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AFGE

AFGE. NSPS Presents Bargaining Challenges. AFGE. Bargaining proposals may not be inconsistent with a government-wide regulation. 5 U.S.C. 7117 (a) (1) Sec. 1106 (b) (2) of NDAA says NSPS is to be treated as a government-wide regulation.

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AFGE

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  1. AFGE NSPS Presents Bargaining Challenges AFGE FSED NSPS Bargaining Issues

  2. AFGE • Bargaining proposals may not be inconsistent with a government-wide regulation. 5 U.S.C. 7117 (a) (1) • Sec. 1106 (b) (2) of NDAA says NSPS is to be treated as a government-wide regulation. • So, we cannot bargain over any proposal that is inconsistent with NSPS regulations BUT… AFGE FSED NSPS Bargaining Issues

  3. AFGE • It is a ULP to implement any government-wide regulation during the life of a collective bargaining agreement if that regulation conflicts with any provision of that agreement 5 U.S.C. 7116 (a) (7) UNLESS… AFGE FSED NSPS Bargaining Issues

  4. AFGE the contract waives the Union’s right not to bargain. AFGE FSED NSPS Bargaining Issues

  5. AFGE • What is a waiver? • Does my contract have one? AFGE FSED NSPS Bargaining Issues

  6. AFGE A waiver allows the agency to put any government-wide regulation into effect during the life of the contract. AFGE FSED NSPS Bargaining Issues

  7. AFGE Check the article on: • Governing Laws and Regulations • Appropriate Subjects for Negotiation • Management Rights AFGE FSED NSPS Bargaining Issues

  8. AFGE Some real-life examples: In the administration of all matters covered by this Agreement, the PARTIES and the employees shall be governed by the laws and regulations of appropriate government authorities, including applicable policies set forth in the ACT; by the Office Personnel Management; by applicable Department of Defense and Navy Department policies and regulations; or by the regulations of appropriate government authorities required by law. AFGE FSED NSPS Bargaining Issues

  9. AFGE Some real-life examples: The provisions of this contract will apply except when in conflict with applicable statute or government-wide regulation issued by appropriate authority.  When a future statute or government-wide regulation is issued that is in conflict with the provisions of this contract, Management will notify the Union of the change.  This notification will be provided to the Union within 7 calendar days of Management’s receipt of the change.  Where possible, Management will provide a 15-day notice of the change. If requested by the Union, Management will meet to discuss the impact and implementation the change will have on bargaining unit employees AFGE FSED NSPS Bargaining Issues

  10. AFGE Some real-life examples: Pursuant to the policies set forth in the Civil Service Reform Act of 1978, Public Law 95-454 (CSRA), National Security Personnel System (NSPS), Public Law 108-136, if and should it become law, and subject to all applicable statutes and regulations issued by the Office of Personnel Management and regulations issued by the agency, unless it has been determined that there is not a compelling need for the regulation by the Federal Labor Relations Authority (FLRA), the following articles constitute an agreement by and between the [agency], hereinafter referred to as Management or the Employer, and the AFGE Local ___, hereinafter referred to as the Union. AFGE FSED NSPS Bargaining Issues

  11. AFGE Some real-life examples: In the administration of all matters covered by this agreement, officials and employees are governed by laws, policies and regulations of appropriate authorities in existence at the time this agreement was approved and by subsequently published laws, policies and regulations of appropriate authorities. AFGE FSED NSPS Bargaining Issues

  12. AFGE If you are not sure whether your contract contains a waiver, get help from a National Representative (Locals) or the Field Services and Education Department (Councils). AFGE FSED NSPS Bargaining Issues

  13. AFGE If my contract does have a waiver, what can I do about it? AFGE FSED NSPS Bargaining Issues

  14. AFGE Is your contract: • In its initial term? • Rolled over for another term? (how long?) • Expired, but the parties still operate under its terms? AFGE FSED NSPS Bargaining Issues

  15. AFGE If your contract is still in its initial term, you cannot withdraw the waiver until after the term finishes. AFGE FSED NSPS Bargaining Issues

  16. AFGE If your contract has rolled over for another term, you cannot withdraw the waiver until the end of the new term. The new term could be one year or more, depending on the text of the contract. AFGE FSED NSPS Bargaining Issues

  17. AFGE If the contract has expired, even if the parties continue to operate under its terms, the union can withdraw its waiver at any time. AFGE FSED NSPS Bargaining Issues

  18. AFGE How do I withdraw a waiver? AFGE FSED NSPS Bargaining Issues

  19. AFGE • A permissive subject is one the union or the agency may choose to bargain or not. • Any waiver of the union’s rights is a permissive subject of bargaining. AFGE FSED NSPS Bargaining Issues

  20. AFGE • Once a permissive subject is part of the agreement, it cannot be withdrawn until the agreement expires or comes up for renegotiation. • By withdrawing consent to any contract provisions concerning permissive subjects, the union withdraws any waivers in the contract. AFGE FSED NSPS Bargaining Issues

