Comprehensive

Negotiability Training

1

Federal Labor Relations 

Authority

July 22, 2015
Segment 1

2

Terms & Concepts
Proposals & Provisions

3

• Proposal ─ language offered for bargaining 

that parties haven’t agreed to – Ag has 

declared outside the duty to bargain. 5 C.F.R. 

§§ 2424.2(c) & 2424.2(e).

• Provision ─ contract language that U and Ag 

negotiators have agreed to as part of their 

CBA or FSIP has imposed; disapproved on 

Ag-head review under § 7114(c). 

Id. § 2424.2(f).
“Meaning” Issues

4

 If parties’ agreed meaning (or U’s explanation) 

consistent with wording, adopt; if not, don’t. 

E.g., 67 FLRA 654, 655; 66 FLRA 278, 278; 65 FLRA 

509, 510; 51 FLRA 451, 459.

 Provision cases – defer to parties that executed 

agreement, not Ag head. E.g., 65 FLRA 509, 514.

 Meaning adopted by Authority will apply in other 

proceedings. E.g., 55 FLRA 562, 564 n.9.
Subjects of Bargaining

5

 Mandatory

 Must bargain

 E.g., § 7106(b)(2) & (3)

 Prohibited

 Cannot agree to (law prohibits)

 E.g., § 7106(a) (where no exception applies)

 Permissive

 May bargain/agree to

 E.g., § 7106(b)(1); agreements to bargain below level of recognition, 

e.g., 62 FLRA 174, 182 
Negotiability Disputes: “Never”

5 C.F.R. § 2424.2(c)

6

 Proposals: Prohibited and permissive are outside the duty to 

bargain

 Provisions: Only prohibited may be disapproved by Ag head

 Examples of bases for negotiability claims: statutes (including 

FSLMRS), executive orders, gov’t-wide rules and regs, Ag regs 

with “compelling need”

 Look at each proposal or provision in petition, e.g., 65 FLRA 738, 

741 
Bargaining-Obligation Disputes: “Now”

5 C.F.R. § 2424.2(a)

7

 Not required to bargain under current circumstances.

 E.g., “covered by,” “de minimis,” bargaining below level of 

recognition

 No ULP remedies. Id. § 2424.40(a).

 Dismiss petition/portion of petition if only these 

disputes; any resolution must occur in other 

proceedings (such as grievance or ULP).
“Allegation of Nonnegotiability”

8

 For proposals

 Ag says: Outside the duty to bargain

 No particular degree of specificity required 
Agency-Head Disapproval

9

 For provisions

 Ag head says: Contrary to law, gov’t wide rule or 

regulation

 Cannot disapprove permissive
Sequence/Filings (Generally)

10

 U Petition for Review

 “CADRO” & Post-Petition Conference

 Ag Statement of Position

 U Response

 Ag Reply
Parties’ Burdens/Failure to Meet

11

 Both: Create record & support arguments. 5 C.F.R. § 2424.32(a)-(b).

 U: Within duty to bargain, not contrary to law, or permissive; any 

severance request (but can reserve that until response). Id. § 2424.32(a).

 Ag: Outside duty to bargain or contrary to law; why severance is not 

appropriate (if U requested in petition). Id. § 2424.32(a)-(b).

 Failure to raise and support = waiver. Id. § 2424.32(c)(1).

 Failure to respond = concession. Id. § 2424.32(c)(2).

 Failure to support = bare assertion. E.g., 66 FLRA 124, 128.
Severance

12

 Division of proposal/provision into separate parts with independent meaning, for purpose of determining whether any separate parts = within duty to bargain/contrary to law. 5 C.F.R. § 2424.2(h). 

 U may request in petition or response. Id. §§ 2424.22(c) & 2424.25(d).

 Ag may oppose; must explain why inappropriate. 

Id. §§ 2424.24(d) & 2424.26(d). 
Hearing Requests

13

 High standard: Necessary to resolve disputed

issues of material fact. 5 C.F.R. § 2424.31.

 Authority rarely grants hearing requests; almost 

always relies on documents in the record.
Other Avenues for Resolving Negotiability

14

 ALJs and grievance arbitrators: May when 

resolving duty-to-bargain questions. E.g., 64 

FLRA 443, 446-47. 

 Not FSIP or interest arbitrators (unless 

“substantively identical” to previous 

proposal/provision). E.g., 31 FLRA 620, 624.
Segment 2

15

The Negotiability Process
Union Files Petition for Review

16

 Initiates process before Authority.

