Bargaining Permissive Subjects: Will Your Agency Sign Up?

The author asks which Agencies will agree to bargaining permissive subjects if a pilot program results from an impending executive order. He suggests who might play and why as well as some risks involved to those who choose to play or are roped into doing so.


In the latest version of the prospective labor relations executive order, the White House, OMB, OPM and other such organizations with great Federal sector labor relations knowledge and experience are calling for an expansion of the scope of bargaining. The new version creating pilot programs replaces an earlier proposal to mandate bargaining in the permissive area government-wide. 
For those of you who may not know, permissive bargaining is part of the 1978 Federal labor law, which says (at 5 USC 7106(b)(1)),

"(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; (my emphasis)"

I’ve opined about permissive bargaining before. When conceived by the Civil Service Commission in drafting the 1978 law, it was intended to allow parties to bargain on safety issues otherwise off the table at that time. Its history during the Clinton administration absolutely proves the law of unintended consequences.
In any case, the latest draft of the proposed order has the following language:

"Section 1. (b)Responsibilities and Functions

The Council shall advise the President on matters involving labor-management relations in the executive branch. Its activities shall include:


(4) providing recommendations to the President for implementation of several pilot programs within the Executive branch, described in Section 3 of this order, for bargaining over subjects set forth in 5 U.S.C. § 7106(b)(1).


Sec. 3Negotiation over Permissive Subjects of Bargaining.


The Council shall recommend to the President a plan to establish and evaluate the impact of several pilot projects of specified duration in the Executive branch in which some Federal departments or agencies shall elect to bargain over some or all of the subjects set forth at 5 U.S.C. § 7106(b)(1), up through and including completion of the impasse procedures set forth at 5 U.S.C. § 7119. The plan shall include recommendations for evaluating such pilot projects on the basis, among other things, of their impacts on organizational performance, employee satisfaction, and labor relations of the affected departments or agencies. The plan shall also recommend methods for evaluating the effectiveness of dispute resolution procedures adopted and followed in the course of the pilot projects."

The above indicates that some Agencies will volunteer or be volunteered to step up to the (B)(1) plate.
Signing On to Bargain (B)(1)
So what brave management entity will be the first to volunteer? 
We probably can be sure OPM will sign on. After all, its director is the prospective co-chair of the soon to be National Council on Federal Labor Relations. And who better to lead the way? After all, the Office of Personnel Management makes the regulations on details and reassignments, classification and qualifications for most of the rest of government. 
Its director, formerly the head of the National Zoo, is uniquely placed to entertain the kind of bargaining (B)(1) will produce. Were I the president (thank heaven that’s not the case), I might ask him a simple question to test his Agency’s readiness for the pilot: what’s the difference between technology, methods and means? If he or anyone else at OPM has a clue, then send him to the (B)(1) table forthwith.
But Seriously Folks…
My guess is that some political "call on me! Mr. President!" type without the first idea of what is involved will offer to stick the Agency’s career staff in this as a political career building show. Of course, they won’t know what they are getting their Agency into but no matter, knowledge of the civil service and its rules is a great impediment to progress anyway, so let’s do it. 
Where (B)(1) will have its greatest effect is at the operational or working level. This is a place rarely viewed or understood from those seats of wisdom in Washington. What goes on in a Social Security customer contact office, a Navy shipyard, or other such place is too much "in the weeds" for those savvy political executives who will make this call.
Do the Right Thing, FSIP!
The prospective order calls for the pilot to see a matter through to the procedures of the Federal Service Impasses Panel (FSIP). The Obama Panel consists of seven distinguished neutrals. I am serious. They all have substantial experience in dispute resolution, most in the Federal government. The have it all over the Bush Panel. In fact there’s no comparison. 
These folks are among the best at what they’ve done. But they are the absolute wrong group to test this effort by themselves. George Washington’s will called for disputants to name their representative and those representatives then were obliged to select a person to decide the dispute. While the current Panel members have distinguished careers as neutrals, their experience either started as a neutral or with the unions. 
According to their resumes, not a single member has ever sat at a bargaining table as an Agency negotiator; none have managed unionized employees under the Federal labor law; none have appeared as an Agency representative in a grievance, unfair labor practice case or impasse proceeding; nor have any been responsible for managing the work this pilot would give them the authority to directly affect. 
You want credibility, also involve as players, people who have or had to get work done in the complex Federal workplace. The Impasses Panel, despite my expectation of its best efforts, doesn’t have the expertise this kind of endeavor needs by itself. I’m not suggesting using labor relations specialists for this but perhaps recruiting some current or retired senior executives who have worked their way up from a shop floor or field operation. I don’t even want to necessarily give them a vote merely a voice to be heard before the order is decided. Not doing so may break the Panel members promise to enforce a specific law which holds (At 5 USC 7101):

"(a) The Congress finds that—


(1) experience in both private and public employment indicates that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them— 


(A) safeguards the public interest,

(B) contributes to the effective conduct of public business, and

(C) facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment;" (My emphasis)

Do the right thing FSIP or risk losing your credibility with half of the labor relations community.
Who Should Sign On
There might be Agencies better suited than others to play in this arena. Those who bargain pay, for example. That would be a true test. (B)(1) in context with pay negotiations? Open the door. Let’s see what happens. But only in the context of pay negotiations, let’s play fair.
Agencies with dues payers above 80% might be another option, those Agencies where the unions have some credibility and accountability with the workforce and where playing matters.
Make some suggestions commenters.
As always, these are my opinions only and should not be construed as representing anyone else.


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.