NAO Chapter 202-711 - Attachment

A. Purpose. This document sets forth policies and procedures to be followed by National Oceanic and Atmospheric Administration (NOAA) management officials to assist them in meeting their responsibilities under the Federal Service Labor-Management Relations Statute (5 U.S.C. 71) and Department Administrative Order (DAO) 202-711, Labor-Management Relations.

B. Application. The Policies and procedures detailed in this Manual apply to all levels of management in all organizational components of NOAA.

C. Definition. The terms as used in this Manual are defined in 5 U.S.C. 7103(a).

II. GENERAL

A. Basic Principles. Labor-Management Relations (LMR) in NOAA are governed by the following policies and principles established by 5 U.S.C. 71 and DAO 202-711:

1. Effective Labor-Management Relations are a basic part of the responsibility of all NOAA managers and supervisors, at all levels.

2. Authority on matters relating to LMR has been delegated to the maximum extent consistent with the need for uniformity. Delegation to local management ensures meaningful interaction between NOAA management and its employees or their representatives on personnel policies, practices, and matters affecting general conditions of employment. It also avoids escalation of problems that should be resolved at the lowest levels of

3. Employees have the right to form, join, or assist any labor organization (union) or to refrain from any such activity, freely and without fear of penalty or reprisal. Management must not interfere with the free choice of employees in representation matters.

4. Once employees have chosen a union to represent them, management, to the extent of its delegation of authority, shall have as its goal the establishment of a positive and constructive relationship with the union selected.

5. Unions that have been accorded exclusive recognition as the bargaining representative of NOAA employees have a legitimate interest in matters affecting the terms and conditions of employment of the employees they represent. Management is to ensure that appropriate information concerning such matters is provided to union representatives.

B. Management Rights. In dealing with unions, management shall ensure that the following management rights, set forth in 5 U.S.C. 7106, are protected and retained.

1. Determine the mission, budget, organization, number of employees, and internal security practices.

2. Hire, assign, direct, lay-off and retain employees, or remove, suspend, reduce-in-grade or pay, or take other disciplinary action against employees.

3. Assign work, make determinations as to contracting out, and determine the personnel by which NOAA operations shall be conducted.

4. Make selections for appointments from -

a. among properly ranked and certified candidates for promotion; or

b. any other appropriate source.

5. Take whatever actions are necessary to carry-out NOAA's mission during emergencies.

The exercise of the foregoing rights may entail an obligation to bargain the implementation and impact of management decisions (See III.B.2.a.).

C. Conflicts of Interest. Managers and supervisors must avoid actual or apparent conflict of interest between their activities and official responsibilities.

1. Although the following individuals may join any union, they may not act as a representative of, participate in the management of, or be represented by any such organization that is subject to the Federal Labor-Management Relations Statute (5 U.S.C. 71).

a. Management officials and supervisors (this group would include NOAA Corps Commissioned Officers).

b. Employees engaged in personnel work in other than a purely clerical capacity; and

c. Confidential employees.

2. No employee shall carry on any activities, as an officer or agent of a union, that conflict or give the appearance of conflicting with the proper exercise of, or are incompatible with, his or her official duties or responsibilities. Should a management official or supervisor become aware of such an apparent conflict or incompatibility with reference to an employee in an exclusive unit, he or she-shall inform the Labor Relations Specialist (LRS) for the servicing Administrative Support Center (ASC) immediately. The LRS shall conduct such investigation of the matter as is necessary, prepare a written summary of findings and recommendations, and forward the summary to the NOAA Labor Relations Officer (LRO). The NOAA LRO, in consultation with the ASC LRS and appropriate Line Office labor relations contact shall be responsible for coordinating a resolution of the matter.

D. Authorities and Responsibilities. The authority to make decisions concerning LMR matters rests with line management. The decision-making process must provide for the advice, counsel and guidance from knowledgeable Department, NOAA and ASC staff LMR experts. To ensure the proper coordination of NOAA LMR issues, the following structure has been developed:

1. Designation by each headquarters Line Office of a labor relations contact point:

a. National Ocean Service

b. National Weather Service

c. National Marine Fisheries Service

d. National Environmental Satellite Data and Information Service

e. Office of Oceanic and Atmospheric Research

2. Designation by each ASC of one or more Labor-Management Relations Specialists.

3. Within the NOAA Personnel Division, a Labor Relations officer.

4. Liaison, as necessary and appropriate, with the Department of Commerce Office of Personnel (for issues with Department-wide implications) and Office of the General Counsel (OGC).

