Fixing Federal Labor Relations: Official Time May Not be the Biggest Problem

By on November 27, 2016 in Human Resources with 0 Comments

The Incoming Trump administration says it will address the widespread abuses in official time by Federal labor unions. House and Senate Republicans have long said that Uncle Sam should not be completely subsidizing employee unions as is the current case.

Agency representatives would agree that limiting or eliminating official time for employee representatives would be a step in the right direction, but that at least four other issues in the current labor relations system are of equal or greater importance in making government work at all, much less more efficiently and effectively.

#1 – End Perpetual and Abusive Impact and Implementation Bargaining

There is a provision of the Federal sector labor law addressing management rights (See 5 USC 7106 (a) and (b)) which have provisions requiring an agency to bargain procedures it must follow when exercising one of its rights and “appropriate arrangements for employees adversely affected” by the exercise of a right. This is called I&I or Impact and Implementation bargaining. The current Federal Labor Relations Authority in particular and previous union friendly FLRAs in general have interpreted this provision in so that any change an Agency wants to make that could conceivably affect an employee in any way provokes a bargaining obligation.

The current FLRA has never required a showing that the exercise of a right had to “adversely affect” an employee to require negotiation and more problematic has found union claims that an arrangement was appropriate as to limit a management right in virtually every case it has heard. This has resulted in a virtual freeze on Agency changes when the union wants to exercise power. For an Agency to make a change under the current system, it frequently takes years of dealing with statutory and burdensome information requests (5 USC 7114), negotiation ground rules bargaining, negotiations themselves, mediation and use of the Federal Service Impasses Panel, a crapshoot by its own admission. Federal unions use this process to leverage the statute and these processes to get what they want.   I have seen, over and over again, a union get something usually nonnegotiable or just plain awful for an Agency just because they can leverage this process by filing grievances and using arbitration but mainly by filing an endless number of unfair labor practices designed to slow down Agency change.

So, what’s the fix short of throwing out the whole statute? I suggest changing the law to say that once a collective bargaining agreement has been reached between an Agency and a union, no further negotiation is required until a new contract is bargained. I’d also repeal 5 USC Section (b)(2) and (3) or require any union proposal to establish a substantial adverse impact on the bargaining unit as a whole.

#2 – Fix the Union Friendly Unfair Labor Practice Process

Currently, a claim of an unfair labor practice is only filed by an employee (about 1%) or by unions (99%) against Agencies. Once filed, a crew of lawyers working for the FLRA’s General Counsel(GC) go to work investigating and prosecuting these cases. It’s common for these folks to expand the investigation and bully Agency representatives into settling cases sometimes only because the GC staff doesn’t want to go to hearing or because they can. Since the statute passed, there have been years when in excess of 8,000 of these cases have been filed. My experience is that while the GC staffers claim neutrality, most are union friendly as the union-filed cases are their bread and butter. In addition, FLRA allows a union among these staffers and I have faced a “Union Steward” FLRA GC attorney at settlement meetings and hearings. Really!

The FLRA GC also accepts virtually any union ULP claim, even those that are covered by the grievance procedure. In the private sector, under NLRB’s Collyer Wire Doctrine (192 N.L.R.B. 837 (1971)), the Board defers to arbitration on claims subject to that process. FLRA’s GC wouldn’t have work under such a rule.

So, what’s the fix? Prior to the current statute, an executive order program provided for an adversary process i.e., union versus Agency before a Labor Department judge. The FLRA has an Office of Administrative Law Judges to hear unfair labor practice cases. All I’m suggesting is dump the middleman and let the parties put on their own cases before a FLRA Judge. I also think it would dramatically reduce the overwhelming number of frivolous filings if the union had to prove a case rather than get a free lawyer from FLRA’s GC to advocate for them. The FLRA’s General Counsel is a part of the problem, not the solution. Historically, GCs have seen it as their job to expand the statute. I haven’t seen a single such expansion that enhanced an Agency’s ability to get its job done. The GC’s greatest accomplishments have focused on such things as enforcing union I&I bargaining claims mentioned in #1 above. It’s time for the GC to go.

#3 – Get FLRA Out of the Business of Interpreting Law and Regulation Not Its Own

Repeatedly, FLRA has interpreted laws and regulations applicable to other Agencies without asking for or respecting, if offered, an Agency statement of position on the meaning of its law or regulation. Over and over, appeals courts have told FLRA it does not have this authority, overruled their decisions and returned them to be fixed. This is a huge abuse of power and waste of the valuable time of Agencies and the Courts.

So, what’s the fix? Require FLRA to defer to an Agency’s interpretation of its own laws and regulations.

#4 – Let Agencies to Challenge FLRA in the Courts Where They Can’t Do So Now

Currently, FLRA decisions involving who is in or out of a bargaining unit (eligible to be represented by the union) and many arbitration cases cannot be appealed to a court. FLRA has used this unfettered authority in unit cases to create a presumption that any employee is in a unit unless proven absolutely to be out. For example, the law (at 5 USC 7112) states:

(b)A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes—

(6) any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security

FLRA has found that to be excluded, the employee must be engaged “primarily” in such work. Something the law clearly doesn’t say. This is but the tip of the iceberg of FLRA bad decisions in unit cases.

Also, FLRA uses its unappealable decision making authority in arbitration not only to limit the management rights clause in the statute but to allow arbitrators to interpret law and Agency regulation as they see fit.

So, What’s the fix? It’s easy. Give parties the right to challenge these decisions in a Federal court.

The Federal labor relations statute is nothing like what the Congress thought it was passing in 1978. While I’d like to see is the whole thing repealed and/or redone, politics may not make that possible. The Executive Order program that existed before 1978 fit both the needs of government and employees. This law has created several monsters that make day to day supervision and management difficult at best and made a huge deal out of every union gripe. Many of FLRA’s decisions address not employee issues but union institutional rights. Sadly, I’ve frequently seen Federal sector unions completely ignore improving employee working conditions in favor of more official time, larger office space or some other union benefit, I hope the incoming government has the will and the smarts to get this program on the right track.

As always, I’m solely responsible for the above. I hope, however, that others will pay attention to what’s needed in upcoming government change initiatives.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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