The union has invoked its right to bargain over the agency's unilateral decision to designate human resources managers at each facility as reasonable accommodations coordinators. This impacts bargaining unit employees' working conditions. The union argues it creates a conflict of interest given HRMs' role in fitness for duty processes. The union demands the agency cease implementation and negotiate over the coordinators designation as required by the Federal Service Labor-Management Relations Statute.

2. When there is a decision by an agency to change conditions of
employment of unit employees, even if a protected management right
is involved, there is a duty to notify the union. Also, upon request by
the union, there is a duty to bargain on the procedures that
management will follow in implementing its decision as well as on
appropriate arrangements for employees expected to be adversely
affected by the decision.
This is often referred to as "impact and implementation" bargaining .
Management has the right to decide whether to take actions listed in 5
USC §7106 (a). However, unions are entitled, under succeeding
sections §7106(b)(2) and (3), to negotiate with the agency the
procedures management officials of the agency will observe in
exercising its authority under 7106; or appropriate arrangements for
bargaining unit employees adversely affected by such management
decisions.

4. 5 USC § 7106 (b)(3) requires agencies to bargain over union proposals that
affect the exercise of management rights if the proposals constitute
appropriate arrangements for employees adversely impacted, or reasonably
likely to be negatively impacted by the exercise of a management right.
A proposal is a valid "arrangement" when it is structured to lessen the
impact on identified employees and tailored to those employees
A proposal is an "appropriate" arrangement when it does not excessively
interfere with the management rights in question.
Recent developments in case precedent require that agency negotiators
raise an argument that a proposal excessively interferes with management
rights during the bargaining process, and declare it non-negotiable at that
time. If a proposal intended as an appropriate arrangement is agreed to by
agency negotiators, it cannot be rejected at the level of agency head review
conducted in accordance with 5 USC 7114 (c) unless it "abrogates" or
nullifies the exercise of the right.
Similarly, when an arbitrator enforces an agreement provision negotiated as
an appropriate arrangement, the FLRA will not review the award under the
excessive interference standard. The award will be overturned only if it
abrogates the management right.

6. Negotiability is a term used to describe the
determination of whether a specific proposal is a
mandatory, permissive, or prohibited subject for
bargaining. This determination requires the application
of several "tests" or standards that have evolved through
decisions rendered by the Federal Labor Relations
Authority and the courts.
Note that this guide provides information on how
negotiability is determined, not upon the negotiability
of any specific topics. This guide uses the terms
"proposal" and "provision." A proposal is a matter
offered for bargaining that has not been agreed to by
the parties. A provision is a matter agreed to by the
parties and either subject to agency head review under
5 USC §7114 (c) or already contained in an approved
negotiated agreement.

8.  A proposal does not qualify as a procedure if it directly interferes with the exercise of a
management right. Social Security Administration, 94 FLRR 1-1146 , 49 FLRA 1408 (FLRA
1994); Wright-Patterson AFB, 80 FLRR 1-1199 , 2 FLRA 604 (FLRA 1980).
 Two types of arguments may be raised in negotiability proceedings: negotiability disputes
concerning the legality of a proposal, and bargain obligation disputes concerning whether a
party must bargain over a proposal that may be otherwise negotiable (whether a matter is
already covered by an existing agreement, for example). However, a bargaining obligation
question, standing alone, is not resolved in a negotiability proceeding. Federal Aviation
Administration, 107 LRP 59207 , 62 FLRA 174 (FLRA 2007).
 If a union fails to dispute an agency's claim that a proposal impacts the exercise of a
management right, and fails to support a claim that the proposal is subject to an exception to
management's rights, the FLRA will find the proposal outside the duty to bargain. Federal
Correctional Institution, Waseca, Minn., 109 LRP 59945 , 64 FLRA 62 (FLRA 2009); Federal
Aviation Administration, 108 LRP 5004 , 62 FLRA 337 (FLRA 2008).
 If the FLRA honors a party's request to group proposals because they concern the same subject
matter, and it finds one of the proposals outside the duty to bargain, it will declare all
proposals in the grouping also outside the duty to bargain. Federal Aviation Administration,
107 LRP 59207 , 62 FLRA 174 (FLRA 2007).
 The FLRA will adopt the union's interpretation of its proposals where that interpretation is
consistent with the wording of the proposals. Environmental Protection Agency, 107 LRP 6280 ,
62 FLRA 1 (FLRA 2007).
 The FLRA dismisses petitions for review where it is unable to determine from the wording of
the proposal, and the union's explanation, exactly how the proposal would work, so as to be
able to assess it under applicable law and regulation. Immigration and Naturalization Service,
91 FLRR 1-1432 , 42 FLRA 599 (FLRA 1991).

