National Council’s Report to President on Labor Relations: Nuthin’ Much Happened, Let’s Do It Some More and Maybe Sumpthin’ Will

On December 14, 2009, the Federal Register published Executive Order 13522 creating the National Council on Federal Labor-Management Relations (Council) and requiring it to push a pilot program on bargaining permissive topics and submit a report on its effort.   That report is now up on the Council’s website.

What’s a Permissive Topic?

5 U.S. Code §7106 (b)(1) reads:

(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;

In essence and after literally hundreds of cases during the Clinton administration, this provision lets Agency management decide whether it will negotiate with a union on any of the topics covered and its decision cannot usually be challenged.

Forbidden Fruit?

Of course, nothing fires up a Federal union as much as telling one that it can’t bargain something, no matter what that something is.  So the unions think they elected the current president to do their bidding, and upon his arrival, sent him a draft executive order to sign directing Agencies to bargain in this area.

Proving, perhaps, that a law degree from Harvard is worth something, the president issued an executive order directing the creation of the Council and charging it with making unions happy without doing anything really dumb; in other words conducting a study in which the union representatives who are Federal employees can participate on official time which is generally why they are officers in such organizations in the first place.

How Did We Get Here?

At the beginning of all this, the Director of the Office of Personnel Management, John Berry and Jeffrey Zients, Deputy Director for Management & Chief Performance Officer, Office of Management & Budget, the Co-Chairs of the Council showed up at meetings, listened to all the historic complaints of the unions and even issued a memo, telling Agencies that if they knew what was good for them, they’d get on board the “Be Nice to Unions” bandwagon.

Since the initial hoopla, much Council time both at its meetings and behind the scenes has been taken up with generating a report that clearly establishes the value to government of bargaining with a union in this “permissive,” area of bargaining.  The report, all 177 pages of it, manages to capture a bunch of activity and almost no results.  Mr. Zientz, the government’s Chief Performance Officer using the standards advanced in the new GEAR performance system should rate the effort a D maybe.

Perhaps most interesting, neither Mr. Zients nor Mr. Berry signed this report.  It was left to an acting deputy director in OMB with virtually no Agency experience and OPM’s General Counsel, recently a top Federal union lawyer, to sign it, date it and send it to the president.  Second stringers on a memo to the president?  What’s that about?

As some might ask, did the first stringers come down with the same malady that afflicts every Federal negotiator that deals with a Federal Union?  The malady is called terminal exhaustion derived from exposure to endless whining.

The Findings

The Following is a “Summary of Findings” from the report as written:

Positive outcomes:

• Participants generally reported faster resolution of issues being addressed.
• Participants uniformly reported an improvement in the labor-management relationship.
• Positive prior relationships, as well as agency and union leadership commitment, likely contributed to positive outcomes from the pilots.
• The requirement to collaboratively plan, identify metrics, or success indicators, and measure the outcomes also appears to have contributed to the pilots’ effective bargaining.
• No negative outcomes reported.
• A lack of experience, and general unfamiliarity, with (b)(1) bargaining contributed to a lack of focus on (b)(1) subjects in some pilots.
• In some pilots, there was confusion between substantive bargaining on (b)(1) subjects and pre-decisional involvement on § 7106(a) matters, or with procedures and appropriate arrangements bargaining.
• Some pilots discussed (b)(1) matters in their labor-management forums, and in such cases often did not distinguish between pre-decisional discussions on § 7106(a) matters and interest-based negotiations on (b)(1) subjects.

The lack of complete data from all of the pilots makes it difficult to fully assess and evaluate the results of bargaining over § 7106(b)(1) subjects at this time.

• The twelve pilots are at various stages in the implementation of their plans: while some are in progress, some have completed their bargaining and one has yet to begin bargaining.
• Many pilots struggled with developing adequate metrics.
• Many of the pilots bargained over matters that lacked immediate impact on an agency’s mission.
• Many of the pilots chose less complex workplace issues to address in their initial bargaining — few chose large, difficult issues as part of their implementation plan.
• Because none of the pilots have bargained to impasse, no data was collected with respect to impasse resolution on (b)(1) subjects.

The pilots would have benefited from more rigorous screening of their initial plans, and from better feedback and oversight from the Council.

Huh?

1. No negative outcomes were reported.  Let’s see.  You’re a Federal Agency that got arm twisted into participating in a study designed to prove that labor relations cooperation as envisioned by the administration is positive.  Would you report a negative outcome?
2. Lack of understanding of b(1) was an issue.  Wait a minute. Didn’t the Federal Labor Relations Authority do training everywhere and to anyone who’d listen on the Executive Order in general and b(1) in particular?  Whaddyamean they weren’t familiar or didn’t understand? Is the report saying FLRA didn’t do its job?
3. Incomplete data from the pilots.  How is that possible? There was a big working group and then there’s the Council itself.  If only one Council member or working group member contacted a single pilot program a month before the report was drafted, wouldn’t they have the data?  Perhaps there’s a great management conspiracy in all this to deprive Federal unions of their b(1)s?
4. The initial pilot plans should have been more rigorously screened.  Is the report saying that the Co-Chairs of the Council, its members and the working group who had time to assemble a 177 page report didn’t have time to comment on these plans? Is it possible they were speaking at the GSA conference in Hawaii and didn’t have time? Since some might say that the Schedule C members are in bed with the union members,  maybe there’s a Columbian angle to all this.

