Contents  

• Important points
• Be prepared
• Purpose of negotiations/bargaining  
• Key concepts 
  • Substantive vs. "I&I" bargaining 
  • "Term" bargaining/contract negotiations 
  • Mid-term bargaining 
  • Duty to bargain in good faith
  • Management Rights 
  • Negotiability: "Negotiable" vs. "Non-Negotiable"
  • Impasse
• The (Mid-Term) Bargaining process
  • Union-initiated or Management-initiated proposal(s) 
  • Notice of a change in working conditions
  • Deadlines
  • Invoking the Union's Right to Bargain
  • Official time 
  • Getting help
  • Information request
  • Ground rules
  • Formulating proposals
  • Bargaining
  • Agreement 
• "Term" Collective Bargaining/Contract Negotiations Process
  • "Opener" - window to open contract for negotiations
  • Getting prepared
  • NFFE assistance - Chief Negotiator 
  • Survey 
  • Information request 
  • Ground rules 
  • Formulating proposals
  • Bargaining
  • Agreement on CBA
  • 30-Day Agency review
  • Printing/distribution of contracts
  • Amending/supplementing the contract 
• Contesting Management Actions  
  • Negotiability Appeal --> FLRA
  • Impasse Panel Proceeding --> FSIP
  • Unfair Labor Practice --> FLRA  
  • Grievance/Arbitration
• Sample Requests to Negotiate/Union Proposals
• Sample Ground Rules
• Sample Negotiability Appeal Documents
• Sample Information Requests - 5 U.S.C. 7114(b)(4)

• Don’t miss deadlines – preserve the Union’s right to bargain.  In our contract, the deadline to invoke the Union’s right to negotiate is between 15 and 30 days after receiving written notification, depending on what deadline (if any) was included in the notice.  If the deadline is missed then potentially Management can implement a proposed change without the Union having any say in the matter. 
• Seek guidance – contact the Local 1998 leadership (Union President, Vice President, Chief Steward, Secretary-Treasurer, and Recording Secretary) for guidance when a situation arises that may call for bargaining (e.g., a change in working conditions). 
• “Management Rights” – probably the majority of bargaining in the federal sector touches on Management Rights, which are listed in 5 U.S.C. 7106.  Oftentimes you may hear a manager tell you, “that’s a Management Right so we don’t have to deal with you on this” or “that’s not negotiable because it is a reserved Management Right” or something like that.  Do not be confused by this talk.  Yes, Management does have rights listed in the law.  However, that very same provision of the law gives the Union the right to bargain for “procedures” for how Management will exercise those rights and also for “appropriate arrangements” to ameliorate the adverse impact on employees by the exercise of that right.  (read below for more on this)
• Communicate – inform bargaining unit employees of what changes are being considered and solicit input from them.  Any bargaining you do as a Union Steward is on behalf of the bargaining unit employees, so it is vital that you communicate with them. 
• Union/Management Councils – virtually any type of issue that could be accomplished through mid-term bargaining (see below and see Article 12 of the contract) could also be done, more informally and in some cases more effectively, through the partnership process used in the Union/Management Councils (see Chapter 12 of this Steward Manual and also see Article 4 of the contract).  However, if the UMC does not successfully resolve the issue, then mid-term bargaining may commence.  In any event, while working through the UMC is the best approach in many instances, never fail to invoke the Union’s right to bargain in a timely fashion. 
• Relevant Government Agencies – there are three independent government agencies that play a key role in federal sector bargaining.  They are independent in the sense that they are not part of the Department of State, the Department of Labor, or any other part of the Executive Branch.  The three agencies are: 1) the Federal Labor Relations Authority (FLRA), 2) the Federal Service Impasses Panel (FSIP), and 3) the Federal Mediation and Conciliation Service (FMCS). 
• The FLRA makes decisions on the negotiability of proposals, rules on Unfair Labor Practice charges involving bad faith bargaining and other negotiations issues, and also hears appeals on arbitrator’s awards (e.g., on a grievance alleging bad faith bargaining). 
• The FSIP make decisions on which proposals should be adopted when the Union and Management cannot reach and agreement. 
• The FMCS supplies mediators and training to resolve negotiations and help to arrive at agreements. 

Prior to any changes in working conditions or other situation where you may be considering negotiating with Management, it is important that you be prepared.  For example, you need to know what the FLRA is, what “negotiable” means, what role Management Rights plays in bargaining, and many other concepts.  Make sure to: 

• Read Article 12 of the contract. 
• Read this chapter. 
• Check out the website. 
• Consider attending training classes at the Winpisinger Center (see Chapter 8), including the “Federal Sector Collective Bargaining” course. 
• Email or phone other Union Stewards to find out how they have handled situations like yours before. 

Purpose of negotiations/bargaining

“Collective bargaining” is bargaining, or negotiations, between the Union and Management.  The term is defined by law, at 5 U.S.C. 7103(a)(12):

“collective bargaining” means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession

Unions engage in collective bargaining to advance the interests, protect the needs, and advocate on behalf of the bargaining unit employees that they represent. 

