Transcript The Federal Service Labor-Management Relations Statute

A Brief Overview of the LaborManagement Relations Statute
John R. Obst
Vice President, NFFE
JRO Brief Bio
 Research Chemist at the Forest Products
Laboratory, Madison, WI. (Retired in 2003
after a 34 year career in wood and pulping
chemistry research.)
 Local 276 Past-VP, Past-President.
 NFFE Forest Service Council PastPresident.
 NFFE Vice President since 2002.
 Wisconsin native.
A Little Labor History….
 What were things like in the past?
 As “recently” as the late 19th Century, federal
working conditions were extremely unhealthy,
dangerous, and dismal.
 Buildings were dank, dark, crowded, and
unventilated.
 Typhoid and other diseases from unsanitary
environments took their toll.
 Numerous deaths and injuries occurred in the
workplace.
History of federal employment…
 Pay was poor.
 Federal employees were required to work up
to 18 hrs/day without overtime pay.
 Employees had to work Saturdays and every
other Sunday without additional
compensation.
Finally, federal employees banded
together to address their concerns.
But, the federal government fought to
stop unionization:
Employees were told that Unions weren’t for
them, that federal employees were:
- ‘professional civil servants’ and ‘white collar
government officials’
– that they were above the mere laborers
who belonged to Unions;
Mgmt said it would be demeaning for
federal employees to join a Union.
Anti-Union action by government:
 In 1895, the Postmaster General forbid postal
employees from talking to Senators and
Legislators about pay, benefits, and working
conditions.
 If they did, the penalty was REMOVAL.
But the labor movement continued:
 In 1900, the first federal local (8703) affiliated
with the American Federation of Labor
(Chicago postal clerks).
 The fight was on for 8 hour days, better pay,
and safe working conditions.
And the government fought back:
 In 1902, President Teddy Roosevelt signed
an Executive Order denying basic
constitutional rights to federal employees.
 This E.O. forbid federal employees from
talking to Congress about higher wages and
forbid employees to try to influence any
legislation. (Penalty was REMOVAL).
 In 1909, President Taft forbid workers from
answering any questions posed by Congress
regarding their working conditions (the “gag
rule”).
Legislative Advances:
 1912: Lloyd-LaFollette Act rescinded previous
gag rules; establishes the rights of federal
workers to form Unions.
 1916: First Federal Employees
Compensation Act.
 1920: Civil Service Retirement Act (retire at
65).
 1935: Wagner Act established collective
bargaining for most workers…
…federal employees were EXCLUDED.
Legislative Advances:
 1962: Kennedy signs E.O. 10988.
- gave Unions the right to negotiate with
management concerning working conditions,
promotion standards, grievance procedures,
safety and other matters, BUT not over pay
and benefits.
- However, no binding arbitration or impasse
procedures; mgmt had the final word.
Legislative Advances…
 1978 Civil Service Reform Act:
- created the foundation for labor relations in the
federal sector;
- created the Office of Personnel Management
(OPM), the Federal Labor Relations Authority
(FLRA), and the Merit Systems Protection Board
(MSPB);
- impasse and arbitration procedures created;
- Congress specifically declared labor organizations
and collective bargaining in the federal government to
be "in the public interest.”
The Labor Statute
 The Civil Service Reform Act of 1978 is the
Labor Statute and it has been codified as
Title 5 of the United States Code Chapter 71.
 Practically, when we talk about the “labor
statute” or the “federal labor relations statute”
we are talking about 5 U.S.C. 71.
1) What you need to know
about the Statute.
What is the FLRA?
FLRA = Federal Labor Relations Authority
 a federal agency created by the Civil Service
Reform Act of 1978;
 provides guidance relating to Federal Service
Labor Management Relations;
 resolves disputes under, and ensures
compliance with, the Statute (5 USC 71).
Three Parts of the FLRA
that you may deal with.
 The Authority
 The Office of the General Council
 The Federal Service Impasses Panel
The Authority
The Authority is a quasi-judicial body with three fulltime Members who are appointed for five-year terms
by the President;
It adjudicates:
- disputes concerning the negotiability of collective
bargaining agreement proposals,
- appeals concerning Unfair Labor Practices (ULPs)
and representation petitions,
- exceptions to grievance arbitration awards.
Office of the General Counsel
The Office of the General Counsel (OGC) is
the FLRA's independent investigator and
prosecutor.
The General Counsel is appointed by the
President.
The OGC, through the seven Regional
Offices, is initially responsible for processing
ULP allegations and representation matters
filed with the FLRA.
Federal Service Impasses Panel
The Panel has seven Presidential appointees
who serve on a part-time basis.
The Panel resolves impasses from
negotiations over conditions of employment
under the Statute, the Federal Employees
Flexible and Compressed Work Schedules
Act, and the Panama Canal Act of 1979.
2) What you need to know
about the Statute.
The Statute and the Contract
are different.
(The Contract is also known as the Collective
Bargaining Agreement or CBA, and, in the FS, as
the Master Agreement or MA.)
The Statute.
The Statute (Chapter 71 of Title 5 of the
United States Code, a.k.a. 5 USC 71) is a law
that confers certain legal rights to employees,
the Union, and the Agency.
The Contract.
“Collective bargaining is the performance of a
mutual obligation by the Union and the
Agency to bargain in good faith to reach
agreement concerning conditions of
employment.”
The written agreement resulting from
bargaining (negotiations) is the Contract
(CBA).
The Statute authorizes collective bargaining;
the Contract “springs from” the Statute.
Differences between Statute and the Contract
Statute
 Generally broad in
scope.
 Applies across many
agencies.
 Provides the foundation
for labor-relations and
collective bargaining.
Contract
 Generally narrow in
scope (nitty gritty
issues).
 Applies only to the
Bargaining Unit.
 Is the product of
collective bargaining.
Differences between Statute and the Contract

