A Brief Overview of the Labor- Management Relations Statute John R. Obst Vice President, NFFE

JRO Brief Bio Research Chemist at the Forest Products Laboratory, Madison, WI. (Retired in 2003 after a 34 year career in wood and pulping chemistry research.) Local 276 Past-VP, Past-President. NFFE Forest Service Council Past- President. NFFE Vice President since Wisconsin native.

A Little Labor History…. What were things like in the past? As “recently” as the late 19 th Century, federal working conditions were extremely unhealthy, dangerous, and dismal. Buildings were dank, dark, crowded, and unventilated. Typhoid and other diseases from unsanitary environments took their toll. Numerous deaths and injuries occurred in the workplace.

History of federal employment… Pay was poor. Federal employees were required to work up to 18 hrs/day without overtime pay. Employees had to work Saturdays and every other Sunday without additional compensation.

Finally, federal employees banded together to address their concerns. But, the federal government fought to stop unionization: Employees were told that Unions weren’t for them, that federal employees were: - ‘professional civil servants’ and ‘white collar government officials’ – that they were above the mere laborers who belonged to Unions; Mgmt said it would be demeaning for federal employees to join a Union.

Anti-Union action by government: In 1895, the Postmaster General forbid postal employees from talking to Senators and Legislators about pay, benefits, and working conditions. If they did, the penalty was REMOVAL.

But the labor movement continued: In 1900, the first federal local (8703) affiliated with the American Federation of Labor (Chicago postal clerks). The fight was on for 8 hour days, better pay, and safe working conditions.

And the government fought back: In 1902, President Teddy Roosevelt signed an Executive Order denying basic constitutional rights to federal employees. This E.O. forbid federal employees from talking to Congress about higher wages and forbid employees to try to influence any legislation. (Penalty was REMOVAL). In 1909, President Taft forbid workers from answering any questions posed by Congress regarding their working conditions (the “gag rule”).

Legislative Advances: 1912: Lloyd-LaFollette Act rescinded previous gag rules; establishes the rights of federal workers to form Unions. 1916: First Federal Employees Compensation Act. 1920: Civil Service Retirement Act (retire at 65). 1935: Wagner Act established collective bargaining for most workers… …federal employees were EXCLUDED.

Legislative Advances: 1962: Kennedy signs E.O gave Unions the right to negotiate with management concerning working conditions, promotion standards, grievance procedures, safety and other matters, BUT not over pay and benefits. - However, no binding arbitration or impasse procedures; mgmt had the final word.

Legislative Advances… 1978 Civil Service Reform Act: - created the foundation for labor relations in the federal sector; - created the Office of Personnel Management (OPM), the Federal Labor Relations Authority (FLRA), and the Merit Systems Protection Board (MSPB); - impasse and arbitration procedures created; - Congress specifically declared labor organizations and collective bargaining in the federal government to be "in the public interest.”

The Labor Statute The Civil Service Reform Act of 1978 is the Labor Statute and it has been codified as Title 5 of the United States Code Chapter 71. Practically, when we talk about the “labor statute” or the “federal labor relations statute” we are talking about 5 U.S.C. 71.

1) What you need to know about the Statute. What is the FLRA? FLRA = Federal Labor Relations Authority a federal agency created by the Civil Service Reform Act of 1978; provides guidance relating to Federal Service Labor Management Relations; resolves disputes under, and ensures compliance with, the Statute (5 USC 71).

Three Parts of the FLRA that you may deal with. The Authority The Office of the General Council The Federal Service Impasses Panel

The Authority The Authority is a quasi-judicial body with three full- time Members who are appointed for five-year terms by the President; It adjudicates: - disputes concerning the negotiability of collective bargaining agreement proposals, - appeals concerning Unfair Labor Practices (ULPs) and representation petitions, - exceptions to grievance arbitration awards.

Office of the General Counsel The Office of the General Counsel (OGC) is the FLRA's independent investigator and prosecutor. The General Counsel is appointed by the President. The OGC, through the seven Regional Offices, is initially responsible for processing ULP allegations and representation matters filed with the FLRA.

Federal Service Impasses Panel The Panel has seven Presidential appointees who serve on a part-time basis. The Panel resolves impasses from negotiations over conditions of employment under the Statute, the Federal Employees Flexible and Compressed Work Schedules Act, and the Panama Canal Act of 1979.

2) What you need to know about the Statute. The Statute and the Contract are different. (The Contract is also known as the Collective Bargaining Agreement or CBA, and, in the FS, as the Master Agreement or MA.)

The Statute. The Statute (Chapter 71 of Title 5 of the United States Code, a.k.a. 5 USC 71) is a law that confers certain legal rights to employees, the Union, and the Agency.

