Slide 1

Negotiability In Depth:

Management Rights

and Beyond

August 17, 2017
Slide 2

Disagreement between a union and an agency 

concerning the legality of a proposal or a 

provision 

Negotiability In Depth: Management Rights & Beyond 2 8/17/2017

• 5 C.F.R. § 2424.2(c).
Slide 3

Under the Statute, parties are obligated to bargain 

over proposals concerning bargaining-unit 

employees’ conditions of employment, provided 

that the proposals are not inconsistent with:

federal law, 

government-wide regulation, or

 an agency rule for which there is a compelling 

need.

Negotiability In Depth: Management Rights & Beyond 3 8/17/2017

• 45 FLRA 603, 606-07.
Slide 4

Under the Statute, parties are obligated to bargain 

over proposals concerning bargaining-unit 

employees’ conditions of employment, provided 

that the proposals are not inconsistent with:

federal law, 

government-wide regulation, or

 an agency rule for which there is a compelling 

need.

Negotiability In Depth: Management Rights & Beyond 4 8/17/2017
Slide 5

§ 7103(a)(14)

Personnel policies, practices, and matters, established 

by rule, regulation, or “otherwise,” affecting working 

conditions 

Exceptions

 “Political activity” under the Hatch Act

 Classification matters

 Matters “specifically provided for by [f]ederal statute”

Negotiability In Depth: Management Rights & Beyond 5 8/17/2017

Exceptions: 5 U.S.C. § 7103(a)(14)(A)-(C).

• Hatch Act: 5 U.S.C. §§ 7321-7326.

• Classification matters: 5 C.F.R. § 511.101.

• Matters “specifically provided for by [f]ederal statute”: next slide.
Slide 6

 Reference to matter not enough

 Agency must have no discretion

 Example where established: 

• 57 FLRA 373, 383 (wage rates for GS employees)

 Example where not established: 

• 56 FLRA 664, 665-66 (law concerning Ag’s optical 

and dental plan preserved Ag’s discretion to 

negotiate over that matter)

Negotiability In Depth: Management Rights & Beyond 6 8/17/2017
Slide 7

If an agency has discretion over a matter, then it 

must bargain over proposals concerning that 

matter 

• But, if discretion is “sole and exclusive,” it would be 

contrary to law to require bargaining over that matter 

Authority examines the plain wording and 

legislative history of the statute or reg

• Examples = “without regard to the provisions of any 

other law” or “notwithstanding any other provision of 

law”

Negotiability In Depth: Management Rights & Beyond 7 8/17/2017

• Discretion: e.g., 55 FLRA 1, 4-5.

• Sole and Exclusive discretion: e.g., 59 FLRA 331, 346, 351.

• Authority examines plain wording: 58 FLRA 246, 248-50; 47 FLRA 884, 

895.

• If a government-wide regulation is at issue, the Authority may also 

consider the interpretation of the agency that promulgated the 

regulation. E.g., 59 FLRA 331, 341-45.
Slide 8

Department of the Air Force v. FLRA, 844 F.3d 957 (2016)

 DC Circuit stated that a statute need not contain 

“phrases like ‘notwithstanding any law’ to place a 

subject outside an agency’s duty to bargain.”

 “Given Congress’s focus [in Title 10] on defining a 

military benefit, which has nothing at all to do with 

terms and conditions of civilian employment, it would 

have had no reason to include a ‘notwithstanding’ 

clause exempting that benefit from” laws such as the 

Statute.

Negotiability In Depth: Management Rights & Beyond 8 8/17/2017
Slide 9

The Authority considers two factors in deciding 

whether a proposal involves a condition of 

employment:

1. Whether the matter proposed to be 

bargained pertains to bargaining-unit 

employees; and

2. Is there a “direct connection” between the 

matter and the work situation or employment 

relationship of the unit employees?

Negotiability In Depth: Management Rights & Beyond 9 8/17/2017

• Two-part test: Antilles, 22 FLRA 235, 236-37.
Slide 10

Is there a “direct connection” between the matter and the 

work situation/employment relationship of the employees?

