A Guide to Slandering Permissive Bargaining
Tuesday, October 27, 2009
SLANDER: n. 1: the utterance of false charges or misrepresentations which defame and damage another's reputation.
Watching today's political debates makes me think that we have entered the golden age of slander. President Clinton's effort to reform health insurance drew a barrage of criticisms, but nothing even close to the smarmy "death panel" characterization of the Democrats' plan. And what about the instant labeling of the GM/bank bailouts as socialism? Joe McCarthy would be so proud, although eager to see the more robust "C" word accusations. But Congressman Joe Wilson ended any doubt I had that slander had come of age when he raised $2.7 million largely from simply calling his President a liar on national TV. Who knew that slander had changed from being a liability to one's wealth into a robust wealth builder?
This could not have happened at a better time for those seeking to block bargaining over the so-called (b)(1) permissive subjects. They faced a nearly insurmountable amount of facts and logic compelling a need for the change. Federal sector union-management relations had taken a beating over the last eight years. The FLRA was pillaged by its own leader, unionized employees were cut out of agency problem-solving meetings, unions were left no choice but to learn how to influence management by obstructing it into submission, costly adversarial litigation replaced win-win negotiations, and the bitterness generated between unions and agencies will retard agency effectiveness for years to come if left unaddressed.
But with the new-found respectability of deceptions, lies, and half-truths that our political leaders are providing, it is now anyone's guess whether there will be any attempt to improve labor relations. So, what better time for a guide that helps us all appreciate how this debate operates? I have listed the ten deceptive non-truths (aka "lies"), and half-truths the slanderers will likely use and the rebuttals they need to plan for to get away with it.
1. Allowing unions to bargain (b)(1) subjects is a huge change from the rights they have today.
REBUTTAL: Well, not really. If management makes a (b)(1) decision today, it still cannot implement its decision until bargaining ends over the procedures for implementing it and how to lessen the adverse impact on employees. It still must provide the union substantial data about the change and even go before a third party who can impose restrictive constrictions on management's decision. Even when all that is done, the union and employees still are free to resist the change and seek help from Congress, the media, or some other federal agency to turn it around, e.g., such as with a management staffing decision to RIF.
2. Allowing unions to bargain (b)(1) subjects will greatly delay management's ability to make critical changes.
REBUTTAL: Remember the old game of challenging someone to knock a marble off a table without touching the marble or table? It can be done, but it takes a lot more work and time than simply letting someone swat the marble away with his hand, e.g. blow it off, vibrate the floor under the table, etc.
That is what the current state of bargaining over the so-called permissive subjects is like. Union negotiators have to use very indirect, time-consuming, methods to influence the basic decisions, but it can be done. For example, how tough would it be for employees if management decided to reduce hours of operation (and in the process abolish employees AWS options) to generate community and Congressional protest over a reduction of public service hours?
There is a very good chance that if the two parties could just address the basic issue head-on they could reach agreement far faster. Moreover, I have never understood why an Executive Branch manager would refuse to address a problem other Executive Branch employees have if the refusal to bargain is simply going to drive his employees to involve the judicial, legislative or other elements of the governmental process.
3. Allowing unions to bargain (b)(1) subjects means managers will lose control over these decisions to folks who are not as equipped to make these decisions.
REBUTTAL: This one is a slander's dream because it rides atop the ubiquitous, but untested assumption that managers know more than employees. However, even the experienced slanderers have to prepare themselves to deal with the track record of all those management leaders at SEC, FDIC, and other financial agencies that brought our country to its knees. Their decisions early in this decade to do drive-by examinations of banks rather than allow the time for staff professionals to use their expertise was clearly wrong. And slanderers need to prepare to dodge the great job FEMA managers did protecting New Orleans from Katrina as well as the NASA leadership that ordered Columbia into the air despite employee warnings not to. And watch out for the CIA employees who argued with management leaders that there was no evidence of WMD in Iraq.
