Tjags Practice Notes

Summary

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The Federal Service Labor-Management Relations Statute requires agencies to negotiate with the exclusive representative regarding any change to a condition of employment. However, the Federal Labor Relations Authority held that where an agency institutes a change in a condition of employment and the change is itself negotiable, the extent of the impact of the change on unit employees is not relevant to whether an agency is obligated to bargain. Ohlweiler details the de minimis conditions of employment, a powerful tool for implementing minor managerial decisions in the federal workplace.

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Tjags Practice Notes

Labor Law Note

De Minimis Conditions of Employment: Must Management Always Bargain?

Major John N. Ohlweiler

Professor, Administrative and Civil Law Department

The Judge Advocate General 's Legal Center and School

Charlottesville, Virginia

"De minimis non curat lex: the law does not concern itself with trifles."1

Introduction

The Federal Service Labor-Management Relations Statute (FSLMRS)2 requires agencies to negotiate with the exclusive representative regarding any change to a condition of employment.3 Conditions of employment that are subject to negotiation include:

[PJersonnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters-(A) relating to political activities . . . (B) relating to the classification of any positions; or (C) to the extent such matters are specifically provided for by Federal statute.4

Nothing in the plain language of the statute suggests that a de minimis change is excluded from the obligation to bargain.5

Until recently, it was commonly accepted that a management change to a substantively negotiable condition of employment triggered the agency obligation to negotiate, "no matter how trivial the change."6 The Federal Labor Relations Authority (FLRA) held that "where an agency institutes a change in a condition of employment and the change is itself negotiable, the extent of the impact of the change on unit employees is not relevant to whether an agency is obligated to bargain."7 There was no requirement for a threshold analysis of the extent of the change before an obligation to bargain arose-a de minimis test.8 Simply put, if a condition of employment was changed, an obligation to bargain arose, no matter how trivial the change.9 The only time a de minimis test was applied was in the limited situation in which the substance of the change itself involved a reserved management right.10

In Social Security Administration Office of Hearings and Appeals, Charleston, South Carolina & Associ...

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