 Only U may file.

 Process depends on: proposal or provision.
Union’s Petition (Process): Proposals

17

 Solicited allegation of nonnegotiability

 U requests (in writing), and Ag responds w/ 

written allegation: U must file within 15 days of 

service of allegation. 5 C.F.R. § 2424.21(a).

 U requests (in writing), but Ag doesn’t respond. 

U can file petition at any time after 10-day period 

for Ag response. Id. § 2424.21(b).
Union’s Petition (Process): Proposals

18

 Unsolicited allegation of nonnegotiability

 U doesn’t request, but Ag gives (in writing). Two options. U can: 

(1) file petition, but it must do so timely (within 15 days); or 

(2) not file petition and later request written allegation if U wants to 

pursue an appeal. In (2), if Ag gives written allegation, U must file 

within 15 days; if Ag doesn’t, then U can file any time after 10-day 

period. Id. § § 2424.11(c) & 2424.21(a)-(b); 52 FLRA 1429, 1435.

 Ag may provide unsolicited allegation before the FSIP, and same 

rules apply. 50 FLRA 121, 121-22.
Union’s Petition (Process): Provisions

19

 Within 15 days of service of Ag-head disapproval. 

5 C.F.R. § 2424.21(a)(2).
Union’s Petition: Format & Content

20

 Forms (including eFiling) or same information

 In proposal cases, where Ag gave written allegation, copy of that 

allegation; where Ag did not give written allegation, evidence U 

requested one 

 In provision cases, copy of Ag-head disapproval

 Exact wording

 Special terms

 Copies of Ag regulations/instructions

 Meaning & operation

 Supporting arguments

 Any related proceedings

 Hearing request

 Severance

 Reps’ info

 Statement of service
CADRO (Collaboration & ADR Office)

21

 Voluntary. 5 C.F.R. § 2424.10.

 Interest-based

 Suspends process
Post-Petition Conference

22

 Authority, U rep(s), Ag rep(s)

 Normally by phone

 Parties must participate (see 5 C.F.R. § 2424.32(d) for 

consequences of failure to participate)

 Party reps must be knowledgeable about dispute and have 

authority to discuss and resolve matters. Includes:

 Meaning

 Any disputed factual issues

 Objections to proposals/provisions

 Any related proceedings
Post-Petition Conference

23

• Authority rep will:

• Gather factual information about the dispute (including meaning 

and impact of proposals/provisions)

• Facilitate discussion, seek areas of agreement, discuss 

modifications to wording

• Decide issues concerning requests for extensions (but not waivers) 

of time

• Prepare written record (served on parties) – will not contain Ag legal objections; Ag must make in statement of position
Agency’s Statement of Position (SOP)

(5 C.F.R. § 2424.24)

24

 Within 30 days of Ag head’s receipt of petition

 Forms (including eFiling) or equivalent

 Must contain all arguments why proposals outside 

duty to bargain/provisions contrary to law

 Any disagreements regarding meaning & operation

 Any disagreements regarding severance
The Union’s Response

(5 C.F.R. § 2424.25)

25

 Within 15 days of receiving Ag’s SOP

 Forms (including eFiling) or equivalent

 Must discuss any claims from SOP that U disagrees 

with

 If not previously provided:

 Copies of Ag regs

 Any requests for severance
The Agency’s Reply

(5 C.F.R. § 2424.26)

26

 Must file within 15 days after Ag receives copy of U’s 

response

 Forms (including eFiling) or equivalent

 Created by regulation to allow Ag to respond to facts or 

arguments made for the first time in U’s response

 May not raise new arguments/bases for nonnegotiability 

that could have been raised in SOP
Other Filings & Amicus Curiae Petitions

27

 Written request for permission

 Additional submissions may be filed only in 

“extraordinary circumstances.” 5 C.F.R. § 2424.27.

 Parties encouraged to include submission along with 

request

 Amicus requests will be granted only if Authority 

deems “appropriate.” Id. § 2429.9.
Where to File

28

Chief, Case Intake and Publication (CIP)

 Federal Labor Relations Authority

 Docket Room, Suite 200

 1400 K Street NW.

 Washington, DC 20424-0001

 

Phone = (202) 218-7740

Fax = (202) 482-6657 (only motions)

 
How to File

29

5 C.F.R. § 2429.24:

 eFiling

 In person

 Commercial delivery

 First-class mail

 Certified mail

 NOT fax (except for motions)
When to File

30

 For eFiled: Any calendar day (including 

Saturdays, Sundays, and holidays) or time (by 

midnight Eastern Time), but don’t have to on 

weekends/holidays

 For in-person: Monday through Friday (not 

holidays), 9 a.m. to 5 p.m. Eastern Time
“Service” Required

31

 Parties must serve other parties with copies of everything 

they file with Authority. 5 C.F.R. § 2424.2(g).

