Brought to you by: THE APHIS LABOR RELATIONS TEAM

Labor Relations APHIS LABOR RELATIONS: Frank King, Branch Chief LR, (202) 799-7074 Peter Brownell, LR Specialist, (970) 203-4476 Robi Maple, LR Specialist, (803) 396-9150 Joanne Adams, LR Specialist (301) 851-2942 http://inside.aphis.usda.gov/mrpbs/labor_relations.shtml Labor Relations Staff with names and phone numbers. This includes a link to the Labor Relations website. The web site has all the national agreements and MOUs for bargaining units within APHIS.

Labor Relations § 7101 (a) “…Therefore, labor organizations and collective bargaining in the civil service are in the public interest.” § 7101 (b) “It is the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal government and to establish procedures which are designed to meet the special requirements and needs of the Government. The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government.” Labor relations within the Federal sector is based upon the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code as Amended. The Statute as it is called provides…

Labor Relations WHAT ARE MY “RIGHTS” (as a Manager) To assign work To give performance appraisals To have a management “rep” when meeting with the Union To take disciplinary actions To Hire and reassign Take necessary action to complete the mission of the agency 7106 assigns these rights to management: to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and To hire, assign, direct, layoff and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; To assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted; With respect to filling positions, to make selections for appointments from – 1) among properly ranked and certified candidates for promotion; or 2) any other appropriate source; and To take whatever actions may be necessary to carry out the agency mission during emergencies.

Labor Relations Two types of management’s rights Mandatory or “reserved” rights Appropriate arrangements and I & I bargaining Permissive rights Always check your negotiated contract for language on management rights There are two categories of management rights, "mandatory" or reserved rights, such as the right to determine mission, budget, internal security and "permissive" rights. Permissive rights are those rights (i.g., numbers, types and grades of employees assigned to an organizational subdivision, work project, or tour of duty or the methods, means and technology of performing work) that management may bargain, but is not statutorily required to do so. Although the law does not mandate bargaining over "permissive" management rights, once the parties include such rights in the collective bargaining agreement, they are enforceable for the life of the agreement. Even with respect to nonnegotiable "reserved" management rights, management must bargain, upon request, over the procedures it will use in exercising these rights and on appropriate arrangements for employees adversely affected by the exercise of such rights. (This is commonly referred to as I&I bargaining.) For example, in a reduction-in-force, the decision to RIF is a management right, but outplacement or other assistance for displaced employees are negotiable issues.

Labor Relations Negotiability appeals or outside the duty to bargain Mitigation of an adverse impact of the exercise of a management right Excessive interference test When there is a question whether a proposal is outside the duty to bargain because it involves a management right or is subject to bargaining as a condition of employment, the matter may be raised as a negotiability appeal to the Federal Labor Relations Authority (FLRA). Negotiability decisions of the FLRA can be challenged in Federal court. A union may propose measures whose purpose is to alleviate the adverse impact on unit employees of a management action. If, however, the union's proposal seriously interferes with the exercise of a management right, the FLRA will apply the "excessive interference" test. That test provides that a union proposal whose purpose is to ameliorate the adverse effects of a management decision is negotiable unless it impinges upon a management right to an excessive degree.   Even where a proposal would violate management rights, management is encouraged to discuss these proposals with the union and attempt to resolve the union's concerns while preserving management's rights.

Labor Relations WHAT ARE THE UNION’S RIGHTS? To “represent” their Bargaining Unit Formal discussions and examinations To negotiate contracts or changes in working conditions To offer and present its views to the Agency To obtain information To have “official time” for representation duties To file grievances or complaints 1. A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership. (It is not a closed shop.) 2. More to come on formal discussions and examinations of employees. 3. To negotiate contracts or changes in working conditions. Statute states, in part, “…shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement.” 4. To offer and present its views to the agency. Currently this is accomplished through periodic “consultation” and/or pre decisional involvement. 5. To obtain information. The Statute states, in part, “…to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data…” There are some restrictions on the data to be provided. 6. To have official time for representation duties. 7. To file grievances or complaints.

