In the Federal sector, bargaining an issue generally starts with an identification of your interests; an analysis of the union’s proposals or claimed interests; and research addressing such things as the need to change the status quo and what others are doing who share the same circumstances.
Agencies normally start with the premise that its current way of doing a thing is the result of a fair number of influences, many of which are non-discretionary. After all, everything done in the government is driven or authorized by laws and regulations and the opinions interpreting them.
A number of years ago, I bought an old house on the Chesapeake Bay in Norfolk, VA. No, I wasn’t rich. The place wasn’t in the most desirable neighborhood and needed much work. But I was young and foolish and took it on because it had a great view. Between the house and the beach was a badly dilapidated garage that faced north. At the time, an older, and as you’ll see wiser, fellow told me I shouldn’t knock down the garage until I found out why previous owners hadn’t. I knocked it down anyway and that winter had a number of northeasters which coated the now exposed north face of the house with anywhere from a ¼ to a 1 inch sheet of ice. It taught me a big lesson.
The First and Most Important Rule
It should be obvious then that I think the first rule of considering a change is figuring out why the people who set something up did so. It’s not always easy or convenient to make such discoveries as people move on and memories fade. When it comes to B(1) issues, the Congress that enabled Federal sector bargaining under law was obviously concerned about the issue since they left it up to the Agency’s discretion. (Editor’s Note: Permissive bargaining topics are subjects that, under the federal labor relations statute, an agency does not have to bargain on with a union that represents federal employees. That is why they are called “permissive topics.” (B)(1) refers to the section of the labor relations statute that outlines the permissive bargaining topics. See Bargaining in the Permissive Area: What’s All the Fuss About?)
What is B(1) When You Really Get Down to It?
B(1) addresses six basic issues:
STAFFING PATTERNS. A short-hand expression used to refer to §7106(b)(1)’s long-winded reference to “the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty[.]” Under the statute, agencies can elect not to bargain on such matters.
TECHNOLOGY includes not only obvious equipment–e.g., telephones respirators for employees with beards computer terminals two-way radios, drug testing equipment such as gas chromatography/mass spectrometry devices calculators but also textbooks where it can be shown that the technology is to be used by employees in the performance of their official duties. (Textbooks are a part of the technology that the Department of Defense Dependent’s School uses to perform its educational function.) Providing the union with telephones, by contrast, would not deal with technology because the union would not be using the telephones for the conduct of agency business. Similarly, a requirement that the agency provide secure smoking shelters does not deal with a § 7106(b)(1) matter where the agency couldn’t establish a connection between the shelters and the agency’s performance of its work. See, also, where FLRA held that proposals requiring the provision of showers and lockers did not deal with technology within the meaning of § 7106(b)(1).
METHODS AND MEANS of performing work. Along with Staffing Patterns and Technology, a § 7106(b)(1) exception to management’s § 7106(a) rights. FLRA construes the term “method” to refer to the way in which an agency performs its work. The term “means” refers to “any instrumentality, including the agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work.” In 56 FLRA No. 10, FLRA found 9 proposals dealing with methods and means to be mandatorily negotiable 7106(b)(3) appropriate arrangements. In 55 FLRA No. 73, the Authority said the following: “Proposals concerning the number and designation of rating levels do not concern how an agency performs its work or what an agency uses to accomplish its work. Rather, such proposals concern how an agency evaluates the manner in which its employees perform the work to which they have been assigned. The Authority has consistently held that an agency’s determinations as to performance standards and rating levels concern the work objectives for employees. . . . An agency’s determination of the methods and means of performing work, on the other hand, concerns how employees will do their work, and what they will use, to accomplish those objectives.” In 54 FLRA No. 136, the Authority held that a provision dealing with contracting out did not deal with methods and means because contracting out deals with who will do the agency’s work, not with the way in which it will be done.
Well, that cleared things up, didn’t it? I suspect that there is much more to learn as B(1) bargaining goes forward.
What Doesn’t Change in B(1) Bargaining?
B(1) doesn’t make the rest of the law go away. For example, and this is NOT an inclusive list,:
Remember that Inspectors General are lurking about looking at such piddling issues as statutory and regulatory compliance. Also remember that in most bargaining units there are four or more non – dues paying employees for every union member. Each of them has the IG Hotline phone number taped to their office phone.
Steps to Preparing for B(1) Bargaining (MACRO)
The following apply to B(1) as well as to all bargaining but bear constant attention and review as things change. These are Macro (big picture) concerns but that doesn&
#8217;t render them less important or less practical.
Steps to Preparing for B(1) Bargaining (MICRO)
Once you’ve decided strategy, it’s time to get down to the grunt work of preparation. If, by some chance, this is your first bargaining on the Agency’s behalf, remember that only a fool proceeds if he doesn’t know what he doesn’t know. Get advice. Listen to all of it.
As the Rev. Dr. Martin Luther King, Jr. said, “Nothing in the world is more dangerous than a sincere ignorance and conscientious stupidity.”
The preparation agenda should include, as a minimum:
“I do not hold that we should rearm in order to fight. I hold that we should rearm in order to parley.” – Sir Winston Churchill
‘Nuf said for now. I’m working on a B(1) scenario article that will look at how an issue may play out from start to finish. As always, any opinion is mine alone.
