Next Time You Hear, “Because We Can”


What They Don’t Want Yoo Know

“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.

Substantive vs. Impact and Implementation Bargaining

 Substantive: This involves bargaining over whether or not the proposal will be implemented.

Impact and Implementation: This 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 affected by the exercise of a management right. This is covered in Article 4 of the CBA.

Duty to Bargain In Good Faith 

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

(a)  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.

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.

  (c)   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)….

Basically What This Means:

 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.


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