When Congress passes a new law and it is implemented, what is one of the first things to happen when things don’t go as planned by all parties?
In America, we hire lawyers and go to court.
In the federal labor relations program, we have become accustomed to litigation. Some in the labor relations field can spend the better part of their career involved in one issue that goes on from one avenue of appeal to the next. Among the most notable recent examples: changes to the human resources systems for the Department of Defense and Department of Homeland Security. Lawsuits are flying inside the beltway before the system is not even implemented.
If or when the systems become operational, many more will fly around the Washington, DC beltway as the bureaucracy creeps along toward making changes.
Here’s another case in point. Way back in the mid-1990’s, the Clinton Administration and Congress got together and authorized a new personnel system for the Federal Aviation Administration. In hindsight, that process went smoother than the recent changes in DoD and DHS, in large part because the unions representing FAA employees received significant benefits from the changes.
The FAA implemented its new system in 1996. Employees continued to be represented by unions and there were some changes that were very favorable to organized labor. Most federal employee unions cannot negotiate on pay and benefits. Under the new personnel system in the FAA, that is not the case.
Most of the public attention has been focused on the air traffic controllers. No doubt, that is because the controllers went on strike a couple of decades ago leading to disruption, economic loss and firing by President Reagan of those that stayed out on strike. The union was decertified.
But this is America and we often forgive and forget. A new union (NATCA) was certified by the controllers in 1987, the agency held training sessions for FAA personnel on how to work together and things worked smoothly for awhile as the parties tried on the look and feel of the new labor-management relationship and shook off the negative residue of the strike, firings and numerous appeals that followed for years.
The initial bargaining went smoothly after the FAA implemented a new personnel system. The unions and the agency quickly reached agreement on a new contract, the air traffic controllers got a big raise, and the agency issued a press release saying that everything was now sweetness and light in the new "performance-based organization."
That was then and this is now. The bloom is definitely off this rose. NATCA and the FAA are publicly fighting over the terms of a new agreement and hurling accusations throughout the news media that essentially boils down to "You’re Lying!" with a predictable response: "No, you’re the liar!"
It seems that the partnership era may have delayed the trip to court by a few years but didn’t stop the inevitable.
What does the new system require when bargaining between the FAA and a union reaches a deadlock? When the union told the agency what it wanted and the agency essentially said "okay", there was no impasse. But what if there is no agreement?
The union says their disagreement goes to the Federal Service Impasses Panel (FSIP), just as other agencies and unions do when they don’t agree on a contract. The agency disagrees. It claims the FSIP has no jurisdiction to hear the case and the impasse goes to Congress.
In this case, playing the role of a true neutral, the FSIP decided not to decide. The FSIP said that it was not accepting the case because there was a disagreement over their authority. It did not decide in favor of the agency or the union; it just didn’t make a decision. As is often the case, refusing to make a decision essentially decides the issue.
In this instance, the Panel’s refusal to decide meant that the agency got what it wanted–no jurisdiction by the Panel.
So, with no remnant or prertense of "partnership" lingering in the background and restraining the true nature of these "partners", off to court went the union. The union lost the first round and fired off a press release that stated "It is in everyone’s interest that these important legal issues governing collective bargaining between the parties be resolved in an appropriate forum in a timely and proper manner, and that the status quo be maintained in the interim."
The union filed another appeal and, now, the Court of Appeals has rendered its decision (NATCA and PASS vs. FLRA and FSIP, No. 05-5076 (February 17, 2006).
The Court of Appeals upheld the initial ruling of the District Court and dismissed the case. It concluded that the union had the option of filing an unfair labor practice with the Federal Labor Relations Authority if it believed the agency had violated the labor relations law. And, said the Court, the FSIP "reasonably questioned whether it had jurisdiction to act."
So, has the issue not been "resolved in an appropriate forum in a timely and proper manner"?
Not likely. While the union was happy when it received Congressional authority to bargain on wages and benefits, it didn’t like the trade-off of having the dispute go to Congress for a final resolution. It has spent a couple million dollars on wooing Congressional representatives and is working hard to get a new law passed that sends a labor dispute to arbitration rather than having a Republican-controller Congress consider the issue.
In short, some nine years after the new personnel system was implemented for the FAA, we know that labor-management partnership doesn’t work well for an extended period and that the courts and Congress will (eventually) be making the final decisions on how the labor relations process will work in the FAA.
Perhaps we will know the answer to that before any changes are ever implemented for new personnel systems in the Department of Defense and the Department of Homeland Security.