 U must serve Ag head (in addition to principal Ag 

bargaining rep). Id.

 Methods:

 Certified mail

 First-class mail

 In person

 Email (ONLY if other party consents)

 NOT fax (except service of motions)
Additional Procedural Requirements

32

 Original and 4 copies of everything must be filed 

with Authority (except eFile). 5 C.F.R. § 2429.25.

 Table of contents if over 10 double-spaced pages 

(except fillable forms in eFiling). Id. § 2429.29.

 Signed statement of service (or eFile certification). 

Id. § 2429.27(c).
Noncompliance with Procedural Requirements

33

 Minor/technical – Authority will allow party to correct mistake (by deficiency order)

 But failure to file timely – dismiss petition with prejudice (after show-cause order)

 Failure to respond to Authority order:

 Dismiss petition (for U failure)

 Order bargaining or withdrawal of Ag-head disapproval (for Ag failure)
Authority’s Decision and Order

34

 Proposals: Either dismiss petition or order 

bargaining

 If proposal is permissive matter, order will say so

 Provisions: Either dismiss petition or, if 

mandatory or permissive, order Ag head to rescind 

disapproval
After the Decision and Order

35

Possible scenarios:

 Comply

 Timely move for reconsideration (within 10 days after 

service). 5 C.F.R. § 2429.17.

 Appeal to U.S. Court of Appeals within 60 days. 5 U.S.C. 

§ 7123(a)(1). But can’t make arguments that weren’t made 

to Authority (except in “extraordinary circumstances”). 

Id. § 7123(c).

 Report, to the appropriate RD, any failure to comply –

within a “reasonable period of time” after 60-day appeal 

time expires. 5 C.F.R. § 2424.41.
Segment 3

36

Bases for Dismissing Petitions
Bases for Dismissing Petitions

37

 Proposal or provision nonnegotiable

 Failure to comply with certain procedural and 

other requirements

 No negotiability dispute (look to each 

proposal/provision, e.g., 65 FLRA 738, 741)

 E.g., if only bargaining-obligation dispute. 5 C.F.R. 

§ 2424.2(d).
Bases for Dismissing Petitions

38

Mootness

 No advisory opinions. 5 C.F.R. § 2429.10.

 Jurisdictional – burden on party arguing

 But Authority may raise “sua sponte”

 Issues that led to filing of petition resolved, or no longer a 

dispute between the parties. E.g., 66 FLRA 393, 393.

 E.g., not bargaining over wording in petition. 67 FLRA 280, 281-83. 

 E.g., date already passed. 58 FLRA 409, 410.

 E.g., parties reached agreement. 52 FLRA 251, 254.
Bases for Dismissing Petitions

39

 “Directly Related” to ULP or Grievance

 Generally dismiss petition if U has filed ULP charge or grievance 

alleging ULP.

 Exception in “compelling need” cases.

 Dismissal without prejudice: U may refile petition within 30 days 

of administrative resolution of ULP charge or grievance, if negot 

issue has not been resolved.

 See, e.g.:

 56 FLRA 796, 797 (grievance was directly related to petition);

 66 FLRA 1038, 1038-39 (grievance wasn’t directly related).
Bases for Dismissing Petitions

40

 If petition seeks review of proposal/provision that 

has not “substantively changed” from prior 

petition, e.g., 56 FLRA 236, 237-38, and

 Authority dismissed previous petition with 

prejudice, e.g., 5 C.F.R. § 2424.32(d),

 Then Authority will dismiss petition.
Segment 4

41

Substantive Issues
Conditions of Employment

42

 Personnel policies, practices, and matters, established 

by rule, regulation, or “otherwise,” affecting working conditions. 5 U.S.C. § 7103 (a)(14).

