proposal advanced or provision agreed to is legal.  It must be noted, however, that the FAA may not use the Agency Head Review process as a means to express ‘buyer’s remorse’ and negate an otherwise legal provision. 

 

The behavior of the parties is extremely relevant when there is the potential for a negotiability appeal.  If management makes a passing comment about the negotiability of a proposal, you may ignore it and continue with the bargaining process.  The agency’s opinion is not a formal statement of non-negotiability.  If the negotiations are stalled due to a difference of opinion regarding the negotiability of a proposal, you may then ask for a formal declaration of non-negotiability.  This request will begin the timeline for a negotiability appeal.  Under these circumstances, you have fifteen (15) days to file a negotiability petition with the FLRA.  If the Agency Head Review process results in the rejection of an agreed-upon provision, the clock starts running at the time the Union is served with the Agency Head Review finding.  The Union has fifteen (15) days to file the petition with the FLRA.  Under either situation, contact your RVP or your Regional LR Lead immediately to discuss the appropriate course of action. 

 

Below is some very relevant case law as it applies to bargaining obligation and negotiability disputes:

 

·       There are two types of arguments that may be raised in a negotiability proceeding; negotiability disputes regarding the legality of a proposal, and bargaining obligation disputes regarding whether or not a party must bargain over a proposal that may be negotiable.  (62 FLRA No. 43)

·       A bargaining obligation question, standing alone, is not resolved in a negotiability proceeding.  (62 FLRA No. 43)

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

·       Failure by a party to address any assertion made by the other party will be deemed a concession to that assertion.  (61 FLRA 777)

·       Where a Union offers no argument or authority to counter an agency contention that a proposal affects management rights and does not assert that the proposal is an exception to management rights under section 7106(b), that proposal will be declared outside the duty to bargain.  (61 FLRA 658)

·       Government-wide rules or regulations are those regulations and other official declarations of policy that are binding on agencies and the officials to which they apply.  (3 FLRA 748)

 

There are very strict procedures and timelines to which Unions and agencies must adhere to file the appropriate paperwork to have the FLRA resolve either of these types of disputes.  As stated above, these appeals will be handled at the regional and/or national level.  These procedures and timelines are explained in the FLRA’s regulations under 5 CFR Chapter 24, except that regarding bargaining obligation disputes, the timeline to file a ULP is six (6) months as per 5 USC 7118(a)(4)(A).  Therefore, it is extremely important for you to notify your RVP or regional LR Lead as soon as it becomes apparent that you may have to elevate one of these issues.

 

Bargaining Impasses:

 

A bargaining impasse occurs when there is no further movement or concessions to be made by either the Union or the agency on a specific proposal; the parties simply cannot reach an agreement.  As mentioned in a previous edition of the LR Chronicles, federal law does not mandate that either the Union or the agency agree to a specific proposal or to make a concession.  In an impasse, neither party has alleged that there is no duty to bargain.  Additionally, when considering an impasse, neither party is questioning the legality of the proposals in question.  Instead, the parties are faced with two fundamentally sound proposals.  The sole issue remaining is how to reach a final understanding.  There is a specific procedure outlined in Title 5, Chapter 71 that applies to resolving a bargaining impasse.  Additionally, there are very specific procedures and timelines to which must be adhered in order to resolve the impasse.

 

There are three (3) entities that may become involved and/or assert jurisdiction in a bargaining impasse.  Those entities are:

 

·       The Federal Mediation and Conciliation Service (FMCS);

·       Any other certified mediator agreed to jointly by the parties;

·       The Federal Service Impasses Panel (FSIP) or “The Panel.”

 

The FMCS:

 

The FMCS, if enlisted by agreement among the parties, is required to provide “services and assistance” to NATCA and the FAA in the resolution of a bargaining impasse.  However, the FMCS is given very broad discretion in determining when, for what, and how they will provide services and assistance.  The FMCS will provide mediation services in an effort to assist the parties in resolving any bargaining impasse.  They will meet with the parties, both together and separately, in order to attempt to assist the parties in finding any common ground for resolution and/or suggest ways to both parties to resolve the dispute.  As the name implies, the FMCS mediator only has the ability to bring the parties together; the mediator provided by FMCS does not have the authority to issue a binding award regarding the impasse.  Thus, the mediator should be seen, by both parties, as a tool to resolve the impasse.  Should the parties find it impossible to resolve the dispute even with the assistance of a mediator; the parties will be released to seek the assistance of the FSIP.  In order to avoid problems with timelines, the party declaring an impasse should request the services of both entities at the same time.  While the FSIP may not assert jurisdiction until mediation is attempted, it is better to have a timely FSIP filing and wait as opposed to waiting for a resolution through the FMCS to only be told that the FSIP filing was untimely. 

