# Presentation: 100154

## Working Under a Labor Agreement 

- Douglas Katcher
- Department of Veterans Affairs

## Basic Concepts

- Federal Service Labor-Management Relations Statute
- 5 USC 7105 - 7135

## Basic Concepts

- Union – A labor organization that has been granted the exclusive right to represent employees and deal with an agency concerning grievances and conditions of employment.

## Basic Concepts

- Bargaining unit – A group of employees approved by the FLRA as appropriate for representation by a union for purposes of collective bargaining.

## Employees Excluded from Bargaining Units

- Supervisors and management officials
- Employees engaged in personnel work in other than a purely clerical capacity
- Employees working in a confidential capacity for officials who formulate or effectuate general labor relations policy

## Employees Excluded from Bargaining Units

- Employees engaged in intelligence, counterintelligence, investigative or security work affecting national security
- Employees investigating or auditing individuals involved in internal security
- Professional employees in the same unit as non-professionals unless a majority of professionals vote for inclusion

## Roles of the Parties

**Arbitrator** – Impartial third party to whom the parties to a labor agreement refer their disputes for a decision.

## Roles of the Parties

**Federal Labor Relations Authority** (FLRA) – Independent federal agency that administers the federal labor relations statute.
- Three members appointed by the president

## FLRA Functions

- Investigate and resolve unfair labor practice charges
- Resolve negotiability disputes
- Exceptions to arbitration awards
- Determine appropriateness of bargaining units

## Role of the Parties

**Federal Service Impasses Panel** (FSIP) – Entity within FLRA that resolves collective bargaining impasses.
- Federal alternative to striking
- Seven members appointed by the president

## Dispute Resolute Methods

- Fact-finding
- Mediation-arbitration
- Formal hearing
- Written submissions
- Final-offer interest arbitration

## Roles of the Parties

**Federal Mediation & Conciliation Service** (FMCS) – Independent federal agency that provides mediators to assist parties in negotiations.
- Maintains arbitrator rosters

## Role of Supervisors

- Primary management responsibility for interpreting, applying and enforcing the contract
- Contract is only as good as the supervisors who apply it

## Intent of the Contract

- Words of the contract
- Past practices
- Past grievance and arbitration decisions
- Bargaining history

## What is a Grievance

- Any complaint by an agency, labor organization or employee about any matter relating to the employment of the employee or interpretation or breach of a labor agreement or the violation, misinterpretation or misapplication of any law rule or regulation affecting working conditions.

## Grievances

- Every federal sector labor agreement must contain a negotiated grievance procedure that ends in binding arbitration.

## Grievance Procedure Exclusions

- Any claimed violation relating to prohibited political activities
- Retirement, life insurance or health insurance
- Suspension or removal in the interest of national security

## Grievance Procedure Exclusions

- Any examination, certification or appointment
- Classification of any position that does not result in the reduction in grade or pay of an employee
- Other matters to which the parties agree in negotiations

## Grievance Resolution

- Lowest possible level
- Minimum time
- Minimum resources
- Minimum disruption

## Factors Governing Grievances

- Decisions do not establish precedence
- Grievant, union and/or management control decision to proceed
- Loser pays or costs shared
- Time to file set by contract
- No injunction

## Arbitration

- Final step of all federal sector grievance procedures
- Anyone may file a grievance
- Only management and union may invoke arbitration

## Types of Arbitration

- Grievance – Interpretation and application of collective bargaining agreement
- Interest – Resolution of bargaining impasses

## Unfair Labor Practice (ULP)

- A violation of a right protected by the Federal Service Labor-Management Relations Statute.

## Management ULPs7116(a)

- Interfere with, restrain, or coerce employees in the exercise of rights under the statute
- Encourage or discourage membership in a labor organization by discrimination in conditions of employment such as hiring or promotion
- Sponsor or control or otherwise assist a labor organization

## Management ULPs

- Discipline or discriminate against an employee for filing a complaint under the statute
- Refuse to consult or negotiate in good faith
- Fail or refuse to cooperate in impasse procedures or decisions

## Management ULPs

- Enforce any rule or regulation which is in conflict with a collective bargaining agreement if the agreement was in effect before the rule or regulation was prescribed
- Otherwise fail or refuse to comply with any provision of the statute

## Common Management ULPs

- Failure to notify union prior to changes or otherwise bargain in good faith
- Failure to allow union representative at a formal discussion
- Denial of union representation during investigative meetings

## Common Management ULPs

- Failure to furnish information under 5 U.S.C. 7114(b)(4)
- Discipline or other personnel actions based on union activity
- Different treatment base on union activity
- Retaliatory actions/threats based on union activity

## Filing ULPs

- Within 6 months of occurrence of the conduct or event
- Anyone may file

## ULP Remedies

- Status quo ante
- Back pay
- Restored leave
- Order to Bargain
- Cease and desist order
- Posting
- Attorney fees

## Factors Governing ULPs 

- Decisions establish precedence
- FLRA controls ability to proceed
- No cost to file
- Days to file set by statute
- Injunction

## Settlement of ULPs

- Parties may settle anytime during the process
- ADR encouraged with or without FLRA assistance (Collaboration and Alternative Dispute Resolution Program)

## Past Practices

- Existing practices sanctioned by use and acceptance that are not specifically included in the collective bargaining agreement

## Factors Indicating Past Practice

- Condition of employment
- Legal
- Followed by labor and management or by one party and not challenged by the other
- Practice must be consistently exercised
- Practice existed for substantial time and occurred repeatedly

## Changing Past Practices

- Must complete bargaining unless practice is inconsistent with law or practice is not known at national level in a nationwide unit

## Official Time

- Duty time that is granted to a union official to perform representative functions on duty time without loss of pay or charge to leave.
- 5 USC 7131

## Sources of Official Time

- Collective bargaining
- FLRA
- Representation matters
- Other purposes

## Official Time for Collective Bargaining

- SHALL be authorized to negotiate contracts
- Numbers equal to those representing management

## Official Time for FLRA Proceedings

- FLRA determines who is entitled to time
- FLRA determines how much time

## Official Time for Representation

- SHALL be granted
- Parties negotiate amount

## Official Time for Other Purposes

- Must be related to labor-management relations activities
-     EEOC
-     MSPB
-     OWCP
- Unemployment compensation hearing not appropriate