 Exceptions:

 Hatch Act political activity (Id. §§ 7321-7326)

 Classification matters (as defined in 5 C.F.R. § 511.101)

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

(5 U.S.C. § 7103(a)(14))
“Specifically Provided For”

43

 Reference to matter not enough

 Ag has 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).
Conditions of Employment

44

 2-prong “Antilles” test:

 Does matter pertain to bargaining-unit 

employees? And

 Is there a “direct connection” between the matter 

and the work situation or employment 

relationship of the unit employees?

 22 FLRA 235, 236-37.
Non-Bargaining-Unit Employees

45

 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.

 Cherry Point, 952 F.2d 1434, 1442 (D.C. Cir. 1992).
Employees in Other Bargaining Units

46

 If proposal directly determines conditions of 

employment of employees in other units: 

prohibited subject (principle of exclusive 

recognition). 65 FLRA 1052, 1054.
Supervisors

47

 Proposals that directly implicate supervisors’ 

conditions of employment = permissive subjects.

 So can’t be disapproved by Ag head, e.g., 61 FLRA 

336, 339, and enforceable in arbitration, e.g., 52 

FLRA 677, 682.
Non-Employees/Employees Not in Any Unit

48

 Proposals directly implicating working conditions of nonemployees or employees not in any bargaining unit = 

outside duty to bargain unless they “vitally affect” unit 

employees’ conditions of employment. Cherry Point, 

952 F.2d at 1442-43. But permissive subjects.

 Is the proposal’s effect on unit employees’ conditions of 

employment “significant and material, as opposed to 

indirect or incidental”? E.g., 64 FLRA 723, 727; 58 FLRA 

344, 348.
Management Rights: General Principles

49

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

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

 7106(b)(1)

 All include right to not act

 All limited by 7106(b)(2) and (3)

 Proposal/provision may involve more than one right – Authority addresses only those raised
Mission (§ 7106(a)(1))

50

 Case by case. E.g., 58 FLRA 341, 342.

 What mission includes/doesn’t include. E.g., 59 FLRA 

159, 163.

 Generally not “how carried out.” E.g., id.

 But when part of mission = serve public, 

proposals/provisions regarding hours office is open may 

affect. E.g., 49 FLRA 333, 349; 22 FLRA 868, 869.
Budget (§ 7106(a)(1))

51

 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.” E.g., 61 FLRA 113, 116.

 Increase in costs, by itself, not enough. 66 FLRA 124, 125.

 Second part of test looks at the proposal or provision 

relative to organizational level to which it applies. 44 FLRA 

18, 30.
Organization (§ 7106(a)(1))

52

 Determine Ag’s administrative and functional 

structure, including relationship of personnel 

through lines of authority and distribution of 

responsibilities for delegated and assigned duties. 

E.g., 63 FLRA 530, 532.

 Includes rights to determine how organization will 

be divided up into sections, e.g., 58 FLRA 175, 178, 

and where, geographically, Ag will operate, 

e.g., 56 FLRA 444, 449.
Number of Employees in Agency (§ 7106(a)(1))

53

 Total number actually employed. E.g., 46 FLRA 298, 

316.

 Different from numbers of employees assigned to 

organizational subdivisions, work projects, or tours 

of duty under § 7106(b)(1). E.g., id. at 316-17.
Internal Security (§ 7106(a)(1))

54

 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. E.g., 66 FLRA 929, 931.

 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. E.g., id.

 Authority doesn’t review merits of Ag’s policy/practice. 

E.g., id.
Hire Employees (§ 7106(a)(2)(A))

55

 Includes right to decide whether to fill positions. 

E.g., 62 FLRA 93, 94-95.
Assign Employees (§ 7106(a)(2)(A))

56

 Is the right to assign employees to positions. E.g., 62 FLRA 

508, 510.

 Both initial hiring and post-hiring, such as reassignments, 

temporary assignments, or details. E.g., 65 FLRA 911, 913.

 Also duration of assignments. E.g., 61 FLRA 209, 218.

 Determine qualification and skills needed for positions, and 

judge whether particular employees possess them. E.g., 62 

FLRA 508, 510. 
Direct Employees (§ 7106(a)(2)(A))

57

 Supervise employees and determine quantity, quality, 

and timeliness of work. E.g., 65 FLRA 508, 511.

 Establish performance standards and evaluate/hold 

employees accountable under those standards. E.g., 63 

FLRA 450, 453.

 Select particular methods of supervision (e.g., spot checks). E.g., 62 FLRA 15, 17.

