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Basic Principles of Negotiability For Use In Local Bargaining (Part 2)

In order to effectively participate in bargaining with management on the local level, facility representatives must fully understand when they have a right to bargain, what the Parties are obligated to bargain about, and how to keep any proposals negotiable. In the last column, we focused on when the obligation to bargain arises and began a discussion on mandatory subjects of bargaining. In this article, we will finish our discussion on mandatory and permissive subjects of bargaining.

Limitations on Mandatory Subjects of Bargaining

Some statutory limitations have been placed on the definition of mandatory subjects that protect the Agency from having to bargain over all of them. Section 7103(a)(14) of Title 5 of the U.S. Code states that matters relating to political activities otherwise prohibited by law, matters relating to the classification of any position, and matters specifically provided for by Federal statute are all excluded from the definition of “conditions of employment.” Accordingly, the Agency is not required to bargain over such matters. More specifically, the duty to bargain does not extend to proposals inconsistent with government-wide rules or regulations in existence when the CBA was negotiated or to proposals inconsistent with Federal law. Also, if the Agency can show that a rule or regulation is required on the basis of a “compelling need,” the Agency has no duty to bargain over the substance of the matter (they still must bargain over the impact and implementation of the rule, however – we will address such I&I bargaining in a later column). Note, however, that while a proposal will be found non-negotiable if it is incompatible with government-wide rules or Federal law, if a proposal remains silent on issues addressed in the government-wide rules or federal laws and the proposal is not inconsistent with those same rules and laws, then it will be considered negotiable. Finally, to the extent that a law gives an Agency any discretion over conditions of employment, the Agency has a duty to bargain. For example, if the Department of Transportation authorizes that certain subsidies be paid to all Agency employees, but then states that the Agency can determine the manner of payment, the Agency would be obligated to bargain with the Union over that manner of payment.

Permissive Subjects of Bargaining

The second category of subject for bargaining are defined as permissive subjects& under Section 7106(b)(1) of Title 5. Permissive subjects are those subjects that the Agency may bargain over if they choose to. Permissive subjects are defined as “the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or the technology, methods, and means of performing work.”

Note that only the Agency can elect to bargain over permissive subjects – the Union cannot require that the Agency do so. Bargaining over permissive subjects occurred frequently under the Clinton Administration due an Executive Order from the President that required all Federal Agencies to engage in bargaining with their union counterparts over permissive subjects. The Bush Administration revoked that Executive Order shortly upon arrival in office. Currently, the Agency seldom elects to bargain over permissive subjects. If, however, by some stroke of luck you end up bargaining to agreement over permissive subjects and the Agency signs an MOU that memorializes that agreement, then the Agency is obligated to live up to the terms of that MOU regardless of the fact that it contains permissive subjects.

Finally, 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” and can be found under Section 7106(a) of Title 5. We will discuss these prohibited subjects of bargaining in the next column.