GUIDE TO NEGOTIABILITY UNDER THE 

FEDERAL SERVICE LABOR-MANAGEMENT

RELATIONS STATUTE

(Updated June 17, 2013)
TABLE OF CONTENTS

FOREWORD 1

§ 1 TERMS AND CONCEPTS 3

 1.1 Introduction 3

1.2 Proposals 3

1.3 Provisions 3

 

1.4 How the Authority Determines the Meaning of Proposals

and Provisions 3

1.5 Mandatory Subjects of Bargaining 4

1.6 Prohibited Subjects of Bargaining 4

1.7 Permissive Subjects of Bargaining 5

1.8 Negotiability Disputes 5 

1.9 Bargaining-Obligation Disputes 7

 

1.10 Use of the Term “Nonnegotiable” 7

1.11 Allegation of Nonnegotiability 8

1.12 Agency-Head Review/Disapproval 8

1.13 Union’s Petition for Review 9

1.14 Post-Petition Conference 9

1.15 Collaboration and Alternative Dispute Resolution Office

(CADRO) 9

1.16 Agency’s Statement of Position 10

1.17 Union’s Response 10

1.18 Agency’s Reply 10
1.19 Parties’ Burdens (and Failure to Meet Burdens) 11

1.20 Severance 11

1.21 Hearing Requests and Other Factfinding Procedures 12

1.22 Other Avenues for Resolving Negotiability Issues 13

§ 2 THE NEGOTIABILITY PROCESS 14

2.1 Union Files Petition for Review 14

2.2 Time Limit for Filing Petition 14

(a) Proposals 14

1. Union requests, in writing, a written allegation of

nonnegotiability, and agency responds 14

2. Union requests, in writing, a written allegation of

nonnegotiability, and agency does not respond 15

3. Agency provides a written, unrequested allegation

of nonnegotiability 15

4. Allegations of nonnegotiability, and requests for

such allegations, must be in writing 16

(b) Provisions 16

(c) Date of service of allegation of nonnegotiability or

agency-head disapproval 17

2.3 Diagram Summarizing Pre-Petition Process 18

2.4 Format and Content of the Petition 18

2.5 CADRO and the Post-Petition Conference 20

2.6 Agency’s Statement of Position 22

2.7 Union’s Response 23

2.8 Agency’s Reply 24
2.9 Diagram Summarizing Parties’ Filings With the Authority 25

2.10 Other Filings and Amicus Curiae Petitions 25

2.11 Where and How to File 26

2.12 “Service” Required 27

2.13 Additional Procedural Requirements 27

2.14 Noncompliance with Procedural and Other Requirements 28

2.15 Authority’s Decision and Order 29

2.16 After the Authority’s Decision and Order 29

2.17 Diagram Summarizing Possible Conclusions of Authority

Decisions and the Post-Decision Process 31

§ 3 BASES FOR DISMISSING PETITIONS 32

3.1 Introduction 32

3.2 Proposal or Provision Nonnegotiable 32

3.3 Failure to Comply with Certain Procedural and Other

Requirements 32

3.4 No Negotiability Dispute 32

3.5 Mootness 33

3.6 Petition is “Directly Related” to Unfair Labor Practice or

Grievance 33

3.7 Previously Filed Petition Bars Proposal or Provision 34

§ 4 SUBSTANTIVE ISSUES 35

4.1 Introduction 35

4.2 Conditions of Employment 35
4.3 Management Rights 38

(a) Introduction and General Principles 38

(b) Section 7106(a) 39 

1. Mission 40

2. Budget 40

3. Organization 40

4. Number of Employees of the Agency 41

5. Internal-Security Practices 41

6. Hire Employees 42

7. Assign Employees 42

8. Direct Employees 43

9. Layoff Employees 43

10. Retain Employees 44

11. Suspend 44

12. Remove 44

13. Reduce in Grade or Pay 44

14. Discipline 45

15. Assign Work 45

16. Contract Out 46

17. Determine Personnel 46

18. Make Selections to Fill Positions 46

19. Carry Out Mission in Emergencies 47
(c) Section 7106(b) 47

1. Section 7106(b)(1) - Generally 48

2. Section 7106(b)(1) - Numbers, Types, and Grades

of Employees or Positions Assigned to Any

Organizational Subdivision, Work Project, or

Tour of Duty 48

3. Section 7106(b)(1) - Technology, Methods, and

Means of Performing Work 50

4. Section 7106(b)(2) – Procedures 51

5. Section 7106(b)(3) - Appropriate Arrangements 55

i. What is an “arrangement”? 55

ii. When is an arrangement “appropriate”? 56

(d) Section 7106(a)(2) - “Applicable Laws” 57

(e) Diagram Summarizing § 7106 of the Statute 58

4.4 Agency Discretion and “Sole and Exclusive” Discretion 59

4.5 Agency Rules and Regulations – “Compelling Need” 59

4.6 Irrelevance of Prior Agreements and Existing Agency

Requirements 61

4.7 Common Bargaining-Obligation Disputes 61

(a) “Covered By” Doctrine 61

(b) “De Minimis” Doctrine 62

(c) Attempts to Bargain at Wrong Level 63

FREQUENTLY CITED DECISIONS 64

AFTERWORD 65
1

FOREWORD

The Federal Labor Relations Authority’s (FLRA’s) three-Member, decisional

component (the Authority) has prepared this Guide. The FLRA, an independent agency

within the executive branch of the federal government, administers the labor-relations 

program under the Federal Service Labor-Management Relations Statute (the Statute)1

for the federal sector. 

A primary responsibility of the Authority under the Statute is to resolve

“negotiability” appeals.2 As discussed in further detail in this Guide, a union may file a 

negotiability appeal when: (1) an agency has claimed that the union’s bargaining 

proposal is outside the statutory duty to bargain; or (2) an agency head has 

disapproved, as allegedly contrary to law, a contract that either an agency and a union 

have agreed to, or the Federal Service Impasses Panel (FSIP) has imposed.

3 

This Guide is designed to help parties understand the negotiability process and 

their rights and responsibilities in connection with that process. An understanding of 

the statutory and regulatory scheme will enhance the parties’ ability to resolve their 

disputes as completely and expeditiously as possible.4 Given the broad range of 

substantive issues that can arise in the negotiability process, detailed discussions of 

specific subject matters of bargaining are beyond the scope of this Guide. Instead, this

Guide is intended to provide parties with information concerning:

 the key terms and concepts involved in negotiability cases;

 the negotiability process;

 various bases for dismissing negotiability petitions;

 some complex, substantive issues that frequently arise in negotiability cases; and

 some of the most frequently cited Authority and U.S. Court of Appeals decisions.

This Guide is not an official interpretation of the Statute or the FLRA’s 

Regulations, and is not the Authority’s official policy. It should not be considered as 

legal advice or as a substitute for adequate preparation and research by the party 

representatives. The case law in this area is constantly evolving. It is crucial that 

parties research court, Authority, and other administrative decisions that may apply to 

their particular cases. We encourage you to visit the FLRA’s web site, www.flra.gov, 

 

1 5 U.S.C. §§ 7101-7135.

2

Id. §§ 7105(a)(2)(E) & 7117(c). 

3 See 5 C.F.R. §§ 2424.2(d) & 2424.20-22.

4 5 U.S.C. § 7117(c)(6). 
2

where you can: read the Statute and the FLRA’s Regulations; download forms for

union petitions for review, agency statements of position, union responses, and agency 

replies; file any of those documents using the FLRA’s electronic-filing (eFiling) system, 

which also may be accessed through the links from the emails that the FLRA’s eFiling 

system automatically generates; and research Authority decisions in a variety of ways, 

including by using search terms. In addition, the FLRA’s web site contains other 

information that may be useful to bargaining parties, such as: the Office of the General 

Counsel’s Unfair Labor Practice Case Law Outline, which includes additional

information regarding the statutory duty to bargain; and information regarding the 

FSIP process.
3

§ 1

TERMS AND CONCEPTS

1.1 Introduction

There are various terms and concepts that parties must be familiar with in order 

to understand the negotiability process and their responsibilities under that process. 

This section discusses some of the most significant of these terms and concepts.

1.2 Proposals

A proposal is any matter offered for bargaining that the parties have not yet 

agreed to.5 A proposal is the subject of a negotiability appeal when an agency has 

declared, during bargaining6 or FSIP proceedings,7 that the proposal is outside the duty 

to bargain.8

1.3 Provisions

 

A provision is contract language that an agency and a union have agreed to 

include in their collective-bargaining agreement,

9 or that the FSIP has imposed as part 

of their agreement.

10 A provision is the subject of a negotiability appeal when the 

agency head has disapproved the agreement as allegedly contrary to law during the 

process of “agency-head review” under § 7114(c) of the Statute (which is discussed in 

section 1.12 below).

11 

1.4 How the Authority Determines the Meaning of Proposals and Provisions

Before the Authority can determine whether a proposal is within the duty to 

bargain, or whether a provision is consistent with law, the Authority must determine 

what the proposal or provision means. If the parties do not dispute the meaning of a 

proposal or provision, and that meaning is consistent with the proposal’s or provision’s 

wording, then the Authority bases its negotiability determination on the undisputed

meaning.12 In negotiability cases involving provisions, the Authority defers to the 

 

5 5 C.F.R. § 2424.2(e).

6 E.g., NTEU, 67 FLRA 24, 24 (2012) (NTEU I), pet. for review filed sub nom. NTEU v. FLRA, No. 12-2574

(D.C. Cir. Dec. 26, 2012).

7 See, e.g., NFFE, Local 422, 50 FLRA 121 (1995) (Local 422). 

8 5 C.F.R. § 2424.2(c).

9 E.g., NTEU, 65 FLRA 509, 514 (2011) (NTEU II) (Member Beck dissenting in part), review denied sub nom., 

U.S. Dep’t of the Treasury, Bureau of the Public Debt, Wash., D.C. v. FLRA, 670 F.3d 1315 (D.C. Cir. 2012).

10 E.g., POPA, 59 FLRA 331, 332 (2003) (POPA I).

11 5 C.F.R. § 2424.2(f).

12 E.g., NTEU II, 65 FLRA at 510.
4

meaning that the agency and union negotiators ascribe to it; the Authority does not 

defer to the agency head’s interpretation of it.13 

Where the parties dispute the meaning of a proposal or provision, the Authority 

looks to the proposal’s or provision’s plain wording and the union’s explanation of the 

proposal’s or provision’s meaning.14 If the union’s explanation is consistent with the 

plain wording, then the Authority adopts that explanation for the purpose of assessing 

the proposal’s or the provision’s negotiability.

15 But when a union’s explanation is 

inconsistent with the plain wording, the Authority does not adopt that explanation and, 

instead, bases the negotiability decision on the wording.16 

The meaning that the Authority adopts in resolving a negotiability case applies 

“in other proceedings, unless modified by the parties through subsequent agreement.”17 

1.5 Mandatory Subjects of Bargaining

Mandatory subjects of bargaining are subjects that, upon request, a party must

bargain over.18 These subjects include, among other things, procedures under 

§ 7106(b)(2) of the Statute and appropriate arrangements under § 7106(b)(3) of the 

Statute (unless those procedures or appropriate arrangements are contrary to some 

other law).

19 

1.6 Prohibited Subjects of Bargaining

Prohibited subjects of bargaining are subjects that parties cannot agree to, even if 

they want to, because the law prohibits them from doing so.20 For example, parties

cannot agree to matters that affect a management right under § 7106(a) of the Statute

unless those matters fit within an exception to management’s rights.21 

 

13 See id. at 514; Int’l Bhd. of Elec. Workers, Local 350, 55 FLRA 243, 244 (1999) (Local 350).

14 E.g., NAGE, Local R-109, 66 FLRA 278, 278 (2011) (Local R-109).

15 Id.

16 See, e.g., IFPTE, Local 3, 51 FLRA 451, 459 (1995).

17 NATCA, 64 FLRA 161, 161 n.2 (2009); see also Ass’n of Civilian Technicians, Volunteer Chapter 103, 55 FLRA 

562, 564 n.9 (1999).

18 See, e.g., AFGE, Local 32, 51 FLRA 491, 497 n.11 (1995).

19 See, e.g., NAIL, Local 5, 67 FLRA 85, 89-92 (2012) (Local 5) (finding proposals to be appropriate 

arrangements and procedures, and directing bargaining over them); cf. NTEU I, 67 FLRA at 27 n.9

(proposal that is a procedure or appropriate arrangement is still outside the duty to bargain if it is 

contrary to law or government-wide regulation).

20 See, e.g., AFGE, Local 32, 51 FLRA at 497 n.11. 

21 See NLRB Union, Local 21, 36 FLRA 853, 857-60 (1990).
5

1.7 Permissive Subjects of Bargaining

Sometimes parties are permitted to bargain over matters even though they are not 

required to do so. These matters are called “permissive” subjects of bargaining.22 Some 

common examples are matters set forth in § 7106(b)(1) of the Statute,

23 supervisors’ and 

managers’ conditions of employment,24 and agreements to bargain below the level of 

the agency at which bargaining between the agency and the union is required – also 

known as the “level of recognition.”25 

Agency heads cannot disapprove agreements concerning permissive subjects of 

bargaining.

26 That is, they cannot disapprove agreements merely because the agencies’

negotiators could have chosen not to bargain over the permissive subjects contained in 

those agreements.

27

 So once an agency’s negotiators have chosen to reach an agreement

concerning a permissive subject, the agency cannot later undo that choice for the 

duration of the agreement.

28 

1.8 Negotiability Disputes 

A negotiability dispute is a disagreement between a union and an agency 

“concerning the legality of a proposal or provision.”29 Such a dispute exists when a 

union “disagrees with an agency contention that . . . a proposal is outside the duty to 

bargain, including disagreement with an agency contention that a proposal is 

bargainable only at [the agency’s] election.”30 A negotiability dispute concerning a 

proposal may arise during bargaining,31 or when an agency claims, during FSIP 

proceedings, that the proposal is outside the duty to bargain.32 And negotiability 

disputes concerning provisions arise when a union “disagrees with an agency head’s 

disapproval of a provision as contrary to law.”33 

As discussed in section 4.2 below, the Statute requires agencies to bargain only 

over “conditions of employment” of bargaining-unit employees,34 so one type of 

negotiability dispute may involve a claim that a proposal does not concern such a 

 

22 See, e.g., AFGE, Local 32, 51 FLRA at 497 n.11.

23 5 U.S.C. § 7106(b)(1); see also 5 C.F.R. §§ 2424.25(c)(1)(i) & 2424.26(c)(1)(i).

24 E.g., NAGE, Local R1-109, 61 FLRA 588, 590-91 (2006).

25 E.g., NATCA, AFL-CIO, 62 FLRA 174, 182 (2007) (NATCA I).

26 E.g., NTEU II, 65 FLRA at 512. 

27 See Ass’n of Civilian Technicians, Mont. Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1155-56 (D.C. Cir. 1994).

28 Id.

29 5 C.F.R. § 2424.2(c). 

30 Id. 

31 E.g., NTEU I, 67 FLRA at 24.

32 See, e.g., Local 422, 50 FLRA at 121-22. 

33 5 C.F.R. § 2424.2(c).

34 5 U.S.C. § 7103(a)(12).
6

condition of employment. In addition, parties cannot reach agreements that are 

“inconsistent with any [f]ederal law or any [g]overnment-wide rule or regulation.”35 

Therefore, some examples of negotiability disputes include claims that proposals or 

provisions are inconsistent with: the Statute;36 a federal statute other than the Statute;37

an executive order;38 or a government-wide regulation.39 Further, as discussed in

section 4.5 below, agencies are not required to bargain over proposals that conflict with 

an agency rule or regulation for which there is a “compelling need,”40 so a negotiability 

dispute may involve a claim that a proposal is inconsistent with such a rule or 

regulation.41 

Agencies often rely on § 7106 of the Statute to claim that a proposal or provision 

is nonnegotiable.42 Thus, some common examples of negotiability disputes include 

disagreements concerning whether a proposal or provision: (1) affects a management 

right under § 7106(a); (2) involves a permissive subject under § 7106(b)(1); (3) is a 

negotiable procedure under § 7106(b)(2); or (4) is a negotiable, appropriate arrangement 

under § 7106(b)(3).

43 This Guide discusses § 7106 in section 4.3 below.

The Authority determines whether a negotiability dispute exists on a proposalby-proposal or provision-by-provision basis: If some individual proposals or 

provisions in a negotiability appeal present negotiability disputes, but others do not,

then the Authority will resolve the negotiability of only the proposals or provisions that 

present negotiability disputes.44 For example, if an agency does not challenge a 

particular proposal’s legality, but declares it outside the duty to bargain only on the 

basis of a “bargaining-obligation dispute” (defined in section 1.9 below) – such as a 

claim that the proposal is “covered by” the parties’ existing agreement (discussed in 

section 4.7(a) below) – then the Authority will not resolve whether that proposal is 

within the duty to bargain.45 Instead, the Authority will “dismiss” the union’s petition 

as to that proposal.46

 

35 Id. § 7117(a)(1). 

36 E.g., AFGE, Local 1547, 64 FLRA 813, 816-18 (2010).

37 E.g., NTEU, 66 FLRA 809, 814 (2012) (NTEU III), petition for rev. filed sub nom. Dep’t of the Treasury, IRS, 

Office of the Chief Counsel v. FLRA, No. 12-1456 (D.C. Cir. Nov. 20, 2012) (IRS v. FLRA) (proposal contrary 

to the Privacy Act).

38 E.g., NFFE, Local 1655, 49 FLRA 874, 888-90 (1994).

39 E.g., AFGE, Local 1547, 65 FLRA 911, 916-17 (2011) (Local 1547) (Member Beck dissenting in part), review 

denied sub nom., U.S. Dep’t of the Air Force v. FLRA, 680 F.3d 826 (D.C. Cir. 2012).