 NOT the right to decide whether to reward performance 

that’s already been evaluated. E.g., 63 FLRA 505, 508.
Layoff & Retain Employees (§ 7106(a)(2)(A))

58

 Separate rights. See 58 FLRA 344, 345.

 Layoff = Includes right to conduct reduction in force and 

decide what positions to abolish & retain. E.g., 65 FLRA 

911, 913.

 Retain = Establish policies or practices that encourage or 

discourage employees from remaining employed by Ag.

 E.g., voluntary-separation-incentive pay, e.g., 67 FLRA 85, 87, 

or substitutes for special rates, e.g., 60 FLRA 839, 841-42.
59

 Suspend employees. E.g., 19 FLRA 647, 650. 

 Remove = e.g., determining which positions to 

vacate, e.g., 11 FLRA 475, 482, or sequence of 

vacating positions, e.g., 3 FLRA 3, 5-6.

 Reduce in grade or pay = e.g., Ag’s right to take 

actions against employee for a particular offense. 

E.g., 53 FLRA 539, 579.

Suspend, Remove, Reduce in Grade or Pay 

(§ 7106(a)(2)(A))
Discipline (§ 7106(a)(2)(A))

60

 For both performance- and nonperformance-related 

conduct. E.g., 65 FLRA 142, 145.

 Investigate and determine appropriate investigative 

techniques. E.g., 60 FLRA 124, 127.

 Decide which evidence to rely on. E.g., 61 FLRA 341, 

346.

 Decide penalty. E.g., 53 FLRA 625, 679.
Assign Work (§ 7106(a)(2)(B))

61

 Determine particular duties to be assigned, when work 

assignments will occur, and to whom/what positions 

assigned. E.g., 66 FLRA 819, 823.

 Establish qualifications and skills, decide whether 

employees meet them. E.g., 61 FLRA 97, 99.

 Does not include decision whether to reward

performance. E.g., 63 FLRA 505, 508.

 Not affected merely because proposal/provision requires 

Ag to take some action. E.g., 64 FLRA 443, 447.
Contract Out & Determine Personnel 

(§ 7106(a)(2)(B))

62

 Contract out = affected by proposals/provisions that 

delay contracting out, e.g., 60 FLRA 595, 597, or 

require cost study beforehand, e.g., 48 FLRA 168, 

204.

 Determine personnel = decide employees to whom 

work will be assigned. E.g., 61 FLRA 371, 373.
Make Selections to Fill Positions 

(§ 7106(a)(2)(B))

63

 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. E.g., 61 FLRA 

618, 622.

 Affected by proposals that limit sources of selection. E.g., 56 

FLRA 1046, 1048.

 Proposals that expand sources of selection do not affect. E.g., 

61 FLRA 226, 229.
Carry Out Mission in Emergencies (§ 7106(a)(2)(B))

64

 Includes rights to:

 Independently assess whether emergency exists; and

 Decide what actions are needed to address it. E.g., 58 

FLRA 549, 551.

 Examples: proposals/provisions that define 

“emergency,” see 55 FLRA 243, 245, and 

proposals/provisions that preclude management 

from acting until a particular individual declares an 

emergency, e.g., 31 FLRA 131, 132. 
Section 7106(b)

65

 All rights in § 7106(a) = “subject to” § 7106(b)

 Three parts:

 § 7106(b)(1)

 § 7106(b)(2)

 § 7106(b)(3)
Section 7106(b)(1)

66

 Permissive (“at the election of” the Ag). E.g., 62 FLRA 90, 92.

 Ag head cannot disapprove agreements unless otherwise 

unlawful. E.g., 61 FLRA 336, 338, 339.

 Enforceable in arbitration. E.g., 62 FLRA 90, 92.

 Trumps § 7106(a) – lawful despite effect on (a) rights. E.g., id.

 If also concerns § 7106(b)(2) or § 7106(b)(3), then mandatory (must bargain). E.g., 62 FLRA 341, 343.
Numbers, Types, & Grades . . .

67

 Numbers = increase, decrease, or maintain in 

organizational subdivision, work project, tour of duty. 

E.g., 57 FLRA 424, 426. (Different from “number” in 

§ 7106(a)(1).)

 Types = distinguishable classes, kinds, groups, or 

categories of employees or positions that are relevant to 

establishment of staffing patterns. E.g., 52 FLRA 1024, 

1032, 1034.

