INTRODUCTION TO COLLECTIVE BARGAINING John M Howard AFGE

INTRODUCTION TO COLLECTIVE BARGAINING John M. Howard AFGE Labor Relations Specialist

PART ONE OBJECTIVES • Discuss collective bargaining requirements under 5 U. S. C Chapter 71 • Explain key terms and concepts for Federal bargaining • Evaluate bargaining strategies in context with the legal framework for federal bargaining. • Explain fundamental best practices for effective bargaining 2

PART TWO OBJECTIVES • Explain factors touching on bargaining effectiveness • FLRA “Good Faith” rules for bargaining • Conduct of bargaining; i. e. , behaviors to emulate and behaviors to avoid • What to do when “Working with Jerks” 3

INTRODUCTIONS 1. Have you been involved in bargaining? 2. Have you taken any training programs on negotiation or collective bargaining? 4

YOUR LEGALLY SANCTIONED RIGHTS: RIGHT TO FORM AND JOIN A UNION RIGHT TO NEGOTIATE OVER WORKING CONDITIONS RIGHT TO USE 3 RD PARTY NEUTRALS PROTECTION AGAINST UNFAIR LABOR PRACTICES FLRA GUIDANCE & CASE LAW 5

FUNDAMENTALLY, WHY DO WE BARGAIN WITH THE AGENCY? To determine working conditions for bargaining unit employees. Congress determined that collective bargaining for federal employees is in the “public interest” 5 USC Chapter 71; 7101 6

* FEDERAL COLLECTIVE BARGAINING YOUR THOUGHTS? 7

Collective bargaining is a Legally Defined process Under Federal Statute and Case Law 5 USC 7103: …fundamental obligation of the “Agency” and the “exclusive representative” of employees… … of an “appropriate unit” … …to meet at “reasonable” times and to consult and bargain in “good-faith”… … to reach agreement with respect to conditions of employment; …and to execute a written document if requested 8 by either party….

SPEAKING THE LANGUAGE; FUNDAMENTAL TERMS TO KNOW… Bargaining unit Conditions of employment Exclusive Representative Employer/Agency Neutrals: FMCS, FLRA, FSIP, Arbitrators “Member” – of the Union or of the bargaining unit? Bargaining team members Chief Negotiator/Spokesperson Subject Matter Expert (SME) 9

…MEANS WHAT? Bargaining unit Conditions of employment = The part of an Agency for which the Union has been certified as the exclusive representative. = Aspects of the bargaining unit’s work life that are related to the employment relationship. An agency is not required to negotiate on such aspects that affect supervisors, managers, or others outside the bargaining unit. 10

“MEMBERS” Bargaining Unit Members -Includes the job positions the Union A person who joins must represent as a AFGE is a group. “Union member” A person whose position is in the unit is a “member of the bargaining unit” 11

EXCLUSIVE REPRESENTATIVE The Union has the sole legal right and duty to represent employees in the bargaining unit on matters concerning their conditions of employment. Because the Union is the Exclusive Representative, the Union must abide by Do. L standards for democratic procedures (fair union elections, no preference for union members, etc…) 12

WHY DOES UNION MEMBERSHIP MATTER? Union members have a say in contract ratification and can participate in internal union decisions Strong membership leads to better contracts and better working conditions 13

The Union is the ONLY entity that can speak for one or more members of the bargaining unit. This carries important legal requirements, for the Union and the Employer as well 14

For the Union: The Union must abide by DOL standards for democratic procedures within the bargaining unit, including not discriminating against non-members. For the Employer: The Employer must deal with the Union. It is illegal for the employer to “deal directly” with employees on bargaining unit issues. 15

MORE ON THE TERMS; KNOWING THE PLAYERS…(CONT’D) “Authorized” Representative Ø Employer/ Agency Ø Neutrals = the person authorized to speak or act for the Union or the Agency. The authorized representative (or “designee) must have authority to make decisions at the table. = the employer organization that has been identified as the Union’s counterpart within the government; i. e. “the certified unit”. = Federal Labor Relations Authority (oversight, guidance, case law, review of ulps, determines negotiability) = Federal Mediation and Conciliation Service (mediation, impasse assistance) = Federal Service Impasses Panel (final authority – can impose settlements) = Arbitrators = Courts 16

Union member Bargaining unit member Bargaining team members = person who pays dues and is accepted as a member; dues are paid through payroll deductions or directly to the Union. = Person who occupies a position in the bargaining unit, whether or not a union member. = Persons designated by the Union to conduct negotiations. 17