 

Other voluntary arrangements among the parties:

 

While the statute does not require the services of the FMCS to resolve a bargaining impasse as per 5 USC 7119(b), it DOES require the use of third party mediation PRIOR to moving to the next step in resolution of the impasse.  The way the law is written, it allows either party to decline mediation or agree to mediation utilizing a specific third party mediator.  Should either party decline mediation, more likely than not, a third party mediator will not substantively engage the parties.  However, whether or not a party voluntarily agrees to mediation, the law requires a mediator to “release” the parties to the next step, that being the FSIP.  Barring that release from a mediator, the FSIP will not assert jurisdiction over a bargaining impasse.

 

The FSIP:

 

Like the FMCS, the FSIP is given very broad discretion in determining when, how, and in what manner it will assert jurisdiction in a particular bargaining impasse.  After investigation, should the FSIP decline to assert jurisdiction, they will notify the parties as such and may recommend procedures, both formal and informal, for resolution of the impasse.  Should the Panel decide to assert jurisdiction of your bargaining impasse, they retain their very broad discretion in assisting the parties in any manner that they deem necessary, in resolving the impasse.  They have the authority to recommend and/or direct the parties in a variety of formal and informal procedures including:

 

·       Telephone conferences;

·       Back to mediation;

·       Fact-finding;

·       Written submissions from the parties;

·       Arbitration by actual Panel members or private arbitrators.

 

Additionally, the FSIP has the legal authority to:

 

·       Hold Hearings;

·       Administer Oaths;

·       Take testimony or depositions;

·       Issue subpoenas.

 

Once the FSIP has completed their investigation and has assisted the parties, if the impasse is not resolved voluntarily between the parties, the FSIP has four (4) choices in order to resolve the impasse:

 

·       Accept the last best offer from the Union;

·       Accept the last best offer from the agency;

·       Impose their own contractual language; or

·       Take whatever other action is necessary to resolve the impasse as long as that action is consistent with Title 5, Chapter 71.

 

At any time during this process, whether it is mediation or the FSIP, the parties can agree, between themselves, to resolve the impasse by agreeing to language.  Even after imposition of a course of action from the FSIP, the parties can voluntarily resolve the impasse.  However, should this not occur, the final and binding merits of the FSIP decision is NOT appealable to any other third party, including a court of law.  Even in a situation where the FSIP is asked to resolve an impasse related to a term negotiation, the determination of the FSIP is not subject to the traditional ratification processes.  Therefore, both NATCA and the FAA must live with and abide by any FSIP language that will become part of the contract between the parties.

 

Below is some very relevant case law regarding bargaining impasses:

 

·       Once the parties have bargained to impasse, requesting assistance from the FMCS without follow-up and not invoking FSIP services does not require an agency to maintain the status quo.  (33 FLRA 532)

·       If voluntary efforts, including the assistance of FMCS, fail to resolve a bargaining impasse, either party may request the assistance of the FSIP.  (5 USC 7119(b)(1))

·       The FSIP may accept or decline jurisdiction over an impasse based upon its determination of whether or not the matter is ripe for its services.  (85 FLRR 1-6518)

·       The parties to an impasse may agree to adopt a procedure to resolve the matter through the use of binding arbitration by an independent arbitrator, but only may do so if the procedure is approved by the FSIP.  (5 USC 7119(b)(2))

·       The FSIP is not authorized to independently determine the negotiability of bargaining issues in dispute, but may apply existing precedent to determine whether or not a matter is negotiable.  (26 FLRA 264)

·       Before implementing changes before reaching and announcing an impasse, the agency must allow a reasonable amount of time for the Union to contact the FSIP for assistance.  (16 FLRA 198)

·       If a Union timely requests the assistance of the FSIP to resolve an impasse, an agency is required to maintain the status quo in the conditions of employment to the maximum extent practicable unless the changes are mandated by law or the necessary functioning of the agency.  (18 FLRA 466)

·       If an agency head disapproval of a FSIP ordered provision is later determined to be incorrect based on precedent in existence at the time of the disapproval, the agency is liable to a ULP finding.  (17 FLRA 84)

·       An agency head may lack authority to review and disapprove provisions ordered by an interest arbitrator who was voluntarily appointed by the parties, rather than at the discretion of the FSIP.  (89 FLRR 1-8032)

·       The FSIP ordered the parties to negotiate over the Union proposal to allow an installation mechanic to work a 5-4/9 CWS, because the agency failed to show that the proposal would have an adverse agency impact.  (100 FLRR 1-6513)

 

Final thoughts on disputes and impasses:

 

As you can see, in accordance with the federal law and case law as outlined above, there are very strict rules and procedures that must be followed in the case of a bargaining obligation dispute, a negotiability dispute, and/or a bargaining impasse.  Additionally, there are very strict timelines to which must be adhered should a local level bargaining issue need to be elevated to a higher level.  As such, as soon as you believe there may be a negotiation dispute, you should contact your RVP or your Regional LR Lead.  There are many procedures and timelines that must be followed when dealing with these complicated issues. 

 

As stated in the beginning of this edition, any and all bargaining disputes and/or impasses will be handled above the local level.  Whether it be at the regional or national level, it is nevertheless required that you make these contacts so that we may begin the processes as required by federal law, case law, and/or contractual requirements.