 Grades = for example, GS levels. E.g., id. at 1032 n.11.
... Assigned to Organizational Subdivision, Work 

Project, or Tour of Duty

68

 Organizational subdivision. Examples = proposals/provisions:

 Involving centralization/decentralization within agency. 

E.g., 54 FLRA 1302, 1306.

 Staffing of subdivisions (but not establishing subdivisions). 

E.g., 52 FLRA 794, 802.

 Work project = “particular job” or “task.” 55 FLRA 848, 853. 

 Example: Supervising inmates. Id. at 853-54.

 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. 

57 FLRA 424, 426.
Technology of Performing Work

69

 Technology = the technical method that will be used 

in accomplishing or furthering the performance of 

the Ag’s work. E.g., 58 FLRA 273, 275.

 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.
Methods and Means of Performing Work

70

 Method = the way in which Ag performs its work – the “how.”

 Means = any instrumentality – including an agent, tool, device, 

measure, plan, or policy – that agency uses to accomplish, or further 

the performance of, its work – the “with what.”

 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 missionrelated purpose for which the method/means was adopted? 

E.g., 66 FLRA 639, 646.

 Relative importance irrelevant. E.g., 66 FLRA 112, 115.

 Examples: 66 FLRA 499, 502; 56 FLRA 69, 69, 87-91; but see 64 FLRA 

723, 725.
Section 7106(b)(2) – “Procedures”

71

 Mandatory subjects – must bargain, even if affect § 7106(a) or 

§ 7106(b)(1)

 Look to Authority precedent

 Examples:

 Requiring advance notice of certain agency actions. E.g., 61 FLRA 209, 220.

 Requiring management to delay exercise of rights pending completion of 

bargaining or appellate processes. E.g., 61 FLRA 327, 331-33.

 But see:

 Precluding management from assigning employees certain duties. E.g., 47 FLRA 

512, 520.

 Substantially limiting right to determine content of performance standards. E.g., 56 FLRA 1115, 1116 n.2.
Section 7106(b)(3) – “Appropriate Arrangements”

72

 “Appropriate arrangements for employees adversely 

affected by the exercise of any authority” under 

§ 7106.

 Mandatory subjects – must bargain, even if affect 

§ 7106(a) or § 7106(b)(1). E.g., 66 FLRA 929, 940-41; 

56 FLRA 69, 86.

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

§ 7106(b)(2).
Appropriate Arrangements

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“KANG” 2-part test:

 Arrangement?

 Appropriate?

21 FLRA 24, 31.
Arrangements

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 Must seek to mitigate adverse effects flowing from exercise of a management 

right. E.g., 68 FLRA 676, 679.

 U must identify effects or reasonably foreseeable effects that flow from 

management rights, and how they’re adverse. E.g., 21 FLRA 24, 31.

 Can’t be speculative or hypothetical. E.g., 59 FLRA 25, 29.

 Proposal/provision must be “tailored” to compensate/benefit employees 

suffering adverse effects due to management right. Compare 66 FLRA 929, 

940-41 (tailored); with 51 FLRA 1308, 1318-19 (not tailored).

 But may be “prophylactic.” E.g., 64 FLRA 953, 959-60.
Is Arrangement “Appropriate”?

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 Test different for proposals and provisions? E.g., 65 

FLRA 509, 512.

 Proposals = “excessive interference”

 Weigh burdens on exercise of management rights against 

benefits to employees. E.g., 21 FLRA 24, 31-32; see also 67 

FLRA 316, 317-18.

 Provisions = “abrogation”

 Does the arrangement “waive,” or preclude Ag from exercising, 

affected rights? E.g., 65 FLRA 509, 513, 515. But see 739 F.3d 

13, 21 (D.C. Cir. 2014) (reversing abrogation standard in 

context of negotiability provision).
“Applicable Laws”

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 Limitation on § 7106(a)(2), but not § 7106(a)(1), 

rights.

 Include:

 Statutes (but NOT the FSLMRS)

 U.S. Constitution

 Judicial decisions

 Executive orders

 Regulations having the “force and effect of law”:

 Affect individual rights and obligations;

 Promulgated under explicit or implicit delegation of legislative 

authority by Congress; and

 Promulgated in accordance with procedural requirements imposed by 

Congress. See 61 FLRA 201, 206.
Agency Discretion

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 Generally, if Ag has discretion over a matter, then Ag 

must bargain over proposals concerning that matter. 

E.g., 55 FLRA 1, 4-5.

