Slide 1

ADVANCED

NEGOTIABILITY:

Agency Discretion,

Laws & Regulations,

& Management Rights Federal Labor 

Relations 

Authority

DAY 2
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You have learned ...

Management Discretion

Rules & Regulations

Federal Law

Management Rights

2
Slide 3

Day 2 Agenda

(b)(1) - Permissive Subjects

(b)(2) - Procedures

(b)(3) - Appropriate

Final Project

Feedback

3

Arrangements
Slide 4

EXCEPTIONS TO

MANAGEMENT RIGHTS

5 U.S.C. § 7106(b)

4
Slide 5

SAMPLE FOOTER TEXT

§ 7106(a) Rights

are “Subject to” 

§ 7106(b), Including:

§ 7106(b)(1)

§ 7106(b)(2)

§ 7106(b)(3)

5
Slide 6

SAMPLE FOOTER TEXT

§ 7106(b)(1)

Permissive Subjects

6

• § 7106(b) Nothing in this section shall preclude any agency and any labor organization from 

negotiating–

(1) at the election of the agency, on the numbers, types, and grades of employees or 

positions assigned to any organizational subdivision, work project, or tour of duty, or 

on the technology, methods, and means of performing work.
Slide 7

SAMPLE FOOTER TEXT

§ 7106(b)(1):

The Chameleon

• Part Management Right, 

Part Exception

• Trumps § 7106(a) Rights

• If also concerns (b)(2) or (3), 

then mandatory

7

• 57 FLRA 424, 426 (“In determining whether a proposal is within the scope of [§ ]7106(b)(1), 

the Authority assesses whether the proposal concerns: (1) the numbers, types, and grades; 

(2) of employees or positions; (3) assigned to any organizational subdivision, work project, or 

tour of duty.”)

• Section 7106(b)(2) and (3) are exceptions to § 7106(b)(1) rights. Where proposals fall within 

(b)(2) or (3), an agency must bargain them, even if they affect (b)(1) rights. E.g., 62 FLRA 341, 

343 (“[W]here an agency proposes to change the conditions of employment of unit employees 

pursuant to a management right under § 7106(a) or § 7106(b)(1), it is obligated to bargain 

over procedures, under § 7106(b)(2), and appropriate arrangements, under § 7106(b)(3), that 

address the particular change proposed.”)

• 62 FLRA 90, 92 (once agency elected to bargain over § 7106(b)(1) matter, bargaining 

permitted notwithstanding effect on exercise of § 7106(a) rights); 55 FLRA 848, 852 (“Matters 

encompassed by the terms of [§ ]7106(b) constitute exceptions to the rights set forth in 

[§ ]7106(a). As such, bargaining over matters encompassed by [§ ]7106(b)(1) is permitted 

notwithstanding that such matters also affect rights under [§ ]7106(a).” (citation omitted))

• Agency head cannot disapprove agreements unless otherwise unlawful. E.g., 61 FLRA 336, 

338, 339 (after parties reach agreement on § 7106(b)(1) matter, provision may not be 

disapproved during agency-head review under § 7114(c) unless otherwise unlawful)

• Enforceable in arbitration. 60 FLRA 91, 92 (“As Section 9 is a permissive subject of 

bargaining, the agency was not obligated to bargain on it. However, once it agreed to that 

provision, it became fully enforceable through the negotiated grievance procedure 

notwithstanding its possible effect on management’s right to assign work.”)
Slide 8

Numbers

• Increase, 

decrease, or 

maintain

• Different from 

(a)(1)

Types

• Distinguishable 

classes, kinds, 

groups, or categories 

that are relevant to 

staffing patterns

Grades

• Example:

General 

Schedule levels

8

(b)(1) - Numbers, Types, & 

Grades ...

• Numbers = increase, decrease, or maintain employees or positions in an organizational 

subdivision, work project, or tour of duty. 57 FLRA 424, 426 (“The phrase ‘numbers, types, 

and grades’ applies to the establishment of agency staffing patterns, or the allocation of staff, 

for the purpose of an agency’s organization and the accomplishment of its work. The Authority 

has held that a proposal regarding the establishment of staffing patterns or allocation of staff 

concerns the ‘numbers’ of employees within the meaning of § 7106(b)(1) ‘regardless of 

whether the proposal would increase, decrease, or maintain the number that the agency 

proposes to assign or has assigned.’”); see also 73 FLRA 233, 235-36 (“Proposal 1 addresses

where certain work would be performed but does not address how many employees or 

positions would perform it. In other words, it would not increase, decrease, or maintain the 

number of employees or positions performing that work.”)

