WHY NEGOTIATE OVER MIDTERM AGENCY CHANGES?
Some unions are very aggressive about demanding to bargain over every management-proposed midterm change while others act like these changes are not worth their time—and we never understood the latter group. Those unions are missing out on numerous employee and union benefits that come with an aggressive mid-term bargaining program. So, we thought we would take a minute to highlight what those benefits are. Maybe this will convince some readers to change the way their own union operates. Check out our post entitled “How to Lose Millions for Members” if you doubt us about an unaggressive union losing millions for members.
Before we tick off the benefits of a top-notch mid-term bargaining program, let’s review the law. When an agency proposes a change, the union has the right, with minor exception, to be notified in advance, demand to bargain, and delay implementation of the change until a deal is reached. Many agency-proposed changes limit the union’s role to bargaining over the impact and implementation procedures (aka I&I) for the change –as opposed to demanding that the change not be implemented at all. But a union can accomplish a lot for employees even in those I&I negotiations. If the parties cannot reach agreement, the bargaining dispute goes to the Federal Service Impasses Panel for arbitration—no matter how long that delays implementation of the change. In short, the agency cannot change a thing until it finishes dealing with the union IF THE UNION WATCHES FOR CHANGES AND DEMANDS TO BARGAIN.
Now to the benefits of an aggressive midterm bargaining program.
First, most management mid-term changes in working conditions are going to adversely impact some unit employees, e.g., when management adds a few more steps to a work process or decides that only certain employees in the group are going to get overtime work. Given that unions have the statutory right to, at a minimum, stop changes like those from being implemented until bargaining is over (and thereby at least postpone the harm to be done to members), we can’t think of a reason why unions would not jump on each proposed change.
Second, knowing about changes before they are imposed on employees and being able to prevent their implementation or at least delay until bargaining is over leaves a great impression on employees, e.g., when the union that tells them about the changes long before they are implemented and seek their input. That is especially true of those who ask, “What can the union really do for me?” It is the kind of impression that leads employees to join the union if the union couples its negotiations with even a modest effort to solicit new members from the impacted group, e.g., solicit employee input on likely adverse impact and solutions, meet with them in person or virtually, pick one or two to be on the bargaining team, issue progress reports, and of course actually ask them to join throughout the bargaining period.
Third, every bargaining team formed is an opportunity for the union to involve impacted employees directly at the table. It is the best way to make sure that one of the impacted group’s own members is there to pass on details of the fight the union is waging for them and to solicit continual group input. It builds the union’s image and ensures it gets credit for what it is accomplishing. Moreover, it brings the union closer to their lives.
Fourth, every mid-term negotiation gives the union an opportunity to demand a joint committee be established to monitor the rollout of the change and its impact. That gives the union another opportunity to involve unit employees beyond the permanent union leaders.
Fifth, if a union impresses on management that the agency cannot change conditions of employment without first notifying the union and bargaining an agreement agency respect for the power of the union should skyrocket. For example, we were once involved with a situation where an agency bought hundreds of new PC laptops for its employees without telling the union. Once installed, they were going to increase production, but simultaneously make life harder for employees. When the union demanded to bargain before even one was taken out of its box, management saw those machines sit on the loading dock for months. The management team in that office radically changed how it treated the union from that time forward. It no longer kept plans for future changes from the union and aimed for a positive relationship with it rather than face any angry union in negotiations and litigation costs.
Sixth, it is a great opportunity to request information from the agency that you might not otherwise have a particularized need to get. For example, if an agency proposes to change the appraisal eligibility score for performance awards, the union would be justified in asking for data showing the current scores by race, gender, age, national origin, disability status, work unit, grade and SCD so it can assess where the adverse impact will fall and respond accordingly. Check out our recent post on how to correctly request information.
Seventh, although law only permits a union to insist to impasse on proposals related to the nature and scope of the agency’s proposed mid-term change, nothing stops it from “dangling during bargaining” an unrelated proposal that would make the official bargaining much easier for the agency. For example, that management settle a grievance unrelated to the proposed change or that it update the union’s computer equipment.
Eighth, the agency not only must give the union virtually all the details about the proposed change (aka “specific notice”), but it must respond to union requests for even more information, e.g., particularly how the change will impact employees. Being armed with that information before the change is made will often enable the union to totally stop the change if it violates laws, regulation, the existing labor agreements, higher agency policy, etc. Aside from resorting to litigation to change agency plans, the union can also involve the media and Congressional reps to try to force he agency to rethink major moves.
Ninth, if a union is watching closely for changes and the agency makes one without giving the union advance notice or it implements before the negotiations are over the union can get some very powerful remedies that will not just cause the agency to do better in the future, but also make very favorable impressions on the employees. For example, an agency leader once instructed managers to think differently about what a particular critical element meant. That resulted in many appraisal scores being lowered. When the union learned about this unannounced change it filed a grievance alleging a violation of its bargaining rights. It won and the remedy was that the agency had to 1- reevaluate all employees for each of the last two years using the old understanding of the element, 2- increase performance award amounts for those whose appraisal scores rose, 3 – keep the old understanding of the element in effect until bargaining was complete, 4- destroy any paperwork that tracked how the employees performed under the new understanding, 5- granting priority consideration to those who could prove they would have been on the best qualified list if they had a higher score, and 6 – pay the union tens of thousands in attorney fees. It would be a long time before managers forgot having to redo the last two appraisals for every employee as well as do one for the current year. In another case the agency estimated it owed employees over $900 million in back pay when it tried to slip a change past the union.
Tenth, putting the union on the agency’s radar screen every time management wants to make a change is going to increase the pressure on it to manage labor relations better. It will quickly recognize that it needs a good relationship with the union, not one where the union is constantly motivated to get back at management for some slight.
From where we sat for over 40 years, unions build membership if they pay attention to the following six things—and a strong mid-term bargaining program helps a union on each of them:
- Boost the union’s visibility among employees,
- Make it easy for the union to access employees and for employees to get to a union rep whenever even a slight need arises,
- Ask employees for their input as often as you can,
- Create opportunities to physically involve employees in union representational work,
- Make sure the union gets credit for the things it does for employees, and
- Ask them often to join; don’t just wait for them to come to you.
Reposted from April 24, 2022