September, 2008AFGE FSED NSPS Bargaining Issues 1 AFGE NSPS Presents Bargaining Challenges.

September, 2008 AFGE FSED NSPS Bargaining Issues

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AFGE

NSPS Presents

Bargaining Challenges


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AFGE• Bargaining proposals may not be inconsistent

with a government-wide regulation. 5 U.S.C. 7117 (a) (1)

• Sec. 1106 (b) (2) of NDAA says NSPS is to be treated as a government-wide regulation.

• So, we cannot bargain over any proposal that is inconsistent with NSPS regulations

BUT…


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AFGE• It is a ULP to implement any

government-wide regulation during the life of a collective bargaining agreement if that regulation conflicts with any provision of that agreement

5 U.S.C. 7116 (a) (7)

UNLESS…


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AFGE

the contract waives the Union’s right not to bargain.


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AFGE

•What is a waiver?

•Does my contract have one?


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AFGEA waiver allows the agency to put any government-wide regulation into effect during the life of the contract.


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AFGECheck the article on:

• Governing Laws and Regulations

• Appropriate Subjects for Negotiation

• Management Rights


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AFGESome real-life examples:

In the administration of all matters covered by this Agreement, the PARTIES and the employees shall be governed by the laws and regulations of appropriate government authorities, including applicable policies set forth in the ACT; by the Office Personnel Management; by applicable Department of Defense and Navy Department policies and regulations; or by the regulations of appropriate government authorities required by law.


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The provisions of this contract will apply except when in conflict with applicable statute or government-wide regulation issued by appropriate authority. When a future statute or government-wide regulation is issued that is in conflict with the provisions of this contract, Management will notify the Union of the change. This notification will be provided to the Union within 7 calendar days of Management’s receipt of the change. Where possible, Management will provide a 15-day notice of the change. If requested by the Union, Management will meet to discuss the impact and implementation the change will have on bargaining unit employees


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Pursuant to the policies set forth in the Civil Service Reform Act of 1978, Public Law 95-454 (CSRA), National Security Personnel System (NSPS), Public Law 108-136, if and should it become law, and subject to all applicable statutes and regulations issued by the Office of Personnel Management and regulations issued by the agency, unless it has been determined that there is not a compelling need for the regulation by the Federal Labor Relations Authority (FLRA), the following articles constitute an agreement by and between the [agency], hereinafter referred to as Management or the Employer, and the AFGE Local ___, hereinafter referred to as the Union.


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AFGE Some real-life examples:In the administration of all matters covered by this agreement, officials and employees are governed by laws, policies and regulations of appropriate authorities in existence at the time this agreement was approved and by subsequently published laws, policies and regulations of appropriate authorities.


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AFGEIf you are not sure whether your contract contains a waiver, get help from a National Representative (Locals) or the Field Services and Education Department (Councils).


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AFGE

If my contract does have a waiver, what can I do about it?


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AFGEIs your contract:

• In its initial term?

• Rolled over for another term? (how long?)

• Expired, but the parties still operate under its terms?


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AFGE

If your contract is still in its initial term, you cannot withdraw the waiver until after the term finishes.


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AFGEIf your contract has rolled over for another term, you cannot withdraw the waiver until the end of the new term. The new term could be one year or more, depending on the text of the contract.


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AFGE

If the contract has expired, even if the parties continue to operate under its terms, the union can withdraw its waiver at any time.


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AFGE

How do I withdraw a waiver?


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AFGE• A permissive subject is one the union

or the agency may choose to bargain or not.

• Any waiver of the union’s rights is a permissive subject of bargaining.


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AFGE• Once a permissive subject is part of the

agreement, it cannot be withdrawn until the agreement expires or comes up for renegotiation.

• By withdrawing consent to any contract provisions concerning permissive subjects, the union withdraws any waivers in the contract.


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AFGEDear Management:The Union hereby terminates its consent to any contract provisions on any subjects that are permissive on the part of the union. Have a nice day.


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AFGE

What if my contract does not have a waiver?


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AFGE• Does any part of NSPS conflict with any

provisions of the contract?

• If so, then the article containing those provisions cannot be changed by NSPS during the term of the contract, however, other parts of NSPS that do not conflict with the contract can take effect as of the date the NSPS regulations are prescribed.


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AFGE• So, if the NSPS conflicted with a provision

of the Performance Management article, but no other, the agency could not implement the Performance Management parts of NSPS. It could, however, implement the pay system, promotion and reassignment, and any other aspects of NSPS.

• BUT


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AFGE• Aren’t all the parts pretty much connected??

• If they can’t do one, is it worth it to do any others?


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AFGE

•OK. So, I can bargain. Or, can I?


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AFGE• Proposals cannot be inconsistent with a Government-wide regulation.


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AFGE• This is not conditioned by the

need to bargain over “procedures” or “appropriate arrangements.”IRS v NTEU, 996 F.2d 1246, 1251 (D.C. Cir. 1993)


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AFGE

So, what does “inconsistent” mean?


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AFGEFirst test:

“Sole and exclusive discretion”IAM and Bureau of Engraving and Printing, 50 FLRA 677, 681-682 (1995), aff'd mem. sub.nom. Bureau of Engraving and Printing v FLRA, No. 95-1499 (D.C. Cir. 1996)


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AFGESecond test:

Mandate a standard or procedure that is contrary to the regulation


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AFGEExample:Regulation says “case-by-case.” Proposal gives blanket determination.Proposal is inconsistent with regulation.

NTEU and Customs Service, 23 FLRA 681, 682-683 (1986).


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AFGEExample:Proposal sets a standard for exercise of authority that expands or contracts standard in the regulation.Proposal is inconsistent with regulation.

AFGE Local 1458 and Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3, 4-5 (1987).


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AFGEThird test:

Proposal precludes agency from taking action that is required by the regulation AFGE Council of HUD Locals and HUD, 43 FLRA 1405, 1409-1411 (1992).


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AFGEAreas in the contract that need special or additional language for NSPS:

• Performance Management• Pay • Merit Promotion• Reassignments• Classification• Overtime


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AFGESpecific proposals will be posted in “Bargaining for the Future” in early 2010.

Suggestions are solicited.


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AFGEExpect litigation over whether our proposals are within the scope of bargaining.


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AFGEConsult with FSED before filing any negotiability appeals or ULP charges concerning bargaining over NSPS.


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AFGEThe Contract Campaign:

Bargaining happens at the table, but also away from the table. The employees must support the objectives of the negotiating team.


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AFGE

A Contract Campaign must be part of all bargaining over NSPS.


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AFGEThe Campaign will also include:

• The Contract Action Team


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AFGEGoals of the Campaign:

• Build the Union

• Achieve Contract Improvements


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AFGE• Employee participation from start to

finish

• Proposals based on priorities of BUEs

• Motivation at the workplace

• Influence the decision makers

• Build alliances

• Close the deal


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AFGECampaigns Need a Plan

• Objectives – What do we want to achieve?

• Implementation Steps – What specific actions must we take to achieve success?

• Timeline – What happens, when?• Resources – What do we need? (e.g.,

budget, materials, “bodies”)


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AFGECampaign Plan, cont.

• Responsibilities – Who makes sure what gets done?

• Evaluation – How are we doing? What adjustments are needed? How did we do at the end?


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AFGESpecific training on conducting Contract Campaigns is being developed for early 2009.

September, 2008AFGE FSED NSPS Bargaining Issues 1 AFGE NSPS Presents Bargaining Challenges.

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Transcript of September, 2008AFGE FSED NSPS Bargaining Issues 1 AFGE NSPS Presents Bargaining Challenges.