 

Finally, it is very important to keep your regional leadership apprised, as soon as possible, at the very first sign that there may be a bargaining dispute or impasse in your local level negotiations.  The reason for this is twofold: the main reason is that your regional leadership can intercede with FAA management, above the local level, in order to possibly prevent a dispute or impasse from reaching the formal stage that may involve a third party; secondly, your regional leadership can work with the NATCA national office, if necessary, to begin preparing for the formal stage of the dispute or impasse.  In this manner, we can give you the appropriate guidance as the problem progresses should the efforts with regional and/or national level management not resolve the dispute or impasse to our satisfaction.  So please make that contact with your RVP or regional LR Lead as soon as you are aware that a dispute or impasse may become a possibility.

 

If there are any questions and/or concerns regarding this edition of the LR Chronicles, please feel free to contact me.

 

 

Mike Hull

NWP LR Lead

Installment 36

The Collective

Bargaining Process

In-Depth

Part 7

 

Local Negotiations regarding

Basic Watch Schedule

And Annual Leave

 

 

Hello NWP Members and Reps;

 

Welcome to LR Chronicles number 37.  In the previous eight editions of the LR Chronicles, an in-depth explanation was provided regarding the collective bargaining process in the federal sector.  Hopefully, based on those editions, you now have the information necessary to assist you in every facet of your local level negotiations.  Once again, if you have any questions concerning any portion of the collective bargaining process, it is imperative that you contact your RVP or regional LR Lead for appropriate assistance and guidance.

 

Now that you have the in-depth explanation of the technical portion of the process, it is now time to put that to use as you prepare for, and actually conduct, your local negotiations regarding these very important matters.  This edition of the LR Chronicles will explain local level bargaining as it specifically relates to basic watch schedule and annual leave negotiations.  I will explain the different issues that you should consider when negotiating.  I will also explain the differences in negotiating these matters among the different bargaining units that you may represent at your facility.  Lastly, I will cite some very important case law issued by the FLRA, specifically related to watch schedules and annual leave.

 

Please remember that the obligation to negotiate locally over the basic watch schedule and annual leave is a mandatory “contractual” obligation to bargain, rather than a “statutory” obligation.  Thus, the Parties agreed during the course of term negotiations to conduct the local basic watch schedule and annual leave negotiations.  In doing so, NATCA and the FAA agreed to the scope of what must be negotiated; this contractual language serves as a roadmap for the local negotiations.  Any negotiations concerning the procedures to be used and/or followed, in relation to the basic watch schedule and annual leave, fall beyond the previously-discussed covered-by doctrine.  Because the Parties agreed to locally negotiate the basic watch schedule and annual leave, it is inappropriate for the FAA to assert that a “procedure” or “method” regarding the basic watch schedule or annual leave is “covered-by” the CBA, or in their case, the white book.  Should the agency attempt to do so in your negotiations, you should immediately contact your RVP or regional LR Lead.

 

It is very important for you to know that what you agree to in your local level bargaining cannot “increase or diminish” any entitlement that is contained within the CBA.  This requirement is stated in both the CBA (Article 7, Section 5), as well as the FAA’s ICE (Article 7, Section 2).  Therefore, when conducting your negotiations, please keep this in mind.  If there is ever any doubt that any proposal for which you are negotiating may increase or diminish a provision in the CBA, it is best to contact your RVP or regional LR Lead. 

 

Article 32/Article 34 – Basic Watch Schedule Negotiations:

 

In accordance with the CBA, there is a strict definition of what constitutes the “basic watch schedule.”  This same definition is also contained within the agency’s ICE with one minor change.  When conducting your local negotiations for the basic watch schedule, you must tailor your proposals to meet this definition.  Once again, local level agreements may NOT increase or diminish any entitlement in the CBA. 

 

When preparing your proposals and in actual negotiations, please consider the following issues:

 

·       Flexible shift start times;

·       Maxi flex and compressed AWS schedules for non-24 hour facilities; (See LR Chronicles number 30)

·       Flexible AWS schedules for all facilities; (See LR Chronicles number 30)

·       Permanent and/or rotating days off;

·       Rotation of shifts;

·       Procedures for employees bidding to the watch schedule, including:

Ø Via seniority or other means;

Ø Developmental/CPC-IT to be added to the watch schedule after becoming CPC;

Ø Employees not present (leave, detail, etc.) during the bidding process;

Ø New/transferring employees entering your facility after the bidding process begins or is completed;

Ø When and how employees will be notified when it is their turn to bid;

Ø How far in advance is said notification;

Ø How long an employee has to submit their bid;

Ø Bidding to the watch schedule on duty time (a BUE should NEVER be required to bid on their own time);

·       Specific hours of the day for each shift;

·       Regular days off and/or changes thereto;

·       Supervisors to bid their basic watch schedule PRIOR to BUEs bidding (See LR Chronicles number 33);

 

