Collective Bargaining

1. Collective Bargaining Institute Prepared by the Field Services Department, AFGE

2. Factors Affecting Collective Bargaining • Good contracts are not bargained only at the negotiations table. • Different factors affect the balance of power between the union and the Agency. Prepared by FSD

3. Factors Affecting Collective Bargaining AT and AWAY FROM The Table

4. The Agency’s Chips Management Rights Law Rewarded for Creating Conflict Executive Branch Rewarded for Stalling and Dodging $$$ Staff Support Political FSIP and FLRA Enterprise Mentality Prepared by FSD

5. The Union’s Chips Employees Prepared by FSD

6. Each of these factors is a source of power – the question is, what type? Prepared by FSD

7. T H E U N I O N s C H I P S Prepared by FSD

8. Prepared by FSD

9. Components of Power Prepared by FSD

10. Components of Power (+ or -)explain this in your notes Prepared by FSD

11. Sources of Pressure: Prepared by FSD

12. Sources of Pressurethes are notes not slides Prepared by FSD

13. Effect of Union’s Power • THEN • When the Union Uses Outside Pressure; and • Union Membership Grows; and • The Union is Prepared at the Table Prepared by FSD

14. Management Bends • The Agency addresses employee concerns; and • Works around limits on negotiability Prepared by FSD

15. Union’s outreach to the employees, community leaders, politicians, the media, Agency customers, and government watchdogs put pressure on Management It all comes together when: • ; and • The Union’s membership grows substantially; and • The Union has hard evidence and good legal analysis to support its bargaining demands; and • Management moves to reasonable positions that: • Address the substantive problems the employees have identified and • Work around limits on negotiability that are imposed under the Federal sector labor law. Prepared by FSD

16. Plan for the Week • Monday – Bargaining as Conflict. Bargaining Processes and Concepts. • Tuesday – Federal Sectorbargaining. Researchandresources. • Wednesday – Analytical Frameworks (aka “Thinking like the FLRA”). • Thursday – Bargaining practice and issue analysis. • Friday – optional half day: FLRA case update, critiquing language, general Q&A. Prepared by FSD

17. The “Yeah, but…” Caution: Collective bargaining is subject to loopholes, re-interpretations, new arguments, split hairs, and similar soft ground. Success is rarely absolute, never permanent; It’s determined by the situation, not just by logic or precedent. “What’s true” is subject to change, so-- Expect the unexpected. Look for the exception to the rule. Check to see what’s changed in the law. Be alert for new approaches and possibilities. Prepared by FSD

18. The Big Picture • Mediation, Impasse, and Ratification are common but not essential. • Ratification and Review can cause recycling back to Negotiation. • Ratification can’t trump Impasse decisions. Bargaining Cycle Prepared by FSD

19. Roles in Bargaining

20. The Union • To represent employees in the bargaining unit as a whole. • To represent its own institutional needs. • To represent collective bargaining as being “in the public interest.” • To answers to employees through elections and ratification votes. • To look at what the problems are and the best ways to fix them, which may not be solely through negotiating. Prepared by FSD

21. Management • To maintain institutional authority. • To accept changes and added benefits and protections, when it is persuaded they are needed (or ordered by a third party). • To promote their “turf” within the Agency. • To fix problems caused for one or more managers by previous collective bargaining agreements, laws, regulations, policies, budgets constraints, and the decisions of third parties (arbitrators, FLRA, other Federal agencies, and courts). Prepared by FSD

22. Neutrals: Who they are and What they do. Neutrals: Prepared by FSD

23. Federal Labor Relations Authority (FLRA) • Defines “appropriate units” and creates or modifies “bargaining units” and counts ballots to see which union, if any, represents the unit. • Investigates and prosecutes charges of Unfair Labor Practices (ULPs) against agencies, individuals, and unions. • Determines whether language can be negotiated and put into an agreement (“negotiability appeal”). • Decides if arbitration awards are legal. Prepared by FSD