40 5 U.S.C. § 7117(a)(2).

41 E.g., NAGE, SEIU, Local R1-34, 43 FLRA 1526, 1529-32 (1992). 

42 See, e.g., Local 5, 67 FLRA at 86.

43 See, e.g., AFGE, Local 723, 66 FLRA 639, 643-46 (2012) (Local 723).

44 See NATCA, Local ZHU, 65 FLRA 738, 741 (2011) (Local ZHU).

45 See id.

46 See id. at 745. 
7

1.9 Bargaining-Obligation Disputes

 

A bargaining-obligation dispute is a disagreement between a union and an 

agency concerning whether, in the specific circumstances of a particular case, the parties

must bargain over a proposal that otherwise may be negotiable.47 Bargainingobligation disputes involve claims regarding whether the Statute requires bargaining –

not claims regarding whether the parties’ collective-bargaining agreement requires 

bargaining.48 Examples of bargaining-obligation disputes include agency claims that: 

(1) a proposal concerns a matter that is “covered by” a collective-bargaining agreement; 

(2) bargaining is not required over a change in bargaining-unit employees’ conditions of 

employment because the effect of the change is “de minimis”;

49 and (3) the union is 

attempting to bargain at the wrong level of the agency.50 Those three examples are 

discussed in sections 4.7(a), 4.7(b), and 4.7(c) below.

 

If a negotiability proceeding involves both a negotiability dispute and a 

bargaining-obligation dispute, then the Authority may resolve both types of disputes in 

the negotiability proceeding.51 If the Authority resolves the bargaining-obligation 

dispute, then its decision will include an order to bargain, but will not include remedies 

that could be obtained in an unfair-labor-practice (ULP) proceeding under § 7118(a)(7) 

of the Statute, such as a cease-and-desist order or an order to post a notice.

52 

If a case involves only a bargaining-obligation dispute, then the Authority will 

not resolve that dispute in a negotiability proceeding.53 Instead, the Authority will 

dismiss the petition, or the portion of the petition that presents only a bargainingobligation dispute.54 Any resolution of those disputes would need to occur in other 

proceedings, such as ULP or grievance proceedings.55 

1.10 Use of the Term “Nonnegotiable”

In the past, the Authority used the term “nonnegotiable” to refer to both 

prohibited and permissive subjects of bargaining.56 In AFGE, Local 32, the Authority 

stated that, consistent with the wording of the Statute, it would begin to describe

 

47 5 C.F.R. § 2424.2(a). 

48 E.g., NTEU, Chapter 82, 59 FLRA 627, 629 (2004). 

49 Id. 

50 Prof’l Airways Sys. Specialists, 59 FLRA 485, 488 n.4 (2003) (PASS I).

51 5 C.F.R. § 2424.30(b)(2). 

52 Id. § 2424.40(a). 

53 Id. § 2424.2(d). 

54 Id.; see also Local ZHU, 65 FLRA at 741. 

55 Cf. 5 C.F.R. § 2424.30(b)(2) (where bargaining-obligation dispute exists, Authority will inform union of 

any opportunity to file a ULP charge or grievance).

56 See AFGE, Local 32, 51 FLRA at 497. 
8

bargaining proposals as either “within or outside the duty to bargain.”57 This Guide 

often discusses proposals (which are within or outside the duty to bargain) and 

provisions (which are or are not contrary to law) together. For purposes of brevity, this 

Guide uses the term “nonnegotiable” to describe both proposals that are outside the 

duty to bargain and provisions that are contrary to law.

1.11 Allegation of Nonnegotiability

An allegation of nonnegotiability is an agency claim that a union’s proposal is 

not within the agency’s duty to bargain in good faith.58 As discussed in section 2.2(a)

below, an agency allegation must be in writing before it triggers the time limit for the 

union to file a petition for review involving a proposal.59 However, neither the Statute 

nor the Authority's Regulations requires that an allegation of nonnegotiability be made 

with any particular degree of specificity.

60 

1.12 Agency-Head Review/Disapproval

If a union and an agency reach, or the FSIP imposes, a written agreement, then

the parties must submit that agreement to the agency head.61 The agency head then 

determines whether, in his or her opinion, the agreement is consistent with law.

62 If the 

agency head determines that one or more of the provisions in the agreement is contrary 

to law, then he or she will disapprove the entire agreement in writing. This is called the 

“agency-head disapproval.”63 The agency head must issue this disapproval within 

thirty days of: the date on which the agency and the union executed the agreement;

64

or, in the case of agreements that the FSIP has imposed, “the date on which the FSIP 

decision was issued to, and served on, the parties.”65 If the agency head fails to timely 

disapprove the agreement, then the agreement takes effect and becomes binding on the 

parties, subject to the provisions of the Statute and “any other applicable law, rule, or 

regulation.”66 

An agency head’s authority to disapprove an agreement is narrower than an

agency bargaining representative’s authority to declare a proposal outside the duty to 

bargain.67 Specifically, the agency head “shall approve” agreements that are consistent 

 

57 Id. 

58 See 5 C.F.R. § 2424.2(i). 

59 See id. § 2424.21(a).

60 Prof'l Airways Sys. Specialists, 61 FLRA 97, 98 (2005) (PASS II).

61 5 U.S.C. § 7114(c)(1).

62 Id. § 7114(c)(2). 

63 E.g., NTEU II, 65 FLRA at 513. 

64 5 U.S.C. § 7114(c). 

65 AFGE, Nat’l Veterans Affairs Council, 39 FLRA 1055, 1057, reconsid. denied, 40 FLRA 195 (1991). 

66 Id. § 7114(c)(3). 

67 E.g., NTEU II, 65 FLRA at 512. 
9

with the Statute “and any other applicable law, rule, or regulation.”68 Thus, the agency 

head cannot disapprove an agreement merely because it concerns a permissive 

subject.69 And, as discussed in section 4.3(c)5.ii. below, in NTEU,

70 the Authority held 

that agency heads cannot disapprove arrangements negotiated under § 7106(b)(3) of the 

Statute unless those arrangements “abrogate” a management right.71 (Please note that, 

as of the date on the front of this Guide, this issue is on appeal to the United States 

Court of Appeals for the District of Columbia Circuit.72)

1.13 Union’s Petition for Review

A petition for review is an appeal that a union files with the Authority to request

resolution of a negotiability dispute.73 As discussed in section 2.1 below, the union’s 

petition for review initiates the negotiability process before the Authority.

74

 The 

contents of, and procedural requirements involving, union petitions for review are 

discussed in sections 2.2 and 2.4 below. 

1.14 Post-Petition Conference

After the union files its petition for review, the Authority schedules a 

“post-petition conference” – normally, a telephone conference – with the union and 

agency representatives in the case.75 Parties must: participate in these conferences (or 

designate someone to participate on their behalf); be knowledgeable about the dispute;

and have the authority to discuss and resolve matters.76 Post-petition conferences are 

discussed in section 2.5 below.

1.15 Collaboration and Alternative Dispute Resolution Office (CADRO)

CADRO, an office within the Authority, “assists parties in reaching agreements 

to resolve disputes.”77 CADRO engages in interest-based mediation and facilitation to

help parties resolve cases outside of the formal, litigative process. Participation is fully 

voluntary: Parties are not required to use CADRO’s services.

78 However, CADRO is 

often successful at helping parties resolve or at least narrow their disputes, so the 

 

68 5 U.S.C. § 7114(c)(2). 

69 E.g., NTEU II, 65 FLRA at 512. 

70 Id.

71 E.g., id. at 511-15 (Member Beck dissenting). 

72 IRS v. FLRA, No. 12-1456 (D.C. Cir. Nov. 20, 2012).

73 5 C.F.R. § 2424.2(d). 

74 Id. § 2424.22(a). 

75 Id. § 2424.23. 

76 Id. § 2424.23(b). 

77 Id. § 2424.2(b). 

78 See id. § 2424.10 (noting that CADRO will assist the parties “as agreed upon by the parties”). 
10

Authority encourages parties to consider using CADRO’s services. CADRO’s role in 

the negotiability process is discussed in section 2.5 below.

1.16 Agency’s Statement of Position

The agency’s statement of position is a document that the agency files after the 

union files its petition.79 It is typically due after the post-petition conference. The 

statement of position is where the agency must explain why it believes a proposal is 

outside the duty to bargain or why a provision is contrary to law.

80 The contents of, and 

procedural requirements involving, agency statements of position are discussed in

section 2.6 below. 

1.17 Union’s Response

The union’s response is a document that the union may file after the agency files 

its statement of position.81 The response is where the union must set forth any 

disagreements that it has with claims in the agency’s statement of position.82 The

contents of, and procedural requirements involving, union responses are discussed in 

section 2.7 below. 

1.18 Agency’s Reply

The agency’s reply is a document that the agency may file after the union files its 

response.83 Although § 7117(c) of the Statute does not expressly provide for the 

agency’s reply,

84 the Authority created this additional filing by regulation because the 

Authority recognized that a union may raise certain arguments for the first time in its 

response.85 Thus, the reply is limited to responding to the arguments raised for the first 

time in the union’s response; it cannot raise new bases for alleging that a proposal or 

provision is nonnegotiable if the agency could have raised those claims in its statement 

of position.

86 The contents of, and procedural requirements involving, agency replies 

are discussed in section 2.8 below.

 

79 Id. § 2424.24. 

80 Id. § 2424.24(a).

81 Id. § 2424.25(b). 

82 Id. §§ 2424.25(a) & 2424.25(c). 

83 Id. § 2424.26. 

84 See 5 U.S.C. § 7117(c).

85 NTEU, 66 FLRA 892, 899 (2012) (NTEU IV), pet. for review filed sub nom. U.S. DHS, U.S. CBP v. FLRA, No. 

12-1457 (D.C. Cir. Nov. 19, 2012). 

86 5 C.F.R. § 2424.26(a); see also id. § 2424.26(c) (an agency “must limit” its reply to matters that the union 

raised for the “first time” in its response); NTEU IV, 66 FLRA at 899. 
11

1.19 Parties’ Burdens (and Failure to Meet Burdens)

Each party in a negotiability case is responsible for creating a record and 

supporting its arguments.87 The union has the burden of raising and supporting 

arguments that: (1) a proposal is within the duty to bargain (or negotiable at the 

agency’s election, if it is making such a claim), or a provision is not contrary to law; and

(2) if the union is requesting “severance” (discussed in section 1.20 below), why 

severance is appropriate.88 The agency has the burden of raising and supporting 

arguments that: (1) the proposal is outside the duty to bargain, or the provision is 

contrary to law; and (2) where applicable, why severance is not appropriate.89 

Where appropriate, the Authority will consider a party’s failure to raise and 

support an argument to be a waiver of that argument.90 And, where appropriate, if one 

party fails to respond to another party’s argument or assertion, then the Authority will 

treat that failure to respond as a concession of that agreement or assertion.

91 Further, if 

a party makes an argument but fails to support it, then the Authority may reject that

argument as a “bare assertion.”92

Absent good cause, if a union could have made, but did not make, an argument 

in its petition for review or its response, then the union cannot make that argument at

any other stage of the negotiability proceeding, or in “any other proceeding.”93 

Similarly, absent good cause, if an agency could have made, but did not make, an 

argument in its statement of position or its reply, then the agency cannot make that 

argument at any other stage of the negotiability proceeding, or in “any other 

proceeding.”94 

1.20 Severance

Sometimes a union may want to know – in the event that the Authority finds the 

union’s proposal or provision nonnegotiable as a whole – whether particular portions of 

its proposal or provision are nonetheless negotiable.95 In that situation, the union 

 

87 See, e.g., NTEU IV, 66 FLRA at 898-99; AFGE, AFL-CIO, Local 53, 42 FLRA 938, 958-59 (1991). 

88 5 C.F.R. § 2424.32(a). 

89 Id. § 2424.32(b). 

90 Id. § 2424.32(c)(1); see also AFGE, Local 1938, 66 FLRA 1038, 1040 (2012); AFGE, Council of Prison Locals 33, 

Local 506, 66 FLRA 929, 940-41 (2012) (Local 506). 

91 5 C.F.R. § 2424.32(c)(2); see also NATCA, 66 FLRA 213, 216 (2011) (NATCA II) (union’s failure to dispute 

agency claim that proposal affected management right was a concession that the proposal had the alleged 

effect). 

92 E.g., NFFE, Fed. Dist. 1, Local 1998, IAMAW, 66 FLRA 124, 128 (2011) (Local 1998).

93 5 C.F.R. § 2424.32(c)(1)(i). 

94 Id. § 2424.32(c)(1)(ii). 

95 Cf. AFGE, Local 1164, 65 FLRA 836, 840 n.3 (2011) (finding it unnecessary to resolve union’s severance 

request because proposal as a whole was within the duty to bargain).
12

should request “severance” of the proposal or provision. Section 2424.2(h) of the 

Authority’s Regulations96 defines “severance” as 

A union may request severance in either its petition for review or its response.97 

If it does so, then it must explain how each severed portion of the proposal or provision 

may stand alone and operate.98 The union must also meet the requirements for specific 

information set forth in § 2424.22(b) (for requests made in petitions),99 and § 2424.25(c)

(for requests made in responses),

100 of the Authority’s Regulations. 

If a union has requested severance, and the agency opposes the union’s request, 

then the agency must explain with specificity why it believes that severance is not 

appropriate.101 If the agency’s statement of position opposes severance, then the 

union’s response must respond to the agency’s arguments.102 

1.21 Hearing Requests and Other Factfinding Procedures

Under § 2424.31 of the Authority’s Regulations, the Authority may engage in 

various factfinding procedures in a negotiability case, including: directing the parties to 

provide specific documents;

103 directing the parties to provide answers to specific 

factual questions;104 referring the matter to a hearing;

105 or taking “any other 

 

96 5 C.F.R. § 2424.2(h).

97 Id. §§ 2424.22(c) & 2424.25(d). 

98 Id. 

99 Id. § 2424.22(c).

100 Id. § 2424.25(d).

101 Id. §§ 2424.24(d) & 2424.26(d). 

102 Id. § 2424.25(d). 

103 Id. § 2424.31(a).

104 Id. § 2424.31(b).

the division of a proposal or provision 

into separate parts having independent 

meaning, for the purpose of determining 

whether any of the separate parts is 

within the duty to bargain or is contrary 

to law. In effect, severance results in the 

creation of separate proposals or 

provisions. Severance applies when 

some parts of the proposal or provision 

are determined to be outside the duty to 

bargain or contrary to law.
13

appropriate action.”106 Either party may request a hearing, but the requesting party 

must give the reasons for its request.107 And the standard for granting a hearing request 

is high: The Authority will do so “[w]hen necessary to resolve disputed issues of material 

fact.”108 Absent a hearing or other factfinding procedure, the Authority bases its 

decision on the documents in the record.

1.22 Other Avenues for Resolving Negotiability Issues

Section 7105(a)(2)(E) of the Statute authorizes the Authority to “resolve issues 

relating to the duty to bargain in good faith under [§] 7117(c)” of the Statute.

109 The 

Authority has held that, consistent with § 7105(a)(2)(E), only the Authority may resolve 

negotiability disputes that arise under § 7117(c).

110 

Consistent with these principles, the FSIP and interest arbitrators cannot make 

negotiability determinations to resolve questions concerning the duty to bargain, unless 

the Authority previously has resolved “substantively identical” duty-to-bargain 

issues.111 By contrast, grievance arbitrators and the FLRA’s administrative law judges 

may resolve negotiability issues in the course of resolving duty-to-bargain questions.112 

But their decisions must be consistent with the Statute and Authority precedent.113 

 

105 Id. § 2424.31(c).

106 Id. § 2424.31(d). 

107 Id. §§ 2424.22(b)(4) & 2424.24(c)(4). 

108 Id. § 2424.31 (emphases added); see also, e.g., NAIL, Local 7, 64 FLRA 1194, 1194 (2010); AFGE, 

Local 2280, Iron Mountain, Mich., 57 FLRA 742, 742 n.1 (2002). 

109 5 U.S.C. § 7105(a)(2)(E). 

110 E.g., U.S. DOD, Def. Logistics Agency, Def. Distrib. Depot, New Cumberland, Pa., 58 FLRA 750, 755 (2003). 

111 E.g., AFGE, AFL-CIO, Dep’t of Educ. Council of AFGE Locals, 42 FLRA 1351, 1353-55 (1991) (AFGE Locals); 

Commander, Carswell Air Force Base, Tex., 31 FLRA 620, 624 (1988). 

112 See NTEU, 64 FLRA 443, 446-47 (2010) (NTEU V) (involving alleged ULPs); GSA, 54 FLRA 1582, 1587-

89 (1998) (involving alleged contractual-bargaining obligation). 

113 E.g., AFGE Locals, 42 FLRA at 1353; Louis A. Johnson Veterans Admin. Med. Ctr., Clarksburg, W. Va., 

15 FLRA 347, 351 (1984).
14

§ 2

THE NEGOTIABILITY PROCESS

2.1 Union Files Petition for Review

A union’s petition for review initiates the negotiability process with the 

Authority.114 Only a union representative – not an agency representative or any other 

individual – may file a petition.115 

2.2 Time Limit for Filing Petition

The time limit for filing a petition depends on: (1) whether the petition involves 

proposal(s) or provision(s); and (2) what prompts the filing. 

(a) Proposals

As explained in sections 2.2(a)1., 2.2(a)2., and 2.2(a)3. below, there are several 

events that can prompt the filing of a negotiability appeal of disputed proposals. But 

please note, at the outset, that in cases involving proposals, § 7117(c)(2) of the Statute

requires the union to file its petition with the Authority “on or before the [fifteenth] day 

after the date on which the agency first makes the allegation” of nonnegotiability,116 and 

the Authority may not extend or waive this time limit.

