Basic Principles of Negotiability for Use in Local Bargaining (Part 4)

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 this column, we will discuss the important topic of the various exceptions that the Union can legally utilize to negotiate directly within the arena of “management rights” and how to keep proposals negotiable. In the next column, we will focus on additional methods for drafting strong appropriate arrangements and touch on some other bargaining points.

Legal Exceptions to Management Rights

As we previously discussed, the list of “reserved management rights” is lengthy. However, it is important to remember that although the Agency cannot be forced to bargain over the substance of these prohibited subjects, the Union is absolutely within their legal rights to insist (and always should request) that the Agency bargain over the impact and implementation of these subjects. What this means is that the Union can and should negotiate over:

• How the “management rights” are exercised; and
• 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 tools to legally infringe or otherwise limit the exercise of management rights.

Procedures

While the Union may not negotiate away management rights, the Union may negotiate procedures that management officials must observe while exercising any of their management rights. These procedures are negotiable under Section 7106(b) (2) of Title 5 of the United States Code. That section states:

“nothing…shall preclude any agency and any labor organization from negotiating…procedures which management officials of the agency will observe in exercising any authority under this section…”

Under current FLRA precedent, a proposal constitutes a “procedure” and is thus negotiable as long as it does not directly interfere with the exercise of a management right. In other words, if your proposed language addresses how management’s rights are exercised without directly interfering with the substance of the rights, it constitutes a negotiable procedure.

Appropriate Arrangements

The Union may also 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:

• be an arrangement;
• 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
• that is appropriate (i.e. on balance, the benefit to the employees must outweigh the burden of the proposal on management’s rights).

It is important to note that if your proposed remedy is too broad and affects employees outside of the group adversely affected by the exercise of the management right, the proposal will be found to be outside of the scope of bargaining. The FLRA, which has the statutory authority to consider the negotiability of proposals, has consistently found proposals as being outside the scope of bargaining when the proposals would have applied to employees indiscriminately without regard to whether the group as a whole is likely to suffer, or has suffered, adverse effects as a consequence of the management right. It is important to remember, however, that if you tailor your proposal narrowly and properly, even though it may end up placing some limitations on management’s rights, it can still be considered negotiable as an appropriate arrangement. We will review the best methods for drafting procedures and appropriate arrangement proposals in the next column.