A lot of people are telling me that an Obama Executive Order (EO) addressing Federal labor relations is coming soon and that it looks a lot like the order Bill Clinton gave us over 15 years ago. Rumor indicates that the permissive area is back on the table and that Interest Based Bargaining (IBB) will get legs again.
One can only wonder what the new order (in two senses) will demand. If the advance information is correct, the Order was drafted largely by the unions (as was Clinton’s) and again, like Clinton’s, feeds the labor constituency that helped elevate the former senator into the White House.
So what’s the fuss about?
IBB, under the Clinton scheme, mandated a process for negotiation involving labor and management in a joint meeting without proposals, ground rules or chief negotiators, coming together to first identify and then solve their mutual problems by reaching a consensus. The Federal Labor Relations Authority General Counsel staff, who primarily are in the business of prosecuting Agencies for alleged (almost exclusively by unions and employees against Agencies) statutory violations, took on the task of training Agency management on the ins and outs of this new process. It was OK, though, since no one understood such a scheme in the Feds (including them), it couldn’t go wrong. Right?
Well it turns out that the scheme, intended to reduce conflict, got caught up in the battle over bargaining permissive subjects among other problems and largely petered out by the time Bill was engaging in some IBB of his own with an intern.
What Was the Problem?
Interest Based Bargaining is a great idea. Of course, one would hope that one always bargains his or her interests but if you’re speaking for an Agency, it is probably wise to bargain those of your client (and paycheck provider). The concept, as practiced in the private sector, is used mainly as a tool in troubled industries where management and labor’s traditional approaches are failing.
The situations favorable to IBB are those in which companies are plagued by foreign competition and waning or lost industry domination by the U.S. Union leaders are drawn to the process by being forced to face the absence of big benefit promises and the failure of the strike to draw either employee support or company surrender in a number of industries. It’s easier to move to Mexico. In other words, the parties must learn to subordinate their traditional operating rules or fade away. Of course, there are bailouts but only the behemoths get that rescue. Others must fend for themselves.
In the federal government, other paradigms rule. In fact, there are a number of other paradigms, but we will come to that shortly. The key reason IBB tanked, at least as envisioned by the GC’s lawyers, was that it was the wrong tool for the task. In the end, political appointees running Agencies are ultimately managers.
Political correctness, in this case meaning you must love your union if you are a Democrat, is untenable if the job doesn’t get done. The laudable intent of Clinton executives to involve employees in improving government (remember Al Gore’s hammers?) got hung up on the rocks of government inertia.
While career managers share some blame for this, a lot of the fault was in the unions themselves. Some unions, mostly locals, rose to the challenge of "pre-decisional involvement", gained credibility and earned their seat at the table. Sadly, most flogged old issues and made the process into "whine making" unable to seize the opportunity offered. A lot of Federal unions have low membership and a number of leaders hold on to their jobs not to represent but for very personal gain.
Federal employee unions should study Andy Stern’s playbook but probably won’t. I guarantee you President Obama knows how and why the Service Employees International Union (SEIU) is a success story. If you’re a political appointee reading this and anticipate union dealings, just ask these questions of them. May I see your five year plan? No/ How about your three year plan? Ain’t got one, how about the one year plan? Well then, what are you planning to do tomorrow?
Lessons from the 90s
So what happened? Most group sessions started depending on proposals, committee leaders became chief negotiators and what emerged is called by a friend of mine, "Interest Based Traditional Bargaining" (IBTB).
Regardless of the labor relations scheme envisioned by the new administration, it will also peter out unless recognition of a number of issues are part of its implementation. These issues represent certain immutable truths about government that simply exist.
The Ten Immutable Truths Affecting Federal Bargaining
1. Agency Mission Rules
Plainly stated, the paramount and final duty of an Agency is to the American public in line with its statutory charter. All else pales in comparison. In the end, the only accounting that counts is whether political executives were good shepherds.