117 So if a petition is filed too late, 

then the Authority will dismiss it with prejudice – in other words, the union will not be 

able to refile it.118 

1. Union requests, in writing, a written allegation of nonnegotiability,

and agency responds

If a union asks an agency, in writing, to provide the union with a written

allegation of nonnegotiability,

119 and the agency provides such a written allegation,120

then the union must file its petition with the Authority within fifteen days after the date

on which the agency served the union with the written allegation.

121

 

114 5 C.F.R. § 2424.22(a). 

115 Id. § 2424.20. 

116 5 U.S.C. § 7117(c)(2).

117 5 C.F.R. § 2429.23(d); AFGE, Local 3407, 41 FLRA 265, 270 (1991). 

118 AFGE, Local 3529, 58 FLRA 151, 151-52 (2002) (AFGE 3529) (denying reconsideration of Authority order 

dismissing petition as untimely where it was filed more than fifteen days after union received agency’s 

written allegation of nonnegotiability).

119 5 C.F.R. § 2424.11(a).

120 Id. § 2424.11(b).

121 Id. § 2424.21(a); see also 63 Fed. Reg. 66,405-07 (1998) (stating Authority’s intention, in revising its 

negotiability Regulations, to retain procedure of both requesting and providing allegations of 

nonnegotiability in writing). 
15

In cases where a union requests a written allegation and the agency provides 

one, the union must include with its petition: (1) a copy of the agency’s written 

allegation; and (2) a copy of the union’s written request, if the agency’s allegation does 

not indicate the date of the union’s request.

2. Union requests, in writing, a written allegation of nonnegotiability, and

agency does not respond

If a union asks an agency, in writing, to provide the union with a written

allegation of nonnegotiability,122 and the agency does not respond in writing, then the 

union may file a petition at any time.

123 But the union must give the agency ten days to 

respond to the union’s written request. 

If the union chooses to file a petition in a situation where the agency provides no 

written allegation of nonnegotiability, then the union must include with its 

petition evidence that it requested such a written allegation (for example, a copy of the 

union’s written request) and allowed ten days for the agency to respond. If the union 

doesn’t do this, then any union petition filed during that period will be considered 

premature. In that situation, the Authority will issue an order to show cause why the 

petition should not be dismissed without prejudice to the union’s right to refile at a 

later, appropriate time.

3. Agency provides a written, unrequested allegation of nonnegotiability

Where the union has not asked the agency to provide it with a written allegation 

of nonnegotiability, but the agency does so anyway, this is called an unrequested 

allegation of nonnegotiability.124 In this case, the union has two options.

The union’s first option is to file its petition.125 If it chooses this option, then it 

must file its petition (including a copy of the agency’s written allegation) within fifteen 

days of receiving the allegation. If it fails to file within fifteen days, then the Authority 

will dismiss the petition, with prejudice, as untimely.126 (See section 2.14 below for 

further discussion of what happens when parties fail to comply with the Authority’s 

procedural and other requirements.) 

The union’s second option is to ignore the unrequested allegation, continue 

bargaining with the agency (if it so chooses), and later request, in writing, a written 

 

122 5 C.F.R. § 2424.11(a).

123 Id. § 2424.21(b).

124 Id. § 2424.11(c). 

125 Id.; AFGE, Local 3928, 66 FLRA 175, 175 (2011) (Local 3928). 

126 5 C.F.R. §§ 2424.11(c) & 2424.21(a); Local 3928, 66 FLRA at 175.
16

allegation of nonnegotiability from the agency.127 If the union chooses this option, then 

the time limit for filing its petition depends on what the agency does. If the agency

provides the union with a written allegation of nonnegotiability, then the union must

file its petition (including a copy of the agency’s written allegation) within fifteen days 

of receiving that allegation.128 But if the agency does not provide a written allegation, 

then the union may file its petition at any time after the ten-day period expires.129 

Moreover, if an agency serves a union with an unrequested allegation of 

nonnegotiability while the parties are before the FSIP, then the union has the same two 

options: (1) respond to the unrequested allegation of nonnegotiability and timely file a 

petition (including a copy of the agency’s written allegation) with the Authority; or 

(2) ignore the unrequested allegation of nonnegotiability made before the FSIP, later 

make a written request for a written allegation of nonnegotiability from the agency, and 

timely file its petition with the Authority.130 Please note that, as discussed in 

section 1.22 above, the FSIP may resolve certain negotiability disputes. So if the union 

chooses not to file a petition in response to an agency’s unrequested allegation of 

nonnegotiability, then the union runs the risk that the FSIP or an FSIP-directed 

arbitrator may resolve the dispute. More information regarding the FSIP can be found 

on the FLRA’s web site.

4. Allegations of nonnegotiability, and requests for such allegations, must be

in writing

If the agency claims only orally, and not in writing, that a proposal is outside the 

duty to bargain, then the union cannot file a petition. But a union may trigger its ability 

to file a petition by asking the agency, in writing, for a written allegation of 

nonnegotiability. And if, after ten days, the agency has not provided a written 

allegation, the union may file its petition with the Authority.

Union requests for agency allegations also must be in writing. If a union files a 

petition but provides no evidence that it made a written request for an agency 

allegation, then the Authority may find the union’s petition premature. 

(b) Provisions

 As discussed in section 1.12 above, if a union and an agency reach a written 

agreement, or the FSIP imposes one on them, then the agency head must review that 

 

127 5 C.F.R. § 2424.11(c); Local 3928, 66 FLRA at 175. 

128 5 C.F.R. § 2424.21(a). 

129 Id. § 2424.21(b).

130 See, e.g., Local 422, 50 FLRA at 121-22; AFGE, Nat’l Border Patrol Council & Nat’l INS Council, 40 FLRA 

521, 523-24 (1991), rev’d on other grounds sub nom., U.S. DOJ, INS v. FLRA, 975 F.2d 218 (5th Cir. 1992).
17

agreement.131 If the agency head timely disapproves the agreement (within thirty days 

of the agreement’s execution),

132 then the union must file its petition for review with the 

Authority within fifteen days of service of the disapproval.

133 Please note that if a union 

files a petition for review in response to an untimely agency-head disapproval, then the 

Authority will dismiss the petition. This is because, without a timely agency-head 

disapproval, the agreement automatically goes into effect on the thirty-first day after its 

execution,

134 and there is no negotiability dispute that the Authority may address under 

§ 7117 of the Statute.

135 

(c) Date of service of allegation of nonnegotiability or agency-head

disapproval

As discussed above, a union’s petition must be filed within fifteen days of either: 

service of the agency’s allegation of nonnegotiability on the union (in proposal cases),136

or service of an agency head’s disapproval (in provision cases).137 The date of service of 

the agency’s allegation or disapproval is the date on which the allegation or disapproval 

is: deposited in the U.S. mail; delivered in person; deposited with a commercialdelivery service that will provide a record showing the date on which the document 

was given to the delivery service; or transmitted by email (where the receiving party 

has agreed to be served by email).138 If the allegation or disapproval is served by mail 

or commercial delivery, then five days are added to the period for filing the petition

(unless the allegation or disapproval also has been served on the same or previous day 

by a non-mail or non-commercial delivery method such as email).

139 The Authority 

may not extend or waive the time limit for filing a petition for review.140 

 

131 5 U.S.C. § 7114(c)(1). 

132 See id.

133 5 C.F.R. § 2424.21(a)(2). 

134 5 U.S.C. § 7114(c)(3).

135 See, e.g., AFGE, Local 1770, 64 FLRA 953, 953 (2010); AFGE, Local 1301, 51 FLRA 1294, 1297 (1996). 

136 5 C.F.R. § 2424.21(a)(1).

137 Id. § 2424.21(a)(2). 

138 Id. § 2429.27(d). 

139 Id. § 2429.22. 

140 Id. § 2429.23(d). 
18

2.3 Diagram Summarizing Pre-Petition Process

The following diagram summarizes the various scenarios that may lead to a

union filing a petition for review:

2.4 Format and Content of the Petition

A union may file its petition by using either: (1) an Authority form, available at 

www.flra.gov/authority_forms (or through the FLRA’s eFiling system); or (2) plain 

paper, and providing the same information that the Authority form requests. Although 

unions are not required to use the Authority form, the Authority encourages them to do 

so because the form is a useful guide and reminds them to provide all of the required 

information. If a union fails to provide all of the required information, then the 

Authority may dismiss the petition. 

As noted previously, in a case involving a proposal, a union must include with

its petition: (1) a copy of the agency’s written allegation of nonnegotiability, if the 
19

agency has provided one; or (2) evidence that the union requested such an allegation, if 

the agency has not provided one. In a case involving a provision, the union must 

include a copy of the agency-head disapproval. And in both types of cases, the petition

must also contain the following: 

 The exact wording of the proposal(s) or provision(s) that has been 

declared nonnegotiable, and an explanation of the proposal’s or the 

provision’s meaning.141 If there are any special terms that would not be 

familiar to people who don’t work at the agency where the union 

represents employees, then the union must explain what those terms

mean.

142 The union also must explain how the proposal or provision

works and what impact it would have.143 

 Citations to any laws, regulations, or decisions that support the union’s 

arguments.

144 Although the union is not required to provide actual copies 

of cited materials that are easily available to the Authority (such as 

provisions of the U.S. Code or Authority decisions), it should provide 

copies of materials that may not be easily available to the Authority (such 

as internal agency regulations, orders, or directives).

145 

 A statement as to whether the disputed wording is also involved in a ULP 

proceeding, a grievance, an impasse procedure, or another negotiability 

petition.146 

 A statement as to whether the union is requesting a hearing before the 

Authority, and the reasons supporting that request.

147 

 A statement as to whether the union is requesting severance of any 

proposal or provision, and, if so, a statement of the wording, meaning, 

and operation of the severed portions148 (although, as noted previously, 

the union may wait until its response to request severance149). 

 

141 Id. § 2424.22(b)(1).

142 Id. 

143 Id.

144 Id. § 2424.22(b)(2). 

145 Id.

146 Id. § 2424.22(b)(3).

147 Id. § 2424.22(b)(4). 

148 Id. § 2424.22(c).

149 Id. § 2424.25(d).
20

 The names, addresses, telephone numbers, and fax numbers of the union 

and agency representatives – both the agency’s principal bargaining 

representative and the agency head (or his or her designee).150 

 A statement of service indicating that the union has served the petition, 

and all attachments to the petition, on the agency’s principal bargaining 

representative and the agency head (or his or her designee).151 

See section 2.13 below for further discussion of the statement-of-service 

requirement. 

2.5 CADRO and the Post-Petition Conference

Generally, after the union files its petition – and corrects any procedural 

deficiencies in the petition – a representative of the Authority’s CADRO will contact the 

parties to determine whether they are interested in resolving their dispute using 

interest-based mediation and facilitation. But parties also may call CADRO at 

(202) 218-7933, or email CADRO at CADRO@flra.gov. The CADRO process is 

voluntary for both parties.152 If both parties agree to use it, then the Authority will hold 

the negotiability process “in abeyance,” and will suspend any deadlines for filing 

additional documents in the formal negotiability process.153 If the parties do not 

successfully resolve their dispute during the CADRO process (or resolve only part of it), 

then the negotiability process resumes.154 

In addition, almost immediately after the Authority receives the petition –

assuming that there are no procedural deficiencies in the petition – the Authority 

schedules the post-petition conference, which is described in section 1.14 above. The 

Authority will fax and mail to the parties a notice of the conference, which will set forth 

a specific date and time for the conference – usually within ten days after the Authority 

receives the union’s petition.155 Post-petition conferences are normally held by 

telephone, so the notice of the post-petition conference typically includes a toll-free 

number and instructions on how to make the call. If the parties agree to use CADRO 

before the conference, then the Authority will cancel the conference.

 

150 See Petition for Review of Negotiability Issues – Proposals; Petition for Review of Negotiability Issues –

Provisions.

151 5 C.F.R. §§ 2424.2(g) (requiring service of all documents filed with the Authority on the other party’s 

principal bargaining representative, and, for unions, also on the agency head (or his or her designee)); 

2424.22(d) (requiring service consistent with § 2424.2(g)) & 2429.27 (describing methods of service and 

requiring submission of a statement of service).

152 Id. § 2424.10. 

153 AFGE, Council of Prison Locals 33, 65 FLRA 142, 142 (2010) (Locals 33). 

154 See, e.g., id. (resolving remaining dispute that parties had not resolved through CADRO process). 

155 5 C.F.R. § 2424.23. 
21

If the parties do not agree to use CADRO, or the case is not otherwise resolved, 

before the conference, then the parties must participate in the conference.156 If a union 

fails to participate, then the Authority may, in its discretion, dismiss the union’s 

petition.

157 And, if an agency doesn’t participate, then the Authority may, in its 

discretion, order the agency to bargain over the disputed proposal(s) or withdraw its 

disapproval of the disputed provision(s).

158

If the designated union or agency representative is not available, then the union 

or agency should designate another person to participate in the conference. The 

Authority will reschedule conferences only on very rare occasions. In those unusual 

circumstances where a party needs to reschedule, the requesting party must submit a 

written request to the Authority’s Office of Case Intake and Publication at least five 

calendar days before the scheduled conference, and the request must state the other 

party’s position on whether to reschedule the conference.

159 The party may fax the

request to (202) 482-6657.160 Absent extraordinary circumstances, the Authority will not 

consider requests to reschedule that the Authority receives fewer than five calendar 

days before the scheduled conference.161 If the union and the agency agree to a 

postponement, then the written request should set forth alternate dates and times on 

which both parties are available. But even if the parties agree to a postponement, the 

Authority may deny the request if there is not a good reason to postpone.162 

The purpose of the conference is to: (1) ensure that the parties have a common 

understanding of the meaning and impact of the proposal(s) or provision(s) at issue; 

(2) determine whether there are factual disputes concerning the proposal or provision; 

and (3) discuss other relevant matters.163 To those ends, the parties’ representatives to 

the conference must be prepared to discuss, clarify, and resolve matters including: 

 The meaning of the proposal(s) or provision(s) in dispute;

 Any disputed factual issues;

 Negotiability and bargaining-obligation claims regarding the proposal(s) or 

provision(s); and

 

156 Id. § 2424.32(d). 

157 Id. 

158 Id. But see Fed. Educ. Ass’n, Stateside Region, 56 FLRA 473, 473-74 (2000) (finding that, in the 

circumstances of the case, union’s failure to participate in post-petition conference was not “so egregious 

as to warrant dismissal of the petition for review”).

159 5 C.F.R. § 2429.23. 

160 Id. § 2429.24(g)(1). 

161 Id. § 2429.23. 

162 Id.

163 Id. § 2424.23(b). 
22

 Whether the proposal(s) or provision(s) is, or has been, the subject of: (1) a 

ULP charge under part 2423 of the Authority’s Regulations; (2) a grievance 

under the parties’ negotiated grievance procedure; or (3) an impasse 

procedure under part 2470 of the Authority’s Regulations.

164

The Authority representative’s primary role during the conference is to obtain 

facts regarding all of the above matters. The representative will also discuss whether 

the parties wish to receive assistance from the Authority’s CADRO. (Even if CADRO

already has contacted the parties, and the parties have declined CADRO’s services, the 

Authority representative will ask them again. And even if the parties agree, during the 

conference, to use CADRO, the Authority representative will continue to conduct the 

conference.) In addition, the Authority representative will facilitate the discussion 

between the parties and seek out areas of possible agreement – including determining 

whether the wording of proposals or provisions may be modified to remove the 

agency’s objections.

165 And although the Authority representative will discuss the 

agency’s objections to the proposal or provision, the agency is not bound by – and the 

written record of the conference will not contain – the objections that the agency raises 

during the conference. Instead, as discussed in section 2.6 below, the agency must raise, 

in its statement of position, all of its objections to the proposal or provision.

166

The Authority representative conducting the conference may grant extensions of 

time for future filings but may not waive time limits that have already expired. A party 

requesting a waiver of an expired time limit must make its request in writing to the 

Authority, and the request must: (1) demonstrate “extraordinary circumstances” for the 

waiver; and (2) state the position of the other party or parties with respect to the waiver 

request.167 

After the conference, the Authority representative will prepare a written record 

of the conference, which the Authority will serve on the parties by fax and certified 

mail.

168 This becomes a part of the official record in the case. 

2.6 Agency’s Statement of Position

In most cases, the agency’s statement of position is due after the post-petition 

conference has been held.169 An agency may file its statement of position by using 

either: (1) an Authority form, available at www.flra.gov/authority_forms (or through 

the FLRA’s eFiling system); or (2) plain paper, and providing the same information that 

 

164 Id.

165 See, e.g., Local 3928, 66 FLRA at 176. 

166 5 C.F.R. § 2424.24(a). 

167 Id. § 2429.23(b).

168 Id. § 2424.23(c). 

169 Id. § 2424.24. 
23

the Authority form requests. The agency must file its statement with the Authority 

within thirty days from when the agency head receives the union’s petition for review, 

unless the Authority or its representative grants a request for an extension of time.170 

In the statement, the agency must make all of its arguments as to why a proposal 

is outside the duty to bargain or why a provision is contrary to law.

171 In addressing a 

proposal’s or a provision’s negotiability, the Authority generally will address only the 

arguments that the agency makes in its statement of position – not the claims that it 

made in its allegation of nonnegotiability172 or the arguments that it made during the 

post-petition conference. In addition, if the agency disagrees with the union’s 

statements as to the meaning or impact of a proposal or provision, then the agency must 

state its views regarding the meaning or impact of the contract language.173 Further, if 

the agency disagrees with the union’s request for severance, then it should explain all 

the reasons for its position.174 If the agency fails in its statement to respond to any of the 

claims in the union’s petition, then the Authority may find that the agency has 

conceded those claims.175 

Although agencies are not required to use the Authority form, the Authority 

encourages them to do so because the form is a useful guide and reminds them to 

provide all of the required information.

