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 unitemployees, 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 provisionsthat 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 evenrestate 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)). However, see38 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 with52 FLRA No. 37(no bar because the unfair labor practice issue is not the same as the negotiated grievance procedure issue).
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.