Labor-Management Partnerships in an Obama Administration
By Phil Varnak
Thursday, January 15, 2009
Background: During the Clinton administration, Labor Management Partnership activities were encouraged and actually required in many agencies without regard to issues such as need, current relationship between the parties, cost of implementation, or the benefits for the parties. Many agencies required that their field facilities establish partnership committees. Once this was accomplished, the agency could prepare a report certifying that the agency was complying with the President's executive order. The reality was that many of these partnership activities were established in name only and there was no intent to develop genuine, functioning partnerships.
At the same time, other agencies took the time and effort to develop genuine working partnerships that operated as envisioned by the executive order. In many of these agencies, the partnership activities have continued to flourish, even though President Bush cancelled the Clinton executive order. As most labor practitioners are aware, labor management partnerships were permitted before the Clinton executive order and are still permitted, regardless of the executive order signed by President Bush. The purpose of this article is to discuss the ways this author believes agencies and unions should proceed if partnership again becomes an initiative under the administration scheduled to take office January, 2009.
Potential Impact of Obama Administration: It is not possible to accurately predict the approach of the Obama administration on this program. However, there are some indicators of the direction the Federal labor management program may travel.
Bob Gilson has written a several interesting articles on this website which provide some indication of our future direction. One of these articles discussed the top 10 goals for unions in the new administration; another discussed letters that President-elect Obama wrote to unions during the presidential campaign; and, a third relayed information on a meeting between the Obama transition team and OPM. These articles provide some indication that the new administration will most likely be changing the labor management practices of the Bush administration and the possibility that Labor Management Partnerships may reappear.
During the Clinton administration, Joe Swerdzewski served as General Counsel of the FLRA and took a pro-active role in promoting partnerships and dispute resolution.He is involved as a member of the Obama transition team and that partnerships were discussed during their recent meeting with OPM. Having been in an agency that actively promoted labor management partnerships and took the time to properly develop them, we utilized and appreciated Joe's personal assistance with development of two separate partnership committees.
Purpose of This Article: While partnerships may not achieve the importance they held during the Clinton administration, this article will provide tips for agencies which may embark upon developing labor management partnerships if that issue does resurface in the near future. I hope that the mistakes made during the Clinton administration which mandated the establishment of partnerships in many agencies will not be repeated. If partnerships are properly implemented, the results can be very positive and eliminate hostility between the parties, decrease the time of negotiations, and decrease the number of third-party hearings.
Professionals in this field are aware that an executive order cannot change the rights provided the parties in the Federal Service Labor Management Relations Statute (Statute). We have readily seen that executive orders can demonstrate only the desires and wishes of the president in office. The courts and the FLRA have clearly established that the rights provided to management in Section 7106(b) cannot be changed by anything short of a change in the law.
The remainder of this article will address issues that parties should address if they are considering the establishment of a labor management partnership in the future.
Benefits for Both Parties: A partnership agreement should provide benefits for both parties. The reason many of the partnerships failed in the past generally dealt with this issue and the fact that agencies were dictating the development of partnerships at their field facilities. In considering this subject, both management and the union should readily identify benefits they would each like to achieve in establishment of the partnership agreement. Unless this step is thoughtfully considered, there is no reason to pursue a partnership agreement.
All units of recognition are not the same – some can utilize partnerships and some cannot. If the relationship between the parties is not adversarial; has negotiations that are completed without protracted third-party intervention; doesn't have a large number of Unfair Labor Practice (ULP) charges filed; or, has a functioning labor management committee that regularly resolves issues, then a labor management partnership would probably be redundant. However, if the relationship is adversarial, has a large number of ULP charges filed, or has protracted negotiations, perhaps your agency is ready to explore a labor management partnership.
Team Building: Generally, partnership activities are accomplished through meetings of a labor management group often referenced as a Partnership Committee. These committees usually have an equal number of representatives from the union and management. Some committees rotate the Chairperson role on a regular basis such as quarterly, semi-annually, or annually, while others utilize the skills of a meeting facilitator who can facilitate all meetings, arrange for publication of minutes, coordinate meeting space and time, and oversee the process to assure the parties follow the partnership agreement and the selected dispute resolution process (see later section of this article).
