July 15, 1997

GUIDANCE MEMORANDUM

TO: Regional Directors

FROM: Joe Swerdzewski, General Counsel

SUBJECT: Pre-Decisional Involvement: A Team-Based Approach Utilizing Interest-Based Problem Solving Principles - see also the Executive Summary

This Guidance Memorandum discusses the concept of "pre-decisional involvement" and its implementation utilizing a team-based approach which relies upon interest-based problem solving skills, techniques and strategies. It serves as guidance to the Regional Directors in educating the parties on the benefits of collaborative approaches to labor-management relations and in assisting them in their efforts to improve those relationships. This Guidance also implements the Office of the General Counsel Facilitation, Intervention, Training and Education (FITE) Policy which sets forth the principles and criteria that the Office of the General Counsel follows when working with the parties and delivering FITE activities to further the development of collaborative relationships and dispute resolution.

I am making this Guidance Memorandum available to the public to assist union officials and agency representatives in working together to develop productive labor-management relationships. This Guidance is a continuation of my office's commitment to provide the participants in the Federal Service Labor-Management Relations Program with my views on significant topics.⁽¹⁾ This Guidance reflects my views as the General Counsel of the Federal Labor Relations Authority and does not constitute an interpretation by the three-member Authority.

This Guidance Memorandum is divided into four parts which address the concept of pre-decisional involvement - what is it? (Part I); the benefits of engaging in pre-decisional involvement - why do it? (Part II); the relationship between pre-decisional involvement and the statutory duty to bargain - what happens after you do it? (Part III); and a step-by-step model on structuring a pre-decisional involvement process using interest-based principles and team concepts - when and how to do it? (Part IV). Attached to this Guidance is a summary of that step-by-step approach for the Regions to use when assisting the parties in designing a pre-decisional involvement process.

PRE-DECISIONAL INVOLVEMENT: A TEAM-BASED APPROACH UTILIZING INTEREST-BASED PROBLEM SOLVING PRINCIPLES

PART I. What Is Pre-Decisional Involvement and Where Did it Come From?

PART II. The Benefits of Engaging in Pre-Decisional Involvement - Why Do It?

PART III. The Relationship Between Pre-Decisional Involvement and the Statutory Duty to Bargain - What Must be Decided Before You Begin About What You Will Do After it Is Done

PART IV. The Use of Interest-Based Principles and Teams To Accomplish Pre-Decisional Involvement - A Model on When and How to Do it

• Step 1. The Agency and the Union Determine if They Will Engage in Pre-Decisional Involvement Over a Particular Matter

• Step 2. Representatives of the Agency and the Union Come to a Common Understanding on the Relationship Between the Pre-Decisional Involvement Process and the Statutory Duty to Bargain

• Step 3. The Agency and the Union (and any Other Entities Involved in the Process) Come to a Common Understanding on the Structure of Their Pre-Decisional Involvement Process

• Step 4. The Partnership Council Identifies the Interests of the Agency and Union That Must Be Satisfied by the Team's Recommendations and the Standards With Which any Solution Must be Consistent

• Step 5. The Partnership Council Creates the Charge of the Team and Meets with the Team to Discuss the Charge

• Step 6. The Pre-Decisional Involvement Team Meets and Reaffirms a Common Understanding Among All Team Members of their Charge And Fulfills Its Charge

• Step 7. The Partnership Council Reviews the Team's Work Product and Takes Appropriate Action

