General

Agencies are reminded that Section 4 of Executive Order (EO) 14003 provides that “[t]he head of each agency subject to the provisions of chapter 71 of title 5, United States Code, shall elect to negotiate over the subjects set forth in 5 U.S.C. § 7106(b)(1) and shall instruct subordinate officials to do the same.” OPM’s guidance regarding implementation of EO 14003 is found here: https://www.chcoc.gov/content/guidance-implementation-executive-order-14003-protecting-federal-workforce.

The subjects set forth in 5 U.S.C. § 7106(b)(1) include:

• the numbers, types, and grades of employees assigned to any organizational subdivision, work project, or tour of duty; or
• the technology, methods, and means of performing work.

Through various decisions, the Federal Labor Relations Authority (FLRA) has provided some explanation of these subjects over the years:

• “Numbers, types, and grades” concerns the establishment of agency staffing patterns, or the allocation of staff, to agency subdivisions, work projects, or work shifts;
  • “Numbers” refers to the number of employees or staff to be assigned duties (to any organizational subdivision, work project, or tour of duty);
  • “Types” refers to distinguishable classes, kinds, groups or categories of employees or positions that are relevant to the establishment of staffing patterns (for any organizational subdivision, work project, or tour of duty);
  • “Grades” refers to the grades of employees to be assigned duties (to any organizational subdivision, work project, or tour of duty)1;
  • “Organizational subdivision” refers to the organizational structure;
  • “Work project” means a particular job or task;
  • “Tour of duty” refers to periods when employees are on duty or hours of work shifts;
• “Technology” has been construed to refer to the technical method an agency will use in accomplishing or furthering the performance of its work; and
• “Method” has been construed to refer to the way in which an agency performs its work;
• “Means” has been construed to refer to any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work.

Consistent with the direction by the President to agencies, there may be any number of topics unions may raise in the collective bargaining process that fall under 5 U.S.C. § 7106(b)(1) and that agencies must collectively bargain over pursuant to the direction by the President. Examples include, but are not limited to proposals concerning:

• Agency staffing patterns or the allocation of staff – this may be relevant to determining how many or the types of employees to assign work on specific work assignments or during a particular work shift; and
• Technology – a union may seek to negotiate over the agency providing a particular type of technology to assist employees in accomplishment or performance of their work.

In accordance with EO 14003, agency and union representatives will bargain over these subjects in good faith with the objective of reaching an agreement or request assistance of the Federal Mediation and Conciliation Service and Federal Service Impasses Panel to resolve the impasse.

1 5 U.S.C. 7103(a)(14) excludes “the classification of any position” from “conditions of employment” for determining when matters are subject to collective bargaining. Generally, “numbers, types, and grades” are considered together when discussing establishment of agency staffing patterns. For example, a union may seek to negotiate that a certain “type” of employee be assigned to a “work project.” Typically, a specific ‘type’ of employee has a position description containing the duties of the job along with the job title and occupational series. Based on those duties, the job has already been classified by the agency at a particular grade level