Bargaining on Permissive Topics: Practical Considerations for Negotiators

However the political winds blow, negotiators representing a Federal Agency have the responsibility to advance the Agency’s interests at the bargaining table. The author offers some thoughts for those in Agencies opting into the B(1) Pilot or drawn into such optional bargaining by political leadership.

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:

  • How many people will work in an organizational unit, on a tour of duty or on a work project?
  • What types of jobs will make up an organizational unit, a tour of duty or a work project?
  • What grades are needed to staff an organizational unit, a tour of duty or a work project?
  • What technology will be used in the accomplishment of an Agency’s work?
  • What methods will be used in the accomplishment of an Agency’s work?
  • What means will be used in the accomplishment of an Agency’s work?
  • What all of the above terms mean isn’t easily determined. OPM’s website has a glossary providing definitions of the B(1) issues as follows (edited slightly for clarity, not content):

    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,:

  • The bargaining may only address bargaining unit employee working conditions and there’s an entire FLRA test to be met if it doesn’t (Vitally Effects).
  • The overall number of employees in an agency is not on the table.
  • The assignment of work is not on the table.
  • The content of critical elements and performance standards of employees are not on the table.
  • The classification and grade of a position are not on the table.
  • The Federal Travel and Federal Acquisition Regulations are still required to be followed.
  • Merit Systems Principles and OPM regulations on filling jobs and whatever are still required to be followed.
  • 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.

  • Identify your power player(s) and where your marching orders come from.
  • Identify the power player’s expectations.
  • Find out who in the organization cares about what & why.
  • Decide whether and why you should care about what they care about.
  • Determine your budget, time restraints, resources, etc.
  • Figure out the union’s expectations.
  • If ground rules are an issue, have you considered alternatives to handling them? (Team, Process, etc.)
  • How will you open negotiations?
  • Who has leverage? On what?
  • What will it take to conclude negotiations?
  • 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:

  • Figure out the exact issues for both the Agency and the union.
  • Determine how the issue plays out i.e., its history at home & elsewhere.
  • Identify, if possible, how the current situation came about.
  • Research how the issue played out both in negotiability before FLRA and impasse resolution before the Panel.
  • Make sure clear goals are identified.
  • Anticipate the price in both money and in terms of impact of an expected proposal, scheme or suggestion.
  • Assess the relative value of various components of the issue at the table.
  • Estimate who has the leverage and why.
  • Determine a range or scope of acceptable options, if any.
  • Work up language that’s in your interest.
  •  “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.


    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.