Argue the Calls, But Don't Kill the Ump

By on June 26, 2008 in Current Events with 1 Comment

by

Bill Persina

Mr. Persina is a Former Solicitor and senior attorney of the FLRA, now retired.

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A few weeks ago, Frank Ferris, Executive Vice President of the National Treasury Employees Union, wrote an article in this space calling for “scuttling” the Federal Labor Relations Authority (FLRA) like a rusty old freighter whose time has come and gone.

The basis for his proposal is the disastrous tenure of FLRA Chairman Dale Cabaniss. Frank is certainly correct that Cabaniss’ reign as Chairman has been a disaster, for many of the reasons he mentions. However, as many bloggers subsequently pointed out, the best response to that fact is not to destroy the agency. Rather, the next President should make quality appointments to vacant FLRA positions that will ensure that the agency can vigorously and effectively carry out the mission Congress identified for it in the Civil Service Reform Act of 1978 (CSRA), that is, to “provide leadership in establishing policies and guidance” in federal sector labor relations.1

The purpose of this article is to review why an effective FLRA is so critical to effective labor relations in the federal government. Let’s not forget our history in this area.

During the 1960’s, federal sector labor relations was governed by Executive Order (EO) 10988.2 This Order created guidelines for agencies to follow in dealing with employee unions, but no central authority of oversee the program. Labor relations in the federal sector grew so quickly in the ‘60’s that the need for a central authority to administer the program soon became obvious. Thus, EO 11491 was issued in 1969, creating the Federal Labor Relations Council (FLRC) to be that central authority.3

Still not good since, among other things, the FLRC was composed of part-time members drawn from the management ranks of other agencies, and there was no judicial enforcement/review mechanism for FLRC decisions. That brought about Congress’ creation of the FLRA in the CSRA. In short, a major part of the evolution of federal sector labor relations over the last 60 years has been toward establishing effective central management of the program, to ensure effective implementation of collective bargaining throughout the executive branch.

The importance of central management becomes clear when we look at the inadequacies of Frank Ferris’s suggestions for FLRA substitutes. First, Frank suggests we have private arbitrators do the job. This doesn’t work for a few reasons.

First, the cost to the parties would be prohibitive. Arbitrators don’t come cheap. To use them to resolve every ULP charge (thousands are filed every year) and negotiability case would bankrupt many unions and strain agency budgets.

Second, with no central administration, arbitrators will reach different decisions on identical fact patterns, thus confusing the parties as to what the law is. Some unifying judicial review mechanism could be devised, as with arbitrator decisions involving adverse actions, to review these awards.4 However, if you think the FLRA process is time consuming, wait until you see the federal circuit courts dealing with the avalanche of appeals from arbitration awards on denials of ULP complaints, for example. Believe it or not, the system would grind to a halt worse than it is now. A properly functioning FLRA is a far better vehicle for dealing with cases arising under the federal sector labor statute.

As for Frank’s other suggestions, many of them are possible now under the current scheme. The Labor Statute already calls for the parties to use mediation in resolving bargaining impasses,5 and the parties can presumably invest those mediators with whatever “clout” they wish to. Alternative dispute resolution (ADR) procedures are also available under the current system, and in fact were used to great effect during the tenures of FLRA Chair Phyllis Segal and General Counsel Joe Swerdzewski in the 1990’s. It’s not clear what Frank meant when he suggested that the parties be able to “move on their own” in unfair labor practice cases when there is no General Counsel in office. However, the law allows the Deputy General Counsel to issue complaints when there is no General Counsel. If the FLRA had competent leadership, staffing decisions like ensuring that a Deputy General Counsel was in place would be made, thus greatly minimizing the impact of a vacancy in the General Counsel position.

When it works right, collective bargaining can make a major contribution to effective government operations. Employees feel they have input into what kind of work environment they’ll be operating in. Management can benefit from the perspectives of the people who actually do the work when it establishes work rules and procedures. Sure, there are abuses on both sides. Union representatives “grandstand” to the rank and file by being unreasonable and intransigent. Managers just don’t want to be bothered by engaging with the union in any meaningful way, preferring to rule by fiat. But there are instances in the government where the bargaining process has worked. Frank Ferris and NTEU have helped create a number of them.

As in baseball, the system needs an umpire who calls the balls and strikes fairly. That’s the FLRA. You may not like this or that call, but you can’t play the game without someone to make the call. Let’s just make sure we get ourselves a good umpire.

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1. 5 U.S.C. § 7105(a)(1)

2. 3 C.F.R. 521 (Comp. 1959-63)

3. 3 C.F.R. 861 (Comp. 1966-70)

4. 5 U.S.C. § 7121(e).

5. 5 U.S.C. § 7119(b)

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