U.S. Office of Personnel Management - Recruiting, Retaining and Honoring a World-Class Workforce to Serve the American People

A test the Federal Labor Relations Authority (external link) (FLRA or Authority) formerly applied in determining whether an arbitration award enforcing a contract provision affecting management's § 7106(a) (external link) rights is deficient. Under that test (which was in existence for 12 years), an award enforcing a contractual provision that is an "arrangement" for employees adversely affected by the exercise of management's § 7106(a) (external link) rights would not be set aside unless it "abrogated" those rights--i.e., unless it left management no discretion at all with respect to the management right(s) at issue. For lead cases see 37 FLRA Nos. 20, 67, 70, 103 (external link) and 38 FLRA Nos. 3 and 21 (external link).

In 58 FLRA No. 21 the Authority, in a split decision, replaced the abrogation test with the "excessive interference" balancing test (external link). Under that test FLRA weighs (a) the extent to which the contractual provision, as interpreted by the arbitrator, provides a "balm" to employees adversely affected by the exercise of a management right against (b) the extent to which it interferes with the exercise of management's rights and determines whether that interference is "excessive."

When some employees are transferred to another employing entity whose employees are already represented by a union, FLRA (external link) will often find that those employees have "accreted" to (i.e., become part of) the existing unit of the new employer, with the result that the transferred employees have a new exclusive representative (external link) along with a new employer. See, e.g., 52 FLRA No. 97 (external link), where FLRA found an accretion and compare it with 56 FLRA No. 174 (external link), where it didn't. Compare with successorship (external link).

• ACCRETION vs SUCCESSORSHIP.  When employees are transferred to different organizations and it is claimed that both "successorship" and "accretion" principles apply, the Authority will first determine whether the transferred employees are in separate appropriate unit(s)--i.e., whether they have a community of interest separate and distinct from that of employees in the gaining employer's existing unit(s). If so, and provided other requirements are met, "successorship" applies and the unit accretion petition will be dismissed. If not, FLRA will determine if the transferred employees have accreted to the gaining employer's existing unit(s). See 52 FLRA No. 97 (external link).

A right reserved to management by § 7106(a)(2)(D) (external link). Management's right "to take whatever actions may be necessary to carry out the agency['s] mission during emergencies" doesn't come up in negotiability disputes very often. In all but one of the cases decided thus far, FLRA has held that this right is interfered with by proposals attempting to define "emergency" because such definitions would be inconsistent with management's right to independently determine whether an emergency exists. See, e.g., 22 FLRA No. 13 (external link), 29 FLRA No. 84 (external link), 30 FLRA No. 52 (external link), and 49 FLRA No. 84, #1 (external link). However, in 55 FLRA No. 42 (external link), it said that it would no longer follow this precedent. It there found that a proposed "definition" that was interpreted as not limiting the situations in which the agency could take actions in an emergency did not interfere with the right to take actions during emergencies. For additional decisions on this right, see, e.g., 25 FLRA No. 61, #4 (external link)(proposal requiring management to negotiate on the changes it will make in the rotational system during an emergency interferes with the right to "take whatever actions may be necessary"). See also14 FLRA No. 91, #2 (external link)(proposal requiring three days notice of changes in hours of work, even during emergencies, interferes with this right).

The FSLMRS applies to executive agencies, including 5 USC § 2105(c) (external link) nonappropriated fund instrumentalities, the Veterans' Canteen Service of the Department of Veterans Affairs, the Library of Congress, and the Government Printing Office. It does not apply to the General Accounting Office, the Federal Bureau of Investigation, the Central Intelligence Agency, the Tennessee Valley Authority, the Federal Labor Relations Authority, the Federal Service Impasses Panel, or the Central Imagery Office. See 5 USC § 7103(a)(3) (external link)

Requirement that negotiated agreements be reviewed for legal sufficiency by the head of the agency (or his/her designee). § 7114(c)(1) (external link). This must be accomplished within 30 days from the date the agreement is executed. § 7114(c)(2). (external link) If disapproved, the union can challenge those determinations by filing a negotiability petition (external link) or an unfair labor practice (external link)(ULP) charge with FLRA. If not approved or disapproved within that time, the agreement goes into effect and the legality and enforceability of its terms is decided in other forums (e.g., grievance or unfair labor practice proceedings). § 7114(c)(3) (external link). During the 30-day period the incumbent union is protected from challenge by a rival union. 5 CFR 2422.12(c) (external link).