Collective bargaining is a statutory requirement – 5 U.S.C. 7114(a)(4):   

Any agency and any exclusive representative in any appropriate unit in the agency, through appropriate representatives, shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement. In addition, the agency and the exclusive representative may determine appropriate techniques, consistent with the provisions of section 7119 of this title, to assist in any negotiation.

Key concepts

Substantive vs. “I&I” bargaining

Generally speaking, bargaining occurs in two legal contexts – bargaining over the substance of a proposal or bargaining over the impact and implementation of a proposal:

• Substantive: this involves bargaining over whether or not the proposal will be implemented.  This is “meat and potatoes” bargaining. 
• “I&I” bargaining, or “impact and implementation” bargaining, involves negotiations over “procedures” for how a proposal relating to a Management Right will be executed and negotiations for “appropriate arrangements” for employees who would be adversely affected by the exercise of a Management Right. 

“Term” bargaining/contract negotiations 

Term bargaining is bargaining for a contract on behalf of all employees in the bargaining unit – all employees within Passport Services, not just one office.  Term bargaining involves comprehensive negotiations on a wide range of subjects.  NFFE Local 1998 and Passport Services bargained from January 2000 until June 2001 for the contract that went in to effect on July 3, 2001.  This involved 7 weeks of face-to-face bargaining in Washington, DC.  The previous contract, effective on September 23, 1991, reportedly involved 2 weeks of face-to-face bargaining.  Bargaining for a new contract takes place every infrequently – with years in between editions of the contract.  This is a major undertaking.  See below for more information. 

Mid-term bargaining

Mid-term bargaining occurs during the term of the contract, and can happen at the local office level or at the national level.  This usually involves one issue at a time, but can involve a number of issues.  Oftentimes mid-term bargaining is connected to a proposal from Management to change working conditions, but the Union can also initiate mid-term bargaining on subjects not “covered by” the contract. 

This is the type of bargaining that most Union Stewards will be performing during their tenure. 

Duty to bargain in good faith

Bargaining in good faith is a requirement of the law – 5 U.S.C. 7114(b):

(b)     The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation--

(1)     to approach the negotiations with a sincere resolve to reach a collective bargaining agreement; 
(2)     to be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment; 
(3)     to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays; 
(4)     in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data--

(A)     which is normally maintained by the agency in the regular course of business; 
(B)     which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and 
(C)     which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining; and

(5)     if agreement is reached, to execute on the request of any party to the negotiation a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement. 

(emphasis added)

The words in bold emphasize the important components of bargaining in good faith – bargaining sincerely, being represented by duly authorized representatives, meeting at reasonable times, avoiding delays, and furnishing necessary data.  Both parties must make a sincere effort to reach agreement.  The negotiators at the table must have full authority to reach an agreement – they cannot be puppets of others, not present, who are pulling the strings.  No delay games should occur.  The information necessary for the Union to have in order to conduct a “full and proper discussion” of the issues must be provided by Management. 

Failing to negotiate in good faith is an Unfair Labor Practice (see 5 U.S.C. 7116) and a side alleging that has occurred may file a ULP with the FLRA.  

Management Rights

“Management Rights” are defined by law at 5 U.S.C. 7106:

§ 7106.     Management rights

      (a)     Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--

 (1)     to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and 
 (2)     in accordance with applicable laws--

      (A)     to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; 
      (B)     to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted; 
      (C)     with respect to filling positions, to make selections for appointments from--

      (i)     among properly ranked and certified candidates for promotion; or 
      (ii)     any other appropriate source; and

(D)     to take whatever actions may be necessary to carry out the agency mission during emergencies.

      (b)     Nothing in this section shall preclude any agency and any labor organization from negotiating--

 (1)     at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work; 
 (2)     procedures which management officials of the agency will observe in exercising any authority under this section; or 
 (3)     appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.

On many occasions Union Stewards have been told by managers that they cannot negotiate over a topic because it is covered by “Management Rights” or that Management need not notify or bargain with the Union on a subject because of “Management Rights”. 

This is a misunderstanding of Management Rights. 

Some managers have pointed out, for example, that 5 U.S.C. 7106(a) gives Management the right to order mandatory overtime, establish critical elements and performance standards, and contract out work.  That is true. 

However, all of the Management Rights listed in 7106(a) are “subject to” – meaning “subordinate to” – the 7106(b)(2) procedures and 7106(b)(3) arrangements negotiated with the Union.  This only makes sense, as otherwise if 7106(a) allowed Management to exercise its authority at will, and procedures and arrangements negotiated under 7106(b) were optional and unenforceable, then those procedures and arrangements would be meaningless, the grievance procedure would be irrelevant, and any arbitrator’s authority would be nonexistent.  As the Federal Labor Relations Authority explained in its decision in 51 FLRA No. 36:

Pursuant to this provision, an agency's authority to exercise the rights enumerated in section 7106(a) is expressly made "subject to" section 7106(b). Thus, the section setting forth the authority of agency management begins with the statement that such authority is limited by subsection (b). Consistent with the statement of this limitation in section 7106(a), section 7106(b) begins with the statement that "[n]othing in [section 7106] shall preclude an agency" from negotiating over the matters set forth in the three subsections that follow. This language compels the conclusion that, where a proposal concerns a matter encompassed within section 7106(b), it is negotiable, consistent with the terms of subsections (b)(1), (2), or (3), even though it may also affect the exercise of authority by a management official to take actions enumerated in section 7106(a)….

