UNION REP TEST #12 (Illegal Bypass and Direct Dealing)

One of the harder things for managers to understand is a union’s “exclusive recognition” rights.  They just do not mean that the union is the only or exclusive organization the agency can deal with to negotiate formal agreements. They also prohibit a lot of other kinds of communications where the manager bypasses the union to deal directly with the employees, which would be a violation of 5 USC 7116(a)((1) and (5). Test your own understanding with these True-False questions.  The answers are at the end of the post.

QUESTIONS

1. True or False? A supervisor illegally bypassed the union when she announced at a formal meeting of her group that she was implementing a change in work hours.
2. True or False?  A supervisor violated the law when during a group meeting an employee suggested she replace the current system of assigned lunch periods with letting employees choose when to lunch, the supervisor then asked employees for a show of hands as to who supported the idea and based on that vote decided to make the change.
3. True or False?  Once an agency concludes a grievance meeting with an employee and her union rep from out of town it can give the written agency grievance decision directly to the onsite employee to pass to the rep.
4. True or False?  An agency does not have to involve the union if an employee’s complaint does not appear to be grievable, but only an informal written statement complaining only about a co-worker’s conduct in the workplace.”
5. True or False? When confronted by the union president, an agency manager admitted that he did ask the employees in his group whether they preferred solution A or B to an issue currently under negotiations.  However, his LR rep defended him noting that it was only a single question and neither solution A nor B are substantively negotiable with the union. Therefore, there was no illegal bypass.
6. True or False?  A manager can negotiate a disciplinary Last Chance Agreement with an employee without union involvement.
7. True or False? If an agency reaches, signs, and implements an agreement directly with employees bypassing the union, the union can have the agreement voided and back pay granted to any harmed employees.
8. True or False?  A manager illegally bypassed the union when she asked her employees for some factual data on how a newly installed work plan was working, but avoided asking their opinions about whether the plan should be changed.
9. True or False? Once the Chief Steward heard that the Accounting Branch had put together a committee of unit employees recommend changes in the method and means of how work was done, she was within her rights to tell the LR Director she would waive the union’s right to block the use of the committee as an illegal bypass unless the union was permitted to appoint one-third of the unit employees on the committee.

ANSWERS

1. False. It is not an illegal bypass or illegal attempt to deal directly with employees merely to announce that the agency is going to do something different.  A necessary element of the illegal bypass is that there must be an attempt by management to interact with or work something out with employees.  Presenting a fait accompli is not a bypass, although it is generally another kind of ULP, i.e., a unilateral change in working conditions. DLA, Tracy and Laborers Int’l Union, 14 FLRA 475 (184)
2. True. “…an agency may question employees directly provided that it does not do so in a way which amount to attempting to negotiate directly with its employees concerning matters which are properly bargainable with its employees’ exclusive representative.” SSA and AFGE, 20 FLRA 768 (1985) It does not matter that an employee suggested the idea, nor that a union rep may have been in the room. Bureau of Indian Affairs, New Mexico, 54 FLRA 1428 (1998). The union is free to choose its own rep to receive notice and bargain.
3. False. “The union is improperly bypassed if the agency delivers grievance decisions and responses directly to employee grievants and not to designated union representatives.” SSA and AFGE, 16 FLRA 434 (1984); AFGE Local 2924, 63 FLRA 635(2009)
4. False.  The Statute broadly defines a grievance to include the conduct of another employee, i.e., “any complaint … by any employee concerning any matter relating to the employment of that employee.” Furthermore, the Authority has found that § 7103(a)(9) of the Statute does not limit the definition of grievance to formal grievances. Consequently, attempting to reach a resolution of the grievance, regardless of the viability of the solution, the supervisor communicated directly with a bargaining-unit employee concerning a grievance, and, by doing so, bypassed the union. See Dep’t. of Veterans Affairs, Va. and AFGE, Local 2145, 68 FLRA 882 (2015)
5. False. “Whether the negotiations concern a single issue addressed in a single question or an entire bargaining agreement addressed over months of negotiations, the Agency has a duty to negotiate with the Union on those matters outlined in the Statute. Consequently, the length of the negotiations is immaterial, and this argument fails to demonstrate that the Judge erred.” As to the negotiability of solution A or B, the agency still had to bargain I&I over whichever was chosen and therefore that defense was also not acceptable. See Dep’t. of Veterans Affairs, Va. and AFGE, Local 2145, 68 FLRA 882 (2015)
6. False. “…the Authority stated that last chance agreements ‘relate to whether an employee’s employment will continue and the circumstances under which an employee will be subject to disciplinary actions…[and] clearly concern and have a direct relationship to the work situation and employment relationship of bargaining unit employees.’” SSA and AFGE, Local 1923, 55 FLRA 978 (1999)
7. True. “To remedy the violation, the Respondent must void the agreement reached with the employee at the request of the union.” SSA and AFGE, Local 1923, 55 FLRA 978 (1999)
8. False.  Management can ask employees for factual data or even opinions on how well a current operation or technology is working, but it crosses the line when it asks for suggestions about changes or their opinion on possible changes. See Dep’t. of Veterans Affairs, Va. and AFGE, Local 2145, 68 FLRA 882 (2015)
9. Yes, the union can waive its rights to insist that the agency have this kind of discussion only with appointed union reps.  Hill AFB,  43 FLRA 736 (1991).  Usually, a union will demand something like this in return for granting a waiver of its rights. See also Dep’t. of Navy, HI and Hawaii Fed. MTC, 29 FLRA 1236 (1987)