A requirement that all employees in the unit (external link) pay dues or fees to the union to defray the costs of providing representation. In 1 FLRA No. 64 (external link) the Authority held that § 7102 prohibits agency shop requirements. See also, 22 FLRA No. 57 (external link), 38 FLRA No. 57 (external link), and 44 FLRA No. 8 (external link). Compare with 56 FLRA No. 157 (external link) (requiring the agency to deduct $2.00 from each biweekly paycheck of each bargaining unit employee who has not joined the union unless the employee requests that a deduction not be made is contrary to 5 CFR 550.312(a)) (external link).

A collective bargaining agreement (CBA). CBAs take many forms, e.g., term agreements, midterm agreements, memoranda of understanding (MOU), basic agreements, supplemental agreements, oral agreements, side agreements, and past practices (external link). Section 7103(a)(9) (external link) defines a collective bargaining agreement as "an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter."

CBAs set forth some of the conditions of employment of unit (external link)employees, various rights and obligations of the parties to the agreement (i.e., the exclusive representative (external link) and the activity or agency), the negotiated grievance procedure (external link), dues withholding provisions (external link), reopeners, as well as the duration of the agreement. CBAs cannot contain provisionsthat interfere with management rights (external link) (unless they are § 7106(b)(3) (external link) "appropriate arrangements" (external link), or § 7106(b)(1) (external link) permissive subjects of bargaining (external link)" on which management has "elected" to bargain), nor evenrestate agency or Governmentwide regulations (external link) that interfere with (i.e., place restrictions on the exercise of) management rights, for that would give them an existence independent of the regulations. (See, e.g., 19 FLRA No. 24, #3 (external link)(RIF regulations) and 47 FLRA No. 79, #1 (external link)(performance regulations)). However, see38 FLRA No. 89, #1 (external link), where the Authority held that a proposal requiring the agency to establish and administer a drug testing program in accordance with the Constitution, laws, rules, regulations, and the contract, interfered with the right to determine internal security practices, but still was negotiable because it was an appropriate arrangement (external link) under § 7106(b)(3) (external link).

Since the most important conditions of employment (external link) for most employees covered by the Federal Service Labor-Management Relations Statute (external link) are established by laws and regulations, many of the conditions of employment (external link) one finds in CBAs are paraphrases, restatements, and/or selected quotations of those laws and regulations and, to the extent the laws and regulations give the agency discretion over the matter and the matter is otherwise negotiable (e.g., not in conflict with management rights), agreed-upon supplements to those laws and regulations. Negotiated agreements are subject to agency head review (external link) for legal sufficiency. § 7114(c)(1) (external link).

Refusing to put an agreement into writing is a unfair labor practice (external link)(ULP). § 7103(a)(12) (external link). Although disputes over the meaning and application of the CBA normally are processed through the agreement's grievance-arbitration procedures, some types of violations can also be processed by the Authority under its unfair labor practice procedures. See, e.g., 21 FLRA No. 117 (external link);22 FLRA No. 25 (external link); compare with 15 FLRA No. 132 (external link). See 51 FLRA No. 72 (external link)  for a description of the analytical framework that FLRA uses to determine whether there has been a repudiation of the agreement--i.e., whether (1) the breach was clear and patent and (2) the provision breached went to the heart of the agreement. Also see 52 FLRA Nos. 22 and 42 (external link). Under section 7116(d) (external link), "issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under [ § 7116 (external link)], but not under both procedures." See 52 FLRA No. 62 (external link) (grievance barred because the issue was the same as in an earlier-filed ULP charge) and compare with52 FLRA No. 37 (external link)(no bar because the unfair labor practice (external link) issue is not the same as the negotiated grievance procedure (external link) issue).

That portion of FLRA's multipurpose petition not involving a question concerning representation (external link) that may be filed at any time in which the petitioner asks FLRA to amend the certification or recognition to, e.g., reflect changes in the names of the employer or the union. See 5 CFR 2422.1(b) (external link). See 54 FLRA No. 40 (external link) regarding the conditions under which FLRA will amend a certification to reflect a change of union affiliation.

A private nonprofit organization that, among other things, provides lists of qualified arbitrators to unions and employers. It is on the WEB at http://www.adr.org/ (external link).

