NATIONAL ASSOCIATION OFAGRICULTURE EMPLOYEES

BASIC JOINT UNION-MANAGEMENTLABOR RELATIONS TRAINING

2014 NATIONAL CONVENTIONApril 7, 2014St. Louis, MO

Trainers: Kim D. Mann, Esquire, General Counsel, NAAE Peter B. Brownell and Joanne Adams, Labor Relations Specialists,

APHIS Labor Relations

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OUTLINE OF JOINT TRAINING SESSIONIntroduction

A. Axioms/Addages (KM)

I. Federal Service Labor-Management Relations StatuteA. Congressional Findings and Statutory Purpose (KM)B. Employee Rights (KM)

-- Conditions of Employment (PB)C. Management Rights (PB)D. Exclusive Representatives’ Rights and Duties (KM)E. Scope of Union Representation (KM)

1. Collective Bargaining (PB)2. Grievance Representation and

Procedures (KM)-- Past Practices (BP)

3. Unfair Labor Practices (JA)4. Formal Discussion (JA)5. Investigative (Weingarten) Meeting

(KM)

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II. Collective Bargaining Under The StatuteA. Duty to Bargain in Good Faith (KM)B. Subjects of Bargaining (JA)

1. Conditions of Employment2. Seven/Eight Exceptions3. I&I Proposals4. Appropriate Arrangement5. Ground Rules6. Post-Negotiations Review

C. Failure to Negotiate an Agreement (PB)1. Negotiability Disputes2. Impasse3. Failure/Refusal to Negotiate

D. Waiver of Union Negotiating Rights (KM)E. Mid-Term Bargaining (KM)F. Right to Information ( KM)G. Official Time (PB)

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III. Hypotheticals (KM/ JA)A. GOV Misuse

B. Shift Changes

C. Short Staffing

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1. Know what tools you have available human resources books, Internet, hand-outs thinking outside book (Cong., customers, media)

2. Know the hierarchy within NAAE within Management use it, ask! the human tools

TOOLS

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3. Know written materials Yellow Book the outline, handouts, Broida formerly the “Red Book,” now the “Green Book” the law the statute and regulations (CFRs)

what are these? FLRA internet site

how to use it (FLRA decisions)4. Common sense

turn to Union reps first if any doubt

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1. Much of employment relations is common sense but built upon basic understanding of law

2. You get the labor relations you deserve if you treat Mgmt. reps with civility, courtesy, Mgmt. likely

to reciprocate my experience: depends upon who is running the show

as Labor Relations Chief as Labor Relations Specialists assigned to your Region as Dept. Admin.

ADAGES/AXIOMS

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3. Perfect is the enemy of the good if you insist on extracting last ounce out of management,

you will lose if your goal is absolute 100% victory, you will end up

frustrated and may achieve nothing

4. Good is enemy of the excellent but don’t settle for mediocrity, for any “ok” result if you settle for only what is a mediocre success, you will

achieve only mediocrity if you do not put your best effort into achieving a realistic

goal, you will fall short how do you maximize your effort and your chances?

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A. Congressional Findings and Purpose

– Unions/negotiations in public interest

– participation and protection of rights promotes public interest, Agency mission, dispute settlement

I. STATUTE

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B. Employee Rights – whose rights?

• every Agency employee except supervisors/ managers

– join/not to join

– serve as Union rep, collectively bargain

• conditions of employment

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C. Management Rights – exclusive rights

• mission, budget, organization, number of employees, internal security, hire, assign, direct, lay off, discipline, assign work, contract out work, determine personnel, fill positions, and emergencies

• no right to bargain over substance (“exclusive”) – permissive rights at election of Agency

• numbers, types, and grades

• technology, methods, and means

• E.O. 13522

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D. Union’s Rights and Duties

– exclusive representative

– duty of fair representation

– represent all employees

– exception: conflict of

interest

– standard = not arbitrary,

discriminatory, bad faith

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E. Scope of Union Representation – 5 Areas:• negotiations• ULPs• grievances

– Definition• meet at reasonable times, bargain in good faith• only with respect to conditions of employment• execute written documents• no obligation to reach agreement

– only Union members ratify

– Agency-head review

1. Collective Bargaining

• formal discussions• Weingarten meetings

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2. Grievances

– Definition: any complaint

• by any (b.u.e.) employee or Union concerning

employment

OR

• by any employee, Union, or Agency

concerning

(i) effect, interpretation, breach of

contract

OR

(ii) violation/misrepresentation of

law or regulation relating to employment

conditions

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– Represents entire b.u.e.

