The Power of Appropriate Arrangements over Management Rights in Formal Negotiations
It is well known that, in the realm of collective bargaining, there are certain functions of government that are reserved by Title 5 to agency management alone and that cannot be bargained away. These are known as “management rights” or “reserved management rights” and can be found under Section 7106(a) of Title 5. These functions, in brief, are as follows:
- To determine the mission of the Agency.
- To determine the budget of the Agency.
- To determine the organization of the Agency.
- To determine the number of employees of the Agency.
- To determine the internal security practices of the Agency.
- To hire, retain, and lay off employees.
- To assign employees.
- To direct employees in the Agency.
- To suspend, remove, reduce in grade or pay, or take other disciplinary actions against employees.
- To make determinations with respect to contracting out.
- To take whatever action may be necessary to carry out the Agency mission during an emergency.
Although the agency cannot be forced to bargain over the substance of these prohibited subjects, the agency must bargain over the impact and implementation of these subjects. What this means is that the union can negotiate 1) over how the “management rights” are exercised as well as 2) over arrangements for those employees adversely affected by the exercise of the management rights.
These two methods of impact and implementation bargaining are known as procedures and appropriate arrangements. Together, they constitute exceptions to management rights, meaning that if they are properly articulated and focused, these two methods can be utilized by the union as a tool to legally infringe or otherwise limit the exercise of management rights. As long as the procedures and appropriate arrangements do not directly interfere with the substance of the management right, they are negotiable.
This article focuses on appropriate arrangements. The union may negotiate appropriate arrangements for employees adversely affected by the exercise of a management right. Appropriate arrangements are negotiable under Section 7106(b) (3) of Title 5 of the United States Code. That Section states: “nothing…shall preclude any agency and any labor organization from negotiating…appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.” To be negotiable as an appropriate arrangement, a proposal must 1) be an arrangement; 2) that mitigates or remedies an adverse impact on employees that results from the exercise of a management right (i.e. it must be narrowly tailored to apply solely to the impacted employees who will be potentially harmed); and 3) that is appropriate (i.e. on balance, the benefit to the employees must outweigh the burden of the proposal on management’s rights).
A recent case reinforces the power of an appropriate arrangement to limit management’s right to assign work. NATCA just prevailed at the FLRA on an agency appeal from an arbitrator’s decision in the union’s favor. The arbitrator had found that the two sentences in Article 38, Section 8 of the previous ATC contract (Green Book) constituted an appropriate arrangement that impacted the agency’s right to cancel overtime.
Section 8 of the Green Book read as follows: “Overtime shall not normally be cancelled without seven days notice. However, if an employee cancels or returns from annual or sick leave, any overtime scheduled to cover that absence may be cancelled, provided that such overtime had been scheduled as a direct result of the returning employee’s absence.”
Both the arbitrator and the FLRA agreed that the language at issue clearly affected management’s right to assign work. However, as the language 1) was narrowly tailored to apply solely to impacted employees; and 2) did not preclude the agency from completely exercising it’s right as it only restricted them from cancelling overtime in limited situations, the FLRA found that the language constituted a valid appropriate arrangement. (For more on this case, see 65 FLRA No. 42). In sum, as you engage in formal negotiations, remember that carefully drafted appropriate arrangements are a great way for you to legally infringe on management rights.