The activities of these several components of the Labor-Management Relations structure are hereinafter described in detail.

III. RECOGNITION OF AND DEALINGS WITH UNIONS

A. National Consultation Rights (NCR).

1. NOAA has granted national consultation rights (NCR) to the National Weather Service Employees Organization (NWSEO). The NOAA LRO will assure that NWSEO is afforded the opportunity to exercise their national consultation rights.

2. All requests for granting NCR shall be forwarded to the NOAA IRO. The LRO is responsible for ensuring that the union meets the established criteria for NCR and that action is taken to extend recognition. Coordination includes obtaining and ensuring that the views of the line organization and Department, if appropriate, are considered.

3. A union holding NCR may raise personnel policy matters, including requested changes in personnel policies, practices, and procedures of interest to employees they represent, either in writing or through conferring in person with the appropriate officials. If not the first point of contact on such matters, the NOAA LRO is to be informed immediately of the contact. The LRO shall be responsible for coordinating the consideration of the union's views and suggestions.

B. Dealings with Organizations Holding Exclusive Recognition.

1. Day-to-Day Operations. The ASC LRS is the primary contact within the area serviced for all issues relating to Labor-Management Relations. This includes, but is not limited to, such questions as:

a. Interpretation of the language in the Federal

b. Whether or not employees are in bargaining units, represented by a union, covered by a negotiated agreement, etc.

c. Interpretation and application of articles and clauses in a negotiated agreement he or she administers.

d. Union rights to attend formal discussions and examinations of employees in connection with investigations.

e. Granting/withholding the use of NOAA facilities, services, and equipment to unions.

f. Labor relations implications of changing conditions of employment in the area serviced and appropriate notification to the union.

g. Union, management, and employee rights during union organizing campaigns and membership drives.

h. As required, represents management's interests and officials before third parties.

i. Processing grievances under the negotiated grievance procedure.

j. Use of official time by employees to conduct representational activities.

2. Negotiation of Agreements. Management and unions holding exclusive recognition have a mutual obligation through appropriate representatives to meet at reasonable times and bargain in good faith on negotiable matters. Such obligation does not compel either party to agree to any specific proposal advanced, or require the making of a concession on any specific matter.

a. The bargaining obligation includes:

(1) Bargaining a basic collective bargaining agreement;

(2) Bargaining proposals submitted in connection and consistent with reopener clauses in a basic agreement;

(3) Implementation and impact bargaining resulting from management initiated changes in conditions of employment that are more than de minimis (trifling matters).

(4) Bargaining on union initiated proposals during the life of a contract (Midterm bargaining), when appropriate.

b. When union recognition is at a national level, heads of Line and Staff Offices or their designees shall appoint the members of management's negotiating team. For negotiations with local units of recognition, the top management official at the level of recognition may appoint the members to management's negotiating team. Depending on the level of negotiations (national or local) the following suggests prospective management team members:

(1) Management representatives from line operations, including a first-line supervisor.

(2) Staff representatives from personnel.

(3) For nationwide negotiations, or those involving a bargaining unit in an area serviced by two or more ASC'S, the NOAA LRO shall coordinate with all affected ASCs and recommend to the Head of the Line or Staff Office one or more ASC LRS to serve on the team. The NOAA LRO may also participate in the negotiations.