• Types = distinguishable classes, kinds, groups, or categories of employees or positions that are 

relevant to the establishment of staffing patterns. 52 FLRA 1024, 1032, 1034 (Dental 

Hygienists); 55 FLRA 549, 552 (Licensed Practical Nurses); see also 53 FLRA 858, 870 

(decision to hire examiners under term appointments involved the “type” of employees)

• Grades = for example, GS levels. 52 FLRA 1024, 1032 n.11 (“The proposal is concerned with 

the number of employees to whom dental assistant duties are assigned – that is, the union is 

seeking to negotiate over the number of employees or positions to be assigned these duties.

Additionally, because the positions of dental assistant, dental hygienist[,] and dental laboratory 

technician that are involved in this proposal have specific grades attached, this proposal 

concerns the grades of employees or positions to be assigned dental assistant duties.”)
Slide 9

(b)(1) - ... Assigned to Any 

Organizational Subdivision, ...

• Involving centralization or decentralization

• Staffing of subdivisions (but not establishing subdivisions)

9

• Centralization: 54 FLRA 1302, 1306 (“Proposal 1 concerns which sections of the agency will 

perform a specific agency function, and where employees performing that function will be 

assigned. The proposal thus concerns assignment to an organizational subdivision.”)

• Staffing: 55 FLRA 925, 928 (“As explained above, Proposals 1, 2[,] and 3 require the agency

to maintain a certain number and type of employee in the 109th Tactical Airlift Wing. In 

addition, the agency does not dispute, and there is no basis in the record for rejecting, the 

union’s contention that the 109th Airlift Wing constitutes an ‘organizational subdivision’ within 

the meaning of [§ ]7106(b)(1).”); 52 FLRA 794, 802 (“Although the proposals package the 

organizational subdivision with its prescribed staffing, the establishment of an organizational 

subdivision nevertheless entails an agency action that is distinct from the assignment of 

numbers, types[,] and grades of employees or positions to that subdivision. That is, the 

establishment of a new organizational entity does not equate to the staffing of that entity.”)

• Note: Although a proposal establishing an organizational subdivision would not affect the 

§ 7106(b)(1) right of assignment to any organizational subdivision, such a proposal would 

affect the § 7106(a)(1) right to determine the agency’s organization. 52 FLRA 813, 819 (“By 

establishing organizational subdivisions, Proposal 1 prescribes how the agency will divide itself 

into organizational units and, concomitantly, how the agency will be structured to accomplish 

its mission and functions. Therefore, the proposal impermissibly affects the exercise of 

management’s right to determine its organization under [§ ]7106(a)(1).”)
Slide 10

(b)(1) - ... Work Project, or 

Tour of Duty

Work Project

Particular job or task

Tour of Duty

Hours of a workday (daily tour) 

& days of a workweek (weekly 

tour) that form a regularly 

scheduled administrative 

workweek

10

• Work project: 55 FLRA 848, 853-54 (“In this case, the foremen’s duty to supervise inmates 

constitutes a work project under Authority precedent. See 37 FLRA 350, 355 (Authority 

construed the term ‘work project’ in [§ ]7106(b)(1) to mean ‘particular job’ or ‘task’). The first 

two parts of the union’s proposal require the respondent to lay-in the groups of inmates 

assigned to be supervised by a foreman whose group consists of more than four inmates, 

whenever that foreman is on leave. The third part of the lay-in proposal states that if 

employees from other departments take over for an absent foreman, the agency would not 

have to lay-in the absent foreman’s inmates. Read as a whole, the proposal requires a 

sufficient number of foremen or substitutes for a work project and, in effect, limits the 

respondent’s ability to allocate certain numbers of staff to supervise particular inmates.”)

• Tour of duty: 57 FLRA 424, 426 (“The status quo proposals require the agency to schedule 

employees to a particular tour of duty: a workday that does not include a 30-minute unpaid 

lunch period. The Authority has found provisions establishing tours of duty to be bargainable 

at an agency’s election under § 7106(b)(1) of the Statute.”)
Slide 11A

(b)(1) - ... Technology of 

Performing Work ...

