Basic Principles of Negotiability For Use In Local Bargaining (Part 3)

Mar 2, 2016

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 Part 2, we focused on mandatory subjects of bargaining and the statutory limitations that have been placed upon them. We also discussed permissive subjects of bargaining. In today’s column, we will discuss those functions of government that are reserved by Title 5 to Agency management alone, commonly known as “management rights.” In the next column, we will discuss important topic of the various exceptions that the Union can legally utilize to negotiate directly within the arena of “management rights.”

Prohibited Subjects of 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. Those functions are the following authorities:

To determine the mission of the Agency. This includes any determinations as to when and for how long the Agency will provide mission-related services.
To determine the budget of the Agency. This includes decisions regarding what programs and operations will be conducted and the allocation of money to those programs and operations. This does not prohibit proposals that simply require the expenditure of funds.
To determine the organization of the Agency. This includes any decisions regarding how the Agency structures itself, administratively or functionally, to accomplish its’ mission.
To determine the number of employees of the Agency. This includes determining the number of employees assigned to any organizational subdivision, work project or tour of duty.
To determine the internal security practices of the Agency. This includes any Agency plans to prevent disruptions, to avoid disclosures of confidential information, or to avert the destruction of property.
To hire, retain, and layoff employees. This includes the authority to furlough employees or to enact a reduction in force.
To assign employees. This includes the determination of what skills and qualifications are needed to perform the work of a position as well as the determination as to whether or not an employee meets those qualifications.
To direct employees in the Agency. This includes the authority to establish criteria for performance evaluations.
To suspend, remove, reduce in grade or pay, or take other disciplinary actions against employees. This includes matters such as determining the range of applicable disciplinary penalties.
To make determinations with respect to contracting out. This includes decisions relating to when and under what circumstances contracting out will occur.
To take whatever action may be necessary to carry out the Agency mission during an emergency. This includes the right to decide when an emergency exists.

While this list of prohibited subjects of bargaining is lengthy, 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 negotiate over:

How the “management rights” are exercised, and
How 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.

We will discuss how to draft sound procedures and appropriate arrangements in the next column.