We live in interesting times (as goes the Chinese curse). Recently, the U.S. House of representatives held a hearing. Before continuing, a look at the official time provision of the statute might be helpful:
5 U.S. Code § 7131. Official time
(a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes.
(b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a non-duty status.
(c) Except as provided in subsection (a) of this section, the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status.
(d) Except as provided in the preceding subsections of this section—
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.
My title to this article alludes to myths and realities relating to the use of official time for “representational” duties of union representatives. President Gage of the American Federation of Government Employees, AFL-CIO, in response to a question, stated that all official time had to be approved. Mr. Gage should speak to his own union’s local leaders. I and everyone who ever dealt with a union representative about official time particularly from AFGE gets what we thought was the AFGE party line that “we (union representatives) don’t ask permission, we provide notice.”
Tim Curry, representing OPM and in answer to another question, said he did not know whether union representatives were permitted to perform their duties away from the job. The Committee Member persisted and asked whether he had any idea about it and Mr. Curry said he didn’t. …and on and on and on.
My intent here is not to beat up on John Gage and certainly not on Tim Curry, who ably represented agencies for many years before going to the Office of Personnel Management. I do think it must be interesting at best to tread the ground between OPM’s political realities and one’s practical experience. That said, it seems to me that almost everyone who addresses this issue misses the boat. The law that gave rise to employee official time has failed and official time is typical of the many ways in which it has done so. Let’s look at some realities.
Reality #1 – Official Time is the Main Giveaway of the Federal Labor Relations Authority and the Federal Service impasses Panel.
The negotiability case law of the FLRA has expanded, by liberal definition of the above statute, the negotiability of official time at every opportunity. There are many examples but here are two. First, section (a) says the number of union officials in a negotiation won’t exceed the number of Agency representatives, but FLRA has found that number bargainable. Second, despite the clear wording of 18 U.S. Code 1913, FLRA ruled federal employees who are also union reps may lobby Congress. Because Official Time is so loved by unions, the Impasses Panel can direct its expansion and convince itself that, after all, it’s only money. Regarding lobbying, the Panel decision directing it is a study of the absence of evidence. Read it yourself:
Having considered the arguments and evidence presented by the parties on the merits of the issue, we are persuaded that the Unions’ proposal provides a reasonable basis for resolving the dispute. Although nothing in § 7102(1) of the Statute mandates that official time be granted to union representatives for lobbying activities, in our view the Unions’ proposal is warranted because it would support in a tangible way employees’ efforts to exercise the fundamental statutory rights that Congress provided them. Moreover, there is no evidence in the record, nor does the Employer allege, that there have been any past problems generally in connection with the use of official time by the Unions’ representatives. For these reasons, we shall order the adoption of the Unions’ proposal.” (95 FSIP147 and 148)
Do you read this decision as saying, “They want it, the FLRA says there’s nothing to stop it, the Agency hasn’t proved it a problem (although there’s no history on it) so let’s give it to them since it sounds good to us?”
The FSIP lists 148 cases since 1990 having official time as an issue. The FLRA lists 177 involving official time since 1980.
The bottom line is that there is no bottom line at FLRA or FSIP. After all, it’s another Agency’s money not theirs. In addition, once the FLRA has ruled a topic negotiable, the Panel inevitably awards the union the benefit and generally on a basis that discourages agencies from taking more cases on the issue to them.
That’s the reality of it.
Reality #2 – Official Time Encourages Disputes not Resolution
In the early days of the Federal labor law, Agencies argued and lost that official time should only address grievances. Because of FLRA and FSIP decisions, Union reps can get official time for virtually any appeal and there are a ton of them. They include EEO complaints, Merit Systems Protection Board and Special Counsel cases, worker’s compensation cases, classification appeals, and so on and so on. An employee only need pay if they hire their own lawyer and FLRA has found in many of these cases that even if the employee has counsel, the union gets to send a representative to any meetings on the issue “on the clock.” That’s the reality of it.
In most years, unions file between 5000 and 7000 unfair labor practice charges against agencies. Not only do the reps get official time for all related activity but a self styled “public prosecutor” in the General Counsel of the FLRA to advance the cases they bring. Prior to the enactment of the law, such cases were done on an adversary basis between unions and agencies before a labor department judge. You figured it out, there were fewer cases then.
Mr. Gage testified in the hearing that if his “volunteer” representatives stopped getting official time, collective bargaining would end. Maybe so, but isn’t it a sweet deal to get as much time as you want to prepare and present cases against management with no worry about the cost?
If I get paid and am off my job representing an employee, why would I ever resolve a case except at the last minute, if then. If, for example, the union rep takes an EEO case through the complaint, investigation, hearing and appeal phases to EEOC, he would do so at absolutely no cost to the union or employees, with no ethical restraints nor quality control or oversight. That’s doesn’t provide much incentive to settle, does it? The FLRA has found union business eligible for the franking privilege, use of Agency printers and computers and even express services.
Labor relations is a no cost item to Federal unions. That’s the reality of it.
Reality # 3 – Nobody Knows How Much Official Time is Used
When asked about official time reporting, OPM’s representative indicated that the numbers (official time data) were becoming more reliable since they were now using a “system”. I’m sure the system has a provision for union representatives to record their official time use and for supervisors to approve it. Thanks to previous administrations, supervisor to employee ratios are at high levels and Agency staff cuts or “gapped” hiring rates are also high. Federal supervisors, unlike their private sector counterparts generally do mission work in excess of 60% or even 70% of the time.
How much incentive is there to “manage” the union rep’s official time? That’s the reality of it.
In the hearing, the central personnel Agency’s principal labor relations staffer said he had no idea how many union reps were on 100% official time. Well, I do – as many as can get away with it. Why work your government job with a boss, deadlines and performance appraisals when you can be a union rep with virtually no accountability. Sadly, supervisors of union reps often find that it’s easier to ignore them than manage them.
Trying to manage union reps is like poking at a wasp’s nest with your finger and frequently, higher level officials will do almost anything to avoid a fight on these issues. That’s the reality of it.
Reality #4 – Unions and Their Union – Friendly Neutrals and Administrations Boost Time Use While Minimizing Recording
The Clinton Administration and I’ll bet some serious cash the present one, involving massive efforts at partnership involving lots of committees and (of course) union reps, took the position that these efforts shouldn’t be charged to official time. After all, if the Agencies want the union’s cooperation, they shouldn’t limit their time or record it for such events, right?
That’s the reality of it.
Reality #5 – The Current Situation Cannot Be Fixed Without Statutory Change
As each union-friendly administration comes on the scene, politicals at OPM, FLRA and the Impasses Panel expand union rights. Agency politicals also direct the negotiation of union friendly contracts. This is more true than ever before. What this does is institutionalize these union “rights” during subsequent administrations.
That’s the reality of it.
The Myth and the Reality
If federal employees want a union, arguably they should pay for it. The question is whether the government can continue to afford to foot the bill for both sides of every case any employee decides to file about anything at any time as well as the judges who hear them. As things stand now, unions are a zero cost to an employee unless he or she opts to join.
The unions themselves get close to a billion dollars worth of time (reported and unreported) as well as equipment, training, travel reimbursement, services and the like at no cost to them. This leaves them free to spend any dues money collected without an obligation to perform representative services. Under the present system, they ought to offer free dental and day care to members.
That’s the reality of it.
As always, any opinion is mine and mine alone. I notice, however, that some public officials have reached some of the same conclusions.
