HOW TO REACH TERM AGREEMENT QUICKLY
The single most pernicious, if not malignant, aspect of the American collective bargaining process is the ability of one party to drag out bargaining to drive up the other party’s costs and pain. Why? Because money and pain are the primary tools of bargaining power—and power is controls when one side does not have the facts, reason, or fairness its your side. If a union can drag out agency-initiated midterm bargaining for years over a proposed automation of certain work tasks or the reduction of certain stipends it can cost an agency millions—not to mention an enormous loss of executive-level influence. If an agency can drag out a union-proposed modification of the term agreement, it can delay for years enhancements to the performance awards, telework, and AWS programs, thereby undermining the perceived political clout of the elected union leaders. Consequently, it is vital that the potential victim of a delay strategy stay focused on the very tangible tactics that defeat it. This post addresses what a union can do step up the pace of term bargaining while a subsequent one will address tactics the employer can employ to move midterm bargaining along.
The place to start is with the ground rules for the term negotiations. Ideally, the union can convince the agency to accept a date-specific, timetable for beginning, conducting and concluding bargaining. This might include a deadline for exchanging opening proposals, pre-set dates to meet, and even a target date for concluding voluntary, unassisted bargaining. Experience has taught us that the best way to do this last thing is to agree in the ground rules to hire a private neutral to join the bargaining as of a certain date with the power to issue written recommended resolutions to any dispute s/he cannot lead the parties to resolve through facilitation and mediation by another date certain. Under law the parties can use a private neutral in lieu of FMCS, which too often is itself a considerable cause of delaying the end of bargaining. The Democratic-controlled FSIP also appears to have adopted a practice of accepting the private neutrals’ recommendations as its own decision absent the objecting party showing good cause as to why a change is needed. Here is an example of ground rules that are calendar driven. (Agencies are not likely to agree to surrender during ground rules their ability to drag out term bargaining unless they get something out of it. Typically, the union must agree to similarly surrender its delay tools in the mid-term bargaining process by adopting a similar calendar-driven bargaining schedule.)
If the ground rules do not defeat or at least limit the impact of deliberate delaying tactics, then the following can help the union break the logjam:
- Limit the number of proposed changes. The union can always “counter” if the agency opens articles that the union has not, e.g., if the union only opens five articles and the agency 10.
- Make liberal use of proposals for supplemental negotiations, midterm reopeners, and even pilots to address the matters the union does not have a critical need to solve promptly. The union also has the right to initiate mid-term bargaining over matters not covered-by an existing agreement. For example, if the union sees agency debt-collection practices causing a problem, nothing stops it from demanding bargaining over that topic at any time. There is no need to wait for the term contract to open to address topics not currently covered-by an agreement.
- Mirror the same tactics the agency uses at the term table in any midterm agency-initiated change bargaining going on simultaneously. In other words, take and hold hostage some mid-term issues the agency wants to see move quickly.
- Launch grievances aimed at solving the same problem the term proposals are aimed at. For example, if the current contract’s provision requires “Overtime be distributed equitably…,” but that clause is not solving the employees’ problems, the union cannot just demand changes at the term table, but also file a number of grievances aimed at fleshing out the power of the term “equitably.” It is risky, but if an arbitrator issues a ruling saying, for example, that the agency must reconcile OT assignments every month down to 15 minute increments, that might give the union added clout in the negotiations.
- Initiate some concerted activity. Although they cannot strike, federal employees have a statutory right to engage in most other forms of concerted activity, e.g. picketing, leafletting, refusals to participate in voluntary agency programs to boost the agency’s image in the community, etc.
- Steer allegations of non-negotiability to your advantage. When an agency mentions at the bargaining table that a particular proposal is non-negotiable, the union has three options that can affect the speed of concluding bargaining. First, it can ask for a formal declaration in writing, file a petition with FLRA and take the issue off the table. If the union is confident it will prevail, this is a convenient way of preserving the issue for a single-issue bargaining exchange after the rest of the term dispute is settled. Normally, single-issue bargaining favors the party that made the proposal. Second, the union can avoid asking for a formal declaration of non-negotiability and keep the matter on the term table so that the impasse neutral can address the legality and substance of the proposal. That should increase the agency’s risk. Third, it can do a little of both. If the proposal allegedly affects the substance of a management right, ask for a formal declaration on that to trigger the FLRA negotiability process, and replace it with a procedural demand proposal to bargain over in the interim. For example, assume the agency declared non-negotiable a proposal that “Selecting officials will use seniority when choosing between two equally qualified candidates for promotion.” Take the declaration and file with FLRA, but also replace it with a new proposal that begins with, “When the agency does not select the most senior candidate for promotion when candidates are equally qualified with the selectee, the agency will do the following 12 things before finalizing that selection.” A laborious procedural proposal can often encourage management to rethink a negotiability assertion originally designed to hold off any changes in a personnel matter.
- Don’t waste time drafting neat and pretty counter-proposals. It can take a day to redraft a complex performance appraisal article, even with modern word software. It is much easier to write out a description of the changes you offer to make.