Technology

The technical method 

that will be used in 

accomplishing or 

furthering the 

performance of 

the agency’s work

Effect Questions 1 and 2

1. Is there a technological relationship 

between the matter that the proposal 

or provision addresses and 

accomplishing the agency’s work?

2. Does the proposal or provision 

interfere with the purpose for which the 

technology was adopted?

11

• Technology examples: 58 FLRA 273, 273, 275 (email pilot program to respond to public 

inquiries submitted on the internet, as well as a determination of which offices would conduct 

the pilot program); 47 FLRA 272, 279 (phones with rollover capability constitute a technology 

for providing phone backup, and a decision to maintain fewer phones and not install additional 

phones to accept rollover calls constitutes an exercise the right to determine the technology of 

performing work); 46 FLRA 930, 959 (the number, types, and locations of telephones provided 

to employees for official agency business); 22 FLRA 698, 699 (same); 32 FLRA 944, 955-58

(two-way radios for use in police work); 30 FLRA 672, 674 (the particular type of computer 

system that will be used to obtain and verify the data upon which pension payments are 

made); 22 FLRA 502, 506-07 (type of employee-worn respirator); 13 FLRA 422, 423 

(calculators for performing agency-assigned duties); 6 FLRA 477, 479 (prohibition on eating in 

areas where records are stored or used, as part of a group of protective and preventive 

measures that the agency uses to maintain an environment suitable to the preservation of 

records); 4 FLRA 150, 154 (secure storage area for the official weapons that employees are 

authorized to wear in the performance of their duties)

• But see 40 FLRA 244, 245 (Authority’s adoption of ALJ’s analysis of a question concerning the 

technology of performing work), 257-58 (ALJ’s finding that agency’s decision to discontinue a 

past practice of allowing employees to use agency phones for “personal reasons” – unrelated 

to conducting agency business – did not relate to the technology of performing work)

• Two-part test for determining effects on the technology of performing work: (1) the 

technological relationship of the matter addressed by the proposal or provision to 

accomplishing or furthering the performance of the agency’s work; and (2) how the proposal or 

provision would interfere with the purpose for which the technology was adopted. E.g., 

58 FLRA 273, 275; 47 FLRA 272, 278.

• Failure to Satisfy Effect Question 1: 41 FLRA 1158, 1175 (proposal: If the urine sample [for 

drug testing] is to be provided on-site, where the temperature of each sample will be taken, 
the agency agrees to use some form of disposable thermometers, such that each sample will 

be tested using a new bulb, to guard against any possibility of tainted samples. [Only the 

underlined portion was disputed.]); id. at 1178 (“[T]he agency has failed to establish that there 

is a technological relationship between the type of thermometer employed and accomplishing 

or furthering the performance of the agency’s work. Although the agency argues that the 

process of measuring temperatures is an integral part of the agency’s administration of its 

drug testing program, we find that the agency has failed to establish that the method used to 

measure the temperature of urine specimens is connected with the manner in which the work 

of the agency is performed.” (citation omitted)); 39 FLRA 504, 505 (proposal: The Employer 

agrees to provide a private office for the Medical Staff Quality Assurance employee.); id.

at 512 (finding agency failed to establish a technological relationship between the current 

workspace location of the Medical Staff Quality Assurance employee and the performance of 

the agency’s work)

• Failure to Satisfy Effect Question 2: 35 FLRA 398, 398-99 (IRS adopted the Automated 

Examination System (AES) to streamline and automate the examination process, and later 

adopted AES-compatible workstations that the agency projected would increase productivity by 

15 to 25 percent); id. at 398 (proposal: Bargaining unit employees affected by this move will 

have at least 64 feet of contiguous work space.); id. at 404 (“[A] workstation that is specifically 

designed to provide ‘containment within reach’ and adjustable features to facilitate employee 

use of computers and other equipment associated with the AES bears a technological 

relationship to accomplishing or furthering the performance of the agency’s work. 