A Guide to Designing a Pre-Decisional Involvement Process

Simply stated, pre-decisional involvement is a term which represents those activities where employees through their elected exclusive representative are afforded by agency management the opportunity to shape decisions in the workplace which impact on the work the employees perform. In my view, pre-decisional involvement is the cornerstone of Executive Order 12871, as amended, "Labor-Management Partnerships." The preamble of the Executive Order provides that "[t]he involvement of Federal Government employees and their union representatives is essential to achieving the National Performance Review's Government reform objectives." Pre-decisional involvement is a vehicle that provides for that "involvement." It is a process where unit employees who perform the daily tasks that collectively accomplish the mission of the agency have input into a decision-making process which traditionally has excluded them as stakeholders. It does not expand the topics which are mandatorily negotiable under the Federal Service Labor-Management Relations Statute (Statute). Pre-decisional involvement does not waive management's statutory right to make decisions under section 7106 of the Statute, nor does it waive a labor organization's right to engage in bargaining prior to implementation to the extent required by the Statute. Rather, pre-decisional involvement is a process to provide for employee input as stakeholders into the decision-making process in order "to design and implement comprehensive changes necessary to reform Government" and "to champion change in Federal Government agencies to transform them into organizations capable of delivering the highest quality service to the American people."⁽²⁾

In order to be successful, however, it is critical that both parties to the relationship, labor and management:

• have a common understanding of what pre-decisional involvement, as they themselves define it, means;
• share a mutual appreciation of why it is in their own best interest to engage in pre-decisional involvement;
• have similar expectations of the results they seek to obtain from pre-decisional involvement; and
• agree on what actions occur after pre-decisional involvement has concluded.

The parties themselves must mutually agree on how they will deal with each other under this concept. When the Regions work with parties under the FITE Policy to establish a pre-decisional involvement process, the following principles of pre-decisional involvement should be fully explored:

1. The process begins early when ideas are forming;
2. The parties have common expectations;
3. Information is freely shared throughout the process and there is an understanding on confidentiality of the information and the process;
4. The participants utilize a problem solving approach founded on interest-based principles;
5. The participants adapt a team approach to their activities; and
6. The parties and the participants demonstrate a high degree of commitment to the process and to achieving their shared expectations.

Each of these principles will be explored in Part IV discussing how to engage in pre-decisional involvement. Prior to engaging in that discussion, however, I will discuss the benefits of pre-decisional involvement.

No party should engage in pre-decisional involvement unless that party believes that it is in its interest to do so. No party should engage in pre-decisional involvement unless it has willingly participated in a process to develop exactly what pre-decisional means, how it will be accomplished, what the parties hope to get out of the process and what actions will occur upon the conclusion of the process. The preamble of the Executive Order mandates that the "involvement" of employees and their exclusive representatives is essential to the National Performance Review's reform objectives. The Executive Order also mandates certain actions be taken by the "head of each agency," including "involv[ing] employees and their union representatives as full partners with management representatives to identify problems and craft solutions to better serve the agency's customers and mission."⁽³⁾

The Executive Order, however, does not define the term "involvement" nor does the Executive Order establish at what stage of the decision-making process this "involvement" should occur or how this "involvement" should be accomplished. Rather, these matters are left for the parties, through their partnership councils, to deliberate and decide. In Part IV, I will set forth a model of pre-decisional involvement that the Office of the General Counsel has developed in working with parties under the Executive Order. First, however, it is imperative that both parties realize that pre-decisional involvement is in their best interest, not just because the Executive Order mandates "involvement" in identifying problems and crafting solutions, but because it makes sense as a means to accomplish the agency's mission and is essential to transform agencies into organizations "capable of delivering the highest quality service to the American people."⁽⁴⁾

Management decisions on how work should be performed must be implemented - and it is employees who perform those work tasks. Those employees have valuable suggestions on such matters as ways to work better and cost less, achieve significant results for the money spent, provide value to customers and stakeholders, deliver products and services on time, bring recognition to the agency for the services it provides and foster a productive and constructive labor-management relationship.⁽⁵⁾ When those employees are in bargaining units under the Statute exclusively represented by a labor organization which was chosen in a secret ballot election to represent the interests of those employees in workplace matters, pre-decisional involvement proves the means to tap into those employees' extensive hands-on experience. Thus, parties should recognize the potential benefits of a pre-decisional involvement process before they embark on the commitment of time and resources. Similarly, parties also should be aware of the potential risk of engaging in pre-decisional involvement when making these decisions. Listed below are some of those benefits and risks.