3. Judicial Interpretations

This construction of section 7106 is consistent not only with the express terms of the Statute and our reading of the legislative history, but also with the decision of the United States Court of Appeals for the District of Columbia Circuit in Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir. 1994) (Montana ACT)….

…. Indeed, the D.C. Circuit had established, prior to Montana ACT, that it viewed section 7106(a) management rights as subordinate to the provisions of section 7106(b). In analyzing section 7106(b)(2) and (b)(3), the court found it "clear that a proposal advancing either a procedure or an appropriate arrangement for adversely affected employees falls within the scope of an agency's duty to bargain, notwithstanding that implementation of the proposal would affect the enumerated managerial rights [in section 7106(a)]." Id. (citing American Federation of Government Employees, Local 1923 v. FLRA, 819 F.2d 306, 308 (D.C. Cir. 1987) (emphasis added)). Similarly, in OEA, the court, holding that employees were "adversely affected" by management's exercise of a reserved management right under section 7106(b)(3) of the Statute, stated that "section 7106(b) authorizes bargaining over proposals in either of three categories notwithstanding some intrusion on [s]ection 7106(a) prerogatives." 876 F.2d at 962 (emphasis added).  See also Overseas Education Association v. FLRA, 961 F.2d 36, 39 (2d Cir. 1992)….

Based on the foregoing, we conclude, in agreement with the D.C. Circuit, that "§ 7106(b) is indisputably an exception to § 7106(a)." Id. 
(underlined emphasis in original, bold & italics emphasis added)

While the case referenced here focused on 7106(b)(1) issues, the FLRA’s explanation makes clear that all of 7106(a) is subordinate to 7106(b) – including 7106(b)(1), 7106(b)(2), and 7106(b)(3). 

In other words, Management’s authority to take actions under 7106(a) is limited by the procedures and arrangements, pursuant to 7106(b), that have or will be reached through collective bargaining. 

Basically what this means is that:

1)     If Management is going to exercise its rights they must be in accordance with past agreements, especially the contract.  Acting in violation of the contract is subject to a grievance or other appropriate avenue of appeal.

2)     If Management is going to exercise its rights on a subject not covered by the contract, or for which the contract has an “opener”, then Management must notify and negotiate as appropriate with the Union, generally (unless there is an emergency) prior to initiating the action or implementing the plan.  Failing to notify or negotiate with the Union is subject to a grievance or ULP charge or other appropriate avenue of appeal. 

Negotiability: “Negotiable” vs. “Non-Negotiable”

Negotiability is a concept that describes whether a proposal is legal subject to or eligible for bargaining.  If a Union proposal is negotiable, then Management has a legal obligation to bargain over it.  In the federal labor-management context, a synonym for “negotiable” would be “legal”.  Even more accurate: “obliged to bargain” means the same as “negotiable”.  If a Union proposal is non-negotiable then that means Management has no obligation to bargain over it. 

If there is a dispute as to whether a proposal is negotiable or not, a negotiability appeal may be filed with the FLRA (read below for more information). 

The term “non-negotiable” really covers two issues. 

First of all, a proposal by the Union can be non-negotiable because it is not legal or valid – it conflicts with a law or a governing regulation, or interferes too much with the exercise of a Management Right (how much is too much? – that is discussed below).  That means that even if Management agrees to it accidentally or in error, that provision in a contract or a local agreement is not legally valid or enforceable.  If Management later violates that provision, a grievance/arbitration over that violation would not be upheld by the FLRA. 

Second of all, some issues – informally called “(b)(1)” issues because they come from 5 U.S.C. 7106(b)(1) – are negotiable, but only at the election of Management.  That means that Management can choose whether or not to bargain over them.  These topics include the numbers of employees, the tour of duty, or the means of performing work.  If Management chooses to negotiate over them and “(b)(1)” proposals are incorporated into the contract or a local agreement, they are binding on Management and they are enforceable through the grievance procedure.  During bargaining, a manager may say that a Union’s “(b)(1)” proposal is “non-negotiable”, but in that context the phrase simply means that Management chooses not to negotiate over it and therefore Management has no obligation to do so. 

Examples

Here is an example that was alluded to in the “Management Rights” section above:

Mandatory Overtime

Management does have the right to assign mandatory overtime, but here are some negotiable proposals (meaning that Management is obligated to bargain over them and, if adopted, become legally enforceable) that unions have made on this subject:

Upon request, the employer shall relieve an employee from an overtime assignment if there is another qualified employee available for assignment and willing to work.  16 FLRA No. 132

Also, in, the Authority ruled this proposal was negotiable:

An employee shall have the right to refuse an overtime assignment provide he has a legitimate reason and a qualified employee is available to take his place. 25 FLRA No. 9

In our contract, we have this provision:

In the event an employee does not desire to work overtime, the Employer shall make an effort to accommodate the employee's request to be excused from overtime work, provided that another qualified employee, who normally performs the work, is available for the overtime.  (from Article 28, Section 2) 

So, while Management can order mandatory overtime, the Union can negotiate for proposals for how that will be implemented, even proposals that would excuse an employee from mandatory overtime in certain circumstances.  