(4) Heads of Line and Staff Offices or their designees shall coordinate the designation of chief spokesperson, with the NOAA LRO and affected ASC LRS when the negotiations cover nationwide bargaining units or a bargaining unit in an area serviced by two or more ASCS.

c. Top level management shall arrange for authority on negotiable matters to be exercised by the management chief spokesperson. The delegation of this authority shall be made in writing and a copy forwarded to the appropriate ASC Personnel Officer.

d. Copies of both management and union proposals for negotiations shall be sent to the NOAA LRO for review and comment on such matters as negotiability, language ambiguities, conformance to DOC and NOAA policy, etc.

e. At the earliest possible date, the ASC LRS will forward a draft copy of a negotiated agreement to the NOAA LRO for review. The management negotiating team should seek to establish in the ground rules or otherwise, the specific date which will be considered as the date of execution for calculating the 30 day review period required by law. The ASC LRS shall forward a copy of the executed agreement, through the NOAA LRO, to the Department of Commerce Office of Personnel and Civil Rights for approval. The NOAA LRO will forward a copy of the agreement to DOC/OGC. Where two or more ASCs are involved in the negotiations, the chief spokesperson shall designate which ASC LRS has this responsibility.

f. Approval of agreements shall be given within 30 days of the date of its execution, if it conforms to applicable law, rule, or regulation. An agreement which has not been approved or disapproved within 30 days from the date of its execution shall go into effect without the required approval and shall be binding on the parties subject to the provisions of applicable law, rule, or regulation.

g. When management at the level of exclusive recognition contemplates taking action which will affect conditions of employment of bargaining unit personnel, the following procedures shall be followed, as appropriate:

(1) Changes affecting nationwide bargaining units or such units that cross ASC servicing areas:

(a) The management official proposing the change shall forward a written copy of the proposal to the Line Office labor relations contact point(s), appropriate ASC LRS(s), and the NOAA LRO.

(b) The Line Office labor relations contact shall notify the exclusive representative(s) of the proposed change and coordinate any subsequent bargaining on such.

(2) Changes affecting local bargaining:

(a) The management official proposing the change shall forward a written proposal to the servicing ASC LRS. The ASC LRS will forward a copy to the headquarters Line Office labor relations point of contact.

(b) The ASC LRS shall notify the exclusive representative(s) of the proposed change and coordinate any subsequent bargaining on such change.

h. Upon receipt of a new or revised regulation dealing with personnel policies or practices or matters affecting working conditions, the servicing ASC LRS or NOAA LRO, as appropriate, shall provide a copy to any union holding exclusive recognition. Management shall, upon request, enter into discussions with the union to reach a mutual understanding as to how the regulations are to be implemented. This action shall be taken only after the ASC has assured itself that NOAA or DOC has met its NCR obligation. In addition, the ASC LRS will ensure that implementation of any new or revised policy is not in conflict with a preexisting collective bargaining agreement.

3. Grievances. Except in the case of matters set forth in 5 U.S.C. 7121(d) and (e), the negotiated grievance procedure (NGP)is the sole procedure available to the parties and to bargaining unit employees for grievances within its coverage. The management official who will decide a grievance at any step of the NGP shall:

a. Immediately notify and coordinate the processing of the grievance with the servicing ASC LRS. If, in the judgement of the ASC LRS, the issue involved in the grievance is significant (e.g., involves a matter that affects nationwide contract interpretation) the LRS shall inform the Line office labor relations contact and the NOAA LRO that such a grievance has been filed.

b. Maintain a written record of the grievance processing. The record shall include:

(1) Name of the grievant and representative (if any).

(2) Date and time of any meeting.

(3) Issue or violation charged and facts as perceived by the employee.

(4) Remedy sought.

(5) Results of any investigation conducted by management.

(6) Copy of any decision and reasoning therefor.

(7) Follow-up, if any, required.

The management official shall forward the written record to the ASC LRS who shall be responsible for maintaining a file on the processing of the grievance.

Any arbitration of grievances shall be processed in accordance with the procedures detailed below at IV. E.

4. Interpretation of Regulations. Questions as to the interpretation of published policies or regulations initially shall be referred to the ASC LRS. When such a question:

a. Involves an interpretation of a Department of Commerce, NOAA or regulation of an appropriate outside authority, the LRS shall refer it to the NOAA LRO who shall obtain an authoritative interpretation.

b. Involves in a negotiability dispute, it shall be resolved in accordance with the procedures detailed below at IV. G.

