Since the heyday of the Clinton administration for organized labor ended, Federal unions have been keeping a low profile on bargaining. Mostly they can be seen challenging (and at least in the DC courts successfully) the legality of Homeland Security and DoD statutes and regulations limiting their influence. In the meantime, Federal management may be missing a bet.
The current Federal Labor Relations Authority (FLRA) and more importantly the Federal Service Impasses Panel (FSIP) appear more willing to listen to agency concerns and support management rights. While neither will roll over and play dead, pragmatism and reality arguments can now be made that were simply passed off as management whining in prior years.
With regard to the FLRA General Counsel and unfair labor practices, I hope to address those opportunities in a later article. Now that the “Confidential Litigation Strategy” pushed against agencies by the former Clinton GC is history, perhaps some of the inane case law generated in that period can be revisited.
Back to negotiation, “partnership” agreements resulting from a union-defined interest-based bargaining process should be carefully examined. Some things to look for:
Clauses that require pre-decisional consultation.
As DoD and DHS are finding to their chagrin, Federal unions categorically reject virtually any change as anti-employee or anti-union. Processes that bog management down in lengthy pre-bargaining bargaining, and that’s exactly what it is, can mean that needed changes first go through consultation with the union and then the union can say “but that was only a pre-decisional discussion” now we want to negotiate. (“And by the way, here’s our ground rules proposal” to further advance delaying tactics.)
Clauses that create union-management committees.
While there are committees on which a union presence can be helpful (e.g., safety), watch out for language that gives both parties an equal vote or requires consensus to reach a result. The laws I know about empower Agency management to carry out the mission and didn’t give unions a veto.
Clauses that unduly delay a decision.
Among others, look for performance management language that requires specific events to occur before a rating can be given or a low performing employee can be “Pipped” (i.e. given a performance improvement plan). These kinds of articles often require structured verbal then written counseling, generally with union involvement, that can add literally months to the process. The same kind of language can affect discipline, space moves or even work assignments.
Clauses that undermine a supervisor’s authority.
I have seen language that limits a supervisor’s authority, requires consultation on everyday decision making or allows employees to bypass a supervisor and go to a higher level with issues better resolved by a supervisor. In particular, look closely at articles dealing with employee rights to flex, work at home or set a regular day off (RDO) with little or no supervisory involvement.
Union institutional rights.
Look for a number of things in these articles. What is it costing the agency to provide space, computers, phones, desks, files, etc.? For what activities is the union entitled to duty time? What accountability exists for the use of official time? What meetings does the union get to sit in on the clock?
In the past, reopening a labor agreement usually meant giving more away, losing more flexibility or further watering down an agency’s ability to get the job done. No smart management would do so. Times have changed. Although the process can be costly and time-consuming, I believe the time is riper now for agencies to make gains than ever before.
By the way, the views I express here are mine alone, neither FedSmith’s nor GRA’s.