The Contract. “ Collective bargaining is the performance of a mutual obligation by the Union and the Agency to bargain in good faith to reach agreement concerning conditions of employment.” The written agreement resulting from bargaining (negotiations) is the Contract (CBA). The Statute authorizes collective bargaining; the Contract “springs from” the Statute.

Differences between Statute and the Contract Statute Generally broad in scope. Applies across many agencies. Provides the foundation for labor-relations and collective bargaining. Contract Generally narrow in scope (nitty gritty issues). Applies only to the Bargaining Unit. Is the product of collective bargaining.

Differences between Statute and the Contract Statute Violation of the law is an unfair labor practice (ULP). Statute is enforced through the ULP charge. Charge investigated by the General Counsel’s Office of the FLRA. Complaint/Hearing FLRA does the work and it’s FREE. Contract Violation of the Contract is a breach of the agreement. Contract is enforced through grievances. No 3 rd party investigation. Grievance Arbitration A loss at arbitration could be very costly.

Sidebar: What’s an MOU? Memorandum of Understanding: - is a negotiated agreement subordinate to the Contract; - it may not be in conflict with the Contract; - the MOU is a contract, but not the Contract.

3) What you need to know about the Statute. Employee rights. Section 7102: Employees’ rights include: The right to form, join, or assist any labor organization, or to refrain from such activities.

Other Statutory Rights of Employees and the Union. Right to Information (U); Right to negotiate over conditions of employment (U); Right to be represented by the Union at investigative meetings (Weingarten) (E); Right to be present and participate at formal meetings (U).

It is against the law (an Unfair Labor Practice) for the agency to trample on employee rights. Section 7116(a)(1) states that it is an ULP for an agency to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under the Statute.

Interference/coercion? Is linking satisfactory job performance to Union duties an ULP?

Interference/coercion The issue is not whether an employee was actually coerced or intimidated by the agency’s actions. The test is whether the actions could reasonably tend to coerce or intimidate the employee, or whether the employee could have reasonably drawn a coercive inference from the actions.

Discrimination Section 7116(a)(2) states that it is an ULP for an agency to: encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment.

Discrimination continued “Common” discriminatory actions: - suspension or other discipline, - lowered performance appraisal, - reassignment, - disapproval of leave.

Discrimination continued The remedy for a 7116(a)(2) violation is to require the agency to make the employee “whole” for all losses suffered, which may include the payment of backpay.

Note It is not an ULP for an agency representative to express a personal view, argument or opinion which contains no threat of reprisal, or was not made under coercive conditions. (Right of free speech – but, managers must be neutral during an election.) However, my advice to managers is to stay away from such comments in the workplace. This is a “red flag” area, no point in pushing the boundary.

4) What you need to know about the Statute. The Union is the exclusive representative of bargaining unit employees, and, as such, has certain rights under the Statute.

Exclusive representative: 5 USC Definition: the exclusive representative is that Union which is certified by the FLRA as the exclusive representative of a unit of employees by virtue of having won a representation election. It is an unfair labor practice for an agency to deal with other Unions or organizations or special interest groups (or, for that matter, to deal directly with unit employees).

The exclusive representative: …among other things, has the right to negotiate bargainable aspects of the conditions of employment of bargaining unit employees, to be afforded an opportunity to be present at formal discussions, to free dues withholding arrangements and, at the request of the employee, to be present at Weingarten examinations of unit employees.

The exclusive representative. Key point: Only the exclusive representative can represent, and/or negotiate for, the Bargaining Unit. Other situations where non-Union representatives are allowed: 1) An employee may represent her/himself in the grievance process (but only the Union can invoke arbitration). 2) The Union has no exclusivity in statutory processes such as MSPB and EEO complaints, OPM and FLSA appeals, Workers Compensation Claims, etc.

5) What you need to know about the Statute. Union presence at an investigation interview. (Weingarten meeting.)

Weingarten Rights: Section 7114(a)(2)(B) grants the Union the right to be present during: 1) an examination of an employee in connection with an investigation, if, 2) the employee reasonably believes that the examination may result in disciplinary action against the employee, and, 3) the employee requests representation.

Weingarten continued “…an examination…in connection with an investigation…” This does not include, for example: - a meeting solely concerned with an employee’s performance evaluation, - a meeting limited to informing an employee of a decision already reached.

Weingarten continued How to ask for a representative. Lawyer-talk for an employee requesting representation: “The totality of the circumstances must be sufficient to put the agency on notice of the employee’s desire for representation.”

How to ask for representation: “I WANT A UNION REP!” NOT: “I think I should talk to someone. “Do you think I should have a Union Rep.” “Maybe we ought to get a steward.”

