Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Collective Bargaining Pursuant to 

Executive Order 14003 and 5 U.S.C. § 7106(b)(1)

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

The Administration’s 

Perspective

Tim Curry

Deputy Associate Director for 

Accountability and Workforce 

Relations

U.S. Office of Personnel 

Management

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Executive Order 14003 and 7106(b)(1) Training and 

Q&A – FLRA / OPM

 Executive Order 14003, Protecting the Federal Workforce, signed by 

President Biden on January 22, 2021

 Section 1 of EO 14003 provides that it is “the policy of the United 

States to encourage worker organizing and collective bargaining”

 It is critical for workers to have their voices heard in their workplaces

 Section 4 of EO 14003 helps advance this policy objective

 “[t]he head of each agency subject to the provisions of chapter 71of title 5, 

United States Code, shall elect to negotiate over the subjects set forth in 5 

U.S.C. 7106(b)(1) and shall instruct subordinate officials to do the same.”

 This supports the President’s goal to reset labor-management 

relations in the Executive Branch

 It is now Executive Branch policy to collectively bargain over 

7106(b)(1) topics
Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Executive Order 14003 and 7106(b)(1) Training and 

Q&A – FLRA / OPM

 OPM issued EO 14003 guidance to agencies on March 5, 2021

 https://www.chcoc.gov/content/guidance-implementation-executive-order- 14003-protecting-federal-workforce

 OPM’s guidance outlined five key principles agencies should follow:

 Agency and union representatives will bargain over 7106(b)(1) subjects in 

good faith with the objective of reaching an agreement

 In the event the parties are unable to reach an agreement, either party may 

seek the assistance of the FMCS as well as any other mutually agreed-upon dispute resolution process in accordance with 5 U.S.C. 7119(a) with objective 

of reaching agreement that addresses interests of both parties

 If FMCS assistance does not result in an agreement, either party may take the 

impasse to the FSIP to resolve the impasse or to an arbitrator agreed upon by 

the parties under procedures approved by the FSIP.

 Agency head review may not disapprove a FSIP ordered resolution because it 

concerns a 7106(b)(1) subject

 7106(b)(1) policy requires agencies to bargain over the substance of 

7106(b)(1) subjects, whether at the union’s request for midterm or I&I bargaining issues, if applicable, or during term negotiations on a new term 

collective bargaining agreement.
Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Overview of Collective 

Bargaining

Bill Kirsner

Regional Attorney

Washington Regional Office

Office of the General Counsel

Federal Labor Relations Authority

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

These materials have been provided by the Federal Labor 

Relations Authority. They are intended to supplement the 

discussion portion of the training presentation and must be 

understood in the context of that discussion. 

While the slides will assist in understanding various legal 

issues, they do not represent legal advice or guidance. Also, 

since each case depends upon its own unique facts and the 

application of various legal precedent, they should not be 

relied upon to predict the legal outcome in any particular 

case. 

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

The Statute:

The Federal Service Labor-Management Relations Statute 

protects the right of employees to organize, bargain 

collectively, and participate through labor organizations of 

their own choosing in decisions which affect them.

Congress, in 5 U.S.C. section 7101 found that “labor 

organizations and collective bargaining in the civil service 

are in the public interest.”

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

The Statute

Section 7102 Employee Rights:

To engage in collective bargaining with respect to 

conditions of employment. 

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

When does the duty to bargain arise?

Term negotiations. 

 AFGE, Interdepartmental Local 3723, AFL-CIO, 9 FLRA 744 (1982).

Mid-term proposals over subjects not already 

bargained. 

 U.S. Dep’t of the Interior, Wash., D.C. and U.S. Geological Survey, Reston, Va., 56 FLRA 

45 (2000); U.S. Off. of Pers. Mgmt., 71 FLRA 977 (2020), appeal filed, Am. Fed’n of Gov’t 

Emps., AFL-CIO v. FLRA, No. 20-1398 (D.C. Cir. argued Oct. 14, 2021).

Proposed changes in conditions of employment.

 Fed. Bur. of Prisons, FCI, Bastrop Tex., 55 FLRA 848 (1999).

Dep’t of the Air Force, Wright-Patterson Air Force Base, 51 FLRA 1532 (1996).

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Assuming it is a time when a duty to bargain exists:

 Not every topic or proposal must be bargained. 