5. Payroll Withholding of Union Dues. The servicing ASC LRS is responsible for coordinating arrangements between union and NOAA Line Offices for the voluntary payroll withholding of dues of members in the bargaining unit. Such arrangements shall conform to the DAO and/or any controlling negotiated agreement.

6. General Provisions. Questions concerning the following matters shall be addressed to the servicing ASC LRS or, in the case of matters involving employees in nationwide bargaining units, or in a bargaining unit existing in two or more ASC servicing areas, to the NOAA LRO:

a. Solicitation of membership and support.

b. Use of facilities, equipment, and services.

c. Use of official time for representational matters.

d. Furnishing of information.

e. Threatened or actual strike, work stoppage, slowdown or prohibited picketing.

The ASC IRS or NOAA LRO, as appropriate, shall obtain a definitive answer to any question concerning such matters and ensure that the management level raising the question receives the answers promptly. Management officials desiring advice from the OGC, on NOAA policy concerning labor and employee relations matters, should channel those requests through their servicing ASC IRS.

IV. RESOLUTION OF THIRD PARTY LABOR-MANAGEMENT DISPUTES

A. Communications. Communication is basic to the conduct of the NOAA Labor-Management Relations program. The structure for coordinating LMR information and activities are detailed at II. D., above.

B. Third Party Actions. Third party actions are defined as:

1. Petitions for representation.

2. Arbitration of grievances.

3. Unfair labor practice charges/complaints.

4.Negotiation disputes and impasses.

5. Any other activity placing an issue before a third party outside of NOAA having the authority to issue a decision binding on management.

C. Role of the Office of General Counsel, Department of Commerce.

Representation before third parties is the role of the office of General Counsel (OGC), assisted, as appropriate, by the ASC LRS, NOAA LRO, and/or the Line Office labor relations contact. On a case-by-case basis, the OGC may delegate the representation function to the NOAA LRO, the ASC LRS or other management official, as appropriate. Any delegation will be coordinated with the NOAA LRO. In order to make a decision as to delegation, all invocations of third party actions are to be reported promptly by the receiving party to the following:

a. NOAA LRO

b. Office of the General Counsel

c. ASC LRS

d. Line Office labor relations contact

2. The OGC will be responsible for indicating who will be responsible for providing representation. Where the OGC decides it will serve as representative, the servicing ASC LRS or the NOAA LRO, as appropriate, shall assist the OGC. The Line Office labor relations contact also may assist the OGC, as necessary. It is recommended that matters referred to the OGC for decision as to designation of representative should be accompanied by an evaluation of the issue involved, as appropriate:

a. A statement of the type of action.

b. The issue in dispute.

c. Any responses that have been made to the issues.

d. Copies of pertinent documents and notes relating to the issue.

e. A review of previous settlements, awards, case law and/or bargaining history pertinent to the issues involved.

f. Any proposed settlement of the issue.

3. On all but national level issues, the ASC IRS will provide the required evaluation; on national level issues the evaluation will be accomplished by the NOAA LRO. The OGC will be responsible for informing all appropriate levels of management as to the delegation of representative. OGC will immediately send a copy of a third party decision to the NOAA LRO. The OGC will ensure that the appropriate ASC IRS and line management official also receive copies expeditiously.

D. Unit, Representation, and Election Issues.

1. Any NOAA management official receiving a petition for exclusive recognition or consolidation of units filed by a union shall forward the petition promptly to the ASC LRS servicing the geographic area in which the petitioned for unit(s) exists. Any petition for a nationwide bargaining unit or for consolidation of units crossing ASC servicing boundaries shall be forwarded to the NOAA LRO.

