President Obama's December 2009 executive order calling for governmentwide labor-management partnerships directed the National Council on Federal Labor-Management Relations to oversee pilots that cover issues in Section 7106(b)(1) of the federal labor relations statute, which aren't normally negotiable.
Also known as permissive subjects, they include numbers, types and grades of employees or positions assigned to any organizational subdivision, work project or tour of duty; and the technology, methods or means of performing work.
The council will give agencies guidance for measuring and evaluating the pilots, which are set to end after 18 months, to help determine whether (b)(1) bargaining should be expanded governmentwide. Union leaders so far have expressed disappointment.
The programs "are not earthshaking," says John Gage, president of the American Federation of Government Employees. "I don't have a lot of optimism that the projects that are being selected almost totally by management are going to allow anyone reviewing it to say one thing or another about (b)(1) bargaining." According to Gage, gathering worker input at all levels is just as critical as the pilot projects. The process should be more effective in getting employee voices heard, he says. Pre-decisional involvement in the bargaining process is crucial to the relationship between agencies and unions, says National Treasury Employees Union President Colleen Kelley.
Nine agencies began working with union representatives to get pilots up and running this fall-the Agriculture, Commerce, Defense, Homeland Security, Labor, Treasury and Veterans Affairs departments; the National Credit Union Administration; and the Office of Personnel Management-but some have made more progress than others. In August, NCUA conducted mandatory training for bargaining personnel, while DHS still is working to establish a pilot for Immigration and Customs Enforcement employees.
Federal statute doesn't require agencies to consult employee groups on management decisions such as cutting or redefining jobs, although some do voluntarily. But the pilots make (b)(1) topics mandatory for agencies that agree to participate, and union leaders say that will save time in the bargaining process.
"Employees are probably the best source for the agency . . . to find out how to get work done efficiently because they're the ones who are doing it," says National Federation of Federal Employees National President William Dougan. "If you involve employees and labor representatives upfront, you're going to get a better product. There will be agreement quicker as opposed to management making a decision unilaterally and then bargaining those changes with the union."
But the future of (b)(1) bargaining remains murky, since it is not mandatory under the president's directive. As Dougan notes, the pilots could continue as pilots, be expanded governmentwide, or disappear altogether. Regardless of the outcome, Kelley is cautiously optimistic the projects will spark substantive discussion on key issues.
"There has to be a recognition that bargaining under (b)(1) will best be done under an interest-based format rather than under the traditional rights-based bargaining that ends with union and management taking a position," she says. "Now that the pilots have been identified and blessed and everyone knows that they are one of them, I fully expect the momentum will pick up."