Impasse

An impasse occurs after both sides have met and bargained over a proposal on a number of occasions, but simply cannot reach an agreement.  This applies in cases where there is no negotiability question. 

When there is an impasse, the resolution of the issue may be referred to the Federal Services Impasse Panel, which is an independent body that will issue a ruling within the parameters of what is being proposed.  The FSIP will either adopt Management’s proposal, the Union’s proposal, or strike a compromise in between the two. 

The Mid-Term Bargaining Process

Mid-term bargaining is any bargaining that goes on during the life of a contract – it does not include negotiating over a successor contract.  Mid-term bargaining takes place both at the local office level and at the national level. 

Union-initiated or Management-initiated proposal(s)

The Union may make proposals during the term of a contract, for which Management is obligated to bargain over, so long as the proposals are not “covered by” the contract.  The Union’s right to make mid-term bargaining proposals for mattes not covered by the contract was established by a Supreme Court decision on a case initiated and argued by the National Federation of Federal employees, our very own Union: NFFE v. Interior, 526 U.S. 86 (1999). 

“Covered by” means that the proposal addresses a situation that is already dealt with in the contract.  Management does not have an obligation to bargain over proposals that are covered by the contract; however, Management and the Union at the national level may mutually agree to open up the contract in order to amend it.  Similarly, if the parties already reached agreement on a subject and included it in the contract, then Management may not unilaterally (without the Union’s consent) open the contract for renegotiation. 

If Management is taking an action regarding a matter for which a procedure or arrangement was already bargained for and adopted in the contract, and Management is complying with the provisions of the contract, then there is no bargaining obligation.  If the Union attempts to bargain over this matter, Management can assert that it is already “covered by” the contract.  However, if in the manner Management is taking the action the provisions of the contract are not being abided by, then that type of problem or disagreement would be handled with a grievance (or, in a few instances, by a ULP charge). 

There are some provisions of the contract for which there is an “automatic opener” (also called a "reopener"), meaning that the subject is not specifically “covered by” the contract – on the contrary, an “opener” means that the subject is explicitly established by the parties to be subject to mid-term bargaining.  Here are some examples:

Article 8, Section 1h

The employer will notify the union prior to undertaking any moves of more than one bargaining unit employee. The union may request negotiations as appropriate.

Article 25, Section 1

The Employer will give the Union notification of any change in the hours of work, shifts or tours of duty affecting Unit employees in accordance with the procedure set forth in Article 12 (Negotiations). The Union shall be given the opportunity to request negotiations as appropriate.

Article 26, Section 1

Where the provisions of this Article describe procedures for Union/Management Councils to develop Flexitour and Alternate Work Schedules, it is understood that Management or the Union may also make proposals relating to tours and Alternate Work Schedules and establish policies through traditional Union-Management bargaining methods. 

Article 35, Section 8

When the Employer determines that work will be contracted out that is being performed by bargaining unit employees, the Employer will notify the Union.  The Union may request negotiations as appropriate.

For all of these provisions – moving desks, changing schedules, contracting out work – if Management is seeking to make a change then the notification and negotiations requirements of Article 12 apply.  These topics are not “covered by” the contract, and therefore Management has an obligation to negotiate. 

Contrast these provisions with Article 24 of the contract, for example, which covers disciplinary action.  The agreed-to language for disciplinary actions is already included and “covered by” Article 24.  If Management seeks to change Article 24, it must either have the consent of the Union for an amendment or must wait until the renegotiation of the contract.  If Management violates Article 24 or makes a unilateral change, that is subject to a grievance or a ULP charge.  If the Union seeks to make changes to Article 24 during the term of the contract, Management can lawfully refuse to bargain over the Union’s proposals, using the “covered by” argument, because there is no “opener” in Article 24. 

Because most mid-term bargaining has in the past involved proposals to change working conditions that were initiated by Management, the rest of this section is written within that context.  However, do not lose sight of the Union’s right to make mid-term bargaining proposals on subjects not covered by the contract. 

Notice of a proposed change in working conditions

Management has an obligation to notify the Union in advance of changes in working conditions and to negotiate, as appropriate, over the changes with the Union.  This is recognized by the FLRA and a body of legal rulings and precedents, as well as in the contract.  As stated in Article 12, Section 2 of the contract:

2.  MANAGEMENT OBLIGATION:

a.  The Employer agrees to give reasonable advance written notice to the Union and the opportunity to negotiate any new or change in personnel policy or practice affecting working conditions of unit employees, which is proposed during the life of the Agreement.  Negotiation as appropriate on issues which are Management rights will also be handled in accordance with this Article. 

b.  Notification may include a final date for the Union to request negotiations with respect to the proposed change.