Consequently, we find that the agency’s decision to adopt workstations that are compatible 

with the AES constitutes a determination as to the technology of performing work.”); id. at 405 

(“There is no showing here, however, that there is a technological relationship between the 

conservation of work space and the performance of the work of the agency.”); id. at 406 

(“Because there is no showing that the union’s proposal would prevent the agency from 

establishing a workstation that is AES compatible, we reject the agency’s argument that the 

proposal interferes with the purpose for which the ‘technology’ of AES compatible workstations 

was adopted. Because there is no showing that the overall size of the AES compatible 

workstation is encompassed within management’s right to determine the technology of 

performing the agency’s work, we reject the agency’s argument that by limiting the amount of 

space the agency could save with the AES compatible workstations, the proposal interferes 

with the agency’s right to determine the technology of performing its work.)
Slide 11B

Methods - “How?”

Ways in which an 

agency performs its 

work

Means - “With what?”

Any instrumentality –

including an agent, tool, 

device, measure, plan, or 

policy – that an agency 

uses to accomplish, or 

further the performance 

of, its work

Relative

Importance:

Irrelevant to 

effect on 

methods-andmeans right

11

(b)(1) - Methods and Means 

of Performing Work

• 66 FLRA 499, 502 (proposal concerned the methods and means of performing work when it 

concerned whether civilian employees (air reserve technicians) could wear an alternative 

uniform rather than a required military uniform)

• 56 FLRA 69, 91 (proposal requiring the agency to provide support to patent examiners 

performing gene sequence searching on an automated system by designating personnel to 

provide assistance to examiners or providing equivalent assistance: The Office shall continue 

to provide library support or equivalent for automated gene sequence searching. “Proposal 59 

would require the agency to provide particular support (library support or equivalent) for 

examiners performing particular work (searching gene sequences). We conclude . . . that, by 

requiring the agency to facilitate examiners’ performance of work through particular support 

mechanisms, the proposal affects the agency’s right to determine the methods and means of 

performing work.”); 56 FLRA at 93 (proposal: The paper files shall continue to be maintained, 

as long as the paper files exist. “[T]he proposal would require the agency to ‘maintain’ the 

paper files for as long as the agency keeps the paper files. . . . [W]e construe the word 

‘maintain’ as requiring the agency to keep the files in an ‘orderly and complete’ fashion. The 

proposal does not affect the agency’s discretion to determine to no longer keep paper files; 

however, for as long as the agency determines to keep them, the agency would be required to 

maintain them in an orderly and complete fashion. . . . Proposal 63 would require the agency 

to maintain paper files in a particular way. Consistent with Authority precedent, the proposal 

affects the agency’s right to determine the methods and means of performing work.”)

• Relative importance irrelevant: 66 FLRA 112, 115 (“In this regard, the method or means need 

not be indispensable to the accomplishment of the agency’s mission; rather, it need only be a 

matter that is used to attain or make more likely the attainment of a desired end, or used by 

the agency to accomplish or further the performance of its work.”)
Slide 12

Effect Question 1 Effect Question 2

Does the proposal/provision 

directly interfere with the 

mission-related purpose for 

which the methods or means 

were adopted?

12

Is there a direct or integral 

relationship between the 

agency’s chosen methods or 

means and the 

accomplishment of the 

agency’s mission?

(b)(1) - Methods and Means 

of Performing Work

• 69 FLRA 626, 631 (“The agency asserts that its procedure – requiring a specialist to ask an 

applicant who refuses to provide his or her Social Security number to read certain legal 

information on the back of the passport application – furthers the agency’s goal of identifying 

fraud. We find that the agency identifies a method or means that the proposal ‘concerns’ –

having the applicant read the back of the passport application.”)

• 66 FLRA 639, 646 (rejecting a union’s § 7016(b)(1) claim as a bare assertion where it did not 

make any of the required arguments under the test)

• 61 FLRA 48, 52 (“[T]he Authority has consistently held that an agency’s determination that 

employees must wear a uniform while performing work constitutes a decision as to the 

methods and means of performing work under § 7106(b)(1) of the Statute. In the 

circumstances of this case, the agency has made that determination by requiring that the 

employees covered by this proposal will wear uniforms in performing the agency’s work. In 

particular, the agency has prescribed the elements of the uniform for use in a Class 3 work 

environment. However, the agency makes no attempt to justify or explain, in terms of the 

definitions of the terms ‘methods’ and ‘means’ as used in § 7106(b)(1), how the fact that the 

wearing of cargo shorts is permitted in some locations, and not in others, relates to how work 

is done and how shorts are used as a means of performing work. Thus, the agency has not 

demonstrated how the proposal concerns the methods and means of performing work under 

§ 7106(b)(1). . . . [P]roposals such as the instant proposal, that ‘are limited to attempting to 

assure that [employees’] uniforms are suitable for the conditions in which employees work’ do 

not involve the methods and means of performing work.”)