- Don’t waste your breath by getting drawn into an hours-long argument, e.g., on the need for more official time, when the odds are low that the discussion will generate some agency movement. Nothing warms the heart of a delaying agency chief negotiator more than an entire day watching a union team talk itself into exhaustion about a single issue or article. If the other side shows no readiness to move, shut up and move on. (Union leaders can drive home the importance of staff/teams not uselessly blathering on by imposing an expectation on the staff negotiator that he/she is expected to be at impasse in no more than x days.)
- Use shut down behaviors. A close cousin of the “shut up” tactic is the “shut down” move. If an agency shows no readiness to move, do something that will make it regret that behavior. For example, draft an information request on the spot (or later that same day) that will make the agency work so that it gets the message that if it plans to just waste time, it will mean more work for it. Another shut down action is to not just call a halt to the argument, but also simultaneously announce that the union has reached impasse on the item and will have no further movement. A more sophisticated “shut down” maneuver is to pull a relatively simple proposal off the table and replace it with a long, complex process that will be even less attractive to agency managers. For example, a proposal that “overtime will be assigned equitably.” can be replaced with one stating, “Overtime will be distributed according to the following twelve-step process.”
- No matter how hard a chief negotiator tries to shut down useless conversation s/he will fail miserably if his/her team does not do the same. So, chief negotiators need to pick team members carefully to avoid those given to futile tirades or stream of consciousness sermonizing. Chiefs also need to train team members upfront on a “shut up and move on” plan. While chiefs need to make sure that every team member has an opportunity to get things off their chest and contribute, they also need their teams to accept certain signals or “safe words” to shut them down. Chiefs can learn valuable things from listening to a spontaneous table response from a member, but that has its limits.
- Look for concessions to make that lock the agency into moving forward promptly. For example, a union could propose that it will take a certain proposal (or information request) off the table if bargaining is concluded or impasse reached by a certain date, but that the proposal comes back if there is no deal or agreed-impasse by a date certain. It could also offer to not publicize the bargaining, e.g., agency actions likely to upset employees, if a deal or impasse is reached by a date certain.
- FMCS a mystery to us. On the one hand, a union can unilaterally petition it to get involved as soon as its sees an agency obstructing progress. But, on the other hand, FMCS can engage in hostage-taking of its own. It can refuse to certify to FSIP that the dispute is at a valid impasse, and most often that dooms the parties to endless FMCS mediation. Too often that results in the party disadvantaged by delay makes concessions against its better judgment just so the mediator can tell his/her supervisor he accomplished something. Ideally, the party seeking to avoid delay can get ground rules that call for hiring a private neutral to mediate in lieu of FMCS. If not, that party needs to be ready with a package of counter-proposal to its last positions that it can give the mediator to work with. The idea behind that is if the mediator gets flexibility from one side and the other side senselessly continues to delay or some movement, the mediator might punish the recalcitrant, delaying party by quickly certifying the case to FSIP.
- Expediting disputes through FSIP is an entirely separate discussion from this one. There are ways, but generally, getting the Panel to accept jurisdiction marks the defeat of a delay strategy.
- Agency head review (AHR) is the useless vestigial organ of the federal collective bargaining process, much like the appendix and male nipple are on the human body. The AHR people can delay the conclusion of a term contract for decades. As far as we know the longest a term bargaining negotiations ever took in the federal sector involve USPTO and POPA. The bargaining went on for about 27 years and most of the delay can be blamed on the AHR people who kept disapproving resolutions the two bargaining parties reached. Frankly, we favor ground rule provisions that penalize agencies that disapprove language agreed upon by the parties, e.g., requiring full travel and per diem reimbursement for the union team if it did not have it before or the 100% payment of arbitration costs until agreement is approved.
While it is not common, at times it is the union that resists a quick renegotiation of a term agreement. Typically, it does this to hang on to one or two highly valuable provisions that it knows it will not be able to retain once a new agreement is done, e.g., an extremely favorable official time clause or a travel reimbursement formula more generous than government-wide regulations. When the union seeks to delay the agency can use most of same the tactics listed above. However, it is generally better off using its ability to unilaterally implement changes. For example, while a union cannot unilaterally implement a Public Transit Subsidy program, an employer can unilaterally terminate or modify one if it follows the law. When the desired changes require modifying the term contract language and the employer cannot get the union to fairly engage in moving negotiations forward, the agency can serve its term proposals on the union and wait for its next move. If the union does nothing, the agency can likely implement its new contract terms because the union has waived its right to bargain by inaction. If the union responds, but drags its feet about setting dates to bargain, the agency can ask FMCS to get involved. If the FMCS can’t move the union, the agency can declare impasse and its intent to unilaterally implement by a date certain. If the union seeks FSIP assistance, it will have little choice but to act responsibly or the Panel could impose the new contract terms or withdraw and let the agency go forward unilaterally.
As we mentioned at the outset, tolerating bargaining able foot-dragging permits raw power to drive decisions rather than facts, reason, creativity and other far more constructive decision-making mechanisms. It also almost guarantees that the victimized party will soon be seeking revenge when delay favors it, thereby triggering a cycle of destructive behavior. It also pushes the victimized party to look for other ways to solve workplace problems than at a bargaining table, e.g., going to the media, the Hill, the agency’s constituent interest groups, etc. Delaying decisions can be valuable in international relations where the alternative often is war, but neither federal sector bargaining nor HR management carry such risks. The alternative is a reasoned, fact-based decision made by a neutral. You might say a “merit-based” decision.