Assume that your contract has a clause that mirrors the statutory obligation to bargain, i.e., it obligates management to notify and bargain over any midterm changes in working conditions before implementing them.  Further assume that management makes a unilateral change and you decide to file a grievance charging it with violating the statutory obligation to bargain found at 5 USC 7116(a)(5).  Can you figure out what you just did wrong?

Here is a hint.  Management’s first level grievance response rejects the grievance charging that the change was “covered by” the current term agreement and even if it was not it was de minimis. Got it yet?

The answer is that had you also alleged that the agency violated the contract obligation to bargain as well as the statutory one the agency would not have been able to raise the covered-by and de minimis defenses to the contract bargaining obligation.  At least that is what happened in a decision just issued by the FLRA. (See AFGE, 67 FLRA No. 131 (2014)).

The agency stopped using two different position descriptions for its firefighters, i.e., one for a Lead firefighter and another for a non-Lead.  It consolidated them under one PD, and in the process the Leads lost some status benefits, e.g., they got to be the primary driver on certain trucks, to wear certain insignia, etc.

The union charged that the following contract provision had been violated, “Section 2. Past practices pertaining to personnel policies, practices, and working conditions in operation on the effective date of this Agreement will continue if they comply with applicable law and regulations, and they have not otherwise been altered or addressed by this MLA.” It never even raised the statutory violation, which is an interesting tactic all by itself. Consequently, when the arbitrator analyzed the contract bargaining obligation he said there was nothing in there about the covered by or de minimis defense.  Hence, he refused to assume they were there.  Case closed; the agency lost.

When the agency filed exceptions with FLRA it upheld the arbitrator pointing out that arbitrators are not obligated to consider defenses to the statutory right to bargain when the issue is limited to whether the contractual right to bargain was violated. “An analysis of whether a change in conditions of employment is greater than de minimis is required in cases involving the duty to bargain under the Statute. As the issue before the Arbitrator did not involve the duty to bargain under the Statute, he was not obligated to address and resolve the  de-minimis issue, and we reject the Agency’s argument regarding that issue.”

Some other arbitrator may have interpreted the language differently by assuming all the statutory defenses applied just as much to the bargaining obligation.  The Authority likely would have agreed with that decision as well given that it defers to how arbitrators interpret agreements.  However, by at least citing the contract violation the union gives itself a chance to win the grievance even if there is no statutory violation.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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