• 59 FLRA 447, 448-50 (“The agency contends that, under § 7106(b)(1) of the Statute, it has 

the right to decide whether to use partitions, or the size of any partitions chosen, in configuring 

its work space. The disputed proposals require the agency to use partitions to separate 

employee work stations. The proposals also require that those partitions be at least 5 feet (60 

inches) high. The agency asserts that the partitions that it currently uses to separate employee 
work stations – 44 inch-high partitions between cubicles that face each other, and 42 inchhigh partitions between side-by-side cubicles – facilitate its news broadcast operations. 

Specifically, the agency states that its news operations are fast-paced and rapidly changing. 

The agency maintains that lower partitions allow supervisors and editors to determine whether 

broadcast personnel who are scheduled to go on the air are at their work stations, permits 

editors to conduct quick conferences among personnel at a number of work stations all at 

once, and makes it possible for employees to talk directly to each other without having to leave 

their work stations. In sum, the agency explains, the lower partitions are more commensurate 

with the needs of its news broadcast operations because they make it possible to respond 

more quickly to the ever-changing flow of the news. The agency contends that the 5 foot 

partitions required by the proposals would impede the ability to supervise and communicate 

made possible by the lower partitions. The agency’s explanation of the function of the lower 

partitions in its broadcasting operations establishes that those partitions are a tool or device 

that is employed for particular purposes in those operations and that they concern the method 

by which the agency conducts its broadcasting operations. That is, the agency has shown that 

the proposals concern what it uses to perform its broadcasting work and how it goes about 

performing that work. Thus, by requiring the use of partitions and specifying the height of the 

partitions to be used, the proposals concern the methods and means whereby the agency 

accomplishes its operations. Further, the agency has shown that there is a direct and integral 

relationship between the use of the lower partitions and the accomplishment of its work, 

namely, those partitions facilitate the supervision of, and the rapid communication required by, 

its news broadcast operations. Finally, the agency has demonstrated that the higher partitions 

called for by the proposals would directly interfere with the mission-related purposes for which 

the lower partitions are employed. . . . [T]he agency has established that Proposals 2 and 3 

concern the methods and means of performing its work within the meaning of § 7106(b)(1) of 

the Statute.”)

• But see 64 FLRA 723, 725 (agency fails to establish a direct and integral relationship; proposal 

that would prevent the agency from seating employees according to their workgroups did not 

concern the methods and means of performing work)
Slide 13

SAMPLE FOOTER TEXT

Questions?

13
Slide 14

§ 7106(b)(1) 

Group Preview

Read exercise handout 

page 3 for the fact 

pattern for this exercise. 

We will be extending the 

earlier scenario from the 

§ 7106(a) Group Activity.

14

• Read exercise handout page 3.
Slide 15

Practice Preview - § 7106(b)(1)

• Proposal: If an irate claimant or potentially dangerous claimant requires 

interviewing, the employee and claimant will be escorted to the private 

interviewing room or to an alternative interviewing room or more 

controllable interview area, and they will not be left alone.

• Please read exercise handout page 4 for the Agency’s arguments about 

why the proposal affects the Agency’s § 7106(b)(1) rights.

• After the break, you will split into breakout rooms for ten minutes to 

discuss whether the Agency’s § 7106(b)(1) rights are affected in the 

ways that the Agency argues.

15

• Read exercise handout page 4.
Slide 16

BREAK

10 minutes (approx.)
Slide 17

§ 7106(b)(1) 

Group Activity

In your breakout rooms, 

discuss the Agency’s (b)(1) 

arguments. Read exercise 

handout page 5. Pick 

someone to speak for your 

group in 10 mins.

17

• Read exercise handout page 5.
Slide 18

Practice Review - § 7106(b)(1)

• Proposal: If an irate claimant or potentially dangerous claimant 

requires interviewing, the employee and claimant will be escorted to 

the private interviewing room or to an alternative interviewing room 

or more controllable interview area, and they will not be left alone.

• Spokespeople: Did the proposal affect the Agency’s (b)(1) right to 

determine the number of employees assigned to a work project or 

tour of duty, or its (b)(1) right to determine the methods or means of 

performing work?

