ABROGATION TEST. A test the Federal Labor Relations Authority (FLRA or Authority) formerly applied in determining whether an arbitration award enforcing a contract provision affecting management's § 7106(a) rights is deficient. Under that test (which was in existence for 12 years), an award enforcing a contractual provision that is an "arrangement" for employees adversely affected by the exercise of management's § 7106(a) rights would not be set aside unless it "abrogated" those rights--i.e., unless it left management no discretion at all with respect to the management right(s) at issue. For lead cases see 37 FLRA Nos. 20, 67, 70, 103 and 38 FLRA Nos. 3 and 21.
In 58 FLRA No. 21 the Authority, in a split decision, replaced the abrogation test with the "excessive interference" balancing test. Under that test FLRA weighs (a) the extent to which the contractual provision, as interpreted by the arbitrator, provides a "balm" to employees adversely affected by the exercise of a management right against (b) the extent to which it interferes with the exercise of management's rights and determines whether that interference is "excessive."
ACCRETION. When some employees are transferred to another employing entity whose employees are already represented by a union, FLRA will often find that those employees have "accreted" to (i.e., become part of) the existing unit of the new employer, with the result that the transferred employees have a new exclusive representative along with a new employer. See, e.g., 52 FLRA No. 97, where FLRA found an accretion and compare it with 56 FLRA No. 174, where it didn't. Compare with successorship.
- ACCRETION vs SUCCESSORSHIP. When employees are transferred to different organizations and it is claimed that both "successorship" and "accretion" principles apply, the Authority will first determine whether the transferred employees are in separate appropriate unit(s)--i.e., whether they have a community of interest separate and distinct from that of employees in the gaining employer's existing unit(s). If so, and provided other requirements are met, "successorship" applies and the unit accretion petition will be dismissed. If not, FLRA will determine if the transferred employees have accreted to the gaining employer's existing unit(s).
See 52 FLRA No. 97.
ACTIONS DURING EMERGENCIES.
A right reserved to management by § 7106(a)(2)(D). Management's right "to take whatever actions may be necessary to carry out the agency['s] mission during emergencies" doesn't come up in negotiability disputes very often. In all but one of the cases decided thus far, FLRA has held that this right is interfered with by proposals attempting to define "emergency" because such definitions would be inconsistent with management's right to independently determine whether an emergency exists. See, e.g., 22 FLRA No. 13, 29 FLRA No. 84, 30 FLRA No. 52, and 49 FLRA No. 84, #1. However, in
55 FLRA No. 42, it said that it would no longer follow this precedent. It there found that a proposed "definition" that was interpreted as not limiting the situations in which the agency could take actions in an emergency did not interfere with the right to take actions during emergencies. For additional decisions on this right, see, e.g., 25 FLRA No. 61, #4 (proposal requiring management to negotiate on the changes it will make in the rotational system during an emergency interferes with the right to "take whatever actions may be necessary"). See also14 FLRA No. 91, #2 (proposal requiring three days notice of changes in hours of work, even during emergencies, interferes with this right).
AGENCY. The FSLMRS applies to executive agencies, including
5 USC § 2105(c) nonappropriated fund instrumentalities, the Veterans' Canteen Service of the Department of Veterans Affairs, the Library of Congress, and the Government Printing Office. It does not apply to the General Accounting Office, the Federal Bureau of Investigation, the Central Intelligence Agency, the Tennessee Valley Authority, the Federal Labor Relations Authority, the Federal Service Impasses Panel, or the Central Imagery Office. See 5 USC § 7103(a)(3)
AGENCY HEAD REVIEW. Requirement that negotiated agreements be reviewed for legal sufficiency by the head of the agency (or his/her designee).
§ 7114(c)(1). This must be accomplished within 30 days from the date the agreement is executed. § 7114(c)(2). If disapproved, the union can challenge those determinations by filing a negotiability petition or an unfair labor practice (ULP) charge with FLRA. If not approved or disapproved within that time, the agreement goes into effect and the legality and enforceability of its terms is decided in other forums (e.g., grievance or unfair labor practice proceedings).
§ 7114(c)(3). During the 30-day period the incumbent union is protected from challenge by a rival union. 5 CFR 2422.12(c).
AGENCY SHOP. A requirement that all employees in the unit pay dues or fees to the union to defray the costs of providing representation. In 1 FLRA No. 64 the Authority held that § 7102 prohibits agency shop requirements. See also,
22 FLRA No. 57,
38 FLRA No. 57, and
44 FLRA No. 8. Compare with
56 FLRA No. 157 (requiring the agency to deduct $2.00 from each biweekly paycheck of each bargaining unit employee who has not joined the union unless the employee requests that a deduction not be made is contrary to 5 CFR 550.312(a)).
AGREEMENT, NEGOTIATED. A collective bargaining agreement (CBA). CBAs take many forms, e.g., term agreements, midterm agreements, memoranda of understanding (MOU), basic agreements, supplemental agreements, oral agreements, side agreements, and past practices. Section 7103(a)(9) defines a collective bargaining agreement as "an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter."
