# Presentation: 067234

## Roles/Expectations/Resources

**Roles/Expectations/Resources**

- The National Oceanic and Atmospheric Administration has one of the most dynamic labor relations environments in the federal sector. There are 22 labor unions representing the interests of over 5,000 employees within the line and corporate offices in NOAA.
- These offices have designated specific management officials to serve as points of contact and liaisons between management and the appropriate unions.

## Roles/Expectations/Resources

**Roles/Expectations/Resources**

- As a management representative, you are directly responsible for communicating, promoting, and protecting the interests of NOAA management.
- As a management representative, you are required to:
- Engage the union to communicate proposed changes in conditions of employment
- Coordinate responses to requests for information and proposals submitted by the union

## Roles/Expectations/Resources

**Roles/Expectations/Resources**

- Participate in negotiations over the implementation of changes in conditions of employment
- Consult with WFMO and OGC to ensure all oral and written communications to the union accurately reflect the interest of your organization and NOAA
***As the “voices of NOAA,” you are uniquely responsible for promoting and protecting the interests of NOAA.***

## Roles/Expectations/Resources

**Roles/Expectations/Resources**

- Your efforts are supported by the Workforce Management Office (WFMO) and the Department of Commerce, Office of General Counsel (OGC).
- The WFMO labor relations advisors are your primary resources in the labor relations process. These advisors will provide guidance, conduct the necessary research, assist with negotiations, and prepare written communications to the unions on your behalf.

## Roles/Expectations/Resources

**Roles/Expectations/Resources**

- The NOAA Labor Relations Officer (LRO) serves as the agency point of contact for information on nationally and locally relevant labor relations issues within NOAA and the Department of Commerce.  The LRO also provides specific guidance and operational assistance in every aspect of the labor relations process.
- The Department of Commerce, Office of General Counsel, serves as a consultant in the labor relations process.   In addition, OGC is the official agency representative in all administrative forums (e.g., Federal Labor Relations Authority).

## Legal Authority:  The Statute

**Legal Authority:  The Statute**

- What is the Federal Service Labor-Management Relations Statute?
***Title 5 United States Code Chapter 71***
- -  The regulation which prescribes the organization and operation of labor unions in the federal sector.
- -  It defines the roles, responsibilities, and rights of labor unions and agency management in fulfilling their labor relations obligations.

## Legal Authority:  The Statute

**Legal Authority:  The Statute**

**5 U.S.C. Chapter 71 (The Statute)**
**“****To prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government.”**

## Legal Authority:  The Statute

**Legal Authority:  The Statute**

- In plain English...
- -  It creates a “formal” relationship between management and employees and provides a framework for interaction.
- -  It gives employees a “unified” voice in addressing concerns in the workplace.
- -  It establishes a specific point(s) of contact for managers to communicate and deal with employees on issues in the workplace.

## Legal Authority:  The Statute

**Legal Authority:  The Statute**

- Pertinent Sections of the Statute:
**7102  **Employees’ Rights
**7103  **Definitions
**7104  **Federal Labor Relations Authority
**7106  **Management Rights
**7113  **National Consultation Rights
**7114  **Representation Rights and Duties
**7116  **Unfair Labor Practices
**7117  **Duty to Bargain in Good Faith

## Legal Authority:  The Statute

**Legal Authority:  The Statute**

**Employee Rights (Section 7102)**
- “Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal . . .”
-   To act as a representative of a labor organization.
-   To engage in collective bargaining with respect to conditions of employment through representatives chosen by employees.

## Legal Authority:  The Statute

**Legal Authority:  The Statute**

**Exclusive Representative (Section 7114) **
- The union is the exclusive representative for **ALL** employees within the bargaining unit (the specific group of employees it represents).       As such, it has the right:
-   To act for and negotiate collective bargaining agreements covering _all_ employees in the bargaining unit.
-   To represent the interests of all bargaining unit  employees without regard to union membership.
-   To be represented at formal discussions and examinations of bargaining unit employees in connection with an investigation.

## Legal Authority:  The Statute

**Legal Authority:  The Statute**

**Management Rights (Section 7106(a)) **
- Management has the right to:
- To determine the mission, budget, organization, number of employees, and internal security practices of the agency.
- In accordance with applicable law:
- 	(A)  To hire, assign, direct, layoff, retain, or suspend, reduce in grade or pay, or take other disciplinary action against employees.

## Legal Authority:  The Statute

**Legal Authority:  The Statute**

**Management Rights (Section 7106(a)) **
- (2)	(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)  To make selections from appropriate sources;
- 	(D)  To take necessary actions during emergencies.

## Legal Authority:  The Statute

**Legal Authority:  The Statute**

**The Obligation to Bargain (Section 7106(b)) **
- (1)*** At the election of the agency***, the agency and the union may bargain over:
- Numbers, types, and grades assigned to entities.
- Methods and means of performing work.

