Impact and implementation (I&I) bargaining is the most frequent negotiation experience in the Federal sector for a great many reasons. This is because an agency may choose to exercise its rights, make an operational decision or need to change a way of doing something. Any of these may affect employee working conditions and trigger an obligation to negotiate.
So the parties go to the table and reach an agreement. What happens next? Federal labor law requires that either party must reduce such an agreement to writing at the request of the other (see 5 USC 7114(B)(5)).
In this article, we will consider what ought to be included or at least considered for inclusion in a written memorandum of understanding (MOU) that memorializes any agreements reached.
Some of these may seem obvious to very experienced practitioners but may be less so to managers who are increasingly involved in conducting I&I negotiations on their own. Each point may form a clause in the final agreement.
1. The Parties
The parties to the MOU are those named in the certification of exclusive representative. This is important, for example, if you’re a manager in a Department of Veterans Affairs Medical Center where there’s a local union (NFFE) that owns the recognition rather than one which is part of DVA’s huge consolidated bargaining unit with AFGE. It’s important that the parties to such an agreement are not listed as, for example, DVA and AFGE, the players on DVA’s national bargaining stage. In addition identify what the parties will be called in the MOU. My preference always was to call the agency “the Agency”.
I do not want an arbitrator who might read the agreement to think he/she was dealing with a private sector company or organization. Your parties clause might say:
The parties to this agreement are the U.S. Department of Veterans Affairs, Sleepy Hollow Medical Center, Headlesstown, New York (the Agency) and the National Federation of Federation of Federal Employees, Local 666, Affiliated with the International Association of Machinists and Aerospace workers, AFL-CIO (the union).
2. Background/Purpose/Context of the Negotiation
This clause will help fix the purpose and context of the negotiation.Using this type of clause defines for the parties the basis of the negotiation and its intent.This can be important in deciding whether it should be folded into the next contract or not. Making the background clear may also help place limits on how broadly or narrowly an arbitrator may be able to apply the MOU.
For example:
This agreement addresses the effect on working conditions of the move of Internal Revenue Service employees of the Repossession Division located on the execution date of this agreement on the fourth floor of the Downtown Federal Building, 1040 Audit St., Taxem, HI to commercial space at 1099 Levy Blvd. also in Taxem, HI. The move is scheduled to commence on April 15, 2010 and be completed by April 20, 2010.
3. If a Law or Regulation is Involved, Spell Out the Limits
If the negotiation is to implement a provision of law or regulation, this clause should make clear that the agreement is limited to matters within Agency discretion and cannot amend or change the meaning, purpose, or interpretation placed on it by its author. For example, let’s assume the Congress passes a law granting a child care subsidy to employees under specified conditions. The Agency is authorized to implement the law when its budget permits.
A clause may read:
This agreement shall be implemented in a manner consistent with PL 111-99, The Federal Employee Childcare Subsidy Act of 2010. The parties are aware that conditions on the expenditure of any funds for child care are authorized by the statute and not this agreement. This agreement addresses when and how payments shall be made should funds become available.
4. Make Sure to address the Scope of the MOU
Another suggestion is that the Agency exercise care to limit the scope of a negotiation to unit employees. I’m told that many organizations actually bargain the language of an Agency policy, directive or instruction. I think that is a major mistake.
First, Unions get to bargain working conditions–not determine Agency policy.
Second, whenever you bargain the directive itself, you are permitting the union to develop rules that will cover people both in and out of the bargaining unit. Of course, if the Agency wants its managers and supervisors and other excluded employees beholden to the union for their benefits, have at it. Other scope issues go to matters such as limiting the effect of the MOU to a specific organizational component, category of worker, time period, etc.
For example:
This agreement addresses negotiable conditions of employment of bargaining unit employees affected by the Agency’s issuance of U.S.D.A. Food and Nutrition Service, Western Region Directive 09752, dated March 15, 2009 and titled “Disciplinary Actions”.
5. If to 7106(b)(2) or (3) Applies, explain Why and How
5 USC 7106(b) addresses bargainable procedures at (b)(2) and appropriate arrangements at (b)(3). You should consider identifying any provision that involves on of these. Remember, people come and go but some of these MOUs seem to last forever.
For example:
The Agency has determined that while the application section 4(d)(1) of this agreement affects managements right to assign work to employees in the woodworker classification at specific times, it has determined that this provision is an appropriate arrangement under 5 USC 7106(b)(3).”
6. Define Terms That Might Confuse a Reader
Always remember that the writers of the agreement have often spent long hours getting to an understanding of an issue and what each term means in the overall context of that agreement. Go home and ask your 13 year old to read your draft MOU. If he or she gets, it then almost anyone will. If he or she doesn’t get it, then it’s time for definitions.
For example:
The Aerodyne Bicycle referred to in this MOU is a piece of exercise equipment provided in the fitness center and discussed in section b(2).
7. What both parties will do and be responsible for together
If both parties are responsible for doing something together, spell it out. For example: The Agency and the union will meet during the week of July 14, 2008 and quarterly thereafter to discuss the implementation and lessons learned from safety training for the new Glock-15 pistol until all eligible employees have received training course WS-202A.
8. What Agency management will do and be responsible for
As above, what the Agency will do. The Agency agrees to post notices on the intranet under GENERAL ANNOUNCEMENTS advising employees where they may download copies of Agency Directive, dated 7/10/08 titled “Mandatory Call In Procedures During Telework.”
9. What the union or employees will do and be responsible for
For example:
In order to be eligible to receive a childcare subsidy, an employee must submit a properly and fully completed Agency Form 22-6 to the Human Resources Office electronically no later than 3 work days before the beginning of the month in which a childcare subsidy is being requested
10. Critical Administrative Details
There are some critical details that should be included to wrap up an agreement.
The execution date is the date an agreement is signed, the effective date is the date it goes into effect and remember that 5 USC 7114 (c)(1) provides that An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency. In addition whether the MOU expires on a certain date or event; whether it becomes part of the collective bargaining agreement or stands alone; or whether other conditions apply should be spelled out. All of these matters should be covered in the MOU.
For example:
This agreement is entered into this 30th day of July, 2008 and shall be effective no earlier than August 30, 2008 It will expire upon the expiration date of the collective bargaining agreement between the parties that was effective April 2, 2006 unless terminated by mutual agreement at an earlier date.
If I have missed any crucial clauses or issues, please make a comment below. As always, I hope practitioners find this helpful.
Any opinions expressed in this article are mine and mine alone. I’d like to thank Paul Vali from NIH for the encouragement to write this article. But If I got anything wrong, it’s my fault not his.