10.  Specific functions and decisions have been reserved to
management by Section 7106(a) of the Federal Service Labor-
Management Relations Statute. Title 5 USC §7106 (a). These
include an agency's determination of its mission, budget, and
organization as well as the overall number of employees it
will employ and its internal security practices.
 In accordance with applicable laws, the agency also has the
right to hire, assign, direct, lay off, and retain employees; to
suspend and remove employees; and to take other
disciplinary actions. The agency retains the right to assign
work, to determine the personnel needed to conduct
operations, and to make decisions regarding the contracting
out of work. The right to make selections is also exclusive to
the agency. Finally, an agency has the right to take whatever
actions are necessary in cases of emergency.
 The above actions are often referred to as prohibited subjects
of bargaining, and generally, they may not be waived.

11.  From 10-1089-1317440 - DC Circuit Court - Mission Critical Roster
 “Section 7106(a) gives an agency an exclusive, non-negotiable right to assign
work but, under § 7106(b), it may bargain with the representative of its
employees over the “procedures” it will use when it exercises that authority
and the “appropriate arrangements” it will make for any employee “adversely
affected” by a particular action. An agreement prescribing such
“arrangements” and “procedures,” that is, the “impact and implementation” of
an agency’s management right, therefore covers the content of the agency’s
decisions made under that rubric. See Dep’t of Navy, 962 F.2d at 50
(“Although an agency is not required to bargain with respect to its
management rights per se, it is required to bargain about the impact and
implementation of those rights”). Article 18, specifically in sections (d) and
(g), reflects the parties’ earlier bargaining over the impact and
implementation of the Bureau’s statutory right to assign work. See § 7106(b)
(permitting bargaining over the “numbers, types, ... or positions assigned to
any ... work project[] or tour of duty”). Specifically, these provisions represent
the agreement of the parties about the procedures by which a warden
formulates a roster, assigns officers to posts, and designates officers for the
relief shift.”

13.  ABROGATION TEST. A test the Federal Labor
Relations Authority (FLRA or Authority) formerly
applied in determining whether an arbitration
award enforcing a contract provision affecting
management's § 7106(a) rights is deficient.
Under that test (which was in existence for 12
years), an award enforcing a contractual
provision that is an "arrangement" for employees
adversely affected by the exercise of
management's § 7106(a) rights would not be set
aside unless it "abrogated" those rights--i.e.,
unless it left management no discretion at all
with respect to the management right(s) at issue.
For lead cases see 37 FLRA Nos. 20, 67, 70, 103
and 38 FLRA Nos. 3 and 21.

14.  However, Section Title 5 USC §7106 (b) provides that the procedures for
exercising management rights are negotiable, as are appropriate arrangements
proposed by a union. Subsection (b)(1) provides that an agency may, at its
discretion, negotiate some matters that are normally viewed as management
rights. Commonly referred to as the permissive scope of bargaining, these are: the
numbers, types, and grades of employees assigned to an organizational
subdivision, and the technology, methods, and means of performing work.
 This guide refers briefly to particular management rights. Several Quick Start
Guides address specific management rights in detail. See links below.
 The decision in Environmental Protection Agency, 110 LRP 57877 , 65 FLRA 113
(FLRA 2010) means that the FLRA will no longer apply the excessive interference
test to the awards of arbitrators enforcing agreement provisions negotiated as
appropriate arrangements. Now, an award will be overturned only if it "abrogates"
(waives) a management right. At the bottom of this Quick Start Guide are rulings
where an arbitrator's award affected or excessively interfered with the exercise of
a management right. These rulings were issued before the excessive interference
test was replaced with the abrogation standard, and are included because it is not
known how they would have been resolved if the abrogation standard had been
applied (for example, it is possible that the abrogation standard would've been
met). The guide will be updated regularly as more decisions are issued applying
the abrogation test

