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Federal Employees Advanced Program

There are essentially 2 situations in which
you will be bargaining:
Term Bargaining- Negotiating a CBA
Mid-Term Bargaining- Negotiating a MOU or

other agreement during the term of the CBA

- It is important to know the difference

because it affects how you bargain
Everything that is negotiable is on the table
Union should solicit input from bargaining

Union should create bargaining team
Negotiate ground rules
Offer comprehensive proposals
Execute Agreement that covers a large

range of topics that lasts for at least 3 years

Changes to working conditions during life of
Typically is limited to specific subject
Often called Impact and Implementation
[I&I] bargaining I&I is not found in law. The scope of which an
Agency may position that an item is non-negotiable or outside the scope.

Agency only has to bargain if 1)Union can

show impact and 2) topic is not covered by
Bargaining not usually as formal
The Union and the Agency must bargain in
good faith at all times
A Unions proposal must affect a condition
of employment
If a Unions proposal affects managements
rights under 5 USC 7106, it must either be a
procedure or an appropriate arrangement
If a Union proposal doesnt affect a
management right, you dont have to worry
about whether it is a procedure or
appropriate arrangement
A union proposal cannot conflict with law or
government wide regulation
When there is a dispute over whether a
proposal is negotiable, negotiability appeals
can be filed to the FLRA
FMCS is available for mediation
FSIP is available if the parties reach impasse
Agency Head review often applies to both
the term CBAs and mid-term MOUs
The Key to bargaining in the federal sector
in knowing:
1. What managements rights are
2. What permissive subjects are
3. What a procedure is
4. What an appropriate arrangement is
5. Whether a law or government-wide
regulation covers the topic of negotiation
To determine the mission
To determine the budget
To determine the organization
To determine the number of employees
To determine internal security practices
To hire
To assign
To direct
To layoff
To retain employees in the agency
To suspend employees
To remove employees
To reduce employees in grade or pay
To take other disciplinary action against employees
To assign work
To make determinations with respect to contracting out
To determine personnel by which agency operations will
be conducted
Filling positions among properly ranked and certified
candidates for promotion or from another appropriate
To take whatever actions may be necessary to carry out
the agency mission during emergencies
A permissive subject is as subject that
management can bargain over but does not
have to
If management does reach agreement on a
permissive subject, it is enforceable through
the grievance procedure
Permissive subjects are found in 7106(b)(1)
Other Permissive subjects:
Conditions of employment for supervisors
Conditions of employment for employees outside
of bargaining unit
A procedure is a provision that
management officials of the agency will
observe in exercising their rights.
Procedures cant prevent management from
exercising their rights, but they can delay
the exercising of those rights
Often you will use terms such as before,
prior to when writing a procedure
Bargaining unit employees will be provided
a copy of their position description upon
entering on duty, and whenever the position
description is changed
At any time an employees pattern of
performance is marginally acceptable in one
or more critical elements but is not
unacceptable in any critical element, the
supervisor will inform the employee of the
observed pattern of performance orally or in
Prior to issuing a proposed notice of
disciplinary action, the official issuing the
notice, or his/her designee, will normally
conduct a preliminary investigation to
obtain pertinent facts relating to the
circumstances generating the disciplinary
The employer agrees to record documented
accomplishments in the employees
personnel record.
Vacancies will be posted for at least ten
days before the closing date.
An appropriate arrangement is a provision
that affects managements rights in order to
negate a negative impact to employees.
It is appropriate because it does not
excessively interfere with managements
The provision must be tailored to the
harm being suffered by the employees.
In determining whether a proposal is an
appropriate arrangement, the FLRA uses a
balancing test.
The factors it looks at are:
Whether the proposal is an arrangement? must
address adverse effects of exercise of
management rights
Proposal must be narrowly tailored to compensate
employees for the adverse effects
Does the proposal excessively interfere with
management rights; if so, it is not appropriate
Disciplinary/adverse actions against
employees must be based on just cause, be
consistent with applicable rules and
regulations, be fair and equitable, and
timely-initiated by the official proposing the
Proposal: If an employee has been on a
performance improvement plan, and
demonstrates acceptable performance, and then
the employees performance relapses within the
year following the commencement of the
performance improvement plan, after a change
in supervisor, duties, or significant change in
technology, the employee will be given another
opportunity to improve.

