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Labor Management Responsibilities
Table of Contents
- AFSA's Negotiating Rights
- What is Negotiable?
- Mandatory Bargaining Subjects
- Permissive Bargaining Subjects
- Reserved Management Rights
- AFSA's Consultation Rights and Impact and Implementation Bargaining
- Requests for Information
- Member Representation
- Rights and Responsibilities of AFSA Post Representatives
- How Can You Help Us Help You?
In 1973, the American Foreign Service Association (AFSA) was certified as the exclusive employee representative for the Foreign Service bargaining units at the Department of State, the U.S. Agency for International Development, and the United States Information Agency (including the Broadcasting Board of Governors). In 1994, AFSA was certified as the exclusive representative for the Foreign Service bargaining units in the Foreign Agricultural Service (FAS) and the Foreign Commercial Service (FAS). Then, in 2013, AFSA also took up representation for the Animal and Plant Health Inspection Bureau.
As the exclusive representative for the Foreign Service employees in the five foreign affairs agencies, AFSA has certain rights and responsibilities under the Foreign Service Act and the individual "framework" or collective bargaining agreements AFSA has negotiated with the various agencies. AFSA's rights and responsibilities can be broken down into two broad categories: negotiating/consulting with the agencies regarding changes in "conditions of employment" and representing individual employees in grievances and certain meetings with management.
AFSA has the legal right to negotiate with management regarding changes in "conditions of employment" of bargaining unit employees. As the exclusive employee representative, AFSA is the only entity that possesses this right. In fact, it is a violation of law for management to bypass the union by dealing directly with employees or other groups to discuss changes in conditions of employment.
It is also a violation of law for management to implement a change in a negotiable condition of employment prior to reaching an agreement with AFSA. If this occurs, AFSA can file an "unfair labor practice" with the Foreign Service Labor Relations Board (FSLRB) or an "institutional grievance" with the Foreign Service Grievance Board and the agency may be ordered to reverse its action until agreement is reached with AFSA. In addition, if AFSA and management cannot reach an agreement on a negotiable issue, the Foreign Service Impasses Disputes Panel may order the terms of settlement between the parties.
While unions in the private sector enjoy an almost unlimited scope of bargaining, numerous statutory exceptions limit the scope of federal-sector bargaining. Thus, while an issue may be negotiable in the private sector, it is not necessarily negotiable in the federal sector.
The Foreign Service Act of 1980 defines the term "conditions of employment" as "personnel policies, practices and matters, whether established by regulation or otherwise affecting working conditions" but the definition specifically exempts matters relating to political activities, classification of positions, matters specifically provided for by federal statute, or matters relating to government-wide or multi-agency responsibility of the Secretary of State affecting the rights of individuals employed in agencies which do not utilize the Foreign Service personnel system. It is under this last exception that AFSA was precluded from negotiating the reduction in the hardship differential in 1994, since the differential is part of the Standardized Regulations, which apply to individuals who are not under the Foreign Service personnel system, as well as those who are.
Certain subjects are "mandatory" subjects of bargaining which the respective agency must negotiate with AFSA. Other issues are "permissive" subjects of bargaining, which the agency may choose to negotiate. A third category is known as a "reserved management right," which the agency is not legally allowed to negotiate with AFSA.
Examples of changes in conditions of employment that are mandatory subjects of bargaining include:
- criteria for performance standards
- evaluation and promotion procedures
- grievance procedures
- procedures governing disciplinary action
- policies related to the work environment (smoking policy, lead-levels)
Under the Foreign Service Act, agencies may choose to negotiate with AFSA on: the numbers, types, and classes of employees or positions assigned to any organizational subdivision, work project, tour of duty, or the technology, methods and means of performing work. Many of the foreign affairs agencies have agreed to negotiate permissive subjects, if requested by AFSA.
There are certain issues AFSA may not negotiate. These are called "management rights" and include the agency's right: to determine the mission, budget, organization, internal security practice and the number of employees; to hire, assign, direct, lay off and retain individuals; to suspend, remove or take other disciplinary action against employees; to determine the number of promotions within agencies; and to fill positions from any appropriate source.
If the parties do not agree as to the obligation to negotiate, the parties may call upon the services of the FSLRB. The agency is precluded from implementing its proposed action until the FSLRB resolves the negotiability issue, unless implementation is necessary to carry out the agency's mission during emergencies or if extraordinary circumstances exist.