16.  The matters enumerated in 5 USC 7106 (b)(1) are generally referred
to as the permissive topics for bargaining. These are:
 The numbers, types, and grades of employees or positions assigned
to any organizational subdivision, work project, or tour of duty; and
 The technology, methods, and means of performing work.
 An agency may elect to negotiate over the substance of union
proposals addressing these matters or it may lawfully refuse to
bargain. There is considerable overlap between the permissive scope
of bargaining and the nonnegotiable management rights contained
in Section 7106(a). Where a proposal concerns a permissive matter
and at the same time affects the exercise of a management right, it
is viewed as permissive because Section 7106(b)(1) was intended as
an exception to Subsection (a).
 Permissive bargaining extends beyond the scope of Section 7106(b).
For example, an agency may, but does not have to, negotiate over
the manner in which it fills supervisory positions. A union may, but
is not required to, negotiate a waiver of a statutory right.
 A party has the unilateral right to terminate a permissibly negotiable
agreement upon expiration of the agreement.

18.  The "covered by" doctrine is used as a defense to an
alleged failure to satisfy a statutory bargaining
obligation. Conversely, with grievances involving a dispute
concerning whether a contractual, as opposed to a
statutory, bargaining obligation has been violated, the
arbitrator must interpret the contract to determine
whether the parties have complied with the agreement.
Department of Defense, National Guard Bureau, 102 LRP
15615 , 57 FLRA 934 (FLRA 2002).
 When a party alleges a proposal is covered by an existing
agreement, the Federal Labor Relations Authority/FLRA
applies a two part test. Under prong one the FLRA
determines whether the matter is expressly contained in
the agreement. If it is not, prong two asks whether the
matter is inseparably bound up with, and thus plainly an
aspect of a subject covered by the contract. Internal
Revenue Service, 101 FLRR 1-1117 , 57 FLRA 126 (FLRA
2001).

19.  From 10-1089-1317440 - DC Circuit Court - Mission Critical Roster
 If a collective bargaining agreement “covers” a particular subject,
then the parties to that agreement “are absolved of any further
duty to bargain about that matter during the term of the
agreement.” Dep’t of Navy, 962 F.2d at 53.* For a subject to be
deemed covered, there need not be an “exact congruence”
between the matter in dispute and a provision of the agreement,
so long as the agreement expressly or implicitly indicates the
parties reached a negotiated agreement on the subject. NTEU,
452 F.3d at 796 (internal quotation marks omitted).
 An agreement between an agency and its employees’ designated
representative must be construed “in view of the policies
embodied in the [Statute].” Id. at 797. When the question is
whether an agreement “covers” a matter, we must answer
bearing in mind the importance of finality to collective
bargaining. See Dep’t of Navy, 962 F.2d at 59 (the “covered by”
doctrine ensures the parties’ “stability and repose” during the
term of their agreement).

21.  Date: Tuesday, April 03, 2012
 To: Paul Layer, Chief of LMR Federal Bureau of Prisons
 From: Michael A. Castelle, Sr., NFPC/CPL-#33

 Subject: Invocation of Union’s Rights to Bargain over the Implementation of Reasonable
Accommodations Coordinators in the Federal Bureau of Prisons
 On or about January 6, 2012, the Council of Prison Locals was informed by Ken Hyle, Deputy General
Counsel via email that the Human Resources Managers at every institution and Office are considered
Reasonable Accommodations Coordinators. There is no provision in the Human Resources Manual
Program Statement 3000.03 which confirms Mr. Kyle’s assertion. Therefore translating into the fact
that this process has not been formally negotiated with the Council of Prison Locals.
 This action on the behalf of the Agency has a direct impact on the working conditions of the bargaining
unit employee and is therefore negotiable in accordance with Title 5 USC and all other applicable
Federal Rules, Laws and Regulations. Reasonable Accommodations Coordinators is a provision to the
Department of Justice Reasonable Accommodations Manual, and in which the Federal Bureau of Prisons
is a component.
 Reasonable Accommodations is a provision of 29 CFR § 1614.102 (a)(8) and is therefore a part of the
EEO process in the Federal Government. There is a direct conflict of interest in the Reasonable
Accommodations process having the Human Resources Manager as Reasonable Accommodations
Coordinators based on their role in the Fitness for duty process and the potential removal of an
employee from the Agency based on the employee’s physical or mental condition. Which is causing a
“Chilling” affect towards those employee requesting a reasonable accommodation but not limited to
the fact the HRM’s are not “Neutral” in this process and not see as impartial participants to the
bargaining unit employee.
 Therefore, pursuant to Article 25, Section (f) and Articles 3, 4, and 7 of the parties Master Agreement,
as well as requirements outlined in 5 U. S. C § 7114 (a) (2) (A) I am here by invoking the Union’s Right
to negotiate all changes in working conditions of the bargaining unit employees in the Federal Bureau
of Prisons being affected by the agency’s unilateral decision to have all the HRM at the institution and
office level to perform the duties of the Reasonable Accommodations Coordinators.
 The Union is demanding a cease and desists of any implementation pursuant to FLRA Case precedence
relating to bargaining. Mr. Layer, if you or you representative is unclear, perplexed, bewildered or
simply do not understand what is being stated above please contact this Union Advocate at your
earliest convenience.

