As mentioned in my initial article in this series, over the last 30 years, (b)(1) bargaining has been the center of more labor relations controversy than productivity. Some administrations created whole Executive Order compliance infrastructures, like the National Partnership Council and mandates for local labor-management committees, just to administer Executive Order requirements around bargaining (b)(1) permissive topics and, to a lesser extent, union pre-decisional involvement (PDI).
I may be in the minority, but while I saw the permissive bargaining mandate as wildly ineffective and inefficient, PDI, regardless of whether it concerned permissive or prohibited subjects of bargaining, in my view, made inroads towards making the government more efficient and, as a byproduct, improved the federal sector labor-management relations environment.
Any real discussion of permissive bargaining should start with the Statute and management’s rights under section 7106. The Statue provides:
(a) Subject to this chapter shall affect the authority of any management official of any agency—
(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and
(2) in accordance with applicable laws—
(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;
(C) with respect to filling positions, to make selections for appointments from—
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the agency mission during emergencies.
(b) Nothing in this section shall preclude any agency and any labor organization from negotiating—
(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;
(2) procedures which management officials of the agency will observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.
For most of us, we’ve always considered the 7106(a) rights to be the prohibited subjects of bargaining, with the 7106(b) rights (e.g., numbers, types, grades, etc.) the permissive subjects. Over the last 30 years, a lot of time and energy, in my opinion, has been wasted in the numerous Executive Orders and adjudicatory bodies addressing whether a subject was a (b)(1) topic or not, and if the various Executive Orders required bargaining on those topics (I won’t go into the creative writing exercises in the reports agencies had to compile, extolling the virtues and successes of permissive bargaining).
So, this is my theory. If you really look at the 7106(b) permissive subjects of bargaining, they’re nothing more than a derivative of the 7106(a) prohibited subjects of bargaining. For example, if management, under 7106(a)(2)(C) can make appointments from “any other appropriate source”, then, absent the twists and turns contrived over the years to create a difference, it would seem logical that the 7106(a) right should include the right to select to fill positions as a temporary or term appointment, which is included as a “type” in 7106(b), or part of management’s right to assign employees, which includes both initial hiring and post-hiring and duration of assignments, such as a temporary assignment.
Additionally, again in my view, the Statute created an artificial and illogical difference between management’s rights in 7106(a) and “numbers” of employees employed and the “numbers” in (b)(1) which addresses increases and decreases in an organizational subdivision. Other than attempting to create permissive topics because there are permissive topics in private-sector labor relations, there does not seem to be a substantive reason in the federal sector to dilute the (a)(1) right. To add to the unnecessary dilution of the (a)(1) right by the (b)(1) topics, it would also seem that when one discusses management’s right to determine its organization (how organizations will be divided into sections) that the right would include decisions regarding the number of employees needed in the section to perform the work.
In the private sector, under the National Labor Relations Act (29 U.S.C. sections 151 – 169) (Act), subjects of bargaining are divided into three categories: mandatory; permissive; and illegal. Mandatory subjects include conditions of employment such as rates of pay and wages (e.g., shift differentials, bonuses, pensions, health and welfare plans, meals and discounts, profit sharing, etc.), hours of work (e.g., daily overtime, weekly overtime, etc.), or other terms and conditions of employment (like seniority).
Permissive topics under the Act, like those under the Statute, are matters that the parties are free to bargain but have no obligation to do so. Permissive subjects of bargaining under the Act typically include items such as the definition of the bargaining unit, the inclusion of supervisors in the bargaining unit, internal union affairs, settlement of unfair labor practice charges, union label clauses, etc.
In reviewing how the National Labor Relations Board (Board) looks at permissive topics under the Act, I don’t see where the Act or Board attempts to dilute or segregate a party’s right by making it permissive. In fact, the permissive topics mentioned seem to be more akin to the non-(b)(1) permissive bargaining topics like recruitment procedures for supervisors.
My recommendation would be to amend the Statute and incorporate the (b)(1) subjects into management’s 7106(a)(1) rights. Other than eliminating the confusion, arguments, and litigation over (b)(1) permissive topics, there would be no impact on employee, union, or management rights. The exercise of all the management rights would still be subject to procedures and appropriate arrangements bargaining in accordance with 7106(b)(2) and (b)(3).
The elimination of (b)(1) bargaining would end the Thirty-Year War over permissive bargaining and could help the parties focus on effective and efficient bargaining that has a positive impact on employees’ issues and concerns and makes a real difference in agency operations.