NATIONAL CONSULTATION RIGHTS (NCR).
Under
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
Negotiability disputes normally are processed under FLRA's "no fault" negotiability procedures--see
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
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
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,
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