Before bargaining begins, the parties must have a clear understanding of how bargaining will be conducted.
The procedures that parties jointly agree upon for the conduct of negotiations are commonly called ground rules. Ground rules may be a stand-alone agreement that is negotiated before bargaining commences, they may be based on the practice of the parties on how negotiations are conducted, or they may be found in the parties’ collective bargaining agreement.
Ground rules are not required by the Statute in order to engage in collective bargaining; however, they are a mandatory subject of bargaining and must be bargained, if either side makes ground rules’ proposals. As with all bargaining in the federal sector, ground rules’ provisions must meet the requirements for negotiability under the Statute.
Which type of ground rules the parties use is based on the type of bargaining to be conducted. Midterm change bargaining is commonly done, based on the informal practice the parties have become accustomed to using for bargaining. Much more complicated change bargaining may have written ground rules; however, change bargaining often does not have formal written ground rules. Collective bargaining agreements may have a provision for mid-term bargaining that includes some rudimentary, or even extensive, ground rules for change bargaining. Term negotiations often have extensive, written ground rules.
The purpose of having ground rules is to establish a clearly understood process for how negotiations are to be conducted. While these may not be necessary for all change bargaining situations, it is my opinion that ground rules are essential for term negotiations because term negotiations often last a much longer period of time than change bargaining. Ground rules that are to be followed throughout the negotiations provide stability for the bargaining process.
In my book, A Guide to Successful Federal Sector Collective Bargaining, I provide 34 examples with proposed language for potential ground rules provisions. In this article I will highlight a few of the more common provisions:
1. The ground rules should establish chief negotiators for each side and their roles and responsibilities. The chief negotiators may be given some or all of the following responsibilities:
- Sign off on completed articles
- Be the sole spokesperson for their side
- Notify the other side of team member replacements
- Maintain internal discipline of his/her team
- Arrange schedule for bargaining
- Call caucuses
- Act as contact with upper management
An example of ground rules’ language for chief negotiators:
“Each party shall designate a chief negotiator, who will be recognized as the chief spokesperson for his or her team and responsible for initialing off on proposals or issues tentatively agreed to. The chief negotiator will determine the extent to which other team members participate at the table. The chief negotiator will also be responsible for calling caucuses.”
It should be noted that in a recent decision (AFGE Local 1547 and U.S. Department of the Air Force, 56 FSS/FSMC, Luke Air Force Base, Arizona 70 FLRA No. 62), the FLRA found that a union could not propose, in ground rules, that the agency name a chief negotiator to receive union proposals. Such a proposal interfered with management’s right to assign work. In essence, naming a chief negotiator position for management would become a permissive subject of bargaining.
While this is the case law, the question remains as to whether or not having no agreed upon contact point is of value for having an orderly process for negotiations. To remedy this FLRA decision, if management chooses not to have a chief negotiator position in a ground rules agreement, instead of naming a chief negotiator with these responsibilities, the parties can agree that management and the union, without naming specific individuals, would take on these agreed upon responsibilities.
2. The number of bargaining team members should be set forth in the ground rules. The number should be based on the size and different types of job functions performed by the bargaining unit employees. Too many members make it difficult to reach an agreement within the caucuses, and too few can lead to lack of support for the final agreement. Whatever number is chosen it should be an odd number, so as to allow for voting decisions in caucus that do not end up in tie votes.
Neither side has the right to pick the other side’s negotiators. However, in choosing team members, one should consider having team members that represent the largest organizational and/or functional segments of the bargaining unit. For example, if the bargaining unit is made up of three large organizations, those organizations should be represented at the bargaining table. If the bargaining unit has distinct functional responsibilities, these should be represented, and if there are General Schedule and wage grade employees in the bargaining unit, both of these types of employees should be represented. Having legal representation at the table can be beneficial when dealing with difficult legal issues. While the legal member’s opinions are not binding, they may be helpful in understanding potential legal obstacles when the CBA is subject to agency head review. Additionally, a representative from Human Resources may be helpful, since many of the issues to be bargained deal with personnel issues.
When looking for team members, consider roles and skills that may be important to be filled at the bargaining table. A team member who is skilled in doing research is invaluable. Someone who is a good writer may be helpful in crafting language. Often, one team member will be required to take notes during the bargaining sessions. This is an important skill to have on your team. Most importantly, a team member who is well-thought of in the workplace brings credibility to your side’s arguments.
Team members do not have to be experts on the Statute and collective bargaining processes. This will be handled by experts for both sides. Their expertise should instead be in how the work of the agency is done, and what makes sense in the workplace.
Importantly, team members must be willing to commit the time and effort that goes into negotiating a CBA. A term agreement may entail a multi-year commitment to complete the bargaining process.
An example of ground rules’ language for team members:
“Except as otherwise provided below, attendance at negotiations sessions will be limited to previously designated bargaining team members who shall not exceed five (5) in number per side, per session, exclusive of the Parties’ Chief Negotiators.”
Some agencies take the position that they have no obligation to bargain over the number of management negotiators. They assert that negotiating over the number of management bargainers would allow the union to propose assigning work to managers. Such an assignment of work would be a permissive subject of bargaining since managers would be outside the bargaining unit. However, there is nothing contrary to law if management agreed to how many bargainers both sides would have. Not all agencies agree that it is good for the bargaining process for the parties not to know, one session to the next, how many bargainers will be at the bargaining table.
