June 14, 2023
Here’s more context from the loyal FELTG reader who posed the question:
Let’s say, hypothetically, management at a regional outpost agrees to terms regarding office workspace with their local union, and then enters into a CBA articulating those provisions. Later, the national agency management team creates a policy on office workspace that is inconsistent with the local CBA.
Which policy controls at the outpost? Is it the local policy as stipulated in the CBA or the national policy? Can the actions of a manager at the local level essentially prevent the agency’s leaders from having a universal policy?
Here’s FELTG’s answer:
The union agreement always trumps an agency’s new policies with two exceptions:
- The agency can demonstrate that the new policy is related to the “necessary functioning” of the agency and the change is in response to an “overriding exigency.” See SEC v. FLRA, 568 F.3d 990 (DC Cir, 2009).
- The new policy is implementing a new law. (The incontrovertible law part of the new policy is effective right away. However, the agency still must bargain I&I and any flexible parts of the law).
So, let’s say local management agrees to office space of a specific size, and the agency head later decrees that office space will be less than that, the agency is obligated to continue the bargained-for office space if and until it can bargain its way out of it.
Here’s an example we like to discuss during FLRA Law Week (next held September 18-22). Years ago, the Secretary of HHS declared through a new policy that the work places within HHS would be smoke-free. He reasoned that given the word “health” in the name of his agency, he should prohibit things that by their very nature are not healthy. Very reasonable reason for a new policy, we tend to think.
However, it conflicted with several local CBAs, including at NIH, which had old provisions allowing designated smoking areas.
There was a huge welcome sign as you entered the main campus of an HHS sub-agency that states it is a “totally smoke-free environment.”
Several times, we had to plead with FELTG Past President Bill Wiley to not add a comment to the sign, stating “unless you’re in certain bargaining units.”
Have a question, Ask FELTG.
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