One last thought regarding your basic watch schedule negotiations.  At some facilities, I have heard that management will just assign a developmental or a CPC-IT to the watch schedule at their whim, instead of allowing them to bid in rotation and/or according to seniority or some other means.  According to the information that I have received, this is done by management under the auspices of “training” and management’s alleged right to determine training, as their right to assign work.  This should not happen due to the fact that in both the CBA AND the white book, the language pertaining to the basic watch schedule describes which individuals are to be addressed by the negotiations and the schedule itself; it addresses ALL employees that fall under the CBA and the white book.  In accordance with Article 32, Section 2 of the CBA; “Procedures for employees bidding and assignment to the basic watch schedule shall be negotiated by the Union and the Agency at the local level.”  In accordance with Article 32, Section 2 of the ICE; “Procedures for employees bidding on the basic watch schedule shall be negotiated by the Union and the Agency at the local level.”  Nowhere in either of these provisions does it state anything about developmentals or CPC-ITs being treated differently than CPCs.  The operative word in BOTH provisions is “employees.”  For management to just “assign” developmentals and/or CPC-ITs to the watch schedule is contrary to what was contemplated by the negotiated language.  Such action, on the part of the Agency, is a diminishment of what is contained within the CBA.

 

Below is some very relevant case law regarding watch schedule negotiations:

 

·       Hours of work constitute a condition of employment.  (50 FLRA 140)

·       A change in starting and/or quitting times constitutes a change in a tour of duty.  (33 FLRA 532)

·       Management’s right to assign employees to tours of duty does not affect the right of Unions to negotiate flextime 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 that management assign any particular number of employees to any of them, was negotiable as an appropriate arrangement.  (44 FLRA 1570)

·       A proposal that involves both 5 USC 7106(a) and 5 USC 7106(b) (e.g., a proposal affecting the number of employees assigned to a particular shift), is negotiable because 5 USC 7106(b) exists as an exception to 5 USC 7106(a).  (54 FLRA 521)

·       The FSIP ordered the parties to negotiate over the Union proposal to allow an installation mechanic to work a 5-4/9 CWS, because the agency failed to show that the proposal would have an adverse agency impact.  (100 FLRR 1-6513)

·       A change in work assignments which resulted in 15-20 minutes of extra work each day was substantial in character.  The agency committed a ULP when it failed to provide the Union with an opportunity to negotiate in advance of the change.  (54 FLRA 531)

·       The fact that a change affects only one employee will not necessarily render it de minimis.  (60 FLRA 620) and (47 FLRA 419)

·       A proposal that would allow employees to have their work schedules adjusted to enable them to attend weekend National Guard or military reserve meetings was negotiable.  (43 FLRA 1140)

 

 

Article 24 – Annual Leave Negotiations:

 

In accordance with both the CBA and the white book, an employee has a right to use all of the annual leave that they are entitled to earn within a leave year.  This is a very important fact to remember when negotiating your annual leave MOU.  Notice it says “use” and does not say “bid.”  Additionally, you need to keep in mind the definitions of what constitutes each category of annual leave.  In accordance with both the CBA and the white book, there are three (3) categories of annual leave.  They are as follows:

 

·       Prime time annual leave (known as Vacation annual leave according to the FAA’s white book):

Ø This is leave that is bid, through a process for which the procedures are negotiated at the local level.

 

·       Non-prime time annual leave (known as non-vacation annual leave according to the FAA’s white book):

Ø This is leave that is bid or requested outside of the prime time (vacation) annual leave bidding process negotiated procedure, AND prior to the posting of the watch schedule.  Again, the parties at the local level shall negotiate the procedures for recording and/or requesting non-prime time annual leave requests.

 

·       Spot annual leave:

Ø This is leave that is requested for any period during a posted watch schedule or for the shift being worked.  Again, the parties at the local level shall negotiate a secure method for recording spot leave requests.

 

You need to ensure that you negotiate all three (3) categories of leave as explained above.  Please remember that these are contractually mandated obligations to bargain.  As stated above, the covered-by doctrine does not apply.

 

When preparing your proposals, as well as in your negotiations, you should consider the following issues:

 

·       Procedures and methods for employees bidding and/or requesting all three (3) categories of leave:

Ø Prime (vacation);

Ø Non-prime (non-vacation);

Ø Spot;

·       Number of rounds within the bidding process;

·       How leave bids/requests will be recorded (SF-71, web schedule, etc.);

·       When Prime-time (vacation) and Non-prime time (non-vacation) leave bidding begins and ends;

·       Ensure that you know which BUEs are in the four (4), six (6), and eight (8) hour leave accrual categories;

·       Secure procedures and methods for employees bidding and/or requesting annual leave:

Ø Via seniority or other means;

Ø Employees not present (leave, detail, etc.) during the bidding process;

Ø New and transferring employees entering your facility after the bidding process begins or is completed;

Ø When and how employees will be notified when it is their turn to bid;

Ø How far in advance is said notification;

Ø How long an employee has to submit their bid;