In no case shall such final date be less than fifteen (15) calendar days from receipt of the notification of the proposed change. When the notification does not include a final date for the Union to request negotiations, and the Union wishes to negotiate, the Union shall make such a request within thirty (30) calendar days from the date of receipt of the notification. Nothing herein shall preclude the Parties, by mutual consent, from extending or reducing any time limits imposed under this Section.

The Department of State Labor-Management Relations office has recognized this obligation as well.  For example, here is a quote from an October 3, 1997 Department of State Notice titled “Obligation to Deal with Unions”:

Federal Labor Management Relations policy requires that management representatives of the Department consult and bargain as appropriate with exclusively organized labor organization (unions) of the Department with respect to conditions of employment of employees.  This includes personnel policies, practices, and matters affecting working conditions.  Regulations and practices pertaining to allowances, travel, per diem, tour of duty, leave, etc., are considered personnel policies or practices.  Additionally, the unions are entitled to be informed in advance of notifications to employees on actions that management intends to take, even when such actions are reserved management rights that are not subject to negotiation.  The advanced notification is required even when the action is mandated by higher authority, such as a law.  This requirement of advance notice exists because the unions are entitled, upon request, to negotiate appropriate arrangements for employees adversely affected by management’s exercise of reserved rights and the implementation of procedures of management actions.  Examples include changes or new procedures in internal security, assignment of work, or promotion procedures.

Deadlines

As stated in Article 12, Section 2 of the contract, the deadline for the Union to invoke its right to bargain is a minimum of 15 days after receiving the notice from Management.  If the notice contains no deadline, then the deadline is automatically 30 days.  The notice may contain a specific deadline, but that deadline cannot be less than 15 days. 

Failing to meet the deadline potentially waives the Union’s right to invoke bargaining.  This means that Management may potentially be able to implement the change without the Union being able to advocate for anything on behalf of the employees. 

Invoking the Union’s right to bargain

In order to negotiate over a change in working conditions, the Union must invoke its right to bargain.  As stated in Article 12, Section 3 of the contract:

3.  UNION OBLIGATION:

a.  When the Union desires to negotiate with respect to a change proposed by the Employer, the Union shall notify the management official from whom the notification was received. Such notification will be in writing, and within the specified time, if any, or within the standard time period.

b. If the Union believes it needs more or better information in order to respond to the proposal, it must request that information within five (5) days of receipt of the proposal. The request will be made by telephone and directed to the named Employer representative. The employer's representative will provide the information in writing within five (5) days of the request. The time limits for the union response will be extended 10 days if it requests information under this provision.

c.  Any subsequent Union response shall state the specific language the Union wishes to offer for negotiations.

d.  If the Union does not respond within the specified period of time of notification of a proposed change in policy affecting conditions of employment, then the policy may be implemented.

e.  If negotiable proposals are submitted by the Union, they shall be negotiated by the Parties at a time mutually agreed upon. Any necessary face to face negotiations will take place in Washington, D.C., unless otherwise agreed to by the Parties.

f.  In any negotiations in accordance with the provisions of this Article, the number of Union negotiators will not be less than two.  Bargaining unit employees on official time shall not exceed the number of Employer negotiators.

g.  To the extent feasible, where the designated repre­sentatives of the Parties are not in the same commuting area, the Parties agree to use the mail and telephone to conduct negotiations under this Agreement in order to reduce costs.

Scenario: Management approaches you as a Union Steward and notifies you of a change in working conditions.  For example, this could be a change in moving a number of employees from their current desks, a change in work schedules, or a change in the duty officer rotation. 

What should the Union Steward do? 

The Union Steward should:

• Remind the Management official that written notification is required, per Article 12, Section 2 of the contract. 
• Tell the Management official that a response will be forthcoming. 
• Request official time (see Article 7 of the contract) to take the steps listed below. 
• Invoke the Union’s right to bargain: request “negotiations as appropriate” to Management, in accordance with Article 12, Section 3 of the contract. 
• Notify the Union leadership of Management’s notice of the change. 
• Obtain guidance from the Union leadership, NFFE Business Representatives, and/or this Steward Manual. 
• Notify the bargaining unit employees of Management’s proposal. 
• Obtain input from the employees in response to Management’s proposal. 
• Work with the Union leadership to formulate a response. 
• Remember that in any negotiations with Management, the Union must be represented by at least two Union officers (Article 12, Section 3f of the contract). 
• Represent the interests and the needs of all of the bargaining unit employees. 
• Bargain with Management over the proposed change – either in the Union-Management Council (see Chapter 12) or via traditional negotiations (see Chapter 13). 
• Take appropriate actions to contest any Management violations of appropriate authorities in regard to negotiating over changes in working conditions, in consultation with the Union leadership (grievances – see Chapter 14, negotiability appeals – see chapter 13, Unfair Labor Practice charges – see chapter 16). 

