Collaboration or Co-Management: A Look at Section 2(c) of the Proposed Obama Executive Order on Labor Relations
The plain language of the proposed order requires Agencies to “allow employees and their union representatives pre-decisional involvement in all workplace matters”. This provision has some fairly staggering consequences if implemented. Pay very careful attention if you’re in operational management.
The problem with writing about government is its complexity and the difficulty of understanding how that complexity affects its day to day operations. The draft Obama Executive Order titled “Creating Labor-Management Forums to Improve the Delivery of Government Services” is a virtually perfect example of layering a complex level of obligations upon an already existing complex set of arrangements with a further layer of frustrating ambiguity tacked on.
The draft order states:
“2. The head of each agency that is subject to the provisions of chapter 71 of title 5, United States Code, or any other authority permitting employees of such agency to select an exclusive representative, shall: … (c) allow employees and their union representatives pre-decisional involvement on all workplace matters, without regard to whether those matters are negotiable subjects of bargaining under 5 U.S.C. § 7106, and provide adequate information on such matters expeditiously to union representatives where not prohibited by law.”
There are three critical concepts for operating management in this section.
What is meant by pre-decisional involvement?
What is the scope of all workplace matters without regard to whether those matters are negotiable subjects of bargaining under 5 U.S.C. § 7106?
What is the scope of the obligation to provide adequate information on such matters expeditiously?
We actually have a definition of this elusive concept from Bill Clinton’s appointed General Counsel of the Federal Labor Relations Authority, although why the labor law prosecutor got to write one, other than pure hubris, is a mystery to some. Since this same guy was on the Obama FLRA transition team, its meaning probably hasn’t changed. It goes as follows:
“… the basic principles which underlie pre-decisional involvement: the process begins early; the parties have common expectations; information is freely shared during the process and there is an understanding of confidentiality; the parties use interest-based problem solving; and the parties have a high degree of commitment to the process and to achieving their shared goals.”
July 15, 1997
Well, now you know and that knowledge becomes very important in assessing the next leg of Section 2 (c).
All Workplace Matters Without Regard to Whether Those Matters are Negotiable Subjects of Bargaining under 5 U.S.C. § 7106
Let’s look at what the Federal labor statute says that no manager may negotiate. 5 U.S.C. § 7106 says:
“(a) 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, obviously under this order, if implemented as written, all of the above are workplace matters subject to the pre-decisional involvement of employees and their representatives and the expedited provision of adequate information thereto. Worried yet?
Workplace matters may differ from organizational level to level but the draft Order doesn’t distinguish this in any way. It appears in another section to require such pre-decisional involvement at all levels. If the Order directs involvement at the national level, its scope is broad. If, as it appears to, it applies at the work level, its scope is simply amazing. So let’s look at what might be “workplace matters” to a first line supervisor. In addition to working 60% and up on personally performed mission work, supervisors engage in these “workplace matters“, they:
Set travel schedules
Make training decisions
Make leave decisions
Try to resolve employee problems
Propose or take discipline
This is not meant to be an inclusive list just one that addressed the “workplace matters” supervisors are involved with. The Order can’t mean that all or any of these are subject to pre-decisional involvement, can it? It appears to. You be the judge.
At higher organizational levels, many, many decisions involving the workplace are made. I have a few that I would like to know are or are not “workplace matters” carrying a pre-decisional discussion obligation. For example:
How the Agency develops regulations? (Mission)
Which version of the 2011 budget will go to OMB? (Budget)
Who will repot directly to who? (organization)
How many people will staff the Chicago Office? (# of employees)
What credentials will be issued employees? (Internal security practices)
Who will do what? (Assignment of work)
Who will pick up the trash? (Contracting)
Will we revisit every negotiability determination adverse to the union in the context of collaboration? You decide?
To Provide Adequate Information on Such Matters Expeditiously
In addition to providing not a clue as to what either “adequate” or “expeditiously” means, the draft Order uses the word “information“. The statute uses the word “data” and we have almost thirty years of case law up to and including the Supreme Court parsing its meaning. So will decisions hang out there if some union representative thinks he or she hasn’t gotten adequate information? Since FLRA’s precedents preclude its enforcement of an executive order, will we have arbitrators interpreting the Order?
Isaac Bashevis Singer said, “the wastebasket is a writer’s best friend.” Whoever penned the language of Section 2(c) should have paid attention to him. Instead of making government better, it will only make it slower. Instead of empowering employees, it will give much leverage to a lot of undeserving union representatives. This language won’t produce better labor relations either as it doesn’t recognize the legitimate roles of the parties.
Federal unions, not all but many, have not the expertise, experience or the talent it takes to run a government Agency. They are frequently accountable to less than 10% of the workforce (dues payers) and those are too often the disgruntled, the disappointed and the unhappy. I guess one can hope that there are some in the White House that do have some experience and actually want government to work better. Ya think?
As always, any opinion expressed is mine and mine alone.
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.