There are two important events in any negotiation. How you open and how you close. Part 1 addressed the 7 critical questions to ask before entering bargaining. In this part, we’ll look at the technical issues that have to be faced or at least considered.
Legal Status of the Negotiation
This may sound funny but Federal Agencies don’t just bargain whenever they want. There has to be an authorization to do so.
The basic authorization is the certification of the union as exclusive representative of a clearly described bargaining unit. In a new unit, the first goal of a union, after getting dues withholding, is to seek a collective bargaining agreement (CBA) governing everything allowed by law to be included. Once there is a CBA, changes in personnel policies practices and working conditions of unit employees create a bargaining duty for the Agency. This is the most common trigger. A CBA may create obligations to negotiate with reopener clauses or require certain steps be taken to renegotiate if it expires. Unions have a limited right absent CBA language to bargain during a CBA’s life. However, if new issues not covered by a CBA arise, the union may request to bargain and the Agency must come to the table.
It’s important to keep in mind who is going to be covered by any negotiation and to limit the negotiation accordingly. Some lazy agencies apply bargained terms to unrepresented employees including, sometimes, supervisors and managers. This may create the impression among those not represented by the union that it’s looking out for them or if their situation is going to improve, they’ll have the union to thank for it. Good or bad idea? Does the Agency want its internal investigators, personnel specialists and managers more loyal to the union than to executive leadership? You be the judge.
Another issue involves multiple units.
Unless you are doing multi-unit or multi-union bargaining, keep in mind that whatever the current bargaining produces the next union in line will want more. For the most part, multi-unit bargaining is discretionary with the parties, so you cannot demand a single negotiation that covers everyone but you can leverage that outcome if you’re willing to pay for it.
Relationship to the Collective Bargaining Agreement
CBAs may create bargaining duties. If it’s a “Master Agreement”, there are probably local supplemental agreements to negotiate and there may be the occasional tussle over whether an issue must be bargained nationally or locally. Legally, any agreement bargained during the life of a CBA becomes part of the CBA unless the parties specify otherwise. Study the “reopener” and “duration” language. Either may create issues.
Ground rules may be the most contentious issue you deal with and may hold up the bargaining on other issues. Unions frequently use ground rule proposals to hold up a perceived undesirable change or the renegotiation of a perceived favorable CBA. I may take some heat for this but believe that negotiating ground rules into a CBA that covers each kind of anticipated negotiation is the much preferred alternative to negotiating them issue by issue. If this is a problem, a short term solution may be using an issue the union is hot for to nail down ground rules for the rest of the life of the CBA.
Information requests were a much bigger problem for bargainers before the advent of the “Particularized Need” doctrine laid down by the Federal Labor Relations Authority.
Even now, the smart agency bargainer who wants to move forward should have available as much information as needed to understand the proposal, its purpose and operation. Get the information together, if for no other reason, so you understand what’s going on. Since any bargaining can result in impasse and since impasses are generally won with convincing information, it’s in your interest to have as much available to you as warranted by the issue.
Agency Head Review
A little known or understood fact is that the law (5 USC 7114(c)(1)) requires that “An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency.” Except for CBAs, this may be ignored in a number of agencies for a number of reasons, lack of resources being the primary claim. If you don’t know your organization’s take on this, find out before you enter a negotiation. The last thing you want is to be in a position to either return to the union with an unapproved deal or have to renegotiate something you believed was closed.
While most of the time this is not an issue, make sure your counterpart has authority to make a deal. If not, require an authorization letter. I once was involved with a new unit. The recognition was in the name of the national union but a local official showed up claiming to be the representative. After much teeth gnashing, a letter was produced. At the micro level, don’t enter negotiations with other than the local president or other official clearly specified by the CBA without an authorization.
I hope this article has provided a little food for thought. The devil is in the details particularly in Federal labor relations. Get the details right and the rest will flow much easier.