Ø Bidding annual leave on duty time (an employee should NEVER be required to bid on their own time);

 

Contained below is some very relevant FLRA case law regarding annual leave negotiations:

 

·       Proposals that would establish procedures for the granting of annual leave are generally negotiable.  (24 FLRA 56)

·       A proposal that merely required the agency to consider requests for advanced annual leave was negotiable.  (46 FLRA 696)

·       A proposal that would establish a system that would give employees access to desirable vacation periods on a rotating basis was negotiable.  (27 FLRA 714)

·       A proposal that would require the agency to notify employees of the possibility that they would suffer a forfeiture of annual leave, and requiring the agency to assist them in scheduling leave to avoid the forfeiture, was negotiable.  (31 FLRA 360)

·       A proposal that would have prohibited the agency from disapproving or rescinding annual leave, if doing so would result in forfeiture of leave was non-negotiable.  (41 FLRA 589)

 

Basic watch schedule and annual leave negotiations for our Traffic Management bargaining unit:

 

If you are the FACREP of a facility where TMCs are assigned, you need to be aware that our TMCs are not under the structure or auspices of Air Traffic.  Our TMCs fall under System Operations.  As a result of this FAA structure, the ATM (or their designee) will not be authorized or willing to discuss any working condition with you regarding TMCs.  Therefore, the only local level management official that is authorized to do so is the local level System Operations management official, known as the Traffic Management Officer (TMO).  Your negotiations on behalf of the TMCs will be with the TMO or their designee. 

 

Since the TMCs are covered by our CBA, you have full authority to negotiate on their behalf.  However, due to the specific nature of their job function, unless you are a TMC, it would be suggested that you delegate the negotiations to your TMU area representative or at an absolute minimum, have a TMC on your negotiating team.  One easy way to address this issue is to negotiate your Air Traffic MOU first, then have your TMU representative (or members of your choosing if you do not have a TMU representative) review this MOU for any changes that may be required specific to the TMU.  You can then approach your TMO with an established Air Traffic agreement and simply review the changes that you felt were relevant for the TMU.  This will greatly expedite the process and keep the agreements similar for the two groups within the same NATCA bargaining unit.

 

Final thoughts regarding local level basic watch schedule and annual leave negotiations:

 

As I stated in LR Chronicles number 32, it is highly suggested that your local level negotiations, regardless of the matter being negotiated, culminate in a written and signed agreement.  If you request to do this, your manager is required by law to comply with your request.  You are taking a chance if you agree with management to incorporate the negotiations into a local order, SOP, or other local level regulation.

 

Also as stated in LR Chronicles number 32, both the watch schedule and annual leave negotiations should be conducted simultaneously.  While one is not dependent on the other,   there may and most probably will be issues that are similar to both matters.  Therefore, it will be easier for you to keep track of those issues if you conduct those negotiations simultaneously.  Finally, you are entitled to and should require two (2) separate and distinct agreements; one for the basic watch schedule and one for annual leave.

 

When you prepare for your negotiations, you should make a list of critical objectives that you want to have in your agreements on behalf of the bargaining unit(s) that you represent.  Also, you should make a separate list of less critical objectives that would be nice to achieve.  When preparing your proposals, all objectives from both lists should be included in your proposals to management.  Please remember that negotiations are a “give and take.”  You will not get everything you want to achieve, and neither will management.  So leave yourself room to maneuver.

 

Approach your negotiations with the mindset that although you are negotiating the “2010” MOUs, you are also setting the table for your future negotiations.  In other words, any agreement reached will become a living document that you can build upon each successive time that you negotiate that issue.  This is a key principle to “incremental LR” and should be constantly reviewed as you examine where each move will take you in future negotiations.

 

Finally, it is important for you to know that you are not alone in your local negotiations.  Whether you are a relatively new FACREP or a seasoned veteran, help is only a phone call or an email away to your RVP or regional LR Lead.  You may also consider putting specific issues on the FACREP list serve and asking questions of the other representatives.  It is most likely possible that your particular issue/question has already been addressed, attempted, or at least researched by another representative.  Do not hesitate to call or email for assistance with any issue.

 

 

Mike Hull

NWP LR Lead

Installment 35

The Collective

Bargaining Process

In-Depth

Part 6

 

The bargaining process

Beginning to end (Continued)

 

 

Hello NWP Members and Reps;

 

Welcome to LR Chronicles number 36.  In the last edition of the LR Chronicles, I began the explanation of the “bargaining process from beginning to end.”  In this edition, I will complete the explanation and finish that process.  As you will recall, I ended the last edition with a discussion and case law regarding ground rules.  In this edition, I will begin with the next step in the process; the discussion surrounding substantive proposals, whether or not you negotiate a ground rules agreement.  I will then continue with the process to the very end, which hopefully concludes with a signed agreement between the parties.  Should it not end with that signed agreement, I will explain the various options, available to the Union, in a future edition of the LR Chronicles.

