Bargaining in the Permissive Area: What’s All the Fuss About?

The Author discusses the permissive area of the Federal labor law that Federal unions want the President to direct Agencies to bargain. He asks whether there might be any unintended consequences of such a decision.

A prospective Executive Order is allegedly in the works bringing back a Clinton era mandate that Agencies waive a statutory right and bargain over subjects that are now only negotiated at an Agency’s option. Federal unions have lobbied often and hard to get this to happen. So what’s the big deal?

During the Clinton era, Agencies raised major objections to bargaining over permissive subjects despite the president’s order to them to do so. The Federal Labor Relations Authority refused to enforce the Clinton order and the Federal Service Impasses Panel (all Clinton appointees) avoided ruling on these issues almost entirely. So why might politically appointed administration officials controlling Federal operating Agencies and “neutrals” do the same thing this time around despite the wording of an executive order?

The answer is in the consequences of bargaining these subjects. The Federal government is the largest organization in the country and without doubt, the most complex. Congress is constantly discovering the perils of the unintended consequences of what on the surface may appear a simple fix but turns out to be a jumble of competing and sometimes contradictory laws, regulations, policies, executive orders, opinions, and rulings of various authorities, boards, commissions, offices, Agencies and Departments.

Let’s look at what the so called “permissive area” involves and how we got where we are.

What Does the Law Require

5 U.S. Code § 7106. (Management rights) states “(b) Nothing in this section shall preclude any agency and any labor organization from negotiating—

(1) at the election of the agency, on the 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… “

What Does This Mean?

Not so simply stated, the above means that a union proposal that falls within these bounds is an exception from the “management rights” provisions of the law which appears in the same section. The management rights provision says that

“Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency–

(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and

(2) in accordance with applicable laws–

(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;

(C) with respect to filling positions, to make selections for appointments from–

(i) among properly ranked and certified candidates for promotion; or

(ii) any other appropriate source; and

(D) to take whatever actions may be necessary to carry out the agency mission during emergencies.

So what the one hand giveth (management rights), the other taketh away (presumably by executive order).

It’s very important to note that since 1979, management rights concerns of Federal Agencies have resulted in literally tens of thousands declarations of non-negotiability of union proposals and rulings by the Federal Labor Relations Authority and the Courts on whether or not Agencies were right in doing so. The Federal sector dynamic has involved Agencies seeking to preserve rights they thought the law gave them and unions seeking to expand the scope of issues they might bargain over.

In a seesaw motion, we’ve seen things move back and forth from negotiable to nonnegotiable depending on the composition of the FLRA and determinations by the courts. I won’t bring down the storm of protest that would surely result if I either sought to lay the blame for this on either party or suggest that legions of lawyers have been housed, fed, sent kids to college and retired on the pleadings resulting from these relatively few lines in the law.

Some History on “the Permissive Area”

In 1977 and ‘78, I was employed as a trainer at the Civil Service Commission’s Labor Relations Training Center in Washington DC. Jimmy Carter was President and had promised a major overhaul of the Federal civil service including encoding of labor relations, creation of a senior executive service and “merit pay” for certain management jobs. The development of the provisions of Carter’s Civil Service Reform Act dealing with labor relations was honchoed by Tony Ingrassia, then Director of CSC’s Office of Labor Management Relations (OLMR). Ingrassia had been a newspaper unionist and later headed labor relations for the Postal Service.

Although my organization didn’t report to OLMR, Tony always acted as if we did. This gave both offices access to what was going on within CSC and in Agencies that neither would have had on its own. As a result, we often participated in OLMR policy discussions and were in the loop on writing the new law. To get to the point, I remember clearly the discussion of section 7106(b) concerning “permissive” bargaining areas. This provision got into the law with the sole intent of permitting Agencies and unions to bargain safety issues which otherwise would be nonnegotiable.

Executive Order 11491, as amended, which governed Federal labor relations up to that point set out six management rights in Section 12 (b), which read, “management officials of the agency retain the right, in accordance with applicable laws and regulations–

(1) to direct employees of the agency;

(2) to hire, promote, transfer, assign, and retain employees in positions within the agency, and to suspend, demote, discharge, or take other disciplinary action against employees;

(3) to relieve employees from duties because of lack of work or for other legitimate reasons;

(4) to maintain the efficiency of the Government operations entrusted to them;

(5) to determine the methods, means, and personnel by which such operations are to be conducted; and

(6) to take whatever actions may be necessary to carry out the mission of the agency in situations of emergency;”

Unlike the succeeding statute, there was no “permissive area” in the old Nixon Order. As a result, the predecessor to the FLRA, called the Federal Labor Relations Council, occasionally ruled a union proposal nonnegotiable stating that while it might have merit, it could not be bargained as it violated the Order’s management rights provision.

So in came the “permissive area” in the hope that Agencies could solve safety problems in a mutually beneficial way without treading on “management’s rights”. Imagine, for a moment, the chagrin of those who had been around for this discussion in the seventies, when the Clinton folks tried to dump the permissiveness of it all and open the management rights to full scale bargaining. I think it would be fair to say that the internal battles of Agency senior career staff with politicals over the prospective unintended consequences of this call would make great “fly on the wall” stories. 

So Will Naïve Politicals Do It Again? And Can they Claim Ignorance if they Do?