  21. AFGE Dear Management: The Union hereby terminates its consent to any contract provisions on any subjects that are permissive on the part of the union. Have a nice day. AFGE FSED NSPS Bargaining Issues

  22. AFGE What if my contract does not have a waiver? AFGE FSED NSPS Bargaining Issues

  23. AFGE • Does any part of NSPS conflict with any provisions of the contract? • If so, then the article containing those provisions cannot be changed by NSPS during the term of the contract, however, other parts of NSPS that do not conflict with the contract can take effect as of the date the NSPS regulations are prescribed. AFGE FSED NSPS Bargaining Issues

  24. AFGE • So, if the NSPS conflicted with a provision of the Performance Management article, but no other, the agency could not implement the Performance Management parts of NSPS. It could, however, implement the pay system, promotion and reassignment, and any other aspects of NSPS. • BUT AFGE FSED NSPS Bargaining Issues

  25. AFGE • Aren’t all the parts pretty much connected?? • If they can’t do one, is it worth it to do any others? AFGE FSED NSPS Bargaining Issues

  26. AFGE • OK. So, I can bargain. Or, can I? AFGE FSED NSPS Bargaining Issues

  27. AFGE • Proposals cannot be inconsistent with a Government-wide regulation. AFGE FSED NSPS Bargaining Issues

  28. AFGE • This is not conditioned by the need to bargain over “procedures” or “appropriate arrangements.” IRS v NTEU, 996 F.2d 1246, 1251 (D.C. Cir. 1993) AFGE FSED NSPS Bargaining Issues

  29. AFGE So, what does “inconsistent” mean? AFGE FSED NSPS Bargaining Issues

  30. AFGE First test: “Sole and exclusive discretion” IAM and Bureau of Engraving and Printing, 50 FLRA 677, 681-682 (1995), aff'd mem. sub.nom. Bureau of Engraving and Printing v FLRA, No. 95-1499 (D.C. Cir. 1996) AFGE FSED NSPS Bargaining Issues

  31. AFGE Second test: Mandate a standard or procedure that is contrary to the regulation AFGE FSED NSPS Bargaining Issues

  32. AFGE Example: Regulation says “case-by-case.” Proposal gives blanket determination. Proposal is inconsistent with regulation. NTEU and Customs Service, 23 FLRA 681, 682-683 (1986). AFGE FSED NSPS Bargaining Issues

  33. AFGE Example: Proposal sets a standard for exercise of authority that expands or contracts standard in the regulation. Proposal is inconsistent with regulation. AFGE Local 1458 and Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3, 4-5 (1987). AFGE FSED NSPS Bargaining Issues

  34. AFGE Third test: Proposal precludes agency from taking action that is required by the regulation AFGE Council of HUD Locals and HUD, 43 FLRA 1405, 1409-1411 (1992). AFGE FSED NSPS Bargaining Issues

  35. AFGE Areas in the contract that need special or additional language for NSPS: • Performance Management • Pay • Merit Promotion • Reassignments • Classification • Overtime AFGE FSED NSPS Bargaining Issues

  36. AFGE Specific proposals will be posted in “Bargaining for the Future” in early 2010. Suggestions are solicited. AFGE FSED NSPS Bargaining Issues

  37. AFGE Expect litigation over whether our proposals are within the scope of bargaining. AFGE FSED NSPS Bargaining Issues

  38. AFGE Consult with FSED before filing any negotiability appeals or ULP charges concerning bargaining over NSPS. AFGE FSED NSPS Bargaining Issues

  39. AFGE The Contract Campaign: Bargaining happens at the table, but also away from the table. The employees must support the objectives of the negotiating team. AFGE FSED NSPS Bargaining Issues

  40. AFGE A Contract Campaign must be part of all bargaining over NSPS. AFGE FSED NSPS Bargaining Issues

  41. AFGE The Campaign will also include: • The Contract Action Team AFGE FSED NSPS Bargaining Issues

  42. AFGE Goals of the Campaign: • Build the Union • Achieve Contract Improvements AFGE FSED NSPS Bargaining Issues

  43. AFGE • Employee participation from start to finish • Proposals based on priorities of BUEs • Motivation at the workplace • Influence the decision makers • Build alliances • Close the deal AFGE FSED NSPS Bargaining Issues

  44. AFGE Campaigns Need a Plan • Objectives – What do we want to achieve? • Implementation Steps – What specific actions must we take to achieve success? • Timeline – What happens, when? • Resources – What do we need? (e.g., budget, materials, “bodies”) AFGE FSED NSPS Bargaining Issues

  45. AFGE Campaign Plan, cont. • Responsibilities – Who makes sure what gets done? • Evaluation – How are we doing? What adjustments are needed? How did we do at the end? AFGE FSED NSPS Bargaining Issues

  46. AFGE Specific training on conducting Contract Campaigns is being developed for early 2009. AFGE FSED NSPS Bargaining Issues

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