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.

2

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.

4

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.

5

E.O. 13522The 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.

6

E.O. 13522 Summary and FocusThe 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.

7

Collective Bargaining Under5 U.S.C. Chapter 71

FLRA Office of the General Counsel

DUTY TO BARGAIN:CONDITIONS OF EMPLOYMENT

9

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

10

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

11

MandatoryThose an agency must bargain over

PermissiveThose an agency may, but is not required to

bargain over

OtherThose that an agency cannot bargain over

Exceptions to Management Rights

12

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

13

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)

15

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

16

PRE-DECISIONAL INVOLVEMENT

PDI does not:

Expand the duty or scope of bargaining

Waive any rights of the parties under the Statute

17

PRE-DECISIONAL INVOLVEMENTBasic 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

18

Management

Deliberations

Negotiations Implementation

Mgmt.Proposa

lAgreeme

nt

Negotiation

Management Deliberations

Union Deliberations

Implementation

Agreement

Joint Deliberations

Pre-Decisional InvolvementManagementDeliberations Negotiations Implementation

Mgmt. Proposal Agreement

Management Deliberations

Union Deliberations

Implementation

Agreement

Joint Deliberations

Negotiations Implementation

Mgmt.Proposa

lAgreeme

nt

Pre-Decisional InvolvementManagementDeliberations Negotiations Implementation

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 InformationManagement 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 confidentiality

24

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

26

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.

27

Approaches to Pre-Decisional Involvement

Has issue been presented as a problem or a solution?

o Solution: We need 8 more people on graveyard shift.o 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

28

Pre-Decisional Involvement ConsiderationsProcess 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.

29

Benefits of Pre-Decisional InvolvementEmployees 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

30

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 necessary

31