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Basic Principles of Negotiability for Use in Local Bargaining (Part 1)

In order to effectively participate in bargaining with management on the local level, it is important that facility representatives understand when they have a right to bargain, what the Parties are obligated to bargain about, and how to keep any proposals negotiable. In this column, we will focus on when the obligation to bargain arises and begin the discussion regarding mandatory subjects of bargaining. In later columns, we will finish our discussion on subjects of bargaining and turn the focus on how to best keep proposals both negotiable and legal. (For the ATC bargaining unit specifically, we will also address how to best handle negotiation issues that may arise locally as a result of the conflict between the contract and the imposed work rules).

The Duty to Bargain

When faced with a potential bargaining situation, the first question a facility representative must always answer is whether or not the Agency is obligated to bargain at all. It is important to remember that once established, the Agency’s duty to bargain is an affirmative obligation that continues to exist unless or until something explicitly prohibits it or otherwise legally obviates it. There are four circumstances when the duty to bargain may arise:

  • In order to negotiate a new term contract;
  • When required by the contract (for example, to establish the basic watch schedule);
  • In response to Agency-initiated changes;
  • In response to Union-initiated changes (rare).

On the local level, facility representatives will usually have to deal with circumstance #2 (when required by the contract) and #3 (in response to Agency-initiated changes). The other circumstances usually arise on the national level.

Scope of the Duty to Bargain

Once a union representative has established that the Agency is obligated to bargain, then the next challenge is to determine what subjects the Parties are obligated to bargain over. There are three categories of subjects:

  • mandatory subjects
  • permissive subjects
  • prohibited (or excluded) subjects

Facility representatives will run into all three of these categories of subjects on the local level. The most prevalent and accessible of the three are mandatory subjects.

Mandatory subjects are all conditions of employment as described in Title 5 of the United States Code, Section 7103(a)(14). That means that the Agency is obligated to bargain over “all personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions” of employment. So, the question becomes, what exactly is a condition of employment? The Federal Labor Relations Authority has consistently held that a matter is a condition of employment “if it has a direct relationship with employees work situations or employment relationships.” The matter must affect bargaining unit employees and there must be a direct link between the matter and employees work situation. Additionally, to the extent a law gives an Agency discretion over conditions of employment, the Agency has an affirmative duty to bargain.

From this definition, you could be easily led to believe that everything and anything occurring in the workplace would meet the definition of condition of employment and thus be a mandatory subject that the Agency is obligated to bargain over, right? Wrong. There are a number of statutory limitations that have been placed on the definition of mandatory subjects that protect the Agency from having to bargain over all of them. We will discuss those limitations and the other subjects of bargaining in the next column.