Negotiability In Depth: Management Rights & Beyond 10

866 F.2d 1443

 On the Agency premises

 Paid for by Agency 

 Used to recognize employees 

and foster a productive work 

relationship

 Agency required those who did 

not attend picnic to work their 

regular shift

7 FLRA 123

Proposal: “Employer agrees to 

grant off-duty personnel 

hunting and fishing recreation 

at headquarters, in 

accordance with California 

State Fish and Game 

Regulations”

8/17/2017
Slide 11

Four groups of non-unit personnel:

1. employees in other bargaining units;

2. supervisors;

3. non-supervisory employees not in any 

bargaining unit; and

4. non-employees

Negotiability In Depth: Management Rights & Beyond 11 8/17/2017

• 952 F.2d 1434, 1442 (D.C. Cir. 1992)
Slide 12

If the proposal directly determines

conditions of employment of employees in 

other units: prohibited subject 

Principle of exclusive recognition 

Negotiability In Depth: Management Rights & Beyond 12 8/17/2017

• 65 FLRA 1052, 1054
Slide 13

Proposals that directly implicate 

supervisors’ conditions of employment 

are permissive subjects of bargaining

Cannot be disapproved by Agency head 

and are enforceable in arbitration

Negotiability In Depth: Management Rights & Beyond 13 8/17/2017

• The Statute does not expressly prohibit bargaining over matters that 

directly implicate the working conditions of managers and 

supervisors. Thus, there is no clear statutory basis for concluding that 

bargaining over such matters is prohibited. 52 FLRA 677, 681; e.g., 

61 FLRA 336, 339; 52 FLRA 677, 682.
Slide 14

 Proposals directly implicating working 

conditions of non-employees or employees 

not in any bargaining unit are outside duty 

to bargain unless they “vitally affect” unit 

employees’ conditions of employment. 

 Is the proposal’s effect on unit employees’ 

conditions of employment “significant and 

material, as opposed to indirect or 

incidental”? 

Negotiability In Depth: Management Rights & Beyond 14 8/17/2017

• 952 F.2d at 1442-43.

• E.g., 64 FLRA 723, 727; 58 FLRA 344, 348.
Slide 15

Under the Statute, parties are obligated to bargain 

over proposals concerning bargaining-unit 

employees’ conditions of employment, provided 

that the proposals are not inconsistent with:

federal law, 

government-wide regulation, or

 an agency rule for which there is a compelling 

need.

Negotiability In Depth: Management Rights & Beyond 15 8/17/2017

Summary

• Duty to bargain over BU employees’ conditions of employment

• Bargaining over supervisors’ conditions of employment = permissive

• Bargaining over conditions of employment of employees in other 

units = prohibited 

• Bargaining over conditions of employment of non-employees or 

employees not in a unit = outside duty to bargain

• Unless the proposal vitally affects BU employees = mandatory

• Statute leaves an Agency with discretion = must bargain, but with sole 

and exclusive discretion = can’t bargain.
Slide 16

§ 7117(a)(1)

Proposals and provisions that are inconsistent with a 

government-wide rule or regulations are outside duty to 

bargain

“Government-wide”: Rules, regulations, and official 

declarations of policy that are generally applicable throughout 

the federal government and are binding on the federal 

agencies and officials to whom they apply 

 If CBA preceded gov’t-wide regulation, CBA governs until it 

expires

• Exception: gov’t-wide regulations that implement 5 U.S.C. 

§ 2302 (prohibited personnel practices) 

Negotiability In Depth: Management Rights & Beyond 16 8/17/2017

• E.g., 53 FLRA 403, 416.

• CBA preceded: e.g., 65 FLRA 817, 819.

• 60 FLRA 398, 399 n.6 (Government-wide regulations, other than 

regulations implementing 5 U.S.C. § 2302, do not control over 

conflicting provisions in an agreement if the agreement was in effect 

before the date the regulation was prescribed).
Slide 17

§ 7117(a)(2)

Proposal or provisions that are inconsistent with 

an agency rule or regulation are within the duty 

to bargain unless the agency shows that there is a 

“compelling need” for its rule or reg

 The compelling-need exception does not apply 

if the union involved “represents . . . a majority 

of employees in the issuing agency or . . . 

subdivision” to whom the rule/reg applies. 

