By William Wiley, August 15, 2018

New political appointees, new case decisions, new changes to the law. The answer to the questions below from an alert reader highlight one of the recent changes, in case you missed it:

Good Morning FELTG,

With the recent ruling by the FLRA clarifying the two concepts of Conditions of Employment vs. Working Conditions as distinct, would a low-level agency policy concerning Conditions of Employment still be negotiable or still excluded? Does the level of authority make a difference?

Sometimes good questions take two answers to cover everything. Here’s our first:

Dear Reader –

As this is a very recent and significant change, it will be a couple of years before we understand all the implications. However, our best guess is that it is not the level of the change that is controlling, but the nature of the change itself. Remember, some unions have recognition at a relatively low level in an agency; perhaps just a few offices in a regional structure. If a low-level manager changes a personnel policy (e.g., the manner in which annual leave requests will be considered and the standards by which they will be approved), then in our opinion, that’s a change in a Condition of Employment and thereby just as negotiable as it would be if the agency head made the same declaration.

Hope this helps-

Given the complexity, it’s not surprising that the answer above generated question Number Two, below:

So, a policy, rule, etc. affecting a Working Condition is negotiable, just not vice versa? Thank you, sir, for your guidance.

And here’s our answer Number Two:

After DHS & CBP and AFGE, 70 FLRA 501 (2018) we have to be strictly careful about the phrase we use:

  1. A new policy or practice that will change a Condition of Employment must be proposed to the union and bargained to conclusion by management. The agency may not implement the change until this is done.
  2. These negotiable Conditions of Employment, by definition, affect Working Conditions.
  3. However, once the new Conditions of Employment are bargained, the agency may further change the affected Working Conditions established by the Conditions of Employment WITHOUT new notice and bargaining.

The facts of the case were that the workplace Conditions of Employment had established that work was being done in two different related areas. Management changed the relative amount of work being done so that more work was done in one area and less in the other. The union claimed that this was a change that had to be bargained; i.e., a change to a Condition of Employment. FLRA disagreed, finding that although there was a change to the Working Conditions, there was no change to the Conditions of Employment affecting those Working Conditions. Therefore, no bargaining obligation.

This is a fine line issue our Dear Reader has raised. We will need dozens more FLRA decisions to see more clearly where that line is exactly. Our advice to all you fired-up agency labor relations specialists? Go change something in the workplace without noticing and negotiating and thereby tick off your union so that they file an unfair labor practice. We need the case law.

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