 

Substantive Proposals:

 

Your substantive proposals are those proposals that go to the “meat” or “heart” of the “change in working conditions.”  In other words, substantive proposals address the change in working conditions that brought about the negotiations in the first place.  Do not confuse the term “substantive” with the term “substance negotiations.”  Substantive proposals are the “impact and implementation portion of bargaining and/or the substance.  Unless the agency agrees to bargain those permissive subjects, your substantive proposals fall under procedures and appropriate arrangements as contained in 5 USC 7106(b)(2) and (3).  Additionally, “substance bargaining” is covered in Article 7, Section 1 of our CBA, which states in part “the provisions of this Article also apply to substance bargaining, if appropriate…”  Therefore, your “substantive proposals” are NOT substance bargaining per se, but they are your proposals that go to the “heart” of the matter being negotiated.

 

Please remember that your impact and implementation bargaining are MANDATORY subjects of bargaining and, even though the parties are not compelled to reach an agreement or to make a concession, these subjects are appropriate for bargaining.  This is in contrast to permissive subjects of bargaining are “at the election of the agency.”  Additionally, the agency, at the local level will, more likely than not, propose a “sunset clause.”  This clause places a time limit on the duration of your agreement.  In other words, the agency will propose a “termination” of any agreement that you reach at the local level.  For example, the agency may propose something like this; “this agreement shall terminate on the last day of the leave year.”  NATCA is not opposed to having a sunset provision in an agreement.  However, the provision must be appropriately tailored to ensure the longevity of the agreement and to preserve the intent of the agreement.  Should the agency propose a sunset clause in any of your local negotiations, you should contact your RVP or Regional LR Lead for appropriate guidance on how to respond to a sunset clause.

 

Submission of ground rules proposals and substantive proposals:

 

Once again, FLRA case law states that the negotiation of ground rules is meant to further and not impede substantive negotiations.  Therefore, in accordance with FLRA case law, both your ground rules and your substantive proposals must be submitted simultaneously, unless you agree with management otherwise.  As stated in the last edition of the LR Chronicles, if you DO have an agreement with the agency on this issue, get it in writing.

 

Actual substantive negotiations:

 

The proposals for your substantive negotiations, as well as your ground rules proposals, need to be formatted in a manner that can be easily understood by a third party.  Every proposal should be treated as if it will be a signed agreement that binds NATCA and the FAA.  This will help with the drafting of proposals, the actual negotiation of the proposals, and help resolve any possible conflict or issue of interpretation in any future proceeding.  There are specific ways to label your proposals in order for the agency to be required to properly respond to your proposals.  As stated in a previous edition of the LR Chronicles, it is extremely important to document ALL of your negotiations, which includes all of your submissions as well as all of your bargaining sessions.  When a proposal is submitted to the agency, it should contain the language that you desire (within the bounds of the CBA and the law) as well as a label for each proposal.  Depending on what is agreed upon in your ground rules (should you negotiate a ground rules agreement), the following suggestions apply regardless of whether they are ground rules proposals or substantive proposals.  There are certain ways to label proposals and certain ways to label proposals that are agreed upon.  Below is an example of the way to format your proposals.  Although this is just an example, this is the format that is used between NATCA and the FAA at the national level:

 

Memorandum of Understanding

Between the

National Air Traffic Controllers Association

And the

Federal Aviation Administration

 

 

This Agreement is made by and between the National Air Traffic Controllers Association, herein after referred to as (“NATCA” or “Union”) and the Federal Aviation Administration, herein after referred to as (“FAA” or “Agency”) and collectively known as “the Parties.”  This Agreement represents the complete understanding between the Parties at the Anytown Tower (XXX) concerning the bidding procedures for the 2009 Basic Watch Schedule (BWS) as outlined in Article 32 of the Parties collective bargaining agreement (CBA).  This Agreement shall be determined a valid exception to, and shall supersede any existing or future Agency rules, regulations, directives, orders, policies and/or practices which conflict with this Agreement, whether or not promulgated at the local level.

 

Section 1:  The language which you desire.

 

Section 2:  The language which you desire.

 

Section 3:  The language which you desire.

 

 

When submitting a proposal to management, in addition to the language that you desire, it should also be labeled appropriately.  This will eventually become part of your “bargaining history.”  The first proposal from the Union should be labeled “U-1” which stands for “Union proposal number 1.”  Then, in response to U-1, the FAA’s first proposal should be labeled “A-1” or “M-1” which stands for “Agency” or “Management” proposal number 1.  The above example is ONLY if it was the Union which submitted the first proposal.  If it was the agency that submitted the first proposal, then the FAA’s response to U-1 would be A-2 or M-2.  Then, each succeeding proposal will be labeled in succession; U-2, U-3, U-4, or A-2, A-3, and A-4. 