Managers are mistake-prone humans like the rest of us, they have personal interests, and they are very vulnerable to unreasonable demands from above. (In fact, a good argument can be made that very few of them make decisions for the good of the agency's mission. They make them for the good of the next level manager who is evaluating them, determining their bonuses, and picking their next assignment. They would be foolish not to.)
Involving employees in decisions does not mean turning decisions totally over to them; it means—
- getting more information and perspectives into the decision,
- reducing the potential resistance from the people you need to implement the decision,
- putting the basis for a recommended decision into the public eye for scrutiny,
- having to make a case strong enough to persuade others,
- more accountability for (b)(1) decisions because both parties will be able to demand it of one another in order to build a case to terminate bad decisions promptly, and
- generating allies for lower-level managers enabling them to push back against senseless pressures from above.
Years ago the IRS leadership decided that it's Revenue Officers who collect taxes do their best work when they have very large case inventories. While that is one method of doing the work, several studies and logic suggest that in many places these employees might actually be more effective if they had much smaller inventories. That would permit them to focus more intensely on a few taxpayers over a few weeks rather than spread the contacts over six months of short interactions. Wouldn't it be nice to know if the alternative works better?
Involving others, even as equals, is not the problem. How it is done, how impasses are broken, and how quickly bad decisions are changed are the critical variables.
4. Once an agreement is reached on a (b)(1) subject, it will be nearly impossible for management to change.
REBUTTAL: First and foremost, if management wanted to change a (b)(1) decision it made today all by itself, it would have to bargain—and that is no different than if the (b)(1) decision was fully negotiable tomorrow. Moreover, while it will have to bargain, there are already tools under the statute that enable management to make nearly immediate changes, e.g., exercising the necessary functioning exception, declaring a current practice illegal, or term bargaining for post-implementation mid-term negotiations.
Moreover, because the President has the power to unilaterally set the rules under which (b)(1) subjects are negotiable, he could also set it up like AWS bargaining where management can demand a change at any time it believes an AWS deal is causing adverse impact, not just when the contract's term if open.
Here is my favorite example of how vulnerable unilateral action leaves management.
Several management groups have notified their employees that management was imposing new shift schedules on them. Today unions cannot negotiate over that largely due to (b)(1) problems. So, the unions negotiate over the narrower issues of impact and implementation, and then when management thinks the path is clear to move forward the union attacks the substance of management's decision as illegal. (See examples of this in the cases cited below.[1]) Given the back pay, interest and attorney fees, exercising that management right can be very costly. Had there been negotiations to the point that the union agreed with the final shift decisions it would have been very hard for it to allege the deal was illegal.
5. Allowing unions to bargain (b)(1) subjects will not gain management anything in return. It is nothing more than a political pay-off to unions.
REBUTTAL: This one is a slanderer's easiest allegation because most listeners are not sophisticated enough to know that if management can get an agreement with a union on a staffing issue, it can demand that the union commit to not enlisting the help of Congress, the courts, or the media to undermine the decision. Management has no way to do so today. All an imposed (b)(1) decision often does is permit the union and employees to mount a resistance effort--not out of malice but rather to reasonably relieve the pain the decision caused them.
But the more worrisome fact hovering out there waiting to fall on top of some unsuspecting slander, is the Custom and Border Protection example. They bargained (b)(1) matters at one time, but for a variety of reasons stopped doing so and imposed a centralized military style of management--or at least what they perceive as a military style. Their reward has been record levels of turnover, morale levels measuring among the lowest in government, and a constant stream of very high-liability litigation. Employees can be dominated and controlled, but they respond best to actual leadership and motivation, which is what the real military learned long ago.
"Gain" is a bottom-line conclusion, made after the inevitable minuses and the hoped for pluses are reconciled. It is not a decision based solely on the presence of one or even a few minuses.
