1. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Chapter 2 Changes That Trigger Bargaining

2. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 What Triggers I&I Bargaining Not every workplace change triggers the right or the obligation to bargain. A change will require notice and bargaining only if it: 1. Alters a condition of employment; 2. Affecting bargaining unit employees; 3. To more than a de minimis extent; and 4.The change is not already “covered by” a provision contained in a labor agreement. National Weather Service, 37 FLRA 392. Check the Toolbox for National Weather Service.

3. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Conditions of Employment The statute defines the term “conditions of employment” as meaning: “[T]he personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions...” of bargaining unit employees.

4. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 NOT Conditions of Employment Personnel policies and practices applicable to individuals who are not included within a bargaining unit are also not within the statutory definition of a condition of employment. Similarly, matters that conflict with provisions of law, including those that would excessively interfere with the statutory management rights contained in 5 U.S.C. 7106 (a), or with applicable governmentwide regulations, or with agency regulations for which a compelling need exists, do not qualify as conditions of employment.

5. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 COE Exclusions The statute also specifically excludes certain matters from the definition of conditions of employment. These are: “…policies, practices, and matters — (A) relating to political activities prohibited under subchapter III of Chapter 73 of this title; (B) relating to the classification of any position; or (C) to the extent such matters are specifically provided for by federal statute.”

6. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 COE vs. Working Conditions The FLRA has distinguished between management-initiated changes that alter a COE, and those that may alter employees’ working conditions through the exercise of an existing COE. Naval Amphibious Base, Little Creek, 9 FLRA 774, 82 FLRR 1-1603; OSHA, Region 1, 58 FLRA 213, 103 LRP 131. Example: Altering the agency policy on how employees are selected for details would constitute a change to a COE. Check the Toolbox for Naval Amphibious Base and OSHA, Region 1.

7. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 COE vs. Working Conditions But simply assigning an employee to a detail using the existing provisions governing such assignments, although it might result in a change to an individual employee’s working conditions, would not amount to a change to the COE; i.e., the policy on selecting employees for details.

8. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 COE vs. Working Conditions A more than de minimis change to an existing COE of bargaining unit employees triggers the obligation to notify the exclusive representative and, upon demand, to bargain. But a mere change to working conditions, absent any change to COE of bargaining unit employees, does not trigger the obligation to bargain.

9. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Activity — Pick the COE Look over the following items. Which meet the definition of condition of employment? Click to the next slide to find out. 1.Labor agreement provision requiring rotation of overtime assignments. 2.Policy requiring rotation of supervisors every six months. 3.An unwritten practice of allowing 10 minutes clean-up time. 4.Price of snack items sold in break room vending machines. 5.Appropriate grade level for employees assigned team leader duties. 6.Requirement to temporarily promote employees detailed to higher graded positions after 30 days in the position.

10. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Activity — Pick the COE The items that meet the definition of conditions of employment are: Labor agreement provision requiring rotation of overtime assignments. An unwritten practice of allowing 10 minutes clean-up time. Price of snack items sold in break room vending machines. Requirement to temporarily promote employees detailed to higher graded positions after 30 days in the position.

11. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Bargaining Unit Employee The statute requires bargaining only in relation to changes that affect the COE of bargaining unit employees. An employee is a member of a bargaining unit if: a.He occupies a position within a bargaining unit that has been determined to be appropriate by the Federal Labor Relations Authority; and b.The unit is represented by a labor organization that has been certified as the exclusive representative of all employees within the bargaining unit.

12. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 The de minimis Standard A change has de minimis effect if it is essentially inconsequential in its impact on a condition of employment. In determining whether a change is de minimis, the FLRA considers the nature and extent of the effect, or the reasonably foreseeable effect, of the change. A change that affects only one employee will not necessarily be considered de minimis. Defense Logistics Agency, 58 FLRA 750; SSA, Malden, 54 FLRA 531, and VA Medical Center, Phoenix, 47 FLRA 419, 93 FLRR 1- 1085. Check the Toolbox for Defense Logistics Agency and SSA, Malden. Also, see VA Medical Center, Phoenix.

13. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Activity — Is It More Than de minimis? Which of the changes below do you think the FLRA has deemed to be more than de minimis? Check answers on the next slide. A change in the workload of claims representatives that the FLRA described as “slight.” Termination of bottled water cooler service. Cancellation of a subscription to Federal Times.

14. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Activity — Is It More Than de minimis? They were all deemed — in previous decisions by the FLRA — to be more than de minimis.

15. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 The ‘Covered by’ Principle A party is not required to bargain concerning a matter that is already “covered by” a provision contained in a collective bargaining agreement that is in effect. A matter is “covered by” an agreement if it is: 1.Explicitly addressed within an agreement provision; or 2.Inseparably bound up with (i.e., closely related to) a matter contained in the agreement and, thus, an aspect of the matter contained in the agreement. Social Security Administration, 25 FLRA 238. Check the Toolbox for Social Security Administration.

16. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 ‘Covered by’ Test: Prong 1 The FLRA applies a “two-prong” test to determine whether a matter is “covered by” an existing labor agreement. Under the first “prong,” a bargaining proposal will be found to concern a matter already expressly contained in an agreement only if it would have the effect of conflicting with or modifying the agreement. Federal Aviation Administration, 61 FLRA 437, 106 LRP 640. Check the Toolbox for Federal Aviation Administration.

17. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 ‘Covered by’ Test: Prong 2 Under the second “prong,” a matter will be considered to be “inseparably bound up with” an agreement provision only if: 1.The subject matter in dispute is more than tangentially related to the agreement provision. 1.The topic being raised in the proposal is something that should have been contemplated as within the scope of the agreement provision. Internal Revenue Service, 56 FLRA 906, 101 FLRR 1-1034. Check the Toolbox for Internal Revenue Service.

18. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Coverage of the ‘Covered by’ Doctrine The “covered by” doctrine also applies to expired collective bargaining agreements. Additionally, the doctrine is not limited to term agreements. So if parties have negotiated a memorandum of understanding or similar agreement, it may also preclude future bargaining on that subject while it remains in effect.

19. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Mixed Messages? The FLRA has delivered mixed messages as to whether an agency policy implemented as the result of a union’s failure to bargain constitutes an agreement, and is, therefore, subject to application of the “covered by” doctrine. In one case, Department of Labor, 60 FLRA 68, 104 LRP 31767, the FLRA ruled that a policy implemented in this circumstance did, in fact, constitute a collective bargaining agreement. Check the Toolbox for Department of Labor.

20. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Not a CBA But shortly afterward, in Customs and Border Protection, 60 FLRA 483, 104 LRP 60627, an FLRA majority held that a policy implemented following a union’s waiver of its right to bargain did not constitute a collective bargaining agreement. Check the Toolbox for Customs and Border Protection.

21. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Chapter 2 Summary A change will require notice and bargaining only if it: –Alters a condition of employment; –Affecting bargaining unit employees; –To more than a de minimis extent; and –The change is not already “covered by” a provision contained in a labor agreement. A condition of employment is NOT the same thing as a working condition. More than de minimis changes to a COE require notice and bargaining upon demand.

22. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Chapter 2 Summary Changes to employee working conditions resulting from the exercise — as opposed to change — of an existing COE do not trigger the obligation to bargain. The statute defines the term “conditions of employment” as: –“[T]he personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions...” of bargaining unit employees. This does not include policies applicable to persons outside the bargaining unit (e.g., supervisors), or matters in conflict with governing laws, governmentwide regulations, or compelling need agency regulations.

23. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Chapter 2 Summary There is no obligation to bargain if a management-initiated change will not result in a more than de minimis impact upon the COE of bargaining unit employees. De minimis impact is determined by examining the nature and extent of the effect, or the reasonably foreseeable effect, of the change. Even changes that the FLRA has described as “slight” have been found to be more than de minimis.

24. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Chapter 2 Summary There is no obligation to bargain if a matter is already “covered by” an existing collective bargaining agreement. An existing agreement may include an MOU or expired labor agreement. The FLRA appears undecided as to whether an agency proposal implemented following the failure or refusal of a union to bargain constitutes an agreement subject to the covered by principle.

25. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 2 Chapter 2 Assessment Click on Assessments in the cyberFEDS® eLearning navigation bar above to take the assessment.