NEGOTIATING OVER 7106(b)(1) “TYPES” OF EMPLOYEES
This post is about unions’ newly bestowed right to negotiate over the “types… of employees or positions assigned to any organizational subdivision, work project or tour of duty.” FLRA has ruled that the word “types” refers “to distinguishable classes, kinds, groups, or categories of employees or positions that are relevant to the establishment of staffing patterns.” For example, it found Dental Hygienists are different types of employees than Dental Assistants and temporary employees differ from full-time employees. But distinguishing between types of employees is the easy part of drafting a negotiable 7106(b)(1) proposal compared to two traps awaiting the union.
The first is that the proposal must show a relationship between the claimed type of employee and the staffing of a particular organizational subdivision, work project, or tour of duty. Put differently, the Authority has written that the union has the burden to show how the proposal “applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency’s organization and the accomplishment of its work.” For a good review of the case law on that, check out AFGE, Local 723 and Dep’t of the Interior, U.S. Geological Survey, Mich., 66 FLRA 639 (2012)
For example, when the union proposed that Dental Assistants be assigned when there is a shortage of Dental Hygienists, FLRA said that constituted assigning a particular type of employee to a work project. See NAGE, Local R5-184 and Dep’t of Veterans Affairs, KY, 52 FLRA 1024 (1997). In contrast, where the union made the following proposal, the FLRA held it failed to qualify as a 7106(b)(1) proposal because “the Union fails to explain how the provisions relate to any organizational subdivision, work project, or tour of duty, even though the Union has the burden to do so under § 2424.25(c)(1)(i) of the Authority’s Regulations.” AFGE, Local 2058 and Dep’t of the Interior, NPS, 68 FLRA 676 (2015).
The park Safety Officer will review situations where information indicates that employees in a particular occupation are suffering from a pattern of accidents, disabling injuries and/or illnesses. Any written report will be supplied to the Health and Safety Committee.
Notice that there is no mention of the Safety Officer stepping in for another type of employee or doing so on a particular project, or tour.
Now for the second trap that agencies are likely to use often to get out from under the obligation to negotiate over types. The subjects of bargaining listed in section 7106(b)(1) can only be used to get around any objection an agency may have that a union proposal violates one of its 7106(a) management rights, e.g., to assign, to contract out, to layoff, etc. But there are two other very substantial statutory sections that can be used to block a union’s right to bargain over something irrespective of whether it violates a management right. Here is a hint in the form of a quote from a FLRA decision, “In this regard, section 7106(b) applies to negotiations affecting the exercise of management’s rights only. Section 7106(b) is not an exception to the definition of conditions of employment or the exclusions from that section.” NAGE, Local R14-23 and Dep’t of Defense, Fort Lee, VA, 54 FLRA 1302 (1998)
And conditions of employment are defined in 7103(a)(13) to exclude from bargaining anything “…relating to the classification of any position.” So, when the union in that NAGE case made the following proposal alleging that 7106(b)(1) made it negotiable, FLRA shot them down based on the last clause relating to classification:
The desk audits will be conducted at either Ft. Bliss, Holloman, or WSMR commissaries with the union present. In the interim, the status quo of GS-525-5 Accounting Technician will be maintained.
In NAGE, Local R3-76 and Dep’t of Defense, PA, 55 FLRA 509 (1999) FLRA said a union proposal will avoid the classification trap so long as, “Nothing in the proposal would affect the Agency’s ability to assure that the work assigned to the positions would be consistent with their grade and classification.” That is a good rule of thumb for negotiators to keep in mind when drafting a “types” proposal.
The other statutory section in this second trap is section 7117(a) which requires that a union proposal not be inconsistent with a government-wide regulation. Section7106(b)(1) does not waive that negotiability obstacles either.
Perhaps the best use a union will be able to make of its right to negotiate over types of employees is to propose which employees from another job title or tour of duty will be brought in to temporarily help when the workload overwhelms some unit. That could be helpful in spelling out who gets assigned to overtime work before the agency gives it to supervisors to do bargaining unit work.