NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES BASIC JOINT UNION-MANAGEMENT LABOR RELATIONS TRAINING 2014 NATIONAL CONVENTION April 7, 2014 St. Louis, MO.

NATIONAL ASSOCIATION OFAGRICULTURE EMPLOYEES

BASIC JOINT UNION-MANAGEMENTLABOR RELATIONS TRAINING

2014 NATIONAL CONVENTION

April 7, 2014St. Louis, MO

Trainers: Kim D. Mann, Esquire, General Counsel, NAAE Peter B. Brownell and Joanne Adams, Labor Relations Specialists,

APHIS Labor Relations

2

OUTLINE OF JOINT TRAINING SESSIONIntroduction

A. Axioms/Addages (KM)

I. Federal Service Labor-Management Relations StatuteA. Congressional Findings and Statutory Purpose (KM)B. Employee Rights (KM)

-- Conditions of Employment (PB)C. Management Rights (PB)D. Exclusive Representatives’ Rights and Duties (KM)E. Scope of Union Representation (KM)

1. Collective Bargaining (PB)2. Grievance Representation and Procedures (KM)

-- Past Practices (BP)3. Unfair Labor Practices (JA)4. Formal Discussion (JA)5. Investigative (Weingarten) Meeting (KM)

3

II. Collective Bargaining Under The StatuteA. Duty to Bargain in Good Faith (KM)

B. Subjects of Bargaining (JA)

1. Conditions of Employment

2. Seven/Eight Exceptions

3. I&I Proposals

4. Appropriate Arrangement

5. Ground Rules

6. Post-Negotiations Review

C. Failure to Negotiate an Agreement (PB)

1. Negotiability Disputes

2. Impasse

3. Failure/Refusal to Negotiate

D. Waiver of Union Negotiating Rights (KM)

E. Mid-Term Bargaining (KM)

F. Right to Information ( KM)

G. Official Time (PB)

3a

III. Hypotheticals (KM/ JA)

A. GOV Misuse

B. Shift Changes

C. Short Staffing

4

1. Know what tools you have available– human resources– books, Internet, hand-outs– thinking outside book (Cong., customers, media)

2. Know the hierarchy– within NAAE– within Management– use it, ask!– the human tools

TOOLS

5

3. Know written materials– Yellow Book– the outline, handouts, Broida– formerly the “Red Book,” now the “Green Book”– the law– the statute and regulations (CFRs)

• what are these?– FLRA internet site

• how to use it (FLRA decisions)

4. Common sense– turn to Union reps first if any doubt

6

1. Much of employment relations is common sense

– but built upon basic understanding of law

2. You get the labor relations you deserve

– if you treat Mgmt. reps with civility, courtesy, Mgmt. likely to reciprocate

– my experience: depends upon who is running the show

• as Labor Relations Chief

• as Labor Relations Specialists assigned to your Region

• as Dept. Admin.

ADAGES/AXIOMS

7

3. Perfect is the enemy of the good

– if you insist on extracting last ounce out of management, you will lose

– if your goal is absolute 100% victory, you will end up frustrated and may achieve nothing

4. Good is enemy of the excellent

– but don’t settle for mediocrity, for any “ok” result

– if you settle for only what is a mediocre success, you will achieve only mediocrity

– if you do not put your best effort into achieving a realistic goal, you will fall short

– how do you maximize your effort and your chances?

8

A. Congressional Findings and Purpose

– Unions/negotiations in public interest

– participation and protection of rights promotes public interest, Agency mission, dispute settlement

I. STATUTE

9

B. Employee Rights

– whose rights?

• every Agency employee except supervisors/ managers

– join/not to join

– serve as Union rep, collectively bargain

• conditions of employment

10

C. Management Rights

– exclusive rights

• mission, budget, organization, number of employees, internal security, hire, assign, direct, lay off, discipline, assign work, contract out work, determine personnel, fill positions, and emergencies

• no right to bargain over substance (“exclusive”)

– permissive rights at election of Agency

• numbers, types, and grades

• technology, methods, and means

• E.O. 13522

11

D. Union’s Rights and Duties

– exclusive representative

– duty of fair representation

– represent all employees

– exception: conflict of interest

– standard = not arbitrary, discriminatory, bad faith

12

E. Scope of Union Representation – 5 Areas:• negotiations• ULPs• grievances

– Definition• meet at reasonable times, bargain in good faith• only with respect to conditions of employment• execute written documents• no obligation to reach agreement

– only Union members ratify – Agency-head review

1. Collective Bargaining

• formal discussions• Weingarten meetings

13

2. Grievances

– Definition: any complaint• by any (b.u.e.) employee or Union concerning

employment

OR• by any employee, Union, or Agency

concerning

(i) effect, interpretation, breach of contract

OR

(ii) violation/misrepresentation of law or regulation relating to employment conditions

14

– Represents entire b.u.e.

