Sec.
7117.
Duty
to bargain in good faith; compelling need; duty to consult
(a)
(1) Subject to paragraph
(2) of this subsection, the duty to bargain in good
faith shall, to the extent not inconsistent with any Federal law or any
Government-wide rule or regulation, extend to matters which are the
subject of any rule or regulation only if the rule or regulation is not a
Government-wide rule or regulation.
(2) The duty to bargain in
good faith shall, to the extent not inconsistent
with Federal law or any Government-wide rule or regulation, extend to
matters which are the subject of any agency rule or regulation referred to
in paragraph(3)Of this subsection only if the Authority has determined
under subsection (b) of this section that no compelling need
(as determined under regulations prescribed by the Authority)
exists for the rule or regulation.
(3) Paragraph (2) of the
subsection applies to any rule or regulation issued
by any agency or issued by any primary national subdivision of such agency,
unless an exclusive representative represents an appropriate unit including
not less than a majority of the employees in the issuing agency or
primary
national Subdivision, as the case may be, to whom the rule or regulation is
applicable.
(b)
(1) In any case of
collective bargaining in which an exclusive representative
alleges that no compelling need exists for any rule or regulation referred to
in Subsection (a)(3) of this section which is then in effect and which governs
any Matter at issue in such collective bargaining, the Authority shall determine
under paragraph (2) of this subsection, in accordance with regulations
prescribed by the Authority, whether such a compelling need exists.
(2) For the purpose of
this section, a compelling need shall be determined not
To exist for any rule or
regulation only if -
(A) The agency, or primary
national subdivision, as the case may be,
which issued the rule or regulation informs the Authority in writing
that a compelling need for the rule or regulation does not exist;
or
(B) The Authority
determines that a compelling need for a rule or
regulation does not exist.
Determination is made under this subsection. If a hearing is held, it
shall be expedited to the extent practicable and shall not include the
General Counsel as A party.
(4) The agency, or primary
national subdivision, as the case may be,
which Issued the rule or regulation shall be a necessary party at any
hearing under this subsection.
(c)
(1) Except in any case to
which subsection (b) of this section applies,
if an Agency involved in collective bargaining with an exclusive
representative alleges that the duty to bargain in good faith does not
extend to any matter, the Exclusive representative may appeal the
allegation to the Authority in accordance with the provisions of this
subsection.
(2) The exclusive
representative may, on or before the 15th day after the
date on which the agency first makes the allegation referred to in
paragraph (1)
of this subsection, institute an appeal under this subsection by -
(A) filing a petition with
the Authority; and
(B) Furnishing a copy of the petition to the head of the agency.
(3) On or before the 30th
day after the date of the receipt by the head of the Agency
of the copy of the petition under paragraph (2)(B) of this subsection,
the Agency shall -
(A) file with the
Authority a statement -
(I) withdrawing the
allegation;
or
(ii) setting forth in full its reasons supporting the allegation;
and
(B) Furnish a copy of such
statement to the exclusive representative.
1.
On or before the 15th day after the date of the receipt by the
exclusive
representative of a copy of a statement under paragraph (3)(B) of this
subsection, the exclusive representative shall file with the Authority its
response to the statement.
(5) A hearing may be held
in the discretion of the Authority, before a
determination is made under this subsection. If a hearing is held,
it shall not include the General Counsel as a party.
(6) The Authority shall
expedite proceedings under this subsection to
the extent practicable and shall issue to the exclusive representative
and to the agency a written decision on the allegation and specific
reasons
therefore at the earliest practicable date.
(d)
(1) A labor organization
which is the exclusive representative of a
substantial number of employees, determined in accordance with
criteria prescribed by the Authority, shall be granted consultation
rights by any agency with respect to any Government-wide rule or
regulation issued by the agency effecting any substantive change in
any condition of employment. Such consultation rights shall terminate
when the labor organization no longer meets the criteria prescribed
by the Authority. Any issue relating to labor organization’s eligibility for,
or continuation of, such consultation rights shall be subject to
determination by the Authority.
(2) A labor organization having consultation rights under
paragraph (1) of this subsection shall -
(A) be informed of any
substantive change in conditions of employment
proposed by the agency,
and
A.
Shall be
permitted reasonable time to present its views and
recommendations regarding the changes.