23.  Before commencing negotiation over a
bargaining agreement, the parties usually
negotiate a ground rules agreement. Matters
addressed include the bargaining schedule, size
of negotiating teams, payment of travel and per
diem, the location of negotiation, how impasses
will be handled, and a variety of other matters. It
is not uncommon for the parties to reach
impasse on such matters and use the services of
the Federal Mediation and Conciliation Service
and the Federal Service Impasses Panel before
substantive negotiations begin.
 This guide addresses in general principles that
have been developed and the disputes that have
been resolved governing the negotiation of
ground rules.

24. Either party may lawfully insist on reaching an agreement on ground
rules before commencing negotiations on substantive matters. Scott
AFB, 92 FLRR 1-1379 , 46 FLRA 640 (FLRA 1992).

25. An agency's declaration of the number of representatives it will
have in negotiations does not preclude the union from bargaining
ground rules providing for additional union negotiators, as well as
the number allowed by statute. Environmental Protection Agency,
84 FLRR 1-1578 , 15 FLRA 461 (FLRA 1984).

27. Pursuant to Title 5 United States Code and the Master Agreement, the Union
is invoking it's
right to bargain over the proposed change, e.g., Unit Management
Scheduling, or Changes in Office Assignments.
Even if this have been negotiated on the Nation level I still have the right to
have local negotiation.
Please keep in mind that with the initiation of this bargaining request
we expect a "status quo ante" be maintain and no changes take place until
bargaining is completed through impasse.
Please notify me when we can negotiate ground rules.
If there are any question or concerns please contact me.

29.  Informal discussions with management do
not constitute bargaining, and if it’s not
annotated in writing, it’s simply hearsay
between the parties.
 The “Hearsay Rule”: a rule that declares
not admissible as evidence any statement
other than by a witness while testifying at
the hearing and offered into evidence to
prove the truth of the matter state.

30.  Section a. In prescribing regulations relating to personnel
policies and practices and to conditions of employment, the
Employer and the Union shall have due regard for the obligation
imposed by 5 USC 7106, 7114, and 7117. The Employer further
recognizes its responsibility for informing the Union of changes
in working conditions at the local level.
 Section b. On matters which are not covered in supplemental
agreements at the local level, all written benefits, or practices
and understandings between the parties implementing this
Agreement, which are negotiable, shall not be changed unless
agreed to in writing by the parties.
 Section c. The Employer will provide expeditious notification of
the changes to be implemented in working conditions at the
local level. Such changes will be negotiated in accordance with
the provisions of this Agreement.

32. Suppose an agency and union bargained over the implementation
of a new policy on geographic reassignments, but never reached a
point of agreement. The agency notified the union it would
implement the policy. The union didn't respond. The agency
ordered the first round of reassignments, and the union
demanded bargaining, contending that it never agreed to the
policy. Must the agency bargain?
Not necessarily. The Federal Labor Relations Authority has found
that a union may waive its right to bargain over a change in
conditions of employment either explicitly through agreement, or
implicitly through inaction. By not responding to the agency or
invoking the Federal Service Impasses Panel, the union may have
implicitly waived its right to bargaining over a change in
conditions of employment.