– Grievance Procedures:• collective bargaining agreement (Article 16)• time frames critical• start at first-line supervisor level informally• move next to Labor Relations Specialist in

Regional Office if dissatisfied as Step 1• if Dep. Administrator’s Step 3 decision does

not resolve, Union may invoke arbitration

15

– Right to Information:• submit written § 7114(b)(4) request• e.g. data, documents, reports, memos,

letters, email• regular course of business• reasonably necessary• only union has this right• tolls grievance-filling deadline and allows

amending filed grievance

16

– Practical Applications

• resolve workplace disputes about Contract

matters, or specific law, rule, or regulation

violation

• ensure uniform treatment of b.u.e.s

• protect Contract rights of Union and b.u.e.s

• establish precedent

• maintain workplace peace

17

– Practical Applications (cont.)

• also resolve disputes about “past practices”

… rises to level of contract (i.e., enforceable)

… must be open, continuous, unchallenged,

affect conditions of employment

• change in “past practice” requires notice to

Union & negotiation

… unless practice is contrary to laws

18

1. As the result of contamination in its regular water supply, the Employer provided bottled water to b.u.e.s for 16 months before it discontinued supplying water

___ Past Practice ___ No Past Practice

2. The Agency has hours of duty between 7:00 AM and 6:00 PM. Some employees have been allowed to start work as early as 6:00 AM

___ Past Practice ___ No Past Practice

Past Practice ExercisesAre any of the following past practices?

19

3. The U.S. Naval Academy unilaterally terminated a long standing (years old) practice of allowing Academy employees to use its boats for recreational purposes

___ Past Practice ___ No Past Practice

4. The Employer’s Fair Labor Standards Act (FLSA) determinations were found to be inaccurate and as a result it had been paying more premium pay than it should for the past 5 years

___ Past Practice ___ No Past Practice

Past Practice Exercises (cont.)

20

5. An employee has openly used her GOV for the past three months to run to the bank to deposit her monthly pay checks. Another employee in her Port has done the same thing

___ Past Practice ___ No Past Practice

Past Practice Exercises (cont.)

21

– Exclusions from Grievance Procedures:• prohibited political activities violation• insurance• national security• position classification not resulting in pay/grade reduction• testing and certification results• termination of benefits (in certain circumstances)• non-selection (for promotions, voluntary transfers) except

for procedural irregularities• termination of probationaries, unless permitted by law• performance or other discretionary award

22

– Exclusions from Grievance Procedures when

Employee selects Statutory Appeals procedure:• RIFs (to MSPB)• EEO complaints (to EEOC or court)• prohibited personnel practices (to MSPB)• adverse actions (to MSPB)

– Option to grieve or use statutory appeals procedures

• choose one or the other, but not both

23

3. ULPs

– 8 Agency actions constitute ULPs• interfere with employee rights under Statute• encourage/discourage Union membership• retaliate against b.u.e.• refuse to negotiate in good faith• fail/refuse to cooperate in impasse• enforce any Agency or Dept. rule or regulation

in conflict with union contract (if contract provision existed before rule/regulation)

• otherwise fail/refuse to comply with statute

24

– 8 Union actions constitute ULPs

• mirrors the 8 Agency actions

• discriminate against b.u.e. based on Union membership

• call/participate in strike, work stoppage, slow down, or picketing (non-info)

• deny membership to eligible b.u.e.

25

– Not challengeable as ULP:

• action challengeable under statutory procedure (EEO, MSPB, RIFs)

– If challengeable as both ULP and grievance, must elect

• one or the other, but not both

26

– ULP Procedures

• file charges within 6 months

• use FLRA form

• provide complete description/ documentation at time of filing

27

– FLRA will investigate, has discretion to file complaint

• if FLRA does not file, will notify and giveoption to withdraw

• if not withdrawn, will provide writtenstatement with reasons

• may appeal refusal to file to FLRA GeneralCounsel in DC

• if complaint issues against Agency, FLRAG.C. represents Union

• Statute spells out remedies, appeal available to FLRA

28

4. Formal Discussion

– Elements are (i) discussion, (ii) formal, (iii) between Agency rep. and b.u.e. (iv) concerning grievance, general personnel policy or practices, or general employment conditions

– Union entitled to notice/opportunity to attend

– When is meeting “formal”?