## Legal Authority:  The Statute

**Legal Authority:  The Statute**

**The Obligation to Bargain (Section 7106(b))**
- However, the agency ***is obligated*** to bargain over:
- Procedures management officials observe in exercising their authority.
- Appropriate arrangements for employees adversely affected by the exercise of management authority (e.g., if a parking lot is closed and employee parking is relocated, the parties may negotiate over transit to/from new parking, security issues, etc.).

## Legal Authority:  Collective Bargaining Agreement

**Legal Authority:  ****Collective Bargaining Agreement**

- A collective bargaining agreement (CBA) is an agreement between management and a labor union outlining the policies and procedures under which they will operate.  Typical areas include:
- Awards 		Management Rights
- Discipline		Merit Assignment
- Employee Rights	Negotiations
- EEO			Performance
- Grievances		Safety
- Leave 		Training

## Legal Authority:  Memorandum of Understanding 

**Legal Authority:  ****Memorandum of Understanding **

- In the absence of, or as an addenda to, a collective bargaining agreement, there are other written agreements which define the polices and procedures under which management and employees will operate.  These are referred to as Memorandum of Understanding (MOU).  They carry the same weight and authority as a contract provision because they are negotiated and agreed to by the parties.

## Legal Authority:  Past Practice 

**Legal Authority:  ****Past Practice **

- A past practice is a condition or circumstance in a work environment that exists *with the knowledge of management over an extended period of time*.
- Although there is no written policy governing the specific condition or circumstance, its prolonged existence gives it the same weight as a written policy.
- As a result, when management wishes to alter such a condition, it has to provide the union notice and an opportunity to bargain over the proposed change.

## Legal Authority:  In the Absence of . . .  

**Legal Authority:  ****In the Absence of . . .  **

- As previously mentioned, the Statute governs all federal sector labor relations.
- However, ***even in the absence of formal agreements or past practices***, you are still required to follow the protocol identified in the Statute regarding proposed changes in conditions of employment and disputes in the workplace.

## Day to Day Operations:  Conditions of Employment

**Day to Day Operations:  ****Conditions of Employment**

- Managers are required to deal with the union regarding any and all changes in Conditions of Employment.
**Section 7103(a)(14) of the Statute defines as:**
**Conditions of Employment - Personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions. **
**  **The circumstances surrounding employees’ performance of work.  What, Where, When, and How work gets done and by Who.

## Day to Day Operations:  Conditions of Employment

**Day to Day Operations:  ****Conditions of Employment**

**Exceptions** to conditions of employment:
- Policies, practices, and matters
-   Relating to political activities prohibited under 5 U.S.C. Chapter 73, subchapter III.
-   Relating to the classification of any position.
-   To the extent such matters are specifically provided for by Federal statute.

## Day to Day Operations:  Conditions of Employment

**Day to Day Operations:  ****Conditions of Employment**

- When management develops a plan to exercise one of its rights or to change existing conditions of employment, it must first:
-   Provide the union with advance written notice of intent to change.
-   The notice must include the opportunity for the union to comment on the change and/or request to bargain over the implementation of the change.

## Day to Day Operations:  Grievances

**Day to Day Operations:  ****Grievances**

**Section 7103(a)(9) of the Statute**
- Any complaint
- By a bargaining unit employee concerning any matter related to the employment of the employee.
- By a labor organization concerning any matter relating to the employment of any employee.
- By an employee, labor organization, or agency concerning
- The effect or interpretation, or a claim of breach, of a collective bargaining agreement; or
- Any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.

## Day to Day Operations:  Information Requests

**Day to Day Operations:  ****Information Requests**

**Section 7114(b)(4) of the Statute**
- The Agency, upon request, must provide to the union any information:
- Which is normally maintained by the Agency in the regular course of business;
- Which is reasonably available and necessary for participation in the bargaining process; and
- Which does not constitute guidance, advice, counsel, or training provided for managers related to collective bargaining.

## Day to Day Operations:  Formal Discussions

**Day to Day Operations:  ****Formal Discussions**

**Section 7114(a)(2)(A) of the Statute**
- A meeting between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.
-   The union must be given prior notice and the opportunity to attend.
-   Notice is mandatory, attendance is _not_.
-   Union may participate, but cannot be disruptive.
-   Some factors that lend to formality: an agenda, the participants, and mandatory attendance.
-   To avoid allegations of failing to notify the union, please consider the purpose and possible discussions in meetings and decide whether formally inviting the union is appropriate and required.

