Presented by Dave Rodriguez and MJ Burke
Oct 25-27, 2011
Recurring Topics and Themes
 Overview of the collective bargaining cycle
 The steps in the process, and actions under each step
 Who does what – union, management, third parties
 The Labor Law (Statute) – what it requires, what each
Party is free to do
 References, resources, further developments
 The Process of Bargaining a Local Supplement (LSA)
 Preparing and planning for bargaining
 Analytical Frameworks: Learning How the FLRA Thinks
 Doing the bargaining
 Dealing with common bargaining issues; and with
tactics of the other side
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National VA Council
 540 345-6301
 http://www.afgenvac.org
 afgenvac@aol.com
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 AFGE Districts (National Vice President for
the District of which your Local is a part)
 Other AFGE Locals that represent VA
employees, such as Locals in your VISN.
 Non-VA Locals and Councils that have gone
through the experience of negotiating a
term agreement or litigated a similar issue.
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Federal Mediation and Conciliation
Service http://www.fmcs.gov 202 606-8100
Federal Labor Relations Authority (FLRA)
AND its included but separate Federal
Service Impasses Panel (FSIP)
http://www.flra.gov 202-218-7770
[This website contains: FLRA and FSIP decisions,
laws they administer, regulations (governing the
actions they perform and require Unions and
Agencies to follow), and other useful information.]
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FLRA
 Decides what’s legal to
do (Unfair Labor
FSIP
 Decides which language
goes into a CBA, when
Practices) and to bargain
the Parties can’t agree
(Negotiability Review
after negotiating and
aka legality of language
mediation assistance.
in a collective bargaining  Must defer (punt on)
agreement)
issues presented to it
which raise ULP
allegations; or,
Negotiability issues of
first impression.
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FSIP and Negotiability
 Because only the FLRA can decide what is legal
to negotiate, the FSIP cannot order language be
put in a CBA if management claims it’s not
negotiable and the FLRA has no precedent.
 But the FSIP can apply prior decisions of the
FLRA. So, if management says a Union
proposal is not negotiable, but the FLRA has
previously decided an equivalent proposal was
negotiable, then the FSIP can order the Parties
to put the Union’s proposal into their LSA (or
other CBA).
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ULPs: Another Deferral Situation
The FSIP also lacks legal authority to decide if
either Party committed an unfair labor practice
during bargaining , and will very likely dismiss
without prejudice an impasse case brought to it
that involves an alleged ULP,
Translation: if the Union claims DVA
committed a ULP even if it doesn’t actually file
a ULP charge, the FSIP will likely punt (decline
jurisdiction) on the case.
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 The Union will have to refile with the FSIP
months or years later (after the problem the
Union was trying to address may be
stagnant).
 So, it’s often better for the Union to not raise
before the FSIP that the DVA committed a
ULP during bargaining. Give the FSIP every
opportunity to reach the disputed proposals
on their merits.
Note: The ULP has to be filed within 180
days of when it became known to the Union.
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Example for Discussion
In LSA negotiations, the Parties disagreed on which
positions in the facility will be eligible for Telework.
DVA also refused to give the Local information the
Local requested and is entitled to by law, such as how
much the facility pays for office space per square foot
(rent, utilities, etc.). Eventually, an impasse was filed
with the FSIP over the Telework issue and others. The
Union also wants to file a ULP over the illegal DVA
action.
What is the ULP issue? What is the impasse
(FSIP) issue?
How, when, where should the information
issue be handled?
Without the requested information, what can
the Union do to support its Telework proposal?
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True or False or ???
“The bargaining process determines
the outcome, but is superseded by
the outcome.”
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Translation:
It’s tempting to ‘keep track” of who won
the negotiations by what happened on
the way to the LSA.
But
What you end up with in the LSA is
what counts.
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Analytical Frameworks
For every term or concept in the labor law, the FLRA
has established an Analytical Framework. The law is
chapter 71 of Title 5.
Analytical Frameworks tell Union reps what every
part of the law means, in practice.
A single term, like “waiver”, “good faith bargaining”,
or “management right to assign work” has an
Analytical Framework that can have hundreds of
precedent cases in which the meaning of the term
has been defined and refined.
Use Analytical Frameworks to inform you at the
table and in proceedings before the FSIP and the
FLRA.
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So &%$# What?
So, there are templates already in place – Analytical
Frameworks – that tell negotiators what they have to
argue or explain, point by point, in order to prevail in
a dispute with DVA, during negotiations, in impasses
before the FSIP, and in a ULP or negotiability case
related to the LSA negotiations.
