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FLRA Changes Standard to Determine Negotiability of Bargaining Proposals

With the issuance of two decisions – most recently the U.S. Department of Transportation, Federal Aviation Administration, and National Air Traffic Controllers Association, 65 FLRA No. 42 (October 29, 2010) – the Federal Labor Relations Authority has reinstituted the use of the “abrogation” test to determine if certain proposals are enforceable “appropriate arrangements” under 7106(b)(3).

According to the FLRA, a bargaining proposal will only abrogate a management right when it precludes an agency from exercising that right at all. In order for the agency to argue that a proposal by the union abrogates its management right and, therefore, is not enforceable, it must show that the proposal completely abolishes or puts an end to that right.

The “abrogation” test will serve favorably to the union since the Authority or other third party such as the Federal Services Impasse Panel or an arbitrator are no longer required to use a balancing test weighing the benefits accruing to employees from the agreement provision in dispute against the degree of intrusion into management rights to determine if a proposal is an appropriate arrangement.

While this change will impact all bargaining, it will have particular significant impact upon the core bargaining areas – Articles 24, 32, and 34 (annual leave, watch schedules and bidding, and working hours).

For example:

  • The union’s right to submit proposals, concerning both “appropriate arrangements” in response to management’s right to determine an employee’s tour of duty, can only be thrown out if it completely extinguishes a management right.

  • With respect to Article 32, the agency could only claim that the union’s proposals are unenforceable if they completely do away with the manager’s right to determine the employee’s tour of duty (i.e. shift start and stop times).

  • A proposal may not completely limit the agency’s ability to determine coverage requirements, but proposals that reference watch schedules and shift assignments no longer follow a traditional analysis of having to balance employee and management interests and determine the extent to which a provision or proposal would hamper an agency’s ability to perform its core functions in an efficient and effective manner. If the proposal does not preclude management from determining coverage requirements, or when work must be accomplished entirely, than it is negotiable.

  • With respect to Article 24, the agency can only render the union’s proposals unenforceable if they completely do away with the agency’s right to have prime time leave periods, consistent with staffing and workload.

  • A proposal under Article 24 that sets forth the procedures for selecting, scheduling and relinquishing of prime time leave may not completely limit the agency’s ability to determine staffing and workload (i.e. meet coverage requirements). Anything short of a union proposal eliminating the right of the agency to meet coverage requirements should be enforceable.

  • The use of the abrogation test not only has a positive effect on negotiations with management, but it also affects refusal to bargain grievances and unfair labor practice charges.

Based on the “abrogation test,” proposals will now only be found to be unenforceable only when it completely eliminates a management right.