Well, we finally have a draft of the Obama administration’s “Let’s Make the Union’s Happy” executive order that was published by the Washington Post this week. (Note: There is a side-by-side comparison of the two documents at the end of this article.)
Surprise! There are no real surprises. It looks a lot like Bill Clinton’s partnership decree (E.O. 12871) with hot sauce. You can look at a section by section comparison and get a feel for the similarities and differences. My take is as follows.
What and Who’s In and Out
- Instead of partnerships, we’ll have forums.
- Instead of reforming government, we’ll deliver the highest quality services to the American People.
- Instead of “changing the nature of Federal labor management relations”, we’ll “proactively discuss government operations will compliment the existing collective bargaining process and facilitate the design and implementation of the comprehensive changes necessary to increase the effectiveness and efficiency of Government”
- Instead of a National Partnership Council, we’ll have a National Council on Federal Labor Relations.
- The Deputy Secretary of Labor won’t be on it this time but Secretary-Treasurer of the Public Employees Department, AFL–CIO will.
- “The head of a labor union that represents federal employees and is not otherwise represented on the Council” will serve on the Council (I’ll bet it’ll be NAGE – Andy Stern’s Federal union).
- Instead of a career management lockout, an elected officer from the Senior Executives Association and the Federal Managers Association will serve.
- Instead of a two year term, the members will serve at the President’s pleasure.
- Instead of a specific two year life, the Council will apparently last forever.
- Instead of “involving employees”, we’ll “proactively involve employees”
The “Permissive” Mystery Clause
The draft has different language than the Clinton order on bargaining in the permissive area. For those of you too young or who were hiding under a rock between 1993 and 2001, the “permissive” area refers to 5 U.S.Code § 7106. (Management rights) which states:
“(b) Nothing in this section shall preclude any agency and any labor organization from negotiating— (1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work…”
The draft order appears to take certain decisions out of manager’s hands by having the president “elect” for them. Of course, in any government document, there’s a catch 22. In this one, it appears to be its last sentence.
Section 3: Election to Negotiate. I hereby elect, on behalf of all executive departments and agencies covered by this order, to negotiate over the subjects set forth in 5 U.S.C. § 7106(b)(1). For purposes of proceedings undertaken pursuant to chapter 71 of Title 5, any attempts by department or agency heads or their subordinate officials to revoke my election shall have no force or effect. Agency heads and their subordinates shall carry out this election to bargain in good faith and consistent with FLRA precedent. (My Emphasis)
Precedent from the Federal Labor Relations Authority (FLRA) holds that it (the FLRA) isn’t in the business of enforcing executive orders and that where permissive issues affect the management rights stated in the law, the law wins. So what does this language mean? I guess we’ll find out in five or six years after three or four hundred decisions.
We Gotta Have a Plan
Every department or Agency in the Executive Branch must deliver a plan thirty days from the date of the order. That certainly allows plenty of time for serious deliberation and efforts at transparency in the development of such auspicious documents. Shall we start a pool on who’ll be on time and who won’t or, even better, who’ll never get one in at all.
According to the draft, each plan must:
- Outline how it will survey of employees and managers engaged in bargaining to assess the current state of labor relations.
- Explain how it will develop metrics to monitor improvements in areas such as labor-management satisfaction, productivity gains, cost savings, and other measures as identified by the relevant labor-management forums participants;
- Confirm its commitment to bargain permissive matters.
- Explain its plan for devoting sufficient resources to provide annual reports on compliance with the order.
- Be submitted to the Office of Personnel Management (OPM) for review.
- Go into effect 90 days from the order if OPM OKs it.
So What’s New?
The bottom line appears to be a requirement to bargain permissive subjects but with a mandate to Agency political leadership to implement it and the thought police (OPM) to make sure it’s done. I have written about the foolishness of this before.
I think we’ll fight the same fights as went on during the Clinton years over the conflict between 7106 (a) and (b)(1). I doubt that Agency negotiators, lawyers or anyone with half a brain will facilitate a leap into the silliness of bargaining away an Agency’s ability to manage but I guess we’ll see. Of course this is a draft so there is still time for some edits if the White House is wise enough to do so.
Any opinion expressed above is mine and mine alone.