The FLRA isn’t looking for creativity when you present
an argument before it; it’s looking for you to follow
the points it has already laid out in the Analytical
Framework for the issue being disputed.
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Examples of Analytical Frameworks
There are Analytical Frameworks for:
 The definition of each management right (assign work,
direct employees, determine its budget, determine
internal security, etc.)
 Particularized need as a requirement for information
requests the Union makes to DVA in order to bargain the
LSA.
 Good faith bargaining.
 Compelling need as a basis for a Union proposal to be
illegal for conflicts with a DVA regulation. (The Analytical
Framework for compelling need is VERY hard for any
agency to meet.)
 Etc. etc. etc.
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Discussion
In your LSA negotiations, DVA claims a Union
proposal is non-negotiable because it interferes with
DVA’s rights to determine technology of performing
work and to determine its budget.
The proposal requires DVA to provide a telephone in
each work unit for employees’ personal use to
contact family members in emergencies.
What does the Union do about the DVA claim of
non-negotiability?
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Where do I find Analytical Frameworks?
 In FLRA cases, especially negotiability and ULP
cases and exceptions to arbitrators’ awards.
[www.flra.gov, decisions, search by keyword]
 In FLRA cases in commercial databases like
CyberFeds [www.feds.com]
 In AFGE resources such as Bargaining for the
Future.
 In court decisions that review FLRA cases.
 From others in AFGE (FSED, your AFGE District
Office the NVAC, other Locals).
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“How can Management say this
language is illegal? It’s been in our
contract/MOU for umpteen years!”
DVA has to be consistent about claiming
__ T __ F language is legal or illegal.
The FLRA’s cases are precedents, so when
__ T __ F something is negotiable, that’s that.
The labor law hasn’t changed, so the
__ T __ F legality of proposals doesn’t change.
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Stages of Bargaining
Early Bargaining = the Parties negotiate
“bilaterally” (alone). During this stage, there are:
 Discussion, compromise, information
exchanged, proposals and counter-proposals
exchanged.
 Sign-off/initial off of agreed upon items.
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Mediation = the parties jointly OR either party
unilaterally request(s) the Federal Mediator to join the
negotiations to help them move toward agreement.
 Mediation can be ongoing or short-term.
 The reason Mediation is needed can be inability to find
language both sides can agree on.
 The reason also can be a behavior, like disputes over what
the Ground Rules require, or the Agency’s failure to
provide requested information or to send empowered
bargainers to the table.
 Once involved, the Mediator controls the process, but
cannot force either Party to change its proposals.
 Parties are required to use Mediation before a request for
Impasse Assistance is filed (with one major exception).
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Discussion
“The Mediator’s job is to get the parties to
agree, not to get them to agree on a
solution/language that’s good for either side.”
Assuming this statement is true,
 What should you expect the Mediator to say
and do in dealing with the parties, especially
when he works with each side in caucus –
without the other side there?
 What should each Union negotiating team
member do or not do when it is in the
presence of the Mediator?
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 Impasse = if issues remain unresolved after the
Mediator has provided all useful assistance, either
party or both parties together can ask the Federal
Service Impasses Panel (FSIP) to assert its
jurisdiction to bring negotiations to a conclusion.
 The FSIP has very broad authority to resolve the
impasse using any technique(s) it wants.
 Unlike the Mediator, the FSIP can order the Parties
to include in their LSA any language it feels is the
best way to resolve the issues that were submitted
to it.
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Ratification = the Union can submit the entire
contract to its internal ratification process.
 Ratification is not a subject for bargaining (DVA can’t
debate whether or how a Local ratifies the LSA).
 If the LSA is ratified, the parties execute (sign) the LSA
and it moves to the next stage.
 If the LSA is not ratified, the Union can renegotiate
language that was agreed to voluntarily.
If the LSA is not ratified, the Union and DVA are still
required to accept language that was imposed by the FSIP.
 So, ratification should include a way for the Union to
determine which language caused the LSA to not be
ratified, in order to determine whether language is subjec
to renegotiation.
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Agency Head Review = if an agreement is the
controlling (master) agreement or a supplement to it, the
Agency Head has the right to review it to determine if any
language in it is illegal (non-negotiable).
 The Agency Head cannot reject language for any reason
except illegality.
 If the AHR results in language being disapproved, the
Union has to file and win a negotiability appeal to keep the
language in the LSA.
 The language can be modified by the Parties to “work
around” the disapproval, but the Union must protect its
language by filing the negotiability appeal even if it
appears an informal resolution of the disapproval may
happen.