• depends upon totality of all circumstances

29

4. Formal Discussion (cont.)

• relevant factors are (i) status of person who held discussions, (ii) whether other mgmt. reps attended, (iii) site of discussions, (iv) how meeting was called (spontaneous, unplanned?), (v) how long discussion lasted, (vi) whether formal agenda was prepared and minutes kept, and (vii) manner in which discussions were conducted

• among others (such as, was attendance voluntary?)

– NAAE rep’s role• attend, participate, speak, comment, not disrupt• state union’s position

30

5. Weingarten Meeting– elements are (i) Agency rep (ii) examination of b.u.e. (iii) if b.u.e. reasonably believes discipline may result and (iv) requests Union rep– no notice to Union required– grant of immunity

• dispels fear of discipline• compels employee to answer

– NAAE rep’s role• participate• establish basis for investigation/interview• coach and advise• take minutes• do not let b.u.e. sign statement on spot

31

1. Employer called a meeting to discuss work assignments and progress in meeting due dates. At the meeting, a b.u.e., the local union president, raises questions about access to the Internet to facilitate doing assigned tasks

2. Employer called a meeting to solicit volunteers for overtime work and to explain both the need for the overtime as well as the procedures to be used in assigning overtime if insufficient volunteers come forward

Formal/Weingarten Meeting Exercise

Which of the following are formal or Weingarten meetings and why?

32

3. A supervisor calls a meeting with an employee to discuss the employee’s performance on some recent projects

4. A representative of the Inspector General meets with a b.u.e. to find out what the employee knows about computer thefts at the work site

5. A group of b.u.e.s requests a meeting with a supervisor to discuss office coverage during the holiday season

Formal/Weingarten Meeting Exercise (cont.)

33

A. Duty to Bargain in Good Faith

– sincere effort to reach agreement– negotiators authorized to negotiate, commit agency– meet at reasonable times as necessary– provide reasonably necessary information

(Agency)• sign agreed provisions, implement

– no obligation to agree

II. COLLECTIVE BARGAINING

34

B. Subjects of Bargaining1. Conditions of Employment

– personnel policies, practices, matters affecting working conditions

2. Seven exceptions (excluded categories)– political activity– position classification– covered by federal statute– in conflict with federal law or government-wide

rule/reg.– in conflict with Agency- (or Dept.) wide rule/reg. for

which “compelling need” exists– exclusive Management right– permissive Management right, Agency elects not to

negotiate

35

3. I&I Proposals (exception to exceptions)

– Agency must negotiate I&I even when substance is non-negotiable

– exceptions

• de minimis impact

• Union waives bargaining right

4. Appropriate Arrangement (exception to exception)

– must negotiate substance

– Union proposal must be tailored to accommodate adversely affected b.u.e.s

36

5. Ground Rules

– negotiating procedures to govern collective bargaining

– already fully negotiated, but some room left …

6. Post-Negotiations Review

– local agreements reviewed for consistency with National Agreement

– National and local agreements must go throughagency-head review

• Agency has 30 days to approve/disapprove

• must renegotiate provisions found inconsistent or contrary to law

37

C. Failure to Negotiate Agreement

1. Negotiability Disputes

– Management declares Union proposal non-negotiable because proposal conflicts with law

– negotiability appeal procedures

• Union submits written request to Agency for written declaration

• Union files negotiability petition with FLRA (15 days)

• FLRA decision binding

38

2. Impasse

– failure to reach agreement after good-faith bargaining

– invoke FMCS mediation

– request FSIP resolution

3. Agency (or Union) failure/refusal to negotiate

– file ULP or grievance

39

D. Waiver of Union Negotiating rights

1. spelled out in Contract

2. failure of timely response/proposals

3. “covered by” doctrine

E. Mid-term Bargaining– Agency and Union have right

– unless “covered by” Contract

• Agency too?

