The Federal Circuit appears to have short circuited DHS’ and DoD’s labor relations reform. Insiders are saying that there is little stomach for an appeal to the Supremes in Justice although some are saying OPM wants to go forward. It may be time for the administration and the hill to recognize that labor relations is a reality of Federal government and make the best of it. This article is my not so humble suggestion on what the best of it might be.
I have five suggestions that would make Federal labor relations work better while allowing agencies to get about the business of governing. Believe it or not most lawyers who practice in Federal labor relations might even like my suggestions although, of course, that’s probably not my primary concern. In advance let me say that my suggestions break a number of rice bowls. This effect may be unpalatable to certain bureaucrats but that’s not my primary concern either. I suspect I might even get some support from experienced union negotiators but we’ll see.
Suggestion #1: Require the Federal Labor Relations to Make Decisions Based on Facts
Arguably, the Authority’s most influential cases involve the scope of bargaining or simply what must an agency negotiate with a union. Believe it or not, these very important cases are decided not based on facts but on the unsubstantiated claims of the parties.
It works this way. The agency declares a union proposal nonnegotiable and the union argues to the authority in a written brief why it must be bargained. The agency is then permitted to submit its brief addressing the union claim. There is no hearing to determine relevant facts. There is no process to verify the arguments. A decision is made presumably based on who the FLRA members believe is right because no facts are in the record.
I think it fair to say that politically appointed boards might believe certain arguments are more convincing than others but who’s to argue when there are no facts This is literally crazy and has resulted in an inside the beltway decision, often myopic, by people who have never even seen a shipyard, air traffic control tower, border patrol area, meat packing plant or Veteran’s hospital.
Suggestion #2: Get the FLRA Out of the Mediation Business
FLRA now has an office that seeks to mediate negotiability appeals, representation cases and the like. The people are well meaning but the program is a mistake. Agencies want a decision on these issues or they wouldn’t be there. I suspect unions do too. Can’t we all just get along? Poppycock! Everyone who has to deal with these folks believes the FLRA will take an adverse view of them (and their case) if they don’t participate. The law requires the FLRA to make negotiability decision, so do it and move on.
Suggestion #3: Abolish the General Counsel
Both union and management have lawyers who can present an unfair labor practice case. Let them.
Prior to the statute, the parties engaged in an adversary process in which each side presented the facts and a decision was made. In a wrongheaded attempt to imitate the National Labor Relations Board, Congress established a General Counsel in FLRA when enacting civil service reform over 25 years ago. Think about it. In whose interest is it to litigate unfair labor practices?
Probably not management which has other things to do. Maybe not the union who has a grievance procedure available. Certainly the General Counsel whose sole function it is to do so. If you have to put on a case, are you more likely to settle it? The General Counsel which pursues union or employee claims over 99% of the time, can’t help but develop a mindset. Neutrality? You figure it out.
Suggestion #4: Get the Federal Mediation and Conciliation Service Out of Federal Sector Bargaining
Just about every single Federal mediator I have ever met and that’s more than a few has said that Federal labor relations is a joke. The real labor relations in their view is in the private sector where strikes are possible and mediators do “real” work as opposed dealing with “endless bureaucratic issues of no consequence”. This attitude has a definite effect on the way they approach Federal sector cases. Please give them what they want. Let them deal with the private sector.
Suggestion #5: Give the Federal Service Impasses Panel Federal Mediation Responsibility
As anyone who has ever bargained in the Federal sector knows, when at impasse the parties must invoke mediation with FMCS and the mediator must report to the Panel that the parties are duly deadlocked before the Panel will accept jurisdiction and deal with the impasse. Most of the time the Panel orders more mediation or Med-Arb which is more mediation.
I say let’s get rid of the middleman. If you believe, as I do, that FMCS views Federal labor relations a sideline to the true game of private sector bargaining, let’s give the money and the FTEs to an agency that sees Federal labor relations as the only game in town.
Unfortunately, politics and not practicality drives most Federal structural change. But if the current folks on the Hill and in the White House want to make a substantial change for the better, give some thought to the above. You are not going to run the unions out of town so maybe it’s time to at least leave the process better than you found it.
The opinions stated above are mine and mine alone. If I’m off track, let me know.