1. Better decisions. Employees who do the work have input into the decision-making process and are allowed to present and explore solutions that may have otherwise gone unnoticed.
2. Fuller implementation of decisions. The decision is supported and employees responsible for carrying out directives and performing the work have an ownership stake in the success of those decisions since their interests have been acknowledged and satisfied.
3. Greater support of the decision. Decisions are better understood, both as to their origin and their intent, by those who are charged with implementing the decisions.
4. More timely implementation. The risk of delay in implementation caused by attempts to impede or delay implementation of perceived poor decisions is greatly reduced.
5. Any subsequent collective bargaining will be facilitated. If there is a need to engage in collective bargaining under the Statute after the pre-decisional involvement process, it is highly likely that the parties have narrowed the issues, better understand the others' interests and preferred options and have built more trust in their dealings with each other which will only facilitate the collective bargaining process.⁽⁶⁾

1. Increased investment of time. It normally takes longer to reach a decision when an additional entity (the union) and additional participants (employees) are part of the process formulating that decision. Although the decision may be better and implementation may be faster and fuller, the process leading to the decision may take longer.
2. Increased administrative costs. If the participants in the process are not located in the same city, for example, there will be travel costs.
3. Collective bargaining under the Statute may still be necessary. If the interests of the employees that the union represents are not satisfied to the extent necessary, the union may still request to engage in collective bargaining under the Statute. Absent agreement otherwise, the agency normally may not implement a change until that collective bargaining has concluded.

Pre-decisional involvement is a means to better decisions which are timely and fully implemented with the intended results. It is not an end in and of itself. Rather, it is a tool or method to achieve a goal which is in the interests of employees, labor organizations and agencies, the delivery of the "highest quality services to the American people."⁽⁷⁾ The participants, in essence, act as a team of problem-solvers working together to find solutions rather than as adversarial negotiators. Pre-decisional involvement processes currently in effect which do achieve success, need to be continued and expanded to all levels within the agency and the labor organization so that it becomes part of the culture as to how labor and management deal with each other on a day-to-day basis. Pre-decisional involvement processes in effect which do not result in better decisions, and which do result in delay, cost and litigation and a worsening of labor-management relationships need to be reevaluated and rethought by the parties. Parties should not attempt to structure a pre-decisional involvement process without an understanding as to how that process will meet their interests.

Parties also should not begin to structure their pre-decisional involvement process until they come to an understanding of the relationship between the pre-decisional involvement process and the duty to bargain under the Statute. The next part explores that relationship.

Prior to engaging in a pre-decisional involvement process, the parties should have a common understanding of the relationship between their pre-decisional involvement process and collective bargaining under the Statute. The following are alternatives which may occur after pre-decisional involvement has been completed:

1. Recommendation accepted. The union and agency decision-makers accept the option(s) presented by the team and there is no need for statutory bargaining.
2. Recommendation modified and accepted. The union and agency decision-makers modify the option(s) presented by the team and there is no need for statutory bargaining.
3. Statutory bargaining required. The union and agency decision-makers accept some of the options presented by the team and engage in statutory bargaining limited to the few areas where the team options were not accepted as presented or modified.
• Under this alternative, the parties may establish an expedited bargaining schedule since the interests already have been identified and explained and standards for the solution have been established.
• Under this alternative, since the parties already have a full understanding of the issue, the interests and the extent to which the team proposed options meet and do not meet those interests, the parties may agree to post-implementation bargaining or to partial implementation on those matters where there is no disagreement.

Neither party waives its rights under the Statute by agreeing to engage in pre-decisional involvement. As discussed in Part I, successful pre-decisional involvement may obviate the need for other bargaining under the Statute, or may facilitate any bargaining that is required at the conclusion of the pre-decisional involvement process. The decision to engage in a pre-decisional involvement process does not disadvantage the agency or the union with respect to any statutory rights.