The Union Steward should NOT:

• Agree to the change without consulting with the bargaining unit employees first.
• Agree to the change without obtaining guidance when necessary. 
• Miss deadlines (see Article 12, Section 2b of the contract). 
• Fail to invoke the Union’s right to bargain, as appropriate, over the change. 

For more information on Union-Management Council meetings, see Chapter 12 of this manual. 

You are entitled to official time (paid work time) to prepare for negotiations and to actually engage in the negotiations.  Article 12 of the contract states, in relevant part: 

5.  NEGOTIATIONS PROCEDURES:

a. The Employer will provide official time, and, as appropriate, travel and per diem to Union negotiators to attend bargaining sessions.

b.  Union officials will be on official time when negotiating during regular duty hours. Overtime will not be paid to members of the Union negotiating team while in negotiations.

c.  Upon reaching agreement on all articles, the agreement shall be signed by the members of both negotiating teams, ratified by the Union members in a manner prescribed by the Union and, upon ratification, signed by the Union President, and approved by the Employer.

6.  PREPARATION TIME: When initiating a proposal in accordance with this Article, the Employer will provide the Union representative a "reasonable" amount of official time to develop a Union response. The Employer will inform the Union the amount of time, if any, it considers "reasonable" at the same time it presents its Employer proposal to that Union representative. If the Union representative disagrees with the amount of official time provided for preparation of a response, the Union representative immediately will initiate a discussion with the appropriate Employer representative designated for this purpose. The Employer will not delay negotiations on, or the implementation of, proposals pending the resolution of disagreements over the amount of official time that would be appropriate for the Union representative to develop a response. Agreements reached through formal bargaining at the Local 1998 level shall be signed by the Union President and whomever is authorized by the Employer.

Getting help 

As a Union Steward, you are not expected to know everything, but you are expected to find the answers and seek out assistance.  When Management notifies you of a proposed change in working conditions (or when no notice was given, but a change is being made), notify the Local 1998 Union leadership (Union President, Vice President, Chief Steward, Secretary-Treasurer, and Recording Secretary) and ask for assistance.  Forward the notification of information to these Union reps.  Provide as much detail as possible (refer to the questions posed in Chapter 14).  You may also contact a NFFE Business Representative (see Chapter 7).  Remember, the Union's strength comes from its solidarity and its members - you are not alone, so use the resources available to you. 

Oftentimes it is necessary to obtain information from Management in order to determine whether or not to invoke bargaining, what is the extent of the proposed change, and how employees could be impacted by it.  5 U.S.C. 7114(b)(4) gives labor organizations the right to request information from Management.  That section of the law imposes a requirement on Management to furnish the information, within the following parameters: 

(4)     in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data--

      (A)     which is normally maintained by the agency in the regular course of business;

      (B)     which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and

      (C)     which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining

Ground rules can be part of the negotiations process.  All parties to negotiations are bound by the law and the contract, but sometimes it is helpful to negotiate separate ground rules for the particular matter being negotiated.  Subjects that ground rules address include the dates of negotiations, the numbers of negotiators, the number of caucuses that can be called, the amount of additional official time that will be needed by the negotiators, etc.  

You will spend official time formulating proposals, gather input from the bargaining unit employees, communicating with the Local 1998 leadership, researching FLRA caselaw, and brainstorming.  It is not enough to say, "we want to negotiate", you have to offer specific, concrete, written proposals.  

Soliciting input from BUE

The changes being proposed affect the bargaining unit employees that you represent, therefore it is vital that you communicate to them through the bargaining process - when you receive notification, when you are invoking the right to negotiate, and when you are formulating proposals.  What do the employees want?  What do the employees need?  The best way to find that out is to ask the employees.  Sending an email to the bargaining unit employee email distribution list (see Chapter 3) is a good way of doing this.  You may also want to consider bringing up the topic during monthly Union member meetings or calling a special meeting on the subject.  In addition, you may consider emailing or distributing a survey.  

Communicating with Local 1998 leadership 

When you receive the notification of the proposed change, or when you first hear of a change even if you didn't receive notification as required, forward that information immediately to the NFFE Local 1998 Union leadership (Union President, Vice President, Chief Steward, Secretary-Treasurer, and Recording Secretary).  As there are deadlines involved, it is important to communicate this information right away.  

Stay in contact with the Union leadership through the process.  These Union reps can assist you in formulating proposals, strategy, obtaining guidance from NFFE, and in finding out how Union reps in our other offices have dealt with similar circumstances. 

Researching proposals 

As a Passport Services employee, you receive training in the workplace on how to adjudicate passport applications, answer the phones, type letters, book print passports, etc.  We have all kinds of instructions on how to do those tasks.  

How do we research proposals?  You can use the FLRA website, the OPM website, and books such as “A Guide to Federal Labor Relations Authority Law and Practice”, by Peter Broida (sometimes called “the Broida book”).  The Local 1998 Union leadership has a copy of the Broida book, as do the NFFE Business Reps.  

• http://www.flra.gov/

• https://www.opm.gov/lmr/flra/index.asp

• https://www.opm.gov/lmr/index.asp

It is not absolutely necessary to do this kind of research, as there are many proposals that can be made in a given situation that would not be found in these resources. 