– Grievance Procedures:

• collective bargaining agreement (Article 16)

• time frames critical

• start at first-line supervisor level informally

• move next to Labor Relations Specialist in

Regional Office if dissatisfied as Step 1

• if Dep. Administrator’s Step 3 decision does

not resolve, Union may invoke arbitration

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– Right to Information:

• submit written § 7114(b)(4) request

• e.g. data, documents, reports, memos,

letters, email

• regular course of business

• reasonably necessary

• only union has this right

• tolls grievance-filling deadline and allows

amending filed grievance

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– Practical Applications• resolve workplace disputes about Contract

matters, or specific law, rule, or regulation violation

• ensure uniform treatment of b.u.e.s• protect Contract rights of Union and b.u.e.s• establish precedent• maintain workplace peace

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– Practical Applications (cont.)• also resolve disputes about “past practices”

… rises to level of contract (i.e., enforceable)… must be open, continuous, unchallenged,

affect conditions of employment• change in “past practice” requires notice to

Union & negotiation… unless practice is contrary to laws

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1. As the result of contamination in its regular water supply, the Employer provided bottled water to b.u.e.s for 16 months before it discontinued supplying water ___ Past Practice ___ No Past Practice

2. The Agency has hours of duty between 7:00 AM and 6:00 PM. Some employees have been allowed to start work as early as 6:00 AM ___ Past Practice ___ No Past Practice

Past Practice ExercisesAre any of the following past practices?

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3. The U.S. Naval Academy unilaterally terminated a long standing (years old) practice of allowing Academy employees to use its boats for recreational purposes ___ Past Practice ___ No Past Practice

4. The Employer’s Fair Labor Standards Act (FLSA) determinations were found to be inaccurate and as a result it had been paying more premium pay than it should for the past 5 years___ Past Practice ___ No Past Practice

Past Practice Exercises (cont.)

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5. An employee has openly used her GOV for the past three months to run to the bank to deposit her monthly pay checks. Another employee in her Port has done the same thing ___ Past Practice ___ No Past Practice

Past Practice Exercises (cont.)

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– Exclusions from Grievance Procedures:• prohibited political activities violation• insurance• national security• position classification not resulting in pay/grade reduction• testing and certification results• termination of benefits (in certain circumstances)• non-selection (for promotions, voluntary transfers) except

for procedural irregularities• termination of probationaries, unless permitted by law• performance or other discretionary award

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– Exclusions from Grievance Procedures when Employee selects Statutory Appeals procedure:

• RIFs (to MSPB)• EEO complaints (to EEOC or court)• prohibited personnel practices (to MSPB)• adverse actions (to MSPB)

– Option to grieve or use statutory appeals procedures

• choose one or the other, but not both

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3. ULPs

– 8 Agency actions constitute ULPs

• interfere with employee rights under Statute

• encourage/discourage Union membership

• retaliate against b.u.e.

• refuse to negotiate in good faith

• fail/refuse to cooperate in impasse

• enforce any Agency or Dept. rule or regulation

in conflict with union contract (if contract

provision existed before rule/regulation)

• otherwise fail/refuse to comply with statute

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– 8 Union actions constitute ULPs

• mirrors the 8 Agency actions• discriminate against b.u.e. based on

Union membership• call/participate in strike, work

stoppage, slow down, or picketing (non-info)

• deny membership to eligible b.u.e.