Both parties, however, should fully recognize the possibility that it may indeed be necessary to engage in some statutory bargaining after pre-decisional involvement and prior to implementation of a change which otherwise triggers a duty to bargain under the Statute. Our experience has shown that some parties create conflict when they do not have a common understanding of this concept. For example, an agency may believe that the pre-decisional involvement process fulfilled its statutory bargaining obligation while the union may be under the belief that since it did not fully endorse the final decision, it still had the right to engage in bargaining under the Statute. Improved communication and the articulation of what will occur after the pre-decisional involvement process concludes is essential to avoid this type of conflict.

In working with the parties, my office frequently hears the parties question why engage in pre-decisional involvement if it is not guaranteed to replace bargaining under the Statute. The benefits of pre-decisional involvement were addressed in Part III - better decisions, faster and full implementation, and less conflict. Seldom do both parties agree that they will be bound by any recommendation that is generated by a team or work group as part of a pre-decisional involvement process. Just as the union will seldom commit at the initiation of the process to adopt the final work product which emanates from a pre-decisional team or work group and waive its right to bargain, agencies likewise seldom commit to accept that final work product without some form of higher level agency review, with the potential for modifications from the ultimate agency decision-maker. It is not necessary that either party waive any statutory rights in order to engage in meaningful pre-decisional involvement. If the parties fully implement the model discussed in Part IV; i.e., recognize and articulate their respective interests and set forth the standards which any solution must meet, there is a high possibility that the team members will be able to produce options which provide the basis for the best solution. The process breaks down only when those interests are not identified and explained at the beginning of the process and the team does not understand its role.

Once these initial understandings are achieved, the parties may then begin to explore how they will work together to design and implement a pre-decisional involvement process.

A previous Guidance Memorandum issued by my Office, "The Duty to Bargain Over Programs Establishing Employee Involvement and Statutory Obligations When Selecting Employees for Work Groups" (August 8, 1995), focuses primarily on legal issues inherent in the establishment of work groups. The Guidance discusses such legal issues as the rights and obligations under the Statute when establishing and implementing a program which creates work groups to involve employees in examining ways in which to improve the services provided by the agency; the criteria for selecting employees to participate on work groups and the capacity in which the employees will serve and the consequences which flow from these designations, such as reward and evaluation. I also have provided Guidance to the Regional Directors to assist them when working with the parties in jointly creating a structure for work groups to involve employees in the evaluation and potential redesign of agency operations. Those principles and guidance are equally applicable to the use of a team-based approach grounded in interest-based problem-solving principles to serve as a vehicle for pre-decisional involvement. The instant Guidance will apply those principles to the particular task of creating a process for pre-decisional involvement.

The following is a decisional process which the parties can utilize to develop a vehicle for pre-decisional involvement. Also listed under each step in italic print is a model for the parties to consider when developing their own pre-decisional process. The model presented concerns situations where the impetus for engaging in pre-decisional involvement comes from the agency. However, unions may also initiate the exploration of whether pre-decisional involvement should be pursued. The model may equally be used when the union is the moving party. Thus the same factors listed below for agency initiated offers to the union for pre-decisional involvement may also apply to union requests to engage in pre-decisional involvement over issues of concern to the union.

The model follows these basic significant events.

Step 1 - Deciding Whether to Engage in Pre-Decisional Bargaining

Step 2 - Deciding on the Relationship Between the Pre-Decisional Involvement Process and the Statutory Duty to Bargain

Step 3 - Structuring the Pre-Decisional Involvement Process

Step 4 - Recognizing Interests and Deciding on Standards

Step 5 - Creating the Work Team's Charge

Step 6 - The Work Team Decides How It Will Operate and Crafts Solutions to the Issues

Step 7 - The Decision is Made

The agency develops factors to determine which topics trigger the opportunity for pre-decisional involvement. These are some examples of factors which have been developed by parties who have worked with the Office of the General Counsel and are presented here for agencies to consider:

• Whether pre-decisional involvement adds value to the decision-making process.
• Whether the issue lends itself to joint management and union concerns and/or opportunities.
• Whether the issue presents an opportunity for the agency and the union to join together to present a common strategy to deal with an external threat.
• Whether the agency already has taken a fixed position on the issue or whether the agency is willing to explore different solutions.
• Whether the issue lends itself to a short term or long term solution, or both.
• Whether the issue lends itself to a local or national solution.