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
Statute
Violation of the law is an
unfair labor practice (ULP).
Statute is enforced through
the ULP charge.
Charge investigated by the
General Counsel’s Office of
the FLRA.
Complaint/Hearing
 FLRA does the work and
it’s FREE.

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
Contract
Violation of the Contract is a
breach of the agreement.
Contract is enforced through
grievances.
No 3rd party investigation.
Grievance
Arbitration
 A loss at arbitration could
be very costly.
Sidebar: What’s an MOU?
Memorandum of Understanding:
- is a negotiated agreement subordinate to
the Contract;
- it may not be in conflict with the Contract;
- the MOU is a contract, but not the Contract.
3) What you need to know
about the Statute.
 Employee rights.
 Section 7102: Employees’ rights include:
The right to form, join, or assist any labor
organization, or to refrain from such activities.
Other Statutory Rights of Employees
and the Union.
 Right to Information (U);
 Right to negotiate over conditions of
employment (U);
 Right to be represented by the Union at
investigative meetings (Weingarten) (E);
 Right to be present and participate at formal
meetings (U).
It is against the law (an Unfair Labor Practice)
for the agency to trample on employee rights.
Section 7116(a)(1) states that it is an ULP for
an agency to interfere with, restrain, or
coerce any employee in the exercise by the
employee of any right under the Statute.
Interference/coercion?
 Is linking satisfactory job performance to
Union duties an ULP?
Interference/coercion
 The issue is not whether an employee was
actually coerced or intimidated by the
agency’s actions.
 The test is whether the actions could
reasonably tend to coerce or intimidate the
employee, or whether the employee could
have reasonably drawn a coercive inference
from the actions.
Discrimination
 Section 7116(a)(2) states that it is an ULP for
an agency to:
encourage or discourage membership in
any labor organization by discrimination in
connection with hiring, tenure, promotion, or
other conditions of employment.
Discrimination continued
“Common” discriminatory actions:
- suspension or other discipline,
- lowered performance appraisal,
- reassignment,
- disapproval of leave.
Discrimination continued
The remedy for a 7116(a)(2) violation is to
require the agency to make the employee
“whole” for all losses suffered, which may
include the payment of backpay.
Note
 It is not an ULP for an agency representative
to express a personal view, argument or
opinion which contains no threat of reprisal,
or was not made under coercive conditions.
(Right of free speech – but, managers must be
neutral during an election.)
 However, my advice to managers is to stay
away from such comments in the workplace.
This is a “red flag” area, no point in pushing
the boundary.
4) What you need to know
about the Statute.
 The Union is the exclusive
representative of bargaining unit
employees, and, as such, has certain
rights under the Statute.
Exclusive representative:
 5 USC 7103. Definition: the exclusive
representative is that Union which is certified
by the FLRA as the exclusive representative
of a unit of employees by virtue of having won
a representation election.
 It is an unfair labor practice for an agency to
deal with other Unions or organizations or
special interest groups (or, for that matter, to
deal directly with unit employees).
The exclusive representative:
 …among other things, has the right to
negotiate bargainable aspects of the
conditions of employment of bargaining unit
employees, to be afforded an opportunity to
be present at formal discussions, to free dues
withholding arrangements and, at the request
of the employee, to be present at Weingarten
examinations of unit employees.
The exclusive representative.
 Key point: Only the exclusive representative can
represent, and/or negotiate for, the Bargaining Unit.
 Other situations where non-Union representatives are
allowed:


