The Labor Relations Professional Series Introduction to Impact

The Labor Relations Professional Series Introduction to Impact and Implementation Bargaining Developed by Dennis Reischl This course is designed to provide accurate and authoritative information with regard to the subject matter covered. It is provided with the understanding that while some information in this course is about legal issues, it is not legal advice or legal representation. If legal advice is required, the services of a competent professional should be sought. LRP Publications Inc. does not endorse or guarantee the accuracy or reliability of information contained on other sites to which this course may link. Certain photos are copyrighted property of Microsoft Corporation and are being used with permission under license. Copyright 2007 © LRP Publications Impact and Implementation Bargaining

Would you like to apply for CEUs for this course? LRP Publications has been approved as an Authorized Provider by the International Association for Continuing Education and Training (IACET), 8405 Greensboro Drive, Suite 800, Mc. Lean, VA 22102. In obtaining this approval, LRP Publications has demonstrated that it complies with the ANSI/IACET Standards, which are widely recognized as standards of good practice internationally. As a result of their Authorized Provider membership status, LRP Publications is authorized to offer IACET CEUs for its programs that qualify under the ANSI/IACET Standards. LRP Publications offers 0. 3 IACET CEUs for successfully completing this course. After passing the final assessment, click on CEU Credits on the Training Menu Toolbar for the file titled Applying for IACET CEUs. This document explains in detail the requirements and process for obtaining CEUs for this course. The certificate of completion, which is available after passing the final assessment for this course, is also provided for individuals who only want verification of completion and do not desire CEU credit for this course. Copyright 2007 © LRP Publications Impact and Implementation Bargaining

Course Title: Introduction to Impact and Implementation Bargaining Target Audience: Federal labor relations practitioners and attorneys Assigned Hours: 3 hours This course explains how and when a bargaining obligation arises in connection with the intended exercise of a management right, and what the Federal Service Labor. Management Relations Statute, as interpreted by the Federal Labor Relations Authority and the courts, requires of the parties in discharging their respective rights and obligations. Chapters Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Copyright 2007 © LRP Publications An Overview of Impact Bargaining Changes That Trigger Bargaining Notice Requirements Requests to Bargaining Impasses Impact and Implementation Bargaining

Learning Outcomes After successfully completing this course, you will be able to: • Identify the statutory basis of impact bargaining. • Explain the parties’ respective rights and obligations in impact bargaining. • Identify the elements necessary to give rise to an impact bargaining obligation. • Identify required elements of an agency notice of intended action and union request to bargain. Copyright 2007 © LRP Publications Impact and Implementation Bargaining

Learning Outcomes After successfully completing this course, you will also be able to: • Identify the parties’ rights and obligations in impasse situations. • Complete module assessments with 100 percent mastery. Copyright 2007 © LRP Publications Impact and Implementation Bargaining

Chapter 1 An Overview of Impact Bargaining Copyright 2007 © LRP Publications Impact and

What Is Impact Bargaining? Impact and implementation bargaining is a term LR practitioners use to describe negotiations after an agency’s notice that it intends to make a change involving the exercise of a management right listed in 5 USC 7106 (a). For example, notice of management’s intention to exercise its right to determine its organization by reorganizing a portion of the agency. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Statutory Basis of Impact Bargaining Impact bargaining is authorized by Sections 7106 (b)(2) and (3) of the Federal Service Labor-Management Relations Statute. Those sections provide that agencies and unions are authorized to negotiate the “procedures and arrangements” to be applied in connection with the exercise of the statutory management rights listed in Section 7106. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Clarifying Key Terms The statute does not actually contain the term “impact and implementation” bargaining. That is a term LR practitioners use to refer to the negotiation of “procedures and arrangements” in connection with an intended change that will involve the exercise of a statutory management right. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

What Distinguishes I&I Bargaining Provisions addressing the procedures and arrangements that will apply when management exercises a right are also found in labor agreements. An example — provisions addressing merit promotion or disciplinary actions. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

What Distinguishes I&I Bargaining Impact bargaining differs, however, in that it: a. Involves bargaining concerning only the exercise of statutory management rights. b. Arises only when procedures and arrangements applicable to an intended action are not already “covered by” a labor agreement. c. Is limited to proposals that are reasonably related to the intended change being proposed. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Impact vs. Substance Impact bargaining is distinguished from “substantive” bargaining depending on whether the intended change involves the exercise of a statutory management right. If no statutory management right is involved, the “substance” of an intended change — i. e. , the decision itself — is open to negotiation. If the exercise of a statutory management right is involved, only the “procedures and arrangements” related to the action — i. e. , the impact and implementation of it — are negotiable. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

