PANEL. See FEDERAL SERVICE IMPASSES PANEL.
In 50 FLRA No. 86 and
51 FLRA No. 26, the Authority adopted a new analytical approach in dealing with union requests for information under
§ 7114(b)(4). Under this approach, the union must establish a "particularized need" for the information and the agency must assert any countervailing interests. The Authority then balances the one against the other to determine whether a refusal to provide information is a unfair labor practice. Regarding particularized need, FLRA said the following:
[A] union requesting information under
[§ 7114(b)(4)] must establish a particularized need for the information by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information and the connection between those uses and the union`s representational responsibilities . . . . [This] requirement . . . will not be satisfied merely by showing that [the] requested information is or would be relevant or useful to a union. Instead, a union must establish that [the] requested information is "required in order for the union adequately to represent its members." Justice v. FLRA, 991 F.2d at 290.
PAST PRACTICE (ESTABLISHED PRACTICE) .
Existing practices sanctioned by use and acceptance, that are not specifically included in the collective bargaining agreement. Arbitrators use evidence of past practices to interpret ambiguous contract language. In addition, past practices can be enforced under the negotiated grievance procedure because they are considered part of the agreement. See, e.g.,
5 FLRA No. 35 and
7 FLRA No. 125. Unilateral changes in past practices dealing with conditions of employment (see
24 FLRA No. 96,
27 FLRA No. 44, and
34 FLRA No. 104) can constitute
unfair labor practices(ULP). See, e.g.,
6 FLRA No. 127,
9 FLRA No. 11, and
21 FLRA No. 103. Indeed, it is a ULP to unilaterally change a practice that is at odds with the express terms of the agreement. See, in this connection,
36 FLRA No. 65, where FLRA said the following:
The fact that the negotiated agreement addressed the matter is not conclusive, if it is shown, in fact, that over a period of time the parties had engaged in a practice regarding the [matter] that differed from the contractual procedure. If this showing is made, and the practice satisfies the statutory requirements of section 7103(a)(14), it is a condition of employment that cannot be unilaterally altered. Letterkenny Army Depot, 34 FLRA 606, 610-11 (1990).
As the ALJ noted in 42 FLRA No. 7, "[t]o find that a condition of employment has been established by past practice . . . there must be a showing that the practice was consistently exercised for an extended period of time, with the agency`s knowledge and express or implied consent." Norfolk Naval Shipyard, 25 FLRA No. 19 [25 FLRA 277 at 286].
PERMISSIVE SUBJECTS OF BARGAINING.
There are, as the Authority noted in 44 FLRA No. 4, at least three types of proposals dealing with so-called "permissive subjects of bargaining": proposals dealing with (1) matters covered by § 7106(b)(1)--i.e., with staffing patterns, technology, and methods and means of performing the agency`s work, (2) matters that are not conditions of employment of bargaining unit employees (e.g., procedures for filling supervisory positions; employee recreational access to agency launch), and (3) other (such as permitted waivers of statutory rights).
Regarding 7106(b)(1) permissive subjects, it should be noted that although, under the statute, an agency can "elect" not to bargain on a (b)(1) matter, agencies had been directed to bargain on (b)(1) matters by § 2(d) of EO 12871. This requirement was rescinded when EO 12871 was revoked by EO 13203.
Regarding waivers of statutory rights, see 34 FLRA No. 55, where FLRA said that "[m]anagement rights under section 7106(a) cannot be waived or relinquished through collective bargaining."
Regardless of type, once agreement is reached on a permissive subject of bargaining, that agreement cannot be disapproved by the agency head during a § 7114(c) review of the agreement, and is enforceable under the negotiated grievance procedure. See
45 FLRA No. 43 and
53 FLRA No. 60, # X. Such a provisions can, however, be unilaterally terminated when the contract expires. See
14 FLRA No. 89 and
55 FLRA No. 37, where FLRA said: "A party`s right to terminate unilaterally a permissive subject is not contingent on first satisfying a bargaining obligation as to the substance, impact or implementation of the change." Nor is it a ULP to refuse to comply with a FSIP order dealing with a permissive subject of bargaining. See
15 FLRA Nos. 65 and
100 - 104.
PERSONNEL BY WHICH AGENCY OPERATIONS ARE CONDUCTED. A right reserved to management by
§ 7106(a)(2)(B). In
25 FLRA No. 9, #36, the Authority said this right was violated by a provision requiring the agency to negotiate concerning the kinds of personnel (journeyman or apprentice printers) by which its future operations would be conducted. In
24 FLRA No. 40, #4;
30 FLRA No. 137, #8; and
32 FLRA No. 86, #5, it said that this right (and the right to assign work) were violated by proposals barring supervision by people who aren`t Federal employees. Compare with the
§ 7106(a)(1) right to determine the number of employees of the agency and with the
§ 7106(b)(1) "right" to determine staffing patterns.
Under § 7106(b)(2), the procedures observed by management in exercising its reserved rights are negotiable. To qualify as a negotiable (b)(2) procedure, the proposed "procedure" must not require the use of standards that, by themselves, directly interfere with management`s reserved rights or otherwise have the effect of limiting management`s reserved discretion. See, in this connection, Department of Defense, Army-Air Force Exchange Service v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981). The Authority has given indications that it wants to reexamine this doctrine. See, e.g., 54 FLRA No. 81, footnote 8 and
56 FLRA No. 185, footnote 3.