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Implementation = after Agency Head Review and
resolution of any negotiability disputes, the contract
goes into effect (implementation).
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Pay Attention to Time Limits
 If the Agency Head fails to review the LSA within 30 days
after it was signed, the contract is in effect as signed.
 If the Union fails to file a negotiability appeal within 15
days after receiving ANY written notice that the LSA was
disapproved, it loses the right to challenge the Agency
Head’s disapproval; the disputed language is out of the
LSA even if, in fact, it was negotiable (legal).
 A timely Agency Head disapproval is valid even if it fails
to identify which language was disapproved and even if it
is not addressed to the Union. WHEN IN DOUBT, FILE A
NEGOTIABILITY APPEAL ON TIME; IF YOU WEREN’T
TOLD WHICH LANGUAGE WAS DISAPPROVED, SAY
THAT IN THE APPEAL - BUT GET IT FILED ON TIME.
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In other words,
During negotiations, the Union controls whether and
when to file a negotiability appeal. Unless it requests,
in writing, DVA’s written allegations of nonnegotiability, no time limit applies and perhaps a
negotiability appeal will not become necessary at all.
BUT
After negotiations, DVA controls the negotiability
appeal process through its ability to disapprove
language from the LSA. If that happens, the Union
MUST file a timely negotiability appeal or it will lose
the disputed language without a fight.
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What you can do if DVA says a
Union Proposal Is Non-Negotiable?
 Ask DVA for case citations that support their claim; then
check the cases yourself. Read the entire case.
 Do your own research for the most recent cases on the
issue. Read the entire case.
 Change your proposal if you agree it could be nonnegotiable.
 Use the “appropriate arrangements” approach.
 If you disagree with the claim, leave the language on the
table; it’s a ULP for DVA to allege language is illegal if the
FLRA has said language presenting the same negotiability
issue is legal.
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What can make a Union proposal
illegal aka “non-negotiable”?
 In general, it’s illegal if it conflicts with a federal
law (including management rights), or an existing
government-wide regulation, or a DVA regulation
for which a compelling need exists.
 If a proposal addresses the same subject but does
not conflict with such law/regulation, it is legal.
The Union has the right to bargain how discretion
in a law/regulation is going to be exercised.
 DVA saying it’s illegal doesn’t make it illegal.
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Appropriate Arrangements
 Under 5 U.S.C. 7106(b)(3), a Union proposal can be
negotiable even if it conflicts with an Agency’s
exercise of its Statutory management rights.
 The test follows the Analytical Framework for
appropriate arrangements, which balances the extent
of interference with the benefit to employees who are
adversely affected by the management right.
 If the extent of interference is excessive, then the
language is not legal.
 You can win and require DVA to bargain on a proposal
using the “appropriate arrangements” law.
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Bottom line: Negotiability
 Don’t accept a DVA claim of non-negotiability on its face
– many times Agencies use the words without any caselaw
to support their claim. Read and apply FLRA precedent.
 Be open to language that “works around” any legitimate
claims of non-negotiability. Ask DVA to propose such
language, or modify your own proposal.
 If DVA refuses to do that, publicize to the workforce that
management is refusing to talk about/not interested in
their concerns.
 Challenge DVA by filing a negotiability appeal if language
on the table is negotiable. If the language does conflict
with a management right, use “appropriate
arrangements”.
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Discussion
 If, during negotiations, DVA claims a Union
proposal(s) is illegal, what can you do about
that claim? (Numerous options)
 If, on Agency Head Review, DVA
disapproves language from the LSA, what
can you do about that claim? (One
requirement, one option)
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What Are Ground Rules?
Why Are They Used?
 Ground Rules are a (negotiated) collective
bargaining agreement (CBA) that contain how
another agreement – LSA, MOU, or Master
Agreement – will be negotiated.
 Ground Rules serve the same function as any other
union-management agreement, specifying each
party’s rights and responsibilities during the
subsequent negotiations. They are subject to
differing interpretations by the parties, and to the
same enforcement procedures as any other CBA.
Ground Rules
 This constitutes the Ground Rules between ____
(the Agency) and ____ (the Union) concerning [a
subject] or [the parties contract].
 Effective date (upon signing)
 Bargaining schedule (Start Aug 3, negotiate from
8-5, M-F until the agreement is concluded) with
reasonable/2 15-minute breaks and 1-hour lunch
 Caucus called at any time by either party
 Chief spokesperson – 1 for each party
 Size of Teams (only in duty status; no limit on
number of members not in duty status.)
Ground Rules
 Official Time and expenses for all phases,
including 3rd party proceedings and __ prep.