1) An employee may represent her/himself in the
grievance process (but only the Union can invoke
arbitration).
2) The Union has no exclusivity in statutory processes
such as MSPB and EEO complaints, OPM and FLSA
appeals, Workers Compensation Claims, etc.
5) What you need to know
about the Statute.
 Union presence at an investigation
interview. (Weingarten meeting.)
Weingarten Rights:
 Section 7114(a)(2)(B) grants the Union the right to be
present during:
1) an examination of an employee in connection
with an investigation, if,
2) the employee reasonably believes that the
examination may result in disciplinary action against
the employee, and,
3) the employee requests representation.
Weingarten continued
“…an examination…in connection with an
investigation…”
This does not include, for example:
- a meeting solely concerned with an
employee’s performance evaluation,
- a meeting limited to informing an
employee of a decision already reached.
Weingarten continued
How to ask for a representative.
Lawyer-talk for an employee requesting
representation:
“The totality of the circumstances must be
sufficient to put the agency on notice of the
employee’s desire for representation.”
How to ask for representation:
“I WANT A UNION REP!”
NOT:
“I think I should talk to someone.
“Do you think I should have a Union
Rep.”
“Maybe we ought to get a steward.”
If the employer denies the request for union
representation, and continues to ask
questions, it commits an unfair labor practice,
and the employee has a right to refuse to
answer.
The employer may not discipline the
employee for such a refusal.
What to Say if Management Asks
Questions That Could Lead to Discipline.

"If this discussion could in any way lead to my
being disciplined or terminated, or affect my
personal working conditions, I request that a
union representative be present at the
meeting. Without representation, I choose not
to answer any questions."
Weingarten continued
Once the elements for a Weingarten meeting
are established, the agency may:
- grant the request for representation,
- postpone the interview if a
representative is not immediately available,
- offer the employee of proceeding with
the interview without representation or having
no interview at all.
Weingarten continued

The Union Steward has the following
“Weingarten” rights:

to find out what the interview is about;
to meet privately with the employee prior to and
during the interview (but can’t interfere too much);
to speak and to ask questions of management
during the interview;
to assist the employee in answering questions;
to object to abusive or harassing questions.
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

Weingarten continued
The Statute (7114(a)(3)) requires that “each
agency shall annually inform its employees of
their rights under paragraph (2)(B) of this
subsection.”
How is this done?
Does your Contract go further?
6) What you need to know
about the Statute.
Union presence at a formal
discussion (formal meeting).
Formal discussions
Section 7114(a)(2)(A) grants the Union the
right to be represented at:
any formal discussion between one or
more representatives of the agency and one
or more employees concerning (1) any
grievance or (2) any personnel policy or
practice or (3) other condition of employment.
Formal discussions cont.
Elements contributing to formality:
- employees required to attend
- notes or meeting minutes taken
- an agenda or meeting plan exists
- meeting is held in a conference room
- higher level officials participate or are invited
- meeting scheduled in advance
- significant topic of concern to employees/Union
- general discussion of workplace concerns
- discussion of personnel policy that pertains generally to all
employees
- discussion of a formal EEO complaint
- discussion of any grievance
- may be others.
Formal discussions cont.
 A meeting with an employee to discuss her
work performance does not concern a
general condition of employment and is not a
formal discussion.
Formal discussions cont.
 Prior to conducting a formal discussion, the
agency must provide adequate notification to
the Union to allow it to choose its
representative to attend the meeting.
What the Union can do at Formal
Discussions:
 Ask for delay to send a Union Rep who is
“expert.”
 Ask what the meeting is about.
 Clarify matters being discussed.
 Represent interests of the Bargaining Unit.
 Speak, comment and make statements about
the subject being discussed.
 Ask questions about the subject discussed.
What the Union must not do at Formal
Discussions:
 Unreasonably delay a meeting because a particular




