BARGAINING WITH JERKS – #1 (Information Access)
There are a lot of different types of negotiators on the management side of the table and one of them deserves to be labeled The Jerk. This is the person who has come to bargaining intent on oppressing the union rather than working with it, is a game player rather than problem solver, and goads the union into making technical errors that undermine or void its right to bargain. So, we thought we would post occasional stories about how to deal with the various tactics of the table Jerk. Here is our first installment. Feel free to post your own suggestions at the end of the article.
Let’s start with the age-old jerk tactic of denying the union’s information requests no matter how legit. Assume that bargaining is just beginning and the union has asked for four or five documents to help it sharpen its proposals, understand how some personnel decision is made, or assess the impact of a current practice on employees. Typically, the Jerk takes the requests under “advisement” rather than respond immediately, a few days later offers you a portion of one or two documents to show some superficial good faith, and then demands more information from the union about why it thinks it has a “particularized need” for the information. Even if the union floods him/her with more specifics, this kind of negotiator never releases the information because he/she wants to 1- undermine your ability to bargain, 2- drive up your frustration level, 3- show you the power he/she has over you, and 4- force you to waste your time and effort trying to get the information.
In the Jerk’s ideal world, you yell and scream, maybe offer to modify your request beyond any reasonable point of compromise, and ultimately slink away to file a ULP which goes into the dark endless hole that is the FLRA ULP process. If he gets really lucky, you walk out of bargaining and do not come back. Generally, the Jerk has already bragged to the folks who hired him/her that all the union can do is file a harmless ULP.
As with most situations requiring a response to some Jerk’s tactic du jour, you have to impose some costs on him/her or the agency that they did not anticipate. The most effective is to file an FOIA request for the same information that you requested under the bargaining statute. In fact, file them simultaneously after the first unreasonable denial of information because the FOIA has very specific deadlines under which the agency must respond to your request; the labor statute does not. If the agency does not meet them, you can take them to court. If your union does not have attorneys on staff, it should not be too hard to find an attorney who will take the case even on the chance he/she can get some healthy fees from the government if successful.
The other thing that happens when the union files FOIA requests is that often the manager in charge of the FOIA shop begins complaining up the chain of command about all the extra work the agency LR folks are forcing him/her to do. If you are really lucky, the agency General Counsel also starts complaining about the work the Jerk’s strategy is causing. Don’t worry too much about the FOIA shop offering you the information if you are willing to pay. FLRA case law provides that if you were entitled to the information under the labor statute the agency must reimburse you the costs of getting it under the FOIA. (See AFGE, 10 FLRA 453 (1982))
A related approach that the Jerk rarely anticipates is the union having members file EEO complaints asking for the data. For example, assume that you have requested to know how often women have been on the BQ list and passed over for applicants with lower scores. If the Jerk refuses to release the data, see if you can find a woman who was recently passed over and have her file an EEO complaint alleging gender discrimination and specifically that higher-rated women are passed over as a practice. The EEO investigator will be required to assemble that data for the Report of Investigation. It may take months to get, but bargaining with Jerks can often take a lot longer. If you are lucky, the EEO shop will complain to LR about having to do needless investigations because of LR’s strategy.
Another option would be to have some Congressional official with influence over the agency request the documents for you. For example, if the Jerk has denied information about the cost of management travel, it should be easy to get one to ask for that data.
A fourth approach is to take the dispute public calling it what it is, namely, an agency attempt to cover-up information that will incriminate or embarrass someone. For example, suppose you want to know the average appraisal scores issued by each first line manager so that you can identify who the habitually low scorers are. When the Jerk denies it, let everyone know about it and sell the readers on the reasonableness of the request. Ask publicly why management should not be considered to be covering up something improper. Very few executives like to be perceived as hiding information from agency employees and even fewer like to run the risk that someone in the media may pick up on agency campaign to withhold information.
A fifth response is to use the agency’s record of denying reasonable requests for information against it when the dispute gets before a Panel or private impasse neutral. For example, suppose you wanted to know how many employees were given sick leave restrictions letters during the last year so that you could support a demand for a better process for those letters. If denied, raise that at FMCS and the Panel to explain why the union is not able to make a better argument or even assess the need for its proposal. Nothing stops the union from making a motion at the Panel that the agency be ordered to produce certain data or suffer and adverse inference.
Finally, you always have the option of filing a ULP if all that fails. It likely will take forever to be resolved, but in some cases you do not care if it takes forever to conclude bargaining. Indeed, generally the FSIP will not take jurisdiction over a bargaining dispute if there is an unresolved ULP charge pending.
A side benefit of responding in ways the Jerk did not anticipate is that all the unexpected commotion makes the twit look bad in front of the folks who are paying his/her bills. Often, the Jerk told management that he/she would take care of everything for them or that at most the union would file a harmless ULP or grievance. Responding with so much more shines a harsh bright light on how much the Jerk is costing the agency and undermines agency confidence in the blockhead.
Comparing notes among the FEDSMILL brain trust, together we have seen Jerks fired in mid-bargaining for damaging the employing agency or executive, fellow team members openly contradict the Jerk at the table in front of the union team, and officially denied documents mysteriously show up at the union office in plain envelops. There was even the time one team member blew the whistle to the FBI on his team’s Jerk for destroying information the union requested under the FOIA. That ended in a resignation from the bar by that Jerk. So, hang in there and don’t let the hooples of the bargaining world get you down.
Any suggestions for some other Jerk tactics you want us to address next?
Sorry if we have offended anyone with the name-calling. It is just that we consider bargaining a great place to solve problems if everyone comes to the table looking for mutual success. Table Jerks have wasted tens of millions of tax money.
(The next installment will deal with the Jerk who claims almost anything the union wants is non-negotiable.)