Be Careful What You Ask for – And How You Respond

By Michael Rhoads, September 14, 2021

I’ve always regarded Labor Relations like the old Rubik’s Cube. There are a seemingly endless number of twists and turns before arriving at the final solution. I admire the tenacity of those who have made a career out of LR.  It’s not for the faint of heart, especially when engaged in “robust debate.” And to make it even more interesting for those practicing LR in Federal agencies, the message from the top-down changes with each new Presidential administration.

Permissive Bargaining

Since President Biden revoked The Presidential Memorandum of October 11, 2019 (Executive Orders 13836, 13837, and 13839) in Executive Order 14003, management has been asked to operate under a new set of bargaining rules. The Biden administration even set the tone by stating: “It is also the policy of the United States to encourage union organizing and collective bargaining.”

Of particular note in EO 14003 is section 4. Ensuring the Right to Engage in Collective Bargaining. “The head of each agency subject to the provisions of chapter 71 of title 5, United States Code, shall elect to negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1) and shall instruct subordinate officials to do the same.”  This is a 180-degree turn from the previous administration, who said the agency “may not negotiate” over the subjects of 7106(b)(1).

OPM also issued a memo on March 5, 2021 in support of the topics covered in 7106(b)(1). “In order to implement the policies of the Executive Order, agencies shall agree to bargain over the substance of §7106(b)(1) subjects, whether at the union’s request (e.g., midterm bargaining request) or as the result of a proposed agency action (e.g., union responding to an agency notice of a pending change subject to collective bargaining).

Requests for Information

The new permissive bargaining sets the stage for new negotiations between management and the unions representing bargaining unit employees.  During these negotiations, the union will most certainly request information from management. Requests for information can sometimes feel like the children’s book If You Give a Mouse a Cookie: one request leads to another, and another, and another, ad infinitum.  But no matter how many requests a union submits to management, they must demonstrate a particularized need for the information.

The types of information a union can request from management are covered in 5 USC 7114(b)(4):

(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data—

(A) which is normally maintained by the agency in the regular course of business;

(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and

(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining

If you’re a labor relations specialist looking for best practices on how to negotiate in this new climate, look no further.  Join my colleague, Ann Boehm on Friday, October 1, 2021 for 2 sessions Permissive Bargaining from 11:15-12:30 PM EDT, and Requests for Information from 1:30-2:45 PM EDT.  And be sure to check out our other topics in our upcoming end-of-FY virtual event Federal Workplace 2021: Accountability, Challenges and Trends, which runs from September 27 – October 1.

 

As this fiscal year comes to a close, I wish everyone a productive September. Be safe, and remember, we’re all in this together. Rhoads@feltg.com