Legal Briefs: Bargaining battle

Every Friday on GovExec.com, Legal Briefs reviews cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

The American Federation of Government Employees wanted to bargain with the Social Security Administration over staffing levels at field offices and telecenters. When it comes to bargaining, the numbers, types, and grades of employees in federal offices is governed by section 7106(b)(1) of the federal labor relations statute. Issues in section (b)(1), also known as "permissive issues," have become hot button topics for federal managers and unions in recent years. Managers tend to argue that such issues should be decided exclusively by management, while unions have been pushing to be more involved in debating them.

In a 1996 partnership agreement, SSA pledged that "administration and union representatives will bargain in good faith, including bargaining on issues which may fall under 7106(b)(1), using interest-based bargaining (IBB) with the objective of reaching agreement." The union argued that the agreement required SSA to bargain over staffing levels. But SSA countered that the agreement means that the agency would bargain over (b)(1) issues only if it initiated such an effort, not just because the union wanted to.

The issue eventually reached the Federal Labor Relations Authority. In line with past decisions, the FLRA agreed with SSA management.

Lesson: When it comes to (b)(1) bargaining, management is still in the driver's seat.

Social Security Administration v. American Federation of Government Employees, 55 FLRA No. 182, Federal Labor Relations Authority, Nov. 30, 1999

Not Getting Any Younger

Age discrimination cases are, by definition, time-sensitive. So Edward W. Gennetten, who was 49 years old when the Navy discriminated against him in 1990, is no doubt displeased that it took almost 10 years for his case to be resolved.

Gennetten challenged a program aimed at bringing recent college graduates into the Navy. Gennetten wanted an engineering job with the Navy, but the Navy required applicants to have received their degree less than a year before they applied. The Navy hoped to get fresh talent with the most up-to-date training. Gennetten argued that older engineers can stay up-to-date, through continuing education and on-the-job training, for example.

The Equal Employment Opportunity Commission in November finally ruled in favor of Gennetten, objecting to "the way in which [the Navy program] operated to completely and summarily exclude the typically older engineering applicant who had the requisite up-to-date training and education, but simply earned an engineering degree more than one year before application to the agency."

The EEOC ordered the Navy to give Gennetten a job and back pay.

Lesson: Don't think you can't teach an old dog new tricks.

Edward W. Gennetten v. Navy (No. 01973098), Equal Employment Opportunity Commission, Nov. 24, 1999.