representative is unavailable.
Insist on more than one representative.
Refuse to attend a formal discussion when there has
been actual notice which allowed the Union to select
a representative of its choice, but there was no formal
notice of the meeting.
Demand that other topics be discussed.
Act in any manner that disrupts the meeting or thwarts
the purpose of the meeting.
Formal or Weingarten Summary
Weingarten
 Investigation where
there is reasonable
belief that discipline will
result.
 Employee must request
representation.
 Union is largely there as
representative of the
employee.
Formal meeting
 Meeting between
Agency and employees
regarding conditions of
employment.
 Agency must notify
union.
 Union is representing
bargaining unit.
7) What you need to know
about the Statute.
Negotiations
 Why must the agency negotiate with the Union?
 7114(a)(1): A labor organization which has been
accorded exclusive representation is entitled to act
for and negotiate collective bargaining agreements
which cover all employees in the Unit.
 Only the Union negotiates on behalf of Unit
employees.
Types of Negotiations:
 Contract Negotiations (Master Agreement);
 Mid-Term Negotiations (MOUs);
- Union proposals in response to agency
changes;
- Union-initiated proposals;
- Jointly initiated MOUs (Partnership).
What is the agency
required to bargain?
 Those issues within the scope of
bargaining.
 Conditions of Employment.
Scope of bargaining
Management Rights (7106(a)) not bargainable.
Nothing shall affect the authority of the agency:
 to determine mission, budget, organization, number of
employees, and internal security;
 to hire, assign, direct, layoff, and retain employees*;
 to suspend, remove, reduce in grade or pay, or take
disciplinary action*.
* “in accordance with applicable law”
Scope of bargaining
Management Rights (7106(a)) not bargainable.
Not bargainable:
 to assign work, to contract out, and to determine the
personnel who will carry out agency operations;
 to fill positions from among properly ranked and
certified candidates or any other source;
 to take whatever actions are necessary to carry out
the agency mission during emergencies.
Elective (Permissive) Subjects
7106(b)(1)
Scope of bargaining cont.
 Numbers, types, and grades of employees or
positions assigned to any organizational
subdivision, work project or tour of duty
 Technology, methods and means of
performing work.
These subjects may be bargained
if the agency agrees.
What is the agency
required to bargain?
 Issues within the scope of bargaining.
 Conditions of Employment.
- Working conditions and personnel policies and
procedures. (The Duty to Bargain: the agency must
bargain with the Union before changing any working
conditions of bargaining unit employees.)
Personnel Policies and Practices
 Policies – written rules.
Such as leave policy, dress code,
merit promotion, etc.
 Practices – unwritten rules.
For example, a policy that allows employees
to swap overtime assignments.
(A “past practice” is one that has been followed for a
long time with the knowledge and acceptance of the
Union and the Agency.)
Working conditions are various aspects of
employees’ work environments.
Examples:
 Office furniture
 Water coolers
 Air conditioning
 Protective clothing
 Parking
 Window shades
 Vending machines
 Everything?
I & I Bargaining
 Management rights cannot be bargained.
 But, the Union may engage in
“implementation and impact” bargaining, if the
proposals do not excessively interfere with
the exercise of the agency right.
Implementation and Impact
Bargaining
The Union has a right to bargain:
 1) Procedures which management will
observe in exercising any right it has;
 2) Appropriate arrangements for employees
adversely affected by the exercise of any
agency right.
7106(b)(2) and (3)
Appropriate Arrangement
 Management right: Discipline – for example,
a letter of reprimand.
 Appropriate arrangement: Union proposal is
that the letter of reprimand will be removed
from the employee’s file no later than 12
months from issuance date.
8) What you need to know
about the Statute.
 How to make information requests.
One of the most important tools
that Unions have to better
represent employees
in grievances and negotiations.
How to make information requests.
Handled in a separate presentation
in the Basic Steward Training.
To get it right, you have to understand
“particularized need”, and not ask for
something prohibited by the Privacy Act.