 A. No Duty to Bargain over Unlawful Matters

 B. No duty to bargain over matters that are contrary to government wide 

Regulations (Section 7117(a)(1))

 C. No duty to bargain over matters that are contrary to agency rules for 

which there is a compelling need (Section 7117(a)(2))

 Note: Existing contracts may take precedence over new government 

wide and agency regulations.

 D. Limits on the right to bargain about proposals that impact non-unit 

members. 

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Statutory Limits on the scope of bargaining 

7103(a)(14)(A) Matters relating 

to political activities

7103(a)(14)(B) Matters relating to 

classification

7103(a)(14)(C) Matters specifically 

provided for by Federal 

Statute 

 -Including 5 U.S.C. section 7106

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Section 7103(a)(14)(c)

7103(a)(14)(C) Matters specifically 

provided for by Federal 

Statute 

 -Including 5 U.S.C. section 

7106

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary PAGE 13
Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Section 7106 – Management Rights

 5 U.S.C. § 7106(a) establishes management rights under the 

Statute. The substance of management’s decision to exercise 

these rights is non-negotiable.

Right to determine the mission, budget, organization, 

number of employees and internal security practices

 In accordance with applicable laws, hire, assign, direct, 

layoff, retain, suspend, remove, reduce in grade or pay, 

discipline, assign work, contract out, determine personnel, 

make selections for hiring, and other action as necessary to 

carry out the mission during emergencies.

Management rights are subject to § 7106(b). 

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary PAGE 15
Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

5 U.S.C. Section 7106(b)

 5 U.S.C. § 7106(b)(1) establishes permissive subjects of bargaining.

 The parties may bargain over permissive subjects, but are not 

required to bargain.

 Permissive subjects:

 numbers, types, and grades of employees or positions; on the 

technology, methods or means of performing work.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

5 U.S.C. Section 7106(b)(2) and (3)

 5 U.S.C. § 7106(b)(2) and (3) require an agency to bargain over 

procedures and appropriate arrangements when it exercises its rights 

under the management rights clause.

 Commonly referred to as bargaining over the “impact and implementation” of a 

change.

 This bargaining is Mandatory.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Three Traditional Categories

 Mandatory

 Those subjects the parties are required to negotiate.

 Permissive

 Those subjects the parties may mutually agree to bargain, but 

are not required to bargain.

 Prohibited

 Those subjects that the parties are not permitted to bargain. 

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

More on 7106(b)(1)

 Traditionally permissive

 (b)(1) agreements are valid and enforceable. SSA, Balt., 55 FLRA 

1063, 1069 (1999). 

 When agencies bargain (b)(1), the types and nature of proposals 

the Union can submit are expanded

 The covered by caveat – Once a matter is negotiated, a party can 

assert it has no duty to bargain again, as it already bargained. 

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

7106(b)(1) 

Decisions

David Eddy

Special Counsel to the Chairman

Federal Labor Relations Authority

5 U.S.C. § 7106(b)(1)

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Categories of 

7106(b)(1) Matters

Numbers, types, and grades of 

employees or positions assigned 

to any organizational subdivision, 

work project, or tour of duty

Technology, methods, and means 

of performing work

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Numbers, Types, 

and Grades . . .

Generally:

Staffing patterns, or allocation of 

staff, for purposes of agency’s 

organization and accomplishment 

of its work.

See, e.g., 66 FLRA 639, 645.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Numbers

Increases

Decreases

Maintains

See, e.g., 57 FLRA 424, 426.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Types

 Distinguishable classes, kinds, groups, 

or categories 

Of employees or positions 

 Relevant to establishment of staffing 

patterns.

See, e.g., 52 FLRA 1024, 1031.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Types –

Examples

Temporary employees

52 FLRA 1024, 1034.

Term appointments.

53 FLRA 858, 869-70.

Dental hygienists.

52 FLRA 1024, 1031-32.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Grades

Example:

GS Levels.

52 FLRA 1024, 1032 n.11.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Numbers, Types, 

and Grades of . . .

 Employees or positions

 Assigned to any:

Organizational subdivision

Work project or

Tour of duty

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Organizational 

Subdivisions -

Examples

Proposals/provisions:

Involving centralization/ 

decentralization

54 FLRA 1302, 1306.

Establishing staffing of 

subdivisions

55 FLRA 925, 928.

52 FLRA 794, 796-802.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Work Project

Particular “job” or “task.”

37 FLRA 350, 355.

Examples:

 Supervising inmates.

