Labor Management Relations Glossary

Federal Service Labor-management Relations Statute (FSLMRS)

5 U.S.C. § § 7101 - 7135. The basis of the labor-management relations program for most non-postal Federal employees. See AGENCY and EMPLOYEE, above. The statute can be downloaded from: www.law.cornell.edu/uscode/5/ch71.html.

Management Official

Under § 7103(a)(11), an individual who formulates, determines, or influences the policies of the agency. Under § 7112(b)(1), such individuals are to be excluded from appropriate units. Because management officials are not "employees" within the meaning of the Federal Service Labor-Management Relations Statute (FSLMRS) (§ 7103(a)(2)(iii)), they do not, among other things, have the FSLMRS-protected right to represent unions. See § § 7102 and 7120(e). In AFGE Local 2513 v. FLRA, 834 F.2d 174 (D.C. Cir. 1987), the court said the following about supervisors, which probably would also apply to management officials:

Congress has not prohibited supervisors from joining unions. It is inconceivable that supervisor-members' right to belong to a union includes nothing more than paying dues and participating in various health plans. While Congress expressly prohibited supervisors from assuming policy-making and representative functions within the union, § 7120(e), there is no evidence that Congress intended to deny supervisors one of the most essential vestiges of union-membership, the right to cast a vote in the election of their union's officials.

Management Rights

Refers to types of discretion reserved to management officials by § 7106(a) which, with the important exception of matters falling within § 7106(b), are not subject to collective bargaining. In 34 FLRA No. 55, the Authority said that "[m]anagement rights under section 7106(a) cannot be waived or relinquished through collective bargaining."

• Core rights.  Rights reserved to management under § 7106(a)(1), referred to as "core" management rights in the National Partnership Council's 1994 Report to the President, consist of the rights "to determine the mission, budget, organization, number of employees, and internal security practices of the agency[.]" "Applicable laws" affecting these core rights cannot be enforced through the negotiated grievance procedure. See Treasury v. FLRA, 494 U.S. 922 (1990).
• Operational rights.  Rights reserved to management under § 7106(a)(2), sometimes referred to "operational" rights, consist of the rights "(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."
• Three exceptions. The three § 7106(b) exceptions to the above involve (1) § 7106(b)(1) permissive (or "elective") subjects of bargaining (e.g., staffing patterns, methods and means of performing work) on which, under the statute, agencies can elect to bargain, (2) procedures management will follow in exercising its reserved rights, and (c) appropriate arrangements for employees adversely affected by the exercise of management rights.
  1. "Permissive" subjects exception.   The § 7106(b)(1) "permissive" subjects deal with, firstly, "staffing patterns" (see 52 FLRA No. 106)--i.e., with "the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty" and, secondly, "the technology, methods, and means of performing work." Under the statute such matters are, moreover, negotiable "at the election of the agency" even if the proposal also directly interferes with the exercise of a § 7106(a) right. See 51 FLRA No. 36.
  2. Procedural "exception."   Section 7106(b)(2), dealing with procedures, really isn't an exception to management's rights as the Authority has held that a proposed "procedure" that "directly interferes" with a management right is not a procedure within the meaning of § 7106(b)(2). See Customs Service v. Federal Labor Relations Authority, 854 F.2d 1414, 1418 (D.C. Cir. 1988). The Authority has given indications that it wants to reexamine this doctrine. See, e.g., 54 FLRA No. 81, footnote 8 and 56 FLRA No. 185, footnote 3.
  3. Appropriate arrangement exception.   Section 7106(b)(3) applies only if the proposal is intended to ameliorate the adverse effects of the exercise of a management right. (It doesn't apply if the adverse effect is caused, e.g., by a regulation.) Where such is the intent of the proposal, the Authority applies a balancing test in which it weighs the extent to which the proposal ameliorates the expected adverse effects against the extent to which it interferes with the management right and determines whether or not the specific proposal "excessively" interferes with management rights. If the interference is "excessive," the proposal isn't an "appropriate arrangement" and therefore is nonnegotiable. If otherwise, the proposal is a negotiable appropriate arrangement, even though it interferes with management's rights.
  4. To qualify as an "arrangement" to which it would be proper to apply the excessive interference balancing test, the proposal has to be "tailored" so that it applies only to those employees who would be adversely affected by the proposed management decision. See, in this connection, Interior, Minerals Management Service v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992). "Prophylactic" proposals that are intended to eliminate the possibility of an adverse effect where it is impossible to predict which employees would be adversely affected by the decision reserved to management by § 7106(a) also qualify as "arrangements" (but not necessarily as appropriate arrangements) within the meaning of § 7106(b)(3). See 53 FLRA No. 59 and 56 FLRA No. 161.

Office of Personnel Management

Issues Governmentwide regulations on personnel matters that may have a substantial impact on the scope of bargaining; consults with labor organizations, pursuant to 5 U.S.C. § 7117(d), on those regulations; provides technical advice and assistance on labor-management relations matters to Federal agencies; also provides information on personnel matters to Federal agencies and the general public (e.g., this annotated glossary); and exercises oversight with regard to statutory and regulatory requirements relating to personnel matters.

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