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Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. Both before and since retiring, Bob has negotiated on behalf of Federal clients. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues. To contact Bob about this article or about training or assistance at your agency, use this contact form.
General advice on handling personnel problems may not be applicable to specific situations. Be sure to check with your human resources advisors for guidance in your particular personnel situation.
As a recent Federal Labor Relations Authority decision reminds us, institutional union issues still top the list of priorities for Federal labor unions. 62 FLRA No. 67, decided March 27, 2008, deals with telework for union representatives. The case, involving Agriculture's Food Safety and Inspection Service and AFGE's National Council of Locals, arose after an earlier FLRA decision involving the Department of Housing and Urban Development and the National Council of Locals (60 FLRA No. 68) upheld an arbitrator's finding that telework meant Agency "work" and that the law governing telework did not authorize pay for union representational duties if the employee was otherwise "working" for the Agency away from the assigned duty station (usually at home).
Before and After
The HUD case, decided by three members, is vastly different than the FSIS case decided by only two. In HUD, the FLRA said,
"The parties cite, and we are otherwise aware of, no basis for a Federal agency to establish a telecommuting program, except pursuant to § 359. Accordingly, we find that Congress intended § 359 to be the sole authority for such programs. Further, in considering § 359 together with its legislative history, it is clear that Congress intended to limit telecommuting to the performance of "officially assigned duties."(my emphasis)
However in the FSIS case, it now says,
"As longstanding precedent holds that the performance of representational duties does not involve the "work" of an agency, the Authority held that § 359 does not provide an authorization for union representatives on official time to telecommute. Id.Applying this same rationale, § 359 also does not prohibit union representatives from performing representational duties on official time in their homes because it does not speak to the issue of official time at all."
HUH?
So let's see if I've got this right. The sole authority for an employee to perform "work" at home is Section 359 but since the section addresses work and the FLRA went to extremes in the HUD decision to say that representational activities were not work, it's OK to spend Agency funds for that purpose. The problem is that the Federal sector labor law only allows official time in amounts the parties "agree to be reasonable, necessary, and in the public interest." And permits official time only "during the time the employee otherwise would be in a duty status." So, union reps would otherwise have to have be in a duty status to get official time but the telework law only allows pay for "work" so, if they are at home and want to do representational activities, they have by definition stopped "work" and can't get paid under the telework provision.
Now, maybe I missed something in my time in Federal service, but I thought that Federal Agencies could only expend funds under a specific provision of law. The official time provision (5 U.S.C. 7131) makes absolutely no mention of where such activities may take place leaving once again the FLRA to arrogate to itself the interpretation and application of laws outside the Federal labor statute. But here goes the FLRA again, as it did in deciding its employees should be unionized in apparent conflict with law, bending the law to serve its purposes. Shame on them again.
Institutional Union Benefits
In both of the cases cited above, one or more union officials were authorized 100% official time. The union at FSIS has membership at the 90% plus level. I don't think the HUD Council has more than 25%. Regardless, your tax dollars are subsidizing Federal union activity at substantial levels. Including other union institutional benefits such as office space, use of Agency computers, copiers, office supplies and the like, costs to the government of its unions have been estimated to be in excess of $100,000.000.00. That's right, 100 million! So what do the unions do with the money that comes from dues? You guessed right if you say it goes to political activity. Oh, did I fail to mention that the FLRA decided some time back that union reps could use official time and facilities to lobby Congress, a matter that many believe violates at least two Federal statutes.
Asleep at the Switch
In the end, my question is a simple one. If a manager so much as thought about doing what Federal employee union reps do with impunity, how many inspectors general, internal affairs types, MSPB Special Counsel people and virtual hordes of other investigators would descend upon him or her in numbers that would fill FedEx Field?
It's not the double standard that bothers me most, it's the hypocrisy.
Particularly in light of the above, please remember that the opinions expressed herein, are mine alone and not necessarily those of FedSmith or anyone else I work with from time to time.
By the way, I'll be co-instructing a two day workshop in the DC metro area called Advanced Bargaining Training: Focus on I&I. The class will be June 3 & 4, 2008. For more info click here and go to the GRA's Training Institute's Open Enrollment link.
Before my govt employment many years ago, I was very anti-Union (former mgt) and had some of the same inaccurate opinions that the author has. It did not take long to realize that the Unions are the only protection for ALL employees - whether good, bad or indifferent - and the great majority of go... Posted: May 13, 2008 10:37 AM
Good point but please tell me, "Why did George W Bush revoke all partnership councils between management and employees as one of his very first official acts as President of the US?" His philosophy of the employer/employee relationship is that managements' job is to manage and the employee's job is... Posted: May 8, 2008 9:42 AM
Hey CBP guy, you of all people should know the value of the union which protects your very own butt. If you have proof that union dues are used for political purposes why don't you step forward. If not close your mouth and do your job... Posted: May 8, 2008 9:29 AM
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Posted: May 13, 2008 10:37 AM
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