2.7 Union’s Response

If the union wants to dispute any of the claims in the agency’s statement of 

position, then the union must file a response within fifteen days of receiving the 

agency’s statement.176 The union may file its response by using either: (1) an Authority 

form, available at www.flra.gov/authority_forms (or through the FLRA’s eFiling 

system); or (2) plain paper, and providing the same information that the Authority form 

requests.177 If the union fails to respond to claims in the agency’s statement, then the 

Authority may find that the union has conceded the agency’s claims.178 For example, if 

the agency has argued that a proposal or provision affects a management right under 

§ 7106(a) or § 7106(b)(1) of the Statute, then the union must provide any arguments that 

the proposal or provision does not affect the cited rights, is a negotiable procedure 

under § 7106(b)(2), is an appropriate arrangement under § 7106(b)(3),

179 or (for 

 

170 Id. § 2424.24(b). 

171 Id. § 2424.24(a). 

172 Cf. PASS II, 61 FLRA at 98 (agency required to make claims in statement of position).

173 5 C.F.R. § 2424.24(c)(2).

174 Id. § 2424.24(d). 

175 Id. § 2424.32(c)(2); Local 5, 67 FLRA at 89.

176 5 C.F.R. § 2424.25. 

177 Id. § 2424.25(c). 

178 Id. § 2424.32(c)(2); see also AFGE, Local 1938, 66 FLRA at 1040. 

179 E.g., 5 C.F.R. § 2424.32(c)(2). 
24

management rights under § 7106(a)(2)) enforces an applicable law. If the union fails to 

provide any of these arguments, then the Authority may find that the union has 

conceded that the proposal or provision is nonnegotiable on management-rights 

grounds.180 Further, if the union has not already requested severance in its petition, or 

wishes to modify an existing severance request, then it may do so in its response.181 

Although unions are not required to use the Authority form, the Authority 

encourages them to do so because the form is a useful guide and reminds them to 

provide all of the required information. 

2.8 Agency’s Reply

The agency may file a reply to the union’s response within fifteen days after the 

agency receives a copy of the response.182 As noted in section 1.18 above, although 

§ 7117(c) of the Statute does not expressly provide for an agency’s reply, the Authority 

created this additional filing by regulation because the Authority recognized that a

union may raise certain arguments “for the first time” in its response.183 So the agency

must limit its reply to “any facts or arguments made for the first time” in the union’s

response.184 For example, if the union argues in its response that a proposal or 

provision is negotiable under § 7106(b)(2) or § 7106(b)(3) of the Statute, then the agency 

may reply to the union’s argument.185 Or if the union requests severance for the first 

time in its response, or modifies a severance request from its petition, and the agency 

opposes the request, then the agency must explain with specificity why severance is not 

appropriate.186 But an agency cannot raise new bases for alleging that a proposal or 

provision is nonnegotiable if the agency could have raised those claims in its statement 

of position.187

The agency may file its reply by using either: (1) an Authority form, available at 

www.flra.gov/authority_forms (or through the FLRA’s eFiling system); or (2) plain 

paper, and providing the same information that the Authority form requests. Although 

agencies are not required to use the Authority form, the Authority encourages them to 

do so because the form is a useful guide and reminds them to provide all of the 

required information.

 

180 E.g., id. 

181 Id. § 2424.25(d).

182 Id. § 2424.26. 

183 NTEU IV, 66 FLRA at 899. 

184 5 C.F.R. § 2424.26(a); see also id. § 2424.26(c) (an agency “must limit” its reply to matters that the union 

raised for the “first time” in its response). 

185 Id. § 2424.26(c)(1)(ii)-(iii). 

186 Id. § 2424.26(d). 

187 Id. § 2424.26(a); see also id. § 2424.26(c); NTEU IV, 66 FLRA at 899.
25

2.9 Diagram Summarizing Parties’ Filings With the Authority

The following diagram summarizes the parties’ standard filings with the 

Authority in a negotiability case:

2.10 Other Filings and Amicus Curiae Petitions

The four submissions described above – the union’s petition for review, the 

agency’s statement of position, the union’s response, and the agency’s reply – are the 

only submissions that the parties to negotiability cases are specifically authorized to file 

under the Authority’s Regulations. But if either party makes a written request and 

shows “extraordinary circumstances” for filing a supplemental document other than

those four filings, then the Authority may consider it.

188 Parties are encouraged to 

submit, along with their request, the supplemental document that they want the 

Authority to consider. 

In addition, non-parties who are “interested person[s]” may petition the 

Authority for permission to present written or oral arguments as “amicus curiae.”189 

The Authority may grant the petition if the Authority deems it “appropriate” to do 

so.190 

 

188 5 C.F.R. § 2424.27. 

189 Id. § 2429.9.

190 Id.
26

2.11 Where and How to File

Parties may file all of the documents discussed above: in person;

191 by 

commercial delivery;

192 by first-class mail;193 by certified mail;194 or (for union petitions, 

agency statements of position, union responses, and agency replies) electronically

through the FLRA’s eFiling system, which may be accessed at www.flra.gov/eFiling or 

through the links from the emails that the eFiling system automatically generates.

195

With the exception of documents that are eFiled, all documents filed with the 

Authority should be submitted to the Chief, Case Intake and Publication (CIP), Federal 

Labor Relations Authority, Docket Room, Suite 200, 1400 K Street NW, Washington, DC 

20424-0001.196 CIP’s telephone number is (202) 218–7740, and it is open between 9 a.m. 

and 5 p.m. Eastern Time (E.T.), Monday through Friday (except federal holidays). 

If you file documents by hand delivery, then you must present those documents 

in the Docket Room no later than 5 p.m. E.T., if you want the Authority to accept those 

documents for filing on that day.197 And if you want CIP to date-stamp a copy of your 

filing for your own records, then you must bring with you an extra copy of the filing for 

that purpose.

If you eFile documents, then you may file those documents on any calendar day

– including Saturdays, Sundays, and federal holidays.

198 The Authority will consider 

those documents filed on a particular day if you file them at any time up until midnight 

E.T. on that day.199 Please note that even though you may eFile documents on 

Saturdays, Sundays, and federal holidays, you are not required to do so.200

You cannot file any documents with the Authority by email.

201 And you cannot file 

petitions for review, statements of position, responses, and replies with the Authority 

by fax.202 

 

191 Id. § 2429.24(e).

192 Id.

193 Id.

194 Id.

195 Id. § 2429.24(f).

196 Id. § 2429.24(a). 

197 Id.

198 Id. 

199 Id. 

200 Id.

201 Id. 

202 Id. § 2429.24(g). 
27

2.12 “Service” Required

If parties file anything with the Authority, then they must provide – or “serve” –

each other’s principal bargaining representatives with a copy of everything they file.

203 

In addition, unions also must serve the agency head (or his or her designee).204 Failure 

to meet these requirements will result in the Authority issuing deficiency orders, which 

will slow down the processing of the case. As discussed in section 2.14 below, failure to 

comply with deficiency orders may also result in dismissal of the union’s petition or 

rejection of other documents. 

Acceptable methods for “serving” documents on the other party are: certified 

mail; first-class mail; commercial delivery; in-person delivery; or email, but only if the 

other party has consented to email service.

205

 Fax is not an acceptable method of service

for petitions, statements of position, responses, or replies.

206 But it is an acceptable 

method of service for motions (for example, motions for extensions of time, requests to 

reschedule post-petition conferences), where fax equipment is available.207 

See section 2.13 below for further discussion of the service requirement (and the 

requirement that parties provide a statement of service). 

2.13 Additional Procedural Requirements

In addition to the requirements discussed above, when you file a petition for 

review, statement of position, response, or reply, you must:

 Submit one original plus four copies of anything that you file, with certain 

exceptions, such as eFiled and faxed documents;208

 Submit a table of contents if your document exceeds ten double-spaced pages, 

with the exception of fillable forms in the eFiling system;209 and

 Serve all counsel of record and submit a signed statement of service or, for eFiled 

documents, certify in the FLRA’s eFiling system that you have completed such 

service. Please note, in this regard, that if you file your document through the 

FLRA’s eFiling system, then you will be asked to certify that you have served the 

other party(ies), the manner in which you served them, and the date on which 

you served them before you will be able to “file” your document in the eFiling 

 

203 Id. §§ 2424.2(g), 2424.22(d), 2424.24(e), 2424.25(e), 2424.26(e) & 2429.27.

204 Id. § 2424.2(g); see also id. §§ 2424.22(d) & 2424.25(e). 

205 Id. § 2429.27(b). 

206 Id. 

207 Id. §§ 2429.24(g) & 2429.27(b)(5).

208 Id. § 2429.25.

209 Id. § 2429.29.
28

system.210 This allows the eFiling system to generate a statement of service for 

you. Also please note that, even if you eFile, you still must actually serve all 

counsel of record; the certification in the eFiling system is not sufficient by 

itself.211

2.14 Noncompliance with Procedural and Other Requirements

If a party does not comply with the Authority’s Regulations or requirements, and 

that noncompliance is minor or technical, then the Authority may issue a deficiency 

order that allows the party to correct the mistake. Some examples are: failure to serve 

the agency head or agency head’s designee; serving the opposing representative at an 

incorrect address; failure to set forth the exact wording of the disputed proposals or 

provisions; failure to indicate whether the disputed wording is directly related to 

another proceeding; and failure to provide a statement of service. If a party fails to 

comply with a deficiency order, then the Authority will issue an order to show cause 

why a case should not be dismissed.

In addition to situations where a party fails to comply with a deficiency order, 

the Authority may issue an order to show cause why a case should not be dismissed

when, for example, it appears that the union’s petition: is untimely; was filed by 

someone other than a union representative; is premature because the union filed it 

before the agency had ten days to respond to the union’s written request for an 

allegation of nonnegotiability; does not present a negotiability dispute because the 

agency’s written allegation raises only a bargaining-obligation dispute; or is directly

related to a pending ULP proceeding or grievance involving a ULP, as discussed in 

section 3.6 below. With respect to the last example, the Authority also may issue an 

order to show cause if the union claims that the petition is directly related to a pending 

ULP or grievance involving a ULP, but the Authority is unable to determine whether 

that is actually the case because the union did not provide a copy of the ULP charge or 

the grievance. 

 

As discussed in section 2.2(a) above, if a union’s petition is untimely, then the 

Authority will dismiss the petition with prejudice.212 And a union’s or an agency’s 

failure to respond to, and comply with, an Authority order may adversely affect the 

union or the agency.213 In this regard, if a union doesn’t respond or comply, then the 

Authority may dismiss its petition; if an agency doesn’t respond or comply, then the 

Authority may order it to bargain over a disputed proposal or withdraw its disapproval 

of a disputed provision.214 

 

210 Id. § 2429.27(c). 

211 Id. § 2429.27.

212 E.g., AFGE 3529, 58 FLRA at 151-52. 

213 5 C.F.R. § 2424.32(d). 

214 Id. 
29

2.15 Authority’s Decision and Order

The Authority will issue a written decision that explains the specific reasons for 

its conclusions.

215 The decision will also include an order that varies depending on 

whether the case concerns proposals or provisions.216 

In cases involving proposals, if the Authority finds that a proposal is within the 

duty to bargain, then it will order the agency to bargain with the union upon request.217

In doing so, the Authority makes no judgment as to the proposal’s merit218 – in other 

words, the Authority will not decide whether the parties should actually agree to the 

proposal. If the Authority finds that a proposal is bargainable only at an agency’s 

election under § 7106(b)(1) of the Statute, then it will issue an order stating that the 

proposal is only electively negotiable.219 If the Authority finds that there is no duty to 

bargain over a proposal, then it will dismiss the petition for review as to that 

proposal.

220 

In cases involving provisions, if the Authority finds either that a provision is not 

contrary to law or that it is bargainable at an agency’s election under § 7106(b)(1) of the 

Statute, then it will order the agency head to rescind his or her disapproval of the 

provision.221 In doing so, the Authority makes no judgment as to the provision’s 

merit.222 If the Authority determines that a provision is contrary to law, then it will 

dismiss the petition for review as to that provision.

223

2.16 After the Authority’s Decision and Order

Several different situations could occur after the Authority issues its decision and 

order. 

First, the parties could comply with the Authority’s order. If they do, then the 

negotiability process is over.

Second, a party could move for reconsideration of the Authority’s order within

ten days after service of that order.224 

 

215 Id. § 2424.40(a). 

216 Id. 

217 Id. § 2424.40(b). 

218 E.g., Local 5, 67 FLRA at 92 n.11. 

219 5 C.F.R. § 2424.40(b).

220 Local 5, 67 FLRA at 92 n.11.

221 5 C.F.R. § 2424.40(c). 

222 E.g., NTEU III, 66 FLRA at 813 n.11. 

223 5 C.F.R. § 2424.40(c).

224 Id. § 2429.17.
30

Third, a party could appeal the Authority’s order (or an order resolving a motion 

for reconsideration) to a U.S. Court of Appeals.225 A party has sixty days to file such an 

appeal, beginning on the date on which the Authority issued its order.226 But please 

note that “[n]o objection that has not been urged before the Authority, or its designee, 

shall be considered by the court, unless the failure or neglect to urge the objection is 

excused because of extraordinary circumstances.”227 

Fourth, an agency could refuse to comply with the Authority’s order. In that 

event, the union may report that failure to the appropriate FLRA Regional Director.

228 

The union must report such failure within a reasonable period of time after the 

sixty-day appeal period (discussed above) expires.

229 If, on referral from the Regional 

Director, the Authority finds a failure to comply with its order, then the Authority will 

take whatever action it deems necessary to secure compliance with its order, including 

seeking enforcement by petitioning any appropriate U.S. Court of Appeals.

230 

 

225 5 U.S.C. § 7123(a)(1). 

226 Id. 

227 Id. § 7123(c).

228 5 C.F.R. § 2424.41. 

229 5 U.S.C. § 7123(a). 

230 5 C.F.R. § 2424.41; see also 5 U.S.C. § 7123(b).
31

2.17 Diagram Summarizing Possible Conclusions of Authority Decisions and the

Post-Decision Process

The following diagram summarizes the various conclusions that the Authority 

may reach in its decisions, as well as the various scenarios that may occur after the 

Authority issues that decision and order:
32

§ 3

BASES FOR DISMISSING PETITIONS

3.1 Introduction

This section discusses the most common bases for dismissing negotiability 

petitions.

3.2 Proposal or Provision Nonnegotiable

If the Authority finds that all of the proposals or provisions in a union’s petition 

are nonnegotiable, then the Authority dismisses the petition.231 Similarly, if the 

Authority finds that some of the proposals or provisions in a union’s petition are 

nonnegotiable, then the Authority dismisses the petition in part.232 

3.3 Failure to Comply with Certain Procedural and Other Requirements

Section 2.14 above discusses the potential consequences for failures to comply 

with certain procedural and other requirements. As discussed in that section, certain 

failures to comply may result in dismissal of the union’s petition. 

3.4 No Negotiability Dispute

Where a proposal or provision in a union’s petition involves a negotiability 

dispute, but not a bargaining-obligation dispute, the Authority will resolve the

proposal’s or provision’s negotiability.

233 And where a proposal or provision raises 

both a bargaining-obligation dispute and a negotiability dispute, the Authority may

resolve both disputes.234 But where a proposal or provision involves only a bargainingobligation dispute, that dispute may not be resolved in a negotiability proceeding.235 

Please note that, as discussed in section 1.8 above, the Authority assesses whether a 

negotiability dispute exists on a proposal-by-proposal, or provision-by-provision, basis: 

If some proposals or provisions in a petition present negotiability disputes but others 

do not, then the Authority will dismiss the petition as to the proposals or provisions 

that do not present negotiability disputes, and will resolve the negotiability of only the 

proposals or provisions that do present negotiability disputes.236 

 

231 5 C.F.R. § 2424.40(b). 

232 See, e.g., AFGE, Council of Prison Locals 33, Local 506, 66 FLRA 819, 834 (2012) (Prison Locals 33), pet. for 

review filed sub nom. U.S. DOJ v. FLRA, No. 12-1383 (D.C. Cir. Sept. 20, 2012).

233 5 C.F.R. § 2424.30(b)(1). 

234 Id. § 2424.30(b)(2). 

235 Id. § 2424.2(d). 

236 E.g., Local ZHU, 65 FLRA at 740-41.
33

3.5 Mootness

Section 2429.10 of the Authority’s Regulations states that the Authority will not 

issue advisory opinions.237 Thus, where the issues that led to the filing of a negotiability 

petition have been resolved, or where there is no longer a dispute between the parties, 

the Authority will dismiss the petition as “moot.”238 The Authority has found petitions 

to be moot where, for example: proposals required some action to occur by a date that 

had already passed, and there was no explanation in the record to show how the 

proposals could be implemented prospectively;

239 or the parties had reached a valid, 

binding agreement about the subject matter of the proposals within the petition.

240

In contrast, the Authority has found petitions not to be moot where, for 

example: a proposal did not refer to any particular event, or require any action to occur 

by a date that had already passed;241 or the parties continued to have a “legally 

cognizable interest” in the outcome of the negotiability appeal because the proposal at 

issue could benefit employees prospectively.

242 

 

Mootness is a threshold issue regarding the Authority’s jurisdiction.

243 The 

burden of demonstrating mootness is heavy and falls on the party urging mootness.244 

3.6 Petition is “Directly Related” to ULP or Grievance

With the exception of cases where an agency has made a compelling-need claim 

under § 7117(a)(2) of the Statute (discussed in section 4.5 below), if a union files a ULP

charge or a grievance alleging a ULP under the parties’ negotiated grievance procedure, 

and the charge or grievance concerns issues “directly related” to the petition for review,

then the Authority will dismiss the negotiability petition.245 The dismissal will be 

without prejudice to the union’s right to refile the petition after the ULP charge or 

grievance has been “resolved administratively,”246 which can happen when, for 

example: the union withdraws, or the Authority resolves, the directly related ULP 

claim;247 or an arbitrator resolves the ULP claim in an award that has become final and 

binding.248 The union may refile the petition no later than thirty days after the date on 

 

237 5 C.F.R. § 2429.10. 

