What is a union?

A union is an organization composed in whole or in part of employees, in which employees participate and pay dues, and which has as a purpose the dealing with an agency concerning grievances and conditions of employment.

 What is Negotiation or Collective bargaining?

 Collective Bargaining is bargaining between and/or among representatives of agencies and labor unions to set working conditions for all employees in an appropriate bargaining unit. Employees have the right to engage in negotiations (i.e., collective bargaining) over conditions of employment through their chosen union representatives. Negotiating or collective bargaining is the mutual obligation of management and the union to meet at reasonable times and bargain in a good faith effort to reach agreement with respect to conditions of employment affecting employees represented by the union. Conditions of employment is a broad term which encompasses personnel policies, practices, and matters affecting working conditions. Certain matters are specifically excluded by law from being considered a condition of employment (e.g., the classification of a position).

 What are conditions of employment?

 Conditions of employment means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise [e.g., by custom or practice], affecting working conditions, except that such term does not include 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 positions; or (C) to the extent such matters are specifically provided for by Federal statute.

 What Rights do Employees have in the Labor Relations Statute?

 Employees have the right to form, join or assist a union or to refrain from doing so. Employees shall be free to exercise this right without fear of penalty or reprisal and shall be protected in exercising this right. Employees have the right to:

  • Act as a union representative, and in that capacity, to present union views to agency management, the Congress or other authorities;
  • Negotiate over conditions of employment through their chosen representative;
  • Decide whether to be a union member, and if a union member, how actively engaged.

What are the Representational Rights of the Union?

 A union that has been accorded exclusive recognition for a bargaining unit has a duty to fairly represent all employees in the bargaining unit. The union has the right to:

  • Negotiate with management in good faith concerning conditions of employment;
  • Obtain data normally maintained by management that is reasonably available and necessary for full and proper discussion, understanding, and negotiation of the subjects appropriate for collective bargaining;
  • Have employees representing the union on official time when negotiating agreements with management; and
  • Be represented at certain discussions management may have with bargaining unit employees, including: Formal discussions; Certain examinations of employees; any discussion that the employee feels could in any way lead to their being disciplined or terminated or have any effect of their personal working conditions.

 What are Management Rights?

 Management rights is a term which defines those areas over which management exercises exclusive decision-making authority. These rights are spelled out in the Federal Service Labor-Management Relations Statute. 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 (e.g., numbers, types and grades of employees assigned to an organizational subdivision, work project, or tour of duty) that management may bargain, but is not statutorily required to do so. Management has the right to assign work.

What can unions in the federal government bargain over?

Agencies have to bargain with unions over all matters affecting working conditions, with certain exceptions. The exceptions include: matters going to the heart of managing the enterprise, such as establishing the basic budget; matters already set by law or government-wide regulations; and classification matters.

It is important to remember, however, that AFGE represents its members on a whole range of subjects, such as GS pay increases, through lobbying. Thus, to say that an issue is outside the scope of bargaining does not mean the union can’t effectively deal with it on behalf of its members.

How do “management rights” affect our right to bargain?

Because of its deep distrust of the competence of agency managers, Congress has restricted their right to bargain over many subjects which private companies bargain on all the time. Ironically, these restrictions are labeled “management rights” in the collective bargaining law.  Unfortunately, by definition, this restriction on management reduces the breadth of our bargaining with those managers. You should note, however, that competent, self-assured managers are willing to successfully deal with the union to solve problems, regardless of so-called management rights.

How can AFGE bargain effectively when it is against the law to strike?

Although our right to strike is denied, we retain most of the other weapons successfully use by private sector unions to enforce their demands.  In fact, private sector unions are coming to rely on these non-strike tools more and more, as they are often both more effective and less costly than strikes are.

What is the difference between bargaining, negotiating, and consultation?

Legally, there is no difference in the meaning of these terms. However, often contracts will define consultation as management merely listening to the union’s concerns and taking them into account. There is no reason to have that sort of contract provision.

