The Process For Establishment Of, Or Changes To, Rotational Work Schedules
Under the New Collective Bargaining Agreement

by Richard J. Hirn, General Counsel, NWSEO

(revised February 20, 2002)

I have received and reviewed the various inquiries regarding whether bargaining unit members who are not members of NWSEO may participate in the establishment of rotational work schedules at their office.

Several stewards have inquired whether non-members may "vote" on a new work schedule, or whether participation in such a vote may be limited to union members. This question may reflect a misunderstanding of how rotational work schedules should be negotiated.

As I read NWSEO's new collective bargaining agreement, there is no requirement to vote on the adoption of a new work schedule. In fact, the contract, while not prohibiting such a vote, envisions a different process by which rotational work schedules are to be adopted:

I.  Under article 20, § 3(a) of the parties' collective bargaining agreement, rotational work schedules are to be established by the Local Office Team:

"Proposals on changing the rotational cycle will be considered by the Local Office Team (LOT) according to Article 8. Any rotational cycle must take into consideration that employees must have sufficient time off between shifts in order to be alert and maintain the professional standards that both parties agree are necessary to the fulfillment of the Agency's mission."

    A.  The LOT is comprised of the local steward and the MIC. Decisions by the LOT must be by "consensus." Article 8, § 2(c)(3). I interpret this to mean "by mutual agreement" after discussion and a bona fide consideration of a proposal.

        i. Reaching such a consensus agreement through these LOT meetings is not a substitute for collective bargaining. Such meetings themselves constitute collective bargaining. "Consensus decision-making is not distinct from bargaining; rather it is one manner in which bargaining may be conducted." AFGE, National Council of HUD Locals 222 and Department of Housing and Urban Development , 54 FLRA No. 109 (1998).

        ii. The consensus reached between the MIC and the steward constitute a binding agreement. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, KY , 53 FLRA 312, 319 (1997). However, as with any collectively bargained agreement, the steward may specifically reserve the right to have the agreement ratified by the local union membership.

    B. Management may not solicit, consider, nor implement proposals for rotational work schedules submitted directly by employees, but only those which are submitted by the union. Air Force Accounting and Finance Center, Lowry Air Force Base and AFGE Local 2040 , 42 FLRA 1226 (1991). Nor may management meet with any employees other than the union's representatives to discuss rotational work scheduling. Id.

        i. Article 8, § 1 provides that the parties have committed themselves to solicit pre-decisional input from affected employees. That input is to be provided only through the union's representative:

" Inasmuch as NWSEO has been certified as the exclusive representative of bargaining unit employees, the parties recognize that all employee input will be provided through the appropriate union representatives who will exercise their statutory duty to fairly represent the interests of all employees in the bargaining unit without discrimination."

        ii. The contract permits, but does not require the union representative to obtain input from employees about the proposed changes to the rotational cycle. Article 8, § 2(B) states: "The Steward will be provided a reasonable opportunity , not to exceed 15 days, to consult with impacted employees."

        iii. Neither of these provisions as a requirement that the union must pass on to management any and all employee proposals regardless of the steward's or the local union memberships' judgment as to their merits:

a. Proposals received from rank and file employees may be discussed at a union meeting first and the local union members may vote on which of the proposals, if any, it wishes to formally propose to management.

b. The local union membership may not, however, reject a proposal simply because the employee who suggested it is not a union member.

c. Nor may any schedule the union proposes be materially disadvantageous to or discriminate against employees who are not union members.

        iv. Article 8, § 2(C)(1) provides that any employee may attend part of the LOT meeting to offer his or her opinion, even if not sanctioned by the union:

"Employees in the field office may attend the LOT meeting and present their comments, opinions, and suggestions."

However, the contract also provides that the LOT meeting is to be closed to all but management and union representatives when actual discussion by them of the proposals (or bargaining) takes place:

"After opinions and or comments are given to the LOT, the guests will leave and the team members will consider the opinions and/or comments and try to reach a decision."

C. The local union steward is fully authorized to bind the union to any agreement reached by consensus during the LOT meeting. However, as noted earlier, the steward may advise the MIC that her agreement to a proposal is contingent upon subsequent and timely ratification of the agreement by local union membership. Such a ratification vote should, of course, be confined to union members. Final approval of a rotational cycle or work schedule may not be made contingent upon approval by the vote all employees in the office. Only union members have a right to "ratify" an agreement to adopt a work schedule that is otherwise acceptable to management.

        i. Several years ago the FLRA issued a decision that would appear to require that all affected employees be allowed to vote, without regard to union membership, on the choice of two or more work schedules which management delegates to the union the final choice of which one to adopt.

a. However, NWSEO does not agree with the rationale of the FLRA's decision in that case and does not believe that it is consistent with the union's statutory right to act as the exclusive representative of employees as defined by the Federal courts. NWSEO is prepared to defend any case in which it is charged that the union has violated its duty of fair representation by limiting such a vote to local union members.

b. In the event that the MIC says that either of two rotational schedules are acceptable, the steward should exercise her best judgment in selecting one, or tell the MIC that she will submit her tentative agreement to one of the two proposals to a ratification vote by local union membership. If, after discussion, the local union membership prefers the alternative rejected by the steward, it may vote against ratification of her choice and instruct her to seek management's agreement to the alternative.

     ii. As a matter of policy, and in order to maintain NWSEO status as the employees' exclusive representative in the eyes of both management and the workforce, stewards should not agree to submit the selection or approval of a work schedule to a vote of the entire office. Management may not make its agreement to a particular work schedule contingent on a vote of or approval by individual employees.