Federal Union Pre-Decisional Bargaining: Is There Any Limit on the Scope?

By on January 25, 2011 in Current Events with 24 Comments

The Office of Personnel Management (OPM) and Office of Management and Budget (OMB), on dual letterhead, issued guidance to Agency Heads on the operation of labor management forums and on the administration’s expectations concerning the pre-decisional role of Federal unions in Agency decision making. This memo, by the way, does not carry a Council stamp but is issued apparently on the authority of OPM and OPM, a distinction which may become significant.

An Apparent Break with the Obama Transparency Policy

The memo has some very interesting language. It reads (in part):

“Agencies should develop a shared understanding with employee representatives on how the pre-decisional process can best be utilized for their workplace. Generally, agencies should begin the pre-decisional process as soon as possible after they determine that some decision or action is needed to address a particular issue or problem. Pre-decisional discussions, by their nature, should be conducted confidentially among the parties to the discussions. This confidentiality is an essential ingredient in building the environment of mutual trust and respect necessary for the honest exchange of views and collaboration. Ultimately, the goal is to allow employees, through their elected labor representatives, to have meaningful input which results in better quality decision-making, more support for decisions, and timelier implementation.”

So, the Obama labor relations Executive Order directed labor-management dealings will be out of public scrutiny or, for that matter, of many of the employees (or others) who are to be affected.

That is significant since many Federal bargaining units have 20% or fewer members.

Non-members, by the way, have absolutely no say in the decisions of the union. Who the union sends to pre-decisional meetings and the agenda advanced, therefore, will not be a matter determined by or apparently even visible to the majority of covered employees in most cases.

Make no mistake, the union represents its members’ and institutional interests not necessarily a broader workforce. The last sentence quoted above will, simply, not be true in many, many forums. What is clear is that the union’s views will be advanced and considered in secrecy despite the political nature of both parties likely to participate (Agency Heads appointed by the President and unions, who are clearly a constituent of the party in the White House.

Were I on the Hill now, I think I would ask for a regular report of these meetings to seek to avoid what many would call an overt conflict of interest.

Memo calls For Union Involvement in Agency Budget Development

A major part of the memo addresses union involvement in Agency budget development. It reads:

“During the budget development phase, before the President submits the Budget to Congress, management develops proposed funding levels and draft programmatic narratives to be included in the budget document. At this stage, management has the option to solicit input from employee representatives. If management chooses to solicit such input, it should be limited to high-level discussions of goals and strategies. Moreover, to the extent that anyone receives confidential pre-decisional, deliberative information during this budget-development period, such information remains subject to the long-standing OMB policies on preserving the confidentiality of the deliberations that lead to the President’s budget decisions.

During the period when Congress is considering the President’s Budget proposal, pre-decisional involvement can take the form of employee representatives providing input to management on possible ways of implementing the President’s proposals. Additionally, when the agency’s appropriations have been enacted into law, employee representatives may provide input to management on the use of budgetary resources to carry out its mission.

While pre-decisional input does not bind or obligate an agency to reach a specific decision or take a specific action, opportunities for pre-decisional involvement are valuable sources of input from employees through their representatives. This supplement to the bargaining process can be beneficial to both parties as it may identify and address unexplored ideas, or expedite any bargaining that may be required as a result of budget execution initiatives.”

A Few Questions on Budget Involvement

Unions are led by non-Federal employee individuals and exist as non-governmental entities in the private sector. The internal Revenue Service exempts them from paying taxes and defines a labor organization as follows: “A labor organization is an association of workers who have combined to protect or promote their interests by bargaining collectively with their employers to secure better working conditions, wages, and similar benefits. Similar benefits include benefits traditionally provided by labor organizations such as strike, lockout, death, sickness, accident, and other benefits. Labor organizations need not be recognized labor unions. An organization does not qualify for exemption if its net earnings inure to the benefit of any member.”