Labor Relations Formal discussion Examination of employees Weingarten rights The Statute (7114(a)(2) states: An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at – (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment; or (B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if – (i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and (ii) the employee requests representation. The latter is often referred to as Weingarten rights.

Formal Discussions Union Representation at the Meeting The union has the right to choose which representative it wants to send to the meeting.  If a union representative does attend, the representative may: ask clarifying questions state the union’s views agree or disagree with management’s views Union is entitled to advance notice and the right to choose the representative. The role of the union representative

Formal Discussions The union representative should not: disrupt the meeting take over the meeting bring the meeting to a halt engage in egregiously disrespectful or antagonistic behavior answer for the employee instruct the employee not to answer questions or provide a completed, signed affidavit or interrogatory

Weingarten Rights In 1975 the United States Supreme Court, in the case of NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), upheld a National Labor Relations Board (NLRB) decision that employees have a right to union representation at investigatory interviews. These rights have become known as the Weingarten Rights.

Weingarten Rights During an investigatory interview, the Supreme Court ruled that the following rules apply: The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request. After the employee makes the request, the employer must choose from among three options. The employer must: grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; deny the request and end the interview immediately; or give the employee a choice of having the interview without representation or ending the interview. 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.

Weingarten Rights What Role Does the Union Representative Play? The representative's role is to assist the employee and the representative may do so "by attempting to clarify the facts or suggest other employees who may have knowledge of them." A representative oversteps his/her bounds in instructing an employee not to answer a question or questions during an interview. An employer may "eject" a representative who engages in such behavior because "it is within an employer's legitimate prerogative to investigate employee misconduct in its own facilities without interference from union officials.”

Information Request Right to Information 1. Only Union may request 2. Maintained in regular course of business 3. Reasonably available 4. Reasonably necessary for full/proper discussion, understanding, and negotiation provide particularized-need statement 5. Exception for information constituting guidance, advice, training for Management related to collective bargaining

Official Time A grievant, and/or Union Representative will be entitled to a reasonable amount of official time, taking into account workload considerations, to prepare (e.g., gather facts and information, etc.), consult with a Union Representative, and present a grievance. Reasonable should be determined by a consensus between the supervisor and employee/union representative. Supervisor should ask: 1) how much time is needed; 2) when is it needed; and, 3) what is the time for. In the absence of reasonableness on the part of the employee/union representative the supervisor will have to determine what is reasonable. I suggest you speak with your labor management representative.

Unfair Labor Practices (ULP) - (a) It shall be an unfair labor practice for an agency— to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment; to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under this chapter; Relief is usually return to the status quo ante and posting.

Unfair Labor Practices (ULP) - to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; … to enforce any rule or regulation (other than a rule or regulation implementing section 2302 of this title) which is in conflict with any applicable CBA if the agreement was in effect before the date the rule or regulation was prescribed; or to otherwise fail or refuse to comply with any provision of this chapter.

Consultation § 7117(d)(1) A labor organization which is the exclusive representative of a substantial number of employees, determined in accordance with criteria prescribed by the Authority, shall be granted consultation rights by any agency with respect to any Government-wide rule or regulation issued by the agency effecting any substantive change in any condition of employment. Consult - Seeking and giving of advice, information, and/or opinion, usually involving a consideration. A conference at which advice is given or views are exchanged. Check your agreements.

Pre-Decisional Involvement 1. What is PDI? Pre-Decisional Involvement Under EO 13522 Agencies must establish labor-management forums and, through the forums Allow employees and union pre-decisional involvement to the fullest extent practicable on all workplace matters without regard to negotiability under §7106 of the Statute

Pre-Decisional Involvement Basic Principles PDI occurs early when ideas are forming Participants have common expectations Information is freely shared Joint development of solutions Consensus based problem-solving, focused on interests

What is a Grievance? A grievance means any complaint: A. By any employee in the bargaining unit concerning any matter relating to the employment of the employee; B. By the Union concerning any matter relating to the employment of any employee within the bargaining unit; or C. By any bargaining unit employee, the Union, or the Employer concerning: 1. The effect or interpretation, or a claim of breach, of this Agreement; or, 2. Any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment. Check your agreement.