The recent news that regulations will be coming from the Department of Homeland Security to change the role of unions in federal agencies has a ring of “back to the future.” Here’s why.
President John Kennedy established the role of federal employee unions after his election in 1962 when he issued Executive Order 10988. The role of unions was very limited but it established the legitimacy of unions in government, over the strenuous objections of some, in representing employees in narrow, heavily restricted ways.
In the 1960’s, federal unions were not thought of as participants in national politics. If they had been seen as political foes, it is unlikely that Republican President Richard Nixon would have expanded the role of unions with Executive Order 11491 in 1969. His order gave unions more power to bargain and to contest agency decisions.
In the 1970’s, AFGE representatives were telling anyone who would listen that the program needed a legislative base in order to survive and thrive. Federal unions worked hard to expand their role and were successful as AFGE’s National President Ken Blaylock traveled around the country and sat with President Jimmy Carter at town meetings in support of what became the Civil Service Reform Act of 1978.
Since then, federal employee unions have become increasingly aligned with Democratic party politics and candidates rather than apolitical organizations seeking the best deal they could get for employees.
Policies underlying the management of the federal government are determined by politics. Nowhere is this more evident that in the changes occurring in the federal labor relations program.
The structure of the program now emerging may remind some observers of the labor relations program as it existed under Presidents Kennedy and Nixon.
With the new programs going into place in the Departments of Homeland Security and Defense, an optimistic thought from leaders of the largest federal employee unions contemplating their change in power and stature might be along the lines of “How much worse can it get?”
It could actually get worse. The agencies leading the way in making changes are the Departments of Homeland Security and Defense. The changes that are made in these agencies may be followed in others. The Office of Management and Budget has already expressed an interest in giving other agencies the power to change their programs in the same way now enjoyed by DHS and DoD.
What are some of the most significant changes in labor relations? From our review of the new regulations, here are some of the major labor relations changes being implemented in Homeland Security.
Scope of Bargaining
One of the major changes is that “permissive” subjects are no longer open for bargaining. Those who follow such things will recall that President Clinton ordered that agencies must bargain on permissive topics. It was one of the cornerstones of the partnership concept between agencies and unions espoused by President Clinton.
Permissive topics are numbers, types and grades of employees. Since DHS now considers these topics off-limits, they are no longer open to bargaining. In effect, the management rights section of the labor relations statute (5 USC Chapter 71) has been expanded to limit the power of unions to bargain in DHS.
Timing of Bargaining
But the new regulations in DHS go further than just taking the topics out of the realm of bargaining. A number of agreements in the federal government address procedures to be used by agencies when implementing management rights.
The leadership at DHS apparently concluded that bargaining on these procedures was an impediment to effective operations. Under the new regulations, procedures for implementing all management rights are no longer subject to bargaining either. The only exceptions are merit promotion actions, disciplinary and adverse actions and lay-off of employees.
But it gets worse (or better, depending on perspective). One of the most significant changes is that even when bargaining is required, an agency is not precluded from implementing its decision. It can get around to dealing with the union later.
Under the Civil Service Reform Act, agencies had to complete bargaining on the impact and implementation of a decision prior to being able to make the change. In other words, if an agency wanted to make a change, it had to complete the bargaining process. That could take as little as a few hours but often took days, weeks or months. That gave unions considerable power because they and the agency know they could delay agency action by dragging out negotiations. In other words, “give us what we want or you won’t be able to make changes” was a viable strategy. Under the new DHS regulations, that won’t be a problem for the agency.
Release of Information
Releasing information to unions will be more restricted at DHS than under current law. The new regulations require the agency to release information only when the information is reasonably available, the union has a specific need for it in order to represent employees, and disclosure is not prohibited by law. But the regulations also go a little further. The agency will no longer release information when in the agency’s opinion, doing so would compromise the DHS mission, security or employee safety.
And, going one big step further, the agency does not have to release the information if it is reasonably available somewhere else.
Under current law, unions have the right to attend formal discussions. The right will still exist under proposed regulations but the definitions have definitely been changed.
No longer will a union have the right to attend a meeting between a supervisor and employees if the meeting is to reiterate or explain an existing condition of employment. In other words, most meetings that currently qualify as a “formal discussion” will no longer be open to a union representative who wishes to attend. Grievance meetings will still be considered a formal discussion.
Other major changes to the existing labor relations system involve resolution of disputes. Currently, a bargaining impasse between an agency and union goes to the Federal Service Impasses Panel. No longer. The disagreement will go to a new board within the agency rather than outside the agency.
No doubt, the political battles on these issues will be fought for some time. Several unions are going into court to try and overturn many of the changes. Some Congressional allies will be working in Congress to make legislative changes to return more power to the federal unions.
And, in all probability, these battles will be continuing until the next presidential election in 2008. The federal unions are likely to continue to align their futures with the election of Democrats in hopes that the current political trends will be reversed with the election of a political ally in the White House.
For now at least, the new regulations emerging look more like the 1960’s era of federal labor relations. From the agency’s perspective, that will give the leadership flexibility to make quicker decisions and to implement new programs and policies faster.