Labor-Management Partnerships and Co-Management
By Phil Varnak
Tuesday, July 14, 2009
After attending the recent FPMI Labor and Employee Relations Conference where I heard a number of presenters who disparaged Labor Management Partnership as Co-Management and reading other writers on this forum who present the same views, I felt the necessity to present my personal experience -- Labor Management Partnership is Co-Management only when management surrenders the responsibility to manage.
I am sure that statement will anger many who had poor experiences with Partnership during the Clinton administration, but the process was not designed as co-management. If the labor-management partnership became co-management at some facilities, the reason is probably that the process was not properly managed from its initiation. Rather than co-management, I would prefer to call it Mismanagement.
Many managers attempted to satisfy their headquarters demands by establishing labor management partnership activities without really understanding the ramifications of their actions. They took the approach that they'd do whatever was necessary to satisfy the politicians and then abolish it when a new president was elected. However, many mistakes were made with this approach such as failing to properly train participants; incorporating partnership provisions in negotiated agreements; rotating members of partnership committees and never developing a team approach to partnership.
If President Obama takes action to initiate labor management partnership activities under an Executive Order, agencies must take the time to initiate the process correctly based upon the previous decisions of the FLRA and actual experiences of successful agencies, many of whom still have thriving partnership activities they do not wish to change.
Confession is Good for the Soul
When the Clinton Executive Order was issued, I was Director of Labor Relations for the Bureau of Reclamation in the Department of the Interior. Our agency was "grandfathered" to negotiate pay and pay practices in addition to everything else provided by the Statute. We had active unions and labor relations specialists at headquarters and the five Regional Offices that handled the daily labor relations activities for the local units of recognition spread throughout our facilities west of the Mississippi River. There were a total of 34 units throughout the Bureau.
At a meeting of our Labor Relations Officers shortly after the issuance of the Clinton Executive Order, I made the following statement, "There will be no partnerships in the Bureau of Reclamation." I went on to "eat those words" repeatedly over the next three years as I discovered the value of partnerships. When I retired in December, 1997, we had 15 Partnership Councils, and many of those are still functioning successfully today.
Successful Partnership Takes Commitment
Partnership is not a process that is handled by only the labor relations staff and the union. If a partnership is to be successful, it must have total commitment by top management and the union executive board. Many organizations failed by attempting to run partnership activities between the labor relations specialist and union officers.
If organizations want to be successful in creating a labor management partnership, the approach taken must be top-down, by both management and the union. Anything short of that support and endorsement is sure to fail. The remainder of the organization will watch what is happening at the top – in management and the union – and follow suit accordingly. If top management is not practicing partnership in their daily activities, they cannot expect the remainder of the organization to comply with their stated expectations. The old adage, "do as I say, not as I do" will not result in a successful effort. Top management of the organization and the union must set the example for the remainder of the organization to follow.
Successful Partnership is NOT For All organizations
Contrary to the approach previously taken during the Clinton era, I believe that partnerships should only be considered where labor management negotiations are protracted; where large numbers of unfair labor practice charges are being filed; or where the labor relations activities are adversarial.
If management and the union are handling negotiations in a collegial manner, unfair labor practice charges are non-existent, and the relationship between management and the union is cooperative, partnership is unnecessary.
For those of you who are in the former situation where the relationship between the union and management is acrimonious, it is probably difficult to picture a harmonious relationship. The reality is -- your situation is designed for partnership since partnership is a process designed to achieve harmony. The biggest requirement is that a harmonious relationship must desired by both parties.
The Clinton approach was designed to reduce the number of 3rd party actions (unfair labor practice charges and grievances) and adversarial relationships between management and the union. If that situation did not exist, there would not have been a need for partnership activities. However, many headquarters managers did not really understand the partnership process and were not accepting an answer that partnership was not needed. As a result, many of the partnerships formed were in name only and then discontinued when President Bush rescinded the Clinton Executive Order.
Successful Partnership is NOT Easy
A Labor-Management Partnership is not created just because either management or union states their desire for a partnership. A genuine desire by both parties to resolve their differences is required if the partnership has a chance of working. That desire, with some help by professionals who can assist with providing team-building training and building a partnership agreement that specifies how the process will be pursued by the parties, can form the basis for a successful partnership.