 

Do NOT respond to your own previous submission.  In other words, do not negotiate with yourself.  If you have submitted a U-1 proposal, it is incumbent upon the agency to answer that U-1 proposal with an A-1 or A-2 proposal (depending on which party submitted the first proposal).  If the agency has not responded to the U-1 submission with their next appropriate proposal, then it is inappropriate for you to submit a U-2 proposal.  However, if you have discovered a problem with the language that you proposed or have obtained relevant information subsequent to the submission of the proposal, then you may submit a “revised” proposal whether or not you have received a counter-proposal from the agency.  For example, if you submit to the agency a U-2 proposal, and then PRIOR to receiving the agency’s response to that U-2 proposal, you discover that you need different language in that U-2 proposal and you need to correct that language, you may submit a “U-2r” proposal.  This means that you have needed to “revise” your U-2 proposal.  Again, this ONLY applies if the agency has NOT responded to U-2.  If they have responded to U-2, then you can fix the language in U-3.  (Be careful of regressive bargaining; see LR Chronicles number 34.)  Along with submitting U-2r, you also need to notify management of your revised proposal.  You should send a letter or an email, along with the revised proposal, that U-2r replaces U-2 in its entirety and that they should disregard the previous U-2 submission.

 

Agreement of proposals:

 

When you and the agency agree to language in a proposal, such as ALL of the language within a section of the proposed MOU, then the parties need to have a way to signify that agreement.  This is done by “tentatively agreeing” to that language.  This is otherwise known as a “TAU” or tentatively agreed upon.  To do this, you and the FAA’s Chief negotiator need to initial and date the respective section agreed upon along with the letters “TAU.”  Once again as mentioned above, this will become part of your bargaining history, should any portion of the provision/agreement come before a third party.  You do NOT need to agree to the sections of the MOU in the order in which they appear.  For example, if you have a proposal containing twelve (12) sections and you agree with the agency on the language in sections 3, 9, and 10, then those sections should be TAU’d.  Then, as you agree to the language in other sections, those also need to be TAU’d by initialing, dating, and entering the letters “TAU.”

 

Once you have TAU’d a section with the agency, do NOT re-open that provision.  More likely than not, this will be attempted by the agency due to “buyer’s remorse.”  There is a very long-standing past practice in negotiations between NATCA and the FAA that a TAU’d provision can ONLY be re-opened by mutual agreement of the parties.  This practice SHOULD be captured in your ground rules agreement if you have negotiated one. 

 

Full agreement and execution thereof:

 

Once all sections within your MOU are agreed upon (TAU’d), then you have an agreement.  In accordance with 5 USC 7103(a)(12), if requested by either party, BOTH parties must sign the agreement that is reached.  You should ALWAYS demand that the agency sign the MOU.

 

There should be a line below all of the wording in the agreement.  This is best done by using the words “For the Union” and “For the Agency.”  You should place a line underneath the wording where each signature will appear.  Then, underneath each line, all names of all members of each negotiating team, as well as their position for the Union or for the Agency should be placed.  For example:

 

For the Union:                                         For the Agency:

 

 

________________________                        ________________________

John C. Doe                                                        Joseph G. Smith

Principal Facility Representative                    Air Traffic Manager

Chief Negotiator                                                Chief Negotiator

 

 

________________________                        ________________________

Sharon H. Shadwell                                          Richard B. Jones

Vice President                                                    Assistant Air Traffic Manager

NATCA Negotiating Team                                FAA Negotiating Team

 

Agency Head Review:

 

5 USC 7114(c) establishes that any agreement shall be subject to the approval of the head of an agency.  Thus, the law provides a built-in review process for all negotiated agreements.  The head of the agency (or their designee) may approve or disapprove the negotiated and signed agreement within thirty (30) days of its execution.  The agency head may ONLY disapprove an executed agreement if any provision within that agreement violates federal law or is otherwise inconsistent with a government-wide rule or regulation.

 

Once an agreement is reached, then the agency may begin its “agency head review.”  “Reaching agreement” has a specific meaning in accordance with FLRA case law.  Although you should ALWAYS insist the agency sign the agreement reached, it is not necessarily the signing of the agreement that actually “executes” the agreement.  The FLRA has found that the “date of execution of a labor agreement is the day on which no further action is necessary to finalize the agreement.”  In other words, if ALL proposals contained within the document are TAU’d, then the day of the last TAU starts the FAA’s thirty (30) day time clock.

 

If the negotiated agreement passes the agency head review process, either by the agency head providing affirmative approval of the agreement or by failing to disapprove the agreement, the terms of the agreement become in full force and effect.  However, even agency head approval will not make a provision that is contrary to law or government-wide rule or regulation enforceable.  Thus, if such language survives the agency head review process, it is still possible that a third party will determine such language to be unenforceable.  If that occurs, the rest of the agreement remains in full force and effect.

 

Unless the agency head review disapproves specific sections of the agreement, the review may result in the ENTIRE agreement being determined disapproved and unenforceable.  NATCA and the FAA may, however, agree to a different arrangement.  Therefore, the following language should be included in your ground rules proposal, or in your substantive proposal should no ground rules be negotiated:

 

“Should the agency head determine that any provision of this agreement be deemed contrary to law or otherwise contrary to government-wide rule or regulation, the remaining provisions shall be in full force and effect and binding on both parties.”