Negotiability In Depth: Management Rights & Beyond 17 8/17/2017

• 5 U.S.C. § 7117(a)(3); see 68 FLRA 407, 408-09.
Slide 18

 Test under 5 C.F.R. § 2424.50:

• Essential, not merely helpful or desirable, to accomplishment of 

mission or execution of functions of Ag or primary national 

subdivision in a manner that’s consistent with requirements of effective 

and efficient government;

• Necessary to ensure maintenance of basic merit principles; or

• Implements a mandate to the Ag or primary national subdivision 

under law or outside authority, which implementation is essentially 

nondiscretionary in nature.

 Claim must be resolved in negotiability proceeding. 

• But see 67 FLRA 34 (compelling-need assertion cannot completely 

preempt bargaining process)

Negotiability In Depth: Management Rights & Beyond 18 8/17/2017

• Claim must be resolved in negotiability proceeding: e.g., 49 FLRA 534, 

542.

• An agency must demonstrate that its regulation is essential, as 

distinguished from helpful or desirable, to the accomplishment of its 

mission or execution of its functions in a manner that is consistent 

with the requirements of an effective and efficient Government. Id.
Slide 19

Prior agreement doesn’t mean it’s 

within the duty to bargain now

Nor does the fact that proposal 

reflects an existing Ag policy or 

practice (e.g., Ag regulation).

Negotiability In Depth: Management Rights & Beyond 19 8/17/2017

• Prior agreement doesn’t = negotiable: 61 FLRA 554, 557.
Slide 20

Under the Statute, parties are obligated to bargain 

over proposals concerning bargaining-unit 

employees’ conditions of employment, provided 

that the proposals are not inconsistent with:

federal law, 

government-wide regulation, or

 an agency rule for which there is a compelling 

need.

Negotiability In Depth: Management Rights & Beyond 20 8/17/2017

Summary

• Proposal that is inconsistent with government-wide rule or reg. = 

outside duty to bargain

• Proposal that is inconsistent with internal agency rule = within duty to 

bargain

• unless agency establishes compelling need for that rule (rare 

exception)
Slide 21

 7106(a)(1) – not limited by “applicable laws”

 7106(a)(2) – limited by “applicable laws”

 7106(b)(1) – permissive

 All include right to not act

 All limited by 7106(b)(2) and (3)

 Proposal/provision may involve more than one right or 

exception – Authority addresses only those raised

Negotiability In Depth: Management Rights & Beyond 21 8/17/2017
Slide 22

 Case by case 

 What mission includes/doesn’t include 

 Generally not “how carried out”

 But when part of mission = serve public, 

proposals/provisions regarding hours office is 

open may affect 

Negotiability In Depth: Management Rights & Beyond 22 8/17/2017

• E.g., 58 FLRA 341, 342; 59 FLRA 159, 163.

• Examples: 49 FLRA 333, 349; 22 FLRA 868, 869.
Slide 23

Affected if either:

1. Proposal/provision prescribes particular 

programs to be included in budget, or amount 

to be allocated in budget; or

2. Ag makes “substantial demonstration that an 

increase in costs is significant and 

unavoidable and is not offset by compensating 

benefits.”

Increase in costs, by itself, not enough 

Negotiability In Depth: Management Rights & Beyond 23 8/17/2017

• 61 FLRA 113, 116.

• 66 FLRA 124, 125.

• Second part of test considers only “compensating benefits” of a 

tangible, monetary nature – not intangible, non-monetary benefits 

like improved employee morale, 47 FLRA 980, 998, and looks at the 

proposal or provision relative to organizational level to which it 

applies, 44 FLRA 18, 30.
Slide 24

Determine Ag’s administrative and 

functional structure, including relationship 

of personnel through lines of authority and 

distribution of responsibilities for 

delegated and assigned duties 

Includes rights to determine 

• how organization will be divided up into sections 

and 

• where, geographically, agency will operate

Negotiability In Depth: Management Rights & Beyond 24 8/17/2017

• 63 FLRA 530, 532.

