Visit FedSmith.com to subscribe to our free email list!

Is Keeping Bargaining History Notes Worth the Effort?

Why should bargaining notes be used in federal labor relations?

Everyone who has ever negotiated a collective bargaining agreement has heard of the concept of bargaining history.

What is the Purpose of Bargaining History?

Simply put, bargaining history is the history of what took place at the bargaining table during negotiations. Its normal use is to assist the parties to the collective bargaining agreement in supporting their interpretation of the agreement.

The parties will assert that what’s in the bargaining history notes is an accurate portrayal of the meaning of the agreement as discussed at the bargaining table. The notes signify what was actually said or what was understood to be the meaning of various provisions of the agreement.

One of the primary uses of bargaining history notes is to convince an arbitrator, who is charged with interpreting an agreement, what the parties meant by the language in dispute. If a party to the agreement has bargaining history notes, they will use them to try to convince the arbitrator that their notes are an accurate presentation of what the parties understood to be the meaning of the contract.

Elkouri and Elkouri, which is considered by many as the bible on how arbitration works, provides:

It has become common place in arbitration hearings for parties to introduce contemporary notes, or written statements in order to refresh a witness’s recollection, impeach a witness’s credibility, or use as stand-alone evidence to prove or disapprove certain facts. Even when the author of written material is not available to testify, arbitrators have allowed these contemporaneous notes into evidence over hearsay objections.

Why Have Bargaining History Notes?

As can be seen, contemporaneous notes can be valuable in litigation over the meaning of a contract provision. 

Absent notes or testimony, as to what took place at the bargaining table, it is left to an arbitrator to decide what a contract provision means.

There are rules of interpretation commonly used by arbitrators which may provide some understanding of how an arbitrator interprets an agreement. However, even with these rules, the strongest evidence of what actually was meant by an agreement is what the parties actually said and agreed was intended by the language. 

I have been in many contract negotiations where no notes were kept by either side, or if notes were taken, they were haphazard at best. The notetaker is often not provided with an understanding of what their role really is and how they are supposed to go about doing it.

It is not unusual for contract negotiations in the federal sector to take a number of years and when a contract is finally completed both sides disagree as to what they agreed to, even before the contract is implemented.

In one situation I was involved in, it took quite a number of lengthy sessions to come to agreement on what actually had already been agreed to, so the parties could conduct jointly agreed to joint training. If the parties had kept notes it would have been a much easier process. 

Types of Bargaining Notes

There are basically two kinds of bargaining history notes: notes kept separately by each side or jointly kept notes.

A standard provision in most collective bargaining agreement ground rules is the right of each side to have a notetaker or an agreement for a joint notetaker. Some agreements have both a joint notetaker and individual team notetakers.

When each side has their own notetaker it is up to that side to tell their notetaker what is expected of them. If there is to be a joint notetaker the ground rules will describe the role and responsibilities of the joint notetaker.

Whether the notetaker is a member of the bargaining team and thus counts against any agreed upon number of bargaining team members allowed to each side or is an additional person at the table not counting as a bargaining team member is often covered by the ground rules. Whether the notetaker is entitled to official time is also a subject to be covered by the ground rules. Neither side can deny the other side the right to take notes.

Joint notes as to the meaning of a contract are used by some parties. In my experience, they are more frequently used in interest-based bargaining but are also used for traditional bargaining.

The joint notetaker is selected by both parties and acts as a neutral notetaker. If a non-employee is selected to be the notetaker the parties will provide in the ground rules who is to pay any fees involved. The joint notetaker only makes notes of jointly agreed upon language. These notes are typically placed at the end of an article or in an appendix to the contract. 

Bargaining history notes are not intended to be a verbatim transcript of everything said at the bargaining table. In fact, most parties do not agree to tape recording bargaining sessions.

Most notetakers are not court stenographers who are capable of transcribing everything that is said. Attempts to take verbatim notes often end in frustration and a poor product.

The notes should be about the meaning of important sections of the contract. As an example, much of what is contained in federal sector contracts relates to standards to be observed by management in taking certain actions or responding to employee requests. If the parties negotiated a provision which said “normally seniority” will be used in determining who receives holiday time off.

The question is what is the norm. An employee with high seniority may contest being denied holiday leave because the denial violated the norm in the workplace. Any discussion or agreement during bargaining as to what the norm would be should be the subject of bargaining history notes. An explanation of the parameters of the ‘norm’ would be helpful in arbitration to explaining the intent of the parties when they agreed to this provision.

Sometimes parties leave certain provisions vague or lacking in specificity. This is often purposeful because it’s the only way to get to an agreement. They then pay the price in arbitration to get clarity when they failed to arrive at it at the bargaining table. Any discussion of these vague provisions will be of help in interpreting the contract when in arbitration. These discussions should be in the bargaining history. 

If a reasonableness standard is used in a provision, the parties may not be capable of coming to a specific definition of what is reasonable. However, they may be able to agree on some of the attributes of reasonableness which may help define whether an action is reasonable or not. These attributes should be in the bargaining notes.

The Note Taking Process

At the end of each day of bargaining, a good practice is for the chief negotiator to go over that day’s bargaining history notes with the notetaker. Language can be cleaned up to assure accuracy or more notes can be inserted if left out by the notetaker.

While this does not always have to be done on a daily basis, it should be done as close in time as possible to the bargaining to assure the accuracy of the notes and their contemporaneous character.

Once reviewed and agreed upon, it is good practice for both the chief negotiator and the notetaker to sign off and to date the notes. Similarly, with joint notes the two chief negotiators should jointly review the notes and make any amendments necessary and then sign off and date the notes.

The process of taking notes is hard work. It also makes it difficult for the notetaker to fully participate in the bargaining because so much attention must be paid to what is being said at the bargaining table and then reliably recording it.

To do a good job the notetaker must pay attention to every word that is said and analyze its import to being able to help in interpreting the contract. The chief negotiator and the notetaker must work closely together to ensure the notetaker records what is important during the bargaining. It has to be a team effort to make sure all important information has been put into the notes. 

This article started with the question: Is Keeping Bargaining History Notes Worth the Effort?

In my mind the answer is absolutely.

A contract provision may not be subject to interpretation for many years after the contract goes into effect. Many of the bargainers may no longer be working for the Agency or be Union Representatives, much less have any recall of what was said at the bargaining table. Notes can replace those missing bargainers and lack of recall.

Then again, if there are no notes anyone can argue anything they want as to the meaning of the contract whether it is accurate as to what was understood or not. Maybe that’s the reason some parties don’t have note takers. 

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.