How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Tina Your Own Question
Tina
Tina, Lawyer
Category: Employment Law
Satisfied Customers: 8184
Experience:  JD, BBA, recognized by ABA for excellence.
4460311
Type Your Employment Law Question Here...
Tina is online now
A new question is answered every 9 seconds

If a agency policy is talked about in the Collective

Customer Question

If a agency policy is talked about in the Collective Bargaining agreement is that policy a part of that CBA? What law or where in 5 USC or CFR can I find that information.
We have a collective bargaining agreement that states the below:
Section 19-1 General
A. In accordance with 5 USC 2301, 5 CFR 335.103, Ft. Knox Regulation 690-5 and HRC Policy # ***** competitive procedures will be used in selecting highly qualified persons for positions within the unit of exclusive recognition. All bargaining unit employees applying for employment will receive fair and equitable treatment in all aspects of merit staffing and promotion actions without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, non-disqualifying disabling condition or without regard to labor organization affiliation and with proper regard for their privacy and constitutional rights.
This policy was negiotated with the union prior to the CBA.
Now they want to change this policy and we beleive that the agency can not make that change it will change the contract.
Submitted: 1 year ago.
Category: Employment Law
Expert:  rsa.esq replied 1 year ago.

Short answer is "yes"

Disclaimer: we cannot give specific legal advice in this forum because no lawyer-client relation exists, so I can only addresss general aspects of law for you.

Collective Bargaining Agreements are contracts, and contract can indeed include other policies, contracts, etc. but specifying them in their text.

This doctrine is called "incorporation by reference" -- anything specifically referred in in the contract text is "incorporated" by reference and becomes part of the contract that cites it.

It is the policy or document as it exists at the time of the contract that references it... in other words, when a contract mentions a policy or regulation, it is the regulation as it existed at the time of the incorporation, unless the contract says something like ... "...and incorporates HR Policy No. X, and any future amendements or changes to that Policy."

Customer: replied 1 year ago.
Sir,I want to be clear, so if the below is in the Collective Bargaining agreement, and they want to change HRC Policy 50 they could not, in short answer, correct? Also the follow articles are word for word of the policy.A. In accordance with 5 USC 2301, 5 CFR 335.103, Ft. Knox Regulation 690-5 and HRC Policy # ***** competitive procedures will be used in selecting highly qualified persons for positions within the unit of exclusive recognition. All bargaining unit employees applying for employment will receive fair and equitable treatment in all aspects of merit staffing and promotion actions without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, non-disqualifying disabling condition or without regard to labor organization affiliation and with proper regard for their privacy and constitutional rights.
Expert:  rsa.esq replied 1 year ago.

As I indicated, I cannot provide specific legal advice in this forum, rather only answer to general aspects of law.

Incorporating by reference other documents DOES NOT MEAN THOSE INCORPORATED DOCUMENT BECOME UNCHANGEABLE.

When a contract incorporates another document by reference, generally it is the incorporated document as it exists at the time of the original contract became effective, unless the language of incorporation includes provision for future changes in the other document being incorporated.

For example: A makes contract with B, but the contract incorporates by reference another contract involving parties B and C. The contract incorporated is the one that existed at the time the A-B contract was formed. But contracts are freely changeable so long as both parties agree, so later if B & C change their contract, and the change is such that it impacts the overarching A-B contract, that change in B-C contract won't be part of the A-B contract: even though the B-C contract was incorporated into the A-B contract, it remains independent with respect to itself, and therefore fully changeable.

It is the original A-B contract that needs to account for the terms in incorporated documents, whether to "freeze" the terms incorporated as of contract formation, or allow for future changes in incorporated documents.

e.g. "...this A-B contract incorporates by reference the B-C contract, including all future modifications," or similar.

If a contract incorporates other documents likely to change, then the contracting parties need to consider carefully with respect to incorporation of other documents precisely for this reason: otherwise, the duties of parties could be changing frequently, and not all parties may be aware of those changes.

Be aware that collective bargaining agreement are incredibly detailed and complex "fine print" documents compiled among many lawyers on both sides -- in most case hundreds of pages -- so there may be provision accommodating future changes to incorporated documents elsewhere in the CBA, and it may be in an entirely unrelated section!

Because of their scope -- encompassing hundreds of employers and thousands of members across states -- CBAs generally allow for great flexibility and changes, such as those reference in the original set of circumstances described.

Lawsuits involving CBA often take years to wind through the system, and courts almost always first try and have the parties resolve the problem among themselves, precidely because of the complexities involved.

I hope this helps with a bit more perspective, and again, I'm sorry I cannot provide specific legal advice on the legal agreements referenced.

For advice on those documents, they themselves have to be reviewed in their entirety, exactly because conditions and clause often get placed -- intentionally or inadvertently -- in different, possibly unrelated, sections.

Customer: replied 1 year ago.
Thanks I got what your saying, and thanks for the help, It was as I thought not the way the other party wants it to be.Rocky
Expert:  rsa.esq replied 1 year ago.

Glad it was useful!

Thanks! I'd be grateful for a positive rating!