Chief Negotiator/ Spokesperson Subject Matter Expert (SME) = person who chairs the Union’s bargaining team during negotiation sessions; the person authorized to “sign off” on agreements, send and receive correspondence, etc. = person who is accepted by both parties as being able to explain laws, regulations, or policies in a specified area. Can be “experts” on issues under discussion at the bargaining table. 18

“THE STATUTE” 5 USC CHAPTER 71 19

The Civil Service Reform Act of 1970 included a title that added Chapter 71 to Title 5 U. S. Code. This Is commonly referred to as the Statute in labor relations parlance. 20

The Statute sets the basic rules for conducting labor-management relations in the Federal sector. 21

Management Rights Congress outlined a broad range of “Management Rights” under Federal Statute (5 USC Chapter 7, Section 7106 A) ü To determine the mission, budget, organization, number of employees, and internal security practices… ü To hire, assign, direct, layoff and retain employees, and to suspend, remove, reduce in grade or pay, or take disciplinary action…. ü To assign work, make determinations re contracting, to determine personnel… 22

Despite broad management rights, the Statute MANDATES the right of unions to bargain over: ü ”procedures” which the Agency will observe in exercising any authority; and, ü “appropriate arrangements” for employees adversely affected by the exercise of any authority. Examples-- bargaining over the impact of reorganization, 23 contracting, reductions in force, and much more….

5 USC 7106(b)--Nothing in this section shall preclude any agency and any labor organization from bargaining…. ü (2) procedures…. Which management officials will observe in exercising any management rights authority under this section (i. e. , how they may be implemented, but not changing the right itself); or ü (3) appropriate arrangements for unit employees adversely affected…. By the 24 exercise of any (management rights) authority under this section

You can also bargain other issues that do not directly interfere with Management Rights Such as…. Grievance procedures (required by law); § Official time for union representation; § Fitness programs § Union recognition programs § Transit subsidies, parking, shuttle services § And most other issues touching on working conditions and related personnel issues Much of this has been determined by FLRA case law over many years § 25

It is Not Legal to bargain over subjects set by law and government wide regulation Examples include leave and overtime, pay rates, and certain benefits like health insurance and retirement. But laws leave lots of employment issue incomplete. Those details and options can be bargained! 26

Some Examples of Compensation & Benefit Changes That Can be Bargained ü Criteria for career ladder promotions ü The right to insist temporary promotions where there has been a change in duties ü Performance awards ü Transportation stipends ü Prices for food services ü Parking ü Student Loan Forgiveness ü Tuition Assistance 27

Federal Collective Bargaining: The Process and the Players 28

When is it appropriate to bargain? 1. When there is no agreement in place (and you have a certified unit) 2. At the end of an agreement (when the current contract term expires) 3. Whenever working conditions change (i. e. “mid-term” and “Impact & Implementation” bargaining) Note– Contracts stay in place until renegotiated 29

Types of Agreements 1. Master Labor Agreement (MLA) Requires FLRA unit certification Generally for Consolidated Units 2. Local or Regional Agreements 3. Local Supplemental Agreements (MLAs may stipulate requirements) 4. Memorandums of Agreement (typically issue specific) 30

THE NEUTRALS 31

FEDERAL LABOR RELATIONS AUTHORITY (FLRA) Oversees representation elections Determines federal case law Resolves negotiability disputes Stops unfair labor practices by either agencies or unions (e. g. , union animus, regressive bargaining, delay tactics, avoiding agreement) Patterned like the National Labor Relations Board for the private sector 32

FEDERAL MEDIATION AND CONCILIATION SERVICE (FMCS) Provides assistance in resolving negotiation impasses and other disputes Trains parties in cooperative practices Provides lists of available arbitrators upon request FMCS cannot impose settlements or require agreement 33

FEDERAL SERVICE IMPASSES PANEL (FSIP) (PAGE 1 OF 2) Makes FSIP final resolution to negotiation impasses can take a very broad range of actions— Can require Fact Finding Can require final offers from both parties Can impose a settlement Can require further bargaining (and often does) 34

Examples of Other FSIP Options PAGE 2 OF 2 o The FSIP can require more mediation o The FSIP can require fact finding, with written submissions from both parties as to the reasoning behind each party’s specific proposals o ** After requiring written submissions, the FSIP may then impose a settlement 35