 Suitable meeting room and caucus room will be
provided by the Agency, along with usual office
facilities (PCs, printers, fax machine, phones, regs,
cases)
 No official notes, either party can keep its own
notes
 No recordings
Ground Rules – Other Topics
• mediator contacts will be joint or either party may
contact the mediator – by law, the Union has – and
should not waive - its right to get mediation unilaterally.
* how to handle negotiability disputes – (RISKY)
• publicity/contact with employees and others – it’s a
union right, don’t limit it or waive it.
 ratification – if discussed with management, the
discussion is ONLY for informational purposes. It’s not
a subject to be bargained over. But, be sure you notify
management prior to bargaining that the Union will use
a ratification process prior to signing the agreement, if
that will be the case.
* Others?
Other Points About Ground Rules
 Article 46, Local Supplements, contains a Section
that lays out Ground Rules for LSA negotiations. Do
you have to use them for your LSA? Can additional
Ground Rules be negotiated for each
Local/Installation? Why/Why Not?
 When Ground Rules are being properly negotiated,
what happens if the Parties can’t /don’t reach an
agreement on them?
 What do you do if DVA insists on language for GRs
over which the Union is not required to bargain?
Examples: ratification, negotiability procedures.
Ground Rules Exercise
In small groups, write 3 ground rules that
your Local will submit to Management at
your installation(s). Be specific, clear, and
brief about what you want. Include any
issue(s) you’ve experienced when
negotiating prior ground rules, or expect to
experience in the upcoming LSA negotiations.
Please report back to the full group in ___ minutes.
Have You Negotiated Without
Ground Rules?
Not having Ground Rules is like not having a contract –
you’re at the mercy of the good intentions/good graces
of DVA managers.
Ground Rules are regarded by the FLRA as a mandatory
subject of bargaining; if either party proposes them,
they’re on the table.
Have YOU ever negotiated without Ground Rules? How
about negotiating grievance or ULP settlements?
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The Big Picture
Implement
• Mediation,
Impasse, and
Ratification are
common but not
essential.
Prepare
Review
Negotiate
Bargaining
Cycle
Ratify
Mediate
• Ratification and
Review can cause
recycling back to
Negotiation.
• Ratification can’t
trump Impasse
decisions.
Impasse
Prepared by FSED
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The Union’s roles are-To represent employees in the bargaining unit
as a whole.
 To represent its own institutional needs.
 To represent collective bargaining as being
“in the public interest.”
 To account to employees through elections
and ratification votes.
 To look at what problems employees want
fixed, and the best ways to fix them--which
may not be [solely] through bargaining.

Prepared by FSED
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Management often sees its roles as being- To maintain institutional authority.
 To accept changes and added benefits and
protections, when it is persuaded they are
needed (or ordered by a third party).
 To protect their “turf” within the Agency.
 To fix problems caused for one or more
managers by previous collective bargaining
agreements, laws, regulations, policies,
budget constraints, and the decisions of third
parties (arbitrators, FLRA, other Federal
agencies, and courts).
Prepared by FSED
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Federal Labor Relations Authority (FLRA)
 Defines “appropriate units” and creates or
modifies “bargaining units” and counts ballots to
see which union, if any, represents the unit.
 Investigates and prosecutes charges of Unfair
Labor Practices (ULPs) against agencies,
individuals, and unions.
 Decides if arbitration awards are legal.
 Determines whether/which language is legal, i.e.,
can be negotiated and put into an agreement
(“negotiability appeal”).
Prepared by FSED
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Federal Mediation and Conciliation Service (FMCS)
 Promotes voluntary programs to improve
union-management relations (outside of
bargaining).
 Helps the process of bargaining go smoother.
 Not concerned with the outcome - if the
parties agree, that’s what matters to the
mediator.
 Verifies, when asked by the Federal Service
Impasses Panel (FSIP), that further bargaining
would or would not be useful (“declares the
parties to be impassed”).
Prepared by FSED
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Techniques mediator use- Suggesting alternative approaches to issues
when the Parties’ proposals are not
compatible with each other.
 Suggesting “package deals” in which each
party gets something and gives up
something else, thus resolving multiple
issues or even Articles in one step.
 Probing each side separately to determine
which issues a Party is NOT committed to,
or on which a Party is NOT united.
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The Mediator also . . .
Assists in solving process problems, such as
 Disputes over the Ground Rules;
 Information needed by the Union in order to
bargain;
 Anything else that gets in the way of progress –
not just when the proposals are stalled.
Don’t forget to notify FMCS in advance that you’re
going to be going into negotiations.
Prepared by FSED
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