Under § 7103(a)(11), an individual who formulates, determines, or influences the policies of the agency. Under § 7112(b)(1), such individuals are to be excluded from appropriate units. Because management officials are not "employees" within the meaning of the Federal Service Labor-Management Relations Statute (FSLMRS)
(§ 7103(a)(2)(iii)), they do not, among other things, have the FSLMRS-protected right to represent unions. See
§ § 7102 and
7120(e). In AFGE Local 2513 v. FLRA, 834 F.2d 174 (D.C. Cir. 1987), the court said the following about supervisors, which probably would also apply to management officials:
Congress has not prohibited supervisors from joining unions. It is inconceivable that supervisor-members' right to belong to a union includes nothing more than paying dues and participating in various health plans. While Congress expressly prohibited supervisors from assuming policy-making and representative functions within the union, § 7120(e), there is no evidence that Congress intended to deny supervisors one of the most essential vestiges of union-membership, the right to cast a vote in the election of their union's officials.
Refers to types of discretion reserved to management officials by
§ 7106(a) which, with the important exception of matters falling within § 7106(b), are not subject to collective bargaining. In
34 FLRA No. 55, the Authority said that "[m]anagement rights under section 7106(a) cannot be waived or relinquished through collective bargaining."
- Core rights. Rights reserved to management under
§ 7106(a)(1), referred to as "core" management rights in the National Partnership Council's 1994 Report to the President, consist of the rights "to determine the mission, budget, organization, number of employees, and internal security practices of the agency[.]" "Applicable laws" affecting these core rights cannot be enforced through the negotiated grievance procedure. See Treasury v. FLRA, 494 U.S. 922 (1990).
- Operational rights. Rights reserved to management under
§ 7106(a)(2), sometimes referred to "operational" rights, consist of the rights "(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; (B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted; (C) with respect to filling positions, to make selections for appointments from--(I) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source; and (D) to take whatever actions may be necessary to carry out the agency mission during emergencies."
- Three exceptions. The three
§ 7106(b) exceptions to the above involve (1) § 7106(b)(1) permissive (or "elective") subjects of bargaining (e.g., staffing patterns, methods and means of performing work) on which, under the statute, agencies can elect to bargain, (2) procedures management will follow in exercising its reserved rights, and (c) appropriate arrangements for employees adversely affected by the exercise of management rights.
- "Permissive" subjects exception. The
§ 7106(b)(1) "permissive" subjects deal with, firstly, "staffing patterns" (see 52 FLRA No. 106)--i.e., with "the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty" and, secondly, "the technology, methods, and means of performing work." Under the statute such matters are, moreover, negotiable "at the election of the agency" even if the proposal also directly interferes with the exercise of a § 7106(a) right. See 51 FLRA No. 36.
- Procedural "exception."
Section 7106(b)(2), dealing with procedures, really isn't an exception to management's rights as the Authority has held that a proposed "procedure" that "directly interferes" with a management right is not a procedure within the meaning of
§ 7106(b)(2). See Customs Service v. Federal Labor Relations Authority, 854 F.2d 1414, 1418 (D.C. Cir. 1988). 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.
- Appropriate arrangement exception.
Section 7106(b)(3) applies only if the proposal is intended to ameliorate the adverse effects of the exercise of a management right. (It doesn't apply if the adverse effect is caused, e.g., by a regulation.) Where such is the intent of the proposal, the Authority applies a balancing test in which it weighs the extent to which the proposal ameliorates the expected adverse effects against the extent to which it interferes with the management right and determines whether or not the specific proposal "excessively" interferes with management rights. If the interference is "excessive," the proposal isn't an "appropriate arrangement" and therefore is nonnegotiable. If otherwise, the proposal is a negotiable appropriate arrangement, even though it interferes with management's rights.