If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice, and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.

What to Say if Management Asks Questions That Could Lead to Discipline. "If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I request that a union representative be present at the meeting. Without representation, I choose not to answer any questions."

Weingarten continued Once the elements for a Weingarten meeting are established, the agency may: - grant the request for representation, - postpone the interview if a representative is not immediately available, - offer the employee of proceeding with the interview without representation or having no interview at all.

Weingarten continued The Union Steward has the following “Weingarten” rights: to find out what the interview is about; to meet privately with the employee prior to and during the interview (but can’t interfere too much); to speak and to ask questions of management during the interview; to assist the employee in answering questions; to object to abusive or harassing questions.

Weingarten continued The Statute (7114(a)(3)) requires that “each agency shall annually inform its employees of their rights under paragraph (2)(B) of this subsection.” How is this done? Does your Contract go further?

6) What you need to know about the Statute. Union presence at a formal discussion (formal meeting).

Formal discussions Section 7114(a)(2)(A) grants the Union the right to be represented at: any formal discussion between one or more representatives of the agency and one or more employees concerning (1) any grievance or (2) any personnel policy or practice or (3) other condition of employment.

Formal discussions cont. Elements contributing to formality: - employees required to attend - notes or meeting minutes taken - an agenda or meeting plan exists - meeting is held in a conference room - higher level officials participate or are invited - meeting scheduled in advance - significant topic of concern to employees/Union - general discussion of workplace concerns - discussion of personnel policy that pertains generally to all employees - discussion of a formal EEO complaint - discussion of any grievance - may be others.

Formal discussions cont. A meeting with an employee to discuss her work performance does not concern a general condition of employment and is not a formal discussion.

Formal discussions cont. Prior to conducting a formal discussion, the agency must provide adequate notification to the Union to allow it to choose its representative to attend the meeting.

What the Union can do at Formal Discussions: Ask for delay to send a Union Rep who is “expert.” Ask what the meeting is about. Clarify matters being discussed. Represent interests of the Bargaining Unit. Speak, comment and make statements about the subject being discussed. Ask questions about the subject discussed.

What the Union must not do at Formal Discussions: Unreasonably delay a meeting because a particular representative is unavailable. Insist on more than one representative. Refuse to attend a formal discussion when there has been actual notice which allowed the Union to select a representative of its choice, but there was no formal notice of the meeting. Demand that other topics be discussed. Act in any manner that disrupts the meeting or thwarts the purpose of the meeting.

Formal or Weingarten Summary Weingarten Investigation where there is reasonable belief that discipline will result. Employee must request representation. Union is largely there as representative of the employee. Formal meeting Meeting between Agency and employees regarding conditions of employment. Agency must notify union. Union is representing bargaining unit.

7) What you need to know about the Statute. Negotiations Why must the agency negotiate with the Union? 7114(a)(1): A labor organization which has been accorded exclusive representation is entitled to act for and negotiate collective bargaining agreements which cover all employees in the Unit. Only the Union negotiates on behalf of Unit employees.

Types of Negotiations: Contract Negotiations (Master Agreement); Mid-Term Negotiations (MOUs); - Union proposals in response to agency changes; - Union-initiated proposals; - Jointly initiated MOUs (Partnership).

What is the agency required to bargain? Those issues within the scope of bargaining. Conditions of Employment.

Scope of bargaining Management Rights (7106(a)) not bargainable. Nothing shall affect the authority of the agency: to determine mission, budget, organization, number of employees, and internal security; to hire, assign, direct, layoff, and retain employees*; to suspend, remove, reduce in grade or pay, or take disciplinary action*. * “in accordance with applicable law”

Scope of bargaining Management Rights (7106(a)) not bargainable. Not bargainable: to assign work, to contract out, and to determine the personnel who will carry out agency operations; to fill positions from among properly ranked and certified candidates or any other source; to take whatever actions are necessary to carry out the agency mission during emergencies.

Elective (Permissive) Subjects 7106(b)(1) Scope of bargaining cont. Numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project or tour of duty Technology, methods and means of performing work. These subjects may be bargained if the agency agrees.

What is the agency required to bargain? Issues within the scope of bargaining. Conditions of Employment. - Working conditions and personnel policies and procedures. (The Duty to Bargain: the agency must bargain with the Union before changing any working conditions of bargaining unit employees.)

Personnel Policies and Practices Policies – written rules. Such as leave policy, dress code, merit promotion, etc. Practices – unwritten rules. For example, a policy that allows employees to swap overtime assignments. (A “past practice” is one that has been followed for a long time with the knowledge and acceptance of the Union and the Agency.)

Working conditions are various aspects of employees’ work environments. Examples: Office furniture Air conditioning Parking Vending machines Water coolers Protective clothing Window shades Everything?