What is the difference between a CBA an MOU and an MOA?

Legally, all three of these acronyms mean the same thing.  All three of these are written agreements, or written notes of mutual understandings between management and the union speaking collectively on behalf of the employees.

  • CBA = Collective Bargaining Agreement
  • MOU = Memorandum of Understanding
  • MOA = Memorandum of Agreeement

Typically, however, collective bargaining agreement is used to describe the master contract, the document that covers a broad range of working conditions, and goes for two or three years without change. Then it is re-negotiated.  The so-called memos usually cover single, less-important, subjects. They are often used to settle grievances. They don’t have any expiration dates; that means that they remain in effect until the parties agree otherwise.

Can management avoid bargaining with us over policies and decisions that were made at a higher level of the agency?

No. If management has issued a policy at a higher level than the level of recognition, it the agency’s obligation to have someone at the bargaining table authorized to negotiate changes in that policy. Either the authority to bargain on that subject must be delegated to local management or, if they cannot be trusted, a higher level manager must be sent to the negotiating table.

What if the management negotiator has to check with higher levels before discussing proposals with us?

By law, the agency has to be represented in bargaining by “duly authorized representatives prepared to discuss and negotiate on any condition of employment,” “with a sincere resolve to reach a collective bargaining agreement.”  Before you even sit down at the table, you should send management a letter asking for copies of the delegations of authority from the agency head (e.g., for any activity in DOD, that is the Secretary of Defense) to the management chief negotiator. Of course, the delegation need not be direct; again, for example, the secretary of defense typically delegates personnel authority to the heads of the major commands, who in turn delegate it through the chain of command as far down as necessary.

What’s a negotiability appeal? When and how do we file one?

Sometimes when management refuses to bargain in good faith, it offers the excuse that the duty to bargain does not extend to the particular union proposal. A ‘negotiability’ appeal is the union’s request to the Federal Labor Relations Authority to determine that management is wrong and to order management to bargain over the particular proposal. The form for filing an appeal can be downloaded from www.flra.gov.  A negotiability appeal must be filed within 15 days of management making a written allegation that the duty to bargain does not extend to the union proposal. This timetable begins only when there is a written statement; management simply saying orally that the proposal is non-negotiable does not trigger any deadline.

Does management have the right to refuse to bargain as long as the negotiability appeal process continues?

Yes and no. The theoretical ability to have the Federal Labor Relations Authority order management to bargain is unavailable while the appeal is pending.  However, most refusals to bargain are based on the so-called management rights clause or on agency-wide policies. You should put out a leaflet with the text of the union proposal and the comment, “Management says it doesn’t have the authority to even discuss this idea.”

What is the “covered by” doctrine, and how do we get around it?

The Federal Labor Relations Authority presumes that the usual collective bargaining agreement contains an unwritten grant by the union to management of the right to act unilaterally for the life of the contract on any matter which might have been addressed in the contract but was not.  The solution is to have the contract expressly state what bargining rights have and have not been waived for the term of the contract. This is discussed in the AFGE Collective Bargaining Manual.

What is an unfair labor practice?

“Unfair labor practice” is a technical term under the labor relations law. For practical purposes, the two most common kinds of unfair labor practices are (a) management’s refusal to bargain in good faith, and (b) management’s discrimination against employees for exercising their rights under the labor law.

What are the remedies for unfair labor practices?

Almost always, the only remedy ordered is for management to post a notice promising not to break the law the same way in the future.  How many times, or how many hours, do we have to discuss a subject before it’s at impasse? An impasse is simply the status during negotiation over a subject when (a) there is no agreement and (b) there are no fresh ideas for resolving the disagreement. There is an impasse when:

  • the union has submitted a proposal and management has said no, without submitting a counter-proposal;
  • management has submitted a proposal (or counter-proposal) and the union says no without providing an additional proposal of its own.

Until one party or the other changes its position, it is a waste of time to continue to discuss the subject.