FLRA Office of the General Counsel 8/14/14 FLRA Office of the General Counsel Pre-Decisional Involvement Under Executive Order 13522 1

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) 2

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 3

PRE-DECISIONAL INVOLVEMENT PDI does not: Expand the duty or scope of bargaining Waive any rights of the parties under the Statute 4

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 5

Negotiation Mgmt. Proposal Agreement Negotiations When people think about the negotiation process, they typically just think about these steps: First, one side makes a proposal. I’m using management in this example because most federal sector negotiations involve management-initiated changes. Second, the other side responds with a counterproposal and negotiations take place. Third, and finally, an agreement is reached. The process is more complicated than that. 6

Negotiation Mgmt. Proposal Agreement Management Deliberations Negotiations Implementation Before any proposal is made, there are typically internal deliberations - sometimes brief, sometimes extensive. Then, and only then, does management submit it’s proposal. Also, reaching an agreement is not necessarily the end of the story. Disputes often arise during the implementation of an agreement. Sometimes this is because the agreement was unclear. But sometimes it is because one side feels the “agreement” is unfair or they feel that their interests have not been met. In that situation, implementation may be hampered because one side deliberately tries to revisit the negotiations during the implementation phase or merely complies with the agreement only to the extent absolutely necessary. 7

Pre-Decisional Involvement Management Deliberations Negotiations Implementation Mgmt. Proposal Agreement Agreement Management Deliberations Implementation Joint Deliberations Union Deliberations Pre-decisional involvement takes a different approach. [for comparative purposes, I have overlayed the traditional bargaining diagram at the top of the screen, to show how it compares with PDI] Instead of waiting for management to complete its internal deliberations and develop a full-blown proposal, the Union is brought in during the deliberative phase. This does not mean that the Union must be brought in at the very beginning, before any discussion takes place. It does not mean that all discussions will be joint discussions. Both sides will have their own internal deliberations, but the parties will meet for joint discussions that will, hopefully, lead to a mutually acceptable agreement. These are not negotiations, where proposals are exchanged and issues such as management rights and negotiability are crucial to the outcome. Because these are discussions, not negotiations, everything and anything is on the table for discussion. If the parties are successful and a mutually acceptable agreement is reached, there is no need for negotiations. Thus, as illustrated above, while the deliberative phase takes longer, that is made up for by the fact that no negotiations are necessary. In addition, because the parties are in agreement on the result, the implementation phase will be shorter and smoother. 8

Pre-Decisional Involvement Management Deliberations Negotiations Implementation Mgmt. Proposal Agreement Agreement Management Deliberations Implementation Joint Deliberations Union Deliberations Sometimes PDI doesn’t work. Sometimes, even after a full discussion of the subject, the parties will simply not be able to reach an agreement. In that case, the fall back is to revert to normal negotiations as required by law. Management will submit its proposal (as refined during the PDI discussions) to the union and negotiations will take place. While it would seem that this turns the extensive PDI discussions into an enormous waste of time, in fact, this is not necessarily the case. When PDI fails, and the parties revert to negotiations, those negotiations will typically be shorter and more focused than traditional negotiations. This is because most of the issues will already have been hashed out during the PDI phase and the parties can focus on just those areas of dispute, quickly taking them to FMCS, FSIP or negotiability. In addition, even if the parties don’t reach an agreement on the whole package during PDI, there may be many aspects of the package where interest-based solution were agreed upon that are superior to those that would have come from traditional negotiation. Negotiations Implementation Mgmt. Proposal Agreement 9

Early Involvement Management: At what point should union be involved? At what point does union want to be involved? Answer to both questions varies with the issue presented 10

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? Stress the need to reach an understanding of what happens after PDI. Depending on needs of audience and trainer preference, multiple scenarios may be addressed, e.g., will the PDI group be a “decision-making” body or merely a “recommending body”? If the latter, trainer may spin out different ways it could be handled. 11 11

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 12

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 13

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 14

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. 15

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 16

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. 17 17

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 “The key to successful leadership in my view is to involve in the decision-making process early and often those who ultimately carry out the decisions.” – Def. Sec. Gates at swearing-in ceremony 18 18

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 19