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Labor-Management Relations Glossary

BACK PAY.  Pay awarded an employee for compensation lost due to an unjustified personnel action is governed by the requirements of the Back Pay Act, 5 U.S.C. § 5596. For examples of awards set aside because they violated the Back Pay Act, see, e.g., 15 FLRA No. 146, 15 FLRA No. 164, 17 FLRA No. 125, and 56 FLRA No. 64. Back pay remedies for violations of the overtime provisions of the Fair Labor Standards Act (FLSA) are governed by the FLSA. See 53 FLRA No.134.

BARGAINING (NEGOTIATING).  A ubiquitous process--sometimes informal and spontaneous, sometimes formal and deliberate--of offer and counteroffer whereby parties to the bargaining process try to reach agreement on the terms of exchange. Deliberateness and a concern for bargaining strategy and tactics usually rise to the fore only when the stakes make such efforts worthwhile. Formal bargaining processes with associated rituals and bargaining routines vary, depending on their political, economic, and social context. Sometimes the formal requirements facilitate the process of reaching agreement; sometimes they become an end in themselves; and sometimes they are deliberately used in order to avoid or delay agreement. The process, as far as negotiations between collectivities is concerned--e.g., firms, unions, nations, and branches of government (e.g., budget negotiations between the President and the Congress)--has been analyzed into four subprocesses by Walton and McKersie in A Behavioral Theory of Labor Negotiations, 1965: distributive ("fixed pie") bargaining; integrative ("variable pie") bargaining (cf. "interest-based bargaining"); attitudinal structuring (cf. "partnering"); and intra-organizational bargaining, with real-world bargaining usually being a variable mixture of all four subprocesses.

BARGAINING AGENT.  The union holding exclusive recognition for an appropriate unit.

BARGAINING IMPASSE (IMPASSE).  When the parties have reached a deadlock in negotiations they are said to have reached an impasse in negotiations.* The statute provides for assistance by Federal Mediation and Conciliation Service (FMCS) mediators and the Federal Service Impasses Panel (FSIP) to help the parties settle impasses. If nothing avails, the FSIP can resolve the impasse by telling the parties what they are to put in their agreement or by ordering the use of interest arbitration by an agreed-upon private arbitrator. See § 7119. It is not, however, 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.

*Note: If the parties reach a bargaining impasse and the union timely invokes the services of the Impasses Panel, the agency must maintain the status quo to the maximum extent possible, consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action it deems appropriate. 18 FLRA No. 61. Failure to do so is an unfair labor practice and may result in a "make-whole" and/or status quo ante remedy. Regarding the "necessary functioning of the agency" exception to the duty to maintain the status quo, in 51 FLRA No.69, the Authority said that when an agency relies upon this exception and alters the status quo, it must be prepared to provide affirmative support for the assertion that the action taken was consistent with the necessary functioning of the agency. The Authority has also indicated that the phrase "consistent with the necessary functioning of the Agency," may be accurately paraphrased as "necessary for the [agency] to perform its mission." See 23 FLRA No. 10. Also see 16 F Nos. 31 and 32 on acting after bargaining to impasse and giving notice.

BARGAINING UNIT.  See Appropriate Unit.

BARGAINING UNIT STRUCTURE.  The distribution of bargaining units by, e.g., size and location. It is often said that the bargaining unit structure in the Federal sector is "fragmented." Two additional appropriate unit criteria--effective dealings and efficiency of government operations--were among the changes Executive Order (EO) 11491 made over EO 10988 in order to combat the problem of fragmentation. EO 11491 was later amended to provide for unit consolidation procedures as another means of coping with unit fragmentation. See unit consolidation.

BEP TEST.  A 2-prong test, articulated in Bureau of Engraving and Printing, 53 FLRA No. 21, that FLRA applies to arbitration awards that affect management's section 7106 rights to determine whether the award nonetheless is enforceable. Under the first prong, the Authority asks if the award provides a remedy for a violation of either an "applicable law" (see APPLICABLE LAWS) or a section 7106(b) (exceptions to management's rights) contract provision. If so, it then considers, under the second prong of the BEP test, whether the remedy constitutes a reconstruction of what management would have done had it not violated the applicable law or section 7106(b) contract provision.

BINDING ARBITRATION.  Under § 7121(b)(2)(A), a requirement that arbitration of grievances be binding (as opposed to advisory--which was permitted under Executive Order 11491).

BUDGET.  A core right reserved to management by § 7106(a)(1). In 2 FLRA No. 77, #I, the Authority fashioned a two-prong test that it has since used to determine whether a proposal interferes with an agency's right to determine its budget: namely, the proposal either has to prescribe particular programs, operations or amounts to be included in an agency's budget, or the agency can substantially demonstrate that the proposal would result in significant and unavoidable cost increases that are not offset by compensating benefits. Regarding the first part of its budget test, FLRA said the following in 48 FLRA No. 128:

We find that the first part of the budget test encompasses the specific process that is dedicated to formulating: (1) the budget estimate for an agency that is incorporated in the budget of the United States Government; (2) estimates for funding the operations and programs of an agency that are produced within the agency to provide the groundwork for the budget estimate that is incorporated in the budget of the United States Government; and (3) an agency's plan for allocating funds among its operations and programs once presidential and congressional action on the budget of the United States Government has occurred. Thus, the first part of the budget test removes from bargaining any mandated inclusion of programs, operations, and amounts in the estimates and plans that comprise an agency's budget process. As a practical matter, the first part of the test includes the prescription of the "line items" that will be contained in the budget estimates that are incorporated in the budget of the United States. It also encompasses the prescription of the items and amounts that will be included in the funding estimates and plans that are developed by the agency in conjunction with formulating and executing the budget of the United States.

Regarding the second part, in 47 FLRA No. 95 the Authority said that it would no longer consider nonmonetary intangible benefits when applying the cost/benefit balancing test. Also, in determining whether a cost is "significant," FLRA views the projected increase in costs in relation to the agency's budget. For example, in 49 FLRA No. 89, #4, involving a commuter subsidy proposal, FLRA concluded that a projected cost of $3.628 million would not constitute a significant increase in costs because such a cost represented less than 1 per cent of the agency's budget. Compare this with 47 FLRA No. 95, involving a salary adjustment proposal, where FLRA concluded that the projected cost increase of the proposal was significant because it would constitute 12 per cent of the agency's appropriated budget.

BYPASS.  Dealing directly with employees rather than with the exclusive representative regarding negotiable conditions of employment of bargaining unit employees. A bypass is an unfair labor practice prohibited by section 7116(a)(5). It is not, however, a bypass to solicit information that would assist management in making a nonnegotiable determination. See, e.g., 10 FLRA No. 24, 19 FLRA No. 48, and 19 FLRA No. 56.

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