COMPENSATION INCREASES UNIONS CAN BARGAIN (Pt. 2)
There are around two dozen ways unions can negotiate to put extra cash in members’ pockets. In Part 1 of this two-part posting we covered 12 of them. Now for some others, some of which are not yet rock solid case law.
FLEXIPLACE/TELEWORK- In many ways a strong telework article is better than a salary increase. The employee gets the same salary without the time and costs wasted commuting to and from work. The saved costs is like a tax free income boost. The FLRA has set some strong precedent explaining when this benefit is and it not negotiable. (NAGE, 65 FLRA 552 (2011) and NTEU, 49 FLRA 55 (1994)
COMPRESSED WORK SCHEDULES- This is another moneymaker for the employee, especially if allowed to work a 5/4/9 or 4/10 schedule. Even a credit hour program saves them from having to take leave for short absences. (AFGE, 57 FLRA 766 (2002))
MAXIMUM PAYABLE RATE – Another easily recognized compensation increase is one which addressed the employee’s right to get or retain a higher salary rate when moved between positions. Although FLRA has not directly addressed whether a union can bargain to require an agency to use the “maximum payable rate” rule when moving employees between positions, in NTEU, 65 FLRA 23 (2010) it approved an arbitrator’s order that the agency do so when an employee was moved out of a long-term temporary promotion. FLRA found nothing barred the union’s grievance. When you couple that FLRA approach with the fact that the regulations (5 CFR 531.221(a)) give the agencies discretion over when to use the rule, it appears the path is clear to bargain when it will be used, especially if it is put forth as an appropriate arrangement. “General.(1) An agency may apply the maximum payable rate rule as described in this section to determine an employee’s payable rate of basic pay under the GS pay system at a rate higher than the otherwise applicable rate upon reemployment, transfer, reassignment, promotion, demotion, change in type of appointment, termination of a critical position pay authority under 5 CFR part 535, movement from a non-GS pay system, or termination of grade or pay retention under 5 CFR part 536.”
OPTIONAL GRADE RETENTION- The decision in NTEU, 64 FLRA 615 (2010) as well as the regulations at 5 CFR 536.202 lead us to the same conclusion as above.
OPTIONAL PAY RETENTION- Although FLRA has not yet addressed this rule, given the discretion 5 CFR 536.302 authorizes management to use, we will stick our neck out here as well to say it is another negotiable benefit. There is also support in NTEU, 64 FLRA 625 (2010)
EXERCISE FACILITIES- It appears that unions can negotiate to require agencies to establish these on-site, which provides another opportunity to save employees the time they would spend traveling to one on their own time. (See AFGE, 63 FLRA 469 (2009))
TRAVEL EXPENSES- Unions can negotiate travel, per diem and relocation issues so long as their proposals do not conflict with the Federal Travel Regulations (FTRs). For example, unions have required the agency to reimburse employee lodging at the actual expense rate if lodging costs exceed the GSA maximum (Check out section 301-11.30 of the Federal Travel Regulations and AFGE, 21 FLRA 1015 (1986)), to reimburse employees for personal calls made when in a travel status (PASS, 38 FLRA 149 (1990)), and to permit employees to get an increased per diem when they stay with friends or family while in travel status. (See NWSEO, 21 FLRA 490 (91986). Of course, these issues are negotiable only so long as the Federal Travel Regulations permit agencies discretion.
OVERTIME- The most common overtime provisions with compensation implications is one which requires management to distribute overtime fairly and equitably among qualified and available employees. (AFGE, 64 FLRA 953 (2010)). However, union should pay special attention to their right to negotiate the boundaries of the official duty station because once an employee crosses over that boundary line, which is usually set by a radius drawn from the employee’s permanent duty office, he/she often becomes eligible for overtime for any time spent traveling in excess of 8 hours in the day. (See NAGE, 53 FLRA 403 (1997)) Unions also can negotiate over which assignment might be covered by administratively negotiable overtime (AUO). . (See AFGE, 23 FLRA 106 (1986))
RECRUITING, RETENTION, AND RELOCATION ALLOWANCES- Not long ago law authorized agencies to pay employees these allowances if needed to hire and retain the best of them. The government-wide regulations seem to give the agencies discretion over when to make the payments so long as certain criteria are met. For example, 5 CFR 575.103 states, “Except as provided in § 575.104, an Executive agency may pay a recruitment incentive to an employee appointed or placed in the following categories of positions:” Sections 5 CFR 575.203 and 575.303 says much the same for relocation and retention allowances. Consequently, the union proposal should link payment to an employee or situation meeting the eligibility criteria of the regulations. One hurdle in the way is the OPM decision to limit agency discretion to pay these allowances to their “sole and exclusive” judgment. FLRA has ruled that the “sole and exclusive” limitation only renders those matters permissive subjects of negotiations, not illegal ones. (See NTEU, 65 FLRA 746 (2011)) Given that agencies would have to bargain at least I&I matters with the union if it chose to use any of them, unions have an opportunity to “encourage” the agencies to negotiate over their substantive application.
SUPERIOR QUALIFICATION APPOINTMENTS- Regulations also give agency heads the authority to hire certain employees as defined in 5 CFR 531.212(a)(3) into a GS position at a step above a step 1 on the salary grade when the employee meet one or more of the criteria listed in 5 CFR 531.212(c). Like a recruiting allowance, agencies can promise non-unit applicants extra compensation once hired, but that promise is likely not legally binding because the government generally cannot make binding agreements with applicants. These agreements can only be entered once the applicant has actually become an employee, which often simultaneously places the individual in the bargaining unit and barred from individually bargaining with the employer without union representation. Consequently, as is so often the case, the union is in a position to use its right to bargain I&I matters to motivate the employer to negotiate an otherwise permissible subject of bargaining.
STUDENT LOAN REPAYMENTS- Title 5 CFR 537.101 states, “Under such a program, an agency may agree to repay (by direct payment to the loan holder on behalf of the employee) all or part of any outstanding qualifying student loan or loans previously taken out by a job candidate to whom an offer of employment has been made, or by a current employee of the agency.”
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The right to bargain over compensation issues is wonderful news for federal employees and their unions, especially now when the political players are repeatedly postponing salary increases for GS and other employees. However, with these opportunities come great responsibility for the union. These money clauses are quickly becoming the best measures of how good a contract the union has achieved. Either your contract contains the provisions above needed by your members, or you need to find a way to improve your contract. In all likelihood, you are not going to achieve many, if not any, of these money clauses unless you have negotiators with the sophistication to weave a path through and around the statutes and regulations which potentially can render an otherwise valid proposal nonnegotiable. Bargaining money is not a game for amateurs.
As we said at the outset of Part I of this two-part series, the precise answer as to whether these proposals are negotiable in your specific unit or situation will depend upon what the statutes and regulations are applicable. For example, non-appropriated fund, FIRREA, medical professionals, and grandfathered 704 employees generally have even more rights to bargaining compensation than described below. Some employee groups have fewer rights. Check with competent legal counsel if you get into a dispute with management.