As the Clinton Era waned, much less interest in Federal employee labor relations, partnership and permissive bargaining waivers was in evidence. Recently, even the President of the American Federation of Government Employees was quoted widely as looking for a type of “partnership” and interest-based bargaining recognizing that the interests of the parties were not the same. I could be wrong but that might qualify as the greatest understatement of the relationship between the parties (Agencies and unions) in the more than 170 year history of labor relations in the Federal service. Perhaps the loss of a couple of hundred thousand defense jobs to private sector in the 90s and NATCA getting pay bargaining legislation by being hard assed during the same period wasn’t lost on the largest Federal employee union after all.

What Exactly Does Permissive Bargaining Entail?

I’m going to divide this into two parts: first, “numbers, types and grades” and second “technology, methods and means”.

Numbers, Types and Grades of Employees, or Positions Assigned to an Organizational Subdivision, Work Project or Tour of Duty.

The following are lifted from OPM Definitions:

  • “Numbers” signifies an increase or decrease in, or maintenance of, employees or positions. (See 52 FLRA 1024, 1034-35)
  • “Types” means distinguishable classes, kinds, groups or categories of employees or positions. (See 52 FLRA 1024, 1029-31)
  • “Grades” are classes of positions within specified ranges or rates of pay (See 5 C.F.R. section 511.101(d) )
  • “Employees” are individuals employed in an agency (See section 7103(a)(2)(A))
  • “Positions” refers to the duties and responsibilities assigned to and performed by employees (See 5 C.F.R. section 511.101(e))
  • “Organizational Subdivision” refers to an agency component. See 54 FLRA 1302, 1306
  • “Work Project” means a particular job or task. (See 52 FLRA 1024, 1032)
  • “Tour of Duty” refers to the hours of an employee’s workday or workweek. (See 51 FLRA 386, 397)

The phrase “Numbers, Types, and Grades” in section 7106(b)(1) is generally defined as staffing patterns or allocation of staff for the purpose of an agency’s organization and the accomplishment of its work. (See 52 FLRA 1024, 1029-31)

Intended Consequences?

Based on the above, if permissive bargaining becomes mandatory, Agencies will likely have to bargain to agreement or impasse on the following proposals, for example,

  • Customs and Border Patrol will have no less than 200 inspectors assigned to any port of entry into the United States at ant time.
  • The ratio of correction officers on duty to inmates shall not fall below 1 to 5.
  • Whenever a crane is operated on the premises, an operator, an apprentice operator, an oiler, a safety specialist and at lease four riggers will be present at the immediate location of the job.
  • A National Transportation Safety Board Go Team shall include an investigator in charge at a grade no lower than GS-15 and committee chairpersons at grades no lower than GS-14 regardless of other staff assigned to the team.
  • The number of contract personnel shall not exceed the number of Federal employees assigned to any organization, work project or tour of duty.

I wonder how the above will be balanced in light of the President’s promise to review and, if no longer needed, eliminate Federal programs.

Technology, Methods and Means of Performing Work

Again, OPM defines the following:

  1. The proposal must concern a method or means. “Method” refers to the way in which an agency performs its work. “Means” is any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for accomplishing or furthering the performance of its work.
  2. It must be shown that: a) there is a direct an integral relationship between the particular methods or means the agency has chosen and the accomplishment of the agency’s mission; and b) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted.

(See, for example, 53 FLRA 1435, 1437-38)

There is no definition of technology in the case law, so I though Merriam Webster might offer one we could use. It offered three:

1a: the practical application of knowledge especially in a particular area : engineering technology>

b: a capability given by the practical application of knowledge technology

2: a manner of accomplishing a task especially using technical processes, methods, or knowledge technologies for information storage

3: the specialized aspects of a particular field of endeavor

“technology.” Merriam-Webster Online Dictionary. 2009.

Intended Consequences?

So might the following proposals become negotiable as methods or means?

  • The preferred PDA in the Department of Energy shall be a Palm Treo 755W
  • All vehicles purchased for use by bargaining unit employees shall have an automatic transmission, a state of the art GPS device and a Northstar-type emergency tracking/response system.
  • Employees may choose the software to be used to accomplish word processing, email, spreadsheet and other personal desktop functions.
  • Employees shall be given the option of using any operating system that will run on their desktop and laptop computer.
  • Tools issued shall, as a minimum, meet the quality standards set by the Milwaukee Corporation for its powered and unpowered equipment.

The FLRA versus the Panel

I suspect that an executive order requiring bargaining permissive topics in our current environment will move the debate from negotiability which is heard by the Federal Labor Relations Authority to relative merits heard by the Federal Service Impasses Panel. In other words, few career minded Agency representatives would take on the President directly. Instead they will make arguments before the Panel as to why they shouldn’t have to agree to the language proposed.

The problem with this is that it shifts all that full employment from attorneys in a familiar advocacy setting to managers and labor relations types who must argue the pros and cons. Best get the kids to college soon, counselors. But, that’s OK, with the Employee Free Choice Act coming to your local Wal-Mart, there will be plenty of work for you in the private sector.

Mr. President, if any of this is a change, please tell me how so.

Whether you agree or disagree with any of the above, please blame it on me and me alone and not on anyone who I might from time to time consort with.

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.