September, 2008AFGE FSED NSPS Bargaining Issues 1 AFGE NSPS Presents Bargaining Challenges

September, 2008AFGE FSED NSPS Bargaining Issues 2 AFGE Bargaining proposals may not be inconsistent with a government-wide regulation. 5 U.S.C (a) (1) Sec (b) (2) of NDAA says NSPS is to be treated as a government-wide regulation. So, we cannot bargain over any proposal that is inconsistent with NSPS regulations BUT…

September, 2008AFGE FSED NSPS Bargaining Issues 3 AFGE It is a ULP to implement any government-wide regulation during the life of a collective bargaining agreement if that regulation conflicts with any provision of that agreement 5 U.S.C (a) (7) UNLESS…

September, 2008AFGE FSED NSPS Bargaining Issues 4 AFGE the contract waives the Union’s right not to bargain.

September, 2008AFGE FSED NSPS Bargaining Issues 5 AFGE What is a waiver? Does my contract have one?

September, 2008AFGE FSED NSPS Bargaining Issues 6 AFGE A waiver allows the agency to put any government-wide regulation into effect during the life of the contract.

September, 2008AFGE FSED NSPS Bargaining Issues 7 AFGE Check the article on: Governing Laws and Regulations Appropriate Subjects for Negotiation Management Rights

September, 2008AFGE FSED NSPS Bargaining Issues 8 AFGE Some real-life examples: In the administration of all matters covered by this Agreement, the PARTIES and the employees shall be governed by the laws and regulations of appropriate government authorities, including applicable policies set forth in the ACT; by the Office Personnel Management; by applicable Department of Defense and Navy Department policies and regulations; or by the regulations of appropriate government authorities required by law.

September, 2008AFGE FSED NSPS Bargaining Issues 9 AFGE Some real-life examples: The provisions of this contract will apply except when in conflict with applicable statute or government-wide regulation issued by appropriate authority. When a future statute or government-wide regulation is issued that is in conflict with the provisions of this contract, Management will notify the Union of the change. This notification will be provided to the Union within 7 calendar days of Management’s receipt of the change. Where possible, Management will provide a 15- day notice of the change. If requested by the Union, Management will meet to discuss the impact and implementation the change will have on bargaining unit employees

September, 2008AFGE FSED NSPS Bargaining Issues 10 AFGE Some real-life examples: Pursuant to the policies set forth in the Civil Service Reform Act of 1978, Public Law (CSRA), National Security Personnel System (NSPS), Public Law , if and should it become law, and subject to all applicable statutes and regulations issued by the Office of Personnel Management and regulations issued by the agency, unless it has been determined that there is not a compelling need for the regulation by the Federal Labor Relations Authority (FLRA), the following articles constitute an agreement by and between the [agency], hereinafter referred to as Management or the Employer, and the AFGE Local ___, hereinafter referred to as the Union.

September, 2008AFGE FSED NSPS Bargaining Issues 11 AFGE Some real-life examples: In the administration of all matters covered by this agreement, officials and employees are governed by laws, policies and regulations of appropriate authorities in existence at the time this agreement was approved and by subsequently published laws, policies and regulations of appropriate authorities.

September, 2008AFGE FSED NSPS Bargaining Issues 12 AFGE If you are not sure whether your contract contains a waiver, get help from a National Representative (Locals) or the Field Services and Education Department (Councils).

September, 2008AFGE FSED NSPS Bargaining Issues 13 AFGE If my contract does have a waiver, what can I do about it?

September, 2008AFGE FSED NSPS Bargaining Issues 14 AFGE Is your contract: In its initial term? Rolled over for another term? (how long?) Expired, but the parties still operate under its terms?

September, 2008AFGE FSED NSPS Bargaining Issues 15 AFGE If your contract is still in its initial term, you cannot withdraw the waiver until after the term finishes.

September, 2008AFGE FSED NSPS Bargaining Issues 16 AFGE If your contract has rolled over for another term, you cannot withdraw the waiver until the end of the new term. The new term could be one year or more, depending on the text of the contract.

September, 2008AFGE FSED NSPS Bargaining Issues 17 AFGE If the contract has expired, even if the parties continue to operate under its terms, the union can withdraw its waiver at any time.

September, 2008AFGE FSED NSPS Bargaining Issues 18 AFGE How do I withdraw a waiver?

September, 2008AFGE FSED NSPS Bargaining Issues 19 AFGE A permissive subject is one the union or the agency may choose to bargain or not. Any waiver of the union’s rights is a permissive subject of bargaining.

September, 2008AFGE FSED NSPS Bargaining Issues 20 AFGE Once a permissive subject is part of the agreement, it cannot be withdrawn until the agreement expires or comes up for renegotiation. By withdrawing consent to any contract provisions concerning permissive subjects, the union withdraws any waivers in the contract.

September, 2008AFGE FSED NSPS Bargaining Issues 21 AFGE Dear Management: The Union hereby terminates its consent to any contract provisions on any subjects that are permissive on the part of the union. Have a nice day.