• 58 FLRA 175, 178.

• 56 FLRA 444, 449.
Slide 25

Total number actually employed 

Different from “numbers” of employees 

assigned to organizational subdivisions, 

work projects, or tours of duty under 

§ 7106(b)(1) 

Negotiability In Depth: Management Rights & Beyond 25 8/17/2017

• E.g., 46 FLRA 298, 316-17.
Slide 26

 Determine policies and practices that are part of Ag’s 

plan to secure or safeguard its personnel, physical 

property, or operations against internal and external risks 

 Ag must show link, or reasonable connection, between its 

security objective and agency policy or practice 

designed to implement that policy/practice, and that 

proposal or provision conflicts with policy/practice 

 Authority doesn’t review merits 

of Ag’s policy/practice

Negotiability In Depth: Management Rights & Beyond 26 8/17/2017

• E.g., 66 FLRA 929, 931.
Slide 27

Hire Employees:

• Includes the right to decide whether 

to fill positions

Negotiability In Depth: Management Rights & Beyond 27 8/17/2017

• 62 FLRA 93, 94-95.
Slide 28

Assign Employees:

• Is the right to assign employees to positions

• Both initial hiring and post-hiring, such as 

reassignments, temporary assignments, or 

details

• Also duration of assignments

• Determine qualification and skills needed for 

positions, and judge whether particular 

employees possess them

Negotiability In Depth: Management Rights & Beyond 28 8/17/2017

• Assign to positions: 62 FLRA 508, 510.

• Initial hiring and post-hiring: 65 FLRA 911, 913.

• Duration of assignments: 61 FLRA 209, 218.

• Determination qualifications: 62 FLRA 508, 510.
Slide 29

Direct Employees:

• Supervise and guide employees and determine 

quantity, quality, and timeliness of work

• Establish performance standards and 

evaluate/hold employees accountable under 

those standards

• Select particular methods of supervision (e.g., 

spot checks)

• NOT the right to decide whether to reward 

performance that’s already been evaluated

Negotiability In Depth: Management Rights & Beyond 8/17/2017 29

• Supervise & guide: 65 FLRA 509, 511.

• Perf. Standards: 63 FLRA 450, 453.

• Methods of supervision: 62 FLRA 15, 17.

• Not rewards: 63 FLRA 505, 508.
Slide 30

Layoff & Retain Employees:

• Separate rights

• Layoff = Includes right to conduct 

reduction in force and decide what 

positions to abolish & retain

• Retain = Establish policies or practices 

that encourage or discourage 

employees from remaining employed

Negotiability In Depth: Management Rights & Beyond 8/17/2017 30

• Separate rights: see 58 FLRA 344, 345.

• Layoff: e.g., 27 FLRA 467, 477-79; see also 65 FLRA 911, 913.

• Retain: voluntary-separation-incentive pay, e.g., 67 FLRA 85, 87, or 

substitutes for special rates, e.g., 60 FLRA 839, 841-42.
Slide 31

Suspend employees

Remove = determining which 

positions to vacate, or sequence of 

vacating positions

Reduce in grade or pay = Ag’s right 

to take actions against employee for 

a particular offense

Negotiability In Depth: Management Rights & Beyond 8/17/2017 31

• Suspend: e.g., 19 FLRA 647, 650.

• Which positions to vacate: 11 FLRA 475, 482; Sequence of vacating 

positions: 3 FLRA 3, 5-6.

• Right to take actions against employee for particular offense: 53 FLRA 

539, 579.
Slide 32

For both performance- and 

nonperformance-related conduct

Investigate and determine appropriate 

investigative techniques

Decide which evidence to rely on

Decide penalty

Negotiability In Depth: Management Rights & Beyond 8/17/2017 32

• Perf. & non-perf.: 65 FLRA 142, 145.

• Investigate & techniques: 60 FLRA 124, 127.

• Which evidence: 61 FLRA 341, 346.