In Treasury v. FLRA, 494 U.S. 922 (1990), the Supreme Court said that only those external limitations on management's § 7106(a)(2) (external link) rights that are contained in "applicable laws" can be enforced by the union under the negotiated grievance procedure (external link). In 42 FLRA No. 31 (external link), the Authority said that "applicable laws" within the meaning of § 7106(a)(2) (external link)include statutes, the Constitution, judicial decisions, certain Presidential executive orders, and regulations "having the force and effect of law"--i.e., regulations that (1) affect individual rights and obligations, (2) are promulgated pursuant to an explicit or implicit delegation of legislative authority by Congress, and (3) satisfy certain procedural requirements, such as those of the Administrative Procedures Act. In 53 FLRA No. 27 (external link),it held that 5 CFR 430 (external link) was an "applicable law." It should be emphasized that the "applicable laws" requirement does not apply to § 7106(a)(1) (external link) rights. See, e.g., 38 FLRA No. 89, #1 (external link), where the Authority held that a proposal requiring the agency to establish and administer a drug testing program in accordance with the Constitution, laws, rules, regulations, and thecontract, interfered with the right to determine internal security practices. (However, the proposal was nonetheless negotiable because FLRA held that it was an appropriate arrangement (external link) under § 7106(b)(3) (external link).) In 43 FLRA No. 46 (external link), the Authority held that the reference to law in "applicable laws" under § 7106(a)(2) (external link) and"to the extent not prohibited by law" under § 7114(b)(4) (external link) were coextensive: therefore law in section 7114(b)(4) (external link), like "laws" in § 7106(a)(2), (external link) &includes . . . regulations having the force and effect of law."

One of three § 7106(b) (external link) exceptions to § 7106(a) (external link) management rights. Under § 7106(b)(3) (external link) a proposal that interferes with management's rights can nonetheless be mandatorily negotiable if the proposal constitutes an "arrangement" for employees adversely affected by the exercise of a management right and if the interference with the management right isn't "excessive"(as determined by an "excessive interference" (external link) balancing test). See, e.g., American Federation of Government Employees v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983) and 21 FLRA No. 4 (external link). For more on this exception, see the remarks under management rights (external link).

A grouping of employees that a union represents or seeks to represent and that the FLRA finds appropriate under the criteria of § 7112 (external link) (community of interest, effective dealings, efficiency of operations) for collective bargaining purposes (external link). Certain types of employees cannot be included in units--e.g., management officials and supervisors. See § 7112(b) (external link). Distinguish between unit (external link) member and union (external link)member. The latter is a matter of individual choice; the former is not.

See ARBITRATOR (external link)

An impartial third party to whom the parties to an agreement refer their disputes for resolution. Section 7121(b)(1)(C)(iii) (external link) mandates that negotiated grievance procedures (external link) provide for binding arbitration (external link) of unsettled grievances.

Most commonly labor arbitrators perform grievance arbitration (external link)--i.e., they interpret and apply the terms of the agreement (including established practices)--and, in the Federal sector, laws and regulations (see applicable laws (external link), above) bearing on conditions of employment (external link). But they are also occasionally asked to perform interest arbitration (external link)--i.e., they resolve bargaining impasses by dictating the terms of the agreement.

Lists of qualified labor arbitrators are provided, upon request and for a fee, by the American Arbitration Association (AAA) and the Federal Mediation and Conciliation Service (FMCS). Nothing, however, prevents the parties to an exclusive recognition relationship from creating their own panels of arbitrators from whatever sources they agree are appropriate.

A right reserved to management by § 7106(a)(2)(A) (external link). This right, often confused with the § 7106(a)(2)(B) (external link)right to assign work (external link), relates to the assignment of employees to positions, shifts, and locations. This right includes discretion to determine "the personnel requirements of the work of the position, i.e., the qualifications and skills needed to do the work, as well as such job-related individual characteristics as judgment and reliability." 2 FLRA No. 77 (external link). It also includes discretion to determine the duration of the assignment. 28 FLRA No. 66, #5 (external link).

The use of seniority procedures in selecting employees for assignments to shifts, details, etc., doesn't normally interfere with the right to assign employees where the seniority criteria are applied to employees that management has already determined are qualified to perform the work. See, in this connection, 44 FLRA No. 1, #1 (external link)(assignment of overtime), 41 FLRA No. 58 (external link)(assignment to details), 30 FLRA No. 80, #1 (external link) (assignment to shifts), and 25 F 9, #4 (external link)(shifts, work areas).