The agency and union agree upon the type of information that will adequately allow the union to determine if it wishes to engage in pre-decisional involvement process. These are some examples of the types of information transmitted by the agency to the union which have been developed by parties who have worked with the Office of the General Counsel and are presented here for agencies and unions to consider:

• The specific issue(s) involved.
• Any actions that the agency already may have taken on seeking a solution to the issue.
• Any other matters that the agency already may have decided related to the issue.
• Whether the agency has an initial inclination as to the direction that the solution should take.
• Identification of the driving force behind the issue; i.e.,, why it is an issue in the first instance.
• The agency's initial perspective on how important this issue is to unit employees' conditions of employment and how employees perform their work.
• The degree of confidentiality that is required concerning the identification of the issue itself and of the information which is being provided to the union by the agency.
• Any time frames that the agency already may have established for the decision-making and implementation process.
• The anticipated time that representatives designated by the union will spend in the pre-decisional involvement process.
• The time frame in which the agency expects the union to respond to the invitation to engage in pre-decisional involvement.
• Whether the union may request a briefing or further documentation prior to deciding whether it will engage in pre-decisional involvement.
• The agency contact person on the issue.

The union develops factors to determine whether it will accept the agency's offer to engage in pre-decisional involvement. These are some factors which have been developed by parties who have worked with the Office of the General Counsel and are presented here for unions to consider:

• The impact of the issues on unit employees' conditions of employment and how employees perform their work.
• Whether, and to what extent, the agency already has decided certain matters relating to the initiative.
• The availability of the union's resources.
• The time frames that the agency or some outside entity already has established for the decision-making and implementation process.
• The extent to which the agency is open for alternative solutions.
• Whether the driving force behind the initiative is internal within the agency or external.

The agency and union leadership should have the same common understanding about whether the parties will or not will not engage in collective bargaining under the Statute upon the conclusion of the pre-decisional involvement process and the factors that will influence that determination.⁽⁸⁾ The parties also should agree on the consequences if the union chooses not to engage in pre-decisional involvement. For example, the agency may still opt at a latter date to circulate a draft solution which may have been developed on the initiative without union involvement, and/or invite the union to a meeting to discuss developments that have occurred on the issue since the union was initially notified. The parties should acknowledge that whatever action is taken, the union retains its right to negotiate under the Statute and the agency retains its right under section 7106 of the Statute to make and implement decisions.

Representatives of the agency and the union make these process decisions. Where the agency and union have a partnership, the partnership council could make these decisions. If there is no partnership, agency and union representatives, or simply one agency leader and one union official, could make these decisions. For purposes of this model, I will refer to the agency/union partnership council as the agency and union representatives.

In this model, the partnership council engages in the decision-making process, while teams selected by the partnership council are charged with brainstorming solutions and analyzing the extent to which various options meet the interests and standards that have been identified by the partnership council. This model allows the agency and the union to ensure that their institutional interests have been identified and met and that the process was fair and the team members were not co-opted. The partnership council may modify the options presented by the team. The partnership council also may request further efforts from the team consistent with the concerns of the partnership council. The partnership council informs the team of the final partnership council action and its rationale. The ultimate decision maker may be the partnership council itself, or, if that authority has not been delegated by the agency to the partnership council, by the appropriate high level agency official with responsibility for the issue.

Another option is to delegate the decision-making authority to the team. Under this option, it is critical that the partnership council ensure that the team members understand the institutional interests of the agency and the union. As discussed in the next step, in addition to the identification of interests by the partnership council, the team members identify any independent interests they have which may not have been recognized by the partnership council before they begin crafting a solution to the issue they have been delegated to resolve.

This model also provides for the possibility that the agency and the union may agree that entities, other than management and the exclusive representative, have representation on the partnership council and the team. For example, the parties may agree to allow representatives from mid-level management to serve on the partnership council and the team.