  1. Do you think the Director of OPM and Deputy Director of OMB have read this definition?
  2. What would make them think that Federal union representatives would not share this information with national elected officials?
  3. So does this mean that union leaders would see the draft information but congressional representatives, committees and the public wouldn’t?
  4. Based on the memo, is there any consequence possible if such information makes it to the media?
  5. In Agencies where national security information is an essential component to budget development, are there any requirements on union participants with regard to sharing with non-governmental individuals such as union employees or officers?
  6.  The memo purports to be guidance yet doesn’t address any of the above, is there a reason for that?

Scope of the Pre-decisional Discussions

I can’t help it. I also have some questions on how broad pre-decisional involvement will be. In October 6, 2010 meeting of the Council, John Gage, National President of AFGE is quoted as saying “We want pre-decisional involvement on all issues.” With that in mind, the memo, again offering guidance, doesn’t appear to answer any of these questions:

  1. What, exactly, is a “workplace matter” for pre-decisional involvement purposes?
  2. Is acquisition a workplace matter?
  3. Is the scope of Agency contracting a workplace matter?
  4. Is regulatory enforcement a workplace matter?
  5. Is the decision to fund the Agency’s awards budget a workplace matter?
  6. Is the makeup of the Agency’s negotiating team to reach a new collective bargaining agreement a workplace matter?
  7. Has any thought been given by the administration to any of this?

And so on, and so on.

Creating an Advantaged Position for Unions or Others in Agency Policy Making

Agency Ethics Officers (and maybe Inspectors General) should pay attention to the memo as well.

The memo appears to set the stage for providing unions an advantaged position in matters not covered by law. I understand that the Federal labor law authorizes negotiation over personnel policies, practices and working conditions but the memo goes far beyond that to perhaps cross the line by giving advantage to a non-government entity.

What if, for example, the labor department is pre-decisionally involving its Federal union in how its private sector union rules will be applied as a “workplace matter.” Both the Federal union and many of the private sector unions are AFL-CIO affiliates. How can this not be a problem?

In Agriculture’s Food Safety and Inspection Service, the Federal union has long cozied up to consumer groups while industry groups pressure the Agency for various matters the inspectors may not agree with. When you start discussing a number of “workplace matters” in this context, you’re in the middle of some ethics concerns,

The Office of Government Ethics website reads (in part):

“Executive branch employees are required to consider whether their impartiality may be questioned whenever their involvement in a particular matter involving specific parties might affect certain personal and business relationships. A pending case, contract, grant, permit, license or loan are some examples of particular matters involving specific parties. A general rulemaking, on the other hand, is not.”

“If a particular matter involving specific parties would have an effect on the financial interest of a member of the employee’s household, or if a person with whom the employee has a “covered relationship” is or represents a party to such a matter, then the employee must consider whether a reasonable person would question his impartiality in the matter. If the employee concludes that there would be an appearance problem, then the employee should not participate in the matter unless authorized by the agency.

 An employee has a “covered relationship” with the following persons —

• any person for whom the employee has within the last year served as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee, or• any organization (other than a political party) in which the employee is an active participant.An employee may have a concern that circumstances other than those expressly described in the regulation may raise a question regarding the employee’s impartiality. In such a situation, the employee should follow certain procedures to determine whether or not participation in the particular matter would be appropriate.”

Ethics Questions:

•  Does a Federal employee serving as a union official have “covered relationship” with that union when acting outside the scope of the labor relations statute?
•  If the “workplace matter” under discussion potentially advantages his/her union, another union, a political ally(as in the case of FSIS’ union), or anybody else, is that a conflict of interest under the ethics regulations?
•  Who is minding the store on these matters, since obviously neither OPM nor OMB saw fit to consider them in the guidance memo?

Make no mistake, there is a ton of room for mischief when political appointees and union representatives are encouraged to meet “confidentially” to deal with broad Agency matters such as those envisioned by Mr. Berry and Mr. Gage. OMB, at least. should know better.

If there’s an opinion above, I will take full responsibility for it.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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