 But if Ag discretion is “sole and exclusive,” would be 

contrary to law to require bargaining over matters 

within discretion. E.g., 59 FLRA 331, 346, 351.
Sole & Exclusive Discretion

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 Authority examines plain wording and legislative 

history of statute or reg. E.g., 58 FLRA 246, 248-50.

 Examples = “without regard to the provisions of any 

other law” or “notwithstanding any other provision 

of law.” E.g., 47 FLRA 884, 895.
Agency Rules and Regulations

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 Ag rules and regs = rules, regulations, and official 

declarations of policy that govern the resolution of 

matters within particular agencies. E.g., 37 FLRA 186, 

193-94.

 Generally within duty to bargain, unless Ag shows 

“compelling need” for rule/reg. 5 U.S.C. § 7117(a)(2).

 But “compelling need” does not apply if U 

“represents . . . a majority of employees in the issuing 

agency or . . . subdivision” to whom the rule/reg 

applies. Id. § 7117(a)(3); see 68 FLRA 407, 408-09.
“Compelling Need”

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 Claim must be resolved in negotiability proceeding. E.g., 

49 FLRA 534, 542. But see 67 FLRA 34 (compelling- need assertion cannot completely preempt bargaining 

process).

 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.
Prior Agreements & Existing Policies

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 Prior agreement doesn’t mean it’s within the duty to 

bargain now. E.g., 61 FLRA 554, 557.

 Nor does the fact that proposal reflects an existing 

Ag policy or practice (e.g., Ag regulation).
Bargaining-Obligation Disputes

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 For example:

(1) “covered by”

(2) “de minimis”

(3) trying to bargain at wrong level

 See also OGC ULP Case-Law Outline

 
“Covered By”

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 Don’t have statutory duty to bargain over conditions 

of employment that have already been resolved by 

bargaining. E.g., 68 FLRA 580, 582.

 Two-prong test:

(1) Is subject matter expressly contained in the 

agreement?

(2) If not, is the subject matter inseparably bound up 

with, and thus plainly an aspect of, a subject expressly 

covered by the agreement? E.g., 66 FLRA 213, 216.
“Covered By”

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“Expressly Contained in the Agreement”

Exact congruence of language not needed.

Would a reasonable reader conclude that the contract 

provision settles the matter in dispute?

Does proposal modify or conflict with the express 

terms of the contract provision?

E.g., 66 FLRA 213, 216; 66 FLRA 124, 126.
“Covered By”

85

 “Inseparably Bound Up With”

Matter in proposal must be more than tangentially related to a contract provision

Is the matter so commonly considered to be an aspect 

of a matter in the parties’ agreement that negotiations 

can be presumed to have foreclosed further bargaining? 

E.g., 66 FLRA 213, 216.
“Covered By”

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 Examples of proposals covered by agreement:

 E.g., 67 FLRA 482, 484-87; 66 FLRA 213, 218; 62 FLRA 174, 

178-79; 56 FLRA 798, 803-05.

 Examples of proposals not covered by agreement:

 E.g., 68 FLRA 580, 582-83; 66 FLRA 124, 126; 64 FLRA 

879, 882-83.
“Covered By” Doctrine Inapplicable

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 At term negotiations. E.g., 68 FLRA 334, 338.

When no term agreement is in effect. 

E.g., 57 FLRA 185, 193.

Where the agreement specifically contemplates 

bargaining. E.g., 68 FLRA 580, 582-83. 
“De Minimis”

88

 Ag has no duty to bargain over changes that have 

only “de minimis” effects on unit employees’ 

conditions of employment. E.g., 64 FLRA 85, 89.

 Authority looks to nature and extent of the 

effects, or reasonably foreseeable effects, of the 

change. E.g., id.

 Number of employees not dispositive. 

E.g., 64 FLRA 166, 173.
“De Minimis”

89

 Examples of decisions addressing this doctrine:

64 FLRA 166, 173-74 

64 FLRA 85, 89-90 

60 FLRA 315, 318 

60 FLRA 169, 175-76 

59 FLRA 728, 728-29 

59 FLRA 646, 654-55 

21 FLRA 580, 585-86
Bargaining at Wrong Level

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 Required to bargain only at “level of recognition.” 

62 FLRA 174, 182.

 Bargaining below = permissive subject. Id.

 Note: If level of recognition is lower level of agency, 

then can’t avoid bargaining just because subjects also 

may be subject to bargaining at higher level. 

67 FLRA 34, 37.
THE END

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