The partnership council develops the interests of the agency and the union that must be satisfied by any proposed solution. It is critical for the leadership of the agency and the union to fully develop their entity's interests. The union should afford bargaining unit employees the opportunity to express their interests and the agency executives should afford their managers at other levels and in the field the opportunity to express their interests. The union and agency leadership can then thoughtfully establish the interests that any solution must satisfy. Similarly, if another entity is allowed to participate, the other entity's institutional interests also are presented and explained to the team members, just as the union's and agency's interests are articulated to the team members.

This model allows the parties to ensure that their institutional interests have been identified. The team members represent the entity that selects them as team members. This entity also is represented on the partnership council. Thus, employees selected by the exclusive representative represent the interests of the union and the bargaining unit.⁽⁹⁾ Managers selected by the agency represent the respective interests of that portion of the agency for which they were selected. Thus, under this model, the team members do not serve as "independent operators," but rather represent broader interests of the team they represent, and those interests are presented and explained by the individuals responsible for leading that entity; i.e., elected union officials and senior agency executives. Under this approach, the potential for the team to develop options which do not address the institutional interests of the entities involved (the union and the agency), and the associated lost efforts and potential for conflict between the team and the partnership council or ultimate decision maker is greatly reduced.

In addition to the identification of interests by the partnership council, an option under this model is to provide the team members with the opportunity to also identify any independent interests they have which may not have been recognized by the partnership council. This added option ensures that the team members which have been charged with developing the solution are full participants in the complete process. This additional opportunity takes full advantage of the team members' on-the-job, local expertise, encourages local initiatives and develops ownership by the team members who are being requested not only to develop a proposed solution to meet the agency's and union's institutional needs but also which meets their needs as the employees who will ultimately implement any decision.

The partnership council also establishes the standards that the team will apply in adopting a recommended solution. These standards are the external restraints that are imposed on any final decision; for example, the solution is legal and must not exceed a specific cost.

The partnership council, or a subgroup of the partnership council, decides upon the charge of the group. The charge includes partnership council decisions on such matters as:

• The issue to be addressed by the team - the problems, opportunities, issues or subject matter that the team is being asked to address.
• The agency's and the union's interests in those issues and the standards which the solution(s) must meet (see discussion in Step 4).
• The team's decision-making authority. For example, whether the team has final decision making authority or whether the team is to present one or more options to the partnership council and the format for that presentation.
• The limitations, if any, that are placed on the matters which the team can explore. For example, whether any specific topics or options outside the team's charge and what, if anything, is "off" the table.
• The time limitations on the team.
• The relationship between the team members' participation in the pre-decisional involvement process and their other assigned duties and functions.
• The time commitment that will be necessary from each of the team members.
• The size of the team.
• The composition of the team. For example, recognition of what entity is represented by the different members of the team represent - headquarters management, regional management, the union, themselves, employees in their division.
• How the team members will be chosen for inclusion on the team.
• The consequences that flow from those roles. For example, employees representing the union are engaged in protected union activity and employees serving through the assignment of work are not engaged in protected union activity.
• The method and frequency of communication that is expected between the team and the partnership council. For example, whether the team will issue a status or progress report?
• The team's final work product, whether it will be a written report, oral presentation, one recommendation per issue, alternative recommendations, ranked recommendations, and/or recommendations evaluated in certain pre-established standards and interests.
• The information that will be supplied to the team members.
• Whether there will be any technical experts on the team serving pursuant to the assignment of work rather representing the agency, union or other entity.

This model also provides for subject matter experts to be selected by the agency, or jointly by the agency and the union, to serve as technical experts. These subject matter experts may be managers, unit employees who are union members, unit employees who are not union members or unrepresented employees. These technical experts are not serving as union or agency representatives, but rather are serving on the team pursuant to the assignment of work.⁽¹⁰⁾

The partnership council ensures that all members of the team fully understand the process, the issue, the standards and the interests of all the entities represented on the partnership council and their charge. The team members share an understanding of the items in their charge and request clarification of any matters in the charge if necessary.