2. The ASC LRS or NOAA LRO, as appropriate, shall be responsible for:

a. Forwarding a copy of the petition to the NOAA LRO (if not the recipient of the petition) and the Line Office labor relations contact.

b. Coordinating with Line office labor relations contacts, the unions, and agents of the Federal Labor Relations Authority (FLRA) on any matters involving appropriate unit, bars, posting of election notices, conduct of the election, etc. Copies of any official notices, determinations or the like made by management, the unions, or the FLRA on such matters shall be furnished to the Line Office labor relations contact, the NOAA LRO and the OGC (if appropriate).

c. Publicizing the fact of a scheduled representation election and encouraging employees to vote, so long as any statement made is not coercive in nature and context, does not tell employees how to vote, or indicate a management preference among the choices on the ballot.

d. In the event management decides to file a petition with the FLRA over a question concerning representation (e.g., appropriateness of unit, validity of bars, objections to the election, etc.) the ASC LRS or NOAA LRO, as appropriate, shall coordinate the action with the OGC and provide the OGC with all information pertaining thereto. The OGC shall decide who will perform the representational function.

E. Arbitration of Grievances.

1. The initial contact for coordinating the arbitration of grievances is the ASC LRS responsible for servicing the location where the grievance is filed. In cases involving the arbitration of grievances filed against Line Office heads, the NOAA LRO shall be responsible for the coordinating functions. The LRS shall confer with the Line Office labor relations contact, the OGC, and NOAA's LRO on the selection of the arbitrator and management's representative to handle the arbitration. The servicing LRS shall be responsible for furnishing thorough documentation of the case to the official designated to represent management in the arbitration. The OGC is responsible for designating management's representative to handle the arbitration. The LRS, if not designated management's representative, will normally serve as technical representative on the case.

2. When arbitration is invoked by either party, copies of the grievance file, the union and management position, briefs, and awards rendered shall be sent to the NOAA LRO. It is the responsibility of NOAA management (OGC's client in the arbitration) to ensure that one copy of the arbitration award is sent to the NOAA LRO and the servicing ASC LRS no later than two workdays from receipt of the award.

3. An arbitration award shall be binding on management unless:

a. Implementation of the award would violate law or applicable regulation; or

b. The award presents other grounds for review similar to those applied by Federal courts in private sector cases.

4. When it is proposed that exceptions be filed to an arbitration award for one of the reasons referred to above, the proposing party shall forward the proposal, including full justification, within 10 days of issuance of the award to the NOAA LRO. The NOAA LRO shall confer with the OGC, Line Office heads, and the appropriate ASC LRS. Upon approval to proceed from the appropriate Line office head, and upon the OGC's designation of representative, the representative will prepare and file exceptions in accordance with the regulations of the Federal Labor Relations Authority (FLRA).

5. Upon learning that a union has filed with the FLRA exceptions to an arbitration award, the management representative in the arbitration shall inform the servicing ASC LRS and NOAA LRO that such exceptions have been filed. It is the responsibility of NOAA management (OGC's client) to ensure that one copy of the union's exceptions is sent to the NOAA IRO and the servicing ASC LRS no later than two workdays from receipt. Any NOAA action in response to such filing shall be coordinated by the NOAA IRO with the Line Office labor relations contact, the appropriate ASC LRS and the OGC.

F. Unfair Labor Practice (ULP) Charges/Complaints.

1. The initial responsibility for the coordination of ULP charges is that of the ASC LRS servicing the location where the alleged ULP was committed. In cases involving ULP charges filed against Line Office heads, the NOAA LRO or designated line labor relations contact shall be responsible for the coordinating function. Any management official receiving a formal ULP charge shall contact the ASC LRS immediately upon receipt of the charge and forward a copy of the charge to him or her and also to the NOAA LRO.

2. The ASC LRS shall conduct a thorough examination of the charge and develop as complete a record as is possible. He or she also shall inform the Line office labor relations contact, the NOAA LRO, and the OGC that a charge has been filed and request a determination as to management's representative. The OGC will either serve as representative for the case or delegate such representation to the ASC LRS. The designated representative shall thereafter be responsible for processing the case before the FLRA.

3. Any proposal by management to file a ULP charge against a union shall be referred to the servicing ASC LRS. The ASC LRS shall confer with the NOAA LRO prior to the filing of the charge. When the charge is filed, a copy will be sent to the NOAA LRO.

4. Where a ULP case decision involves a principle or issue of nationwide importance, copies of the charge, responses thereto, the decision, and any exceptions thereto shall be sent to the management officials identified at II. D.. above.