## Day to Day Operations:  Meeting with Employees

**Day to Day Operations:  ****Meeting with Employees**

- The union is the exclusive conduit for communicating proposed changes in the workplace to employees.
- Operational/Informational discussions are appropriate.
- However, a meeting where employees’ input and/or suggestions regarding conditions of employment are  solicited and discussed requires giving the union _prior_ notice of the meeting and the opportunity to attend.** **
- Such a meeting is considered a formal discussion.

## Day to Day Operations:  Other Meetings

**Day to Day Operations:  ****Other Meetings**

**Performance Meetings**
- Generally, managers are entitled to discuss matters unique to a specific employee (e.g., performance issues).
- The union does not have an entitlement to attend.  Politely ask them to leave.
- However, if a situation is acrimonious between a manager and an employee it may be to your advantage to invite the union or another manager to attend.  It is a judgment call.

## Day to Day Operations:  Other Meetings

**Day to Day Operations:  ****Other Meetings**

**Weingarten Rights (Section 7114(a)(2)(B)) **
- The right of an employee to have a union representative present at any examination of the employee by a representative of the Agency in connection with an investigation if –
- The employee reasonably believes that the examination may result in disciplinary action against the employee; _and_
- The employee requests representation.

## Day to Day Operations:  Other Meetings

**Day to Day Operations:  ****Other Meetings**

- Once an employee invokes their Weingarten rights, management _must_:
- Stop the meeting, or
- Allow the employee to retrieve their representative and reconvene or reschedule the meeting.
- Reasonable belief is a judgment call.
- You can try to reassure the employee that no discipline will result, but unless they clearly waive their rights – stop the meeting!

## Day to Day Operations:  Unfair Labor Practice

**Day to Day Operations:  ****Unfair Labor Practice**

**Section 7116 of the Statute**
- An unfair labor practice is defined as a violation of any provision of the Statute by either management or the union.

## Engaging the Union: Communication

**Engaging the Union: Communication**

- The nature of the relationship between management and the union determines the best method(s) to communicate and discuss changes in conditions of employment and resolve disagreements within an organization.
- In a cordial and cooperative relationship, the parties may informally discuss and resolve issues related to changes in the organization.
- In a combative relationship, it is imperative that all communications be formal and strictly adherent to statutory and/or contractual guidelines.

## Engaging the Union: Communication

**Engaging the Union: Communication**

- Prior to initiating communications with or responding to correspondence from the union, it is **IMPERATIVE** that you consult and work closely with your labor relations advisors and the Office of General Counsel, as appropriate, to ensure that you are properly fulfilling your labor relations obligations.
- Throughout the process, your advisors are available to provide you with guidance and hands-on assistance in fulfilling your responsibilities and in dealing with difficult labor-management relationships.

## Engaging the Union:  Recognizing the Issue

**Engaging the Union:  ****Recognizing the Issue**

***  ******Does the proposed action affect WHO, WHAT, WHERE, WHEN, WHY, or HOW employees do their job?***

-   Is it an exercise of management’s rights under the Statute?

-   Is the matter addressed in a previous collective bargaining agreement (contract), Memorandum of Understanding (MOU), or by existing practice (past practice) in the workplace?

## Engaging the Union:  Recognizing the Issue

**Engaging the Union:  ****Recognizing the Issue**

***WHO**** ****is affected by the change?***
- If the change affects bargaining unit employees, you must notify the union.

***WHAT**** ****is the nature of the change?***
-   Is it practical/logistical (an office move) or operational (changes in technology or workload)?
-   Is it deminimis (so small that it affects “nothing”)?

***WHERE*** does the change take place?
- Does it affect more than one organization?

## Engaging the Union:  Recognizing the Issue

**Engaging the Union:  ****Recognizing the Issue**

***WHEN does the change take place?***
- Is it gradual? Immediate?
- Are there exigent circumstances?
- The desired implementation schedule will determine the appropriate strategy for addressing and resolving issues.

***WHY is the change necessary?***
- The rationale for making changes in working conditions should be:
- “In the interests of operational efficiency . . .”

## Engaging the Union:  Recognizing the Issue

**Engaging the Union:  ****Recognizing the Issue**

***HOW is the change being made?***
- What procedures does management propose for making the change?
***Your ability to recognize the nuances related to proposed changes in conditions of employment is critical to the development of appropriate strategies to address and resolve labor relations issues. ***

## Engaging the Union:  Union Representatives

**Engaging the Union:  ****Union Representatives**

- Union representatives are designated by the union membership to represent the interests of the employees in the bargaining unit.
- You should have **NO** involvement in or express an opinion about who the union selects to represent its interests.
- If you have a problem with a union representative, contact your labor relations advisor for guidance.