Even though AFSA may not negotiate on issues falling into the "management rights" category or those matters excepted from the definition of "conditions of employment" (i.e., government-wide regulations), AFSA does have the right to consult with management prior to its implementation of any changes to such matters. This means that management must inform AFSA of any proposed changes and AFSA must be permitted a reasonable period of time to present its views and recommendations regarding such changes. In addition, management must consider such views and recommendations before taking final action and must provide AFSA a written statement of the reasons for taking the final action. Management's failure to comply with these requirements is an unfair labor practice. Two areas where AFSA has consultation rights are medical regulations and Reduction-in-Force (RIF) rules.
In addition to the right to consult with management prior to its implementation of any changes falling into the "reserved management rights" category, AFSA does have the right to negotiate on the procedures that the agency may use to implement the changes it wishes to make in a management rights area and an appropriate arrangement for employees adversely affected by management's exercise of its rights. For example, while it is the agency's right to determine how many employees to promote, AFSA has the right to negotiate the procedures for promotion. Although AFSA does not have the right to negotiate the criteria for separating employees in a RIF (because Congress has legislated this as a reserved management right), AFSA can negotiate matters such as the amount of notice employees will receive prior to being separated and the participation of riffed employees in career transition seminars, since these constitute appropriate arrangements for employees who will be adversely affected by a RIF.
As the exclusive employee representative, AFSA may request information from agencies which is necessary for full and proper understanding of subjects within the scope of collective bargaining. This is a valuable right because it should enable AFSA to obtain information quickly, without having to go through the lengthy Freedom of Information Act (FOIA) process.
AFSA represents the interests of all bargaining unit members (those who are dues paying members as well as those who are not) when it negotiates and consults with management regarding conditions of employment. AFSA also represents the interest of all bargaining unit members when it testifies on Capitol Hill. While AFSA provides general guidance to non-members in grievances, EEO and disciplinary cases and Inspector General and security investigations, individual representation by AFSA in these matters is available only to dues paying members.
AFSA's six bargaining units (State, USAID, FCS, FAS, APHIS and BBG) are unique from those of other federal labor unions because they are comprised of many different categories of employees ranging from junior officers to members of the Senior Foreign Service, as well as Foreign Service Specialists, in worldwide bargaining units. AFSA seeks to ensure fair representation by having diverse membership on its various standing committees, seeking input from the different constituencies and specialist groups and polling its members.
While only AFSA Washington is authorized to negotiate changes in conditions of employment with management, certified AFSA post representatives do have the authority to meet with post management to discuss employees' views pertaining to working conditions at post.
Post management is required to meet with AFSA post representatives to discuss agency regulations and agency-wide labor management agreements so that the agency can demonstrate compliance with the regulations or agreements. Post management has the discretion to meet with AFSA post representatives to discuss matters on which the regulations are silent and matters specifically left to the Chief of Mission or Principal Officer. Examples of topics that are frequently discussed at post are:
- post-funded training
- permissible employee activities
- parking regulations
- duty rosters and work schedules
- housing and furnishings
- handling and clearance procedures for household effects
- procedures for obtaining local medical care
- housing board membership
- use of post facilities
AFSA is the exclusive employee representative for over 16,000 Foreign Service employees at State, USAID, FCS, FAS, APHIS and BBG. With a limited labor management staff, we need your assistance in offering the best representation possible.
To help us better assist you with your grievance or other concern, we ask that you attempt to resolve your problem, if possible, informally before coming to AFSA. For example, if you believe MED should be paying for a particular medical procedure, contact MED to ascertain its side of the story before calling AFSA. It is also helpful if you research the applicable FAM regulations so you can provide as much information to AFSA as possible.
You can also assist AFSA by joining the AFSA standing committee for your particular agency or participating in an AFSA working group. The standing committees meet frequently in Washington to discuss working conditions, personnel issues, negotiating proposals and numerous other topics. The working groups focus on discrete issues for shorter periods of time. We also urge you to participate in the "polls" AFSA periodically conducts to ascertain the views of its members on specific issues. If you are posted overseas, we urge you to become an AFSA post representative. Finally, we urge that you join AFSA. While we have a responsibility to represent all bargaining unit members, whether or not they are members of AFSA, your dues enable AFSA to provide these important labor-management benefits.