Bargaining over Policies, Instructions, Directives: Ten Ideas to Consider
By Bob Gilson
Wednesday, July 29, 2009
Since Federal employees and their unions appear to hate change, maybe it's inevitable that Agencies are into a constant change mode to accommodate the development of policies. Every Agency has a system of policies, instructions, orders, directives, issuances, commands, or other guidelines covering a variety of administrative rules.
Also, every Agency revises them regularly. It's a Washington thing. Some Agencies, like the U.S. Office of Personnel Management (OPM), General Services Administration (OPM) and others provoke Agency policy rewrites by changing their own regulations creating a ripple effect of activity among those they regulate.
Agencies with national bargaining units are acutely aware of this process. OPM, GSA and Agencies headquarters not having national unions sometimes seem, to practitioners, blissfully ignorant of the impact created by their revisions and the timing of same. I'm not alone, I'm sure, in believing that justice would be served if policy weenies at such places be required to serve as chief negotiators when such matters are bargained with the union.
In other sectors, contracts rule. In the Federal sector, lawyers often rule. Legally, this whole issue can be a quagmire. While one can't impose a conflicting government-wide regulation on a bargaining unit contract until it expires, what constitutes a conflict and whether the change is really the result of the exercise of a management right is part of grist feeding the ever turning labor relations mill. In other words, it depends. I'll leave legal stuff to those who like to try and impale multiple angels on pinheads.
For this article, we're assuming that the Agency is going forward with the change and intends to notify its union(s) of that intent. Since leverage is everything in negotiations, I'd like to suggest some ways to increase your leverage or at least lessen the other guy's.
1. Never Bargain the Language of the Policy
More often than not, policies apply to unit as well as non-unit employees. When you bargain the actual language of the policy itself, you're allowing the union to determine the working conditions of the non-unit staff which isn't smart for a whole host of reasons. Do you want your supervisors beholding to the union for a benefit? You decide.
2. Bargain the Effect of the Policy on Specific Working Conditions
The substance of a policy is the Agency's business. What the law requires is that we bargain working conditions of unit employees, a subset of "Agency employees". To do this, it helps if you focus on exactly what's affected by the policy change.
3. Always Keep "Covered By" and "De Minimis" in Mind
The union may see this kind of bargaining as a profit opportunity to range widely over matters that they didn't get at the term bargaining table. Make sure somebody does a "Covered By" analysis on each of the proposals they make. If this is a new concept for you take a look at OPM's glossary on the subject at: http://www.opm.gov/LMR/glossary/glossaryc.asp
If your legitimate reaction is that the change is no big deal, check out the big case on the "de minimis" at: http://www.flra.gov/decisions/v63/63_125.pdf
4. Consider Offering a Proposed Memorandum of Understanding on Day One of Bargaining
A lot of this kind of bargaining works off the policy. As you can tell by the rest of the article, that may not be smart. Offer a draft MOU with the outcome you'd like to see and work from your language instead of theirs. I know this is a very new idea to some but sit down and think about it for a bit. There are some real bargaining advantages and little downside to it.
5. Be Aware of 5 USC 7106(c) "Procedures" Problems
The union has a right to bargain over the procedures involved in exercising a management right. Since the devil is always in the details, make sure you're not requiring supervisors to jump hurdles, thread needles or perform some other impossible cliché to get something done.
6. Consider the Advantage 5 USC 7106(c) "Appropriate Arrangements" Offers
While some might call it risky business, if there's a claim that some proposal constitutes an "appropriate arrangement" and the Agency agrees, it gets you past the statutory prohibition precluding you from bargaining an infringement on a management right. Be very careful here but look at the value involved.
7. Don't Incorporate an Agreement into the Policy
While it may be smart to include a provision in a policy that cautions readers to check bargaining agreements covering a specific unit when using the policy, don't include the agreement in the policy lest some arbitrator conclude that the policy itself was the subject of or result of a negotiated agreement.
8. Avoid a Reference to a Specific Named or Numbered Issuance if Possible in the Agreement
Most of the time, we bargain a "Memorandum of Understanding" (MOU) to seal the deal. It might come back to haunt you in the future if later policy changes come in without union interest or when you're bargaining a new term agreement if a specific policy is mentioned. Remember, you're bargaining a working condition, not the policy.
9. Plan an Implementation Schedule and Try to Group Issues Together
If the Agency is smart, and few are about this, it realizes that single issue bargaining rarely gets management any leverage. While internal management small "p" politics may get in the way, the more of these issues you can pull together to bargain at the same time, the more opportunity for trades and deals are present. Of course, getting managers to give something in their policy change to get another manager something in theirs may be asking way too much from the empire builders association.
10. Hold Beneficial Goodies to Trade for Necessary Stuff
What will also drive practitioners nuts is that the policy weenies put out exactly what the Agency wants rather than an offer that leaves some bargaining space. Also annoying are situations in which Congress, OPM or someone else liberalizes a benefit and some senior political or career executive forgets there are unions and gives it away for nothing. Recently, AFGE beat up on the Social Security Administrator for not immediately providing an increase in the transit subsidy to certain employees. I'd like to believe that doing so was a calculated bargaining move but haven't seen much of that foresight exercised.
Stay tuned for Part Two addressing what one of these MOUs should consider and encompass.
Remember, the views expressed herein are mine and not intended to represent anyone else with whom I may associate from time to time.
© 2009 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.
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