The team members should be trained in team processes, how to successfully utilize consensual decision making, and the overall direction the labor management program is attempting to travel. Often, the Partnership Agreement is negotiated at the end of this training to permit the parties to actually experience the training they just completed.
Another important part of the training should be to establish ground rules for conducting meetings and for the general conduct of the labor management partnership group. These ground rules deal with issues such as respect, listening, interruptions, meeting attendance and other issues which can disrupt a meeting if not properly handled by the parties.
This training is essential to assure that the group knows how to function as a Team, has the opportunity to work through team building activities, and to develop trust in the other team members. I am aware of several partnership activities that failed when new members were brought into a functioning group without the necessary training. When a member of the group (either labor or management) permanently departs the group, no replacement should be added until the entire group is again trained with the new members selected by the participating parties.
Don't Incorporate Partnership Activities in the Negotiated Agreement: Labor management partnership activities should be developed based upon a Memorandum of Understanding (MOU), Standard Operating Procedure (SOP), Memorandum of Agreement (MOA) or some other document negotiated by the parties outside the purview of the negotiated agreement. This is advocated because these documents can be changed by the parties as the need for change arises and there is no need for agency-head approval. In addition, sunset wording or other termination language should be included to permit either party to terminate the partnership relationship and return to traditional dealings under the Statute without the repercussions of having a ULP charge or grievance filed.
Incorporation of partnership activities into the negotiated agreement can bring the partnership under the protections of the Statute. Many organizations did this during the Clinton administration only to face the legal challenges that accompanied the Statute. The original Clinton executive order stated clearly that administrative or judicial review of partnership activities was not provided. If agencies and unions desire partnership, that desire is best expressed outside the purview of the negotiated agreement.
Dispute Resolution Procedures: While many readers may disagree with this section, I firmly believe that the filing of unfair labor practice charges by either party should result in termination of the partnership agreement. The filing of a ULP charge is a clear statement that the partnership is not working and the parties are ready to return to the traditional methods of dispute resolution. Language to this affect should be included in the partnership agreement.
Partnerships should have some method of dispute resolution that prevents the implementation of traditional methods, such as the filing of a ULP charge. The method advocated during the Clinton years was Interest Based Bargaining (IBB). IBB is a consensual dispute resolution process that involves a series of steps best accomplished by use of a trained facilitator who can keep the parties on track and permit the team members to actively participate in the process. Generally the facilitator is trained with the partnership council members and is someone that demonstrates the characteristics of being impartial with the ability to lead the parties in all their meetings. The selection of the facilitator should be agreed upon by the parties prior to conducting the actual training and the role of the facilitator spelled-out in the partnership agreement. Many groups select a primary and an alternate facilitator and train both in the initial training session.
Grievances: While most labor management disputes should be handled by the partnership group, individual grievances will still occur. The parties should initially recognize this fact and agree not to discuss these grievances in the partnership forum. While grievances initiated by either management or union should be handled by the partnership council without the need for filing a formal grievance, grievances filed by bargaining unit members should proceed through the normal grievance procedure. I am aware of one council that developed a grievance resolution process within their partnership agreement permitting aggrieved employees to have their grievance resolved by a 3-member committee instead of arbitration. This process has saved the parties a great deal of resources during the years it has been utilized.
In summary, the decision to embark upon establishing a labor management partnership should not be made without thoroughly exploring the reasons for the change from the traditional relationship. If the parties decide to pursue this course of action, I would suggest they read this article and consult Federal installations where partnership activities have been successfully implemented. In that way, many of the problems experienced in the past can hopefully be avoided and a successful relationship developed that achieves the identified goals of the participants.
Any opinion expressed within this article is that of the author and should not be attributed to FedSmith.com or any other person or organization.
© 2009 Phil Varnak. All rights reserved. This article may not be reproduced without express written consent from Phil Varnak.
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