24. Federal Mediation and Conciliation Service(FMCS) • Helps the process of bargaining go smoother. • Not concerned with the outcome: if the parties agree, that’s what matters to the mediator. • Promotes collaborative programs to improve union-management relations (outside of bargaining). • Verifies, when asked by the FSIP, that further bargaining would not be useful (“declares the parties to be impassed”). Prepared by FSD

25. Federal Service Impasses Panel(FSIP) • Brings closure to bargaining when the parties can’t. • Selects between proposals of the Union and Management; or, imposes its own solution. • Has no authority to make new negotiability decisions or to resolve ULP charges. • Language it orders parties to adopt is subject to agency head review, but not ratification. Prepared by FSD

26. Impasse • It exists when more bargaining won’t bring about more agreement and issues remain unresolved. • Parties can become “un-impassed.” For instance, if one side feels pressure from constituents or just from being impassed, what was not acceptable may become acceptable. • Has consequences beyond the bargaining: if the Union doesn’t act correctly, the Employer may be permitted to implement its last offer. Prepared by FSD

27. Arbitrators • Self-employed, truly neutral, paid by the parties. • Make final and binding decisions* on grievances that were initiated under a collective bargaining agreement (“rights arbitration”). • Make final and binding decisions* on bargaining impasses (rare; “interest arbitration”). • Apply federal sector labor and personnel law, professional standards and practices, and their own judgment. You get what you pay for. *Arbitral decisions can be reviewed, on a limited basis, by the FLRA. Prepared by FSD

28. Grievance Arbitration: Part of contract administration. Neutral party interprets and applies existing language in a CBA to the facts of the dispute. The decision is usually final and binding. The language remains as it was. Aka rights arbitration. Interest Arbitration: Bargaining “end game.” Neutral party writes new CBA language after a hearing on the parties’ respective “interests”. Final and binding but often seen as letting an outsider have too much control. Alternative to job actions and lock-outs. Arbitration Prepared by FSD

29. Courts Upon petition by a party, courts can-- • Review FLRA negotiability decisions; • Review FLRA review of certain arbitration awards; • Review FLRA decisions on ULPs; Usually, the level of court review is by the U.S. Court of Appeals; the level can rise to the U.S. Supreme Court. Prepared by FSD

30. Exercise: Know Your Neutrals

31. The Context

32. Factors affecting the Practice of Federal sector collective bargaining: • The Government always changes (“reforms”) agency structure, HR and LR systems. • “Reformism” is part of the process – as much as “neutrals” like the FLRA and courts. • Concepts were created that are more limited than private sector collective bargaining: “Statutory Management Rights that narrow the Scope of bargaining”; and “Negotiability” and “Agency Head Review”—ways to make sure negotiated language is legal and Government stays sovereign. Argument: The context of Federal Sector bargaining shapes the Union’s bargaining strategy. Prepared by FSD

33. A History of ContinuousCHANGE: How Government Reformism Drives Changes and Affects Workers

34. “Reform” Is Constant (1870-1950) • 1870 Pendleton Act - created the Civil Service. • 1921 - Budget and Accounting Act was enacted. • 1936-1937 Brownlow Committee – recommended the President be able to reorganize Exec Branch. • 1939 – the Hatch Act was enacted. • 1945 Government Corporations Control Act - regulated government “enterprises,” e.g. TVA. • 1949 - EO 10073 on Management of the Executive Branch; current Classification Act; GSA created. • 1949 First Hoover Commission - reported on downsizing government after WWII, using “modern management” ideas. Prepared by FSD

35. Reform is Constant (since 1950, Part 1) • 1953 - DHEW (now DHHS) was created. • 1955 Second Hoover Commission - proposed to create a Senior Civil Service (now SES). • 1959 - Advisory Commission on Intergovernmental Relations was established. • 1964 - Price Report issued to maximize the Federal government’s search for JBJ’s Great Society. • 1969 - Bureau of the Budget (now OMB) Circular A-95 was also intended to implement Great Society programs more efficiently. Prepared by FSD