If the proposed change from Management is considered a bad idea or harmful to the employees, then a standby proposal is simply: “Maintain the status quo”

Bargaining is the art of persuading of Management to adopt the Union's proposals.  Different people are open to different lines of argument, evidence, and approaches.  How you handle bargaining in your office will depend in large part on who is on your bargaining team and who is on Management's bargaining team.  Here are a few pointers on how to engage in bargaining: 

• Equal numbers: Have the same number of Union negotiators as Management negotiators 

• Never go alone: Article 12, Section 3f requires that the Union have at least 2 employees as negotiators.  This is to protect both you and the bargaining unit employees that you represent.  If you are the sole Union rep in the office, then either have another Union member or bargaining unit employee serve as a negotiator, or have one of the NFFE Local 1998 Union leadership members serve with you (via videoconference, if necessary). 

• Wear your "Union hat": Remember that bargaining with Management is not the same context as the employee/supervisor relationship – within the context of labor-management relations, including bargaining, you are acting as equals.  You are wearing your "Union hat", not your "employee hat" while engaging in bargaining.  

• Solidarity: Speak with one voice.  Have a united front and don't disagree with each other publicly during bargaining with Management.  

• Game plan: It is helpful to have a game plan agreed to among the Union negotiators ahead of time.  Map out your goals, strategies, and what is your "bottom line".  

• Share the load: If only one Union rep is doing all of the talking, it can be difficult on that person and make it harder to persuade Management.  Everyone should speak up.  

• Time out: It is okay to break, or "caucus", apart from Management to discuss an issue or resolve an internal difference.  

• Nothing personal: The goal is to persuade Management to adopt the Union's point of view, so personal attacks are never helpful.  

• Focus: Emphasize the advantages of the Union's proposal.  

• Morale: If a proposed change by Management would harm morale, then that in itself is a valid argument against it.  

• Listen: Pay attention to Management's concerns and attempt to address them.  Be willing to listen and keep an open mind.  

• A third way: Be open to compromise and finding collaborative solutions to a problem.  Sometimes the problem or situation can be addressed in a way that neither the Union nor Management originally proposed.  

• Beware of “group think”: In your internal Union deliberations, watch out for any tendency to stifle debate.  It is very valuable to have different viewpoints and even disagreements behind closed doors, and to speak up about them.  

There are various ways in which bargaining can be conducted:

• Traditional (positional)
• Interest-based 
• Mediated

Traditional bargaining involves a formal exchange of proposals and efforts to persuade the other side to adopt your position.  Interest-based bargaining involves jointly creating a list of Union and Management interests, goals, values, or concerns about a particular topic, and then jointly developing contractual language to address them.  Mediated bargaining involves using a mediator to guide the process, including shuttling back-and-forth between the parties who may be separated into two rooms.  

When bargaining is complete and you have reached an agreement, make sure to put it in writing.  The Union and Management negotiators should normally sign the agreement.  The agreement should be forwarded to the Union leadership.  

It is vitally important that the agreement be communicated to the bargaining unit employees as soon as possible, and in a readily accessible format.  Consider posting it in a shared file or internal office website, on an office bulletin board or the Union bulletin board, and included in an employee orientation handbook.  It should always be maintained in the Union cabinet. 

If your bargaining did not end in an agreement, see the "Contesting Management Actions" section below.  

Many aspects of bargaining for a new contract are the same as mid-term negotiations, so make sure to read the section above on that subject.  What follows here are the things that are different or must be emphasized about negotiating a new contract.

“Opener” – window to open contract for negotiations

Either side may open the contract to be re-negotiated – to bargain for a new contract replacing the old one – but only within the “opener” period.  According to Article 37, Section 1b of the contract:

The Agreement shall be renewed annually on each anniversary date thereafter, unless between one hundred five (105) and sixty (60) calendar days prior to any such date either party gives written notice to the other of its desire to amend or modify the Agreement. If such notice is given, this Agreement shall remain in full force and effect until the changes have been negotiated and approved.

The current contract went into effect on July 3, 2001 and was effective for 3 years – until July 3, 2004.  It was and has been renewed annually on that date automatically.  Both the Union and Management agreed to open it for re-negotiation during the opener period in 2005.  The opener period for the current contract was between March 20^th and May 4^th.  The opener period for the next contract will depend on the effective date.  

Getting prepared

For contract negotiations, it is generally the Union President’s responsibility to get things started.  While the “opener” is listed above, usually opening the contract is NOT the first step in beginning the process of bargaining for a new contract.  It is best to have the dates in mind ahead of time, but to actually start laying the groundwork months in advance of actually triggering the opening of the contract. 

