Obama Executive Order Issues: What’s the Difference Between a Forum and a Negotiation?

As the use of Executive Order mandated Forums starts up, the author asks if Agencies are ready to face union demands to bypass the Federal labor law. While the Order says “to help identify problems and propose solutions to better serve the public and agency missions”, is this a code for expanding the scope of Federal bargaining? Read and decide.

Having been burnt by the unfulfilled promises of the Clinton administration, it appears Federal unions may have convinced the Obama players to go along with a substantial effort to bypass the Congress and expand the scope of bargaining.

Under Clinton, the catch had to do with enforcement of that administration’s partnership executive order. The Federal Labor Relations Authority (FLRA), charged with enforcing the Federal sector labor law, wouldn’t or couldn’t stretch to enforce the Clinton order and there were numerous cases reinforcing that point.

The Lessons of History

The Obama FLRA and the unions appear to have learned the lessons of history in this regard. If you take the unions at their word that they largely penned this order and FLRA leadership was involved in its editing, they together may have figured a way to achieve enforcement. Read on and decide for yourself.

Bargaining: the Law and the Order

Federal labor law at 5 USC 7114 (b), states ” the duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation…(5) if agreement is reached, to execute on the request of any party to the negotiation a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement.”

Obama EO 13522 § 3 provides: “…employees and their union representatives to have pre-decisional involvement in all workplace matters to the fullest extent practicable, without regard to whether those matters are negotiable subjects of bargaining under 5 U.S.C. 7106” and “make a good-faith attempt to resolve issues concerning proposed changes in conditions of employment, including those involving the subjects set forth in 5 U.S.C. 7106(b)(1), through discussions in its labor-management forums.”

Appropriate Arrangements

While the law specifically precludes managers from bargaining its rights away, it does provide in 5 USC 7106 (b) “Nothing in this section shall preclude any agency and any labor organization from negotiating …(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.” So whether the managers are consciously waiving a right or merely stating an agreement with their forum partners, the union can demand that any verbal agreement conflicting with the statutes management’s rights provision be reduced to writing as a “appropriate arrangement”

FLRA Enforcement

On its website, the FLRA provides “Guidance on Scope of Bargaining” issued during the Clinton years and stating “An agreement, for purposes of section 7114(b)(5) of the Statute, is one in which authorized representatives of the parties come to a meeting of the minds on the terms over which they have been bargaining.

In determining whether a party has fulfilled its bargaining obligation, the Authority considers the totality of the circumstances in a given case.” So let’s say that in a forum, while discussing an issue covered by the management rights provision of the law, a political or other executive agrees that the union’s idea or suggestion or proposal has merit, can the union demand it be reduced to writing? And, if the Agency demurs, can the union file an unfair labor practice alleging a violation of the statute? And if it so files, will the FLRA General Counsel investigate and prosecute its allegation?

I think the answer is you betcha! But you may differ, as after all, Forum partners would never consider such a tactic, right?

AFGE leadership has been heard to say it wants Memoranda of Understanding (legalese for binding agreements) to result from the forum’s deliberations. Yours truly, after reading FLRA cases for a number of years, can’t see the difference between a negotiation between union and management at an executive conference table and union and management at a bargaining table but then again, I’m just an another old guy in the way of right thinking.

Before I end this, it has been reported to me by a number of folks who attended a recent conference in D.C., that FLRA staff at the end of a presentation without question or apparent provocation, went into a “rant” (their word not mine) about Fedsmith being a “rag” and my articles not being worth reading. David Brinkley once said: “a successful person is one who can lay a firm foundation with the bricks that others throw at him or her.” To my friends at FLRA, keep them bricks in the air, folks, it helps to know you’re reading.

Regarding Fedsmith, there is no comparable, free or subscription, high end information service that addresses itself exclusively to Federal employee issues and does it so well. The New York Times, the Washington Post, the Wall Street Journal, the Boston Globe and many other papers have been called rags by better people. Shame on you, FLRA staffers.

As always, the above represent my views and mine alone.

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.