Dancing With the Cobra
Wednesday, October 28, 2009
The best way to avoid toxic snake bites is to avoid toxic snakes. I'm of much the same mind when it comes to (b)(1) bargaining. If you don't go there, you won't later regret having made the trip. (Editor's Note: Bargaining on "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work" is called "permissive bargaining" because an agency is allowed by law to decide whether to bargain on these subjects with a union that represents agency employees. It is also referred to a (b)(1) bargaining in reference to a statutory citation on this topic. For more on this, see Bargaining in the Permissive Area: What's All the Fuss About?)
I realize this opinion is not in sync with the current Administration—which continues to flirt with the notion that voluntarily giving up large chunks of critical management rights may somehow make sense. But I've yet to see a (b)(1) provision that looked to be necessary, much less a good idea.
The "why" of that opinion is explored adequately in an earlier post. The goal of this column is to highlight some ways to help agencies reduce the toxicity of (b)(1) provisions if they are unlucky enough to be one of those pushed into dancing with the cobra.
Listed below are the suggestions I've been able to come up with so far. I suspect there are more—and perhaps better ones—lurking among the brain cells of the labor relations community. If so, PLEASE pass them along for consideration by your colleagues.
OK, so here's what I would recommend to anyone negotiating on behalf of an agency. Presumably, somewhat different advice would be appropriate if you are representing a union at the table, but I will leave that to those whose experience qualifies them to provide it.
1. If at all possible, hang on to your currently still-active statutory right to cease bargaining on (b)(1) proposals at any time prior to final agreement or Panel Order. In other words, unless you have no choice, don't waive your right to call a halt to further negotiations on a (b)(1) topic whenever you wish. To avoid any doubt as to whether you have done so, make sure that your statements at the table and in response to any ground rule proposal that might be construed to read otherwise are straightened out before bargaining proceeds.
2. Avoid agreeing to any "lock-in" provisions in the Duration clause or elsewhere that would leave you unable to escape (b)(1) provisions upon contract expiration. For example, don't agree to any provision that says the contract will remain in effect until bargaining is concluded on a new agreement. Note that the FLRA has found that, once negotiated, such provisions are enforceable. The good news, however, is that bargaining upon them is itself permissive.
3. Avoid any "penalty" provisions designed to make it painful to exercise the agency's right to terminate permissive provisions upon contract expiration. For example, one that would create an onerous and expensive obligation to re-negotiate certain contract provisions if the agency dares to attempt an exit from a (b)(1) provision.
4. If you absolutely cannot avoid agreeing to establish fixed shift times or static team sizes, and if flexibility in either or both is critical to mission accomplishment, insist on negotiating language that fully "covers" the procedures and arrangements to be used for making later adjustments to them. Doing so will eliminate the need to bargain from ground zero every time you need to alter a shift time or crew size to fit changing workload demands.
5. If you absolutely cannot avoid agreeing to bargain on technology selections and/or the staffing of new equipment or processes, seek to negotiate in return provisions that would enable the agency to "act first, bargain later" in bringing them online. This would amount to each side waiving a right, but could save endless delays in bringing mission-critical changes in technology, methods or means into play, while preserving the union's right to bargain on them.
6. Sharpen and deepen your preparation for the impasse resolution stage. Make sure you fully and thoroughly document—preferably with clear supporting data—precisely how a particular proposal might inhibit operational effectiveness, and why it is essential to avoid having that happen.
I remain convinced that the best way to avoid the potentially toxic effects of (b)(1) provisions is to avoid (b)(1) bargaining in the first place. But if that's not an option, I would pay close attention to the recommendations above.
© 2009 D.K. Reischl. Article may be reproduced and/or distributed in its current form if the copyright and contact information is retained intact.
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