The Team Reaffirms Its Charge and Decides How It Will Operate

Prior to tackling the substantive task of crafting solutions to workplace issue, the team reaffirms that all team members understand their charge and decides how the team will operate. In addition to the charge, some matters that the team may discuss include:

• Expectations of what they want to collectively accomplish as the work product of their team activities.
• Expectations about the results for which the team members are collectively responsible.
• The limitations, if any, on their activities as to time commitments, resources and matters "off the table."
• What occurs if the ultimate decision maker does not accept the team's recommendations or work product? For example, whether the ultimate decision maker return the recommendations to the team for further action or implements decisions not recommended by the team without further team involvement.
• Each team member's commitment to utilize interest-based principles and an interest-based approach in performing their tasks.
• The commitment of the team members to the process agreed upon.
• Additional information and resources that the team requires.
• The degree of confidentiality, if any, to the team's activities.
• The format of the team's final product.
• Whether the team members possess the requisite skills to accomplish the charge.
• Whether the team members need any specific training prior to beginning their activities.
• Whether the team will establish its own action plan pursuant to the time limits in the charge, with incremental time targets.
• Whether the team will adopt ground rules. For example, whether there will be ground rules on such matters as what happens if a member misses a meeting or leaves a meeting early.
• How the team makes its decisions. The process to be followed if the team cannot reach a decision under that process or if the team gets "stuck."
• How the team will operate. For example, whether there be a team leader, and if so, team leader responsibilities. Who will be responsible for coordinating logistics for meetings, obtaining necessary facilities, services and supplies, disseminating information?
• Whether there will be a facilitator - either from within or outside the team, and the facilitator's role.

As discussed in Step 4, in addition to recognition of the agency's and union's interests, this model provides an option for individual team members to also identify any independent interests they have which may not have been recognized by the partnership council. If this additional opportunity to identify interests is chosen, it should be undertaken by the team before the team begins to brainstorm potential solutions.

After achieving clarity of the issue and its charge, an understanding of all the interests being represented and the standards established by the partnership council before the team was formed, the team members, including any technical experts, engage in brainstorming. The team members understand the standards and the interests and are able to develop options which are consistent with those standards and satisfy those interests.

Unless the team is delegated the authority to make the final decision on the subject, the team will be charged with presenting options to the ultimate decision maker, usually either the partnership council or the senior agency official. The recommended options are consistent with the standards and best meet the interests of all entities represented on the team, and the individual team members if that option was selected, that were articulated prior to the commencement of the team's efforts. The team provides a written report which analyzes how each of the recommended options meet the interests which had been expressed and the extent to which it meets those interests. The team also has the option to prioritize options, based on the team's collective assessment of the extent to which a solution meets the interests and is consistent with the criteria. If the team cannot reach consensus on prioritizing options, the report details the extent to which each supported option satisfies, and does not satisfy, the various interests represented on the team. The technical experts participate as subject matter resources during this evaluation process, but do not participate as a principle of the team in determining the prioritization of the options.

This model allows the team members to focus their energies on the development of solutions to the issue. Our experience has shown that there is a possibility that both local union and agency managers may not fully know or understand the interests of their principals. In such situations, the team's efforts are not as productive as they could be since the team spends time developing a solution which does not meet their principals' needs. Rejection of recommendations by the team alienates the team members, both union and agency, and may result in delay, and worst, conflict between the team and the decision maker(s).

If the individual team members are afforded the opportunity to present their own individual interests that weren't recognized in their charge by the partnership council, those interests also will be addressed in the solution. Whether or not individual interests are recognized, however, any proposed solution must meet the interests developed by the partnership council.

In addition, this model removes the decision-making task from the team, but allows the team members to use their skills, knowledge and abilities to perform the task for which they were chosen - to develop solutions to issues. This model sets the stage at the beginning so that the team members recognize and understand their role as brainstorming options that are consistent with previously established standards, and to meet the fully articulated interests of all the entities involved in the process. The team members engage in evaluation of the options and are encouraged to prioritize the options based on the extent to which the options satisfy the interests of the all parties.