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– Not challengeable as ULP:• action challengeable under statutory

procedure (EEO, MSPB, RIFs) – If challengeable as both ULP and grievance, must elect

• one or the other, but not both

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– ULP Procedures• file charges within 6 months• use FLRA form• provide complete description/

documentation at time of filing

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– FLRA will investigate, has discretion to file complaint• if FLRA does not file, will notify and give

option to withdraw• if not withdrawn, will provide written

statement with reasons• may appeal refusal to file to FLRA General

Counsel in DC• if complaint issues against Agency, FLRA

G.C. represents Union• Statute spells out remedies, appeal available to FLRA

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4. Formal Discussion– Elements are (i) discussion, (ii) formal, (iii) between Agency rep. and b.u.e. (iv) concerning grievance, general personnel policy or practices, or general employment conditions– Union entitled to notice/opportunity to attend– When is meeting “formal”?• depends upon totality of all circumstances

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4. Formal Discussion (cont.) relevant factors are (i) status of person who held

discussions, (ii) whether other mgmt. reps attended, (iii) site of discussions, (iv) how meeting was called (spontaneous, unplanned?), (v) how long discussion lasted, (vi) whether formal agenda was prepared and minutes kept, and (vii) manner in which discussions were conducted

among others (such as, was attendance voluntary?)– NAAE rep’s role

attend, participate, speak, comment, not disrupt state union’s position

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5. Weingarten Meeting– elements are (i) Agency rep (ii) examination of b.u.e. (iii) if b.u.e. reasonably believes discipline may result and (iv) requests Union rep– no notice to Union required– grant of immunity

• dispels fear of discipline• compels employee to answer

– NAAE rep’s role• participate• establish basis for investigation/interview• coach and advise• take minutes• do not let b.u.e. sign statement on spot

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1. Employer called a meeting to discuss work assignments and progress in meeting due dates. At the meeting, a b.u.e., the local union president, raises questions about access to the Internet to facilitate doing assigned tasks

2. Employer called a meeting to solicit volunteers for overtime work and to explain both the need for the overtime as well as the procedures to be used in assigning overtime if insufficient volunteers come forward

Formal/Weingarten Meeting ExerciseWhich of the following are formal or Weingarten meetings and why?

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3. A supervisor calls a meeting with an employee to discuss the employee’s performance on some recent projects

4. A representative of the Inspector General meets with a b.u.e. to find out what the employee knows about computer thefts at the work site

5. A group of b.u.e.s requests a meeting with a supervisor to discuss office coverage during the holiday season

Formal/Weingarten Meeting Exercise (cont.)

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A. Duty to Bargain in Good Faith sincere effort to reach agreement negotiators authorized to negotiate, commit agency meet at reasonable times as necessary provide reasonably necessary information

(Agency) sign agreed provisions, implement

no obligation to agree

II. COLLECTIVE BARGAINING

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B. Subjects of Bargaining1. Conditions of Employment

personnel policies, practices, matters affecting working conditions

2. Seven exceptions (excluded categories) political activity position classification covered by federal statute in conflict with federal law or government-wide

rule/reg. in conflict with Agency- (or Dept.) wide rule/reg. for

which “compelling need” exists exclusive Management right permissive Management right, Agency elects not to

negotiate

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3. I&I Proposals (exception to exceptions) Agency must negotiate I&I even when substance is

non-negotiable exceptions

de minimis impact Union waives bargaining right

4. Appropriate Arrangement (exception to exception)

must negotiate substance Union proposal must be tailored to accommodate

adversely affected b.u.e.s

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5. Ground Rules negotiating procedures to govern collective bargaining already fully negotiated, but some room left …

6. Post-Negotiations Review local agreements reviewed for consistency with

National Agreement National and local agreements must go through

agency-head review Agency has 30 days to approve/disapprove must renegotiate provisions found inconsistent or

contrary to law

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C. Failure to Negotiate Agreement1. Negotiability Disputes

Management declares Union proposal non-negotiable because proposal conflicts with law

negotiability appeal procedures Union submits written request to

Agency for written declaration Union files negotiability petition

with FLRA (15 days) FLRA decision binding

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2. Impasse failure to reach agreement after good-

faith bargaining invoke FMCS mediation request FSIP resolution

3. Agency (or Union) failure/refusal to negotiate file ULP or grievance

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D. Waiver of Union Negotiating rights1. spelled out in Contract2. failure of timely response/proposals3. “covered by” doctrine

E. Mid-term Bargaining Agency and Union have right unless “covered by” Contract

Agency too?

