Will There Be a Return to Pre-Decisional Involvement in a New Administration?

What is pre-decisional involvement and how can it be used successfully in federal labor relations?

As is expected in a new Biden Administration, collaborative labor relations will again be a major approach to federal sector labor relations.

The Clinton Partnership Executive Order and Obama Labor Management Forums Executive Order relied on pre-decisional involvement (PDI) as a major process to foster collaborative labor management relations. It can be expected that some form of PDI will be a part of a Biden Executive Order on federal labor relations.

What is PDI?

PDI is the voluntary involvement of the union prior to a final decision being made on a matter by management. It is not statutorily required notice before a change in working conditions nor does it meet the statutory requirements for collective bargaining. It is a collaborative procedure mutually agreed upon by union and management.

There is no statutory requirement that management or the union engage in PDI. Failing to engage in PDI is not an unfair labor practice. However, a failure to engage in PDI may be grievable, if PDI is made part of a collective bargaining agreement.

Requirements for Having Successful PDI

Having worked with many labor and management groups to develop internal PDI processes, I have found the following to be important for a successful PDI process:

1. Must Understand What PDI Is

The above discussion explains the concept of PDI. The participants in the PDI process must have a clear understanding of what PDI is and how it affects labor relations.

PDI is not co-management. It establishes a process for collaborative interest-based problem-solving for work place problems. It does not take the place of management’s right and responsibility to manage the work place.

It affords the union an opportunity to provide input into management decision making at a time in the decision-making process when it can be most useful. It doesn’t waive the union’s right to bargain nor does it waive management’s rights.

2. Must Agree on When PDI is Used

There must be an understanding of when PDI will be used. Contrary to the impressions of some, PDI is not a process that works well for all work place issues.

Some issues are best left to traditional collective bargaining processes. Having an agreement on when PDI will be used prevents misunderstandings and loss of faith in the process.

Keep in mind that initially trying to do all things using PDI is not a successful approach. The parties should first gain familiarity and confidence in the process. 

3. Create Criteria for When PDI is Used

PDI should be used when management and union have a level of trust justifying open and frequent communication. Collaborative labor relations place a heavy reliance on trust and communication between the parties. The parties should not plunge head first into PDI before they have tackled relationship building to assure that they have the foundation to act collaboratively. The parties should agree on what types of issues will be submitted to PDI. The best approach is to agree on criteria for the types of issues that will be subject to PDI.

4. Must Have A Formalized Process

PDI is a form of dispute resolution. As with all dispute resolution processes, there needs to be a clearly understood process for how the dispute system works. Such a process would include answering such questions as: 

  • when the issue is identified how and when is notice given to the union, 
  • how is information provided to the union, when are meetings held, 
  • is interest-based bargaining used to assist in resolving the issue, 
  • if there is no resolution when do the parties revert to traditional collective bargaining and does any agreement end in a waiver of collective bargaining, and 
  • is the final agreement put in writing 

There may be more or fewer issues than those described above.

In any agreement on PDI processes, however, the lack of a formal process lessens the probability of successful use of PDI. Additionally, there must be ground rules for the use of PDI so each side clearly understands how it is going to work.

5. Must be clear expectations when union and management are involved in PDI

Both sides must have clear expectations on the value and use of PDI. It is not unusual that one side or the other has mistaken expectations about what happens when PDI is used.

Management may have an expectation that if PDI is successful there is no need for traditional collective bargaining. The union may believe that engaging in PDI means management cannot raise issues related to the legality of the agreement such as management rights.

It must be understood that when engaged in PDI neither side has waived any statutory rights. If an agreement is reached both sides must be clear on what that means to their statutory rights. 

What Does PDI Involve?

To be successful in using PDI each side must have a level of trust in the other side. This trust may not be for all things but is at least transactional for the issue subject to PDI.

Both sides must work on improving their relationship by increasing the communication which is essential to PDI. PDI works best with a high level of trust. PDI doesn’t work unless there is openness and a free exchange of information. The parties can start on simple issues and as trust increases, the significance and complexity of the issues subject to PDI can also increase. 

Often, the subjects that PDI deals with are issues that management has done considerable research on and has subject matter experts (SMEs) who have worked the issues. The union quite often does not have the same level of expertise as the management side. This requires educating the union on the subject matter which is subject to PDI. In collective bargaining the union learns about the subject matter through the collective bargaining process. To be effective in PDI the union needs more information up front, at the beginning of the process.

Both sides need to be educated on the interest-based problem-solving process. They may also need someone to facilitate their meetings until they internally develop their own competence in interest-base problem-solving.  

Barriers to PDI

The Law

One of the greatest barriers to PDI is the law.

As stated before, when using PDI, neither side has waived any rights they may have under the Federal Service Labor Management Relations Statute (Statute). Consequently, disputes can arise over whether something is negotiable. This can hang up the process. If both sides agree on a solution negotiability should not be an issue but if they can’t come to agreement using PDI, management has the right to assert its management rights. 

Lack of Trust

If trust is not present, or able to be gained through the process, the parties will quickly descend into traditional bargaining with bad feelings. 

Lack of Problem-Solving Skills

Both sides must have a good understanding of basic problem-solving skills. The more comfortable they are with problem solving the more productive the PDI process will be.

Lack of Patience with the Process

PDI can take time. Joint problem-solving can take longer than traditional bargaining. However, the results are often a better solution to the problem than would have been reached through traditional bargaining. It may take patience especially when the PDI process is first used but through experience it should become a more efficient process. 

Unrealistic Expectations

Both sides may have unrealistic expectations of the outcome of PDI. PDI does not eliminate management rights under the Statute nor does the union waive its right to bargain. Having unrealistic expectations can have a detrimental effect on the success of PDI.

Conclusion

While it is not known at this time whether PDI will be a part of any Executive Order President Biden issues on federal labor relations, based on the past two Democratic Administrations approaches to collaborative labor relations, it seems to be a safe bet that PDI will, in some manner, be a part of collaborative labor relations going forward.

About the Author

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email [email protected] or subscribe to JSA’s newsletter.

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