CBAs set forth some of the conditions of employment of unit employees, various rights and obligations of the parties to the agreement (i.e., the exclusive representative and the activity or agency), the negotiated grievance procedure, dues withholding provisions, reopeners, as well as the duration of the agreement. CBAs cannot contain provisions that interfere with management rights (unless they are
§ 7106(b)(3) "appropriate arrangements", or
§ 7106(b)(1) "
permissive subjects of bargaining" on which management has "elected" to bargain), nor even restate agency or Governmentwide regulations that interfere with (i.e., place restrictions on the exercise of) management rights, for that would give them an existence independent of the regulations. (See, e.g.,
19 FLRA No. 24, #3(RIF regulations) and 47 FLRA No. 79, #1 (performance regulations)).
38 FLRA No. 89, #1, where the Authority held that a proposal requiring the agency to establish and administer a drug testing program in accordance with the Constitution, laws, rules, regulations, and the contract, interfered with the right to determine internal security practices, but still was negotiable because it was an appropriate arrangement under § 7106(b)(3).
Since the most important conditions of employment for most employees covered by the Federal Service Labor-Management Relations Statute are established by laws and regulations, many of the conditions of employment one finds in CBAs are paraphrases, restatements, and/or selected quotations of those laws and regulations and, to the extent the laws and regulations give the agency discretion over the matter and the matter is otherwise negotiable (e.g., not in conflict with management rights), agreed-upon supplements to those laws and regulations. Negotiated agreements are subject to agency head review for legal sufficiency. § 7114(c)(1).
Refusing to put an agreement into writing is a unfair labor practice (ULP).
§ 7103(a)(12). Although disputes over the meaning and application of the CBA normally are processed through the agreement's grievance-arbitration procedures, some types of violations can also be processed by the Authority under its unfair labor practice procedures. See, e.g.,
21 FLRA No. 117;
22 FLRA No. 25; compare with 15 FLRA No. 132. See 51 FLRA No. 72 for a description of the analytical framework that FLRA uses to determine whether there has been a repudiation of the agreement--i.e., whether (1) the breach was clear and patent and (2) the provision breached went to the heart of the agreement. Also see 52 FLRA Nos. 22 and 42. Under section
7116(d), "issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under [§ 7116], but not under both procedures." See 52 FLRA No. 62 (grievance barred because the issue was the same as in an earlier-filed ULP charge) and compare with
52 FLRA No. 37 (no bar because the unfair labor practice issue is not the same as the negotiated grievance procedure issue).
AMENDMENT OF CERTIFICATION PETITION. That portion of FLRA's multipurpose petition not involving a question concerning representation that may be filed at any time in which the petitioner asks FLRA to amend the certification or recognition to, e.g., reflect changes in the names of the employer or the union. See
5 CFR 2422.1(b). See
54 FLRA No. 40 regarding the conditions under which FLRA will amend a certification to reflect a change of union affiliation.
AMERICAN ARBITRATION ASSOCIATION (AAA). A private nonprofit organization that, among other things, provides lists of qualified arbitrators to unions and employers. It is on the WEB at http://www.adr.org/.
APPLICABLE LAWS. In Treasury v. FLRA, 494 U.S. 922 (1990), the Supreme Court said that only those external limitations on management's
§ 7106(a)(2) rights that are contained in "applicable laws" can be enforced by the union under the negotiated grievance procedure. In 42 FLRA No. 31, the Authority said that "applicable laws" within the meaning of
§ 7106(a)(2) include statutes, the Constitution, judicial decisions, certain Presidential executive orders, and regulations "having the force and effect of law"--i.e., regulations that (1) affect individual rights and obligations, (2) are promulgated pursuant to an explicit or implicit delegation of legislative authority by Congress, and (3) satisfy certain procedural requirements, such as those of the Administrative Procedures Act. In 53 FLRA No. 27, it held that 5 CFR 430 was an "applicable law." It should be emphasized that the "applicable laws" requirement does not apply to
§ 7106(a)(1) rights. See, e.g., 38 FLRA No. 89, #1, where the Authority held that a proposal requiring the agency to establish and administer a drug testing program in accordance with the Constitution, laws, rules, regulations, and the contract, interfered with the right to determine internal security practices. (However, the proposal was nonetheless negotiable because FLRA held that it was an appropriate arrangement under
§ 7106(b)(3).) In
43 FLRA No. 46, the Authority held that the reference to law in "applicable laws" under § 7106(a)(2) and "to the extent not prohibited by law" under
§ 7114(b)(4) were coextensive: therefore law in section 7114(b)(4), like "laws" in
§ 7106(a)(2), "includes . . . regulations having the force and effect of law."
APPROPRIATE ARRANGEMENT. One of three § 7106(b) exceptions to
§ 7106(a) management rights. Under
§ 7106(b)(3) a proposal that interferes with management's rights can nonetheless be mandatorily negotiable if the proposal constitutes an "arrangement" for employees adversely affected by the exercise of a management right and if the interference with the management right isn't "excessive"(as determined by an "excessive interference" balancing test). See, e.g., American Federation of Government Employees v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983) and 21 FLRA No. 4. For more on this exception, see the remarks under management rights.