5. Management representatives are expected to cooperate with the agents of the FLRA in the investigation of ULP charges as established by the following procedures:

a. A management official receiving a ULP charge shall forward it promptly to the servicing ASC LRS.

b. If contacted directly by an agent of the FLRA concerning a ULP charge, the management official shall refer the agent to the designated management representative (See IV.F.2., above). At this point the management official shall not enter into a discussion about the charge with the agent or furnish any documents or written statements.

c. The designated management representative shall advise and assist any management official whom the FLRA wishes to interview. The representative or a designee, (normally the LRS will be the designee unless he/she has been identified as the management representative) shall be present at any interviews conducted, and assist the management official in the preparation of any written statement or affidavit to be furnished to the FLRA.

G. Negotiation Disputes and Impasses. The NOAA LRO shall be responsible for coordinating the processing of negotiability disputes and impasses. Requests for waivers of DOC and/or NOAA regulations or to negotiate permissive subjects of bargaining (5 U.S.C. 7106(b)) shall be forwarded to the NOAA LRO for necessary clearances.

1. Negotiation Disputes. Questions concerning the negotiability of proposals may arise under various circumstances and shall be processed as follows:

a. At the point that management's chief spokesperson concludes that a union proposal on the table must be formally declared nonnegotiable, he or she will prepare a position paper detailing the rationale for this conclusion.

b. Where the NOAA LRO conducts a review of proposals and determines a proposal is nonnegotiable, the NOAA LRO shall inform the management chief spokesperson and servicing ASC LRS of such determination. If the union insists on the negotiability of the proposal, the NOAA IRO shall coordinate the designation of representative with the OGC. The representative shall consult with the Line Office labor relations contact, and the servicing ASC LRS, before taking any action.

2. Negotiation Impasses. In the event a negotiation impasse arises and efforts of the Federal Mediation and Conciliation service prove unavailing, the impasse may be referred to the Federal Service Impasses Panel (FSIP) for resolution. The following procedures shall be followed when a matter is referred to the FSIP:

a. The management chief spokesperson shall inform the ASC LRS (if not involved in the negotiations), the line management labor relations contact, and the NOAA LRO (if not involved in the negotiations) when an impasse has been reached. The NOAA LRO shall coordinate the designation of representative with the OGC.

b. Where the issue at impasse has nationwide implications, copies of the management/union positions and the decision of the FSIP shall be furnished to the management levels identified at II. D., above.

H. Other Third Party Actions. Most types of final decisions issued by the Federal Labor Relations Authority may be appealed to an appropriate United States Court of Appeals. In order to ensure consistency of interpretation and full consideration of policy and program implication of such appeals, any proposal for judicial review of a decision of the Authority shall be forwarded to the NOAA LRO for review. The NOAA IRO shall coordinate any decision to pursue an appeal with OGC.

I. Settlements. There will be times when third party cases can be settled prior to a decision. Any decision to settle is that of the Line Office head and should have the benefit of the considered opinion of all interested levels of management.

1. The individual designated as management representative in a third party action involving issues of nationwide importance should, when authorized and after discussion with management, explore settlement options with opposing counsel. Any proposed settlement also shall be discussed (by telephone conference call if necessary) with the Line Office labor relations contact, the servicing ASC LRS, the OGC and the NOAA LRO. The individual designated to represent management then shall have the authority to commit management to any settlement deemed appropriate but only after the aforementioned, and coordination have been accomplished. Copies of any settlement agreements shall be furnished to the levels of management identified in II. D., above.

2. Settlement actions that do not have nationwide implications will normally be handled by the Line Office labor relations contact and the servicing ASC LRS.

J. Information. Any questions concerning the interpretation or application of the material contained in this attachment should be addressed to the NOAA LRO.

V. FINAL AUTHORITY.

This document provides internal management guidance on NOAA Labor-Management Relations issues, and does not establish an independent basis for any person or activity to assert a right, benefit or privilege. The Under Secretary for Oceans and Atmosphere has the final authority to make decisions on NOAA Labor-Management Relations issues. This authority is delegated as provided in paragraphs II A. 2., and II D., of this Manual; however, on specific issues, the Under Secretary may retain this authority and direct a final course of action.


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