Fixing the Federal Labor Relations Program
By Bob Gilson
Tuesday, May 16, 2006
Chapter 71 (the Federal labor relations law) was passed by a liberal Congress as a part Jimmy Carter’s massive civil service reform.
Many of us in the business believed then and since it would have been better named the “Washington Lawyers’ Relief Act”. It was the Hill’s first stab at a labor statute for Federal employees and in retrospect there should have been at least a couple of more tries before they let it out. An interesting aspect of the law is that it’s analog for the National Labor Relations Board, the Federal Labor Relations Authority (FLRA) in a few short years beat the rate at which NLRB volumes were cranked out. That may have resulted from the hiring of frustrated writers from NLRB to the infant FLRA. If they wanted to write, they got their chance.
None the less, I was surprised when I heard all the hoopla about a National Security Personnel System creating a new labor relations system.
Another labor relations authority is a chilling prospect. The old law could be easily adjusted to solve the problems agencies expected to face in dealing with new missions and structures. If the trouble is the fear that Federal labor relations in some way needed to be dramatically altered to allow agencies to act quickly and decisively in the war on terror, let me help in a small way by making a few suggestions.
Now that the courts at the district level have tanked (at least for now) the Homeland Security Labor Relations Board and the proposed scheme as not meeting a definition of “collective bargaining”, perhaps it’s time to dust off Chapter 71, clean it up and make it friendlier before the fall election or it might never get fixed. So here goes:
Suggestion 1 –Add to 7106 (a)(2)(B) “to determine employee performance evaluations, compensation and benefits”
I’m not convinced the Congress has decided as a matter of national policy that Federal employee pay is negotiable. Where pay is bargained, it mostly resulted from either FLRA or court decisions as in the case of non-appropriated fund employees in the Department of Defense or the banking agencies. It was rumored that there was deal making in the Clinton White House that got NATCA pay bargaining but did anyone at all anticipate that all the other unions in FAA would get the same right.
Interestingly, no one has ever taken the Clinton era FLRA/General Counsel/Regional Directors to task for allowing a multitude of new recognitions in FAA without a solid legal basis. The above should solve a major concern if a new FLRA ever wants to extend NSPS pay banding or performance pay to a negotiable topic.
Suggestion 2 – Add to 7106 (a)(2)(D) emergencies “determined by the head of the agency to exist”
This is really a no-brainer. Currently, believe it or not, the FLRA case law appears to state clearly that it not the agency decides what constitutes an emergency but rather the FLRA. Talk about the Peter Principle in action, perhaps the drafters of those decisions also believe the case law would allow them to decide whether the BIG BUTTON would be pushed as well.
Suggestion 3 - From Section 7106 (b), take away the numbers (1), (2), and (3) and make it all one paragraph.
This would put bargaining on “Procedures and Arrangements” at the agency’s election. When you consider that the only reason (b)(1) was in the law at all was to allow safety bargaining (No Kidding – I was at the Civil Service Commission at the time and that’s what it was supposed to do), it would only put matters where they originally belonged.
Suggestion 4 – Add to Section 7114(a)(2)(A) after “…any grievance or any…”: “change in”.
There are almost more cases on meetings than there are meetings in Federal agencies. Not really, but there are a lot. The purpose of this change is to allow the union to show up when something in which they might have an interest is under discussion between managers and employees but not every time a supervisor talks to employees.
Suggestion 5 – Add to Section 7114(b)(4)(B) at the beginning of the section “for which a particularized need exists and”…
All this does is take one of the few smart ideas the previous FLRA had and incorporate it in the law. If you need the data, you get it.
The above represents a very few deletions and the insertion of 20 words more or less that would allow both the DOD and DHS to fight the war on terror and let the employees have a union if they want one.
By the way, the views I express here are mine alone.
© 2009 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.
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