September, 2008AFGE FSED NSPS Bargaining Issues 22 AFGE What if my contract does not have a waiver?

September, 2008AFGE FSED NSPS Bargaining Issues 23 AFGE Does any part of NSPS conflict with any provisions of the contract? If so, then the article containing those provisions cannot be changed by NSPS during the term of the contract, however, other parts of NSPS that do not conflict with the contract can take effect as of the date the NSPS regulations are prescribed.

September, 2008AFGE FSED NSPS Bargaining Issues 24 AFGE So, if the NSPS conflicted with a provision of the Performance Management article, but no other, the agency could not implement the Performance Management parts of NSPS. It could, however, implement the pay system, promotion and reassignment, and any other aspects of NSPS. BUT

September, 2008AFGE FSED NSPS Bargaining Issues 25 AFGE Aren’t all the parts pretty much connected?? If they can’t do one, is it worth it to do any others?

September, 2008AFGE FSED NSPS Bargaining Issues 26 AFGE OK. So, I can bargain. Or, can I?

September, 2008AFGE FSED NSPS Bargaining Issues 27 AFGE Proposals cannot be inconsistent with a Government-wide regulation.

September, 2008AFGE FSED NSPS Bargaining Issues 28 AFGE This is not conditioned by the need to bargain over “procedures” or “appropriate arrangements.” IRS v NTEU, 996 F.2d 1246, 1251 (D.C. Cir. 1993)

September, 2008AFGE FSED NSPS Bargaining Issues 29 AFGE So, what does “inconsistent” mean?

September, 2008AFGE FSED NSPS Bargaining Issues 30 AFGE First test: “Sole and exclusive discretion” IAM and Bureau of Engraving and Printing, 50 FLRA 677, (1995), aff'd mem. sub.nom. Bureau of Engraving and Printing v FLRA, No (D.C. Cir. 1996)

September, 2008AFGE FSED NSPS Bargaining Issues 31 AFGE Second test: Mandate a standard or procedure that is contrary to the regulation

September, 2008AFGE FSED NSPS Bargaining Issues 32 AFGE Example: Regulation says “case-by-case.” Proposal gives blanket determination. Proposal is inconsistent with regulation. NTEU and Customs Service, 23 FLRA 681, (1986).

September, 2008AFGE FSED NSPS Bargaining Issues 33 AFGE Example: Proposal sets a standard for exercise of authority that expands or contracts standard in the regulation. Proposal is inconsistent with regulation. AFGE Local 1458 and Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3, 4-5 (1987).

September, 2008AFGE FSED NSPS Bargaining Issues 34 AFGE Third test: Proposal precludes agency from taking action that is required by the regulation AFGE Council of HUD Locals and HUD, 43 FLRA 1405, (1992).

September, 2008AFGE FSED NSPS Bargaining Issues 35 AFGE Areas in the contract that need special or additional language for NSPS: Performance Management Pay Merit Promotion Reassignments Classification Overtime

September, 2008AFGE FSED NSPS Bargaining Issues 36 AFGE Specific proposals will be posted in “Bargaining for the Future” in early Suggestions are solicited.

September, 2008AFGE FSED NSPS Bargaining Issues 37 AFGE Expect litigation over whether our proposals are within the scope of bargaining.

September, 2008AFGE FSED NSPS Bargaining Issues 38 AFGE Consult with FSED before filing any negotiability appeals or ULP charges concerning bargaining over NSPS.

September, 2008AFGE FSED NSPS Bargaining Issues 39 AFGE The Contract Campaign: Bargaining happens at the table, but also away from the table. The employees must support the objectives of the negotiating team.

September, 2008AFGE FSED NSPS Bargaining Issues 40 AFGE A Contract Campaign must be part of all bargaining over NSPS.

September, 2008AFGE FSED NSPS Bargaining Issues 41 AFGE The Campaign will also include: The Contract Action Team

September, 2008AFGE FSED NSPS Bargaining Issues 42 AFGE Goals of the Campaign: Build the Union Achieve Contract Improvements

September, 2008AFGE FSED NSPS Bargaining Issues 43 AFGE Employee participation from start to finish Proposals based on priorities of BUEs Motivation at the workplace Influence the decision makers Build alliances Close the deal

September, 2008AFGE FSED NSPS Bargaining Issues 44 AFGE Campaigns Need a Plan Objectives – What do we want to achieve? Implementation Steps – What specific actions must we take to achieve success? Timeline – What happens, when? Resources – What do we need? (e.g., budget, materials, “bodies”)

September, 2008AFGE FSED NSPS Bargaining Issues 45 AFGE Campaign Plan, cont. Responsibilities – Who makes sure what gets done? Evaluation – How are we doing? What adjustments are needed? How did we do at the end?

September, 2008AFGE FSED NSPS Bargaining Issues 46 AFGE Specific training on conducting Contract Campaigns is being developed for early 2009.