New Labor Relations Program for DoD Unveiled

The Dept of Defense is moving out to implement a new labor relations structure reflecting the most significant changes to the LR program since 1978.

Readers of have seen numerous articles during the past year about changes to the federal human resources system. Much of what has been written reflects proposals, disagreements, and speculative change.

Some of these changes are now getting close to implementation. While it seems slow, major changes in large organizations take time. So, with that perspective, creating a new human resources system in an organization as large as the Department of Defense will take time. But, perhaps because of the need to make changes to create an effective organization, and perhaps to take advantage of the political environment conducive to making an agency more efficient, DoD is implementing a new labor relations system relatively quickly.

Secretary of Defense Donald Rumsfeld has been candid in stating his belief that the current human resources structure does not allow the agency to operate efficiently. He has also said the current system forces the agency to use contractors or military personnel in some situations where federal civilian employees would normally be used. To improve the agency’s ability to get its job done, Congress gave DoD considerable new authority to change its personnel system and this proposal is a result of the agency’s new authority.

These changes reflect the most significant changes to the labor relations program since it was set up in 1978 under the Carter administration. It is also one of the first times since the federal labor relations program was set up by President Kennedy that the power of unions is being reduced rather than expanded.

There will also be ripple effects throughout government. The Merit Systems Protection Board has already announced it is reducing the number of regions. With major portions of the government no longer under its jurisdiction, it is likely the Federal Labor Relations Authority will also begin closing offices and reducing the size of its staff.

And, with the reduced workload, along with pressure from other agencies to gain the flexibility given to Defense and the Department of Homeland Security, the need for government-wide appeal boards may be further diminished over the next few months.

Much of the new proposed labor relations system in DoD reflects disagreement with case decisions issued since 1978 that made it more difficult for an agency to accomplish its mission. In making decisions, third parties often deferred to union preferences and enhancing the role of the union in their dealings with agency management. The proposed system obviously reflects the agency’s desire to eliminate many of these restrictions. Throughout the DoD option paper outlining the new system are references to mission accomplishment or effective administration as the rationale for change.

Here is a quick outline of what the new labor relations system may look like in the near future. As you can see from the document available from the link on the left hand side of this page, this is an outline of the final system. Defense describes it as “concepts the Department of Defense (DoD) has developed as part of the beginning of the collaborative process of designing and building a new labor management relations system for DoD civilian employees. Or, in plain English, this is a first proposal to be used for developing a new labor relations structure.

There is no question that the new labor relations system in DoD will not look like the system created by the labor relations statute (5 USC Chapter 71) back in 1978. Here are the highlights.

1. Remember when the Federal Labor Relations Authority ruled that the first Gulf War was not an emergency within the meaning of the labor relations statute? Someone in DoD remembers it. Under the new labor relations structure, there will be an appeals process that does not contemplate using the services of the Federal Labor Relations Authority (FLRA). DoD would create a Defense Labor Relations Board (DLRB) which will make and publish final decisions. This organization will adjudicate employee appeals and make decisions on labor relations disputes within DoD. DoD clearly wants to have a third party that recognizes the importance of national security concerns and, presumably, have disputes resolved faster than under the current process.

2. Employees can join a union–or not. If an employee chooses not to join, he will pay the union for its services for any union representation provided. The cost of this service would be decided by the union.

3. Bargaining unit structure will be decided with emphasis on allowing the agency to accomplish its mission with an efficient administrative structure. The unit structure will be decided by the new DLRB if there is a dispute.

Moreover, when an election is held to determine an exclusive representative of a bargaining unit, more than 50 percent of unit members must participate. The winner will be decided when an organization received more than 50 percent of the votes cast. This is a significant change from the current labor relations structure which allows a union to be elected as an exclusive representative when it receives a majority of the votes that are cast. In other words, under the current system, if only 5 percent of people in a bargaining unit vote, the winner is decided with a majority of those voting. The result may be that a small number of people in the unit determine the outcome for the larger bargaining unit. That would not happen under the proposed system.

4. Employees could drop union dues withholding anytime after one year since starting to have dues withheld. This is also different from a number of current labor agreements which specify a specific, limited time for an employee to drop dues withholding. The purpose of the restrictions was to make it more difficult for an employee to cancel dues withholding. The proposed system would give employees much more leeway in canceling dues payments.

5. When must an agency bargain with a union and how will the system work? The DoD proposal calls for an approach “where the parties have a mutual obligation to consult on matters concerning conditions of employment.” This implies a structure that will require quicker resolution of labor disputes. Bargaining under the current labor relations structure can take months or years with the agency paying all costs. The proposed system would allow bargaining for no more than 60 days. After the end of this time, the agency can implement the proposed changes.

This is one of the most significant changes in that it would allow DoD to implement changes more quickly than it can under the current labor relations structure and it ensures that the agency can make a change regardless of whether a union agrees with it. The proposal would also eliminate “status quo ante” remedies. This means that there would not be a system where the agency can be required to return to a former condition of employment as sometimes happens when a decision is being made by the Federal Labor Relations Authority.

6. Union attendance at meetings with employees will be restricted to exclude investigations by organizations such as the Office of Inspector General. Also, if there is a conflict of interest with a particular union representative attending a meeting, that representative can be excluded from the meeting. EEO meetings would also not be included in the definition of a meeting that requires union participation.

7. Unions in DoD will not have an obligation to represent an employee if it requires a fee to be paid and the employee has not paid that fee. If the employee pays the union’s charge for its services, the union has an obligation to fairly and competently represent the employee.

8. Use of official time (i.e. time when the employee would normally be at work but is paid her usual salary even though performing business for the union) is clearly defined and more restricted than under the current labor relations statute. The agency will pay the employee’s salary during labor negotiations, preparation for negotiations, presentation of labor disputes, or when attending a meeting initiated by the agency. For other situations, the agency has sole discretion to approve use of official time.

9. Current labor agreements would remain in effect until they expire unless there is a conflict with other regulations. The system would not allow current agreements to continue in effect past their expiration date.

The DoD proposal reflects the agency’s vision of how the new program will be structured. While the final version may be different, it does indicate the direction the program is taking and gives a definitive look at how the labor relations program is likely to be altered in the near future. Look for similar changes at the Department of Homeland Security. Moreover, other agencies are certainly looking at this structure and, without a doubt, some of these other agencies will be looking for similar authority to modify their labor relations structure as well.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47