NATIONAL CONSULTATION RIGHTS (NCR).   Under § 7113, the right of a union accorded such recognition to be consulted on agency-wide regulations before they are promulgated. NCR is to be distinguished from § 7117(d)(1) consultation rights with respect to Governmentwide regulations, under which a union accorded such recognition must be consulted on proposed Governmentwide regulations before they are promulgated.

NEGOTIABILITY DISPUTES.   Disputes over whether a proposal is nonnegotiable because (a) it is inconsistent with laws, rules, and regulations establishing conditions of employment and/or (b) it interferes with, and does not constitute a § 7106(b) exception to, the exercise of rights reserved to management by § 7106.

Negotiability disputes normally are processed under FLRA's "no fault" negotiability procedures--see § 7117(c)(1) and 5 CFR Part 2424. They can also be processed under FLRA's unfair labor practice procedures (5 CFR Part 2423) if they are associated with changes in conditions of employment in which management has refused to bargain on the union's proposals on the ground they are nonnegotiable. (If the union files under both procedures, FLRA will dismiss, without prejudice, the negotiability petition for review. See 5 CFR 2424.30(a).)

Negotiability disputes have played a prominent role in Federal sector negotiations because of the extent to which conditions of employment of Federal employees are determined by laws and regulations, with the result that there is far less room for bargaining than there is, e.g., in the private sector. The parties are, in effect, limited to bargaining in the interstices. Lack of clarity as to the meaning of management's § 7106 rights, as well as the complications brought about by § 7106(b)'s exceptions to those rights, also contributes to the high incidence of negotiability disputes.

Finally, when union-management relations are adversarial, there is a temptation to avoid bargaining by alleging that proposals are nonnegotiable rather than finding out what concerns or problems prompted the proposals and using the bargaining process as an attempt to find mutually satisfactory solutions to real problems. When the legal constraints are numerous, unclear, complicated (because, e.g., of exceptions and the need to use fact-sensitive balancing tests) and constantly changing, opportunities to make use of such tactics are abundant. Even when these constraints are not exploited to avoid bargaining, good faith assertions of nonnegotiability cannot help but create frustration and distrust. One of the virtues of interest-based bargaining is that issues of negotiability come at the end of the process, when evaluating alternatives, rather than at the beginning of the process, before interests and exploration of ways in which they can be met, are discussed.

NEGOTIATED GRIEVANCE PROCEDURE (NGP).   Section 7121 requires that the collective bargaining agreement (CBA) contain a grievance procedure terminating in final and binding arbitration. The NGP, with a few exceptions involving statutory alternatives (e.g., adverse and performance-based actions), is the exclusive administrative procedure for grievances falling within its coverage. Apart from the matters excluded from the coverage of the NGP by § 7121(c)--e.g., retirement, life and health insurance, classification of positions--the NGP covers those matters specified in the definition of grievance in § 7103(a)(9) (see GRIEVANCE), minus any of those matters that the parties agree to exclude from the NGP. That is, under the FSLMRS program, the parties negotiate to determine what matters to exclude from the procedure rather than what matters it is to include--just the opposite from pre-FSLMRS and private sector practices.

In Carter v. Gibbs, 883 F.2d 1563 (Fed. Cir. 1990), the Federal Circuit held that, because of the exclusivity of the NGP, Fair Labor Standards Act (FLSA) claims covered by the NGP could only be processed under the NGP. In subsequent court decisions it was made clear that it would be assumed that the NGP covered FLSA claims unless the NGP expressly excluded such claims from the NGP's coverage. However, § 7121 was amended in 1994 to provide, among other things, that the reference to "exclusive procedures" be changed to "exclusive administrative procedures," which may result in a reexamination, and perhaps modification, of Carter v. Gibbs.

It should be noted that the scope of the NGP is broader than the scope of bargaining. Although, e.g., a proposal inconsistent with a law or a Governmentwide regulation is nonnegotiable, alleged misapplications of laws or Governmentwide regulations relating to conditions of employment, with a few exceptions and qualifications, can be grieved under the NGP. Regarding grievances alleging misapplication of laws, in Treasury, Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 12/30/94), the court held that the NGP can't be used to enforce laws that only incidentally affect employee working conditions. Regarding Governmentwide regulations, in Department of Treasury, IRS v. FLRA, et al, 996 F.2d 1246 (D.C. Cir. 1993), the court held that alleged violations of OMB Circular A-76 can't be grieved under the NGP because the Circular prohibited such grievances.

NUMBER OF EMPLOYEES OF AN AGENCY.   A right reserved to management by § 7106(a)(1). There have been no FLRA decisions in which a proposal has been found nonnegotiable because it interfered with this right. In 46 FLRA No. 27, where FLRA held that a placement program for employees losing security clearances didn't abrogate this right, FLRA said that this right "relates to the number of employees actually employed by an agency." For other cases in which management unsuccessfully invoked this right, see 44 FLRA No. 1, 32 FLRA No. 127, 31 FLRA No. 30, and 23 FLRA No. 30.