## Engaging the Union:  Your Role in the Process

**Engaging the Union:  ****Your Role in the Process**

- As a member of management, you are responsible for implementing and enforcing policies and procedures in the workplace.  As such, your relationship with the labor union within your organization must facilitate this objective.
- You must always remain professional even if your audience behaves in a contrary manner.  It is also important that you ***avoid at all costs ***injecting personal bias into your decisions and your dealings with the union.
**WITHOUT YOU**, the labor relations process cannot and will not work!

## Engaging the Union:  Negotiations

**Engaging the Union:  ****Negotiations**

- When management develops a plan to exercise one of its rights or to change existing conditions of employment, it must first:
-   Provide the union with advance written notice of intent to change.
-   The notice must include the opportunity for the union to comment on the change and/or bargain, as appropriate, over the implementation of the change.

## Engaging the Union:  Negotiations

**Engaging the Union:  ****Negotiations**

- If the union elects to bargain over the change:
- 1.  The union bargains on behalf of _all_ of the affected employees in the bargaining unit.
- The nature of the change determines the complexity of the process.
- Bargaining methods may vary (**traditional** or **collaborative**).
- If bargaining is requested, the change _cannot_ be implemented until bargaining is completed.
- If bargaining is not requested, the change may be implemented immediately.

## Engaging the Union:  Methods of Negotiation

**Engaging the Union:  ****Methods of Negotiation**

**Traditional (Formal) Approach**
- Management provides the union notice of intent to change.
- Union requests opportunity to bargain.
- Written Proposals/Counterproposals are exchanged.
- Agreement is reached.
- Change is implemented.

## Engaging the Union:  Methods of Negotiation

**Engaging the Union:  ****Methods of Negotiation**

**Collaborative (Interest-based) Approach**
- Management develops plan.
- Conducts pre-decisional discussions with union and designated employees to address and resolve issues and concerns.
- Presents official written proposal to union.
- Union responds (with concurrence).
- Change is implemented.

## Engaging the Union:  The Reality of the Process

**Engaging the Union:  ****The Reality of the Process**

- Be advised, in some instances, the union’s sole purpose is to resist change.  In light of this, it important to choose the approach and strategy that affords the best opportunity for success.
- For example, the union proposes something you would declare “non-negotiable.”  Instead of drawing a “hard-line,” it may be to your benefit to explore other alternatives to avoid protracted delays in the negotiation process (resulting from a third party appeal).

## Engaging the Union:  The Reality of the Process

**Engaging the Union:  ****The Reality of the Process**

- Remember, your interest is in reaching an agreement.  Flexibility does not necessarily equate to weakness.  It does **NOT **mean that management’s objectives are compromised or sacrificed, just that you are receptive to different methods of accomplishing them.
- The cost of long-term delays is often more prohibitive than the perceived “weakness” of considering alternatives and/or modifications to the changes in policies and procedures originally communicated to the union.

## Engaging the Union:  Duty to Bargain in Good Faith

**Engaging the Union:  ****Duty to Bargain in Good Faith**

**Section 7114(b) of the Statute states that:**
- The agency and the union have an obligation to negotiate in good faith.  In lay terms, this means they must play “fair.”  Both parties must:
-   Have a sincere resolve to reach agreement;
-   Have representatives who are empowered to make decisions participate in the negotiations;
-   Be reasonable in scheduling negotiations.
-   In addition, the agency, upon request, must provide to the union any information that is reasonably available and necessary for participation in the bargaining process.

## Engaging the Union:  Senior Management Concurrence

**Engaging the Union:  ****Senior Management Concurrence**

- Although you are the “voices of NOAA,” the messages you communicate must be  sanctioned from above.
- Regardless of your individual proficiency, it is impossible to fulfill your labor relations obligations without the concurrence, endorsement, and support of your organization’s leadership.
- It is your responsibility to establish and maintain a consistent dialogue with senior management within your organization.

## Engaging the Union:  Senior Management Concurrence

**Engaging the Union:  ****Senior Management Concurrence**

**The rationale for maintaining dialogue:**
- It educates senior management on various labor relations issues and creates an organizational awareness of the tasks in which you are engaged.
- It allows you to identify and discuss the posture of the organization regarding the various issues.

## Engaging the Union:  Senior Management Concurrence

**Engaging the Union:  ****Senior Management Concurrence**

**The rationale for maintaining dialogue:**
- It provides a realistic perspective on the  commitment of resources and time required to fulfill the organization’s labor relations obligations.
- It cultivates the organization’s investment in the success of your efforts.

## Engaging the Union:  Collaboration

**Engaging the Union:  ****Collaboration**

- The success of our labor relations efforts depends on the cooperation and support of various entities throughout NOAA.  Each of these entities – Line and Corporate Offices, the Workforce Management Office, and the Office of General Counsel – are equally vital to these efforts.
- Like a puzzle, we all have a place.  Outside of that place, we are ill-fitted.  However, in our proper place, we work ***together*** to promote the interests of NOAA.