6. Allowing unions to bargain (b)(1) subjects in the past resulted in near disasters for government.
REBUTTAL: This is a particularly good assertion for those slanderers who enjoy predicting doom. Unfortunately for them, there are no records of such disasters. But there are records of rather substantial accomplishments. My favorite is the Brass Ring Operation NTEU and the Customs Service designed to vastly increase the interdiction of drugs.
Customs actually did one of the more objective analyses of the benefits of (b)(1) bargaining. I recommend that slanderers read the formal report on how well more cooperative labor-management relations worked in case someone asks them to explain all that success when they are predicting doom. See http://www.opm.gov/lmr/report/section_3.htm
7. Allowing unions to bargain (b)(1) subjects means there will be impasses between unions and managers that will allow arbitrators to make government decisions.
REBUTTAL: It is getting tougher and tougher for management to demonize arbitrators because the right-wing Supreme Court justices are turning over enforcement of virtually every federal employment law to them. The Court regularly sees arbitrators as acceptable substitutes for district court judges and juries.
Moreover, once again the President has total control over who those seven arbitrators are on the Panel, and if management and union agree that there is someone better equipped to make the decision, they can use that person, e.g., maybe some well-respected former executives and employees.
8. Allowing arbitrators to settle (b)(1) bargaining disputes could result in agencies being ordered to do something illegal.
REBUTTAL: Actually, this is totally untrue. So, slanderers are not likely to lead with it, but drop it casually into the conversation and move on quickly. An arbitration decision on a (b)(1) or any other matter need not be implemented until the FLRA rules on its legality.
9. Allowing unions to bargain (b)(1) subjects means that agency costs will rise.
REBUTTAL: This is so riddled with holes that only an experienced slanderer will try it. It will be easy for permissive bargaining supporters to point out that AWS was made bargainable under a regulation preventing any significant rise in the costs of doing business. They can also point to the likelihood that if a union's proposed solution is far more costly than management's it is very unlikely any arbitrator will adopt the union's proposal. And there is the fact that nothing would stop management from demanding in bargaining that if the costs of adopting the union's proposal exceed a certain figure, it is instantly terminated. I could go on, but you should see by now why only an experienced slanderer should expose himself to this overwhelming barrage of rebuttal arguments.
10. Allowing unions to bargain (b)(1) subjects is unsupported by any academic wisdom outside labor relations.
REBUTTAL: Actually, a very large body of academic literature from the organizational change field strongly supports the idea that if management wants to make a substantial change in operations it needs employee involvement to get the best information to make the change decision and to lower employee resistance.
Although Mark Twain or Will Rodgers have already probably said it better, watching all the slander flying around on the (b)(1) issue suggests the following adage: "A sure sign of a good idea is the foolishness of the opposition's arguments." If the best the opponents of an idea can attack it with is mockery, half-truths, deception, predictions of doom, and now, thanks to Glenn Beck, public sobbing, that is a pretty good sign that the idea is a great one and should be implemented promptly.
Absent some change, we will continue to see events such as Customs and Border Protection managers deciding an officer must go alone, rather than with back-up, to inspect planes arriving at remote private airports that potentially carry drugs, illegal immigrants, guns and laundered money. When you add to that facially questionable decision the fact that these same officers could point to a dozen places management is wasting staff that could be redirected to give them back-up and that the Commissioner has been seen travelling around his own buildings with more officers protecting him there than his officers are given at isolated landing strips, you begin to see how there must be a better way to do things.
[1] IAM, Lodge 2261 and AFGE, Local 2185 and Department of the Army, Tooele Army Depot, Tooele, UT, 47 FLRA No. 34; 47 FLRA 427 (1993)
Veterans Administration Medical Center, Palo Alto, CA and AFGE, Local 2110, 36 FLRA No. 12, 36 FLRA 98, (1990)
© 2010 Frank Ferris. All rights reserved. This article may not be reproduced without express written consent from Frank Ferris.
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