# Presentation: 666279

**TEN FLRA CASES EVERY PRACTITIONER & MANAGER SHOULD KNOW**

- VA OFFICE OF LABOR-MANAGEMENT RELATIONS
- JANUARY 2008

## 

Condition of Employment 
	Department of Labor, Occupational Safety and Health Administration, Region 1, Boston, MA and AFGE Local 948, 58 FLRA 213, 58 FLRA No. 55 (2002) (concurring opinion of Chairman Cabaniss) 

2. 	De Minimis Impact
    	AFGE, National Border Patrol Council v. FLRA, 446 F.3d 162 (DC Cir. 2006)

**Condition of Employment **
*	**Department of Labor, Occupational Safety and Health Administration, Region 1, Boston, MA and AFGE Local 948*, 58 FLRA 213, 58 FLRA No. 55 (2002) (concurring opinion of Chairman Cabaniss)** **
**2. ****	****De Minimis Impact**
-     	*AFGE, National Border Patrol Council v. FLRA*, 446 F.3d 162 (DC Cir. 2006)

**DUTY AND SCOPE OF BARGAINING**

## 3. Covered by
    Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993);
    U.S. Customs, Service, Miami, Florida, 
    56 FLRA 809 (2000)

4. Appropriate Arrangements
    National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986); see also POPA AND PTO, 56 FLRA No. 10 (2000)

5. Excessive Interference vs. Abrogation
    Federal Bureau of Prisons, Oklahoma City, Oklahoma, 58 FLRA No. 21 (2002)

-     *Social Security Administration, Baltimore, Maryland*, 47 FLRA 1004 (1993);
-     *U.S. Customs, Service, Miami, Florida*,
-     56 FLRA 809 (2000)
**4. Appropriate Arrangements**
-     *National Association of Government Employees, Local R14-87 and Kansas Army National Guard*, 21 FLRA 24 (1986); see also POPA AND PTO, 56 FLRA No. 10 (2000)
**5. Excessive Interference vs. Abrogation**
-     *Federal Bureau of Prisons, Oklahoma City, Oklahoma*, 58 FLRA No. 21 (2002)

## 

6. RIGHT TO DATA-PARTICULARIZED NEED
    Internal Revenue Service, Kansas City, MO,
    50 FLRA 661 (1995); INS and AFGE Local 2366, 51 FLRA 768, 51 FLRA No. 68 (1996)

7. WEINGARTEN
    Bureau of Prisons, Safford, Arizona, 35 FLRA 431 (1990); NASA v. FLRA, 119 S. Ct. 1979 (1999)  

8. FORMAL DISCUSSION
    Pension Benefit Guaranty Corporation and NAGE Local R3-77 , 62 FLRA 219, 62 FLRA No. 48 (2007)

**6. RIGHT TO DATA-PARTICULARIZED NEED**
-     *Internal Revenue Service, Kansas City, MO*,
-     50 FLRA 661 (1995); *INS and AFGE Local 2366*, 51 FLRA 768, 51 FLRA No. 68 (1996)
**7. WEINGARTEN**
-     *Bureau of Prisons, Safford, Arizona*, 35 FLRA 431 (1990); *NASA v. FLRA*, 119 S. Ct. 1979 (1999)
**8. FORMAL DISCUSSION**
-     *Pension Benefit Guaranty Corporation and NAGE Local R3-77* , 62 FLRA 219, 62 FLRA No. 48 (2007)

**UNION RIGHTS & OBLIGATIONS**

## 9. Bypass
    Bureau of Prisons, FCI, Bastrop, Texas, 
    51 FLRA 1339 (1996); McGuire AFB, New
    Jersey, 28 FLRA 1112 (1987)

10. Discrimination and Flagrant Misconduct
	Davis-Monthan AFB, Tucson, Arizona, 58 FLRA No. 162 (2003); Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, MO and NFFE, Local 1827, 17 FLRA 71, 17 FLRA No. 18 (1985) 