55 FLRA 848, 853.

 Dental assistants’ duties.

52 FLRA 1024, 1032.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Tour of Duty

 Hours of a day (daily tour) and

 Days of an administrative workweek 

(weekly tour)

 That constitute employee’s regularly 

scheduled administrative workweek.

See, e.g., 57 FLRA 424, 426 

(citing 51 FLRA 386, 394).

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Tour of Duty

Not “office hours.”

36 FLRA 853, 860.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Numbers, Types, and 

Grades –

Examples

 Filling vacant position at 

organizational subdivision

54 FLRA 807, 812.

 Scheduling employees to 8-hour day with a 1⁄2 hour, duty-free lunch.

67 FLRA 442, 448.

Not: Establishing organizational subdivision (without staffing).

52 FLRA 794, 802.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Classification vs. 

Numbers/Types/ 

Grades

Classification matters outside the 

duty to bargain under 

7103(a)(14)(B).

54 FLRA 1302, 1307-10.

Without regard to 7106(b).

55 FLRA 1145, 1150.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Classification -

Examples

Establish a particular 

classification.

51 FLRA 637, 643-44.

Reclassify existing positions.

45 FLRA 802, 803-04.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Not Classification

 Establishing numbers/ types/grades 

in agency’s Philadelphia operations

Not classifying/reclassifying existing 

positions, or placing incumbents into 

positions established by the 

proposals. 

55 FLRA 509, 511. 

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Technology

Technical methods used in 

accomplishing or furthering 

performance of agency’s work.

See, e.g., 62 FLRA 321, 326.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Technology –

Test

Must show:

 Technological relationship of the matter 

addressed by the proposal to 

accomplishing or furthering agency’s work; 

and

 How the proposal would interfere with the 

purpose for which the technology was 

adopted.

See, e.g., 58 FLRA 273, 275.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Technology –

Examples

Computer terminals for 

employees.

46 FLRA 930, 954-56.

Certain telephone lines in 

employees’ offices.

46 FLRA 930, 957-59.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Methods

The way in which the agency 

performs its work – the “how.”

See, e.g., 66 FLRA 112, 115.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Means

Any instrumentality, including an:  Agent

 Tool 

 Device

 Measure

 Plan or

 Policy

Agency uses to accomplish, or further the 

performance of, its work.

The “with what.”

See, e.g., 66 FLRA 112, 115.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Methods and 

Means – Test

Must show:

 Direct and integral relationship between 

agency’s chosen method/means and 

accomplishment of agency’s mission; and

 Proposal would directly interfere with 

the mission-related purpose for which the method/means was adopted.

See, e.g., 66 FLRA 639, 646.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Methods and Means –

Additional Points

Relative importance of agency’s 

chosen method or means –

irrelevant.

See, e.g., 66 FLRA 112, 115.

Often turns on agency’s particular 

mission.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Methods and 

Means - Examples

Allowing Air Reserve Technicians 

to wear civilian clothes.

66 FLRA 499, 502.

But: allowing Customs officers to 

wear cargo shorts in certain 

environments – not methods and 

means.

61 FLRA 48, 52.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Methods and Means -

Examples

At news organization, partitions, 

at least 5 feet high, between 

cubicles

59 FLRA 447, 449-50.

Changing SSA office’s workspace 

design. 

66 FLRA 112, 115-16.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Methods and Means -

Examples

But: allowing employees to select 

offices without regard to 

workgroup assignment – not

methods and means.

64 FLRA 723, 725.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Methods and Means –

Examples

Smoking policy?

For the Indian Health Service, 

yes.

37 FLRA 972, 976-79.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

 Evaluation of work.

62 FLRA 350, 352.

 Contractors performing work.

54 FLRA 1582, 1590.

 Establishing organizational 

subdivision.

52 FLRA 813, 818-19.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

7106(a) and

7106(b)(1) Matters

Proposal that concerns 7106(a) 

matters - not unlawful if it also 

concerns 7106(b)(1) matter.

See, e.g., 57 FLRA 373, 379.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

7106(a) and

7106(b)(1) Matters –

Examples

Maintain specific number of 

particular positions at specific 

locations:

Determine organization

Also numbers/types/grades in 

organizational subdivision.

54 FLRA 1302, 1306. 

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

7106(a) and

7106(b)(1) Matters –

Examples

Expand, to field offices, pilot 

program regarding email responses 

to internet inquiries:

Assign work

Also technology of performing 

work.

