It is obvious to even a casual and lay reader that the "draft" Obama Administration executive order making the rounds reflects a purely union view.
It is a dream list of what is solely in the unions’ interests short of modifying the current statute. The OPM overview of and approval of Agency "plans" is very thinly disguised effort at enforcement lacking in the Clinton Order of the 90’s. It won’t work.
Bargaining on and ultimately submitting the operational management decisions of Agencies to a third party (the Federal Service Impasses Panel) is neither smart nor practical. Despite the unions’ efforts to write control into the draft, it will produce the same level of or even more litigation than the earlier try. Sorry guys, but if you don’t have the clout to change the law, an executive order no matter how weasely its written won’t cut it. So why not do it right?
The Federal labor statute was put into effect 30 years ago. The trade off at the time was a government-wide performance management system and a corrective action provision specifically addressing poor performance. This is particularly ironic today as even those unions normally at each others throats have joined up to denounce anything vaguely resembling a "pay for performance" system.
Since the President is now using the B word
(bureaucrat, if you’ve been in a cave) freely of late and has even (shame on him) called for pay for performance, maybe he’s ready for someone to take a serious look at the state of Federal labor relations before stirring up the pot in unpredictable ways.
I’d like to suggest a first time ever hard look at labor relations in the Federal Government with an eye on setting its future course. What might that involve?
Suggestion 1. Establish a blue ribbon panel to examine the state of Federal labor relations and suggest either statutory or regulatory changes to make the program more effective.
Suggestion 2. Insure the credibility of the panel. To do this, it should be chaired by a neutral party with evaluation experience such as the Government Accountability Office. Other members might include OMB, OPM, and a couple of Agencies with substantial labor presence such as DOD and Homeland Security. Including large Federal unions as well as the Senior Executive Association and Federal Managers Association would provide both balance and build confidence in the results. Include the Federal Labor Relations Authority, General Counsel, Mediation Service and Impasses Panel staff as advisors and add college professors if you must.
Suggestion 3. The Panel should develop guidelines for and direct an analysis of labor relations on an Agency by Agency basis.
Suggestion 4. The Panel should examine the scope of bargaining and make recommendations on expansion or contraction.
Suggestion 5. The Panel should examine the overall operations of all involved neutrals including their published regulations and make recommendations for improvements.
Suggestion 6. The Panel should examine and recommend goals and objectives for a government-wide Federal labor relations program and Agency programs.
Suggestion 7. The Panel should examine the issues involved and recommend whether a central government-wide labor relations program and/or advisory office is necessary.
Suggestion 8. The Panel should recommend to the President whether the Administration may accomplish its recommendations through an executive order or by proposing statutory change.
Suggestion 9. The Panel should provide the president a draft of an order or statutory change if recommended.
Suggestion 10. Throughout its operations, the Panel should invite and consider the comments of agencies, unions, employees and interested parties to get the best result.
I am sure others have suggestions as well. We have worked under the statute for thirty years and all, at one time or another, have voiced criticism of one or more of its provisions. Clinton’s order was a disaster in which only confusion was sown. If it’s time for Agency shop, economic bargaining, Federal EFCA or whatever, let’s look at the program in a critical light not nibble at its edges with proven unworkable efforts.
The above reflect my opinions and not necessarily those of others with whom I work, write or hang out.