FLRA Office of the General Counsel

1. FLRAOffice of the General Counsel Executive Order 13522 Creating Labor-Management Forums to Improve Delivery of Government Services

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. FLRA Office of the General Counsel Collective Bargaining Under 5 U.S.C. Chapter 71

9. DUTY TO BARGAIN:CONDITIONS OF EMPLOYMENT • 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

10. CONDITIONS OF EMPLOYMENT • 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)

11. Scope of BargainingThree Categories • 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

12. Exceptions to Management Rights 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

13. Bargaining Permissive SubjectsUnder the Statute • 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.

14. FLRAOffice of the General Counsel Pre-Decisional Involvement Under Executive Order 13522

15. 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)

16. 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

17. PRE-DECISIONAL INVOLVEMENT PDI does not: Expand the duty or scope of bargaining Waive any rights of the parties under the Statute

18. 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

19. Negotiation Mgmt. Proposal Agreement • Management • Deliberations • Negotiations • Implementation

20. Pre-Decisional Involvement • Implementation Mgmt. Proposal • Union Deliberations • Joint Deliberations Agreement Agreement • Management Deliberations

21. Pre-Decisional Involvement • Implementation • Implementation Mgmt. Proposal • Union Deliberations • Joint Deliberations • Negotiations Agreement Agreement • Management Deliberations Mgmt. Proposal Agreement

22. 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

23. 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?

24. 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 confidentiality

25. 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

26. 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

27. 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.

28. 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

29. 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.

30. 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

31. 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