HR'S Station Stop Called "Disapproval"
Wednesday, July 1, 2009
One way to view collective bargaining is as a journey with the parties traveling from the first stop on the line, where one party proposes a change, to the end of the line, where a change is implemented via an agreement.
As with most business-related travel, the ideal is to move from one stop to the final destination as quickly, effortlessly and efficiently as possible. That is certainly behind the building public support for high-speed bullet trains, high-speed ferries, and high-speed commuter lanes. However, high-speed federal sector collective bargaining is being sidetracked, if not derailed, by department-level HR leaders who insist on maintaining a obsolete and valueless station stop between proposed change and implemented change called "Disapproval."
This stop is where the head of an agency (or a delegated representative) has the right to board the collective bargaining process, inspect every word of the about-to-be-delivered agreement, stop the delivery process dead in its tracks, and send bargaining back a few stops to try again. All this happens—
- in sight of the agreement's final destination, a stop called Implementation,
- irrespective of how much it cost the negotiating parties getting to that point, and
- no matter how vital immediate implementation is to the bargaining parties.
Executive Order 10988 gave agency heads this control over collective bargaining's right-of-way in 1962 when collective bargaining was brand new to the federal sector and there was no FLRA or judicial review of agreements to decide what was legal or not. Perhaps it made sense under those conditions, but it makes little sense a half-century later.
Today, there are over 60 volumes of FLRA and judicial case law on-line to guide contract drafters, a small army of seasoned labor lawyers dispersed throughout the process, and, ironically, most of the regulations the agency heads once protected were abolished early in the Clinton Administration when the Federal Personnel Manual was taken out of service. The idea that only the agency head is equipped to stop the operation of illegal agreements is ridiculous.
Just as the time came to drop station stops from most train lines to move faster between the vital stops, it is now time to pull up the side tracks diverting an about-to-be-implemented agreement into the "Disapproval" station stop. Under the best of conditions, the agency head finds nothing objectionable and does no harm to the agreement other than delaying implementation beyond the execution date. On the other hand, when something is disapproved the entire contract can be derailed and take a large part of the parties' day-to-day working relationship with it. In that case often no other agreement can move forward until that damage is cleared and the tracks repaired.
For example, the Treasury's Department Human Capital office recently reviewed a new term agreement from one of its bureaus that was loaded with improvements for employees and management. Among the improvements for management were union agreement to automate the promotion process, to replace nearly 100 local AWS agreements in place since the early 90s with a national one more aligned to today's hours of service, to decrease the number of full-time union representatives, to place new limits on the use of official time, to shut down two performance awards program so that management need only operate one, to expedite virtually all mid-term bargaining, to streamline the grievance process, and to place a mileage limit on how far from an employee's permanent office he can work on flexiplace.
Rather than wave the agreement through for immediate implementation and give an admiring tip of the cap to signal a job well done, Treasury's Human Capital leaders, acting for the agency head, blocked any further progress and sent the change train back several stops to try again no matter how long it takes, how much it costs, how many other changes are held up to accommodate the reversal of this single agreement, or how many improvements the managers might have to give up to get back on track to implementation.
While some might be poised to defend Treasury's CHCO by arguing that "disapproval" probably was necessary to prevent some illegal clause going into effect, they would be betraying their ignorance of the law. By definition, an illegal collective bargaining clause can never be enforced no matter how many years have passed since it was put in the contract. The FLRA reminded us of this just a year ago when it stated, "Under Authority precedent, the validity of a contract provision may be raised in grievance and arbitration proceedings. United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 119, 121 (2000). In this regard, if an agreement term is found to be in violation of the Statute, it is considered void and unenforceable." American Federation of Government Employees, Council 238 and U.S. Environmental Protection Agency, Chicago, Ill., 62 FLRA 350 (2008). So, even if the new agreement required the Secretary of Treasury to pay union dues, deliver a karaoke performance at every union meeting, and promote every union steward at least twice during the term of the agreement, none of those would be enforceable contract provisions even if they were approved.
If the right to disapprove does nothing more than the right to refuse to enforce a contract clause, the obvious question is who benefits from continuing the exercise agency head review. It is hard to believe it would ever be to the actual agency head's advantage to void a voluntarily reached agreement that gives a subordinate bureau the authority to go ahead with changes it wanted to make. Why would he or she care that some of the provisions might not be enforceable against management? However, exercising agency head review does give department-level HR officials delegated the power to act for the agency head a tool for reminding subordinate bureaus of their power to dominate them, justification for staff and budget, and even preserves the only role the statute gives them in the collective bargaining process.
