Retired General Colin Powell said, “There are no secrets to success. It is the result of preparation, hard work, and learning from failure.”
Agency face many challenges in federal sector bargaining. The American federation of Government Employees has an over a couple of hundred page model contract it attempts to foist on Agencies. I’m sure the same is true of other Federal unions as well. A union’s only real responsibility in bargaining is to decide what it and sometimes its members want and press the Agency to give that. The burden of good government and smart policy is on an Agency. Involved federal “neutral” Agencies such as the Federal Labor Relations Authority and the Federal Service Impasse Panel hold Agencies to higher standards than they do unions in terms of offered facts, arguments and needs. You can be sure the union will come to the table with an agenda, successful Agency representatives better have an agenda of their own. Let’s look at developing that agenda.
Serious bargaining preparation is neither fast nor simple. As with any substantial effort, it requires application of a planning framework resulting in specific goals. It’s possible to get agreement on a contract without outside involvement but you shouldn’t plan on it. Smart bargainers prepare their proposals to face challenges from the parties they face. So where do you start? If you’re facing a renegotiation of an existing agreement because you’re unhappy with it or you think the union wants changes, the following framework should work for you.
Step One: Address any legal issues
A variety of causes contribute to legal problems with existing contract language, among them:
- The actual black letter law may have changed or, more likely, new case law has emerged affecting the enforceability or negotiability of a subject or specific clause.
- Prior Agency negotiators didn’t know the law, didn’t understand the law, or didn’t care and allowed bad language to be negotiated.
- Government wide regulation has changed or issued since the last bargaining and trumps existing language.
- Management agreed to an “appropriate arrangement” that ain’t appropriate no more.
- “Permissive language” (see 5 U.S. Code 7106 (B)(1)) got in and the gency no longer wants to agree to it.
Step Two: Identify What Has Changed Since the Agreement Was Signed
A negotiated agreement should reflect present reality. Old language may not adequately address new challenges. Issues to address include:
- Agency policy changes departing from or inconsistent with contract terms.
- Mission or operational changes the expiring contract doesn’t consider
- Have agency budget issues (more or less) stressed the contract’s usefulness or relationship to reality?
- Staffing levels
- Organizational shifts
- Have programs such as telework, AWS/CWS, or others rendered old approaches obsolete.
- Are work hours and overtime provisions up to date?
Step Three: What Worked/What Didn’t?
Lots of factors influence what gets into a labor agreement. No one knows for sure, when bargaining, how the agreed on procedures and processes will stand up to hard use. Some issues to look out for:
- Are supervisors and employees confused about what a particular clause means or how it works?
- Has language interfered with delegation within management or uncertainty about who is responsible for what?
- Do institutional clauses such as official time reporting or seeking permission to represent properly address manager concerns?
- Are there problems processing grievances?
- Is arbitration language addressing actual issues that arise successfully?
Step Four: What’s Coming Up?
If it’s feasible, contract negotiations can ease implementation of upcoming big changes or in areas that change all the time. Agency representatives should keep focused on the D.C. Circuit’s “Covered By” doctrine in this planning process. Some of the critical issues related to this idea are:
- Anticipated reorganizations and/or downsizing. Are reassignments, RIFs, transfers of function, furloughs and the like addressed in the agreement?
- If you’re in DC or in an agency that likes to play “musical chairs” or musical offices regularly, you might want language on space moves incorporated.
Step Five: What is Essential or Helpful to Get Keep or Avoid?
- Could I&I bargaining go more smoothly with language changes?
- Is it time to incorporate, kill or modify memoranda of understanding negotiated during the life of the agreement?
- Look at every article with this in mind.
Step Six: Technical Issues
- Has the unit changed in any way?
- Is dues withholding current?
- Is the union’s structure/affiliation accurately reflected?
Step Seven: Applying the Impasses Panel’s Criteria
The Panel sometimes hints at but frequently makes clear its criteria for choosing one piece of language over another. Historically, the Panel has sed the following tiebreakers:
- If you’re proposing something new or a change to the existing status quo, you bear the burden of establishing the “demonstrated need” for your particular language over theirs.
- If other Agencies or other contracts in your agency involve close parallels, the Panel applies a comparability test against the one claiming there needs to be a difference, i.e., you need something different, prove it.
- The Panel will entertain claims that language is cumbersome or difficult to operate, creates administrative burdens or is overly restrictive.
- Direct costs and indirect costs are only persuasive arguments if a funding shortfall is demonstrated.
- The adverse impact of language on the staffing or structure of the organization may sway the Panel.
- Negative impact on operations is a convincing claim if you can prove it.
In other words, you can argue what you like but need to support the argument.
Before Agency labor relations staffs were decimated by politics, Human Resources Offices in coordination with Counsel did the above as a standard practice. It’s a critical function that these folks should be tasked to do. The day before you start negotiations isn’t the time to start. I do a fair amount of this kind of work but would like to see Agencies get back in the groove of doing this automatically six months before an agreement expires.
If you see an opinion in this article, I’ll take responsibility for it.