BARGAINING OVER THE “METHOD AND MEANS” OF PERFORMING WORK

President Biden just gave unions the right to bargain over the method and means of doing work, but not a lot of union reps know what that term includes. That is no surprise given that they have not been allowed to talk about method and means at the bargaining table for decades.  So, we thought we would dig into the case law and provide readers a more concrete list of what they may now bargain over as a method and means (M&M) of doing work. We will follow with similar posts on all the other permissive concepts.

One of the earliest explanations of the expression “method and means of performing work” can be found in Local 2910, AFSCME, 19 FLRA 1080 (1985) where it is written:

“Method” refers to the way in which an agency performs its work. The term “performing work” is intended to include those matters which directly and integrally relate to the agency’s operations as a whole.

But the far more tangible part of the case stated that —

“means” refers to any instrumentality, including an agent, tool, device, measure, plan or policy used by an agency for the accomplishment or furthering of the performance of its work.”

So thanks to the Dep’t. of Justice opposition in 55 FLRA 228 (1999) law enforcement personnel can now bargain knowing that firearms, handcuffs, and leather gear are considered methods and means of doing work. For example, it appears that unions could propose that pregnant law enforcement officers be allowed to wear shoulder holsters rather that waist gear.

Similarly, DoD has only itself to blame for its senseless, decades-long refusal to bargain over the wearing of military uniforms by civilian technicians for the case law holding that most of those issues are now negotiable as M&M matters, e.g. 64 FLRA 802 (2010) and 66 FLRA 499 (2012). The same goes for having to observe military courtesies and customs when not performing a military task. AFGE, Local 3006 and AG, Idaho, 34 FLRA 816 (1990)

A not so obvious extension of that concept includes the union right to negotiate over how space is allotted. In DoD, 47 FLRA 340 (1993) FLRA held that the M&M concept included the right to negotiate over it where the agency alleged that the space layout was critical to how it performed its mission.

We find that the Agency’s determination as to the design and layout of the main exchange store is a plan that is used by the Agency to accomplish its sales mission. In particular, we find that the amount of space that the Agency will allocate to displaying goods and services and the arrangement of that space for the display of those goods and services are among the measures used by the Agency to facilitate its sales mission. We find, therefore, that the design and layout of the store constitutes a “means” within the meaning of section 7106(b)(1) of the Statute.

That would include negotiating over which work unit sits where. (Where the agency has not alleged and direct and integral relationship between space assignment and mission accomplishment space has generally been considered a mandatory subject of bargaining.

In Broadcasting Board of Governors, 59 FLRA 447 (2003) FLRA dug even deeper into the negotiability of space issues when the agency alleged that the placement and height of partitions played a role in how it accomplished its work.  FLRA agreed, which means that defense is no longer going to work.  Of course, partition placement and height has been held substantively negotiable in other cases where the agency did not raise a M&M objection.

Another very common area of employee complaints that President Biden’s has now opened to negotiations deals with forms. Authority precedent establishes that the forms or documents that an agency uses in accomplishing its mission constitutes a determination as to the methods or means of performing work. AFGE, Local 1020, 47 FLRA 258, 270-71 (1993); Maritime Metal Trades Council, 17 FLRA 890, 894-95 (1985).

Teachers will now be allowed to have some say in the selection of books and materials used in the classroom.  It seems only logical that the same would apply to agency training courses. Panama Canal Fed. of Teachers and DoD, 19 FLRAA 814 (1985)

In another school teacher case FLRA held that the union could negotiate over the criteria for the placement of students into a college prep program. That leads one to suspect that proposals dealing the placement of employees into different programs or units is a recognize 7106(b)(1) topic.

Since the Union’s proposal would require the Agency to negotiate concerning its placement policy, the Authority concludes that Union Proposal 1 is contrary to the Agency’s right under section 7106(b)(1) to determine the methods and means of performing work. NFFE and Haskell Indian Jr. College, 22 FLRA 539 (1986)

The issue of whether employee dissenting opinions are placed in official files was held to be a permissive topic in NFFE, Local 1979 and Forest Service, 16 FLRA 369 (1984). Similarly, FLRA has identified as permissive a union proposal that permitted employees to refuse to sign off on and to “disassociate themselves” from official agency action documents. DoD v. FLRA Civ. No. 87-1734 (D.C.Cir. 11/30/1987)

Unit employee and union rep membership on committees that make major management decisions has also been a hotly contested negotiability matter.  However, the following case gives unions a chance to finally make progress.

Thus, we find that the committee is a tool the Agency uses to further its technology and fulfill its mission. Consequently, the committee is a “means” of performing work under section 7106(b)(1) of the Statute. Because the IEC’s decisions can dictate what technology is available to the Agency, the IEC is directly and integrally related to the performance of Agency work. Therefore, the IEC involves management’s right to determine the methods and means of performing work….Proposal 3 provides for Union representation on the Agency’s IEC. Union participation on a committee interferes with management’s rights if the committee is involved in the deliberative process by which management exercises its rights. See Bureau of the Mint, 19 FLRA at 643-44. The IEC’s work involves the exercise of management’s right to determine the methods and means of performing work. Union participation on the IEC would interject the Union into management’s deliberative process. Therefore, Proposal 3 directly interferes with management’s right under section 7106(b)(1) by involving the Union in the deliberative process by which management determines the means of performing its work. NFFE, Local 1437 and Army Armament Picatinny Arsenal, NJ, 35 FLRA 1052 (1990)

Remember, if the Authority previously found a proposal only permissively negotiable with the agency, the President’s Order now makes that a mandatory subject of negotiations—or at least the case law is there to make a very good argument that it is.  Who knows what any particular FLRA or reviewing court will do?

Although we could go on listing more examples, we will end with this one about the union’s right to now negotiate whether and how employees are rotated through different work tasks.  FLRA found that a permissive area of bargaining in this case.

The Agency’s plan was designed to change the method of performing its work in order to fulfill that mission. In particular, the Agency determined that an expanded rotational assignment of claims processing and a “keep what you take” policy would better serve its clientele and administer its various programs, by providing for same-day service whenever possible. In our view, the Agency has shown a direct and integral relationship between its plan for expanded rotational and “keep what you take” assignments and the accomplishment of its mission. AFGE, Local 1164 and SSA, New Bedford, MA., 54 FLRA 1327 (1998)

Given that we are all wading into an entirely new area of law for federal employees our best advice is that union negotiators check with competent legal counsel before deciding to litigate a particular M&M proposal.