Recommendations

The following are the “Recommendations” of the report:

• The Council concludes that the data obtained from the current (b)(1) pilot projects do not provide a sufficient basis to evaluate the impact of bargaining over permissive subjects and make a recommendation as to appropriate next steps with respect to agency bargaining over the subjects set forth in § 7106(b)(1) at this time. Thus, the Council recommends extending the duration and scope of the pilot projects established pursuant to Section 4 of E.O. 13522.
• As a result of the Council‘s conclusion in this regard, and pursuant to the authority set forth in E.O. 13522, the Council will continue to evaluate the effectiveness of negotiation over permissive subjects of bargaining by continuing the (b)(1) pilot projects for a period of two additional years. In order to do so:
  a) The Council will invite the twelve current pilot project participants to continue, both with regard to the current scope of their pilot projects as appropriate and to the extent they have additional opportunities to bargain (b)(1) subjects;
  b) The Council will also solicit new pilots from additional agencies and departments, with the goal of expanding the number of agencies and departments participating and increasing the number of government employees and American citizens affected by the subjects bargained by the pilots;
  c) The Council will encourage pilots to select issues that are based upon their agencies‘ strategic or operational plans, in order for the negotiations undertaken by the pilot projects to have a greater potential to have a meaningful impact on mission accomplishment;
  d) The Council will take steps to ensure that all pilot projects meet the revised criteria to be developed by the Council for pilot participation and will exercise sufficient oversight over the pilot projects to ensure they have adequate support and are able to develop objective data for assessment; In particular, the Council will strive to ensure that the pilots adopt performance measures and are able to produce measurable outcomes related to agency mission, including cost-benefit data. To meet this goal, the Council will also refer pilots to the Performance Improvement Council and/or their agencies‘ Performance Improvement Officers (or equivalent) to assist in maximizing their ability to produce useful data.
  e) While pilots are able to bargain one, some, or all of the (b)(1) subjects, the Council will endeavor to ensure a sufficient representation of pilots bargaining the full scope of (b)(1) subjects;
  f) The Council will take steps to ensure that all pilot projects meet its requirement that participants take (b)(1) training and metrics training;
  g) For those pilot projects which conclude bargaining prior to the end of the two year period, the Council will continue to collect data and evaluate outcomes over a longer timeframe.
• The Council urges all agencies and their labor organizations to establish labor-management forums at appropriate levels and to have pre-decisional discussions of (b)(1) subjects in accordance with Section 3(a)(ii) of E.O. 13522. Agencies are reminded that they may elect to bargain over (b)(1) subjects pursuant to Section 5(b) of the E.O. Agencies and their unions are encouraged to participate in pilot projects pursuant to Section 4 of the E.O. and 2(b) of the Council‘s recommendations.

Amazing Recommendations

What are they actually saying here?  Note the highlighted significant (read plain English) thrust of each recommendation.

1. The Council concludes that the data obtained from the current (b)(1) pilot projects do not provide a sufficient basis to evaluate the impact of bargaining over permissive subjects and make a recommendation as to appropriate next steps with respect to agency bargaining over the subjects set forth in § 7106(b)(1) at this time. Thus, the Council recommends extending the duration and scope of the pilot projects established pursuant to Section 4 of E.O. 13522.
2. As a result of the Council‘s conclusion in this regard, and pursuant to the authority set forth in E.O. 13522, the Council will continue to evaluate the effectiveness of negotiation over permissive subjects of bargaining by continuing the (b)(1) pilot projects for a period of two additional years.
3. The Council urges all agencies and their labor organizations to establish labor-management forums at appropriate levels and to have pre-decisional discussions of (b)(1) subjects in accordance with Section 3(a)(ii) of E.O. 13522. Agencies are reminded that they may elect to bargain over (b)(1) subjects pursuant to Section 5(b) of the E.O. Agencies and their unions are encouraged to participate in pilot projects pursuant to Section 4 of the E.O. and 2(b) of the Council‘s recommendations.

Did You Get the Message?

The message I got from the recommendations was that despite the president’s instructions, the Council was unable to make a recommendation so it’s extending its existence another two years and, oh, by the way, Agencies should follow the executive order.

Get real folks. The report should read that we failed to accomplish what we were directed to do by the president and we’re recommending a stop to more of this politically correct silliness at the taxpayer’s expense. Speaking of taxpayer’s expense, perhaps one might inquire as to the cost of generating this report.  I’ll bet it was more than it cost GSA to do its Hawaii party.

As I frequently say, nothing I write is the responsibility of anyone but me.

National Council On Federal Labor-Management Relations: Report To The President