40

F. 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

41

G. Official Time

– for negotiating collective bargaining, including impasse proceedings

– employee in official duty status

– not for internal Union business

– now “covered by” Art. 11, in Green Book

42

• PPQ employees able to send children to Antilles Consolidated School System (“Antilles”)– since 1978– free– run, operated by DOD

• DOD policy: Antilles “available to families of non-military government personnel who are on a rotation to PR”

I. Facts

III. HYPOTHETICALS

Hypothetical (sort of) A.

43

• In 1985, PPQ adopts formal policy: all vacancies in PR will be filled as “rotational assignments” upon request of employee

– PPQ children stay enrolled in Antilles

• In 2005, PPQ changes policy: terminates all rotational assignments in PR, effective immediately

– no notice to Union

– 6 employees of PPQ lose entitlement to enroll children in Antilles, must withdraw

44

• grievance

• ULP

• request to bargain

• two (or more) of the above

II. Options

45

• terminated practice (rotational assignments) without notice to Union

• does it violate CBA?

• is it a condition of employment (§ 7103(a)(14))?

• does terminating practice involve Management’s right to assign work (§ 7106(a)(2)(B))?

• if so, is it still negotiable?

– I&I?

– as to substance (appropriate arrangement)?

III. Grievance

46

• Requested remedies:

– status quo ante

– give notice, bargain

• Agency defenses:

– non-negotiable (does not affect condition of employment; interferes with Management’s right)

– had no choice (there were no rotations, pressure from DOD and school)

III. Grievance (cont.)

47

• failure to give Union notice and opportunity to bargain

• what statutory right does it violate?

• does Management’s claim, that Agency has no obligation to negotiate when it exercises its right to assign work, defeat ULP?

• what remedy is likely?

IV. ULP

48

• when should Union request to bargain?

• when should it submit proposals?

• what are Union’s best proposals?

– as to I&I?

– as to substance?

let children go to school, keep rotational assignment designation

V. Bargaining

49

• Agency must bargain I&I (§ 7106(b)(2)) and substance if appropriate arrangement (§ 7106(b)(3)), even when Agency change is a Management right.

• Agency must bargain over Agency decision effecting employee’s conditions of employment,

– as long as change is more than de minimis

– look to reasonably foreseeable effect on b.u.e. conditions of employment

VI. FLRA Decision (on grievance appeal)

50

• Rejects Agency de minimis defense: terminating policy has no effect because no PPQ employee has been required to rotate

– ignores the “effect” of change on b.u.e.s,i.e. loss of right to send children to Antilles

– irrelevant that no employees labeled “rotational” have ever rotated in the past

VI. FLRA Decision (cont.)

51

• What happens to grievance if Union negotiating proposals, submitted with grievance, turn out to be non-negotiable?

• FLRA rejects Agency defense that Union’s proposals directly interfere with Agency’s decision to exercise Management right

VI. FLRA Decision (cont.)

52

– to establish right to bargain, Union not required to show its proposals, submitted after Management implements without negotiating, are negotiable

– Agency can not avoid obligation to bargain by objecting to Union’s proposals and remedies submitted after Agency unlawfully refuses to bargain

• What happens if Union does not timely reply or object to Agency exceptions?

VI. FLRA Decision (cont.)

53

1. Current Shift: 7:00am – 3:30pm

2. Charters/Seasonal 12/15/-3/15 (4 mos.)

3. Charter Arrivals: 5:00pm/6:00pm/7:00pm

4. Covered by call-out O/T

5. New T/D Shift: 12:00pm – 8:30pm

6. Notice to Local NAAE Pres. given 12/7

• states new shift starts 12/15

Hypothetical B.

I. What does local NAAE Pres. do?

II. What if Mngr./NAAE discussions not concluded by 12/15?

54

1. Local MOU provides:

Management shall establish promotion-enhancing Upward Mobility Program following consultation with the Union and shall encourage employee participation except when attendance interferes with carrying out mission of Agency.

2. Employee A (Tech.) signs up for week-long Program

• gave notice to, got approval of SPHD

Hypothetical C.

55

3. Day before Program starts, Port Director refuses to allow Employee A to attend, claiming “short staffing”

4. Port Director allows Employee B (GS-9 and PD’s next-door neighbor/golfing partner) to go on TDY to Hawaii for two weeks

5. Employee A asks you (Local Union Rep) for advice

6. What do you do?• Go to SPHD?• File Grievance?• File ULP?• File EEO Complaint?

Hypothetical C. (cont.)