238 E.g., AFGE, Local 3937, 66 FLRA 393, 393 (2011). 

239 E.g., NTEU, Chapter 207, 58 FLRA 409, 410 (2003). 

240 E.g., Int’l Org. of Masters, Mates & Pilots, Marine Div., Pan. Canal Pilots Branch, 52 FLRA 251, 254 (1996).

241 E.g., Local 3928, 66 FLRA at 176.

242 E.g., NAGE, Local R1-109, 64 FLRA 132, 133 (2009) (Local R1-109).

243 See AFGE, Council 238, 64 FLRA 223, 225 (2009) (Council 238). 

244 Id.

245 5 C.F.R. § 2424.30(a). 

246 Id.

247 Local 5, 67 FLRA at 86.

248 5 C.F.R. § 2424.30(a). 
34

which the ULP charge or grievance is resolved administratively, and the Authority will 

determine whether resolution of the petition is still required.249

For examples of Authority decisions addressing the “directly related” issue, see

AFGE, Local 1938250 and NAGE, Local R5-168.

251 

3.7 Previously Filed Petition Bars Proposal or Provision

Where a negotiability petition involves a proposal or provision that has not 

“substantively changed” from a proposal or provision that was in a negotiability 

petition that the union previously filed – and with the exception of cases where the 

Authority dismissed the previous petition “without prejudice” to the union’s right to 

refile252 – “the effect of the [new] petition is to seek review of the previous 

allegation.”253 In that situation, the Authority will dismiss the new petition.

254 By 

contrast, if the union has “substantively revised” the proposal or provision that was in 

the original petition and has submitted the revised proposal or provision in a new 

petition, then (assuming that all of the other filing requirements are met) the Authority 

will consider the new petition.255 

 

249 Id.; see also, e.g., Council 238, 64 FLRA at 224-26 (untimely petition for review dismissed with prejudice).

250 66 FLRA at 1038-39 (grievance not directly related to petition for review).

251 56 FLRA 796, 797 (2000) (grievance concerned issue directly related to petition for review).

252 5 C.F.R. § 2424.30(a).

253 NFFE, Local 422, 50 FLRA 541, 542 (1995). 

254 Id.

255 Ass’n of Civilian Technicians, Inc., Heartland Chapter, 56 FLRA 236, 237-38 (2000).
35

§ 4

SUBSTANTIVE ISSUES

4.1 Introduction

As discussed in the Foreword to this Guide, negotiability disputes can present a 

wide range of substantive issues, and agencies may also raise bargaining-obligation 

disputes as bases for declining to bargain over particular proposals. Given the breadth 

of possible substantive issues that may arise in negotiability cases, a discussion of all of 

those possible issues is beyond the scope of this Guide. But we discuss, below, some of 

the issues that are more frequent or complex.

4.2 Conditions of Employment

Under the Statute, agencies are required to bargain only over bargaining-unit 

employees’ “conditions of employment.”256 So an agency is not required to bargain 

over a matter unless that matter “directly affects” the conditions of employment of 

bargaining-unit employees.257 Section 7103(a)(14) of the Statute defines “conditions of 

employment” as “personnel policies, practices, and matters, whether established by 

rule, regulation, or otherwise, affecting working conditions.”258 However, that section 

provides that the following matters are not “conditions of employment”: (1) matters 

relating to political activities prohibited under the Hatch Act,259 (2) matters relating to 

classification;

260 and (3) matters that are “specifically provided for by [f]ederal 

statute.”261 With respect to the third exception, the Authority has held, for example,

that a proposal “requiring employees to be paid at the [General Schedule (GS)]-7 level” 

concerned a matter “specifically provided for by statute.”262 Because the agency had no 

discretion to bargain over wage rates established by law, the Authority found that wage 

rates were excluded from the definition of conditions of employment.263 Conversely, 

where a law provided an agency with discretion concerning its optical and dental plan, 

the Authority held that Congress had preserved the agency’s right and obligation to 

negotiate over this matter, and it was not excluded from the definition of “conditions of 

employment.”264 

In deciding whether a proposal involves a condition of employment of 

bargaining-unit employees, the Authority considers two basic factors: (1) whether the 

 

256 5 U.S.C. § 7103(a)(12). 

257 Antilles Consol. Educ. Ass’n, 22 FLRA 235, 236 (1986) (Antilles). 

258 5 U.S.C. § 7103(a)(14). 

259 Id. §§ 7321-7326.

260 Id. § 7103(a)(14)(B).

261 Id. § 7103(a)(14)(C). 

262 Fraternal Order of Police, Lodge #1F, 57 FLRA 373, 383 (2001). 

263 Id.

264 Antilles Consol. Educ. Ass’n, 56 FLRA 664, 665-66 (2000). 
36

matter pertains to bargaining-unit employees; and (2) whether there is a direct 

connection between the proposal and the work situation or employment relationship of

those employees.265 As to the first factor, as discussed further below, a proposal that

focuses principally on non-bargaining-unit positions or employees does not directly 

affect bargaining-unit employees’ work situations or employment relationships.

266 As 

to the second factor, the record must establish a direct connection between the proposal 

and the bargaining-unit employees’ work situations or employment relationships.267 

For example, the Authority found that a proposal concerning the off-duty activities of 

employees did not concern bargaining-unit employees’ work situations or employment 

relationships.

268 

Moreover, Authority and judicial precedent differentiate among proposals 

concerning the working conditions of four groups of non-unit individuals: 

(1) employees in other bargaining units; (2) supervisory personnel; (3) non-supervisory 

employees not in any bargaining unit; and (4) non-employees.269 

Regarding the first group, a proposal that directly determines conditions of 

employment of employees in other bargaining units is outside the duty to bargain.270 

This is because permitting an agency to negotiate with one union over the conditions of 

employment for employees represented by another union would violate “the principle 

of exclusive representation.”271 For example, the Authority has held that a union’s 

proposal requiring an agency to assign employees from a unit represented by another 

union to a particular facility was outside the duty to bargain.272 But proposals that only 

indirectly affect the conditions of employment of employees in other bargaining units 

are not outside the duty to bargain solely because they affect those employees.273

 

 

265 Antilles, 22 FLRA at 236-37. 

266 Id. at 237. 

267 Id. at 238. 

268 Int’l Ass’n of Fire Fighters, AFL-CIO, CLC, Local F-116, 7 FLRA 123, 123-25 (1981).

269 U.S. Dep’t of the Navy, Naval Aviation Depot, Cherry Point, N.C. v. FLRA, 952 F.2d 1434, 1442 

(D.C. Cir. 1992) (Cherry Point); AFGE, Local 2879, AFL-CIO, 49 FLRA 1074, 1087 (1994) (Local 2879); AFGE, 

Local 1923, 44 FLRA 1405, 1416-17 (1992) (Local 1923). 

270 See, e.g., Local 5, 67 FLRA at 92; NAGE, Local R1-109, 61 FLRA 593, 597 (2006) (NAGE); Local 2879,

49 FLRA at 1089; see also Cherry Point, 952 F.2d at 1442-43. 

271 U.S. Dep’t of the Navy, Supervisor of Shipbuilding, Conversion & Repair, Newport News, Va., 65 FLRA 1052, 

1054 (2010) (Newport News). 

272 NAGE, 61 FLRA at 597. 

273 See AFGE, Local 32 v. FLRA, 110 F.3d 810, 814-15 (D.C. Cir. 1997); Cherry Point, 952 F.2d at 1441 & n.8. 

Compare Newport News, 65 FLRA at 1055 (unlawful provision “directly define[d]” the parking privileges of 

employees in another bargaining unit), with AFSCME, Local 2910, 53 FLRA 1334, 1338-39 (1998) (proposal 

requiring agency to grant unit members certain percentage of parking spaces negotiable because it 

“would not directly determine the allocation of parking spaces to non-unit employees”).
37

Concerning the second group, proposals that directly determine the conditions of 

employment of supervisors are outside the duty to bargain.274 However, as stated in 

section 1.7 of this Guide, matters pertaining to managers’ and supervisors’ conditions of 

employment are permissive subjects of bargaining.

275 Thus, an agency may bargain 

over, and agree to, contract proposals that directly implicate its supervisors’ and 

managers’ working conditions.276 As with other permissive subjects, if an agency and a 

union reach such an agreement, and the agreement is otherwise consistent with law, 

then the agency head cannot disapprove it,277 and it is enforceable in arbitration.

278 And

proposals that relate principally to unit employees’ conditions of employment are not 

removed from the mandatory scope of bargaining simply because they indirectly affect 

supervisors.

279 

As to the third and fourth groups, a proposal that directly affects the conditions 

of employment of either non-employees or employees who are not in any bargaining 

unit is outside the duty to bargain unless the proposal addresses matters that “vitally 

affect” bargaining-unit employees’ conditions of employment.280 “In determining 

whether or not a proposal vitally affects bargaining[-]unit employees, the Authority

looks to whether ‘the effect of that proposal upon unit employees’ conditions of 

employment is significant and material, as opposed to indirect or incidental.’”281 For 

example, the Authority has held that a proposal prohibiting discrimination in the hiring 

process – which would directly affect non-employee applicants – was within the duty to 

bargain because it “relate[d] to unit employees’ significant and material interest in 

eliminating discrimination in the unit,” and, thus “vitally affect[ed] the conditions of 

employment of unit employees.”282 

 

274 See, e.g., AFGE, Local 32, 51 FLRA at 513; Local 2879, 49 FLRA at 1088. 

275 NATCA, Rochester Local, 56 FLRA 288, 291 (2000) (Rochester Local) (citing AFGE, Local 3302, 52 FLRA 

677, 682 (1996) (AFGE)). 

276 AFGE, 52 FLRA at 681-82. 

277 E.g., NATCA, 61 FLRA 336, 339 (2005).

278 E.g., AFGE, 52 FLRA at 682.

279 See, e.g., NATCA, 66 FLRA 658, 660-61 (2012). 

280 Cherry Point, 952 F.2d at 1442-43; Local R-109, 66 FLRA at 279, 281; AFGE, Local 32, 51 FLRA at 502; 

Local 2879, 49 FLRA at 1087; Local 1923, 44 FLRA at 1417. 

281 NTEU, Chapter 83, 64 FLRA 723, 727 (2010) (Chapter 83) (quoting AFGE, Local 1827, 58 FLRA 344, 348 

(2003) (Local 1827)). 

282 Local 1923, 44 FLRA at 1420.
38

4.3 Management Rights

(a) Introduction and General Principles

Agencies often argue that proposals are outside the duty to bargain, or 

provisions are contrary to law, because they are inconsistent with management rights 

under § 7106 of the Statute. Section 7106283 provides: 

 

283 5 U.S.C. § 7106.

§ 7106. Management rights

 (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of 

any management official of any agency—

(1) to determine the mission, budget, organization, number of employees, and internal 

security practices of the agency; and 

(2) in accordance with applicable laws—

 (A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, 

remove, reduce in grade or pay, or take other disciplinary actions against such employees;

 (B) to assign work, to make determinations with respect to contracting out, and to 

determine the personnel by which agency operations shall be conducted;

 (C) with respect to filling positions, to make selections for appointments from—

 (i) among properly ranked and certified candidates for promotion; or

 (ii) any other appropriate source; and

 (D) to take whatever actions may be necessary to carry out the agency mission 

during emergencies.

 (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;

(2) procedures which management officials of the agency will observe in exercising any 

authority under this section; or

(3) appropriate arrangements for employees adversely affected by the exercise of any 

authority under this section by such management officials.
39

A proposal or provision may affect more than one management right, but the 

Authority will address only the management right(s) that a party raises.284 For 

example, if an agency claims that a proposal or provision affects management’s right to 

assign work, and the Authority finds no effect on that right, then that does not preclude 

an agency in a future case from arguing that a similar proposal or provision affects a 

different management right, such as the right to determine the agency’s organization.

There are management rights contained in both § 7106(a) and § 7106(b)(1) of the 

Statute.

285 This Guide discusses those rights separately below.

(b) Section 7106(a) 

Consistent with the principles regarding concession discussed in section 1.19

above, if a union does not dispute an agency’s claim that a proposal or provision affects 

a management right under § 7106(a), then the Authority finds that the union has 

conceded that the right is affected.286 If the union does dispute the agency’s claim, and

the agency fails to support its claim with an explanation of how management’s rights 

are affected, then the Authority finds no effect on management’s rights under 

§ 7106(a).

287 

There are nineteen management rights contained in § 7106(a) – five in 

§ 7106(a)(1) and fourteen in § 7106(a)(2). The rights under § 7106(a)(1) and the rights 

under § 7106(a)(2) are different in a significant way: While the rights under § 7106(a)(2)

must be exercised in accordance with “applicable laws,”288 the rights under § 7106(a)(1)

do not contain that limitation.

289 The meaning of “applicable laws” is discussed in 

section 4.3(d) below. 

For all management rights, agencies retain not only the right to exercise them, 

but also the right not to exercise them.290 And for all of these rights, there are 

exceptions, which are discussed in sections 4.3(c) and 4.3(d) below (although the rights 

discussed in section 4.3(d) apply to only some of the management rights). So a proposal 

or provision that affects a management right is not necessarily nonnegotiable; if it fits 

within an exception to a management right, then it is negotiable despite that effect.

291 

 

284 See, e.g., Nat’l Ass’n of Agric. Emps., Branch 11, 57 FLRA 424, 425-26 (2001) (Branch 11) (in finding that 

proposal affected right to assign work, Authority distinguished AFGE, Local 1940, 37 FLRA 1058 (1990), 

which had addressed a different management right). 

285 See, e.g., Chapter 83, 64 FLRA at 725-26. 

286 E.g., NATCA II, 66 FLRA at 216; Nat’l Weather Serv. Emps. Org., 63 FLRA 450, 452 (2009) (Weather Serv.). 

287 E.g., AFGE, Local 997, 66 FLRA 499, 502 (2012). 

288 E.g., Weather Serv., 63 FLRA at 452.

289 E.g., Local 723, 66 FLRA at 644. 

290 See Prison Locals 33, 66 FLRA at 822. 

291 E.g., id. at 822-23.
40

The § 7106(a) rights are as follows.

1. Mission

Management has the right “to determine the mission . . . of the agency.”292 This 

involves the right to determine what the agency’s mission will or will not include.

293 It

generally does not involve the right to determine how the agency’s mission will be 

carried out.294 But where, for example, part of an agency’s mission is to provide 

services to the public, a proposal or provision establishing the hours that certain agency 

offices would be open to the public affects this right.295 

2. Budget

Management has the right “to determine the . . . budget . . . of the agency.”296 

“[A]n assertion that a proposal [or provision] would increase an agency’s costs does 

not, by itself, establish” that the proposal or provision affects this right.297 Rather, a 

proposal or provision affects this right only if: (1) the proposal or provision prescribes 

either the particular programs to be included in the agency’s budget, or the amount to 

be allocated in the budget; or (2) the agency “makes a substantial demonstration that an 

increase in costs is significant and unavoidable and is not offset by compensating 

benefits.”298 In conducting the second inquiry, the Authority looks at the proposal or 

provision relative to the budget of the organizational level to which the proposal or 

provision applies.299 

3. Organization

Management has the right “to determine the . . . organization . . . of the 

agency.”300 This right involves management’s authority to determine the agency’s 

administrative and functional structure, including the relationship of personnel through 

lines of authority and the distribution of responsibilities for delegated and assigned 

duties.301 For example, it includes the rights to determine: how the agency will be 

divided into organizational entities such as sections;

302 the agency’s grade-level 

 

292 5 U.S.C. § 7106(a)(1). 

293 E.g., U.S. Dep’t of Energy, Rocky Flat Field Office, Golden, Colo., 59 FLRA 159, 163 (2003). 

294 Id. 

295 E.g., U.S. DOD, Fort Bragg Dependents Sch., Fort Bragg, N.C., 49 FLRA 333, 349 (1994); AFGE, Local 3231, 

22 FLRA 868, 869-70 (1986). 

296 5 U.S.C. § 7106(a)(1). 

297 Local 1998, 66 FLRA at 125.

298 U.S. DHS, U.S. CBP, 61 FLRA 113, 116 (2005). 

299 Nat’l Weather Serv. Emps. Org., 44 FLRA 18, 30 (1992).

300 5 U.S.C. § 7106(a)(1). 

301 E.g., U.S. Dep’t of Transp., FAA, 63 FLRA 530, 532 (2009). 

302 U.S. Dep’t of Transp., FAA, 58 FLRA 175, 178 (2002).
41

structure;

303 and where, geographically, the agency will provide services or otherwise 

conduct its operations.

304 Although it includes the right to determine where duty 

stations of positions will be maintained,305 that an agency labels an employee’s work 

location an “official duty station” is not, by itself, sufficient to demonstrate that this 

labeling involves an exercise of the right to determine the agency’s organization.