2. Statutory and Regulatory Obligations Must Be Met
Agencies operate within a complex framework of law, regulation, policy and expectations of key stakeholders. Some of these directly relate to an Agency’s specific mission and function. Others, equally or sometimes more controlling, apply to the agency within the overall government structure. These are many, varied and may be conflicting. Is merit based affirmative action an oxymoron? Does the General Services Administration worry principally about other Agencies’ budget constraints?
3. Few Federal Unions Draw Power from Membership
The power, such as it is, of a Federal union derives from its and employees’ statutory entitlements. The administrative agencies enforcing individual employee or union rights get money to do so. Some, like MSPB or EEOC, struggle to issue fair and statutorily correct decisions but their very existence powers the unions. Others, such as FLRA and the Impasses Panel, empower or not based on who is in office at any given time. That’s not necessarily a criticism, this time, just the truth.
4. Unions Know How to Push Congressional and, More Recently, Media Buttons
Since unions have mailing lists of Hill constituents, they are heard in some offices. Additionally, in the internet era, the virtual death of responsible journalism on television and the literal death of newspapers increasingly favor the noisiest.
5. The Courts Will Enforce Federal Labor Law Not Political Exigency
FLRA once created an "Abrogation Test". Under this amazing construct, the plain language of the law saying that nothing in the statute may affect the exercise of certain specified management rights could be miraculously waived in favor of bargaining an issue. FLRA said, Look, it’s OK, you can cede your rights voluntarily and if you do, you’ve abrogated them and they no longer apply. Believe it or not this silliness was around a long time. The courts finally got hold of the issue and explained the statute to the FLRA.
6. Some Federal "Neutrals" Aren’t Neutral
The Federal Mediation and Conciliation Service is a refreshing crew to deal with. Unlike FLRA and the Panel, they don’t care what is in an agreement. They don’t care by law but that doesn’t diminish their value. FLRA, its General Counsel and the Impasses Panel are all too frequently ideologically driven. The General Counsel staff operates under what I like to call an associative fog. What I mean is that when virtually 100% of your cases have the same or similar clients and the same or similar adversary, it may be too hard to maintain a meaningful objectivity but who really cares? Unlike unions, their adversary has no direct political tool.
7. Agency Agendas Can Conflict with Labor Relations Success
Political appointees come into office with an agenda. Sometimes, these conflict at a base level with union values. Agencies such as the Federal Aviation Administration, Food Safety and Inspection Service and a few others whose unions have high membership and the credibility that ensues are frequently challenged by unregulated union relationships with stakeholders pressing their own agendas. If they’re in line, fine, otherwise…
8. Career Leadership Has Its Own Set of Issues
Career executives and managers face bigger problems than their political bosses. It is their fate to decide who gets disciplined; manage chronically low budgets; make sometimes unpopular but necessary change occur; reduce staff; and engage in a myriad of other required pot stirring and unpopular activities. Layer on that while trying to assist the incoming folks succeed using the outgoing folks budget, regulations and organizational structures while hearing the union bray to the new administration how anti-labor they are. It’s ulcer city.
9. Bureaucracy Generates Bureaucratic Tools and Weapons
It should be no surprise that bureaucratic processes get imbedded into labor relations dealings. It always amused me (but I tried never to show it) to observe political appointees of either party as they discovered such wonderful governmental contrivances as Impact & Implementation bargaining, information requests, ground rules negotiations and other similarly goal-expediting union devices.
10. Government Cruises
A good friend frequently reminds me that government is more like an ocean liner than a speedboat. It cannot change course, reverse course, or stop suddenly without disastrous consequences.
While I wish our new President well, I’m a little worried. I read that he might seek to implement a new performance appraisal system. Having served under or worked for seven of his predecessors, I hope he gets advised that fixing performance systems will buck up against all ten truths, cost a lot of money and time and, when implemented, change very little. At least that’s history’s lesson.
The challenges of moving government are many. I suggest that this administration seek the counsel of all who may be affected by a labor relations executive order not just a single interest group. Remember, Mr. President, that you are now not only commander in chief but CEO and that your career people are your institutional memory. They are not anti-labor and need your support in navigating the complexity described above.
As always, any opinions in this article are mine and mine alone and do not represent anyone else I may work with or for or even just hang around with.