The New Federal Labor Relations Authority: Ten Suggestions that Might Really Improve Federal Collective Bargaining
By Bob Gilson
Wednesday, November 4, 2009
The FLRA has a new website and, according to its Chairman, a new "season" based on "Revitalization, Reinvention, and Re-engagement". Her message is the keynote on the cosmetically altered site. Taking on the prior Authority (of which she was a member) claiming it's "performance, along with employee morale, had suffered" and sounding a lot like Al Gore, she wants to reinvent the FLRA but how she plans to do so is a bit hazy.
FLRA's Chairman tells her website readers that the Agency is entering a new era. She says that the Agency is not merely poised to restore the old FLRA but create a new one that will "reinvent a FLRA that is flexible and strategically poised to address the needs of this changing environment." We've heard these words before. She sounds amazingly like Al Gore who appeared perpetually strategically poised but didn't get much done. She points to a series of FY 2009 accomplishments as successes. They are:
- "The Authority issued 32 merits decisions in August alone, breaking the most recent record of 27 decisions issued in March 2005. We have to go back six years to September 2003 to find a month where the Authority issued more merits decisions (36). (Wasn't that the Bush Authority?)
- The Office of the General Counsel resolved more than 3,500 unfair labor practice (ULP) charges and approximately 250 representation petitions.
- The Federal Service Impasses Panel resolved close to 100 bargaining impasses.
- The FLRA provided nearly 100 training sessions nation-wide, encompassing more than 2500 participants.
- The FLRA's Collaboration and Alternative Dispute Resolution Office (CADRO) is back in the business of facilitating the resolution of disputes pending before the Authority, and conducted 15 interventions in FY 2009, reaching a full resolution in 13 of those cases."
The Authority deserves the credit for these, especially with a reduced staff but the measures are of quantity not quality. As an old boss of mine once said (with a smile) after another region had been gigged for not putting staff on cases, "We have no unassigned cases". How well we did them usually was reflected on the last line of a decision. Maybe the FLRA needs a different kind of metric. Whaddya think?
A couple of cautions for the Chairman. First, The agency's website looks like her face book page. Not even the President appears on the first page of the White House website every time you open it and I couldn't find another Agency site with the Agency Head's picture on page one.
Second, and much, much more seriously, the FLRA is listed in www.usa.gov as an independent Agency. FLRA's Chairman apparently missed her political appointee orientation briefing as there's an early line in her statement about her enthusiasm in leading the FLRA in the Obama Administration. Careful, Madame Chairman, even the Bushies maintained some decorum about their neutrality and independence from the typical direct command and control of the administration.
Absent a statutory change, perhaps the FLRA should tread carefully in its reinvention efforts, lest judges be made to believe they need to caution the Agency about its statutory expansionism as has been done to past FLRAs. I have worked for an independent Agency (and even in a Democratic presidential administration.) The chairman I worked for was scrupulous in protecting the independence of the Agency he led. Unless the Chairman of FLRA does the same, she'll have no credibility to deal with at least the career managers responsible for labor relations. She says she cares about that. We'll see.
As almost any American can attest, the appearance of a government official from Washington, DC offering to help you out is cause for a quick exit. Unfortunately the parties in Federal labor relations have no place to run. A reinvigorated "Can't we all be nice" effort coupled with another try at expanding the scope of bargaining in an attempt to advance a political vision of Federal labor relations is doomed to failure.
Since it takes two to tango in bargaining, it would be nice if the FLRA caught on that there's another player beside the union involved and that other player may have other things to do than to cooperate, read cave in, to achieve a labor utopia. John Gage, is my new favorite union president for his honesty and a quote he's made a number of times and repeated in the current Government Executive. (By the way, nice piece Alyssa) that labor and management have inherently different interests.
Labor and management have different interests? Is this heresy for political appointees in a union-friendly Obama regime? Why not throw a bone to bipartisanship?
It appears out of style in DC generally but maybe the FLRA can become a trend setter. I was once a teacher representative and found it wonderful that all I had to worry about was what the teachers wanted since the schools' administrators had to make it all work within a budget and despite parents, teachers and some of the students. Agency managers can get tired of hearing about all the special program restraints or obligations (Read: hurdles) they must jump in getting the job done whether it's politically correct to say so or not. On that note, here are some considerations from other than a labor perspective for the FLRA to chew on.
Really Wanna Help, FLRA? Here're Some Suggestions
- How about a state of the case law paper series on common or critical issues that includes the courts as well as FLRA's take and includes the drift of party arguments? Such an effort may reduce both case filings and violations but would certainly encourage settlements. Issues might include:
- Common (USC) 7106 (A) rulings
- 7106 (B)(1)
- Procedures and arrangements
- Change notice obligations
- Information requests
- Formal discussions
- Investigative meetings
- Past practice
- Etc.
- How about then keeping the above current?
- How about indexing the decisions on the site in a coherent way? By statutory cite alone would go far to enhancing the site's utility.
- How about a quarterly arbitration decision review? Lots and lots of policy is made in these cases and a review highlighting the key decisions would be very useful.
- How about a cooperative approach to unfair labor practice hearings? Agencies must show all their hearts before the hearing under the 1998 regulations but not the General Counsel.
- How about hosting a series of get-togethers on statutory reform? After 30 years, there is much to fix according to both union and management who toil daily in the vineyards.
- How about some evidentiary hearings on negotiability when warranted? A justified critique of the FLRA is that it rules based on a very narrow experience base. As the Government Executive article pointed out, the current Chairman hasn't worked anywhere else for the last 29 years. Is there an America outside the Beltway?
- How about increasing the number of and establishing a public record of requests for comment on cases from Agencies responsible for programs, such as OPM, GSA, OGE, MSPB, etc.? The FLRA has a long and well established record of making decisions in areas in which it lacks expertise without the slightest concern for the government-wide effect those decisions may have.
- How about asking someone, say GAO, to conduct a survey from time to time on the quality of the FLRA's decisions? The standards might include whether its policies and decisions have been sustained by the courts and whether they produced a more efficient and effective government as the statute requires.
- How about a periodic critique of cases presented (you can leave out names)? In other words, telling practitioners, for example, here are the things we saw that did or didn't advance your argument and if that's too controversial, how about common errors in negotiability, arbitration, or unit case presentation. Don't bother with Unfair Labor Practices, we wouldn't want to give the GC staff a big head.
Any opinion in the above is mine and should not be read as reflective of the opinions of the people I work with or for or, for that matter, who publish this stuff.
By the way, I am developing a two day course on negotiability scheduled for DC in January 2010. My goal is to keep attendees awake as well as catch the drift of decisions. We'll see if I succeed.
© 2010 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.
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