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FLRA Office of the General Counsel. Executive Order 13522 Creating Labor-Management Forums to Improve Delivery of Government Services. E.O. 13522 Purpose. To establish a cooperative and productive form of labor-management relations throughout the executive branch. - PowerPoint PPT PresentationTRANSCRIPT
FLRAOffice of the General Counsel
Executive Order 13522Creating Labor-Management Forums to Improve Delivery of Government Services
E.O. 13522 Purpose
To establish a cooperative and productive form of labor-management relations throughout the executive branch.
To improve the delivery of government services to the American people.
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E.O. 13522 Policy
Federal Employees and Union representatives are an essential source of front-line ideas and information about how to deliver government services.
A non-adversarial labor-management (LM) forum to discuss government operations will promote satisfactory labor relations and improve productivity and efficiency.
LM forums complement the existing collective bargaining process.
LM forums allow parties to work collaboratively to deliver the highest quality services to the American public.
Management should discuss workplace challenges and problems with labor and jointly devise solutions rather than adhering to the traditional bargaining procedures. 3
E.O. 13522Implementation of LM Forums
Agencies directed to work with Unions to establish, or adapt existing LM forums at the level of recognition and other appropriate levels as agreed to by the parties, to help identify problems and propose solutions to better serve the public and agency missions.
Established a National Council on Federal LMR (Council) to oversee implementation of LM forums.
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E.O. 13522Expectations for LM Forums Allow employees and unions to have pre-decisional involvement in
all workplace matters, without regard to whether subjects are negotiable under the Statute;
Expeditiously provide union with adequate information on such matters where not prohibited by law;
Make good-faith attempt to resolve issues concerning proposed changes to conditions of employment, including 7106(b)(1) subjects, in LM forums;
Evaluate and document in consultation with union changes in employee satisfaction, manager satisfaction, and organizational performance.
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E.O. 13522
The Executive Order does not
Abrogate any collective bargaining agreement;
Limit, preclude, or prohibit management from electing to negotiate over § 7106(b)(1) matters;
Impair or otherwise affect authority granted by law to agencies (i.e. it does not expand bargaining rights);
Create any right to administrative or judicial review.
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E.O. 13522 Summary and Focus
The Executive Order 13522 seeks to improve the delivery of high quality government services by establishing:
A cooperative and productive form of labor-management relations ;
Agency LM forums to identify problems and propose solutions to better serve the public, improve employee work life and labor-management relations;
Pre-decisional involvement for employees and their union representatives in all workplace matters to the fullest extent practicable.
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Collective Bargaining Under5 U.S.C. Chapter 71
FLRA Office of the General Counsel
DUTY TO BARGAIN:CONDITIONS OF EMPLOYMENT
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Defined in 5 USC § 7103(a)(14)
Includes personnel policies, practices and matters affecting working conditions
Can be established by rule, regulation or other ways
CONDITIONS OF EMPLOYMENT
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Authority considers two factors in deciding whether a matter involves conditions of employment
Whether it pertains to bargaining unit employees; and
The nature and extent of the effect on working conditions of the employees
See, e.g., Antilles Consol. Education Ass’n., 22 FLRA 235 (1986); Dep’t of the Air Force, Eielson Air Force Base,
23 FLRA 605 (1986)
Scope of BargainingThree Categories
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Mandatory
Those an agency must bargain over
Permissive
Those an agency may, but is not required to bargain over
Other
Those that an agency cannot bargain over
Exceptions to Management Rights
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5 U.S.C. § 7106(b)(1):
Numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty
Technology, methods, and means of performing work
Permissive - an agency may, but is not required to bargain over these matters
Bargaining Permissive SubjectsUnder the Statute
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Agencies are not required to bargain over a permissive subject of bargaining, i.e., those matters which are either outside the scope of bargaining required of the parties or are negotiable at the election of an agency pursuant to § 7106(b)(1). See FDIC,
Headquarters, 18 FLRA 768, 771 (1985). This applies to both proposals advanced by
management and union
If parties reach an agreement to bargain over § 7106(b)(1) matters, then that
agreement is enforceable. See SSA, Balt., Md., 55 FLRA 1063, 1069 (1999); U.S. Dept. of Commerce, PTO, 54 FLRA 360, 387 n.27 (1998); see also U.S. Dep’t of Def. Am. Forces Radio & Television Broad. Ctr. Riverside, Cal., 59 FLRA 759, 760 (2004).