* In view of what you know about FSIP powers, what are the implications for you as a negotiator? 36

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Bargaining typically begins with a change in working conditions. If you wish to bargain over the change, you must submit a formal demand to bargain 38

“DEMAND TO BARGAIN” NOTIFICATION— Check the Contract requirements and follow them carefully: Are there Time limits? Who receives the request? Are all proposals to be presented at the same time? 39

EXAMPLE Dear [Management representative]: Pursuant to Article ___ , Section ___ of our collective bargaining agreement, this constitutes notice that AFGE Local/Council 56 demands to negotiate over the procedures to be used to implement furloughs of bargaining unit employees prompted by the sequestration, as well as appropriate arrangements for those employees who are adversely affected. 40

The union proposes to meet [date, time, place]. Our bargaining team will consist of [names]. We are aware of the serious nature of the current circumstances and appreciate the need for prompt action. I look forward to receiving your response and to efficient and productive negotiations. Sincerely, Could also ask for response DATE 41

The Union should also submit an information request, asking for answers to five key questions: 1. What you want? 2. Why you want it? 3. Who is it going to affect? 4. How is it going to affect them? 5. When do you want to get it done? E. g. , For a proposed Office Reorganization— The required ASKS include who is affected, how many are affected, where is it happening, when is it happening…. . 42

IT’S ABOUT THE MEMBERS! So, find out from the members: Who is affected? What are their concerns? What do they expect the Union to do about it? Use Surveys, Update Members at Meetings, Use Newsletters Never underestimate the value of 1 -on-1 discussions 43

CONSIDER INCLUDING THE INFORMATION REQUEST AND BARGAINING PROPOSALS WITH THE BARGAINING NOTICE ”Attached is a request pursuant to the Contract and 5 U. S. C. 7114 (b) (4) for information that is necessary for our collective bargaining…. And/Or “Attached are the union’s initial proposals. We reserve the right to make additional proposals during the course of these negotiations…. 44

Under 5 U. S. C. , § 7114(b): The Agency is required to provide data requested by the Union for bargaining— The duty to provide information is a “good faith requirement” under FLRA guidelines for bargaining. . 45

Some Special Stipulations about Information Requests-1) The information must be ”normally maintained” by the agency in the regular course of business; 2) The information must be ”reasonably available” and “necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining”; and 3) The information ”must not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining”. 46

NORMALLY MAINTAINED MEANS…. . q. The agency must possess the data, or may access the data from an easily accessible source; q. The agency is able to maintain the data in regular course of business q. Not necessarily in just one location q. Not necessarily in a “system of records” 47

If the Agency stalls or argues that the request is overly burdensome…. Point out, for the record, that information is necessary for the union to carry out the Union’s responsibilities, both in negotiations and in the administration of the labor agreement Explain the connection(s) between the information needed and the Union proposals, how employees are being adversely affected 48

FLRA “PARTICULARIZED NEED TEST” When the Union requests information, it must tell the Agency: The purpose for requesting the information; The uses to which the Union will put the information; and How the purpose relates to the Union’s role as the exclusive representative. The FLRA requires the parties to discuss in detail any dispute about requested information, and to make a reasonable attempt to resolve the dispute 49

PROPOSAL WRITING 50

BEFORE YOU WRITE A PROPOSAL Ask These Questions: What is the goal? How important is this issue to the members or the Union? Is it just something to have because another agency has it? Or, is it a real “need”? E. g. , Union Office Space: GOALS: Ability to Represent Members, Confidentiality, Equal Footing with Management One can easily argue that this is a real need of the Union! 51

GUIDELINES FOR WRITING PROPOSALS Ø Be clear. Give enough detail, so the reader understands what you mean. Organize the content. Is there proper flow of issues within each section of the proposal. 52

Tip: Always consider how a 3 rd party neutral may respond to your proposal Neutrals may end up deciding the issue if there is a dispute, both in negotiations and after it is negotiated! 53

Simply stating that you “want it, ” or that “it is justified, ” Will Not Get What You Want! Neutrals will consider if there are Comparable Provisions You must demonstrate a clear need for the proposal if you are to win support from a Neutral! 54

Ask yourself, “Would someone who wasn’t in the negotiations understand what the proposal means ? Example: For VA Hospital Workers, “Safe Staffing” is a key principle understood by nurses, but what does it mean to others? 55