Particularized Need
 Need to show:
why you need the information;
how you intend to use it; and,
how the information relates to your role
as the exclusive representative.
Privacy Act.
 Very, very difficult to get information that
contains “personal identifiers”.
 Always ask for “sanitized” documents first.
Guidance on making information requests is
back on the FLRA website (www.flra.gov ).
The Bush administration had removed it).
9) What you need to know
about the Statute.
 Filing complaints about non-
compliance with the Statute.
Labor Statute
“common” complaints
 Unfair labor practices (ULPs)
 Representation/Clarification of Unit petitions.
 Negotiability appeals.
 Bargaining Impasses.
 Appeals of Arbitration Awards
Filing Unfair Labor Practice Charges
 FLRA Guidance on ULPs:
http://www.flra.gov/procedure/filing/ulp.html
 How and when to file ULPs will be dealt with
in a separate presentation during the Basic
Steward Training.
 And, remember ULPs are for violations of the
Statute; Contract violations are remedied
through the grievance/arbitration processes.
FLRA Complaint Guidance
(and be sure to read your contract as well)
Negotiability, Bargaining Disputes,
and Impasses:
http://www.flra.gov/procedure/filing/bargain.html
Appeals of Arbitration Awards:
http://www.flra.gov/procedure/filing/arbitr.html
Representation/Clarification of Unit:
http://www.flra.gov/procedure/filing/rprsnttn.html
Note: Clarification of Unit
 The statute excludes ‘confidential employees’
from the Bargaining Unit.
 Agencies generally want to limit the number
of BU employees and incorrectly categorize a
number of employees as ‘confidential.’
 Locals must be vigilant to enforce the statute
regarding representation of confidential
employees.
LMR Info Source: OPM Glossary of Terms
http://www.opm.gov/lmr/glossary/
 CONFIDENTIAL EMPLOYEE. Under § 7103(a)(14),
"an employee who acts in a confidential capacity with
respect to an individual who formulates or effectuates
management policies in the field of labormanagement relations[.]"(Emphasis added.) Under §
7112(b)(2), confidential employees must be excluded
from bargaining units. Disputes over whether an
employee is a confidential employee are resolved by
FLRA, usually via a 5 CFR 2422.1(b) petition.
Examples: 31 FLRA No. 6, 33 FLRA No. 30, 37
FLRA No. 16, 37 FLRA No. 112, 47 FLRA No. 48,
and 50 FLRA No. 21.
10) What you need to know
about the Statute.
The Union’s Duty of Fair Representation.
 Section 7114(a)(1) of the Statute imposes the
DFR on unions that are exclusive
representatives.
 What this means is that the Union must fairly
and equally represent all bargaining unit
employees.
Types of DRF Violations
 Discrimination: Non-union members are
treated worse than Union members.
 Improper representation of employees.
DFR: Improper representation
 To be a DFR violation, the Union’s conduct
must “rise to the level of deliberate and
unjustifiable arbitrary and bad faith conduct.”
DFR: Improper representation
cont.
 Inept and negligent representation by the
Union is not necessarily a DFR violation.
 The Union is given latitude to make mistakes
when representing an employee.
DFR: Discrimination against nonUnion members
 The Union may not treat non-Union unit
employees differently from dues paying Union
members.
 But this only applies in matters where the
Union has exclusive control and where the
non-members have no other choice for
representation. (E.g.., Union does not have
to represent BUEs in MSPB proceedings.)
Remedy for DFR Violation
“Make whole.”
 If the Union was guilty of improper
representation in a grievance of agency
discipline, and an employee received a 14
day suspension as a result, the remedy would
be that the Union would pay 14 days of back
wages to the employee.
DFR
Does DFR mean that Union members and nonmembers always have to be treated the same?
NO.
Non-Union bargaining unit members may be
excluded from Union meetings.
Non-Union bargaining unit members do not
participate in Union elections.
Non-Union bargaining unit members may be
excluded from negotiations (some exceptions,
though.) (And, remember, negotiations proposals
must not discriminate against non-members).
For more training on the statute, periodically, the
FLRA conducts workshops on the labor relations
statute at its regional offices.
FLRA Regional Offices:
Atlanta,
Boston,
Chicago,
Dallas,
Denver,
San Francisco,
Wasington, D.C.
Check www.flra.gov for scheduled training.