FLRA’s B(1) Pilot Training Course Materials: Is Permissive Bargaining Now Mandatory?

The author requested and received FLRA’s training materials used to train participants in pilot programs in which parties will bargain agency permissive topics. These pilots dramatically expand union bargaining rights. It’s unclear what authorizes union representatives’ official time for this training or authorizes FLRA to train the representatives of a non-governmental entity for free. You decide.

I read in the notes of the Federal Labor Relations Authority’s Town Hall meeting that the Agency’s staff was conducting training for participants in the pilot programs called for under Executive Order 13522.

These pilots involve Agencies and unions bargaining over matters which Federal labor law says are only negotiable at the election of the Agency (5 USC §7106 (B)(1)). So I requested and got the training materials from the Authority.

The class includes slides, exercises, and a case outline related to the Authority’s past B(1) decisions.

As I read through the course material, a couple of issues came to mind. First, what advice is the FLRA giving parties involved in the pilots on their statutory obligations versus Executive Order requirements and second, who’s paying for all this and under what authority?

FLRA’s B(1) Advice

Slide 27 in the presentation is titled 5 U.S.C. §7106(b)(1) Matters Under Executive Order 13522. It has two bullet points:

  • No obligation to bargain §7106(b)(1) matters
    • If you do, and reach agreement, it is enforceable for the life of agreement
  • Executive Order does not modify principles regarding §7106(b)(1) under the Statute

Slide 28 is titled 5 U.S.C. §7106(b)(1) Matters Pilots Under Executive Order 13522 and has four bullet points:

  • Bargaining over some or all of the subjects in §7106(b)(1)
  • Must waive any objection to participating in impasse procedures set forth in 5 U.S.C. §7119  that is based on the subjects being permissive
  • Results evaluated
  • Council recommends next steps with respect to agency bargaining over §7106(b)(1) matters

Executive Order 13522 has a Section 5 titled General Provisions (Note Highlighted Provisions):

(a) Nothing in this order shall abrogate any collective bargaining agreements in effect on the date of this order.

(b) Nothing in this order shall be construed to limit, preclude, or prohibit any head of an executive department or agency from electing to negotiate over any or all of the subjects set forth in 5 U.S.C. 7106(b)(1) in any negotiation.

(c) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(d) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(e) This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any other right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

So, am I misreading this or does slide 27 contradict slide 28? If an Agency involved in a pilot decides to only bargain a single B(1) matter or proposal, is that acceptable or enforceable? Suppose a pilot Agency decides to pull the plug and, at the time of submission to the Panel, notifies the union it will not bargain an issue. Would the union have cause for an unfair labor practice and would FLRA enforce the order or agreement to participate in the pilot regardless of section 5(e)? Now I know the Agency politicals would likely descend upon any such sinner like an avenging angel so I guess we know the answer. It is a political program applied to a civil service law. Perhaps our new congressmen might find all this an interesting turn of events and that leads me to my next questions.

Funding the Expansion of Union Rights

There is no question that bargaining over B(1) matters involves direct costs to the Agencies that those framing the statute clearly meant to be bargained at the election of the Agencies and relating to the collective bargaining process goals not by political fiat.  I believe a new congress may, in these tough economic times, ask why the Federal government’s neutral labor relations governing body is spending appropriated funds to expand union bargaining rights and how this serves the public interest. We’ll see.

Perhaps I am alone in seeing the irony of Federal Agencies permitting substantial official time to train union officials on how to get more from those same Agencies. Of course, I’m sure that the National Council’s metrics will absolutely prove that it’s better and cheaper to let the unions bargain over everything. After all, OPM has decided that its pilot will not be limited in scope but cover any and all decisions. What do you want to bet that any report shows success? Unless these folks in DC are asleep, Tuesday proved that America is very upset by craziness like this inside the beltway.

Get it done by the next appropriation cycle folks or you may find that funds for this leap into lunacy may dry up.

As always, these opinions are mine 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.