CONTRACT RIGHTS VERSUS STATUTORY RIGHTS Based on Part

CONTRACT RIGHTS VERSUS STATUTORY RIGHTS Based on Part 4. C. 1 of the Office of General Counsel’s Meetings Guidance (2001).

Contract as Source of Right • When the parties agree in a contract to additional rights not contained in the Statute, disputes over those contract provisions are grievances (unless there is a repudiation) that must be processed through the collectively bargained grievance/arbitration provisions in the parties’ CBA.

Example of Contract Right • For example, a contract clause granting a right to representation when an employee receives a notice of proposed discipline (which is not a statutory Weingarten right) is a contract right, the breach of which is a grievance.

Contract Rights that Implement Statutory Rights • When the parties agree in a contract to provisions that implement a statutory right, disputes over the contract rights are grievances (unless there is a repudiation). • In other words, the parties cannot add to the coverage of the statute by agreement. The additional contract rights are not statutory.

Waiving Statutory Rights through Contract • For ULP purposes, it is possible for the parties to narrow the coverage of the statute by agreement. In other words, a party, usually the Agency, may raise as a DEFENSE to an alleged statutory violation that its actions were consistent with contractual limitation the parties agreed to. • The FLRA will generally enforce agreed to limits on the application of Statutory rights in the ULP process.

Example 1 A contract clause requires an agency to give at least five days notice of a formal discussion and the agency gives only two days. Is violation of this contract clause a ULP or a grievance?

Example 1 The statute only requires “reasonable” notice, so the parties have expanded the notice right beyond the statute. The five days notice period is thus a contract right, the breach of which is a grievance. So the only issue that could be decided by a ULP is if the two days notice was “reasonable” under the circumstances. If it was, there would be no ULP violation.

Example 1 • Note that the FLRA could still decide that the contractual requirement of five days was reasonable and two was not. • We often look at contract language to see if the parties have defined what is “reasonable” in a particular context, but the contract language is not binding on the FLRA; it is just one circumstance among many we weigh in deciding what is reasonable.

Example 2 The contract requires the union to notify the agency of its designated representative within two days after receiving notice of a scheduled formal discussion, but designates its representative after three days. Is the violation of this contract clause a ULP or a grievance?

Example 2 • The contract can serve as a waiver, so in this case, the agency may raise the contract as a defense in the ULP and ask the FLRA to enforce the agreement.