One of the first things for the Union President to do is to determine who will assist with the bargaining.  NFFE and the IAMAW recommend the use of a bargaining committee and a bargaining team:     

Bargaining Committee:

• Perhaps 8 – 10 members
• Would include the approximately 4 members of the bargaining team
• Members who are not on the team would serve as “back-ups” for the team, in the event of absences
• Job duties:
• Identify priorities
• Review problems faced and actions taken on behalf of our employees (grievances, ULP’s, etc.)
• Develop survey of employees (in conjunction with NFFE and the IAMAW)
• Conduct the survey of employees
• Research other contracts, cases, laws, regulations, and the “Broida book” that we purchased
• Draft proposals

Bargaining Team: 

• Approximately 4 members
• Job is to present, argue for, and bargain with Management over our proposals (face-to-face, email, videoconference, etc.)

There are various ways in which the bargaining team members and bargaining committee members can be selected – but any method chosen should involve a vote of the Executive Board, as a decision of this significance should be presented to that body. 

When the old September 23, 1991 contract was opened for bargaining in 1999 and when the current July 3, 2001 contract was opened for bargaining in 2005, the NFFE Local 1998 Union Presidents at that time issued a call for volunteers.  The names of the volunteers were then listed in an email, and the Executive Board was asked to approve giving the Union President the authority to pick from the list of volunteers.  In both cases the Executive Board agreed. 

As we are a bargaining unit made up of employees from 18 offices in 16 cities who perform a variety of functions and have a variety of backgrounds and experiences, it is important to select committee and team members based on and representative of the diversity of the bargaining unit.  Most of the committees work is done by email and phone.  For the team, which will meet with Management in person to conduct face-to-face bargaining, it is important to have team members who will work cohesively and collaboratively.  

NFFE assistance – Chief Negotiator 

The Union President will contact NFFE National and request the assistance of a Chief Negotiator.  This should normally be done well in advance of the "opener".  The Chief Negotiator normally serves as the spokesperson for the local at the bargaining table.  The Chief Negotiator is invaluable as he/she is an expert on labor-management relations and negotiability issues.  

When re-negotiating the contract, a survey of all bargaining unit employees nationwide should be conducted.  This is a great way to capture formalized input from employees.  All surveys should have some space or section in them that allows for additional comments above and beyond the actual survey questions themselves.  

Employees completing the survey should be given official time (work time) to do so.  That has to be arranged or negotiated with HQ, and can be addressed in the ground rules.  For the successor contract to the July 3, 2001 contract, all bargaining unit employees nationwide were given 15 minutes of official time to complete the survey.  

Important point: prior to initiating a survey, consult with the IAMAW and NFFE, as they have survey experts who will help draft the survey and analyze it.  

Information request

Ground rules

Formulating proposals

Bargaining

Agreement on CBA

If you do not reach agreement, then see the section below on contesting Management actions.  

30-Day Agency head review

Printing/distribution of contracts

Amending/supplementing the contract

The contract can be amended (having the current wording changed) or supplemented (an addition to the contract on a matter not address in the contract) at any time during the life of the contract. 

Article 37 of the contract states: 

2.  AMENDMENTS AND SUPPLEMENTS: This Agreement may be amended and/or supplemented as follows:

a.  At any time by mutual agreement of the Parties.

b.  Under the provisions of the Articles entitled "Negotiations" and "Union Rights and Representation."

c.  Within a reasonable time after the enactment of any new law or regulation of appropriate authority which affects the provisions of this Agreement. A proposal by either party to negotiate such amendment(s) or supplement(s) shall cite the pertinent law or regulation and the Article(s) of this Agreement affected.

d.  Representatives of the Employer and the Union shall begin negotiations within 30 calendar days of a request to negotiate under the provisions above, unless the Parties agree to another specific date.

3.  EFFECTIVE DATE, AMENDMENTS AND SUPPLEMENTS: Amendments and supplemental agreements shall become effective on the date signed by the Parties, subject to the approval of the Secretary of State or designee. They shall remain effective concurrent with the basic agreement.  If agreement or rejection under law has not been received by the Union within 30 days from the date the parties signed the contract at the table, the contract will be effective on the 31st day following that signing.

Negotiability Appeal à FLRA 

If Management declares a Union proposal to be nonnegotiable, and the parties cannot develop alternate language, then the Union may file a negotiability appeal with the FLRA.  There are specific deadlines and procedures to follow, and if they are missed then the Union may lose the appeal.  After the Union files the appeal, Management gets an opportunity to explain its position.  The Union then has the chance to write its own statement, and then finally Management has the last word and gets to respond to the Union's statement.  

When the parties cannot reach agreement on a proposal, and mediation has been unsuccessful, then the parties may contact the FSIP to decide the matter.  The Union and Management both submit their positions to the FSIP.  The FSIP decides on the merits of the proposals - which proposal is better.  

An Unfair Labor Practice charge can be filed with the FLRA within 6 months of an event or actions.  ULP's that may be filed relating to bargaining include bad faith bargaining, implementing a change without negotiating, and failure to provide requested information.  This applies both to mid-term bargaining and term negotiations.  

For mid-term bargaining, the issues raised in a ULP can also be contested via the grievance procedure.  However, the Union may select only the ULP path or the grievance path, but not both.  As the term negotiations involve bargaining for a new contract, it would not usually be appropriate to submit a grievance regarding bad faith bargaining or similar actions.  For term negotiations, normally a ULP would always be filed.