Federal Bargaining Endgames: Part Two – Closing Without Outsiders

How do you reach agreement with a union without involving a third party? Here are some practical steps an agency can take based on the experience of an experienced negotiator in the federal sector.

This is the second of four parts looking at what’s involved in finishing a negotiation. In this part, we’ll discuss reaching an agreement between the parties with no outside involvement.

This is an article about techniques. Your success will largely rise or fall on your reading of your counterpart on the other side of the table and that person’s ability to make a deal or sell one to those who can.

First Things First – Are You Ready to Close

Sadly, I learned most lessons the hard way, either by my own mistakes or watching close friends and colleagues making them. I’m comforted by Oscar Wilde who said, “Experience is the name every one gives to their mistakes.” In any case, I once made the mistake of signing off on what I thought was the last outstanding language in a contract negotiation. I was in a hurry to get done and move on. When I said to the union’s chief that I was glad to be done, he brought forth two pieces of his language that had been tabled months earlier. In the 25 years since that day, I’ve never bargained without a detailed proposal and counterproposal spreadsheet showing the status of each piece of language that entered or went off the table.

Attached is an End of the Bargaining Checklist. The checklist is my attempt to cover closure issues that must be dealt with or planned before you start to close a negotiation. Hope you find it helpful.

Next Step – Negotiability

When I teach bargaining, I tell the class that negotiability like impasse is a BAD WORD that should never leave your lips at the table even now. Take a bargaining day and tell the union you have “problems” with whatever language you believe violates law, government-wide rules, good taste, etc. Explain in detal why you believe that and provide specific case language NOT citations. They should get the message that should the parties end up at the panel you will raise the issue of the language’s legality and therefore the jig is up on that language.

Next Step – Propose to End Illegal Language (if any) in the Current Agreement

Once a contract expires for sure, and perhaps always, illegal language may be declared to violate law. An interesting tactic is to sever this language from the table by putting the union on notice that on a given date certain contract provisions will no longer be honored. If the union ain’t too smart, it’ll file a ULP instead of requesting I&I bargaining on the change. As Napoleon Bonaparte said, ““Never interrupt your enemy when he is making a mistake.”

Next Step – Get the Executive Decision Maker(s) On Board

It’s usually senior management that is bugging the Chief to get the contract done. Whether or not that’s the case, make sure they know you’re trying to end the show and that you have discretion to make a deal within certain limits or access to those who do as needed. Let them know that endgames require careful attention at certain times and advise them that you will give them as much notice as possible of those times. If they are lethargic about ending bargaining, take all that A/L you have been saving up and do three weeks in southern France before it gets too hot and while the French kids are still in school (Dream on). Come to them with a plan and a timeline that you know you can stick too or improve.

Intra-Organizational Politics

Make sure you know

• Who can finally approve any deal.
• Who will influence the decision-maker and get to them.
• Who your supporters are.
• Who might oppose a given deal.
• What special interests exist.

I was once involved in the renegotiation of a master agreement. There was an attorney present representing the general counsel. While she was helpful throughout the process, it surfaced near the end that her agenda was to prevent the application of certain union proposals to Agency attorneys. To satisfy the GC, it ended up that the Chief had to offer an article setting specific and different provisions for the lawyers on a number of issues.

Next Step – Decide What’s Important

A big part of the endgame is moving on issues that earlier you wouldn’t have budged on. But the end’s a time to figure out what is essential to get, keep or avoid; helpful to get keep or avoid; or insignificant one way or the other. I’ve included a Proposal Valuing Worksheet to help get you started.

Closing Moves #1 – Package the Junk

Packaging is painful. It takes a stiff spine so start with the junk. Put together all the stuff your valuing exercise has determined to be insignificant and make some movement providing they do. The way you construct the package will send the message. You may also in this process, uncover something that you didn’t know was important to them. If so, that’s great. You can move the package based on that. If you handle the Junk smartly, you’ll probably find out whether there’s a possibility of ending the bargaining without outsiders. By the way, put no union institutional issues in with the junk to sell it. Hold for later and see below.

Closing Moves #2 – Package the Next Level Stuff

If you were successful, start packaging and offering progressively more difficult subjects, saving the toughest for last. I know how terrible this sounds but I have seen very few Federal negotiations in which union institutional issues had a lower priority for the union than a unit employee benefit. The very last the union wants to do is spend dues money so push proposals that cost them and they’ll usually rise to the deal.

Closing Moves #3 – Package It All

Move toward a “closing” package that makes it possible for both of you to both agree to a deal and walk away claiming success. All the important stuff should either be closed earlier to your satisfaction or on the table for the “Deal”. Obviously, events will be unique from one set of bargaining to another so without knowing your specifics, I can go no further.

However, if you are able to engineer the process to this point, whether the union buys the deal or not, you are in a much better position if the process goes to the next step.

Part 3 will work through an FMCS mediated resolution. Part 4 will address the Panel and interest arbitrators. So please stay tuned.

I appreciate the comments and emails. Keep them coming.

Remember, the opinions expressed in these articles are mine and mine alone. Some of those submitting comments appear either very glad or quite relieved that that’s the case.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.