If management at the local level exercises its discretion to bargain on a § 7106(b)(1) matter and reaches an agreement, then agency head may not subsequently disapprove that provision under § 7114(c) simply because it relates to § 7106(b)(1) matters. See NATCA, 61 FLRA 336 (2005).
Where parties’ agreement includes matters covered by § 7106(b)(1), upon the expiration of that negotiated agreement, either party retains the right to unilaterally terminate the practice embodied in such a provision. See FAA, NW Mtn. Region Seattle, Wash., 14 FLRA at 648-49.
FLRAOffice of the General Counsel
Pre-Decisional Involvement Under Executive Order 13522
Pre-Decisional Involvement
Under EO 13522 Agencies must establish labor-
management forums and, through the forums
Allow employees and union pre-decisional involvement to the fullest extent practicable on all workplace matters without regard to negotiability under §7106 of the Statute
Expeditiously provide information to union representatives, where not prohibited by law
Make good-faith attempt to resolve issues concerning proposed changes to conditions of employment, including those involving §7106(b)(1)
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PRE-DECISIONAL INVOLVEMENT
Executive Order 13522 does not define the term
“pre-decisional involvement”
E.O. leaves PDI for Labor-Management Forums to define according to the needs of the organization
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PRE-DECISIONAL INVOLVEMENT
PDI does not:
Expand the duty or scope of bargaining
Waive any rights of the parties under the Statute
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PRE-DECISIONAL INVOLVEMENT
Basic Principles
PDI occurs early when ideas are forming
Participants have common expectations
Information is freely shared
Joint development of solutions
Consensus based problem-solving, focused on interests
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Management
Deliberations
Negotiations Implementation
Mgmt.Proposa
l
Agreement
Negotiation
Management Deliberations
Union Deliberations
Implementation
Agreement
Joint Deliberations
Pre-Decisional Involvement
ManagementDeliberations
Negotiations Implementation
Mgmt. Proposal Agreement
Management Deliberations
Union Deliberations
Implementation
Agreement
Joint Deliberations
Negotiations Implementation
Mgmt.Proposa
l
Agreement
Pre-Decisional Involvement
ManagementDeliberations
NegotiationsImplementation
Mgmt. Proposal Agreement
Early Involvement
Management:
At what point should union be involved?
Union:
At what point does union want to be involved?
Answer to both questions varies with the issue presented 22
Common Expectations
What happens when pre-decisional involvement is concluded?
-- Consensus reached – proceed to implementation without further bargaining
-- Recommendation accepted by principals
-- Recommendation modified and accepted
-- Execute MOA regarding consensus
-- No Consensus reached – revert to proper place in existing labor-management relationship
-- Will statutory bargaining be required?23
Fully Sharing Information
Management will disclose all relevant information as part of PDI problem solving
Information provided as part of process
No need for statutory information requests
No delays in waiting for information
No litigation
Creates issues of trust and confidentiality24
PROBLEM SOLVING APPROACH
Negotiator vs. Problem Solver
Problem-solving processes to create solutions through consensus decision-making
Collaborative approach, based on parties’ interests rather than their positions 25
Problem Solving Approach
As opposed to being adversaries work together to find solution
Change from traditional two opposing teams of negotiators to one group of problem solvers
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Issues Appropriate for Pre-Decisional Involvement
Establish criteria for determining which issues are appropriate for PDI
Recognize not all issues may be appropriate for PDI
Traditional post decision bargaining is not a failure of PDI, if parties have common understanding of when it will be used.
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Approaches to Pre-Decisional Involvement
Has issue been presented as a problem or a solution?
Solution: We need 8 more people on graveyard shift.
Problem: Job not getting done on graveyard shift.
Does issue have one answer that one party or the other already has taken a position on?
Position: You must upgrade all clerical positions, nothing less than that is acceptable.
Problem: Difficulty retaining support staff in critical support positions
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Pre-Decisional Involvement Considerations
Process can be time-consuming
Must learn new skills which are not historically used in labor relations.
Learning curve for consensus/interest-based approaches
No winners or losers.
Unreasonable expectations on either side as to outcomes of involvement.
May increase costs if both PDI and traditional bargaining are used.
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Benefits of Pre-Decisional Involvement
Employees have meaningful input into decision
Helps foster change and not force it.
Avoids adversarial approach to collective bargaining.
Leads to better quality decision making, more support for decision and more timely implementation
May avoid costs associated with lengthy bargaining process and resolution of rights-based bargaining disputes
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Level of Commitment
Relationship plays larger part in dealings between parties
Commitment to mission and well being of employees is as important as compliance with statutory and contractual rules
Higher level of trust necessary31