The team presents its report to the partnership council pursuant to the team's charge. The partnership council reviews the team's work product, particularly the reasons given as to the extent certain recommendations do or do not satisfy the various interests that were explained to the team members by the partnership council. The partnership council has the option to return the work product to the team with further instructions or to clarify certain questions raised by the partnership council. The partnership council, if authorized to do so, may also choose to accept or modify the options or create a new option to recommend to the ultimate decision maker, if the partnership council itself has not been granted that authority. The partnership council reports its action to the team, regardless of the action taken.

Our experience has shown that most team recommendations are usually modified by the ultimate decision maker(s) prior to acceptance. Sometimes, the team members are not even consulted about any changes or the reasons therefore, leaving the members with an unfulfilling experience. This approach allows the team to focus its skills, knowledge and abilities on developing solutions while allowing the leaders of the entities involved in the process to engage in the final decision-making.

Attached to this Guidance is a summary of this model for the Regions to use when assisting the parties in designing a pre-decisional involvement process. The model relies upon a pre-decisional process based on interest-based principles, rather than an approach where the participants come to meetings to present their positions and attempt to convince the other members to agree with those positions and modify their own positions. The experience of the Office of the General Counsel in working with parties under our FITE Policy has revealed that an interest-based approach to problem solving is a far more effective tool to obtain meaningful solutions to workplace issue. Accordingly, consistent with the mandate in the Executive Order that interest-based bargaining should be used as a tool to deliver the highest quality services to the American taxpayer, this Guidance has set forth a model for the use of interest-based problem solving by a team charged with developing solutions to work place issues in a pre-decisional setting.⁽¹¹⁾

1. Previous public guidance memoranda have been issued on "The Duty to Bargain Over Programs Establishing Employee Involvement and Statutory Obligations When Selecting Employees for Work Groups" (August 8, 1995), "Guidance on Investigating, Deciding and Resolving Information Disputes" (January 5, 1996), The Duty of Fair Representation" (January 27, 1997), and "The Impact of Collective Bargaining Agreements on the Duty to Bargain and the Exercise of Other Statutory Rights" (March 5, 1997).

2. Executive Order 12871, as amended.

3. Executive Order 12871, as amended, Section 2 (b). The Executive Order also, among other things, establishes the National Partnership Council (Section 1), and mandates agency heads to create labor-management partnerships at appropriate levels, provide systematic training of agency employees in "consensual methods of dispute resolution, such as alternative dispute resolution techniques and interest-based bargaining approaches," negotiate over subjects within section 7106(b)(1) of the Statute and evaluate progress and improvements in organizational performance resulting from labor-management partnerships. (Section 2 (a), (c), (d) and (e).)

4. Executive Order 12871, as amended.

5. This is the "recipe" for a "high performing Federal Agency" developed by working groups of the National Partnership Council and the Human Resource Development Council. Training and Facilitation Handbook, National Partnership Council, April 1996, at 4.

6. In Part III, I will explore the relationship between pre-decisional involvement and the duty to bargain under the Statute.

7. Executive Order 12871, as amended, at Preamble.

8. Part III explored the relationship between pre-decisional involvement and collective bargaining under the Statute.

9. These employees are engaged in protected activity and are serving as union representatives on the team. Accordingly, as discussed in the August 8, 1995 Guidance Memorandum on Work Groups, they may not be evaluated on their performance on the team. Further, since these employees are serving as union representatives, the union may consider union membership as a criterium in selecting its representatives, although the union is not required to do so.

10. As such, the technical experts are not engaged in protected activity under the Statute and thus they may be evaluated on their performance, either positively or negatively, and they may be rewarded for their participation and contributions.

11. This model is only one possibility. The Regions should assist the parties in using an interest-based problem-solving approach to create their own model or adapt this model to satisfy their specific interests.