18

Relevant Authority Analysis: 

• “Proposals that determine the number of employees who are assigned to a particular job or 

task directly interfere with management’s right to determine the number of employees 

assigned to a work project under [§ ]7106(b)(1). Proposal 3 would directly interfere with the 

Agency’s right to determine the number of employees assigned to a work project by requiring 

employees interviewing irate or potentially dangerous claimants to be accompanied by another 

employee. The proposal is, therefore, a matter over which the Agency may elect to bargain 

under [§ ]7106(b)(1). The Agency, however, has elected not to bargain.” 37 FLRA at 355-56 

(citations omitted).

• “[Methods and means] need not be indispensable to the accomplishment of an Agency’s 

mission. The term ‘performing work’ is intended to include those matters that directly and 

integrally relate to the Agency’s operations as a whole.” Id. at 357.

• “The Agency states that the obligation to establish a private or an alternative interviewing room 

‘infringes on Agency management’s right to determine the [method or means] by which [the 

agency] will carry out its assigned mission.’ Even assuming that proposals concerning the use 

of Agency office space could constitute a ‘methods’ or ‘means’ within the meaning of 

[§ ]7106(b)(1), under the test outlined above, such proposals would not be nonnegotiable 

unless the proposed use of space was directly and integrally related to the Agency’s operations 

as a whole. In short, it must be shown not just that the proposal concerns the use of office 

space for work, but that the proposed use has some connection to, or is determinative of, how 

the Agency will perform its work.” Id.

• “Proposal 3 requires the Agency to provide ‘the private interviewing room,’ ‘an alternative 

interviewing room,’ or a ‘more controllable interview area.’ The Agency provides no evidence 

that the proposal would require it to do anything other than make existing space available for 

the interview. The record provides no evidence, for example, that the proposal would require 
modification of the existing office space in order for that space to be suitable for interviewing 

‘irate’ or ‘potentially dangerous’ clients. Consequently, we find that the Agency has not 

demonstrated a connection between the proposed use of space and the performance of the 

Agency’s work. We conclude, therefore, that the proposal does not concern the methods and 

means of performing work within the meaning of [§ ]7106(b)(1) of the Statute.” Id.

• “[N]o showing has been made here that a connection or ‘link’ exists between the use of Agency 

workspace and the performance of the Agency’s work.” Id.
Slide 19

Procedures

5 U.S.C. § 7106(b)(2)

19
Slide 20

5 U.S.C. § 7106(b)(2)

(b) Nothing in this section shall preclude any 

agency and any labor organization from 

negotiating–

(2) procedures which management officials 

of the agency will observe in exercising any 

authority under this section.

20
Slide 21

(b)(2) - Procedures

Mandatory subjects – must bargain, despite 

effect on § 7106(a) or § 7106(b)(1)

Look to Authority precedent

21

• Procedures: 61 FLRA 209, 220; 61 FLRA 327, 331-32; 45 FLRA 270, 280

• Not procedures: 70 FLRA 100, 104; 68 FLRA 676, 679; 58 FLRA 128, 134
Slide 22

Examples of Procedures

Requiring advance notice of certain agency actions

Requiring management to delay exercise of rights pending 

completion of bargaining or appellate processes

Precluding management from assigning employees certain duties

Substantively limiting right to determine content of performance 

standards

22

• Advance Notice: 61 FLRA 209, 220

• But cannot require notice when “surprise” is investigative technique: 58 FLRA 128, 134

• Delay Exercise: 61 FLRA 327, 331-33

• Precluding Assignment of Duties: 47 FLRA 512, 520; 70 FLRA 100

• Limiting Content of Performance Standards: 56 FLRA 1115, 1116 n.2
Slide 23

Procedures: Test Your Knowledge

Where agency conducts random drug testing, a proposal imposing 

notice and procedural requirements when an employee must 

provide a second sample for reasons outside the employee’s control 

is ___________ .

23

Negotiable Procedure Not a Negotiable Procedure 

• 45 FLRA 270, 277-80

• 58 FLRA 128, 133-34
Slide 24

Procedures: Test Your Knowledge

Provision requires agency to provide union with 24-hours notice 

before conducting investigatory interview of a bargaining-unit 

member is ___________.

