Back in the day, 1980 to be exact, the Federal Labor Relations Authority (FLRA) prepared a legal brief on whether, while specifically precluded from coverage under the recent (1979) Federal labor law, it could still recognize a union. It thought it could do so. The FLRA then sent that opinion to the Department of Justice (DOJ) asking for its opinion concerning the legality of recognizing such a union. The opinion of DOJ was that there was no law specifically prohibiting such an arrangement.
On the strength of that opinion, FLRA asked (paid?) the American Arbitration Association (AAA) to conduct an election and certify the results. According to the AAA’s July 2, 1980 “Certification of Results”, 180 employees voted for the Union of Authority Employees (UAE), 19 voted against and there were no void ballots. The Certificate was signed by Garylee Cox, listing a title of Regional Director.
Now you might have thought that the FLRA and Federal Service Impasses Panel’s exclusion from Federal labor law along with FBI, CIA, NSA, TVA, GAO and TVA would have stopped an Agency in its tracks from dealing with a union but you apparently are dead wrong. DoJ’s brief makes interesting reading. Here is a quote from the brief:
The legislative history is silent as to the reason for the Authority’s exclusion from the statute. However it is reasonable to infer that such an exclusion was provided in large measure for administrative reasons. That is, the Authority could not be an “agency” subject to the statute and at the same time, serve as an impartial, quasi-judicial tribunal charged with the responsibility of resolving labor relations matters with respect to its own employees. Under such an analysis and in the absence of any legislative history to the contrary is the view that Congress did not intend to preclude the Authority from establishing for its own employees a labor relations system developed consistent with applicable laws and regulations and the Authority’s unique status under the statute.
Was the second sentence a speed bump for you too? It was for me.
It translates as we don’t know why the Congress excluded them but it was “largely for administrative reasons”. Huh? The last sentence woke me up as well. Congress enacts broad statutory coverage for all Federal employees. It specifically excluded the FLRA from coverage but didn’t mean to exclude them from coverage.
I plan to sell this opinion to anyone who must send a brief to the Authority for $25,000.00 a copy (Just kidding!) But seriously, folks, how far would such an argument get you before this self same “quasi-judicial tribunal.” We may have discovered what DoJ meant by QUASI.
The brief goes on. Right after the above it states, “Further, research has failed to disclose the existence of any other law or regulation which would prohibit the Authority from establishing a labor relations system for its own employees.” I’m willing to bet there is no law specifically prohibiting a Federal Agency from using its authority to hold every single training class on a beach on Maui. Think they’d get away with it?
I’m not going to bore you with all the details but a couple more are quite revealing. First, DOJ cites as a basis for FLRA’s recognition a 1948 memo in which the Department of Interior recognized some unions. Congress (a House committee) knew about it and didn’t act against Interior’s decision. So it must be OK. Second, DoJ opined that all the good reasons that the Congress identified for having collective bargaining for other Federal workers should apply to the FLRA despite the Authority’s exclusion “for other reasons”. The more I read DoJ’s opinion, the more I wanted the crystal ball that it used to divine the legislative history that was silent on these reasons.
In 1980, the Federal Labor Relations Authority decided that it wanted a union for its employees. No, you say, that’s not possible. How could its employees, many of whom actively prosecute Federal agencies for violating union rights, be good shepherds of the public policy regarding the relationship of employees and their unions if they, themselves, were involved up front and personally in the great struggle to lift the jackboot of the evil employer from the neck of the oppressed worker?
You might also ask whether the other precluded Agencies could recognize unions if they wanted to. HEY, you FBI, CIA, NSA, Secret Service folks, wanna union? Ask nice and maybe you’ll get one. After all, FLRA and Justice has determined it’s OK if the Agency wants you to have one.
A Last Thought
OK. I got the argument that not prohibited means OK, but always thought when I was a Fed that it was necessary to have authorization to spend the taxpayers’ money. So where’d FLRA get the bucks for official time, facilities and services, travel for negotiations etc., etc.? What’s in your wallet?
Any opinion contained herein is mine and mine alone and to the best of my knowledge not specifically prohibited by law or regulation.