Our organization utilized the skills of the FMCS or the FLRA for this professional assistance in the past. We were fortunate to have a situation where the General Counsel of the FLRA wanted to visit our geographic area because his family was located there. He assisted us in the creation of partnerships in two situations by: (1) providing team building training and (2) assisting us with design of our partnership agreements which included a definition of "Consensus" to use in our process of consensus decision making. In each case, the training and agreement development lasted 3-4 days.
When members of the partnership council change, the dynamics of the process also changes. This is a reason why many partnership councils fail after changing members. The original members were trained in team building procedures and developed the partnership agreement which was followed until membership changes occurred. The new members were not part of that original process and entered the team without the knowledge and experience of their predecessors. In most cases, the lack of a team commitment caused the new members to lack cohesiveness with the remaining members.
Many successful teams have followed the Bruce Tuckman model of team development[i] which identifies stages of development teams normally experience. Teams must understand that they will experience these stages – Forming, Storming, Norming, and Performing as part of the natural development of a team. When a member of the team is changed, the process normally repeats itself, often causing the team to fail.
Successful partnerships schedule team building training for all members of the council, new and remaining, in an attempt to have the new members assimilated into council activities with a minimum of disruption. Partnership agreements should address an annual opportunity to make membership changes. Vacancies occurring prior to that time would result in the position remaining vacant until the annual member replacement time arrives.
We successfully used the assistance of the FMCS at one other location, but their primary role of providing assistance to negotiation disputes sometime interfered with providing training for partnership activities. The FMCS commissioners explained that training would have to be rescheduled if a negotiation dispute arose elsewhere and the trainer(s) were assigned to resolution of that dispute. In addition, my experience with FMCS has been one of inconsistent skills of the FMCS trainers which resulted in less than a satisfactory initial result at another location where we attempted to use them.
Most successful partnerships with which I have been exposed had a facilitator who would lead the meetings. This facilitator must constantly perform as a Neutral, if his/her role is to be respected by both parties.
The role of a facilitator is to keep the members of the partnership council/committee on track with the procedures developed by the parties for reaching consensus following the procedures set forth in their partnership MOU. In some cases, the facilitator also prepared minutes of meetings for review of the council members. We found that having the facilitator trained with the council member was successful in having the facilitator accepted by team members.
All Managers and All Union Members Will Not Be Supportive of the Process
While most managers will support the process because there is top-down support and they realize they must be supportive of the desires of the boss, many still complain that they don't like working cooperatively with the union. In addition, even if the process has the support of the union executive board, there generally is a group of bargaining unit members who are vocal against management and union partnership efforts. The personal opinions these dissidents, (both management and union) generally express are that "management and the union should not be in bed together." Simply stated, they believe that management and union are adversaries and should not work together. They would prefer to keep the 3rd party adversarial processes instead of partnership.
IBB is a Dispute Resolution Process That is Not Used for Routine Discussions
A great deal was made of how the Interest Based Bargaining (IBB) process was to be used in partnership activities. IBB was developed from a process that was often referenced as Interest Based Problem Solving. The process was used by enlightened managers starting in the 1970s when team approaches to management were being developed. Many labor management practitioners have ridiculed the time consumed in this process and complained that the process is too labor intensive.
Successful partnership activities only use IBB as a dispute resolution process when discussion efforts between the parties fail to reach consensus.
This process is not as labor intensive or time consuming when compared to the normal process in which the parties participate in mediation and impasse procedures to resolve their dispute. Generally, an IBB process can be concluded with support from both labor and management in far less time than mediation. When the time of obtaining a decision of the FSIP is added to the process, it far exceeds the time necessary for an IBB process. In addition, the FSIP decision often is not satisfactory to one or both involved parties where IBB produces a decision both parties can live with.
Partnership Does Not Belong in the Negotiated Agreement
As many organizations discovered when they wanted to discontinue their partnership efforts, changing the terms of a negotiated agreement is far different than discontinuing a Memorandum of Agreement or Memorandum of Understanding that provides the opportunity for either party to discontinue participation by merely providing advance notice to the other party. A MOU or MOA that is negotiated outside the parameters of the negotiated agreement fulfilled the obligations of the Clinton Executive Order.