“WHAT DID YOU SAY? ” “Sec. 1. Notwithstanding the provisions of Handbook 871. 3, employees may be given additional time when warranted by the circumstances. ” “Sec. C. 2. (iii). Practices that are appropriate and legal may continue, subject to local determination. ” 56

CONTRACT LANGUAGE IS NOT ONE SIZE FITS ALL! ü Language should fit your bargaining unit! ü Do not borrow other agency language just because it “looks good”! --Different organizations have different cultures and priorities --There are different levels of experience and trust within different organizations --There may even be different statutory obligations! 57

FIRST: DOES THE PROPOSAL MEET UNIT NEEDS? THEN ASK-1) Whether anyone else has similar language? 2) Do you have the facts to support the proposal? 3) Can you answer management’s questions? E. g. , You Propose CHILD CARE: Can you answer potential management questions about: Similar experience at other Agencies? What is the real need at Your Agency? What are the expected costs? Are there any regulatory issues? 58

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GROUND RULES Ground Rules state the procedures and protocols that the parties will follow in negotiating a collective bargaining agreement In the federal sector, creating ground rules is a mandatory subject of bargaining if either party wants them

WRITING GROUND RULES Required amount of detail depends on the level of experience and trust between the parties Ground Rules are Useful in Most Cases 61

What do Ground Rules cover? (Can apply to both term and mid-term negotiations) Bargaining preparation rules (e. g. , time allowed for prep, whether travel & per diem is paid, how official time is reported, etc…) Format The of the proposals general process of bargaining (e. g. , how counters are presented, when issues can be tabled, how and when impasse is declared, etc…. ) 62

Other topics covered in ground rules: Size of bargaining teams Alternates; i. e. , notification to other party Note takers; who is responsible for keeping and distributing minutes, whether verbatim notes are required or prohibited Observers; whether allowed or prohibited Subject Matter Experts (SMEs); whether allowed, and whether per diem and travel will be paid 63

More Ground Rules Topics… Site of negotiations; where bargaining will take place, and whethere may be multiple bargaining sites Rules for paying travel & per diem expenses Bargaining Daily Schedule schedule and Length of sessions Frequency Total of sessions number of sessions 64

More Ground Rules Topics…. How to signify agreement Effect of Negotiability Appeals Ratification Impasse Resolution Execution, Agency Head Review Requirements 65

SUMMARY OF “ANALYTICAL FRAMEWORKS” 66

ANALYTICAL FRAMEWORKS Agency negotiators intentionally push the envelope in their interpretation of bargaining requirements unique to 5 USC Chapter 7 and FLRA case law. You therefore must know when the agency is misinterpreting statutory law and FLRA guidelines, and must be willing to push back against bogus claims by management! 67

“MANAGEMENT RIGHTS” The agency is not obligated to bargain over proposals that violate management rights. Management rights include the right to hire; assign; direct; layoff and retain employees; contract out work; reorganize operations; remove employees; reduce employees in grade or pay; and, take other disciplinary actions. 68

But you can bargain: 1) 7106(b)(3)-- Where management rights adversely impact bargaining unit employees (i. e. , “appropriate arrangements”); and, 2) 7106(b)(2)-- Over HOW management rights are exercised (i. e. , “procedures”) 69

“PERMISSIVE TOPICS” 5 USC 7106(B)(1) Nothing in this section shall preclude an agency and any labor organization from negotiating at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods and means of performing work. 70

Although the Union may not submit a permissive subject to impasse, the union can still demand to bargain “appropriate arrangements” where bargaining unit members are adversely affected by management authority. 71

* Where the FLRA recognizes the “exclusive level of recognition” at the National level, the issue of whether you can bargain local supplements to a National Agreement is a “permissive issue. ” Such agencies are not required to bargain locally. Why do you think so many agencies have agreed to negotiate “permissive” local issues at local tables when not required to do so? 72

When an Agreement Expires: All mandatory issues like working conditions and personnel issues remain in place until the parties settle on a new Agreement. Mandatory issues can only be changed through negotiation. Permissive issues, however, can be changed unilaterally when a contract expires by the party for whom the agreements was permissive, though notice of such change is required. 73

“COVERED BY” PRINCIPLE If a matter is already “covered by” a CBA, there is no statutory requirement for management to bargain “further” on that matter during the term of the CBA. I. e. , “The Union had its chance to bargain. ” Management frequently abuses this principle with broad and unsupported claims about contract coverage in an effort to avoid bargaining. 74

2 -PRONG TEST OF “COVERED BY” PRINCIPLE Prong 1: If the agreement expressly encompasses the matter, the matter is “covered by” the agreement. Prong 2: If not, the FLRA determines whether the matter sought is “an aspect” that is “inseparably bound up with” matters already negotiated. If it is, the matter is covered by the agreement. The analysis under Prong 2 will consider the bargaining history, or intent, as components of the 75 record of evidence.

