All,
I hope everyone having a good week. Don’t forget about our upcoming member’s meeting. We will be honoring the 2018 Archie League Honorable mention recipients at this meeting. For the D area that will be Jared Zautner, Matt Williford, Matt Dippe, and Chris Hadzick. We will also be voting on proposed changes to the ZSE Local Constitution. Proposed changes can be found HERE. Looking forward to seeing you all there!
Members Meeting is June 13th @ 2:30pm. Rainbow Cafe in Auburn.
Also my annual Half Christmas Cookout is on June 24th so make sure you RSVP to that at the end of this email. Alright, on to the update.
Training Detail Solicitation
We are currently soliciting for an upcoming Article 5 detail to be a lab instructor. The dates of the detail are 8/26-10/11. Please volunteer to me, Angie, or your supervisor by 6/28 if interested.
Sector 35
Garret posted this is in the slack yesterday: Talked with Kevin Miller in Airspace this week. He is in total agreement that it was never their intent for 13 to feel forced to work the RDM area arrivals down to 150. We will work on changing the language for a better fit.
So if you have recommendations on wording for that, let us know.
There have been several complaints made about how the B area is not properly notifying us when they split sector 05 from 35. I have passed this issue along to the powers that be. Let me know if this continues to be an issue. Specific times would be helpful.
OT Swapping
We haven’t had a lot of OT in my time as rep so there are definitely some issues that I am unfamiliar with. Recently we had someone work an OT for someone else. I was under the impression that only the person originally assigned the OT would be charged. I asked Derek Adams to clarify this for me and apparently when you swap an OT, both people get charged. I did not realize this.
In Section 3(e) of our OT MOU it says: An overtime opportunity is defined as the number of hours or minutes originally assigned. A BUE who vacates an overtime opportunity for any reason will be charged with the opportunity.
That led me to believe that only the person originally assigned it would be charged. I think this is something we will look to explicitly clarify in the future in our MOU. If you have thoughts on how that should look, feel free to let any one of your 3 D area eboard members know.
Cascade LOA
The long awaited reworked Cascade LOA will be in place soon. This is the change we made that requires us to get aircraft down when EUG and MFR are in a north flow. We will be getting tick marks added to our scopes as well to indicate the radials and distance for these restrictions. You can expect those to be on the map change on 7/18. They will look like an “L” and a backwards “L” to indicate the radial and distance. You will be briefed on all of this before it takes effect.
PDX Runway Closure
Starting tomorrow there is a 7 day runway closure at PDX. I was told by TMU that they as long as the weather is good, they should be able to offload the box haulers to 3/21. The rate for single runway VFR at PDX is 28-32. They will also be able to manage demand with a CFR. This should prevent us from having to meter but that is not guaranteed. If you are asked to meter, just make sure the instructions are clear and let me know how it goes as we do not currently have procedures for PDX metering in place. Coincidentally, the first meeting for the PDX Metering Art 114 workgroup is tomorrow as well. 🤞🏻
SEAD-3
In CEDAR there is a briefing item for a reporting system called SEAD-3. If I read it correctly, and I would like to think that I did, we are now required to report/request permission for any trips outside the country as well as any relationships with foreign nationals. Seems like kind of a big change to just stick in the ole CEDAR. I have asked Derek to look into it and see what we can find out. I will let you know what we find out.
Break “Expectation”
Apparently at the last supes meeting they decided to brief controllers what their break “expectation” was. I think they see this as a preventative step on the road towards attempting to implement a break “policy.” Either way, the way I see it, they can have all the expectations they want to. If they begin to counsel people or give PRCs for break times that they don’t like, then we are having a different conversation. That being said, the expectation I was told was 50 minutes.
For those wondering why a break policy is such a hot topic, Title 5 of the USC gives us the right to be involved in what we refer to as I&I bargaining. That is the Impact and Implementation of a change mgmt wants to make. We cannot necessarily stop the change from happening, but we get to negotiate its impact and implementation on the work force. Here is some more in depth info on that if interested. Those of you who stuck around this long into my email are probably bailing out now so thanks for stopping by, see you later!
The Federal Service Labor-Management Relations Statute (the Statute) specifically excludes certain "management rights" from an agency’s duty to bargain. These rights are set forth at 5 USC 7106(a). They include such things as the right to:
determine the agency’s organizational structure
hire, assign and discipline employees
assign work
Although agencies are not required to bargain over whether these management rights will be exercised, the union is entitled to bargain as to how these rights shall be exercised. To that end, Section 7106(b)(2) of the Statute requires the agency to negotiate over union-proposed "procedures" for exercising a particular management right.
The agency is also required, by virtue of Section 7106(b)(3), to negotiate "appropriate arrangements" for employees who will be adversely affected by the exercise of a management right.
The process of negotiating over the procedures and arrangements is commonly referred to as "impact and implementation" bargaining, though that term does not actually appear anywhere in the Statute.
An agency that refuses to engage in "impact and implementation" bargaining violates its duty to negotiate in good faith with the union under Section 7116(a)(5). Such a refusal may also be construed as a violation of the agency’s duty to consult with the union before implementing a substantive change in conditions of employment. See 5 USC 7117(d)(2)(A).
Key Criteria:
In order to determine whether an agency has a duty to bargain over the impact and implementation of a change it is about to institute, you should ask yourself the following questions:
1. Does the change at issue concern "conditions of employment"?
2. Does the change affect "bargaining unit employees"?
3. Does the change represent the valid exercise of a management right?
4. Will the change have more than a de minimis impact on unit employees?
5. Is the change outside the coverage of the collective bargaining agreement?
If the answer to all five of these questions is "yes," the exclusive representative has the statutory right to bargain over the impact and implementation of the change. This section will examine each of these requirements one at a time.
