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

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

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


1
NATIONAL ASSOCIATION OFAGRICULTURE
EMPLOYEESBASIC JOINT UNION-MANAGEMENTLABOR
RELATIONS TRAINING2014 NATIONAL
CONVENTIONApril 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 SESSION
Introduction A. Axioms/Addages (KM) I. Federal
Service Labor-Management Relations
Statute A. 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)
2
3
II. Collective Bargaining Under The
Statute A. Duty to Bargain in Good Faith
(KM) B. Subjects of Bargaining
(JA) 1. Conditions of Employment 2. Seven/Eigh
t Exceptions 3. II Proposals 4. Appropriate
Arrangement 5. Ground Rules 6. Post-Negotiatio
ns 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)
3
4
III. Hypotheticals (KM/ JA) A. GOV
Misuse B. Shift Changes C. Short Staffing
3a
5
TOOLS
  • 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

4
6
  • 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

5
7
ADAGES/AXIOMS
  • 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.

6
8
  • 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 dont 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?

7
9
I. STATUTE
A. Congressional Findings and Purpose
Unions/negotiations in public interest
participation and protection of rights promotes
public interest, Agency mission, dispute
settlement
8
10
B. Employee Rights whose rights? every
Agency employee except supervisors/ managers
join/not to join serve as Union rep,
collectively bargain conditions of
employment
9
11
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 technolo
gy, methods, and means E.O. 13522
10
12
D. Unions Rights and Duties exclusive
representative duty of fair representation
represent all employees exception
conflict of interest standard not
arbitrary, discriminatory, bad faith
11
13
E. Scope of Union Representation
  • 5 Areas
  • negotiations
  • ULPs
  • grievances
  • formal discussions
  • Weingarten meetings

1. Collective Bargaining
  • 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

12
14
  • 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

13
15
  • 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. Administrators Step 3 decision does not
    resolve, Union may invoke arbitration

14
16
  • 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

15
17
  • 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

16
18
  • 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

17
19
Past Practice Exercises
Are any of the following past practices?
  • 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
  • The Agency has hours of duty between 700 AM and
    600 PM. Some employees have been allowed to
    start work as early as 600 AM
  • ___ Past Practice ___ No Past Practice

18
20
Past Practice Exercises (cont.)
  • 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
  • The Employers 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

19
21
Past Practice Exercises (cont.)
  • 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

20
22
  • 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

21
23
  • 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

22
24
  • 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

23
25
  • 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.

24
26
  • 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

25
27
  • ULP Procedures
  • file charges within 6 months
  • use FLRA form
  • provide complete description/ documentation at
    time of filing

26
28
  • 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

27
29
  • 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

28
30
  • 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 reps role
  • attend, participate, speak, comment, not disrupt
  • state unions position

29
31
  • 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 reps role
  • participate
  • establish basis for investigation/interview
  • coach and advise
  • take minutes
  • do not let b.u.e. sign statement on spot

30
32
Formal/Weingarten Meeting Exercise
Which of the following are formal or Weingarten
meetings and why?
  • 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
  • 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

31
33
Formal/Weingarten Meeting Exercise (cont.)
  1. A supervisor calls a meeting with an employee to
    discuss the employees performance on some recent
    projects
  2. 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
  3. A group of b.u.e.s requests a meeting with a
    supervisor to discuss office coverage during the
    holiday season

32
34
II. COLLECTIVE BARGAINING
  • 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

33
35
  • B. Subjects of Bargaining
  • 1. 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

34
36
  • 3. II Proposals (exception to exceptions)
  • Agency must negotiate II 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


35
37
  • 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

36
38
  • 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

37
39
  • 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

38
40
  • 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?

39
41
  • 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

40
42
  • 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

41
43
III. HYPOTHETICALS
Hypothetical (sort of) A.
I. Facts
  • 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

42
44
  • 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

43
45
II. Options
  • grievance
  • ULP
  • request to bargain
  • two (or more) of the above

44
46
III. Grievance
  • 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 Managements
    right to assign work ( 7106(a)(2)(B))?
  • if so, is it still negotiable?
  • II?
  • as to substance (appropriate arrangement)?

45
47
III. Grievance (cont.)
  • Requested remedies
  • status quo ante
  • give notice, bargain
  • Agency defenses
  • non-negotiable (does not affect condition of
    employment interferes with Managements right)
  • had no choice (there were no rotations, pressure
    from DOD and school)

46
48
IV. ULP
  • failure to give Union notice and opportunity to
    bargain
  • what statutory right does it violate?
  • does Managements claim, that Agency has no
    obligation to negotiate when it exercises its
    right to assign work, defeat ULP?
  • what remedy is likely?

47
49
V. Bargaining
  • when should Union request to bargain?
  • when should it submit proposals?
  • what are Unions best proposals?
  • as to II?
  • as to substance?
  • let children go to school, keep rotational
    assignment designation

48
50
VI. FLRA Decision (on grievance appeal)
  • Agency must bargain II ( 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 employees conditions of employment,
  • as long as change is more than de minimis
  • look to reasonably foreseeable effect on b.u.e.
    conditions of employment

49
51
VI. FLRA Decision (cont.)
  • 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

50
52
VI. FLRA Decision (cont.)
  • What happens to grievance if Union negotiating
    proposals, submitted with grievance, turn out to
    be non-negotiable?
  • FLRA rejects Agency defense that Unions
    proposals directly interfere with Agencys
    decision to exercise Management right

51
53
VI. FLRA Decision (cont.)
  • 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 Unions proposals and remedies
    submitted after Agency unlawfully refuses to
    bargain
  • What happens if Union does not timely reply or
    object to Agency exceptions?

52
54
Hypothetical B.
  • Current Shift 700am 330pm
  • Charters/Seasonal 12/15/-3/15 (4 mos.)
  • Charter Arrivals 500pm/600pm/700pm
  • Covered by call-out O/T
  • New T/D Shift 1200pm 830pm
  • Notice to Local NAAE Pres. given 12/7
  • states new shift starts 12/15
  1. What does local NAAE Pres. do?
  2. What if Mngr./NAAE discussions not concluded by
    12/15?

53
55
Hypothetical C.
  • Local MOU providesManagement 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.
  • Employee A (Tech.) signs up for week-long Program
  • gave notice to, got approval of SPHD

54
56
Hypothetical C. (cont.)
  • Day before Program starts, Port Director refuses
    to allow Employee A to attend, claiming short
    staffing
  • Port Director allows Employee B (GS-9 and PDs
    next-door neighbor/golfing partner) to go on TDY
    to Hawaii for two weeks
  • Employee A asks you (Local Union Rep) for advice
  • What do you do?
  • Go to SPHD?
  • File Grievance?
  • File ULP?
  • File EEO Complaint?

55
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