Example-- The parties agree during term negotiations to allow the Agency to establish an “open work space. ” An open work space is then established. Ø After 12 months, supervisors begin unilaterally moving workers to new work stations. Ø The union demands to bargain, but the Agency refuses and claims the issue is “covered by the agreement. ” Ø Can the Agency avoid bargaining by claiming the issue is “covered by” the Agreement? 76

“DE MINIMIS” The FLRA has defined matters that have no appreciable effect on working conditions as de minimis The agency is not obligated to bargain over de minimis matters. 77

BEWARE MANAGEMNENT CLAIMS OF “NONNEGOTIABLE” Agency negotiators intentionally push the envelope in their interpretation of whether or not an issue is legally negotiable, typically by throwing out claims of “non-negotiability. ” Most agency negotiators do not even explain why an issue is allegedly “non-negotiable!” You need to know when the agency is misinterpreting FLRA guidelines, and be willing to push back against such claims! 78

A proposal is typically “Negotiable” if — 1) The proposal involves working conditions for bargaining unit employees; 2) The issue is more than “de minimus” 3) The proposal involves a Mandatory or Permissive issue for bargaining 4) The proposal involves appropriate arrangements for employees adversely affected by management actions; and/or involves how management actions are applied. 79

A proposal is typically “Non-Negotiable” if — 1) There is a specific conflict with federal law or government wide rule or regulation; 2) There is conflict with agency regulation for which there is “compelling need; ” 3) There is a conflict with government-wide regulations (e. g. , merit promotion requirements) 4) There is a direct conflict with the exercise of management rights; or, where procedures “directly interfere” with the exercise of management rights; 5) The “covered by” concept applies 80

AGENCY HEAD REVIEW An Agency Head can over ride portions of an agreement. However, agency head review is limited to identifying and rejecting provisions only where there is conflict with law, government-wide rule or regulation. If there is no conflict, and the parties agreed to it at the table, the Agency Head cannot over-ride the Agreement. 81

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PART TWO- • Principle factors regarding bargaining effectiveness • Good Practices • FLRA “Good Faith” rules • Behaviors to emulate or avoid • “Working with Jerks” 83

FLRA “GOOD FAITH” STANDARDS - • The parties must be represented by duly authorized representatives to discuss, negotiate and reach agreement. • The parties must approach negotiations with a sincere resolve to reach agreement. • The parties must be prepared to meet at reasonable times and places as frequently as necessary, and avoid unnecessary delays 84

* EXAMPLES OF “BAD FAITH” BARGAINING • Delaying tactics, such as limiting meeting times or stalling counters • Cancelling sessions or repeatedly leaving early • Repeatedly being unprepared for bargaining • Repeatedly presenting unworkable counters (especially if presented in an insulting manner) • Refusing to discuss issues (“take-it-or-leave-it”) • Bargaining to impasse over permissive issues • Bargaining “backwards” (retreating to previous proposals) • Violating ground rules • Not responding to data/information requests 85

GOOD FAITH DOES NOT MEAN EITHER PARTY MUST AGREE TO A PROPOSAL- • That may simply be a matter of “hard bargaining” • The FLRA will consider the “totality of circumstances” (i. e. , the overall behavior of the parties, at the bargaining table and away from it) 86

* FACTORS TOUCHING ON BARGAINING EFFECTIVENESS — (PAGE 1 OF 2) • Economic climate • Political/Community support • Member engagement 87

* FACTORS TOUCHING ON BARGAINING EFFECTIVENESS— (PAGE 2 OF 2) • How well you have prepared for each bargaining session • How your bargaining team responds at the bargaining table • Your ability to work the process to your advantage 88

* NOTE TAKING IS CRITICAL- • Maintain copies of all proposals– Separate by Article, organized by date, and include notes on special points • Good note taking helps to develop effective counters • Good note taking helps when working with mediators and other 3 rd party neutrals 89