APPROPRIATE UNIT (sometimes referred to as a bargaining unit). A grouping of employees that a union represents or seeks to represent and that the FLRA finds appropriate under the criteria of
§ 7112 (community of interest, effective dealings, efficiency of operations) for collective bargaining purposes. Certain types of employees cannot be included in units--e.g., management officials and supervisors. See §
7112(b). Distinguish between unit member and union member. The latter is a matter of individual choice; the former is not.
ARBITRATION. See ARBITRATOR.
ARBITRATOR. An impartial third party to whom the parties to an agreement refer their disputes for resolution. Section
7121(b)(1)(C)(iii) mandates that
negotiated grievance procedures provide for binding arbitration of unsettled grievances.
Most commonly labor arbitrators perform grievance arbitration--i.e., they interpret and apply the terms of the agreement (including established practices)--and, in the Federal sector, laws and regulations (see applicable laws, above) bearing on conditions of employment. But they are also occasionally asked to perform interest arbitration--i.e., they resolve bargaining impasses by dictating the terms of the agreement.
Lists of qualified labor arbitrators are provided, upon request and for a fee, by the American Arbitration Association (AAA) and the Federal Mediation and Conciliation Service (FMCS). Nothing, however, prevents the parties to an exclusive recognition relationship from creating their own panels of arbitrators from whatever sources they agree are appropriate.
ASSIGN EMPLOYEES. A right reserved to management by § 7106(a)(2)(A). This right, often confused with the § 7106(a)(2)(B) right to assign work, relates to the assignment of employees to positions, shifts, and locations. This right includes discretion to determine "the personnel requirements of the work of the position, i.e., the qualifications and skills needed to do the work, as well as such job-related individual characteristics as judgment and reliability." 2 FLRA No. 77. It also includes discretion to determine the duration of the assignment. 28 FLRA No. 66, #5.
The use of seniority procedures in selecting employees for assignments to shifts, details, etc., doesn't normally interfere with the right to assign employees where the seniority criteria are applied to employees that management has already determined are qualified to perform the work. See, in this connection,
44 FLRA No. 1, #1 (assignment of overtime),
41 FLRA No. 58 (assignment to details),
30 FLRA No. 80, #1 (assignment to shifts), and
25 F 9, #4 (shifts, work areas).
ASSIGN WORK. A right reserved to management by
§ 7106(a)(2)(B). This right, often confused with the § 7106(a)(2)(A) right to assign employees, relates to the assignment of work to employees or positions. In 3 FLRA No. 119--affirmed by the District of Columbia Circuit Court of Appeals (D.C. Circuit) in National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (1982)--the Authority said the following about this right:
The right to assign work to employees or positions. . .is composed of two discretionary elements: (1) the particular duties and work to be assigned, and (2) the particular employees to whom or positions to which it will be assigned. Furthermore, management discretion in this regard includes the right to assign general continuing duties, to make specific work assignments to employees, to determine when such assignments will occur and to determine when the work which has been assigned will be performed. [3 FLRA at 775.]
The right to assign work includes discretion to determine who
(6 FLRA No. 106)is to perform the work, the kind
(29 FLRA No. 61) and amount
(16 FLRA No. 27, #3) of work to be performed, the manner (12 FLRA No. 26) in which it is to be performed, as well as when (32 FLRA No. 146, #12) it is to be performed. It also includes "[t]he right to determine the particular qualifications and skills needed to perform the work and to make judgments as to whether a particular employee meets those qualifications."
32 FLRA No. 144, #1. When combined with the section
7106(a)(2)(A) right to
direct employees, it reserves to management the right to establish performance standards
(13 FLRA No. 50), the number of rating levels
(13 FLRA No. 96), and the identity of performance elements
(13 FLRA No. 49).
In 56 FLRA No. 134, the Authority said that it "has long held that proposals that set forth a method or criteria for assignment, including seniority, do not affect the right to assign work where management has determined that employees are 'equally qualified' for an assignment to a particular position."
Work jurisdiction proposals, such as proposals barring the agency from assigning work performed by unit employees to employees outside the unit, normally interfere the right to assign work.
(See, e.g., 56 FLRA No. 96, which also discusses the conditions under which such a proposal, if it applies only to certain prevailing rate employees, might nonetheless be negotiable.)
AUTHORITY. See Federal Labor Relations Authority.
AUTOMATIC RENEWAL CLAUSE. Many, perhaps most, collective bargaining agreements in the Federal sector have a provision, usually located at the end of the agreement, stating that if neither party gives notice during the agreement's 105-60 day open period of its intent to reopen and renegotiate the agreement, the agreement will automatically renew itself for a period of x number of years. An automatically renewed agreement, under certain circumstances, can also serve as a contract bar. See, in this connection, 47 FLRA No. 89.