24

Negotiable Procedure Not a Negotiable Procedure 

• 45 FLRA 270, 277-80 (proposal establishes the procedural requirements for obtaining a 

replacement sample; would not affect the agency’s decision to require employees to undergo a 

random or a reasonable suspicion drug test)

• 58 FLRA 128, 133-34 (not negotiable procedure when “surprise” is an investigative technique)
Slide 25

SAMPLE FOOTER TEXT

Questions?

25
Slide 26

Appropriate 

Arrangements

5 U.S.C. § 7106(b)(3)

26
Slide 27

SAMPLE FOOTER TEXT

Statutory Wording

5 U.S.C. § 7106(b)(3): “Nothing in 

this section shall preclude any 

agency and any labor organization 

from negotiating appropriate 

arrangements for employees 

adversely affected by the exercise of 

any authority under this section.”

27
Slide 28

Appropriate 

Arrangements

28

Mandatory subjects of 

bargaining – must bargain, 

even if they affect § 7106(a) or 

§ 7106(b)(1).

Within duty to bargain even 

if they’re not procedures under 

§ 7106(b)(2).

In determining if a proposal or 

provision is an appropriate 

arrangement, the Authority 

applies the test set out in 

KANG.

• NAGE, Loc. R14-87 and Kan. Army Nat’l Guard, 21 FLRA 24 (1986). Although cases are 

usually referenced using the name of the first party, the Authority has always referred to this 

decision using an acronym for the second party’s name – KANG.
Slide 29

KANG Analysis

Arrangement?

The Authority determines whether 

a proposal/provision is intended 

to be an “arrangement” for 

employees adversely affected by 

the exercise of a management 

right.

Appropriate?

If proposal/provision is an 

arrangement, then the Authority 

determines whether it is 

appropriate, or whether it is 

inappropriate because it 

excessively interferes with the 

relevant management rights.

29

• 21 FLRA 24 (KANG)
Slide 30

Arrangements - Adverse Effects

Must seek to mitigate adverse effects flowing from exercise 

of a management right

Must identify actual effects or reasonably foreseeable 

effects that flow from exercise of management rights, and 

how those effects are adverse

Can’t be speculative or hypothetical

30

• Mitigate adverse effects: 68 FLRA 676, 679-680

• Identify actual effects or reasonably foreseeable effects: 73 FLRA 125, 128

• Can’t be speculative or hypothetical: 67 FLRA 85, 87
Slide 31

Arrangements - Tailored

Must be “tailored” to compensate/benefit employees 

suffering adverse effects due to management right

May be “prophylactic”

31

• Tailored: 64 FLRA 275, 277

• May be prophylactic: 64 FLRA 953, 959-60
Slide 32

Exercise 1: Agency is 

reducing the number of 

armed escort officers.

Proposal: The agency will encourage the 

servicing hospitals to have rooms where 

inmates are housed with doors securable by 

escort officers.

Union states proposal would encourage 

hospitals to install secured doors for rooms 

that house inmates, which would alleviate 

problems officers would face associated with 

securing the room and inmate with only one 

armed officer.

32

• REMEMBER - In order to establish that a proposal is an arrangement, a union must 

demonstrate (1) the effects or the reasonably foreseeable effects on employees that flow from 

the exercise of management’s rights and how those effects are adverse; AND (2) that the 

proposal is sufficiently tailored.

• 66 FLRA 929, 940-41
Slide 33

Exercise 2: The agency sought to revise its 

administrative manual.

Provision: “The Associate Commissioner 

approves or denies requests for tour 

extensions and home leave 

for employees. Except to the extent 

government-wide policies and regulations 

expressly confer discretionary authority, 

all such decisions will be consistent with 

those policies and regulations and the 

policies of the Agency.”

33

• 51 FLRA 1308, 1319
Slide 34

Arrangement “Appropriate”?

Under KANG, the Authority weighs the 

burdens on the exercise of 

management rights against the 

benefits to employees to determine if 

the arrangement is appropriate.

34

• 21 FLRA 24 (KANG)
Slide 35

Exercise 3: Agency revised procedures used by 

specialists to adjudicate passport applications.

Proposal: SSA appendix steps that might 

otherwise be performed for adults do not need 

to be followed for minors in cases where 

performing the step will not affect the outcome 

to issue.

The union argues the proposal will benefit 

specialists by increasing their ability to meet 

production quotas. Agency argues the 

proposal prevents the assignment of certain 

work, using fraud controls, and undermines the 

integrity of the U.S. passport.

