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NOAA Workforce Management Office
Serving NOAA's Most Valuable Asset - People
NOAA Supervisory Resource Guide
What Should I Know About Labor Relations?
Typical Scenario: You decide to reorganize and relocate part of the organization to a different section of the building to improve efficiency.
Principle: The decision of whether to reorganize is not open to negotiation because it is covered by the protected management right to determine the appropriate organizational structure. However, if the reorganization results in changes to employees' working conditions (e.g., different work or seat assignments, cubicles versus offices, etc.), the union representing the interests of the affected employees (also known as bargaining unit employees) has the right to discuss with management the procedures for implementing the reorganization and other related issues which include, but are not limited to, assigning work space; requests for vending machines; or ways to assign parking spaces.
Where Do I Start? The existence of a collective bargaining agreement (contract) between management and the union representing the bargaining unit employees is significant. These agreements typically include provisions regarding practices and procedures which may differ from the administrative procedures applicable for other (non-bargaining unit) employees.
In the absence of a contract, each organization has practices and procedures for dealing with specific issues that have been customarily followed within that organization. These are known as past practices.
Failure to follow procedures outlined in the relevant contract or those established by past practice can result in grievances and/or unfair labor practices (ULP) filed by the union against management. By recognizing and assessing your labor union obligations prior to initiating actions, most union problems can be avoided.
Many managers within NOAA supervise employees in positions within one or more bargaining unit(s) and others outside the bargaining unit. Procedures for initiating and implementing changes within your organization will differ based on the bargaining unit status of the position(s) in question. Consequently, it is imperative that you consult with your servicing WFM Advisor prior to initiating any action which may have bargaining unit impact to ensure that you are following the correct procedures (e.g., those explained in the relevant negotiated agreement or those established by past practice).
Basic Rights Under the Law: The Federal Labor-Management Relations Statute is built on a number of "rights" granted to Federal employees, unions, and agency management.
Employees' Rights: The law gives employees the right to organize and to communicate and represent their interests. This mean that employees who occupy positions or who perform duties not specifically excluded by law may decide to elect a union to represented the interests of that newly formed bargaining unit. The elected union would then serve as the exclusive representative of the bargaining unit employees in dealing with agency management.
Employees can form a bargaining unit and choose a particular union to represent them without interference, coercion, threats, or retaliation by management. In other words, Federal managers are not permitted to influence their employees' decision to be represented by a union.
If a union is elected, employees are free to join and assist it, if they wish. Federal employees cannot be required to join or pay dues to a union to retain their jobs, even though their position may be included in a bargaining unit. However, regardless of whether they join and pay dues to the union, all employees included in a bargaining unit are entitled to representation and assistance from the union in dealing with agency management. This requirement is usually referred to as the union's duty of fair representation.
Union Rights: When a union has been chosen to represent a bargaining unit of employees - usually through a secret ballot election - it immediately gains several important rights. As soon as a union is certified, they may choose to bargain with agency management over the personnel policies, practices, and working conditions of bargaining unit employees. Personnel policies and practices are the written "rules" that apply to employees - such as rules for the use of leave, how overtime will be assigned, and the length and frequency of breaks. Working conditions include a broad range of matters that are part of or affect the employees' work environment, for example, heat, light, air conditioning, parking, safety, and health-related matters. These written rules are codified in a labor agreement (contract) that covers various issues in the workplace.
Unions can also negotiate with the agency when management actions, such as a decision to reorganize, will produce a foreseeable impact on the working conditions of unit employees. In addition to the right to bargain, the union also gains the right to represent bargaining unit employees in a variety of other situations. For example, the union is legally entitled to represent employees in presenting grievances and during investigatory discussions that could lead to discipline. They are also entitled to attend certain meetings - formal discussions - at which managers discuss the working conditions of unit employees. A general discussion of these situations is provided later in this section, but you are encouraged to discuss these situations with your WFM Advisor.
Management Rights: The law also provides agency management with certain rights to "manage" its organization. In general, they can be broken down into three main categories: organizational decisions, work assignment decisions, and personnel actions.
Organizational decisions relate to an agency's right to: decide its mission; determine how it will use its financial resources (budget); establish the internal security practices that will be used to protect employees and equipment; and decide what work, if any, will be contracted out.
In assigning work to employees, the law gives management the prerogative to determine: what work will be done; when work will be performed; which work should be assigned to particular parts of the organization; which duties should be assigned to particular positions; and what qualifications are necessary to perform the work.
Finally, the law gives agency management the right to decide upon and carry out a broad range of personnel actions, such as hiring employees, promoting, rewarding, assigning, detailing, disciplining and even laying them off or removing them, if necessary. In short, agency managers are given the legal right to make a very broad range of decisions as to how best to organize and operate the agency to accomplish its mission.
Although management retains the above referenced rights, unions have the legal right to discuss and bargain, as appropriate, over the procedures that management uses to exercise its rights and/or to mitigate the impact on employees who are adversely affected by the exercise of management's rights. For example, they can negotiate on how the agency will go about filling vacancies and what the agency will do to lessen the adverse effects of a reorganization. Therefore, before you begin making decisions on these subjects and announce or initiate implementation procedures, please consult with your WFM Advisor to ensure that you have fulfilled your labor relations obligations.
Meetings with Employees: As a supervisor or manager, you are probably in constant communication with bargaining unit employees on a range of subjects. In the majority of situations, there is no obligation to involve union representatives. However, the law sets up two specific situations in which the union has the right to become involved in discussions you may have with unit employees. In these situations, you are required to make sure that the union is allowed to have a representative present. Therefore, it is important that you recognize these two situations and how to deal with them. They are called "formal discussions" and "investigative" or "Weingarten meetings."
Formal Discussions: When a management representative, such as a manager, supervisor, or WFM Advisor, wants to have a substantive discussion with one or more bargaining unit employees about conditions of employment or a grievance, the union must be notified and given a chance to attend. Since the union is responsible for negotiating the working conditions of employees with management, union representatives are allowed to sit in when managers discuss such matters with the bargaining unit employees. Please note that this provision of the law is not intended to require the presence of a union representative every time some aspect of working conditions or personnel policy is mentioned in connection with routine operations.
Some factors to consider when deciding whether a discussion could be considered formal are: the meeting covers substantive topics; the meeting is pre-scheduled; the meeting has a definite agenda; and attendance is mandatory. Meetings such as these are more likely to be seen as formal discussions.
The requirement is to provide the union timely notice of the meeting. After the union is properly notified, you may proceed with the meeting whether or not the union chooses to attend. If you have any doubt whether a planned meeting could be considered a formal discussion, contact your WFM Advisor for guidance on whether you should invite the union and the appropriate method of notification.
Investigative or Weingarten Meetings: The union shall be given the opportunity to be represented at any examination of a bargaining unit employee by a representative of the agency in connection with an investigation if:
- The employee reasonably believes that the examination may result in disciplinary action against the employee; and
- The employee requests representation.
Routine work discussions or performance related meetings are not considered investigations.
Reasonable belief is based on the perception of the employee.
The employee must request representation. Management is not required to advise the employee of their right to representation unless you are required to by the terms of your contract.
Once the employee requests representation, management has two options:
- Allow the employee to retrieve their representative before continuing or reschedule the meeting; or
- Stop the meeting.
Your WFM Advisor is available to answer questions and provide guidance on any and all of the various aspects and issues in labor relations. Good management practice is to think and consult before you act to ensure that you identify and fulfill your labor relations obligations.
Page last edited: January 25, 2012