(3) If any views or
recommendations are presented under paragraph (2)
of this subsection to an agency by any labor organization -
(A) the agency shall
consider the views or recommendations before taking
final action on any matter with respect to which the views or recommendations
are presented;
and
(B) The agency shall
provide the labor organization a written statement of the
reasons for taking the final action.
AGENCY REGULATIONS: COMPELLING NEED
Proposals that conflict with a regulation issued by an agency or
primary national subdivision of an agency 24 / for which there is
a compelling need under standards promulgated by the Authority
are outside the scope of bargaining. 25 / In order to demonstrate
that a proposal is nonnegotiable under section 7117(a)(2) because
it is barred by an agency regulation for which a compelling need
exists, an agency must: (1) identify a specific agency-wide regulation;
(2) show that there is a conflict between its regulation and the
proposal; and (3) demonstrate that its regulation is supported by a
compelling need under the Authority's standards set forth in
section 2424.11 of its regulations. 26 /
Unlike all other negotiability disputes which may be resolved in
either an unfair labor practice proceeding if there also is a duty
to bargain issue or in a negotiability appeal,
IF AN AGENCY REFUSES TO NEGOTIATE OVER A PROPOSAL
ASSERTING IT CONFLICTS WITH A COMPELLING NEED,
RULE OR REGULATION, THAT DETERMINATION ONLY MAY BE
MADE IN A NEGOTIABILITY APPEAL, EVEN IF THE AGENCY
UNILATERALLY CHANGES WORKING CONDITIONS.
27 / Of course, the agency must afford the union an opportunity
to present other negotiable proposals which do not involve a
compelling need regulation and otherwise fulfill its bargaining
obligation before lawful implementation.
End of Article.
PART 2 of 2:
This is a continuation of my Broadcast
Message of Sunday, March 26, 2000,
in response to some questions being asked concerning the tentative
PASS-AF contract.
ARTICLE 50 - WATCH
SCHEDULES & SHIFT ASSIGNMENTS:
There are two major changes to this. The
first is Section 1 which Replaces
all of the existing words with the real intent—changes must be negotiated.
As far as management being able to implement prior to negotiations being
completed, it can only implement, as it can in any other negotiation, only
with a "compelling need". Compelling need is a Term of art from case
law
that requires management to prove it could not Accomplish its mission or
could only do so with a significant increase in costs if it did not implement.
This is not something to be taken lightly and certainly there are no field
managers with the managerial power or Authority to successfully claim
compelling need. The second major change removes the exclusion of those
working non-rotating administrative workweeks thereby making their
schedules negotiable as well.
ARTICLE 69 -
LOCAL/REGIONAL RELATIONSHIPS:
Some of the changes here were prompted by
some of the lax agreements
that had been made under some form of "partnership" and then
management claimed they didn’t need to honor them. By following the
guidance under Section 1, it will be clear that agreements made through
Article 69 Negotiations are enforceable. Section 2 identifies the only
types of Circumstances that management can implement a change prior
to the Completion of bargaining and it must notify the national union of
those Reasons. Section 7 is a new concept that puts teeth into work groups.
Should one be established, the union may designate a "representative"
to
That group who has authority to make decisions on behalf of the union.
Management must likewise identify who on the group has similar authority
For management. Any agreements, which come from this activity,
must be in writing and, therefore, are enforceable.
I hope this helps answer some of the
questions that are being asked
about these particular Articles.
Please share this message with others in
your area.
A copy may be obtained by contacting the national office.
Fraternally, Mike Fanfalone
[Code of Federal Regulations]
[Title 5, Volume 3, Parts 1200 to end]
[Revised as of January 1, 2000]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2424]
[Page 409-410]
TITLE 5--ADMINISTRATIVE
PERSONNEL
CHAPTER XIV--FEDERAL LABOR
RELATIONS AUTHORITY, GENERAL COUNSEL
OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES
PANEL
PART 2424--NEGOTIABILITY PROCEEDINGS--Table of Contents
Subpart F--Criteria for Determining
Compelling Need for Agency
Rules and Regulations
Sec. 2424.50 Illustrative criteria.
A compelling need exists for an agency rule
or regulation concerning any
condition of employment 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 or the execution of functions
of the agency or primary national subdivision in a manner that is consistent
with the requirements of an effective and efficient government.
[[Page 410]]
(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 or primary
national subdivision under law or other outside authority,
which implementation is essentially nondiscretionary in nature.