• Penalty: 53 FLRA 625, 679.
Slide 33

 Determine particular duties to be assigned, when 

work assignments will occur, and to whom/what 

positions assigned

 Establish qualifications and skills, decide whether 

employees meet them

 Does not include decision whether to reward 

performance

 Not affected merely because proposal/provision 

requires Ag to take some action

Negotiability In Depth: Management Rights & Beyond 8/17/2017 33

• Particular duties, when, to whom: 66 FLRA 819, 823.

• Qualifications: 61 FLRA 97, 99.

• Not rewards: 63 FLRA 505, 508.

• Not affected because requires some action: 64 FLRA 443, 447.
Slide 34

Contract out = affected by 

proposals/provisions that delay 

contracting out, or require cost study 

beforehand

Determine personnel = decide 

employees to whom work will be 

assigned

Negotiability In Depth: Management Rights & Beyond 8/17/2017 34

• Contracting out delay: 60 FLRA 595, 597.

• Contracting out cost study: 48 FLRA 168, 204.

• Determine personnel: 61 FLRA 371, 373.
Slide 35

 Select from: (1) among properly certified 

candidates for promotion; or (2) any other 

appropriate source

 Decide qualifications, skills, and abilities 

needed for position and determine whether 

applicants have those 

 Affected by proposals that limit sources of 

selection

 Proposals that expand sources do not affect

Negotiability In Depth: Management Rights & Beyond 8/17/2017 35

• Decide qualifications, determine whether applicants have: 61 FLRA 

618, 622.

• Affected by limitations on sources: 56 FLRA 1046, 1048.

• Expanding sources don’t affect: 61 FLRA 226, 229.
Slide 36

Includes rights to:

• Independently assess whether emergency 

exists; and

• Decide what actions are needed to address it. 

Example: Proposals/provisions that 

preclude management from acting until a 

particular individual declares an 

emergency

Negotiability In Depth: Management Rights & Beyond 8/17/2017 36

• Independently assess & decide what actions needed: 58 FLRA 549, 

551.

• Requiring particular individual to declare: 31 FLRA 131, 132.
Slide 37

 When agency claims proposal or provision affects 

§ 7106(a)(2) rights, Authority asks whether 

proposal/provision enforces an “applicable law”

APPLICABLE LAWS

Lawfully enacted statutes (but not The Statute), the 

U.S. Constitution, controlling judicial decisions, 

executive orders issued pursuant to express 

statutory authorization, and regulations having the 

force and effect of law 

Negotiability In Depth: Management Rights & Beyond 8/17/2017 37

• 61 FLRA 201, 206.

• See Dep’t of the Treasury, IRS v. FLRA, 494 U.S. 922 (1990) (discussing 

the meaning of “applicable laws”).
Slide 38

8/17/2017 38 Negotiability In Depth: Management Rights & Beyond
Slide 39

All rights in § 7106(a) are “subject to” 

§ 7106(b), including:

• § 7106(b)(1)

• § 7106(b)(2)

• § 7106(b)(3)

Negotiability In Depth: Management Rights & Beyond 8/17/2017 39
Slide 40

Conditions of Employment

- Exceptions to Conditions of Employment

- Matters Inconsistent with Law, Rule, and 

Regulation

- Management Rights

+ Exceptions to Management Rights 

(§ 7106(b))

_______________________________________

Mandatory Subjects of Bargaining

Negotiability In Depth: Management Rights & Beyond 8/17/2017 40
Slide 41

• Permissive (“at the election of” the Ag)

• Ag head cannot disapprove agreements unless 

otherwise unlawful

• Enforceable in arbitration 

• Trumps § 7106(a) – lawful despite effect on (a) rights

• If also concerns § 7106(b)(2) or § 7106(b)(3), then 

mandatory (must bargain)

Negotiability In Depth: Management Rights & Beyond 8/17/2017 41

• 61 FLRA 336, 338, 339 (after parties reach agreement on § 7106(b)(1) 

matter, provision may not be disapproved during Ag-head review 

under § 7114(c) unless otherwise unlawful).