I & I Bargaining Management rights cannot be bargained. But, the Union may engage in “implementation and impact” bargaining, if the proposals do not excessively interfere with the exercise of the agency right.

Implementation and Impact Bargaining The Union has a right to bargain: 1) Procedures which management will observe in exercising any right it has; 2) Appropriate arrangements for employees adversely affected by the exercise of any agency right. 7106(b)(2) and (3)

Appropriate Arrangement Management right: Discipline – for example, a letter of reprimand. Appropriate arrangement: Union proposal is that the letter of reprimand will be removed from the employee’s file no later than 12 months from issuance date.

8) What you need to know about the Statute. How to make information requests. One of the most important tools that Unions have to better represent employees in grievances and negotiations.

How to make information requests. Handled in a separate presentation in the Basic Steward Training. To get it right, you have to understand “particularized need”, and not ask for something prohibited by the Privacy Act.

Particularized Need Need to show: why you need the information; how you intend to use it; and, how the information relates to your role as the exclusive representative.

Privacy Act. Very, very difficult to get information that contains “personal identifiers”. Always ask for “sanitized” documents first. Guidance on making information requests is back on the FLRA website ( ). The Bush administration had removed it).

9) What you need to know about the Statute. Filing complaints about non- compliance with the Statute.

Labor Statute “common” complaints Unfair labor practices (ULPs) Representation/Clarification of Unit petitions. Negotiability appeals. Bargaining Impasses. Appeals of Arbitration Awards

Filing Unfair Labor Practice Charges FLRA Guidance on ULPs: How and when to file ULPs will be dealt with in a separate presentation during the Basic Steward Training. And, remember ULPs are for violations of the Statute; Contract violations are remedied through the grievance/arbitration processes.

FLRA Complaint Guidance (and be sure to read your contract as well) Negotiability, Bargaining Disputes, and Impasses: Appeals of Arbitration Awards: Representation/Clarification of Unit:

Note: Clarification of Unit The statute excludes ‘confidential employees’ from the Bargaining Unit. Agencies generally want to limit the number of BU employees and incorrectly categorize a number of employees as ‘confidential.’ Locals must be vigilant to enforce the statute regarding representation of confidential employees.

LMR Info Source: OPM Glossary of Terms CONFIDENTIAL EMPLOYEE. Under § 7103(a)(14), "an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor- management relations[.]"(Emphasis added.) Under § 7112(b)(2), confidential employees must be excluded from bargaining units. Disputes over whether an employee is a confidential employee are resolved by FLRA, usually via a 5 CFR (b) petition. Examples: 31 FLRA No. 6, 33 FLRA No. 30, 37 FLRA No. 16, 37 FLRA No. 112, 47 FLRA No. 48, and 50 FLRA No. 21.§ 7103(a)(14)§ 7112(b)(2)5 CFR (b)31 FLRA No. 633 FLRA No FLRA No FLRA No FLRA No FLRA No. 21

10) What you need to know about the Statute. The Union’s Duty of Fair Representation. Section 7114(a)(1) of the Statute imposes the DFR on unions that are exclusive representatives. What this means is that the Union must fairly and equally represent all bargaining unit employees.

Types of DRF Violations Discrimination: Non-union members are treated worse than Union members. Improper representation of employees.

DFR: Improper representation To be a DFR violation, the Union’s conduct must “rise to the level of deliberate and unjustifiable arbitrary and bad faith conduct.”

DFR: Improper representation cont. Inept and negligent representation by the Union is not necessarily a DFR violation. The Union is given latitude to make mistakes when representing an employee.

DFR: Discrimination against non- Union members The Union may not treat non-Union unit employees differently from dues paying Union members. But this only applies in matters where the Union has exclusive control and where the non-members have no other choice for representation. (E.g.., Union does not have to represent BUEs in MSPB proceedings.)

Remedy for DFR Violation “Make whole.” If the Union was guilty of improper representation in a grievance of agency discipline, and an employee received a 14 day suspension as a result, the remedy would be that the Union would pay 14 days of back wages to the employee.

DFR Does DFR mean that Union members and non- members always have to be treated the same? NO. Non-Union bargaining unit members may be excluded from Union meetings. Non-Union bargaining unit members do not participate in Union elections. Non-Union bargaining unit members may be excluded from negotiations (some exceptions, though.) (And, remember, negotiations proposals must not discriminate against non-members).

For more training on the statute, periodically, the FLRA conducts workshops on the labor relations statute at its regional offices. FLRA Regional Offices: Atlanta, Boston, Chicago, Dallas, Denver, San Francisco, Wasington, D.C. Check for scheduled training.