BARGAINING IS NOT WAR! The objective is to find common ground 90

* GOOD NEGOTIATORS ARE MINDFUL OF THESE PRINCIPLES- • Effective bargaining is not “win-lose” • Explore interests from both sides; this opens more doors for settlement • Know when to bring in neutrals, not just to resolve disputes but to push management 91

NO IS A LEGITIMATE PROPOSAL! (Although you may have to explain your position) • Never refuse to discuss an issue! • Refusing to discuss an issue blocks consideration of potential settlement over difficult issues!. 92

THE BIGGEST PROBLEMS IN BARGAINING ARE NOT THE LEGAL ISSUES ü Lack of trust between the parties ü Poor listening skills on the part of one or both parties ü Conflicting personalities 93

Recognize what is possible, and what is not Consider withdrawing unrealistic proposals if you get reasonable movement on important issues Develop proposals that meet both parties interests 94

* AVOID FALLING IN LOVE WITH YOUR PROPOSALS! • Instead, be responsive to what is happening at the table • Flexibility is a strength, not a weakness! 95

ALWAYS PROVIDE A UNITED FRONT ü No bargaining team members should be allowed to undercut any other member in front of management ü Request a caucus if you disagree with what is happening ü And, once you decide as a team, stick to the team’s position 96

WHY ONE SPOKESPERSON? ü This enables a more cohesive and directed strategy ü Team members may be asked to speak on specific issues on a pre-determined basis. 97

* USE CAUCUSES WISELY Caucuses can be a valuable tool for checking facts and regrouping arguments ü Excessive caucuses give the image of not being prepared. Even so, do not feel shy about calling a caucus if there is confusion at the table. ü Make caucus requests by passing a note to the spokesperson. ü It is up to the spokesperson to call the caucus. 98

OTHER POINTS ABOUT TABLE BEHAVIOR ü Disrespect or condescending attitudes at the table harden the position of the other side. ü Take the time to carefully explain your proposals. Explain why you want it. ü Respectfully ask questions after the other side presents. Prod for more answers if you do not understand. Ask why they want their proposal. 99

* OTHER POINTS ABOUT TABLE BEHAVIOR ü Engage in active listening. This requires patience! ü Resist the temptation to interrupt. Wait for a full explanation of the proposal before asking questions. ü Probe for the Agency’s underlying interests. The Union may be able to accommodate with a counter that satisfies the interests of both parties. 100

“YOU CAN’T POSSIBLY GET WHAT I SAID; I DIDN’T EVEN FINISH MY SENTENCE!” 101

Bargaining Styles 102

POSITIONAL BARGAINING PAGE 1 OF 2 ü Involves successive taking and giving ü Framed as a contest of wills ü Characterized as “win-lose” ü Based on an assumption of a fixed pie ü Most people do it because it is easy! 103

* POSITIONAL BARGAINING ü Encourages parties to lock sides ü Typically provides little attention to actual underlying needs of the parties ü Can ultimately harm the long-term relationship 104

WHAT ABOUT COMPROMISE? ü So called “soft bargaining” can be counter-productive because excessive compromise often make one party vulnerable to hard tactics from the other side. I. e. , it increases the chance of one-sided losses 105

HOW YOU SEE THE WORLD DEPENDS ON WHERE YOU SIT ü Understanding the other side is not the same as agreeing to their perceptions. ü Understanding their perceptions makes it far less difficult to achieve mutually beneficial agreements. ü In order to deal with differing perceptions, you must make the differing perceptions explicit. Discuss HOW and WHY perceptions may be different. This requires an ability to avoid blaming. 106

* TIP ü If both sides feel comfortable about recognizing and dealing with differing perceptions, consider developing Joint Proposals by working together on language at the table. This requires a mature and trusting relationship 107

WORKING WITH JERKS ü Make management defend their position ü Make them respond to your facts ü Ask how their position meets employee needs ü Do not make a counter until they have responded completely to your proposal ü When you ask a question, do not let them off the hook. Wait for an answer! 108

TRICKS THEY MAY PLAY ü Deliberate deception Trust but verify. If they give you bogus information, check it out…. ü Ambiguous authority If they treat a negotiated agreement as an unexpected floor, insist on reciprocity. E. g. , “Alright, we will treat our agreements as drafts to which neither is committed. ” 109

DEALING WITH EXTREME DEMANDS ü Point out that extreme positions reduce credibility ü Make them defend their position ü Be willing to bring in a neutral to call them on it! 110

