Federal Labor Relations Heats Up as Unions Challenge Obama

AFGE President tells U.S. President, “Get the hell out of our way…” in the union’s organizing efforts at Transportation Security Administration. As unions generally start putting proposals on the table about his Executive Order, questions arise about who is minding the store.

Apparently encouraged by the Federal Labor Relations Authority (FLRA) Chairman’s pro-administration labor stance and her dissenting opinion in a previous case involving Transportation Security Administration (TSA) employee bargaining rights, AFGE President John Gage tells media, "We’re telling them to get the hell out of our way while we exercise our rights. Whether it’s the Senate, DHS or the White House, get out of our way." 

Gage’s characteristic remarks follow the filing of a petition by AFGE to represent all eligible TSA employees except those in the Agency’s headquarters.

In a 2003 case, the FLRA found "we conclude that the legislative history of the ATSA (TSA’s enabling legislation) does not undermine the plain language of 49 U.S.C. § 44935… which leaves unfettered discretion to the Under Secretary to determine the terms and conditions of employment for screener personnel in the TSA".   
So, in essence, since the Agency said no union, there would be no union. At the time, then Member Pope wrote a strident dissent from the majority decision. Now that Ms. Pope is the Chairman and an avowed partisan of the President’s labor initiatives, AFGE apparently believes she will seek a majority of the current members to reverse the earlier precedent.
What makes this case interesting is that the law governing TSA excepts its employees, in large measure, from the provisions of Title 5 which governs most Federal employees. Until the employees are covered by this law, their working conditions are determined by the Agency Administrator. I’ve written before on the draft statute introduced in the House and on the politics of not recognizing the union until that law is enacted. As said before, I believe the Administration has been sitting on recognizing the union until the Congress acts lest TSA be forced into bargaining pay under the current statute.
Give ‘Em an Inch
That’s right, Mr. President, "Get the Hell out of our way". Your administration issued an executive order (EO13522) seeking a collaborative approach with Federal employee unions and here’s your response. 
Apparently AFGE has been reading up on historic labor leader Samuel Gompers who said, "We do want more, and when it becomes more, we shall still want more." I’ll bet Janet Napolitano (DHS Secretary) is thrilled that AFGE’s Gage decided to sit her firmly on the hot seat on this issue right now while she’s still recovering from the TNT in your underpants fiasco. 
FLRA’s Dilemma
So the question is, will the FLRA Chairman seek to reverse the 2003 case from which she dissented or whether she will she back the Administration after saying she will "…have the privilege of leading the FLRA during the Administration of President Barack Obama"? 
A recognized union at TSA is arguably not in the public interest until the TSA folks are covered by Title 5. The FLRA Chairman, based on her dissent in the case cited above, sees herself as an arbiter of the meaning of the law governing TSA. FLRA has a history of arrogating such decisions to itself. 
If you doubt that, take a look at FLRA’s 2011 budget request in which it says, "The FLRA is an independent administrative Federal agency and is the sole agency with the expertise and responsibility to establish policies and guidance relating to the labor-management relations program for 1.6 million non-Postal, Federal employees worldwide, approximately 1.1 million of whom are represented in 2,200 bargaining units." 
So much for what you guys at OPM, OMB, Federal Mediation, National Labor Relations Board, Office of Government Ethics or apparently all others know. Stay tuned, more fun to come.
Executive Order 13522 Countdown and Conundrums
OPM has yet to issue a snow emergency delay to Agencies who may not meet the March 9th deadline set by Executive Order 13522 to submit:
  • A description of a plan to conduct a "baseline assessment" of the current state of its labor relations. 
  • The extent to which it has established labor-management forums and whether it will participate in the 7106(B)(1) bargaining project.
  • How it will work with the union to develop metrics that monitor improvements in areas such as:
    • labor-management satisfaction
    • productivity gains
    • cost savings
    • other areas as identified by the relevant labor-management forum’s participants
We also haven’t heard from OPM and OMB (Co-chairs of the National Forum) on a completion of the rosters of members and a meeting schedule. Now, Now, folks, we aren’t being very transparent here or maybe we are. The word is that OPM’s answer to Agencies regarding the Order is that they are on their own. If true, then it’s a departure from Al Gore’s high profile National Performance Review which gave out hammers and established a version of the partnership police in the V.P.’s office.
I’ve heard from some agency staff that the same union rivalries that troubled partnerships during the Clinton days are resurfacing. Also, some unions and some locals, it is rumored, have submitted proposals on interpreting and applying the Executive Order. Since OPM and OMB are laying low, it will be interesting to watch whether the FLRA as the "sole agency with the expertise and responsibility to establish policies and guidance relating to the labor-management relations program" steps up to the plate and tells us what needs to be done to make the President happy.
Our President has said, " With the magnitude of the challenges we face right now, what we need in Washington are not more political tactics — we need more good ideas. We don’t need more point-scoring — we need more problem-solving." As he learns more about Federal labor relations, I wonder if he’ll wish he was back in Chicago where he understood the union management game plans.
As always, these opinions are my exclusive responsibility.


About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.