Ironically, by retaining the right to disapprove an agreement the department-level officials are saying that the bureau's management can be trusted to manage billions of appropriated dollars, thousands of employees and major federal programs, but not to write a legally correct sentence about a personnel matter. In this particular case, the Treasury department-level reviewers' disapproval also amounted to a formal announcement that the department's own attorney, who sat at every bargaining session and approved every sentence, repeatedly made serious legal errors. If she goes unpunished, doesn't that set an interesting benchmark for assessing disparate treatment of other department employees who make errors?
Lest there be even a single defender of agency head approval, it is worth looking at the specific provisions of the agreement, loaded as it was with improvements for both parties, that Treasury's CHCO disapproved. She ruled the following sentence illegal because it failed to contain the word "up" between "positions" and "to": "Placement actions listed below within the bargaining unit are not covered by the competitive procedures. . . Promotion of occupants of career ladder positions to the full performance level." She announced that without the two-letter preposition her own managers may incorrectly require competition for an intervening grade in a career ladder. Isn't that more a comment about clarity than the clause's legality? Or even about her own ability to control her own managers?
Two other disapprovals were based on the words that in order to qualify for a temporary promotion, ". . . employees must meet OPM qualifications." Treasury insisted that the word "qualifications" be replaced with the word "requirements." A fourth, decades-old clause was disapproved because if a reader really strained to read the sentence out of context it could possibly mean management could not discipline an employee under arrest. Of course, neither side has ever read it that way nor did either side even suggest it might be read that way. There were four other disapprovals that had slightly more viability to them, but the mere fact that the department's CHCO saw a need to cite these petty and frivolous issues speaks volumes about the validity of her motives and role.
Admittedly, the union could have agreed to fix these problems quickly so that the agreement could be implemented or it could have agreed to sever any disapproved clauses so that the rest of the agreement could go into effect while the problem-clauses are litigated over for years. But, that is the union's choice and why would it ever act to make it painless for the agency head to so senselessly meddle in their collective bargaining agreement? The bureau's management could have had these changes in effect last March had department-level HR not judged its needs to be more important than more efficient operation of the bureau. The bureau will now be lucky to get them into effect by next March because the union has demanded to return to the bargaining table and start all over again. If that is the problem I expect it to be, then let the bureau head call on Secretary Geithner to get this fixed.
Admittedly, Secretary Geithner has far more important things to focus on than these matters. Frankly, I personally prefer that he and his staff put every waking moment into saving the world's economy as opposed to championing the insertion of two-letter propositions into collective bargaining clauses. However, he is responsible for who is delegated to act on his behalf, and if he believes that his department-level HR people are better advocates for what is important than delegating the agency head review power to the bureau leaders sitting at the bargaining table, who will administer the contract, then that is his call. However, given his past infamous problem with ignoring small details perhaps this is another one he should reconsider and amend. Perhaps he could ask his CHCO just what was her motive behind doing this.
Lest anyone worry that a union could be victimized if agencies were allowed to cherry pick clauses in a working agreement and refuse to enforce them because they are illegal, agencies can do today. Union's can easily protect themselves by attaching penalties for declaring a clause illegal once the agreement is in effect, e.g., it could enable the union to open the entire agreement, it could relieve the union of any arbitration costs for litigating that issue—or any other for the duration of the agreement, it could empower the union to unilaterally terminate some clause(s) beneficial to management.
Moreover, just because a contract clause is illegal does not mean that it cannot be enforced. For example, assume that parties negotiated these two sentences: "The employer will always assign two employees to inspect property. The junior employee will be assigned the task of completing any reports." The first, which has far more impact on management than the second, is permissive and enforceable for the duration of the contract. The second probably violate the right to assign and is unenforceable even though it is likely something management does not care about at all. If those sentences had gone into effect and the second was subsequently ruled unenforceable, perhaps a year later, the "practice" established by the contract clause still remains in effect until the agency serves notice that it wishes to change it and completes negotiations. The only time a union would be vulnerable to immediate termination of even the practice would be if even the residual practice was illegal.
It is time to modernize the transportation system that moves a proposed change to an implemented change. Agency heads should either not exercise their review in favor of challenging clauses when their enforcement is an actual issue for management or they should delegate the power to the managers at the bargaining table. In short, they need to get off the tracks so that agencies can bargain for immediate implementation of mid-term agreements upon execution, not upon approval.
© 2009 Frank Ferris. All rights reserved. This article may not be reproduced without express written consent from Frank Ferris.
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