FINAL TIPS 111

* 1. Allow the other side to let off steam. But control yourself and refuse to participate if they become abusive. 2. It is easy to get involved in thinking about what you are going to say next, instead of listening to what the other side is saying. A good negotiator listens to the other side first, and only then develops a response. 3. A good practice is to repeat what you understand them to have said, and then refute it. That way, they cannot say that you misunderstood. 112

ü Do not make important decisions on the spot. Take time to consider your response, either by taking a caucus or by responding another day. ü Present your reasoning before offering your proposals across the table. This is the best way to assure they hear the reasons for your proposal. ü Know what is really being said. This is where active listening can be critical. No sometimes means it will be considered, but now. 113

ü You don’t get what you do not ask for. ü Maintain a positive attitude ü Be patient ü Proceed as if success is inevitable 114

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Main Points to Remember 116

ü Collective Bargaining is “In the Public Interest, ” in part because it allows employees to have a legally sanctioned voice in determining working conditions. 7101(a) ü The Union is the EXCLUSIVE REPRESENTATIVE of employees in the bargaining unit. This comes with obligations for the Union to abide by Do. L rules for equal and fair representation, and for the Agency to deal exclusively with the Union. 117

ü The Federal Sector Labor Management Relations Statute (5 USC 71), together with FLRA case law, outlines the overall framework for bargaining in the federal sector. ü Your ability to understand the role of the FLRA and neutrals will enhance your ability to negotiate effectively. ü 5 USC 7106(b)(2&3)-- These are key! Although “Management Rights” are broad, Unions can bargain over “procedures” that affect the authority of management to exercise rights (i. e. , over HOW such rights are exercised), and over “appropriate arrangements” for unit employees adversely affected by the exercise of management rights. 118

ü Although you cannot bargain over subjects set by law or government-wide regulations, laws and regulations often leave lots of issues incomplete. Those details can be bargained. ü Mandatory issues for bargaining (working conditions, personnel issues, etc… all stay in place until renegotiated by the parties. ü Mid-term bargaining (“Impact bargaining) can happen anytime a change in working conditions occurs. But you must make a timely and contractually appropriate “Demand to Bargain. ” A formalized process applies, just as when bargaining a new Contract. 119

ü FLRA Neutrals are available to help you, because in the federal sector there is no right to strike. Ultimately, however, you are usually better off making an attempt to negotiate, and using the process to your advantage. ü -- Can you convince the neutrals of the merits of your position? -- Mediators do not impose anything on either party -- The FSIP could easily order you back to the table -- The FSIP will weigh the merits of both sides 120

ü 7114(b) -- Management is required to provide data necessary and relevant to the bargaining process. The FLRA will imposes a “particularize need test”: Explain the purpose of the information request; Explain the uses for the information; Explain how the purpose relates to the Union’s role. ü Your proposals must be clearly understandable. Consider how a neutral will understand your proposal. ü Does it relate to a clear need of the unit? ü In regard to Ground Rules, think about what you want before you begin the discussion. 121

ü Be ready and willing to challenge management when they make a claim of “non-negotiability. ” A proposal is usually negotiable if: It involves working conditions; It involves mandatory or permissive issues; It involves arrangements for adversely affected employees; and/or, It involves “procedures” for how management exercises its rights. The FLRA ENCOURAGES UNIONS TO CHALLENGE NON-NEGOTIABILITY CLAIMS! 122

ü The FLRA will consider the totality of circumstances when determining whether “good faith” standards have been met. Some of the key behaviors for bad faith include: -- Delaying and being repeatedly unprepared; -- Submitting unworkable proposals; -- Bargaining “backwards” -- Not explaining your positions ü Many factors touch on bargaining effectiveness. The most important facts include: -- Member engagement -- Political/community support (for certain issues) -- How well you are prepared at the table 123

ü Bargaining is not about going to war; -- It is about finding common ground ü You will not find common ground if – -- You are not willing to address common interests. -- You cannot engage in active listening -- You think of bargaining as “win-loose” ü NO is a legitimate proposal; -- Be ready to defend your position Can you back it up with good data? How does their proposal serve employees? Would the FSIP support your position? 124

* What is Your BATNA? (Best Alternative to a Negotiated Agreement) knowing your BATNA enhances your ability to negotiate effectively What are the most common determinations of BATNA in federal sector bargaining? 125