More often the management position on numbers of bargainers is based on the number of union bargainers who can receive official time for bargaining. This will be discussed in the next section on official time. However, whether union bargainers receive official time does not make a union proposal on how many negotiators it will have non-negotiable. The two issues of official time and number of bargainers can be separate issues.
An agency has the right to assert that the union cannot propose how many negotiators management will have. By the same token management cannot propose how many negotiators the union will have. The only restriction on union negotiators is the amount of official time. Without an agreement on the number of negotiators both sides will have, and especially if the union is not concerned about having all its negotiators on official time, it can become a free for all with both sides having disproportionate numbers at any given bargaining session. The best solution is for both sides to jointly agree on the number of negotiators.
3. Official time for bargaining and preparation for bargaining is a major issue in ground rules’ negotiations. Under the Statute, Section 7131(a), unions are entitled to official time for collective bargaining for the same number of negotiators as management has. Even without ground rules, a union would be entitled to official time for the time spent at the table bargaining. Many agencies are now taking the position that a union is only entitled to official time for the number of negotiators management brings to the table on any given day. This position is supported by FLRA case law (NFFE Local 1437 and Army Armament Research and Development Center, Dover, NJ 18 FLRA 96). This decision does not preclude the union from negotiating for additional team members to receive official time under section 7131 (d) of the Statute. Section 7131(a) also does not preclude the union from proposing a greater number of negotiators than management intends to bring to the bargaining table. Usually, the parties come to agreement on an equal number of negotiators for each side, with the union negotiators all receiving official time.
The parties may negotiate for additional official time, for other purposes under Section 7131(d).
Section 7131(d) provides as follows:
(d) Except as provided in the preceding subsections of this section–
(1) Any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.
The most frequent purpose for official time under Section 7131(d) when involved in bargaining is for preparation time (prep time). This is the time used by the union to prepare for negotiations. This includes such things as preparing proposals and counterproposals. Prep time is usually for the period before bargaining begins to enable the union to prepare its initial proposals, as well as time during the negotiations to prepare before individual bargaining sessions. Prep time is necessary to enable the union to be able to come to the table and be ready to bargain. Unions that do not receive prep time often are unprepared to bargain, and then must use overly long caucuses, including day long caucuses, to prepare their proposals/counterproposals.
Examples of ground rules’ language for official time:
“Official time will be granted for all union bargaining team members, including the chief negotiator for all activities related to negotiating a successor MLA. The union agrees that negotiating team members will follow the ‘Official Time Requesting, Approval and Recording Procedures,’ as outlined in Article 30, Section 5 of the MLA.”
“The union will receive 800 hours of official time for preparation for negotiations. The union chief negotiator is responsible for the distribution of this official time to union team members to prepare for negotiations. Each union negotiator will receive eight hours of prep time to prepare in-between bargaining sessions in order to prepare for the next bargaining session.”
4. A computer, projector, and a screen for proposals are often used for the conduct of negotiations. The use of technology that allows the parties to see proposals, and to work on them together in real time, can greatly speed up negotiations. This technology is especially useful for interest-based bargaining, where brainstorming can be done on a screen that both parties are able to see. When I am called in, to mediate or facilitate bargaining, I insist on the use of a computer and projector. The transfer of pieces of paper is time-consuming and does not allow for the making of changes in real time, while with a screen all participants see the language at the same time.
An example of ground rules’ language for technology:
“The parties agree to the use of a computer, projector, and screen for presentation of proposals for negotiation at the bargaining table. Each side will prepare their proposals in Word format and provide a copy to the reporter responsible for typing contract language and making changes to proposals during bargaining.”
5. Caucuses are a necessary part of bargaining. Their frequency, length, and how they are called are often the subjects of negotiations of ground rules. The main purpose of caucuses is to consider proposals made by the other side, as well as to prepare counterproposals, as appropriate. There are many complaints of abuses by a caucus taking overly long periods of time. Most of these complaints are from management about the union taking overly long caucuses, which results in delays in coming to an agreement on ground rules. There is no question that, in certain negotiations, there are abuses of caucuses, especially when the union has not been able to negotiate sufficient prep time. However, it is often the case that the accusing party, once negotiations begin, is just as guilty of abusing caucuses. Caucuses should be the minimum amount of time necessary to discuss the topic and prepare language. There should be agreed upon restraints concerning the time used, but these must be reasonable to continue the bargaining process in an orderly fashion.
Examples of ground rules’ language for caucuses:
“Caucuses may be called as needed by either chief negotiator. Both parties will show good faith and limit the number and length of caucuses. Either party can call a recess in the negotiating sessions. The time for resuming negotiations after the recess will be mutually agreed upon by the chief negotiators.”
“Only chief negotiators will be authorized to call caucuses during negotiations. Caucuses will be limited to 15 minutes, unless a different period is mutually agreed upon by the chief negotiators.”
These five provisions are only a few of the many provisions which the parties can negotiate in a ground rules agreement. The ground rules the parties negotiate must fit their relationship and the bargaining unit. Nationwide bargaining units need terms which may be different than those necessary for negotiating an agreement for a small local bargaining unit. Poorly thought out or drafted ground rules may cause considerable harm to reaching a final agreement.