36. Reform is Constant (since 1950, Part 2) • 1962 - EOs 10987 and 10988 gave Federal sector unions new rights. • 1965 - Johnson ordered agencies to use Planning-Programming-Budgeting (PPB). • 1970-1978 - Various productivity improvement projects were conducted. • 1972 - Civil Rights Act of 1964 was amended to include affirmative action in agencies. • 1973 - Management by Objectives (MBO) used. Prepared by FSD

37. Reform is Constant (since 1950, Part 3) • 1974 - Congressional Budget and Impoundment Control Act gave budgetary power to Congress. • 1976 - “Sunset laws” were passed to get government off the backs of taxpayers. • 1977 – President Ford told agencies to use Zero Base Budgeting (ZBB) to combine planning and budgeting, evaluate cost effectiveness. • 1978 - Civil Service Reform Act enacted earlier reform ideas as well as R&D, merit pay, & Chapter 71, (Federal sector labor law). Prepared by FSD

38. 1974 Congress. Reform is Constant (since 1950, Part 4) • 1985 - Gramm-Rudman-Hollings Act – thrown out, re-enacted, failed to reduce deficit. • 1993-1997 - Government Performance and Results Act requires agencies to measure performance, show effects on society (“outcomes”). • 2001 - Patriot Act reorganized multiple Dept’s. • 2003 –New DoD and DHS HR systems replaceprotections with perceptions. • 2004 – Federal Workforce Flexibility Act – provides new incentives to keep talentedworkers. • 2005 – New round of BRAC closings/realignments. Prepared by FSD

39. Patterns in Reformism • Reforms are perpetrated by both political parties for political reasons. • Reforms can start out as relatively harmless reports or executive orders. • Reforms can take decades to be adopted on a “permanent” basis. • Reforms aim to model government on “more efficient” private sector practices. • Reforms mirror society’s distrust of government and those who work in it. Prepared by FSD

40. Government wants to attract and keep “the best” workers. Government has to “show” performanceimprovement.“ Government wants to model itself on private sector “enterprises.” So, it has adopted family- friendly benefits (Alternative Work Schedules, childcare, job- sharing, recruitment bonuses). So, it is moving away from longevity/service-based pay systems & decisions. So, some managers will toss out fairness along with the old personnel rules. Riding the Wave of Change Prepared by FSD

41. Implications for Unions: • Collective bargaining affects human resources management and is affected by political agendas. • Individual or group contribution is suspect or invisible without a strategic program to “prove it.” • Today’s idea (good or bad) is tomorrow’s reform – early awareness beats playing catch-up. • Agencies must [appear to] pursue improved performance. • Unions must differentiate themselves from politico-managers and earn credibility for workers’ contributions because , in an world that values‘limited government’ … Prepared by FSD

42. “goodness *has very little to do with it.” * or merit or fairness or equity or service, etc. Prepared by FSD

43. Exercise #2 Issues Analysis -- Handouts – Small Groups Report Back on Day 4 Prepared by FSD

44. “Concerns” “Challenges” “Opportunities” = Problems = ‘work-arounds’/ obstacles = Problems Dictionary of “GAO-Speak” (If you choose Group 3) Prepared by FSD

45. The Strategy • Who does what? • For what purpose? • By when? (mile posts and overall) • How do we measure the effectiveness of the strategy? • When do we correct the strategy or how we’re following it? Prepared by FSD

46. Intentions Require Planned Actions Prepared by FSD

47. Interdependent Negotiating Processes Prepared by FSD

48. Interdependent Negotiating Processes Prepared by FSD

49. Table Time Effectiveness Prepared by FSD

50. Table Time Effectiveness POWER Prepared by FSD