Once it is in the contract the argument could be

made over what is a significant change.
Does it affect a management right? Which
What is the adverse effect from the
management right?
Is the proposal narrowly tailored to address
the harm?
Does the proposal excessively interfere with
the management right?
The proposal affects managements right to take
action for unacceptable performance under
The proposal is an arrangement for employees
who pass a PIP but are found to be deficient
within 1 year
It is narrowly tailored to employees who have
had a change to their working conditions such as
a new supervisor or change in technology
It is appropriate because the benefits to the
employee outweigh the harm to the agency
since the employee already demonstrated
In addition to management rights, other laws
and regulations can affect what Unions can
A Union and Agency cannot agree to a
provision that would be in conflict with law
A Union and Agency cannot agree to a
provision that would be in conflict with a
government-wide regulation (typically issued
by OPM)
A Union and Agency can agree to a provision
conflicting with an Agency order or directive
As a general rule, Union proposals that
conflict with an Agency rule or regulation
are negotiable.
The exception to that rule is where the
Agency can establish that it has a
compelling need to maintain the rule or
It is rare than an Agency will raise a
compelling need defense
The criteria for determining whether there is a compelling need
for agency rules and regulations are set out at 5 C.F.R.
2424.50, which provides, in pertinent part:

A compelling need exists for an agency rule or regulation . . .

when the agency demonstrates that the rule or regulation
meets one or more of the following illustrative criteria:
(a) The rule or regulation is essential, as distinguished from
helpful or desirable, to the accomplishment of the mission . . .
in a manner that is consistent with the requirements of an
effective and efficient government.
(b) The rule or regulation is necessary to ensure the maintenance
of basic merit principles.
(c) The rule or regulation implements a mandate to the agency . .
. under law or other outside authority, which implementation is
essentially nondiscretionary in nature.
Proposal: If an employee has been on a
performance improvement plan, and
demonstrate acceptable performance, and
then the employees performance relapses
within the year following the
commencement of the performance
improvement plan, after a change in
supervisor, duties, or significant change in
technology, the employee will be given
another opportunity to improve.
There are numerous statutes and
government-wide regulations
It is impossible to be aware of all of the laws
or regulations
Always put the burden on management to
show you that your proposal is in conflict
with a statute or government-wide rule or
Text of 5 C.F.R. 432.105:

Proposing action based on unacceptable performance.

(1) Once an employee has been afforded a reasonable opportunity to
demonstrate acceptable performance pursuant to 432.104, an agency
may propose a reduction-in-grade or removal action if the employee's
performance during or following the opportunity to demonstrate
acceptable performance is unacceptable in 1 or more of the critical
elements for which the employee was afforded an opportunity to
demonstrate acceptable performance.
(3) A proposed action may be based on instances of unacceptable
performance which occur within a 1 year period ending on the date of
the notice of proposed action.
Proposal: All bargaining unit employees
shall be granted access to and use of the
Base Commissary. They shall also be
granted access to and use of the Base
Exchange and all of its satellite stores
except for purchase of articles of uniform
(a) The Secretary of Defense shall operate
a world-wide system of exchange stores.
The stores of each system may sell food and
merchandise to persons authorized to use
the system
(b)The defense commissary and exchange
systems are intended to enhance the quality
of life of members of the uniformed
services, retired members, and dependents
of retired members and to support military
The FLRA found that the proposal did not
conflict with the regulation. The FLRA found
that while Title 10 has many provisions on
who may use the commissaries and
exchanges, none of the provisions cited by
management addressed who is prohibited.
Thus, the proposal did not conflict with the