-     *Bureau of Prisons, FCI, Bastrop, Texas*,
-     51 FLRA 1339 (1996); *McGuire AFB, New*
*    **Jersey*, 28 FLRA 1112 (1987)
**10. Discrimination and Flagrant Misconduct**
*	**Davis-Monthan AFB, Tucson, Arizona*, 58 FLRA No. 162 (2003); Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, MO and NFFE, Local 1827, 17 FLRA 71, 17 FLRA No. 18 (1985)

## CONDITION OF EMPLOYMENT

- Whether the matter proposed to be bargained pertains to bargaining unit employees
- — and —
- The nature and extent of the effect of the matter proposed to be bargained on working conditions of those bargaining unit employees

**CONDITION OF EMPLOYMENT**

## DE MINIMIS TEST

- Where substance of decision is not negotiable, agency is obligated to bargain over procedures and appropriate arrangements if the resulting change has more than a de minimis impact on conditions of employment.
- Look to the nature/extent of the impact, or the reasonably foreseeable impact.

**DE MINIMIS TEST**

## COVERED BY DOCTRINE

_**Two prong test:**_
**1.**  Expressly contained in the negotiated     agreement
**2.**  Whether matter sought to be bargained is an aspect of matters already negotiated-bargaining history may be considered
- Application to expired agreements

**COVERED BY DOCTRINE**

## APPROPRIATE ARRANGEMENTS

- 1. Determine what management right under §7106(a) management is exercising
- 2. Determine adverse effects on employees from exercise of the management right.
- 3. Adverse effects can not be speculative or hypothetical.

**APPROPRIATE ARRANGEMENTS**

## APPROPRIATE ARRANGEMENTS (cont.)

- 4. Must tailor proposal to only those adversely affected.
- 5. Determine whether proposal excessively interferes with management right.
- 6. Weigh benefits to employees against intrusion on the exercise of Management Rights.

**APPROPRIATE ARRANGEMENTS (cont.)**

## PARTICULARIZED NEED

- Union must establish a particularized need for the requested information by specifically articulating its need for the information, including the intended uses, and the connection between those uses and its representational responsibilities.
- Test is not met simply by claiming the information is or would be relevant or useful-must demonstrate necessity in order to represent members.
- Agency must establish countervailing anti-disclosure interests-See *Immigration and Naturalization Service, Tucson, AZ*, 58 FLRA No. 165 (2003).

**PARTICULARIZED NEED**

## WEINGARTEN

-   Examination in connection with an investigation
-   Examination of an employee in a bargaining   unit
-   Examination by a representative of an Agency
-   The employee reasonably believes that he/she may receive a disciplinary action from the investigation and this examination
-   Employee requests representation

**WEINGARTEN**

## FORMAL DISCUSSION

- Meeting must be formal
- Meeting must involve personnel policy, general condition of employment or grievance

-   Status of Person holding meeting
-   Presence of other managers
-   Location of the Meeting
-   Meeting mandatory?
-   Duration of the meeting
-   Existence of formal agenda

**FORMAL DISCUSSION**

## BYPASS

- Management is not permitted to deal directly with unit employees to put pressure on the Union to take a certain course of action
- Where the Union is the designated representative of an employee in a matter, an agency representative may not meet with the employee on the matter without the Union being present

**BYPASS**

## DISCRIMINATION

- Evidence must establish that the employee against whom a discriminatory action was taken engaged in protected activity of which management was aware AND the decision to take the action was motivated by consideration of the employee’s protected activity.
- If above is shown-up to Agency to prove that there were lawful reasons for taking the action AND that it would have taken the same action even if the employee had not engaged in protected activity.

**DISCRIMINATION**

## FLAGRANT MISCONDUCT

- When alleged discrimination occurs during protected activity, a necessary part of the Agency’s defense is that the conduct constituted flagrant misconduct.

**FLAGRANT MISCONDUCT**