306 

Instead, the agency must establish that the asserted duty station has “a direct and 

substantive relationship to the [a]gency’s administrative or functional structure, 

including the relationship of personnel through lines of authority and the distribution 

of responsibilities for delegated and assigned duties.”307 

4. Number of Employees of the Agency

Management has the right to determine the “number of employees . . . of the 

agency.”308 This relates to “the number of employees actually employed by an 

agency.”309 So a proposal or provision that “operates within the total employee 

complement that has been established by” an agency – for example, by requiring an 

employee’s reassignment within the agency – does not affect this right.310 Thus, this 

right is distinct from the right to determine the number of employees assigned to any 

organizational subdivision under § 7106(b)(1), which is discussed in section 4.3(c)2

below.311 

5. Internal-Security Practices

Management has the right to determine the “internal[-]security practices of the 

agency.”312 This right involves the authority to determine the policies and practices that 

are part of the agency’s plan to secure or safeguard its personnel, physical property, or 

operations against internal and external risks.313 

To demonstrate that a proposal or provision affects this right, an agency must

show: (1) a link, or reasonable connection, between its security objective and an agency

policy or practice designed to implement that objective; and (2) that the proposal or 

provision conflicts with the policy or practice.314 

 

303 E.g., U.S. DOD, Marine Corps Logistics Base, Albany, Ga., 57 FLRA 275, 278 (2001).

304 E.g., Ass’n of Civilian Technicians, N.Y. State Council, 56 FLRA 444, 449 (2000). 

305 See Local 3928, 66 FLRA at 179.

306 See U.S. Dep’t of Educ., Wash., D.C., 61 FLRA 307, 310 (2005). 

307 Id.

308 5 U.S.C. § 7106(a)(1). 

309 U.S. DOD, Def. Mapping Agency, Aerospace Ctr., St. Louis, Mo., 46 FLRA 298, 316 (1992) (DMA St. Louis). 

310 Id. 

311 See id. at 316-17; NFFE, Local 2148, 53 FLRA 427, 431 (1997).

312 5 U.S.C. § 7106(a)(1). 

313 See Local 506, 66 FLRA at 931.

314 See id. 
42

With respect to the first requirement, as long as the agency shows the required 

link or reasonable connection, the Authority will not review the merits of the agency’s 

plan in the course of resolving a negotiability dispute.315 Thus, the Authority will not 

examine the extent to which the plan will actually facilitate the accomplishment of the 

agency’s security objectives.316 

With respect to the second requirement, it is not necessary to show that the 

proposal or provision conflicts with or “defeat[s] the purpose” for which the agency 

adopted the internal-security measure; a proposal or provision that “deviates from or 

modifies” the agency’s policy affects the right.317 

The Authority has found that agencies demonstrated an effect on the right to 

determine internal-security practices in cases involving, for example (but not limited 

to), proposals or provisions that concerned: the investigative techniques that agencies

would employ to attain their internal-security objectives;

318 the implementation of 

agencies’ drug-testing programs;

319 locked doors in the workplace;320 and the actions 

that management would take to ensure the security of their computer systems.

321 

6. Hire Employees

Management has the right to “hire . . . employees in the agency.”322 The 

Authority has not specifically defined the right to hire,

323 but has found that it includes

the right to decide whether to fill positions.

324 So proposals or provisions requiring 

agencies to fill vacancies affect this right.325 

7. Assign Employees

Management has the right to “assign . . . employees in the agency.”326 This right 

concerns the right to assign employees to positions.327 It involves not only the initial 

 

315 See id. 

316 See AFGE, Local 1712, 62 FLRA 15, 17 (2007) (Local 1712). 

317 NTEU, 62 FLRA 267, 270 (2007) (Chairman Cabaniss dissenting in part) (internal citations omitted), 

review granted in part on other grounds sub nom., NTEU v. FLRA, 550 F.3d 1148 (D.C. Cir. 2008). 

318 AFGE, Nat’l Border Patrol Council, 66 FLRA 96, 99 (2011).

319 Local 723, 66 FLRA at 643-44.

320 AFGE, Local 2145, 64 FLRA 231, 234 (2009).

321 Local 1712, 62 FLRA at 17.

322 5 U.S.C. § 7106(a)(2)(A). 

323 NAGE, Local R5-184, 52 FLRA 1024, 1026 n.5 (1997) (Local R5-184).

324 E.g., AFGE, Local 2755, 62 FLRA 93, 94-95 (2007). 

325 E.g., AFGE, Local 3354, 54 FLRA 807, 812-13 (1998) (Local 3354).

326 5 U.S.C. § 7106(a)(2)(A). 

327 E.g., U.S. Dep’t of VA, St. Cloud VA Med. Ctr., St. Cloud, Minn., 62 FLRA 508, 510 (2008) (VAMC St. 

Cloud). 
43

hiring of an individual and assignment to a position, but also post-hiring situations,328

such as reassignment of employees to different positions, and temporary assignments

or details.

329 It also includes the right to decide when an assignment should begin and 

end.330 In addition, it includes the rights to establish the qualifications and skills needed 

for positions and to judge whether particular employees possess those qualifications 

and skills.331 But (unlike the right to determine the agency’s organization) it does not 

include the right to decide the geographical location where employees or organizational 

units will conduct agency operations.332 

8. Direct Employees

Management has the right to “direct . . . employees in the agency.”333 This 

involves the rights to supervise employees and to determine the quantity, quality, and 

timeliness of their work.334 Thus, this right includes, among other things, the rights to 

establish performance standards,335 to evaluate employees and hold them accountable 

under those standards,336 to select particular methods for supervising employees (such 

as by unannounced visits and spot-checking of their work),337 and to require employees 

to account for their duty time.

338 But this right does not include the right to decide 

whether to reward performance that already has been evaluated.339 

9. Layoff Employees

Management has the right to “layoff . . . employees in the agency.”340 This right 

includes, for example, the rights to conduct a reduction in force and to exercise 

discretion in determining which positions will be abolished and which will be 

retained.341 

 

328 E.g., U.S. DOJ, Fed. BOP, Fed. Corr. Inst., Marianna, Fla., 56 FLRA 467, 469 (2000).

329 E.g., Local 1547, 65 FLRA at 913. 

330 E.g., AFGE, Local 12, 61 FLRA 209, 218 (2005) (Local 12). 

331 E.g., VAMC St. Cloud, 62 FLRA at 510. 

332 See AFGE, Local 3584, Council of Prison Locals C-33, 64 FLRA 316, 317 (2009).

333 5 U.S.C. § 7106(a)(2)(A). 

334 See NTEU II, 65 FLRA at 511. 

335 E.g., Weather Serv., 63 FLRA at 453.

336 NTEU II, 65 FLRA at 511.

337 E.g., Local 1712, 62 FLRA at 17.

338 E.g., AFGE, Council 224, 60 FLRA 278, 279 (2004). 

339 See U.S. DHS, U.S. CBP, 63 FLRA 505, 508 (2009) (CBP); NAGE, Local R1-203, 55 FLRA 1081, 1083 (1999) 

(Local R1-203).

340 5 U.S.C. § 7106(a)(2)(A). 

341 E.g., Local 1547, 65 FLRA at 913; Local 1827, 58 FLRA at 345.
44

10. Retain Employees

Management has the right to “retain employees in the agency.”342 This is the 

right to establish policies or practices that encourage or discourage employees from 

remaining employed by an agency.343 The Authority has found that proposals and 

provisions affected this right where, for example, they required agencies to offer 

voluntary-separation-incentive pay,

344 or required agencies to provide compensation 

that will encourage “special[-]rate” employees to remain employed with the agency.345

11. Suspend

Management has the right to “suspend . . . employees.”346 The Authority has 

found that a proposal affected this right when the proposal gave employees the option 

of canceling their own previously imposed suspensions.347 

12. Remove

Management has the right to “remove . . . employees.”348 The Authority has 

found that proposals and provisions affected this right where, for example, they: 

required agencies to separate particular groups of employees before they separated 

other groups of employees;

349 required an agency to vacate certain positions and make 

them available to certain categories of employees;

350 or precluded management from 

taking actions against an employee for a particular “offense,” including unacceptable 

performance.

351

 

13. Reduce in Grade or Pay

Management has the right to “reduce in grade or pay . . . employees.”352 The 

Authority has found that proposals and provisions affected this right where, for 

example, they: precluded management from taking actions against an employee for a 

 

342 5 U.S.C. § 7106(a)(2)(A). 

343 Local 1827, 58 FLRA at 346. 

344 Local 5, 67 FLRA at 87.

345 U.S. Dep’t of Commerce, PTO, 60 FLRA 839, 841-42 (2005).

346 5 U.S.C. § 7106(a)(2)(A).

347 See NTEU & NTEU Chapter 91, 19 FLRA 647, 650 (1985).

348 Id. 

349 Fed. Union of Scientists & Eng’rs, NAGE, Local R1-144, 23 FLRA 804, 805-06 (1986); AFGE, Local 2612, 

AFL-CIO, 19 FLRA 1012, 1014 (1985); AFGE, AFL-CIO, Local 1603, 3 FLRA 4, 5-6 (1980).

350 Ass’n of Civilian Technicians, N.Y. State Council, 11 FLRA 475, 482 (1983).

351 NTEU, 53 FLRA 539, 579 (1997) (NTEU VI); see also NFFE, Local 1214, 40 FLRA 1181, 1200-01 (1991) 

(Local 1214).

352 5 U.S.C. § 7106(a)(2)(A). 
45

particular offense;

353 and restricted management’s right to reduce in grade or pay 

employees who have demonstrated an inability or unwillingness to perform the duties 

of their positions.

354 

14. Discipline

In addition to having the rights to suspend, remove, and reduce in grade or pay, 

management has the right to “take other disciplinary action against . . . employees.”355 

This includes the rights to: discipline employees for both performance-related and 

nonperformance-related conduct;

356 investigate and determine appropriate 

investigative techniques in connection with deciding whether discipline is justified;357

decide which evidence or information (including prior offenses) to use to take, or 

support, disciplinary actions;

358 and determine what disciplinary penalty to impose.359

 

15. Assign Work

Management has the right to “assign work.”360 This encompasses the rights to 

determine the particular duties to be assigned, when work assignments will occur, and 

to whom or what positions the duties will be assigned.361 It also includes the rights to 

establish the qualifications and skills needed for positions and duties, and to judge 

whether particular employees meet those qualifications and skills.362 Additionally, it 

includes the rights to: establish job requirements for various levels of performance;363

determine the content of performance standards and elements;

364 supervise employees 

and determine the quantity, quality, and timeliness of their work;

365 determine the 

particular measures of supervising employees’ work (for example, through 

unannounced spot checks);366 enforce established performance standards;

367 and 

evaluate employees and hold them accountable for their work.

368 (Please note that, in 

some respects, the right to assign work involves similar rights as the rights to assign 

and direct employees, discussed below in sections 4.3(b)7 and 4.3(b)8, respectively.) 

 

353 E.g., NTEU VI, 53 FLRA at 579.

354 Local 1214, 40 FLRA at 1200-01.

355 5 U.S.C. § 7106(a)(2)(A). 

356 E.g., Locals 33, 65 FLRA at 145. 

357 E.g., AFSCME, Local 2830, 60 FLRA 124, 127 (2004).

358 E.g., NATCA, 61 FLRA 341, 346 (2005); NTEU, Chapter 243, 49 FLRA 176, 202-03 (1994).

359 E.g., POPA, 53 FLRA 625, 679 (1997).

360 5 U.S.C. § 7106(a)(2)(B). 

361 E.g., Prison Locals 33, 66 FLRA at 823. 

362 E.g., PASS II, 61 FLRA at 99. 

363 E.g., AFGE, Local 225, 56 FLRA 686, 687 (2000) (Local 225).

364 E.g., Weather Serv., 63 FLRA at 453.

365 E.g., NTEU II, 65 FLRA at 511.

366 E.g., Local 1712, 62 FLRA at 17.

367 E.g., NTEU II, 65 FLRA at 511.

368 E.g., id. 
46

A proposal or provision does not affect the right to assign work merely because it 

requires the agency to take some action.369 And a proposal or provision requiring 

management to use seniority to select employees for assignments does not affect the 

right, as long as management retains the right to determine that the eligible employees 

are equally qualified for the assignments.370 In addition, the right to assign work does 

not include the right to determine whether to reward performance,371 including, for 

example, decisions as to whether to grant performance awards,372 or to determine 

eligibility for “incentive[-]pay bonus[es].”373

16. Contract Out

Management has the right to “make determinations with respect to contracting 

out.”374 The Authority has found that proposals or provisions affected this right where, 

for example, they: precluded an agency from contracting out one of its functions for a 

specified period;

375 required an agency to delay contracting-out decisions;376 or required

an agency to conduct a cost study before contracting out.

377

 

17. Determine Personnel

Management has the right to “determine the personnel by which agency 

operations shall be conducted.”378 This includes the right to determine the particular 

employees to whom work will be assigned.379 So proposals and provisions that require 

an agency to assign particular duties to a particular individual affect this right.380

18. Make Selections to Fill Positions

Management has the right, “with respect to filling positions, to make selections 

for appointments from—(i) among properly ranked and certified candidates for 

promotion; or (ii) any other appropriate source . . . .”381

 

369 NTEU V, 64 FLRA at 447. 

370 AFGE, Local 1164, 60 FLRA 785, 787 (2005). 

371 See CBP, 63 FLRA at 508.

372 Local R1-203, 55 FLRA at 1083.

373 FDIC, 64 FLRA 79, 81 (2009).

374 5 U.S.C. § 7106(a)(2)(B). 

375 E.g., Local 12, 61 FLRA at 210.

376 E.g., U.S. Dep’t of the Army, Corps of Eng’rs, Nw. Div. & Portland Dist., 60 FLRA 595, 597 (2005).

377 AFGE, Local 1345, 48 FLRA 168, 204 (1993).

378 5 U.S.C. § 7106(a)(2)(B). 

379 U.S. Dep’t of VA, Med. Ctr., Detroit, Mich., 61 FLRA 371, 373 (2005). 

380 E.g., id. at 373-74.

381 5 U.S.C. § 7106(a)(2)(C). 
47

This “right to select” includes the rights to determine the qualifications, skills, 

and abilities needed to do the work of a position and to determine whether applicants 

possess those qualifications, skills, and abilities.382 

The right to select also includes the right to fill positions by selecting candidates 

from any appropriate source without restriction.383 So proposals and provisions that 

limit the sources from which management can select affect this right.384 But a

requirement that expands, rather than limits, an agency’s selection options does not 

affect this right.385 

19. Carry Out Mission in Emergencies

Management has the right to “take whatever actions may be necessary to carry 

out the agency mission during emergencies.”386 This includes the rights to: 

(1) independently assess whether an emergency exists, and (2) decide what actions are 

needed to address the emergency.387 Proposals and provisions that define what 

constitutes an “emergency” affect this right, without regard to the content of the 

definition.388 So do proposals and provisions that preclude management from acting 

until a particular individual declares an emergency.389 

(c) Section 7106(b)

All of the rights set forth in § 7106(a) are “[s]ubject to” § 7106(b) of the Statute.

390 

Section 7106(b) provides that “[n]othing in [§ 7106] shall preclude any agency and any 

labor organization from negotiating” several types of matters.391 Those types of matters 

are set forth in § 7106(b)(1), (2), and (3), and are discussed separately below.

 

382 See NTEU, 61 FLRA 618, 622 (2006).

383 Ass’n of Civilian Technicians, Pa. State Council, 54 FLRA 552, 558 (1998). 

384 E.g., Ass’n of Civilian Technicians, Treasure State Chapter #57, 56 FLRA 1046, 1048 (2001) (requiring use of 

competitive procedures to fill vacant positions, except in certain circumstances); NAGE, Local R4-45, 

54 FLRA 218, 225 (1998) (discussing proposals requiring management to fill vacancies from a single 

source). 

385 See U.S. Dep’t of the Treasury, IRS, Wash., D.C., 61 FLRA 226, 229 (2005).

386 5 U.S.C. § 7106(a)(2)(D). 

387 See U.S. Dep’t of VA, VA Reg’l Office, St. Petersburg, Fla., 58 FLRA 549, 551 (2003). 

388 See Local 350, 55 FLRA at 245. 

389 E.g., Tidewater Va. Fed. Emps. Metal Trades Council, AFL-CIO, 31 FLRA 131, 132 (1988).

390 5 U.S.C. § 7106(a). 

391 Id. § 7106(b). 
48

1. Section 7106(b)(1) - Generally

Section 7106(b)(1) of the Statute provides that certain matters are negotiable “at 

the election of the agency.”392 In other words, those matters are permissive subjects of 

bargaining: Agencies may, but are not legally required to, bargain over them.393 Thus,

as with other permissive subjects, agency heads cannot disapprove agreements

concerning these matters unless they are otherwise unlawful,394 and agreements 

regarding § 7106(b)(1) matters are enforceable in arbitration.

395 In this connection, 

§ 7106(b)(1) is an exception to § 7106(a), so a proposal or provision that might be 

unlawful under § 7106(a) becomes lawful if it also concerns a § 7106(b)(1) matter.396 

And even if a proposal concerns a permissive subject of bargaining under § 7106(b)(1), 

it becomes a mandatory subject of bargaining if it also concerns a § 7106(b)(2) or 

§ 7106(b)(3) matter.397 A discussion of the individual portions of § 7106(b)(1) follows.

2. Section 7106(b)(1) - Numbers, Types, and Grades of Employees or

Positions Assigned to Any Organizational Subdivision, Work Project, or

Tour of Duty

Section 7106(b)(1) provides that an agency may elect to negotiate on the 

“numbers, types, and grades of employees or positions assigned to any organizational 

subdivision, work project, or tour of duty.”398 In determining whether a proposal or 

provision is within the scope of this portion of § 7106(b)(1), the Authority assesses 

whether the proposal or provision concerns: (1) the numbers, types, and grades; (2) of 

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

tour of duty.399 This portion of § 7106(b)(1) 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.400 We discuss the various terms below.

Numbers. The Authority has found that a proposal or provision that would 

increase, decrease, or maintain the number of employees or positions that an agency has 

assigned, or plans to assign, concerns the “numbers” of employees or positions within 

the meaning of § 7106(b)(1).

401 As noted in section 4.3(b)4 above, the § 7106(b)(1) right 

to determine the number of employees assigned to a particular organizational 

subdivision, work project, or tour of duty is different from the § 7106(a)(1) right to

 

392 Id. § 7106(b)(1). 

393 E.g., U.S. Dep’t of Transp., FAA, Alaskan Region, 62 FLRA 90, 92 (2007) (FAA Alaska). 

394 E.g., NTEU II, 65 FLRA at 512.

395 E.g., FAA Alaska, 62 FLRA at 92. 

396 E.g., id.

397 E.g., U.S. GSA, 62 FLRA 341, 343 (2008). 

398 5 U.S.C. § 7106(b)(1). 