34.  An agency may be guilty of an unfair labor practice when it
changes the conditions of employment of bargaining unit
employees without notifying the union and providing it
with an opportunity to bargain over the change. There are
times when the union has the right to bargain over the
substance of the change.
 When the change involves an exercise of management
rights, the union may bargain only over its impact and
implementation. However, there are occasions when a
change in conditions of employment does not give rise to
a duty to bargain.
 There have also been cases where the Federal Labor
Relations Authority found the union waived its right to
bargain. The alleged failure to bargain over a change is
one of the most frequently occurring ULP complaints.

35. When an agency proposes to change conditions of
employment pursuant to an exercise of its
management rights, it has an obligation to notify
the union and to bargain at the union's request over
procedures and arrangements. General Services
Administration, 108 LRP 6377 , 62 FLRA 341 (FLRA
2008).

36. An agency has no obligation to bargain over a change
that has a de- minimis impact on conditions of
employment. This is true whether the change would
be negotiable as to substance or impact. Association
of Administrative Law Judges v. FLRA, 105 LRP 4813 ,
397 F.3d 957 (D.C. Cir. 2005); Social Security
Administration, 104 LRP 8793 , 59 FLRA 646 (FLRA
2004).

37. In assessing whether the effect of a change in
conditions of employment is more than de minimis,
the FLRA looks to the nature and extent of either the
effect or the reasonably foreseeable effect of the
change on bargaining unit employees. General
Services Administration, 108 LRP 6377 , 62 FLRA
341 (FLRA 2008); Internal Revenue Service, 101 FLRR
1-1034 , 56 FLRA 906 (FLRA 2000).

39. Conditions of employment is the term used to describe those matters that
are ripe for collective bargaining either as to their substance or, when
they involve the exercise of a management right, their impact and
implementation. 5 USC 7103 (a)(14) defines conditions of employment as
"personnel policies, practices, and matters, whether established by rule,
regulation, or otherwise, affecting working conditions." The statute
excludes certain matters from the definition. These are policies, practices
and matters relating to prohibited political activities or the classification
of any position. Also excluded are matters specifically provided for by
federal statute.
Conditions of employment include both the environmental and
administrative aspects of employment, everything from the physical
design and layout of employee workspaces to work schedules, procedures
for leave approval, disciplinary procedures, and an endless array of other
matters.
The terms "conditions of employment" and "working conditions" are often
used interchangeably by practitioners. However, the language of the
statute would seem to indicate they mean different things.

40. To determine whether a proposal concerns a condition of
employment, the FLRA applies a two-part test: 1) whether the
proposal pertains to bargaining unit employees; 2) whether there is a
nexus between the proposal and the work situation or employment
relationship of bargaining unit employees.

42. The Federal Employees Flexible and Compressed Work Schedules Act
of 1982, 5 USC 6120 et. seq., provides for the establishment of work
schedules other than the traditional eight-hour day, 40-hour week.
Employees within a recognized bargaining unit are included in work
schedules covered by the act only if such schedules are bargained
with the exclusive representative. The Federal Labor Relations
Authority has declared that all aspects of alternative work schedules
negotiated under the act are subject to bargaining over any agency
objections that such schedules interfere with management rights.
The Federal Service Impasses Panel is the major third-party player
under the terms of the Work Schedules Act. It is charged with
determining whether a particular work schedule causes an "adverse
agency impact" as that term is used in the act.

44. To establish adverse agency impact, an agency must show that a
particular work schedule contained in a collective bargaining
agreement caused, or if still a proposal not yet agreed to, is likely
to cause, a reduction in productivity, a diminished level of
customer service, or an increase in cost (other than a reasonable
administrative cost related to the process of establishing the
flexible or compressed schedule). Federal Bureau of Prisons, 108
LRP 48963 , 08 FSIP 68 (FSIP 2008); 5 USC 6131 (b).
Agency arguments of adverse impact must be more than
speculative. FCI Schuylkill, Minersville, Pa., 106 LRP 73106 , 06
FSIP 111 (FSIP 2006).
In order to prove adverse impact, the record must contain
evidence linking the alleged adverse impact to the work schedule
at issue. March Air Reserve Base, 107 LRP 10571 , 07 FSIP 31 (FSIP
2007).