Question 1: Involves Conditions of Employment?
The term "condition of employment" is defined by Section 7103(a)(14) of the Statute as: "personnel policies, practices and... other matters affecting working conditions, whether established by rule, regulation or otherwise."
This is a broad definition, but there are several important exceptions to it. Section 7103(a)(14) expressly excludes from the definition--and, therefore, from the duty to bargain--any policies, practices or matters relating to:
a. prohibited political activities
b. the classification of any position
c. matters specifically provided for by Federal statute
Question 2: Affects Bargaining Unit Employees?
Unions are entitled to negotiate only on behalf of employees who occupy positions within bargaining unit they represent. Therefore, as a general rule, the duty to bargain is limited to matters that directly address the conditions of employment of unit employees.
The working conditions of supervisory and management personnel do not concern conditions of employment of unit employees and thus are not within the duty to bargain.
The Authority has ruled that an agency may be required to bargain over a condition of employment that "vitally affects" unit employees even if it impacts upon the working conditions of non-unit employees.
For example, a union proposal that has some impact upon non-supervisory employees who are not represented by a union, or upon non-employees--such as contractor personnel--it will still be bargainable if it "vitally affects" the interests of union-represented employees.
But if a proposal primarily affects either:
employees in other bargaining units, or
supervisory personnel
it is outside the agency’s duty to bargain, even if it concerns a matter that "vitally" affects unit employees.
Question 3: Exercise of a Management Right?
One good way to get a handle on what impact bargaining is, is to pin down what it's not. Specifically, it's not what practitioners usually refer to as substantive bargaining; that is, negotiation as to whether a specific decision will be made or implemented at all (substance).
Rather, I&I bargaining focuses on what will be done to mitigate the impact of a decision that is solely management's to make. So if the agency has a management right to make a particular determination--such as an internal security measure--the union's right to bargain extends only to the impact and implementation of the decision.
It follows, therefore, that the duty to engage in I&I bargaining occurs only in those situations in which an agency is about to exercise one of the management rights reserved to it by Section 7106(a) or 7106(b)(1).
Section 7106(b)(1) of the Statute specifies an additional list of management rights that are open to negotiation if the agency "elects" to do so. They include:
the right to determine the numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty; and
the right to determine the technology, methods and means of performing work.
Because these matters are negotiable only "at the election of the agency," they have traditionally been referred to as "permissive" subjects of bargaining. In other words, agencies have not been required by the Statute to bargain over these matters.
Keep in mind, however, that even if management elects not to bargain over the substance of a Section 7106(b)(1) matter, it is still obligated to negotiate regarding the impact and implementation of its decision (appropriate arrangements and/or procedures).
Question 4: Produces More than De Minimis Impact?
The Authority long ago recognized that requiring agencies to bargain over every single management action, no matter how slight, would be impractical. Consequently, it has held that agencies are obligated to bargain over the impact and implementation of a management action only if the changes effected by that action will have more than a de minimis effect on conditions of employment.
In determining whether a change is de minimis, the Authority will consider the nature of the change and the extent to which it will impact bargaining unit employees. In applying this standard, keep the following FLRA pronouncements in mind:
The overall size of the bargaining unit is irrelevant.
The Authority will consider the number of employees affected by the change, but this factor is not controlling.
A change that has a major impact on just one employee will not automatically be considered de minimis.
The Authority will take "equitable" considerations into account, such as the underlying reasons for the change.
The duration of a change can be an important factor.
The point at which a change becomes more than de minimis can be difficult to ascertain, but, as the term implies, it doesn’t take much. For example:
The Authority recently ruled that an increase in the workload of certain employees, though "slight," was more than de minimis.
It held that the removal of a water cooler from an agency building had more than a de minimis impact.
It ruled that the relocation of a telephone from a supervisor’s office to a less private area had more than a de minimis impact on unit employees who used the phone.
In short, it's unwise to assume that a change is de minimis without carefully considering exactly what's involved in it. And if there are any doubts whatsoever, case law demonstrates that agencies are better served by erring on the side of caution; i.e., when in doubt, assuming a change is not de minimis.
Question 5: Matter Not "Covered By" the Contract?
Unions are not entitled to engage in I&I bargaining over a change if the manner in which the change is to be implemented is already spelled out in a collective bargaining agreement. On the flip side, agencies cannot make changes that conflict with the agreement.
To cite an obvious example, a union would not be entitled to bargain over the "change" of giving an employee an overtime assignment if the procedures for doing so were--as is usually the case--already contained in the contract.
In this situation, the "change" would be viewed as being "covered by" the parties’ contract--and therefore not open to further negotiation every time an overtime assignment is made. The theory behind the "covered by" doctrine, obviously, is that parties should not have to engage in further negotiation over matters that they have already settled.
Sometimes it's not as clear as it is in the sample situation whether a matter is already "covered by" a contract, however, since a variety of factors can come into play. For example, a specific topic may not appear in the contract, but if it was deliberately excluded as the result of negotiations, the matter will likely still be considered "covered by" the agreement for its term. Other instances involving the covered by doctrine such as contractual work schedule changes may still have to be negotiated if requested.
No way you read this far. You skipped some. It’s ok.
In Solidarity,
Drew