‘Covered by’ Principle The right to bargain procedures and arrangements related to an intended management action does not arise if such procedures and arrangements are already addressed within (i. e. , “covered by”) an existing labor agreement. Customs Service, 59 FLRA 217, 103 LRP 44213. Check your Toolbox for Customs Service, 59 FLRA 217. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

‘Covered by’ Principle An intended action is “covered by” an agreement if it is either: a. Explicitly addressed within the provisions of an existing agreement. b. Or closely related to and “inseparably bound up with” the provisions contained within an existing agreement. Social Security Administration, 47 FLRA 1004. Check your Toolbox for Social Security Administration. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Limited Scope of I&I Bargaining In U. S. Customs Service, 59 FLRA 703, the FLRA ruled that I&I proposals addressing matters that are not “reasonably related to an intended change — regardless of whether they involve topics that would normally be negotiable — are outside the duty to bargain. ” The FLRA’s decision was affirmed by the U. S. Court of Appeals, D. C. Circuit in NTEU v. FLRA, 414 F. 3 d 50 (D. C. Cir. 2005). Check your Toolbox for U. S. Customs Service, 59 FLRA 703 and NTEU v. FLRA. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Test Your Knowledge OK, let’s see where you stand. Over the next three slides, you’ll be presented with several true/false questions. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

How I&I Bargaining Works Impact bargaining is a 4 -step process that resembles a tennis match: Step One: Notice of intent to exercise a management right that will produce a more than de minimis change to the conditions of employment of bargaining unit employees. Step Two: A union request to bargain. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

How I&I Bargaining Works Step Three: Bargaining on proposals related to the intended change. Step Four: Resolution through voluntary agreement, impasse decision, or unilateral implementation. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Dropping the Ball The failure of either party to properly exercise its rights at any of the four stages of the impact bargaining process can result in either: a. An improper, unilateral change subject to a ULP finding, and potentially a status quo ante award; or b. A waiver of its right to bargain in connection with the change. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Activity — It’s Your Call Now, that you’ve been given an overview, try to work your way through the following situation: Two months ago, the agency notified the union of its intent to require certain employees to pass a proficiency test in order to qualify to operate new equipment that will be essential in the performance of their duties. The effective date was yesterday. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Activity — It’s Your Call The union contacted the agency today and demanded that implementation be held up until the parties conclude bargaining on proposals the union intends to offer. The agency is: a. Obligated to postpone implementation. b. Obligated to bargain on a post-implementation basis. c. Not obligated to bargain. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Activity — It’s Your Call The correct answer is (c). The union’s failure to raise a timely request to bargain would result in a waiver of its right to bargain. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Activity — It’s Your Call OK, let’s try another one. After the agency notifies the union of its intent to terminate a third shift at one location, the union proposes that the agency retain the shift, and provide reserved parking for the top three union officials at the facility. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Activity — It’s Your Call After reviewing the proposal you conclude that: a. Only the proposal to retain the shift is negotiable. b. Only the proposal to provide parking spaces is negotiable. c. Neither proposal is negotiable. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Activity — It’s Your Call The correct answer is (c). The decision whether to retain a shift involves the exercise of a management right, and is not substantively negotiable. The proposal to provide parking spaces, while normally a negotiable topic, is not reasonably related to management’s intended action. Therefore, it’s not negotiable in this situation Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Chapter 1 Summary • Impact and implementation bargaining refers to negotiations concerning procedures and arrangements applicable to the intended exercise of a statutory management right that will alter conditions of employment for bargaining unit employees. • I&I bargaining differs from bargaining on ‘substantive’ topics; i. e. , those not involving the exercise of a statutory management right. • I&I bargaining is limited to proposals reasonably related to the proposed management action. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Chapter 1 Summary • There is no obligation to engage in I&I bargaining if a matter is already ‘covered by’ a labor agreement. • A matter is ‘covered’ if it is either explicitly addressed or closely related to and inseparably bound up with matters addressed in a labor agreement. • I&I bargaining is a four-step process: 1. Notice. 2. Request to bargain. 3. Negotiation. 4. Resolution. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1

Chapter 1 Assessment Click on Assessments in the cyber. FEDS® e. Learning navigation bar above to take the assessment. Copyright 2007 © LRP Publications Impact and Implementation Bargaining – Chapter 1