HOW TO BARGAIN OVER PERMISSIVE SUBJECTS NOW
President Biden has made the decision on behalf of all federal managers to elect to bargain over those subjects the statute identifies as permissively negotiable with the agency. (They are also known as those topics the agencies have absolutely refused to talk to the union about for the last 40-plus years.) That has caused a lot of union leaders to ask just how they initiate that kind of bargaining given that the vast majority of term contracts are not open for renegotiation right now. Well, here is how they do it.
They send the agency’s chief negotiator or other point of contact an e-mail, letter, candygram, smoke signal, or whatever medium normally is used to demand bargaining that asks to bargain over a particular issue. When the agency rep gets back to you and claims that the union must wait until the term agreement opens or the agency initiates a related mid-term change, refer them to DOI, Wash., D.C. and NFFE, Local 1309, 56 FLRA 45 (2000). That case holds that just like an agency even if there is a term agreement in place a union can demand to bargain some additional matters so long as the matter is not covered by or other excluded from bargaining. Unions pursued this legal entitlement for a few reasons.
First, it was done for those situations where a new law was passed (or government-wide regulation implemented) permitting agencies to grant employees a new benefit but the agency decided not to do so or at least not do so soon. This right permits the union to demand to begin negotiations the day the law or even OPM regulation is activated. The President’s decision that all his federal managers will bargain over permissive subjects is an example of this.
Second, this right enables a union to force an agency to the bargaining table over a matter even though the union proposal might be outside the scope of the mid-term change the agency is proposing. See Dep’t of the Air Force, Ohio,22 FLRA 502 (1986) and FLRA v. U.S. Dep’t of Justice, 94 F.2d 868 (D.C. Cir. 1993) for a deeper explanation of what it means to bargain outside the scope of the agency’s proposed change.
Third, this right enables a union to bargain over something that never came up during term bargaining. Maybe neither side ever expected that employee workloads would double and triple due to forces outside the control of the agency. If the agency did nothing in the face of such an avalanche to at least lessen the impact on employees, the 2000 NFFE case permits the union to step in and force negotiations.
Of course, even though you have a statutory right to demand bargaining over permissive subjects now, this is not something you should do just to break the monotony of the day. Agencies are not going to jump to sign off on union proposals addressing permissive subjects, i.e., those proposals dealing with the
“numbers, types and grades of employees or position assigned to any organizational subdivision work projects or tour of duty, or
“the technology, methods and means of performing work.”
In fact, you can expect them to push back real hard. Some are likely not even to respond to a union’s initial request to bargain over a permissive matter, others will improperly demand proposals before agreeing to bargain, etc. The union needs to be prepared to push through these and about a dozen inevitable hurdles.
So, our advice is to pick an issue that is a verifiable problem in the workplace, e.g., something slowing up operations or making employees miserable. Then collect some data demonstrating the problem. Although some union leaders think that bargaining is intended solely as their personal reward for getting elected or appointed to a union leadership post, they are nuts. Bargaining is not about giving leaders an opportunity to inflate their egos, build an image, exact some personal revenge, or feed their urge to control obsession. As we see it, bargaining is about one thing, i.e., membership building. If a union concludes bargaining without getting a uptick in membership then it has probably done something wrong. Yes, we accept that a lot of bargaining is to protect and benefit current members. But there are enough non-members around that bargaining should always generate some new members from among them as well. That is done by (1) initiating on an issue of actual concern to employees, (2) giving the employees a chance to participate in identifying the issue, the problem, and the best solution, (3) keeping all impacted employees aware of what is going on throughout bargaining with something as simple as an e-mail at the end of each bargaining period, (4) find a way for impacted employees to show there support for the union’s efforts, and (5) when the deal is done be sure to claim credit for what the union achieved.
If given that long-term involvement in the process, once the union achieves their goal they will feel it was their victory that was won by their efforts. Employees involved in that kind of bargaining join as opposed to those employees who open an e-mail one day to find that they have a new benefit from the union without ever having to lift a finger. Why should they lift a finger in the future, including pay dues, if things are just going to be given to them.