399 See Local 723, 66 FLRA at 645. 

400 Id.; see also Local R5-184, 52 FLRA at 1030-31. 

401 Branch 11, 57 FLRA at 426. 
49

determine the “number of employees . . . of the agency,” which refers to the total

number of employees in the agency.

402 

Types. “Types” are distinguishable classes, kinds, groups, or categories of 

employees or positions that are relevant to the establishment of staffing patterns.403 For 

example, the Authority has held that dental hygienists – who were in a separate 

classification series and were differentiated as a group or category based on a 

specialized line of work and qualifications requirements – were a type of employee or 

position.404 And the Authority has found that where temporary employees were hired 

for a limited time to meet temporary employment needs, they were a type of employee 

because the characteristic of “limited tenure” identified them as a distinguishable class, 

kind, group, or category.405 The party claiming that a proposal or provision concerns 

“types” bears the burden of establishing a relationship between the claimed “type” and 

staffing patterns.406

Grades. The Authority has found that proposals and provisions concerned the 

grades of employees or positions when they involved the grade levels of employees or 

positions within the GS classification system,407 or when they concerned “entry[-]level” 

positions.408 Where proposals or provisions did not involve the grade level of 

employees assigned to do particular work, the Authority has declined to find that they 

involved the grades of employees within the meaning of § 7106(b)(1).

409

Organizational subdivision. The Authority has found that proposals and 

provisions that involve which sections of an agency will perform specific agency 

functions, and where employees performing those functions will be assigned, concern 

assignments to organizational subdivisions under § 7106(b)(1).

410 Although proposals 

or provisions that merely establish organizational subdivisions do not affect 

management’s rights under § 7106(b)(1), proposals or provisions that prescribe the 

staffing of such organizational subdivisions do affect that right.411 

 

402 See DMA St. Louis, 46 FLRA at 316-17.

403 See Local 723, 66 FLRA at 645; Local R5-184, 52 FLRA at 1031. 

404 Local R5-184, 52 FLRA at 1031-32. 

405 Id. at 1034. 

406 E.g., Local 723, 66 FLRA at 645; Local R5-184, 52 FLRA at 1031. 

407 E.g., Local R5-184, 52 FLRA at 1032 n.11. 

408 AFGE, AFL-CIO, Council of Prison Locals, Local 1661, 29 FLRA 990, 1016, reconsid. denied, 30 FLRA 

492 (1987).

409 AFGE, Local 3529, 55 FLRA 830, 832-33 (1999).

410 E.g., NAGE, Local R14-23, 54 FLRA 1302, 1306 (1998). 

411 E.g., AFGE, Local 1336, 52 FLRA 794, 802 (1996).
50

Work project. “Work project” means a “particular job” or “task.”412 For example,

supervising inmates is a work project.413 

Tour of duty. “Tour of duty” means the hours of a day (a daily tour of duty) and 

the days of an administrative workweek (a weekly tour of duty) that constitute an 

employee’s regularly scheduled administrative workweek.414 

3. Section 7106(b)(1) - Technology, Methods, and Means of Performing

Work

Section 7106(b)(1) provides, in pertinent part, that nothing in § 7106 shall 

preclude agencies and unions from negotiating, “at the election of the agency, on . . . the 

technology, methods, and means of performing work.”415 

“Technology . . . of performing work” means “the technical method that will be 

used in accomplishing or furthering the performance of the [a]gency’s work.”416 A 

party alleging that a proposal or provision concerns the technology of performing work 

must show: (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.417 The Authority has found proposals to concern the 

technology of performing work where, for example, they required management to

provide specific equipment to employees for their use in performing the agency’s 

work.418

 

“Method” refers to the way in which an agency performs its work.

419 “Means” 

refers to any instrumentality – including an agent, tool, device, measure, plan, or policy

– that an agency uses to accomplish, or further the performance of, its work.420 

Basically, “methods” are how an agency performs its work, and “means” are what the 

agency uses to perform that work.421

 

 

412 Fed. BOP, Fed. Corr. Inst., Bastrop, Tex., 55 FLRA 848, 853 (1999) (FCI Bastrop) (quoting AFGE, Local 3302, 

37 FLRA 350, 355 (1990)). 

413 Id. at 853-54.

414 Branch 11, 57 FLRA at 426.

415 5 U.S.C. § 7106(b)(1).

416 NTEU, 62 FLRA 321, 326 (2007) (quoting AFSCME, AFL-CIO, Local 2477, 7 FLRA 578, 582-83 (1982), 

enforced sub nom., Library of Cong. v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983)). 

417 AFGE, Local 3129, SSA Gen. Comm., 58 FLRA 273, 275 (2002). 

418 Fraternal Order of Police, Lodge 1F (R.I.) Fed., 32 FLRA 944, 958-59 (1988). 

419 E.g., Local 723, 66 FLRA at 646. 

420 Id. 

421 Chapter 83, 64 FLRA at 725.
51

If a proposal or provision “concerns” a method or means, then the Authority 

applies a two-part test to determine whether the proposal or provision affects 

management’s right to determine the methods or means of performing work.422 

Specifically, the Authority assesses whether: (1) there is a direct or integral relationship 

between the method or means the agency has chosen and the accomplishment of the 

agency’s mission; and (2) the proposal or provision would directly interfere with the 

mission-related purpose for which the method or means was adopted.423 The relative 

importance of a particular method or means is irrelevant.

424 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.425 

4. Section 7106(b)(2) - Procedures

Section 7106(b)(2) of the Statute provides that nothing in § 7106 shall preclude 

agencies and unions from negotiating over “procedures [that] management officials of 

the agency will observe in exercising any authority under” § 7106.

426 These 

“procedures” are mandatory subjects of bargaining: Agencies must bargain over them,

even if they affect management rights under § 7106(a) or § 7106(b)(1).

427 

Consistent with the principles of concession discussed in section 1.19 above, if a 

union argues that a proposal or provision is a procedure under § 7106(b)(2), and an 

agency does not dispute that claim, then the Authority will find the proposal or 

provision to be a procedure.428 If the agency does dispute the union’s claim, then the 

union must demonstrate that the proposal or provision is a procedure.429 To determine 

whether a particular proposal or provision is (or is not) a procedure, parties should 

research Authority precedent to find proposals and provisions (similar to the one in 

dispute) that the Authority has analyzed under § 7106(b)(2).

 

422 Local 723, 66 FLRA at 646. 

423 Id.

424 E.g., AFGE, Local 1164, 66 FLRA 112, 115 (2011). 

425 See FCI Bastrop, 55 FLRA at 854 (discussing means).

426 5 U.S.C. § 7106(b)(2). 

427 E.g., Local ZHU, 65 FLRA at 744 (a proposal or provision may be a procedure for the exercise of a 

management right under either § 7106(a) or § 7106(b)(1)); POPA, 56 FLRA 69, 86 (2000) (POPA III) (same).

428 E.g., Local 5, 67 FLRA at 91. 

429 E.g., Local 723, 66 FLRA at 644. 
52

A non-exhaustive list of proposals and provisions that the Authority has found 

to be procedures includes proposals or provisions that:

 Required advance notice of agency actions or specific events;

430

 Prescribed how management would select employees for assignments, as long as 

management preserved the right to determine that the available employees were 

equally qualified;

431 

 Required management to take certain actions, as long as the proposals or 

provisions did not specify the particular persons or positions who would take 

the actions;

432 

 Established advisory committees involving union participation where those 

committees were not an integral part of management’s decision-making process 

relating to the exercise of its rights under § 7106;

433

 Required management to delay exercising its rights pending the completion of 

bargaining or applicable appellate processes;

434

 Established the procedures that management would observe in developing and 

implementing performance standards;

435

 Set forth the procedures that management would use in announcing or filling 

vacancies;

436

 Required management to maintain, or show to employees, certain 

documentation;

437

 

430 Local 12, 61 FLRA at 220.

431 E.g., U.S. Dep’t of Transp., FAA, 63 FLRA 502, 503 (2009); U.S. Dep’t of the Navy, Supervisor of 

Shipbuilding, Conversion & Repair, Gulf Coast, Pascagoula, Miss., 62 FLRA 328, 330 (2007); AFGE, Council 215, 

60 FLRA 461, 467 (2004); SSA, Chi. N. Dist. Office, 56 FLRA 274, 277 (2000).

432 E.g., AFGE, Council 220, 65 FLRA 726, 728 (2011) (Council 220); NAIL, 62 FLRA 1, 3 (2007); NLRB, Wash., 

D.C., 61 FLRA 154, 161 (2005).

433 E.g., NAIL, 62 FLRA at 3.

434 E.g., Antilles Consol. Educ. Ass’n, 61 FLRA 327, 331-33 (2005) (ACEA).

435 E.g., Council 220, 65 FLRA at 728-29; POPA, 47 FLRA 10, 65-66, 70-71 (1993) (POPA II).

436 E.g., Local 3354, 54 FLRA at 814-15.

437 E.g., POPA, 48 FLRA 129, 154, 157-58 (1993) (requiring agency to maintain record of time employees 

spent doing certain work, and to provide union with detailed reports of certain employee errors);

NTEU, 47 FLRA 705, 718-20 (1993) (requiring agency to share documentation supporting performance 

appraisals and ratings).
53

 Required an agency to complete disciplinary processes in a timely manner, but 

did not prescribe the consequences for the agency’s failure to do so (and did not 

prevent the agency from acting on the underlying disciplinary matters);438

 Required management to evaluate employees’ work products at the completion 

of each assignment;

439

 Established the procedures governing the imposition of drug tests on employees, 

if the procedures did not affect the agency’s decision to require employees to 

undergo random or reasonable-suspicion drug tests;

440

 Required consistency between position descriptions and performance standards, 

if management retained discretion to amend the position descriptions;

441 and

 Required an agency to refer a group of candidates from one source (for example, 

unit employees) to a selecting official for first consideration, but did not preclude 

the agency from concurrently soliciting, rating, and ranking applicants from 

another source.

442 

A non-exhaustive list of proposals and provisions that the Authority has found 

not to be procedures includes proposals or provisions that:

 Precluded agencies from exercising management rights unless or until other 

events (other than completion of bargaining or applicable appellate processes) 

occurred;

443

 Delayed implementation of management actions that were “necessary for the 

functioning of the agenc[ies];”444

 Conditioned the exercise of management rights on the agreement of employees 

or a union;

445

 Required agencies to give advance notice of investigative interviews when the 

decisions not to do so were part of the agencies’ investigative techniques;

446

 

438 NFFE, Local 1438, 47 FLRA 812, 816-18 (1993).

439 POPA II, 47 FLRA at 54.

440 E.g., NTEU, Chapters 243 & 245, 45 FLRA 270, 279-80 (1992).

441 United Power Trades Org., 44 FLRA 1145, 1155-56 (1992).

442 NTEU, 43 FLRA 1279, 1287-88 (1992) (NTEU VII).

443 E.g., ACEA, 61 FLRA at 331-32. 

444 E.g., id. at 332.

445 E.g., AFGE, Local 3529, 57 FLRA 172, 175 (2001) (Local 3529).

446 E.g., AFGE, Local 701, Council of Prison Locals 33, 58 FLRA 128, 134 (2002).
54

 Prevented agencies from determining employee qualifications;

447

 Prescribed or precluded assignments to particular individuals identified by name 

or title;

448

 Required management to assign employees certain duties, at the employees’ 

option;

449

 Precluded management from assigning employees certain duties;

450

 Required management to reassign employees to sites designated by the 

employees;

451

 Required agencies to use competitive procedures to fill vacancies where the 

requirements prevented management from considering other applicants or using 

any other appropriate source in actually filling such vacancies;

452

 Limited the evidence agencies could use to support disciplinary actions;

453

 Limited agencies’ discretion to decide whether to restrict overtime assignments 

to unit employees;

454

 Substantively limited management’s right to determine the content of 

performance standards;

455

 Prevented management from holding employees accountable for the 

performance of assigned work;

456

 Required agencies to fill positions;

457

 Prevented agencies from controlling which particular individuals would have 

access to their facilities;

458

 

447 E.g., Fed. Emps. Metal Trades Council of Charleston, 44 FLRA 683, 687-89 (1992).

448 See Council 220, 65 FLRA at 728-29.

449 AFGE, Local 1020, 47 FLRA 258, 263 (1993).

450 E.g., U.S. DOD, Def. Contract Audit Agency, Cent. Region, 47 FLRA 512, 520 (1993).

451 NLRB, 60 FLRA 576, 579 (2005).

452 E.g., U.S. DOD, Ala. Air Nat’l Guard, Montgomery, Ala., 58 FLRA 411, 413 (2003).

453 E.g., Local 1827, 58 FLRA at 352.

454 E.g., id. at 353.

455 E.g., AFGE, Local 1858, 56 FLRA 1115, 1116 n.2 (2001).

456 E.g., Local 3529, 57 FLRA at 179.

457 E.g., Local 3354, 54 FLRA at 814-15.

458 AFGE, AFL-CIO, Local 2782, 49 FLRA 470, 474 (1994).
55

 Established restrictions on management action under § 7106 based on the results 

of studies;

459

 Precluded management from using particular methods of monitoring employees’ 

work performance;

460

 Precluded management from rating and ranking candidates until after a 

preliminary placement process for currently employed unit employees was 

completed;

461 and 

 Required management “ordinarily” to approve employees’ requests to receive 

and use advanced sick leave.

462 

Please note that merely because a proposal or a provision affects a management 

right under § 7106(a) (or, for proposals, affects a management right under § 7106(b)(1)), 

and is not a procedure under § 7106(b)(2), that does not mean that the proposal or 

provision is nonnegotiable. It is negotiable if it is an appropriate arrangement under 

§ 7106(b)(3), as discussed below. 

5. Section 7106(b)(3) - Appropriate Arrangements

Section 7106(b)(3) of the Statute provides that nothing in § 7106 precludes 

agencies and unions from negotiating over “appropriate arrangements for employees 

adversely affected by the exercise of any authority under” § 7106.

463 These “appropriate 

arrangements” are mandatory subjects of bargaining: Agencies must bargain over 

them, despite their effects on management rights under § 7106(a) or § 7106(b)(1).

464

i. What is an arrangement? 

To determine whether a proposal or a provision is an appropriate arrangement 

under § 7106(b)(3), the Authority first determines whether the proposal or provision is 

intended to be an “arrangement” for employees adversely affected by the exercise of a 

management right.465 Consistent with the principles of concession discussed in 

section 1.19 above, if an agency does not dispute a union’s claim that a proposal or 

 

459 Local 1923, 44 FLRA at 1437.

460 NFFE, Local 1482, 44 FLRA 637, 668-69 (1992).

461 NTEU VII, 43 FLRA at 1287.

462 NFFE, Local 405, 42 FLRA 1112, 1127 (1991).

463 5 U.S.C. § 7106(b)(3). 

464 See Local 506, 66 FLRA at 940-41 (Authority assumed effect on right under § 7106(a) but found proposal 

within duty to bargain as appropriate arrangement); POPA III, 56 FLRA at 86 (a proposal or provision 

may be a procedure or appropriate arrangement for the exercise of a management right under either 

§ 7106(a) or § 7106(b)(1)).

465 NAGE, Local R14-87, 21 FLRA 24, 31 (1986) (KANG). 
56

provision is an arrangement, then the Authority will find that the agency has conceded

that the proposal or provision is an arrangement.466 But if an agency does dispute a 

union’s claim that a proposal or provision is an arrangement, then the union must 

demonstrate the following.

An arrangement must seek to mitigate adverse effects flowing from the exercise 

of a protected management right.467 To establish that a proposal or a provision is an 

arrangement, a union must identify: (1) the effects or reasonably foreseeable effects on 

employees that flow from the exercise of management’s rights; and (2) how those effects 

are adverse.468 Proposals and provisions that address speculative or hypothetical 

concerns are not arrangements.469 The alleged arrangement must also be sufficiently 

tailored to compensate or benefit employees suffering adverse effects attributable to the 

exercise of management’s rights.470 But the Authority has held that proposals and 

provisions intended to eliminate the possibility of an adverse effect may be appropriate 

arrangements.471 In particular, the Authority will find such “prophylactic” proposals

and provisions to be sufficiently tailored in situations where it is not possible to draft a 

proposal targeting only those employees who will be adversely affected by an agency 

action.472

ii. When is an arrangement “appropriate”? 

If a proposal or a provision is an arrangement, then the Authority determines 

whether it is appropriate.

473 The test that the Authority applies to determine whether 

an arrangement is appropriate depends on whether the case involves a proposal or a 

provision.

If the case involves a proposal, then the Authority applies an “excessive

[-]interference” test.474 Specifically, the Authority weighs “the competing practical 

needs of employees and managers” to ascertain whether the benefit to employees 

flowing from the proposal outweighs the proposal’s burden on the exercise of the 

management right or rights involved.475 

 

466 E.g., NTEU III, 66 FLRA at 812. 

467 Local 5, 67 FLRA at 87. 

468 KANG, 21 FLRA at 31. 

469 Local 5, 67 FLRA at 87. 

470 Id. 

471 E.g., Prison Locals 33, 66 FLRA at 822. 

472 Id.

473 KANG, 21 FLRA at 31-33. 

474 NTEU II, 65 FLRA at 512. 

475 KANG, 21 FLRA at 31-32.
57

If the case involves a provision, however, then the Authority does not apply the 

excessive-interference test.476 Instead, in NTEU,

477 the Authority held that it will assess

whether the arrangement “abrogates” – i.e., waives – the affected management right.478 

In determining whether a provision abrogates a management right, the Authority 

assesses whether the provision “precludes” the agency from exercising the affected 

management right.479 If it does not, then the arrangement is appropriate, and the 

Authority will direct the agency head to rescind his or her disapproval of the 

provision.