To qualify as an "arrangement" to which it would be proper to apply the excessive interference balancing test, the proposal has to be "tailored" so that it applies only to those employees who would be adversely affected by the proposed management decision. See, in this connection, Interior, Minerals Management Service v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992). "Prophylactic" proposals that are intended to eliminate the possibility of an adverse effect where it is impossible to predict which employees would be adversely affected by the decision reserved to management by
§ 7106(a) also qualify as "arrangements" (but not necessarily as appropriate arrangements) within the meaning of
§ 7106(b)(3). See
53 FLRA No. 59 and
56 FLRA No. 161.
Use of a third party, usually a neutral without authority to impose a settlement, to assist the parties to reach agreement. Mediation techniques vary, but one common practice is for the labor mediator to separate the parties (in order to control communications) and meet with them separately and, in effect, engage in interest-based bargaining with them. Because the mediator usually is a neutral who cannot impose a settlement and because he or she is expected to keep confidences, each party is assumed to be more willing to be open with the mediator than with the other party (or with an interest arbitrator). Because of this greater openness, the mediator often is able to see areas of possible agreement that the parties are unable to see in direct, unmediated, negotiations. Under
§ 7119(a), labor mediation services are provided by the Federal Mediation and Conciliation Service (FMCS). Some writers have distinguished between conciliation and mediation in terms of the degree to which the mediator is expected to be an active participant in the process, with the conciliator playing a more passive role than that played by a mediator.
(mediation followed by interest arbitration). A process in which a neutral with authority to impose (or to recommend the imposition of) a settlement, first resorts to mediation techniques in an attempt to get the parties to voluntarily agree on unsettled matters, but who can later impose a settlement if mediation fails. The theory behind it is that the parties will be more receptive to the med-arb's suggestions for settlement if they know that the med-arb has authority to impose a settlement. It could, however, be argued that med-arb is a contradiction in terms: since the parties know the med-arb has authority to impose a settlement, they are not going to be as open regarding their interests and priorities as they would before a mediator who has no authority to impose a settlement, but will instead dissimulate, posture, be guarded and, in effect, resort to advocacy-by-exaggeration.
METHODS AND MEANS of performing work. Along with Staffing Patterns and Technology, a § 7106(b)(1) exception to management's § 7106(a) rights. FLRA construes the term "method" to refer to the way in which an agency performs its work. The term "means" refers to "any instrumentality, including the agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." 47 FLRA No. 26, #1. In 56 FLRA No. 10 (reported in Significant Cases No. 134), FLRA found 9 proposals dealing with methods and means to be mandatorily negotiable
7106(b)(3) appropriate arrangements. In
55 FLRA No. 73 the Authority said the following: "Proposals concerning the number and designation of rating levels do not concern how an agency performs its work or what an agency uses to accomplish its work. Rather, such proposals concern how an agency evaluates the manner in which its employees perform the work to which they have been assigned. The Authority has consistently held that an agency's determinations as to performance standards and rating levels concern the work objectives for employees. . . . An agency's determination of the methods and means of performing work, on the other hand, concerns how employees will do their work, and what they will use, to accomplish those objectives." In
54 FLRA No. 136, the Authority held that a provision dealing with contracting out did not deal with methods and means because contracting out deals with who will do the agency's work, not with the way in which it will be done. Although EO 12871 had directed agencies to bargain on (b)(1) matters, that order was revoked by EO 13203.
Literally, all bargaining that takes place during the life of the contract. See, e.g.,
51 FLRA No. 68. Usually contrasted with term bargaining--i.e., with the renegotiation of an expired (or expiring) contract. Midterm bargaining includes I&I bargaining, union-initiated midterm bargaining on new matters; and bargaining pursuant to a reopener clause. It excludes matters that are already "covered by" the term agreement. In NFFE v. Interior, 526 U.S. 86 (1999), the Supreme Court, finding that the statute was ambiguous on the matter of midterm bargaining, held that FLRA's interpretation was entitled to considerable court deference. After the Court's remand, the Authority, in
56 FLRA No. 6, in effect reaffirmed the position it held before the 4th Circuit held that a union had no right to initiate midterm bargaining. That is, FLRA held that "agencies are obligated to bargain during the term of a collective bargaining agreement on negotiable union proposals concerning matters not 'contained in or covered by' the existing agreement unless the union has waived its right to bargain about the subject matter involved."
MISSION OF THE AGENCY.
A right reserved to management by § 7106(a)(1). Although illustrative case law on this particular right is meager, it is generally recognized that the right encompasses the determination of the products and services of an agency. For example, a proposal prescribing when the agency would provide its services to the public was found to directly interfere with this right. See, e.g.,
22 FLRA No. 92, #1;
29 FLRA No. 123, #3; and
30 FLRA No. 69, #8.