35

• Assume the proposal at issue satisfies the “arrangement” test.

• 69 FLRA 626, 629
Slide 36

Exercise 4: The agency changed 

the schedules and shifts assigned 

to operations supervisors and 

front-line managers.

Proposal: Coverage for operations 

supervisors/front-line managers who are on 

leave will not be provided by all unit 

employees in order to reduce the adverse 

impact of working forced overtime.

The union asserts the proposal benefits BUEs 

because it mitigates “employee burnout” 

resulting from forced overtime, reduced 

training opportunities, reduced breaks, and 

reduced ability to take leave.

36

• The agency argues the proposal is not an appropriate arrangement because it effectively

prohibits the agency from using unit employees to fill shifts when a supervisor is taking any 

kind of leave.

• 66 FLRA 658, 661-62
Slide 37

Exercise 5: 

Union sought to 

modify agency 

policy on 

performance

improvement 

plans.

Proposal: If an employee has been on a 

performance improvement plan (PIP), and 

demonstrated acceptable performance, 

and then the employee’s performance 

relapses within the year following 

commencement of the PIP, after a change 

in supervisor, the employee will be given 

another opportunity to improve.

The union asserts that the proposal would 

afford the adversely affected employees 

the opportunity to “understand the 

performance criteria from the viewpoint 

of the new supervisor.”

37

• The Agency argues the proposal is not appropriate because it prevents the agency from 

exercising its management right to suspend, remove, reduce in grade or pay, or take other 

disciplinary action against employees.

• 63 FLRA 340, 341-42
Slide 38

Exercise 6: The agency is implementing a new policy 

subjecting employees to medical and physical exams, 

as well as random drug and alcohol testing.

Proposal: For scientific personnel, no physical 

examinations shall be required to work on Agency 

vessels.

Parties agreed the proposal would prevent the 

agency from applying the new policy to scientific 

personnel. The union asserts the proposal would 

benefit scientific personnel by relieving them from 

performing crew duties; protect them from being 

disciplined for performing crew duties poorly; and 

exclude them from undergoing medical and 

physical exams, and random drug and alcohol 

testing.

38

• The agency argues the proposal is not an appropriate arrangement because it would prevent 

the agency from ensuring that scientific personnel are fit, and drug and alcohol free, to safely 

contribute to vessel operations and help during emergencies.

• 66 FLRA 639, 645

• More information on random drug testing proposals: 42 FLRA 730, 741-43
Slide 39

SAMPLE FOOTER TEXT

Questions?

39
Slide 40

BREAK

15 minutes (approx.)
Slide 41

FINAL PROJECT

41
Slide 42

Project - Directions

42

The final project has two scenarios. We will split you 

into breakout rooms for ten minutes to discuss the first scenario 

with your groups. If possible, please refrain from looking at the 

next slide for the answer.

The directions for the first scenario are on page 6 of the exercise 

handout. Please follow the directions carefully and choose 

someone in your group to explain the group’s consensus for the 

first scenario.
Slide 43

Project - Answers

43

The proposal is negotiable as written, under § 7106(b)(2), for the 

reasons stated in POPA, 47 FLRA 10, 28 (1993) 

(“Provisions requiring consistency between position descriptions 

and performance elements do not restrict an agency’s choice of 

performance elements. Rather, such provisions permit an 

agency to achieve consistency between performance elements 

and the position description by amending the descriptions.”).
Slide 44

Project - Directions

44

Again, we will split you into breakout rooms for ten minutes to 

discuss the second scenario with your groups. If possible, 

please refrain from looking at the next slide for the answer.

The directions for the second scenario are on page 7 of the 

exercise handout. Please follow the directions carefully 

and choose someone in your group to explain 

the group’s consensus for the second scenario.
Slide 45

Project - Answers

45

The wording affects the right to assign work, for the reasons 

stated in POPA, 47 FLRA 10, 23-24 (1993) (“Proposals or 

provisions that concern the assignment of specific duties to 

particular individuals directly interfere with an agency’s right to 

assign work under section 7106(a)(2)(B).”).
Slide 46

Please complete the 

training feedback form 

so we can continue to 

improve our training:

https://forms.office.com/

g/VLueHj2FDr

46
Slide 47

THANK YOU

www.flra.gov

47
Appendix 1
Appendix 2