I see a fair number of labor-management agreements in my work. I am often surprised by the language that has managed (no pun intended) to get itself included. Having bargained more than a few agreements myself, I know how much junk may get included due to sheer fatigue with the process, wishy washy leadership or because the negotiators are willing to sign almost anything to stop having to spend time dealing with their counterparts on the other side of the table.
No matter, many negotiators find themselves facing a renegotiation of an agreement with few or none of the veterans from the last round of bargaining around. Many of those that may still be around would rather contract a nasty set of disgusting symptoms than have anything to do with a new contract. So where do you start?
Tip #1: Get in Line with Law and Regulations
I think the number one concern for an Agency’s bargaining effort should be statutory and regulatory compliance and consistency. So what does that mean?
Everything a Federal Agency does must have a basis in law. Bottom line, an Executive Branch manager has to have a specific authorization to spend money. When you peel back the onion of Agency decision making, the question of "why do we get to do this?" always tracks a law to regulation to policy to operational decision path or one that looks very similar. Arguably, it’s a blessing or a curse, depending where you stand, that government officials are often cramped in their creativity by a series of rules that appear more created from fear of scandal or deviation from orthodoxy than encouragement of problem solving. The philosophy of this doesn’t matter in the slightest to a management team charged with bargaining a new or first contract. So, again, where do you start?
Identify the Basis of Each Contract Provision and Check Its CURRENT Legality and Consistency with Governing Rules.
For example, let’s say you have an article or section on details and temporary promotions. Do you know where your Agency gets the authority to take these actions? Are these actions required to be competitive? If so, under what circumstances? It’s a government axiom that "D.C. Rules". But it should be an axiom that "D.C. Rules Change". In this case, the contract article needs to track OPM’s regulations. Keeping in mind that each provision of the contract is tied in some fashion to a statutory base, is where subject matter experts (SMEs) come in. Add to the preparation process SMEs with an intimate technical understanding of the issue. Their task is to provide the team the specific cites to law, regulation and/or policy and explain how the contract provision relates to each. Also part of the process is a review of Federal Labor Relations Authority (FLRA) case law. A critical analysis of the provision involves deciding whether the language is consistent with the law or government-wide regulation. If you decide it’s inconsistent with either, then see if the FLRA has ruled on the issue and what its take may be. If there’s no case law or if the law or reg was issued or changed since FLRA’s last decision, you have an opportunity to chuck the offending language. Another option is to check with the regulator involved and get its take. The Office of Government Ethics (OGE) kicked the FLRA to the curb in the courts when FLRA decided it understood the meaning of OGE’s rules better than OGE. In a FedSmith article, we reported OGE’s offer to Agencies of its General Counsel’s service if faced with exactly this type of issue. If the Agency that regulates an issue disagrees with FLRA’s position (not unusual), seek its help in making your case. In at least one case, the Supreme Court found the FLRA’s reasoning "unreasonable", so don’t be dismayed if the decisions aren’t in your favor.
Areas in the contract to which particular attention should be paid are merit promotion, travel (particularly for training and from home), and anything involving money.
Tip #2: Check Provisions against Management’s Rights in the Labor Law
5 U.S.C. 7106 (a) and (b) address management’s rights under the Federal labor statute. With the death of FLRA’s "Abrogation Test"(See Ed Campbell’s excellent article for the ILRF), a proposal that violates 7106(a) can be canned anytime but certainly should be killed if discovered at expiration. Under 7106 (b) (1), provisions in which management has agreed to bargain, although it may have elected not to, may be killed upon the expiration of the contract after notice to the union that the Agency no longer "elects".
The above is the meat and potatoes of contract review for the lawyer and labor relations specialist. Some of the more likely culprits are usually found in provisions involving hours of work, overtime, leave and the like.
Tip #3: Look for Provisions Dealing with People or Positions Out of the Bargaining Unit or Those Creating "Conditions of Employment"
In order to be bargainable, proposals and provisions must deal with bargaining unit employees. FLRA has created a "Vitally Affects" Test (See another fine article from ILRF by Steve Schumacher on this) to address what happens when union proposals affect more than just those in the unit. Look carefully at provisions that cover parking, space, and common areas n the workplace.
In 1981, the FLRA decided that daycare was a condition of employment. If you read the decision, it’s obvious that FLRA just made up its mind and that was that. The reasoning of the case was:
"…the availability of day care facilities affects the work situation and employment relationship in a variety of significant ways. For example, the existence and availability of such facilities can be determinative of whether an individual will be able to accept a job with an employer and of whether an employee will be able to continue employment with an employer. Thus, in addition to being an asset to management in recruiting and keeping a stable workforce, such facilities can be a decisive factor in the maintenance by unit employees of an employment relationship. Furthermore, problems with child care arrangements can result in employee tardiness and absenteeism thus, they have a detrimental effect on employee use of leave and on employee productivity, resulting in lowered morale and lessened ability to perform satisfactorily in relation to established expectations. It is also noted that, because of the increased number of families in which both parents work, as well as the necessity for single parents to work, the significance of day care facilities to the employment relationship has increased over recent years."
While arguably a compassionate decision, and by the standards of 2008, an inevitable one, it was the first in a series of leaps by the FLRA into uncharted waters. Up to 1999, the Congress had not addressed childcare for Federal employees but why would that stop FLRA from ordering Agencies to bargain its creation and funding. By the reasoning in the childcare case, one might construe that a hot lunch, prescription drugs, an onsite Starbucks or just about anything else is a working condition.
Screening provisions to determine whether they constitute "conditions of employment" involve different factors for different Agencies and missions. My advice is to "Follow the Money". If it doesn’t directly deal with the immediate work environment, it may not be bargainable and, even if it is, there may be leverage in putting it back on the table.
Tip #4: Tank Negative Language
I recently read a provision that stated: "No employee will be subjected to intimidation, coercion, harassment, or unreasonable working conditions as reprisal, nor be used as an example to threaten other employees."
So I guess if it’s not reprisal, it must be OK under this provision to intimidate, coerce, harass, etc.? Despite the obvious (I hope) misstatement in this provision, I wonder what a new hire takes away from a reading of such language. It reminds me of the old slam, "Joe said you weren’t fit to sleep with pigs, but I stood up for you" and the trick question, "When did you stop beating your wife?" The new kid has to ask what would happen to workers of his new employer if this language didn’t exist.
Contracts are chock full of negative language that needs to go. Look particularly in employee rights, discipline, and grievance procedures for this stuff.
Tip #5: Get Supervisors and Managers Out of the Contract as Much as Possible
There’s a risk to run in mentioning specific positions in the contract, particularly supervisors and managers. Even when such positions are only in there for convenience, such as the grievance procedure designation of steps, the union may claim to an arbitrator that this person is the only one who can do a thing or make a decision. Contracts are full of these references and a review will turn them up. The case law is crystal clear that including references to specific positions violates management’s right to assign work. There’s qualifying language that can lessen or eliminate the risk, but first you’ve got to find the provisions.
I have been doing a large amount of bargaining training this year and finding that fewer labor relations specialists are out there. As a result, managers are taking on larger and larger roles in preparation and negotiation. I hope you are finding articles like the above useful as you go forward.
As always, the opinions stated above are mine and mine alone.