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

bargaining permitted notwithstanding effect on exercise of § 7106(a) 

rights).
Slide 42

Numbers = increase, decrease, or 

maintain in organizational 

subdivision, work project, tour of duty

• Different from “number” in 

§ 7106(a)(1)

Negotiability In Depth: Management Rights & Beyond 8/17/2017 42

• 57 FLRA 424, 426.
Slide 43

Types = distinguishable classes, 

kinds, groups, or categories of 

employees or positions that are 

relevant to establishment of staffing 

patterns

Grades = for example, GS levels

Negotiability In Depth: Management Rights & Beyond 8/17/2017 43

• Types: 52 FLRA 1024, 1032, 1034.

• Grades: id. at 1032 n.11.
Slide 44

Organizational subdivision

Examples = proposals/provision:

• Involving centralization/ 

decentralization within agency

• Staffing of subdivisions (but not 

establishing subdivisions) 

Negotiability In Depth: Management Rights & Beyond 8/17/2017 44

• Centralization: 54 FLRA 1302, 1306.

• Staffing: 52 FLRA 794, 802; 55 FLRA 925, 928.
Slide 45

Work project = “particular job” or “task” 

• Example: Supervising inmates

Tour of duty = the hours of a day (daily 

tour) and days of an administrative 

workweek (weekly tour) that constitute an 

employee’s regularly scheduled 

administrative workweek

Negotiability In Depth: Management Rights & Beyond 8/17/2017 45

• Work project: 55 FLRA 848, 853.

• Tour of duty: 57 FLRA 424, 426.
Slide 46

 Technology = the technical method that will 

be used in accomplishing or furthering the 

performance of the Ag’s work

 Must show:

• The technological relationship of the matter addressed 

by the proposal/provision to accomplishing or 

furthering performance of Ag’s work; and

• How the proposal/provision would interfere with the 

purpose for which the technology was adopted

Negotiability In Depth: Management Rights & Beyond 8/17/2017 46

• E.g., 58 FLRA 273, 275.
Slide 47

Method = the way in which Ag performs 

its work – the “how”

Means = any instrumentality – including 

an agent, tool, device, measure, plan, or 

policy – that Ag uses to accomplish, or 

further the performance of, its work – the 

“with what”

Relative importance irrelevant 

Negotiability In Depth: Management Rights & Beyond 8/17/2017 47

• 66 FLRA 112, 115.

• Examples: 66 FLRA 499, 502; 56 FLRA 69, 87-91.

• But see 64 FLRA 723, 725.
Slide 48

 Proposal: Legacy Customs Inspectors, 

Canine Enforcement Officers, and any other 

uniformed legacy Customs Officer will be 

permitted to wear cargo shorts when 

performing work in a Class 3 environment. 

 Does the proposal affect the Agency’s right 

to determine the methods and means of 

performing work?

Negotiability In Depth: Management Rights & Beyond 8/17/2017 48

• 61 FLRA 48.
Slide 49

 Ask:

1) is there a direct or integral relationship 

between the Ag’s chosen method/means 

and the accomplishment of the Ag’s 

mission?; and

2) does the proposal/provision directly 

interfere with the mission-related purpose 

for which the method/means was adopted?

Negotiability In Depth: Management Rights & Beyond 8/17/2017 49

• 66 FLRA 639, 646.
Slide 50

 A proposal requiring the agency to erect partitions 

between cubicles; the partitions would be at least 5 feet 

high. 

 A proposal requiring the agency to permit employees to 

pick cubicles based on seniority.

Negotiability In Depth: Management Rights & Beyond 8/17/2017 50

• 59 FLRA 447.

• 64 FLRA 723.
Slide 51

Mandatory subjects – must bargain, 

despite effect on § 7106(a) or § 7106(b)(1)

Look to Authority precedent 

Negotiability In Depth: Management Rights & Beyond 8/17/2017 51

• Compare 61 FLRA 209, 220, and 45 FLRA 270, 280 (procedure), with

70 FLRA 100, 104, and 68 FLRA 676, 679 (no procedure).
Slide 52

 Examples:

• Requiring advance notice of certain agency actions

• Requiring management to delay exercise of rights 

pending completion of bargaining or appellate 

processes

 But see:

• Precluding management from assigning employees 

certain duties

• Substantively limiting right to determine content of 

performance standards

Negotiability In Depth: Management Rights & Beyond 8/17/2017 52

• Advance Notice: 61 FLRA 209, 220.