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F. Right to Information1. Only Union may request2. Maintained in regular course of business3. Reasonably available4. Reasonably necessary for full/proper discussion, understanding, and negotiation provide particularized-need statement

5. Exception for information constituting guidance, advice, training for Management related to collective bargaining

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G. Official Time for negotiating collective bargaining,

including impasse proceedings employee in official duty status not for internal Union business now “covered by” Art. 11, in Green

Book

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PPQ employees able to send children to Antilles Consolidated School System (“Antilles”)

since 1978 free run, operated by DOD

DOD policy: Antilles “available to families of non-military government personnel who are on a rotation to PR”

I. Facts

III. HYPOTHETICALSHypothetical (sort of) A.

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In 1985, PPQ adopts formal policy: all vacancies in PR will be filled as “rotational assignments” upon request of employee

PPQ children stay enrolled in Antilles In 2005, PPQ changes policy: terminates all

rotational assignments in PR, effective immediately no notice to Union 6 employees of PPQ lose entitlement to enroll

children in Antilles, must withdraw

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grievance ULP request to bargain two (or more) of the above

II. Options

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terminated practice (rotational assignments) without notice to Union

does it violate CBA? is it a condition of employment (§ 7103(a)(14))? does terminating practice involve Management’s

right to assign work (§ 7106(a)(2)(B))? if so, is it still negotiable?

I&I? as to substance (appropriate arrangement)?

III. Grievance

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Requested remedies: status quo ante give notice, bargain

Agency defenses: non-negotiable (does not affect condition of

employment; interferes with Management’s right) had no choice (there were no rotations, pressure

from DOD and school)

III. Grievance (cont.)

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failure to give Union notice and opportunity to bargain

what statutory right does it violate? does Management’s claim, that Agency has no

obligation to negotiate when it exercises its right to assign work, defeat ULP?

what remedy is likely?

IV. ULP

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when should Union request to bargain? when should it submit proposals? what are Union’s best proposals?

as to I&I? as to substance?

let children go to school, keep rotational assignment designation

V. Bargaining

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Agency must bargain I&I (§ 7106(b)(2)) and substance if appropriate arrangement (§ 7106(b)(3)), even when Agency change is a Management right.

Agency must bargain over Agency decision effecting employee’s conditions of employment,

as long as change is more than de minimis look to reasonably foreseeable effect on

b.u.e. conditions of employment

VI. FLRA Decision (on grievance appeal)

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Rejects Agency de minimis defense: terminating policy has no effect because no PPQ employee has been required to rotate

ignores the “effect” of change on b.u.e.s,i.e. loss of right to send children to Antilles

irrelevant that no employees labeled “rotational” have ever rotated in the past

VI. FLRA Decision (cont.)

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What happens to grievance if Union negotiating proposals, submitted with grievance, turn out to be non-negotiable?

FLRA rejects Agency defense that Union’s proposals directly interfere with Agency’s decision to exercise Management right

VI. FLRA Decision (cont.)

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to establish right to bargain, Union not required to show its proposals, submitted after Management implements without negotiating, are negotiable

Agency can not avoid obligation to bargain by objecting to Union’s proposals and remedies submitted after Agency unlawfully refuses to bargain

What happens if Union does not timely reply or object to Agency exceptions?

VI. FLRA Decision (cont.)

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1. Current Shift: 7:00am – 3:30pm2. Charters/Seasonal 12/15/-3/15 (4 mos.)3. Charter Arrivals: 5:00pm/6:00pm/7:00pm4. Covered by call-out O/T5. New T/D Shift: 12:00pm – 8:30pm6. Notice to Local NAAE Pres. given 12/7

states new shift starts 12/15

Hypothetical B.

I. What does local NAAE Pres. do?II. What if Mngr./NAAE discussions not concluded by 12/15?

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1. Local MOU provides:

Management shall establish promotion-enhancing Upward Mobility Program following consultation with the Union and shall encourage employee participation except when attendance interferes with carrying out mission of Agency.

2. Employee A (Tech.) signs up for week-long Program

gave notice to, got approval of SPHD

Hypothetical C.

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3. Day before Program starts, Port Director refuses to allow Employee A to attend, claiming “short staffing”

4. Port Director allows Employee B (GS-9 and PD’s next-door neighbor/golfing partner) to go on TDY to Hawaii for two weeks

5. Employee A asks you (Local Union Rep) for advice6. What do you do?

Go to SPHD? File Grievance? File ULP? File EEO Complaint?

Hypothetical C. (cont.)