Interest based bargaining (IBB) may actually work. It may work in some commercial negotiations where there are high stakes involved and the parties can’t afford not to come to an arrangement. It may work in a limited number of private sector labor negotiations where the company is in trouble and the absence of an agreement has grave consequences for both parties. It may even work in divorce settlements when both can lose big. It may also work in a public sector setting when the parties have plenty of time on their hands, the subjects of bargaining are relatively inconsequential and the political(s) driving the bus think they would benefit by making a higher level political happily compliant with an even higher ranking political who has never spent a nanosecond at a Federal Sector bargaining table.
IBB Really Sounds Good
How can anyone argue with a theory that that advances these principles:
- Reduce Conflict
- Build Consensus
- Focus on Exploring Parties’ Interests
- Identify Mutually Agreed Criteria for Problem Resolution
- Encourage Parties to Identify a Best Alternative to a Negotiated Agreement
One small problem is that, at least in the Federal Sector, IBB ignores the bargaining environment; the varying importance of issues; how operating government is managed; the national v. local union dynamic; local union politics; the nature and structure of collective bargaining agreements (CBAs); and how Federal “neutrals” work.
Challenges Facing Agency Chief Negotiators in IBB
Challenge: The Bargaining Environment
Federal sector bargaining does not center on negotiating CBAs. Almost all bargaining involves an Agency decision to change something. When it does, if the change affects employee working conditions, a bargaining obligation is created.
The union is notified and given an opportunity to offer proposals that relate to the change. This is called Impact and Implementation (I&I) bargaining.
There are hundreds of Federal Labor Relations Authority (FLRA) cases on I&I bargaining. It may be contentious. It is usually single issue. Union’s often see it as a profit opportunity or a chance to delay a change which it or some constituents don’t like. Frequently, the change involves the exercise of a management right and if the union wants an unrelated concession, it may use this chance to delay the process until the Agency either caves or moves the matter to the Federal Service Impasses Panel (FSIP). Probably a to be avoided option in the foreseeable future.
I&I bargaining and IBB are generally incompatible because one or both parties have one or more hard interests that don’t lend themselves to the softer IBB approach. The Federal Labor Management Relations Statute was written by people trying to use a private sector model that doesn’t comport to Federal sector realities. When you explain I&I bargaining to a private sector practitioner, they ask “why doesn’t the CBA address all that?” They also look at you like you’re crazy.
Challenge: Variance in the Importance of Issues and How Management Works
Agencies generally don’t consolidate I&I bargaining issues. This appears counterintuitive to outsiders. The reality is that there are differing mission and power centers in Agencies.
As both an Agency employee and contracted negotiator, I either asked or tried to scope out from who was I supposed to take my marching orders. I found that it varied not only by Agency, but by component, leadership, cost, impact, top-down pressure and many other factors.
In the military Agencies, I learned to ask who has the most bargaining unit employees, who will pay for the outcome, who cares, why do they care and related questions. For example, the Production Officer at a Navy Shipyard (mission) might care little for the effect of some agreement on a Public Works department (support).
In civilian Agencies, the chief or general counsel might weigh in solely because they might have to defend a decision at arbitration down the road.
There are literally thousands of these complexities out there. These managers are rarely concerned about seeking a consensus that’s warm and fuzzy or an exploration of a union’s interests. They want what they want and if they have the muscle, they expect to get it. I’ve been involved in Agency bargaining for 47 years and have seen no change in the above.
Challenge: Union Dynamics
Each of the headings in this article would warrant a book to fully explain. How Federal unions work, identify goals, and create priorities is a study in individuality.
National unions have specific goals that they try to get done through locals. The National Treasury Employees Union (NTEU) is very successful at this because for the last few decades it has been successful in getting more and more control over employee dues. In many recognitions, local unions must ask the national for the money to take a matter to arbitration. The American Federation of Government Employees (AFGE) has tried in recent years to consolidate bargaining units (with FLRA help) for the same purpose.
Whether a local or national union drives negotiations is very important as well as who within a local union is calling the shots. Each care about different things. Union politics can be absolutely Byzantine and trying to figure out who is driving the bus at the table or on an issue could stymie Machiavelli. The idea of mutually agreed criteria becomes a silly idea when a number of players of similar status are pushing their own agenda.
Challenge: CBAs, IBB and the Neutrals
While the norm for CBA duration pre-Trump was three years and will likely return to that, many CBAS have been bargained 4 or 5 times or more since the passage of the law 40+ years ago. Agencies hate bargaining CBAs in a union favorable climate as all they can do is lose by feeling they must make concessions at the table or face imposition by the FSIP.
Agencies rarely have any interest in reopening a CBA. For the next few years, Trump Era CBAs will be opened by the unions or perhaps by political leadership to return the pendulum to the status quo or perhaps again to seek a profit opportunity from those same politicals. The new FLRA Chair is committed to a return to the Pope Era so even negotiability issues are not likely to be tools for Agency leverage.
A critical point to remember if you are engaging in some form of IBB is that agreements in principle and contract terms are never the same thing. When you get down to specific terms, interests tend to fade and positions to emerge with lightning speed.
Leverage is the forbidden word to IBB theorists and proponents. The “can’t we all just get along” crowd rejects any possibility that any, not to say many of the “interests” of the Federal parties are incompatible.
I predict an explosion of IBB joint labor management IBB training courses. Union reps who engage in IBB won’t see many days at their PD duties, and what we’ve seen cycle at least twice will return for a third time. Say it again Santayana, “Those who cannot remember the past are condemned to repeat it.”
I admit that all the foregoing is opinion except my predictions, they are a certainty. Don’t forget, no one is responsible for them but me.
Never thought I’d quote Karl Marx but, “History repeats itself, first as tragedy, second as farce.”