• Delay Exercise: 61 FLRA 327, 331-33.

• Assignment of Duties: 47 FLRA 512, 520.

• Performance Standards: 56 FLRA 1115, 1116 n.2.
Slide 53

Where Ag conducted random drug testing, 

a proposal imposing notice and 

procedural requirements when an 

employee has to provide a second sample 

for reasons outside the employee’s control.

Provision requiring Ag to provide Union 

with 24 hours notice before conducting 

investigatory interview of a bargainingunit member.

Negotiability In Depth: Management Rights & Beyond 8/17/2017 53

• 45 FLRA 270, 277-80.

• 58 FLRA 128, 133-34.
Slide 54

 “Appropriate arrangements for employees 

adversely affected by the exercise of any 

authority under” § 7106

 Mandatory subjects – must bargain, despite effect 

on § 7106(a) or § 7106(b)(1) 

 Within duty to bargain even if it’s not a procedure 

under § 7106(b)(2) 

Negotiability In Depth: Management Rights & Beyond 8/17/2017 54

• 66 FLRA 929, 940-41; 56 FLRA 69, 86-87.
Slide 55

Must seek to mitigate adverse effects 

flowing from exercise of a management 

right

U must identify effects or reasonably 

foreseeable effects that flow from 

management rights, & how they’re adverse

Can’t be speculative or hypothetical

Negotiability In Depth: Management Rights & Beyond 8/17/2017 55

• Mitigate: 68 FLRA 676, 679-680.

• Reasonably foreseeable: 21 FLRA 24, 31.

• Can’t be speculative or hypothetical: 67 FLRA 85, 87.
Slide 56

Proposal/provision must be “tailored” to 

compensate/benefit employees 

suffering adverse effects due to 

management right

But may be “prophylactic”

Negotiability In Depth: Management Rights & Beyond 8/17/2017 56

• “Tailored”: compare 66 FLRA 929, 940-41 (tailored), with 51 FLRA 

1308, 1318-19 (not tailored).

• “Prophylactic”: 64 FLRA 953, 959-60.
Slide 57

• Test different for proposals and provisions.

• Proposals = “excessive interference”

 Weigh burdens on exercise of management rights 

against benefits to employees

• Provisions = “abrogation”

 Does the arrangement “waive” or preclude Ag from 

exercising affected rights?

• But see D.C. Cir.: arbitrary and capricious to apply 

two different standards

Negotiability In Depth: Management Rights & Beyond 8/17/2017 57

• Excessive interference: 21 FLRA 24, 31-32; see also 67 FLRA 316, 

317-18.

• Abrogation: 65 FLRA 509, 513, 515. But see 739 F.3d 13, 20-21 (D.C. 

Cir. 2014).
Slide 58

The Authority weighs the proposal’s 

burdens on the exercise of management 

rights against its benefits to employees.

Negotiability In Depth: Management Rights & Beyond 8/17/2017 58
Slide 59

 Ag has used two helicopters to inspect power lines –

one maintained in North Dakota, one in South Dakota.

 Ag decided to eliminate the North Dakota helicopter 

(and helicopter-pilot position) and conduct all 

helicopter work out of South Dakota.

Negotiability In Depth: Management Rights & Beyond 8/17/2017 59

• 54 FLRA 642.
Slide 60

Proposal 1: Retain one helicopter-pilot 

position at the North Dakota office.

Proposal 3: Retain one helicopter-pilot 

position at the South Dakota office.

Negotiability In Depth: Management Rights & Beyond 8/17/2017 60

• 54 FLRA 642.
Slide 61

 Proposal: No patent examiner will be removed 

from the examining corps due to a conflict with a 

financial interest that existed prior to 

employment, or due to an agency-initiated 

change of work assignment, unless the conflict 

was knowingly concealed by the examiner 

during an inquiry by the agency. 

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• 53 FLRA 625, 677-81.
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Questions?

Evaluations

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