480 (Please note that, as of the date on the front of this Guide, the Authority’s 

use of the abrogation standard is on appeal to the United States Court of Appeals for 

the District of Columbia Circuit.481)

(d) Section 7106(a)(2) – “Applicable Laws”

As discussed previously, agencies must exercise their management rights under 

§ 7106(a)(2) – but not their rights under § 7106(a)(1) – in a manner that complies with 

“applicable laws.”482 Applicable laws include not only statutes, but also the

U.S. Constitution, judicial decisions, executive orders, and regulations having the force 

and effect of law.483 Regulations have the force and effect of law where they: (1) affect 

individual rights and obligations; (2) were promulgated pursuant to an explicit or 

implicit delegation of legislative authority by Congress; and (3) were promulgated in 

accordance with procedural requirements imposed by Congress.484 The Statute is not an 

“applicable law” within the meaning of § 7106(a)(2).

485 

Proposals or provisions that require agencies to comply with applicable laws 

when they exercise their § 7106(a)(2) rights are negotiable.486 But proposals or 

provisions that require agencies to comply with applicable laws when they exercise 

their § 7106(a)(1) rights are not negotiable (unless they are procedures under 

§ 7106(b)(2) or appropriate arrangements under § 7106(b)(3)).

487

 

476 See NTEU II, 65 FLRA at 511-15.

477 Id. (Member Beck dissenting).

478 Id. at 513; see also NTEU III, 66 FLRA at 812.

479 NTEU III, 66 FLRA at 812; NTEU II, 65 FLRA at 515. 

480 E.g., NTEU II, 65 FLRA at 515, 519.

481 IRS v. FLRA, No. 12-1456 (D.C. Cir. Nov. 20, 2012).

482 5 U.S.C. § 7106(a)(2). 

483 Fed. Prof’l Nurses Ass’n, Local 2707, 43 FLRA 385, 390 (1991). 

484 See AFGE, Local 1441, 61 FLRA 201, 206 (2005). 

485 Dep’t of the Treasury, IRS v. FLRA, 494 U.S. 922, 930 (1990).

486 E.g., Weather Serv., 63 FLRA at 452. 

487 E.g., Local 723, 66 FLRA at 644. 
58

(e) Diagram Summarizing § 7106 of the Statute

The following diagram illustrates how the various subsections of § 7106 of the 

Statute interact with one another:
59

4.4 Agency Discretion and “Sole and Exclusive” Discretion

Generally, if a matter is within an agency’s discretion – and not outside the duty 

to bargain on some other ground, such as it being “covered by” an existing collectivebargaining agreement – then the agency must bargain over it.488 

But where a law or an applicable regulation gives an agency “sole and exclusive 

discretion” over a matter, the Authority has found that it would be contrary to law to 

require the agency to exercise that discretion through collective bargaining.489 In 

resolving an agency’s claim that a proposal or provision is not negotiable because the 

agency has sole and exclusive discretion, the Authority examines the plain wording and 

legislative history of the statute or regulation that the agency relies on.490 The Authority 

has found that wording such as “without regard to the provisions of other laws” and 

“notwithstanding any other provision of law” shows that an agency has sole and 

exclusive discretion.491 But a law or regulation need not use any specific phrase or 

words in order to give an agency sole and exclusive discretion.492 

4.5 Agency Rules and Regulations – “Compelling Need”

Agencies may prescribe rules, regulations, and official declarations of policy

(agency rules and regulations) that govern the resolution of matters within their 

particular agencies.493 Generally, agencies must bargain over proposals that conflict 

with agency rules and regulations.494 

But § 7117(a)(2) of the Statute provides, in pertinent part, that the duty to bargain 

“extend[s] to matters [that] are the subject of any agency rule or regulation . . . only if 

the Authority has determined under [§ 7117(b)] that no compelling need (as determined 

under regulations prescribed by the Authority) exists for the rule or regulation.”495 So

an agency need not bargain over a union’s proposal if the agency: (1) identifies a 

 

488 E.g., AFGE, Locals 3807 & 3824, 55 FLRA 1, 4-5 (1998); AFGE, Nat’l Border Patrol Council, 51 FLRA 1308, 

1335 (1996). 

489 E.g., POPA I, 59 FLRA at 346, 351; Ass’n of Civilian Technicians, Mile High Chapter, 53 FLRA 1408, 1412 

(1998) (ACT). 

490 U.S. Dep’t of the Interior, Bureau of Indian Affairs, Sw. Indian Polytechnic Inst., Albuquerque, N.M., 58 FLRA 

246, 248-50 (2002) (Indian Affairs); NAGE, Local R5-136, 56 FLRA 346, 348-49 (2000); ACT, 53 FLRA at

1412-16. 

491 AFGE, Local 3295, 47 FLRA 884, 895 (1993) (internal citations and alteration omitted). 

492 Indian Affairs, 58 FLRA at 248; see also Ass’n of Civilian Technicians, Tex. Lone Star Chapter 100, 55 FLRA 

1226, 1229 n.7, reconsid. denied, 56 FLRA 432 (2000), pet. for review denied sub nom., Ass’n of Civilian 

Technicians v. FLRA, 250 F.3d 778 (D.C. Cir. 2001).

493 E.g., U.S. Dep’t of the Army, Fort Campbell Dist., 3rd Region, Fort Campbell, Ky., 37 FLRA 186, 193-94 

(1990).

494 See AFGE, Local 3824, 52 FLRA 332, 336 (1996) (Local 3824) (claim that proposal was contrary to agency 

regulation did not demonstrate that proposal was outside the duty to bargain).

495 5 U.S.C. § 7117(a)(2). 
60

specific agency-wide or primary-national-subdivision-wide rule or regulation; 

(2) shows that the proposal conflicts with the rule or regulation; and (3) demonstrates 

that there is a compelling need for the rule or regulation under the standards set forth in 

§ 2424.50 of the Authority’s Regulations.

496 That section497 provides:

If an agency claims that a proposal conflicts with an agency rule or regulation for 

which there is a compelling need, then the compelling-need claim must be resolved in a 

negotiability proceeding; it cannot be decided in other proceedings, such as ULP 

proceedings.498 

 

496 Local 5, 67 FLRA at 89.

497 5 C.F.R. § 2424.50.

498 E.g., FLRA v. Aberdeen Proving Ground, Dep’t of the Army, 485 U.S. 409, 412-14 (1988); AFGE, Local 1786, 

49 FLRA 534, 542 (1994).

A compelling need exists for an agency 

rule or regulation concerning any 

condition of employment when the 

agency demonstrates that the rule or 

regulation meets one or more of the 

following illustrative criteria:

(a) The rule or regulation is essential, as 

distinguished from helpful or desirable, 

to the accomplishment of the mission or 

the execution of functions of the agency 

or primary national subdivision in a 

manner that is consistent with the 

requirements of an effective and efficient 

government.

(b) The rule or regulation is necessary to 

ensure the maintenance of basic merit 

principles.

(c) The rule or regulation implements a 

mandate to the agency or primary national 

subdivision under law or other outside 

authority, which implementation is essentially 

nondiscretionary in nature.
61

4.6 Irrelevance of Prior Agreements and Existing Agency Requirements

That an agency has agreed to a proposal in the past does not mean that it must 

bargain over similar – or even identical – proposals in the future.499 For example, prior 

bargaining over permissive subjects does not make future bargaining over those 

subjects mandatory.

500 In addition, that an agency already follows a particular practice 

– for example, where that practice is embodied in an agency rule or regulation – does 

not, by itself, make that practice negotiable.501 But, as discussed above, agencies cannot

rely on agency rules and regulations to decline to bargain unless there is a compelling 

need for those rules or regulations.502 

4.7 Common Bargaining-Obligation Disputes

As discussed in section 1.9 above, when the Authority resolves negotiability 

disputes, the Authority may also resolve bargaining-obligation disputes.503 Three types 

of bargaining-obligation disputes involve claims that: (1) the subject matter of a 

proposal is “covered by” a collective-bargaining agreement; (2) a union is attempting to 

bargain over changes in conditions of employment that are only “de minimis”;

504 and 

(3) a union is attempting to bargain at the wrong “level” of the agency – specifically, 

below the level of recognition.505 We discuss these three examples in more detail here.

(a) “Covered By” Doctrine

Under the Authority’s “covered by” doctrine, a party is not required to bargain 

over conditions of employment that already have been resolved by bargaining.506 This 

doctrine applies to any collectively bargained agreement between the parties, including 

not only term agreements,507 but also more limited agreements such as memoranda of 

understanding.

508 To assess whether a particular proposal is “covered by” the parties’ 

agreement, the Authority applies a two-prong test.509 

 

499 See NTEU, 61 FLRA 554, 557 (2006); Rochester Local, 56 FLRA at 291-92 (citing Allied Chemical & Alkali 

Workers of Am., Local Union No. 1 v. Pittsburgh Glass Co., Chem. Div., 404 U.S. 157 (1971)). 

500 Rochester Local, 56 FLRA at 291-92; see also Local 225, 56 FLRA at 689. 

501 E.g., Veterans Admin. Staff Nurses Council, Local 5032, WFNHP, AFT, AFL-CIO, 29 FLRA 849, 861 (1987). 

502 E.g., Local 3824, 52 FLRA at 336.

503 5 C.F.R. § 2424.30(b)(2). 

504 Id. § 2424.2(a)(1)-(2). 

505 PASS I, 59 FLRA at 488 n.4.

506 Local 1998, 66 FLRA at 126. 

507 E.g., NATCA II, 66 FLRA at 216-17.

508 E.g., Local R1-109, 64 FLRA at 134. 

509 Local 1998, 66 FLRA at 126.
62

Under the first prong, the Authority examines whether the agreement expressly 

contains the subject matter of the proposal.

510 The Authority does not require an “exact 

congruence” between the proposal’s subject matter and the agreement’s text;511 if a 

“reasonable reader” would conclude that the agreement settles the matter in dispute, 

then the matter is covered by the parties’ agreement.512 For example, the Authority has 

found that an agreement did not expressly contain the subject matter of a proposal 

where the agreement concerned the same general range of matters as the proposal, but 

the proposal did not modify or conflict with the agreement’s express terms.513 

If the agreement does not expressly contain the subject matter of the proposal,

then, under the second prong of the “covered by” doctrine, the Authority determines 

whether the matter is “inseparably bound up with, and . . . thus [is] plainly an aspect 

of . . . a subject expressly covered by the [agreement].”

514

 In order to satisfy the second 

prong, a proposal must be “more than tangentially related to” a contract provision.515 

Rather, the party asserting the “covered by” argument must demonstrate that the 

subject matter of the proposal is so commonly considered to be an aspect of the matter 

set forth in the agreement that the negotiations that resulted in the agreement are 

presumed to have foreclosed further bargaining over the matter.516

A non-exhaustive list of Authority decisions finding matters to be covered by

collective-bargaining agreements includes: NATCA;

517 NATCA, AFL-CIO;518 and Prof’l 

Airways Sys. Specialists.

519 A non-exhaustive list of Authority decisions finding matters 

not to be covered by collective-bargaining agreements includes: NFFE, Fed. Dist. 1, 

Local 1998, IAMAW520 and United Am. Nurses, D.C. Nurses Ass’n & United Am. Nurses, 

Local 203.

521 

(b) “De Minimis” Doctrine

An agency is not required to bargain over a change that has only a “de minimis”

effect on conditions of employment.522 When determining whether a change has only a 

 

510 NATCA II, 66 FLRA at 216. 

511 Local 1998, 66 FLRA at 126 (citation omitted). 

512 Id. 

513 NATCA II, 66 FLRA at 216. 

514 Id. (quoting U.S. Dep’t of HHS, SSA, Balt., Md., 47 FLRA 1004, 1018 (1993) (internal quotation marks 

omitted)). 

515 Local 1998, 66 FLRA at 126. 

516 Id.

517 66 FLRA at 218.

518 62 FLRA at 178-79.

519 56 FLRA 798, 803-05 (2000). 

520 66 FLRA at 126-27.

521 64 FLRA 879, 882-83 (2010). 

522 See, e.g., U.S. Dep’t of the Air Force, 355th MSG/CC, Davis-Monthan Air Force Base, Ariz., 64 FLRA 85, 

89 (2009). 
63

de minimis effect, the Authority looks to the nature and extent of either the effect, or the 

reasonably foreseeable effect, of the change on bargaining-unit employees’ conditions of 

employment.523 The number of employees affected by a change is not dispositive of 

whether the change is de minimis.524 

For some examples of Authority decisions addressing this doctrine, see, for 

example: U.S. Dep’t of the Air Force, Air Force Materiel Command, Space & Missile Sys. Ctr. 

Detachment 12, Kirtland Air Force Base, N.M.;

525 U.S. Dep’t of the Air Force, 355th MSG/CC, 

Davis-Monthan Air Force Base, Ariz.;

526 U.S. Dep’t of VA, Med. Ctr., Leavenworth, Kan.;527

U.S. DHS, Border & Transp. Sec. Directorate, U.S. CBP, Border Patrol, Tucson Sector, Tucson, 

Ariz.;

528 U.S. DHS, Border & Transp. Sec. Directorate, Bureau of CBP, Wash., D.C.;529 SSA, 

Office of Hearings & Appeals, Charleston, S.C.;

530 and POPA.531

(c) Attempts to Bargain at Wrong Level

There is no statutory duty to bargain below the level of recognition (which, as 

stated in section 1.7 above, is the level of the agency at which the bargaining obligation 

between the agency and the union exists).532 But bargaining below the level of 

recognition is a permissive subject of bargaining,533 so parties at the level of recognition

may authorize lower-level bargaining.534 And note that if the level of recognition is at a 

lower level in an agency, then the agency cannot decline to bargain solely because the 

matters over which the union requests bargaining are, or may be, also subject to 

negotiations at a higher organizational level.535

 

523 Id. 

524 U.S. Dep’t of the Air Force, Air Force Materiel Command, Space & Missile Sys. Ctr. Detachment 12, Kirtland 

Air Force Base, N.M., 64 FLRA 166, 173 (2009).

525 Id. at 173-74.

526 64 FLRA at 89-90.

527 60 FLRA 315, 318 (2004).

528 60 FLRA 169, 175-76 (2004).

529 59 FLRA 728, 728-29 (2004).

530 59 FLRA 646, 654-55 (2004) (Member Armendariz concurring and Member Pope dissenting), pet. for 

review denied sub nom., Ass’n of Admin. Law Judges v. FLRA, 397 F.3d 957 (D.C. Cir. 2005).

531 21 FLRA 580, 585-86 (1986). 

532 NATCA I, 62 FLRA at 182 (citing U.S. FDA, Ne. & Mid-Atl. Regions, 53 FLRA 1269, 1273-74 (1988) 

(FDA); DOD Dependents Sch., 12 FLRA 52, 53 (1983)).

533 Id. (citing FDA, 53 FLRA at 1274).

534 U.S. DOJ, Fed. BOP, Fed. Corr. Complex, Lompoc, Cal., 66 FLRA 978, 980-81 (2012) (citing FDA, 

53 FLRA at 1274).

535 AFGE, Local 1401, 67 FLRA 34, 37 (2012) (citing Dep’t of the Air Force, Sacramento Air Logistics Ctr., 

McClellan Air Force Base, Cal., 39 FLRA 1357, 1358-59, 1363-71 (1991)).
64

FREQUENTLY CITED DECISIONS

Some of the most frequently cited Authority and court decisions are:

Antilles Consol. Educ. Ass’n, 22 FLRA 235, 236 (1986) (setting forth test for determining 

whether a matter directly affects bargaining-unit employees’ conditions of 

employment).

Commander, Carswell Air Force Base, Tex., 31 FLRA 620, 624 (1988) (Authority must 

resolve “substantively identical” duty-to-bargain issue before FSIP or interest 

arbitrators may make negotiability determinations). 

NAGE, Local R14-87, 21 FLRA 24, 31 (1986) (setting forth test for determining whether a 

proposal is an appropriate arrangement under § 7106(b)(3) – often called the “KANG” 

test). 

NTEU, 65 FLRA 509, 511-15 (2011), review denied sub nom., U.S. Dep’t of the Treasury, 

Bureau of the Public Debt, Wash., D.C. v. FLRA, 670 F.3d 1315 (D.C. Cir. 2012) (setting 

forth test for determining whether a provision is an appropriate arrangement under 

§ 7106(b)(3)). (Please note that, as of the date on the front of this Guide, this test is on 

appeal to the U.S. Court of Appeals for the D.C. Circuit. See Dep’t of the Treasury, IRS, 

Office of the Chief Counsel v. FLRA, No. 12-1456 (D.C. Cir. Nov. 20, 2012).)

SSA, 47 FLRA 1004, 1018 (1993) (setting forth test for determining whether a proposal is 

“covered by” an existing collective-bargaining agreement).

U.S. Dep’t of the Navy, Naval Aviation Depot, Cherry Point, N.C. v. FLRA, 952 F.2d 1434, 

1442 (D.C. Cir. 1992) (holding that proposal directly affecting conditions of employment 

of non-employees or non-unit employees not outside the duty bargain where proposal 

addresses matters that “vitally affect” bargaining-unit employees’ conditions of 

employment).
65

AFTERWORD

We hope that this Guide is helpful. Though it is not an official interpretation of 

the Statute or the FLRA’s Regulations, and is not official policy of the Authority, we 

believe that the Guide can be useful to litigants, negotiators, and others. As stated 

previously, we encourage you to visit the FLRA’s web site, at www.flra.gov, to access 

even more information and guidance, including the wording of the Statute and the 

FLRA’s Regulations, as well as the Authority’s published decisions.