A right reserved to management by § 7106(a)(2)(B) (external link). This right, often confused with the § 7106(a)(2)(A) (external link) right to assign employees (external link), relates to the assignment of work to employees or positions. In 3 FLRA No. 119 (external link)--affirmed by the District of Columbia Circuit Court of Appeals (D.C. Circuit) in National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (1982)--the Authority said the following about this right:

The right to assign work to employees or positions. . . is composed of two discretionary elements: (1) the particular duties and work to be assigned, and (2) the particular employees to whom or positions to which it will be assigned. Furthermore, management discretion in this regard includes the right to assign general continuing duties, to make specific work assignments to employees, to determine when such assignments will occur and to determine when the work which has been assigned will be performed. [3 FLRA at 775.]

The right to assign work includes discretion to determine who (6 FLRA No. 106 (external link))is to perform the work, the kind (29 FLRA No. 61 (external link)) and amount (16 FLRA No. 27, #3 (external link)) of work to be performed, the manner (12 FLRA No. 26 (external link)) in which it is to be performed, as well as when (32 FLRA No. 146, #12 (external link)) it is to be performed. It also includes "[t]he right to determine the particular qualifications and skills needed to perform the work and to make judgments as to whether a particular employee meets those qualifications."32 FLRA No. 144, #1 (external link). When combined with the section 7106(a)(2)(A) (external link) right to direct employees (external link), it reserves to management the right to establish performance standards (13 FLRA No. 50 (external link)), the number of rating levels (13 FLRA No. 96 (external link)), and the identity of performance elements (13 FLRA No. 49 (external link)).

In 56 FLRA No. 134 (external link), the Authority said that it "has long held that proposals that set forth a method or criteria for assignment, including seniority, do not affect the right to assign work where management has determined that employees are 'equally qualified' for an assignment to a particular position."

Work jurisdiction proposals, such as proposals barring the agency from assigning work performed by unit employees to employees outside the unit, normally interfere the right to assign work. (See, e.g., 56 FLRA No. 96 (external link), which also discusses the conditions under which such a proposal, if it applies only to certain prevailing rate employees, might nonetheless be negotiable.)

See Federal Labor Relations Authority (external link).

Many, perhaps most, collective bargaining agreements in the Federal sector have a provision, usually located at the end of the agreement, stating that if neither party gives notice during the agreement's 105-60 day open period (external link)of its intent to reopen and renegotiate the agreement, the agreement will automatically renew itself for a period of x number of years. An automatically renewed agreement, under certain circumstances, can also serve as a contract bar (external link). See, in this connection, 47 FLRA No. 89 (external link).

Pay awarded an employee for compensation lost due to an unjustified personnel action is governed by the requirements of the Back Pay Act,5 U.S.C. § 5596 (external link). For examples of awards set aside because they violated the Back Pay Act, see, e.g.,15 FLRA No. 146 (external link),15 FLRA No. 164 (external link),17 FLRA No. 125 (external link), and56 FLRA No. 64 (external link). Back pay remedies for violations of the overtime provisions of the Fair Labor Standards Act (FLSA) are governed by the FLSA. See53 FLRA No.134 (external link).

A ubiquitous process--sometimes informal and spontaneous, sometimes formal and deliberate--of offer and counteroffer whereby parties to the bargaining process try to reach agreement on the terms of exchange. Deliberateness and a concern for bargaining strategy and tactics usually rise to the fore only when the stakes make such efforts worthwhile. Formal bargaining processes with associated rituals and bargaining routines vary, depending on their political, economic, and social context. Sometimes the formal requirements facilitate the process of reaching agreement; sometimes they become an end in themselves; and sometimes they are deliberately used in order to avoid or delay agreement. The process, as far as negotiations between collectivities is concerned--e.g., firms, unions, nations, and branches of government (e.g., budget negotiations between the President and the Congress)--has been analyzed into four subprocesses by Walton and McKersie in A Behavioral Theory of Labor Negotiations, 1965: distributive ("fixed pie") bargaining; integrative ("variable pie") bargaining (cf. "interest-based bargaining"); attitudinal structuring (cf. "partnering"); and intra-organizational bargaining, with real-world bargaining usually being a variable mixture of all four subprocesses.