58 FLRA 273, 274-75. 

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

7106(a) and

7106(b)(1) Matters –

Examples

Scheduling employees to a tour of duty 

without an unpaid lunch period:

 Assign work

 Also number of employees assigned 

to a tour of duty.

57 FLRA 424, 426-27.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

7106(a) and

7106(b)(1) Matters –

Examples

Maintain two security officers on each 

shift:

 Internal security

 Also number of employees assigned 

to tour of duty.

57 FLRA 373, 379.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

7106(a) and

7106(b)(1) Matters –

Examples

Maintain certain number of LPN 

positions at their current locations:

 Assign work

 Also numbers and types assigned to 

organizational subdivision.

55 FLRA 549, 550-52.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

7106(a) and

7106(b)(1) Matters –

Examples

Maintain, at St. Louis division, 

certain staffing levels:

Hire and assign employees

Also number assigned to 

organizational subdivision.

54 FLRA 807, 812-13.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

7106(a) and

7106(b)(1) Matters –

Examples

Providing intelligence officer with 

secure phone line:

 Internal security

 Also technology and means of 

performing work.

46 FLRA 930, 957-60.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

7106(a) and

7106(b)(1) Matters –

Examples

Prohibiting uniforms for National 

Archives research-room employees:

 Internal security

 Also methods and means of 

performing work.

31 FLRA 878, 880-81.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Final Points

 If proposal also concerns 7106(b)(2) 

or (b)(3), must bargain.

See, e.g., 48 FLRA 168, 189-92.

 If contrary to other law, can’t bargain.

68 FLRA 676, 685-86.

 Agency head can’t disapprove (b)(1).

61 FLRA 336, 338, 339.

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Successful (b)(1) 

Bargaining 

TODAY

Michael Wolf

Director

Collaboration and ADR Office

Federal Labor Relations Authority

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary

Respect Listen 

Actively

Problem 

Solve

Bargaining 

Model Learn Process Agreement

Policy & Law Focus Stakeholders

PAGE 59

“3 by 3”
Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary PAGE 60

RESPECT!

a. Respect each other

b. Respect legitimate interests

c. Respect ideas

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PAGE 61

LISTEN 

ACTIVELY!

COMMON BARRIERS TO LISTENING

PrejudgeUnspoken agenda

Environment Inattentive

InterruptionsDefensive

Time limitsAssumptions

MistrustParadigms

Language Bias

Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary PAGE 61
PAGE 62

LISTEN

ACTIVELY!

ACTIVE LISTENING

Brains Questions

Hands Reflective 

Eyes Paraphrase

Face Restate

Body Summarize

Concentrate Observe

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PAGE 63

PROBLEM

SOLVE

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BARGAINING

MODEL

1. Bargaining = interact for the 

purpose of achieving valuable 

outcomes about things that 

matter

2. Two bargaining models 

a. Distributive for dispute resolution

b. Integrative for problem solving

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BARGAINING

MODEL

Distributive Model 

for Dispute Resolution

Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary PAGE PAGE 6565
PAGE 66

BARGAINING

MODEL

Issue

Interests

(Standards) Options

Solutions

What is the problem?

Why is it important?

Brainstorm, Chart

Assess, Consensus

Integrative Model for Problem Solving 

Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary PAGE PAGE 6666
PAGE 67

LEARN

 Learn before you bargain

 Learn from the bargaining process

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PAGE 68

PROCESS

AGREEMENT

Adopt a process agreement

a. Principles

b. Success

c. Differences

d. Information

e. Educate and listen

f. Fully prepared

... and ...

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Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary PAGE PAGE 6868
PAGE 69

PROCESS

AGREEMENT

Adopt a process agreement, con’t.

g. Facilitator

h. Support even if don’t prefer

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PROCESS

AGREEMENT

Adopt a process agreement, con’t.

i. Training

j. Consistent

k. Commitment, vision, 

courage

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PAGE 71

POLICY &

LAW

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PAGE 72

FOCUS 

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PAGE 73

ENGAGE

STAKEHOLDERS

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PAGE 74

Respect Listen 

Actively

Problem 

Solve

Bargaining 

Model Learn Process Agreement

Policy & Law Focus Engage

Stakeholders

Successful (b)(1) 

Bargaining

Thank you!

Administration’s Perspective Collective Bargaining 7106(b)(1) Decision Best Practices Q & A Summary PAGE 74