 

The agency head review process does NOT pertain to “permissive” subjects of bargaining.  The agency head is NOT allowed to disapprove a permissive subject of bargaining upon agency head review.  In other words, agency head review is NOT an opportunity for the FAA to feel “buyer’s remorse” and renege on an otherwise legal and appropriate agreement.  The review is meant to review the legality of the agreement and NOT the wisdom of the local negotiator.  If no action is taken within the thirty (30) day time frame, then the agreement becomes final and binding on both parties.  Should however, the agency head review result in an alleged defect (violation of law or inconsistency with government-wide rule or regulation), the parties can either “remedy” the defect or view the agency head’s assertion as a declaration of non-negotiability.  Should this occur, you need to immediately contact your RVP or Regional LR Lead for proper guidance as there are strict timelines to follow regarding such assertions.

 

Below is some FLRA case law regarding agency head review in accordance with 5 USC 7114(c):

 

·       An agency head is entitled to review and disapprove provisions ordered by the FSIP if they are deemed contrary to applicable law or regulation.  (789 F. 2d 944; DC Circuit, 1986)

·       If an agency head disapproval of a FSIP ordered provision is later determined to be incorrect based upon precedent in existence at the time of the disapproval, the agency is liable to a ULP finding.  (17 FLRA 84)

·       An agency head is entitled to review and disapprove provisions ordered by an interest arbitrator appointed at the direction of the FSIP if they are deemed contrary to applicable law or regulation.  (28 FLRA 137) and (37 FLRA 1346)

·       An agency head may lack authority to review and disapprove provisions ordered by an interest arbitrator who was voluntarily appointed by the parties, rather than at the discretion of the FSIP.  (883 F. 2d 104; 4^th Circuit, 1989)

·       Provisions are not subject to disapproval upon agency head review merely because they implicate permissive topics of bargaining.  (24 FLRA 56)

·       When an agreement becomes effective following the agency head’s failure to address it in a timely manner, any provision conflicting with law or government-wide rule or regulation is unenforceable.  If it is found to be unlawful, it will be deemed void.  (56 FLRA 119)

·       An agency head is empowered to disapprove agreement provisions for failure to comply with applicable law or regulations, but not disapprove them on the basis that they involve permissive topics of negotiation under 5 USC 7106(b)(1).  (22 F. 3d 1150; DC Circuit, 1994)

·       The date of execution of a labor agreement is the day on which no further action is necessary to finalize the agreement.  In most cases, this is the day on which the representatives of the parties sign it.  (41 FLRA 795)

·       Absent notice of disapproval of one or more provisions of an agreement, it goes into effect on the 31^st day after execution, subject to the requirements of applicable law and regulations.  (17 FLRA 19)

·       A notice of disapproval must be in writing and must be served upon the Union within the 30-day review period.  (5 FLRA 599)

·       Upon disapproval of any portion of an agreement, the entire agreement is disapproved unless the parties have agreed otherwise.  (20 FLRA 537)

·       A Union negotiability appeal on a provision asserted by the agency to be non-negotiable upon agency head review must be filed within 15 days of notice of disapproval. (15 FLRA 98)

 

Final thoughts on the bargaining process as outlined herein:

 

There is one last item that needs to be discussed and arguably the MOST important part of the bargaining process; your bargaining history.  As has been stated many times in the LR Chronicles, documentation is essential to ANY meeting with management, especially that of negotiations.  Should there ever come a time where the agency makes an allegation of non-negotiability, or either party declares impasse, or you end up in mediation, there is more than a 99% chance that all documentation will appear before a third party.  You want YOUR version of the events to be the documented version as well as the correct version.  You NEVER want to appear before a third party in a “he said/she said” scenario.

 

To this end, it is extremely important to accurately document EVERYTHING in your negotiation process.  This includes, but is not limited to:

 

·       Accurately labeling your proposals (U-1, U-2, U-3r) etc;

·       Accurately labeling the proposals within the MOU (Section 1, Section 2) etc;

·       Taking good notes in all of your bargaining sessions;

·       Keeping all of your research documents;

 

All of the above will become your bargaining history.  Bargaining history is extremely important to a third party.  With good bargaining history and documentation, especially your notes, you will absolutely have a very good chance of prevailing in any third party proceeding.

 

Finally, anytime you meet with management to conduct negotiations, whether or not they are contractually or statutorily required, the Union has a right to “equal numbers” on official time.  Therefore, if management has three (3) representatives in a negotiating session, then you are entitled to three (3) representatives present and on official time.

 

Bargaining can be very tedious and time consuming.  It can also be very rewarding if done correctly.  It is very important for you to know that assistance for you is only a phone call or email away.  Should you have any questions or need any assistance along the way during your negotiations, you should contact your RVP or Regional LR Lead.  If necessary, they can utilize the services of our national office.  Please do not hesitate to make that phone call or send that email.

 

 

Mike Hull

NWP LR Lead

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