Five Years and Counting

The FAA and AFSCME started bargaining a contract five years ago. A new court decision says that the agency’s contention that OMB has to approve the final agreement is valid because of a clear and unmistakable waiver by the union.

How long does it take to negotiate a labor agreement in the federal government? Six months? A year? Two years? These are fairly typical for negotiations in many organizations.

But should negotiating a labor agreement take longer than it did to win World War II?

In some cases, it does. In a new case that has emerged from the court system, it has been five years-and still no end yet in sight.

The American Federation of State, County and Municipal Employees (AFSCME) has been negotiating a new labor agreement with the Federal Aviation Administration (FAA) off and on since the Spring of 2000.

While the recent creation of the Department of Homeland Security and changes in the human resources system in the Department of Defense make it seem like the desconstruction of the civil system has only recently begun, the FAA was actually put under a different system back in 1996. In March of that year, the Department of Transportation and Related Appropriations Act exempted the Agency from nearly all of title 5 of the U.S. Code and provided for developing and implementing a new personnel management system.

The FAA and AFSCME are apparently still trying. A recent decision by the Court of Appeals for the District of Columbia circuit may get the negotiations going again. The case doesn’t speculate on why it is taking so long. No doubt the issues are complicated and the positions are hard and fast on both sides. As for lack of motivation on one side or the other, no doubt the pay is pretty good for most of the participants and no major disasters occur for either party if the negotiations should take a decade or more.

Sometimes when reading one of these cases, the question that pops into mind is “Were these people in the same bargaining sessions?”

With the different version of events given by participants during the administrative and legal process, it sounds as if people were talking more than listening. Perhaps they just heard what they wanted to hear. Or perhaps one or both sides has a convenient memory lapse and hoped to gain something from the appeals process by giving a different version of events. But there is no doubt that each side is telling a different story. ( For a more detailed description of the negotiations, check out the decision of the Administrative Law Judge.

Here is a very brief summary. AFSCME represented four newly established bargaining units at FAA and was negotiating one contract for the new units. The FAA contended that the Office of Management and Budget (OMB) had to approve a labor contract after the agency and union reached agreement. The union contends they never knew about this requirement; they were only told OMB and others had to approve a proposal before it went to the union.

The union had about 24 members on its bargaining team that received “official time” (i.e., they were paid by the agency to bargain on behalf of the union). The agency hired a law firm from the District of Columbia to serve as its representative along with the FAA’s Assistant Administrator for Labor and Employee Relations. Other agency representatives apparently wandered in and out as needed.

The ground rules did not specify that the Office of Management and Budget had to approve a new agreement. But, said one of the agency representatives, he made it clear from the very first meeting that the agreement would not be final until OMB gave its approval.

The union, on the other hand, said the topic of OMB approval never came up when they were going through the ground rules or during the opening statements of the first session. The parties did agree that the subject came up during the first bargaining session though and that the union argued the agency should send people to the bargaining table with authority to bargain an agreement.

At various times the issue of OMB approval came up. The union contended that the agency representatives never told them the Office of Management and Budget had final authority over the contract once tentative agreement had been reached and that the union had never agreed to this condition during the bargaining sessions.

Bargaining proceeded for the next few months with the union apparently under the impression that the FAA had to get prior approval to contract terms from the OMB (and others) but did not expect the final agreement to require OMB approval.

When the parties reached agreement, the union ratified the contract. But, by now, a new administration was in power with new appointees in each agency. OMB did not approve the agreement the parties had reached and the union filed an unfair labor practice in March 2001.

The Federal Labor Relations Authority (FLRA) found that there was no unfair labor practice. It concluded the union had given a “clear and unmistakable waiver” of its statutory rights as it knew the agency representatives did not have authority to reach a final agreement. The basis for the FLRA decision was that other unions in the FAA also had to have their agreements approved by OMB and the union presumably had knowledge of this. Also, the FLRA held that the testimony of the two agency representatives with regard to their lack of bargaining authority was consistent and logical within the framework of the negotiations. (FAA and AFSCME Council 26, 59 FLRA No. 82 (December 11, 2003).

In reviewing the case, the court did not find a basis for overturning the rationale used by the FLRA. So, about five years after bargaining started, it still isn’t finished. The decision doesn’t give any idea of how much this process has cost in time and money but, if the parties still want a contract, they can apparently start bargaining again. You can download the court decision in pdf format. American Federation Of State, County & Municipal Employees Capital Area Council 26 v. Federal Labor Relations Authority, No. 04-1021, U.S. Court of Appeals D.C. Circuit.

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