The Executive Order specified that partnership activities were not to be subject to administrative or judicial review. Since labor management relations and negotiated agreements are subjects covered in the Statute they are subject to administrative and judicial review as set forth in the statute. To include partnership activities in a negotiated agreement that is negotiated in accordance with the provisions of the Statute, would appear to violate the stated processes of the Executive Order.
Accordingly, the negotiation of a partnership document outside the purview of the statutory negotiated agreement was the only viable option the parties had available. The parties understood that cancellation of participation in partnership activities would result in a return to the situation that existed prior to the creation of the partnership.
Unfair Labor Practices and Grievances
The General Counsel of the FLRA stated in two presentations that I attended-- there is no partnership where one or both parties continue to file unfair labor practice charges. Issues that give rise to ULP charges should be issues that are discussed in the partnership meetings. If the process is properly developed by the parties, any disagreement between the parties will be resolved through the IBB process. There is no need for ULP charges to be filed. If the partnership activities cannot resolve issues that could result in a ULP charge, then the partnership council should be dissolved under the terms of the MOU and the parties should return to their previous relationship.
Grievances are a different matter. The Union must process employee grievances under the Statute. Nothing in a partnership agreement should attempt to change this requirement since we cannot violate the terms of the Statute. In the Partnership Councils in which I've participated, we agreed NOT to discuss individual grievances and chose to let these proceed under the terms of the negotiated agreement. We did discuss any issues that either the Union or Management wanted to discuss as long as the issue did not involve an individual grievance of a bargaining unit employee.
Partnership is NOT Co-Management
For management to state that Partnership is co-management is ridiculous. A partnership agreement is NOT co-management for either party. Partnership was permitted by the Statute before the Clinton Executive Order and it is still permitted after the Bush Executive Order. Neither of those Executive Orders did anything to change the provisions of the Statute and the Statute sets forth the rights of management and the union. Stating that partnership results in co-management is an excuse, or a cop-out, rather than a legitimate reason for not pursuing partnership.
Partnership is no more co-management for management than it is for the union. Each party has individual responsibilities that cannot be handled within the purview of the partnership agreement. Management must make the final decisions on those issues covered in Section 7106 (a) of the Statute and the union must conduct the internal management activities of the union in accordance with their constitution and bylaws. There is no legal way the parties can blame each other for making decisions for which they are each individually responsible. Pre-decision involvement of the union is NOT co-management, unless management permits co-management to occur.
I have not heard of any unions stating that partnership resulted in co-management of the Union. Each party must take responsibility for making decisions for their respective organizations in accordance with their rights and responsibilities provided by the Statute. Action by either party to place blame on a process designed to improve an adversarial relationship is at best, a cop-out. However, it is probably easier to call it co-management than to admitting the truth -- that the process was mismanaged.
Will We Again See a Partnership Executive Order?
At this point, Congress is still considering the nominee for General Counsel of the FLRA. If/when she and the other member of the FLRA are confirmed, the FLRA will have the key positions filled and be prepared to proceed with taking a leadership role in labor management relations.
The current nominee for General Counsel, Julia Clark, worked on President Obama's labor relations transition team with Joe Swerdzewski, the previous Clinton General Counsel. Based upon published reports, the possibility of resurrecting partnerships was discussed at a meeting held by the Transition Team with Agency labor relations leaders.
I believe we will see a new Executive Order on Partnership coming out after the appointment of a new General Counsel. Additionally, with the current membership of Congress, I would not be surprised to see an attempt by the current administration to revise the Statute. Time will tell.
If we do see another Executive Order on Labor Management Partnership, agencies should learn from the errors made during the Clinton partnership efforts and avoid repeating the previous mistakes. Let's hope that we don't experience the quote of the infamous Yogi Berra, "It's like déjà vu all over again."
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.
[i] Tuckman, Bruce. "Developmental sequence in small groups". Psychological Bulletin 63 (6):384-99. Reprinted with permission in Group Facilitation, Spring 2001.
© 2010 Phil Varnak. All rights reserved. This article may not be reproduced without express written consent from Phil Varnak.
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