Unprecedented Federal Employee Union Empowerment Underway at Federal Level

Executive Orders about Federal employees rarely get much media coverage. In his first year, the president issued an executive order that broadened the involvement of Federal employee unions in agencies. While the events in Wisconsin point out concerns about public employee union power, the Administration has required Agencies to involve Federal employee unions in virtually all government decisions.

After watching striking legislators and rioting state employees in Wisconsin, a growing interest in government employees at the state level may prompt a look at how our national government deals with labor organizations.

Executive Orders about Federal employees rarely get much media coverage and, as a result, are not widely known by the public.  In his first year, the president issued an executive order that broadened the involvement of Federal employee unions in the day to day operations of Federal agencies and created a kind of “executive order police” to insure compliance.

If that wasn’t enough, the Agency charged with statutory enforcement has swung its decisions almost exclusively the union’s way.

Let’s look at what Executive Order 13522 calls for. Section 3. is of particular interest:

Sec. 3. Implementation of Labor-Management Forums Throughout the Executive Branch.

(a) The head of each executive department or agency that is subject to the provisions of the Federal Service Labor-Management Relations Act (5 U.S.C. 7101 et seq.), or any other authority permitting employees of such department or agency to select an exclusive representative shall, to the extent permitted by law:

(i) establish department- or agency-level labor management forums by creating labor-management committees or councils at the levels of recognition and other appropriate levels agreed to by labor and management, or adapting existing councils or committees if such groups exist, to help identify problems and propose solutions to better serve the public and agency missions;
(ii) allow employees and their union representatives to have pre-decisional involvement in all workplace matters to the fullest extent practicable, without regard to whether those matters are negotiable subjects of bargaining under 5 U.S.C. 7106; provide adequate information on such matters expeditiously to union representatives where not prohibited by law; and make a good-faith attempt to resolve issues concerning proposed changes in conditions of employment, including those involving the subjects set forth in 5 U.S.C. 7106(b)(1), through discussions in its labor-management forums; (My Emphasis in bold)

So, what’s significant in this?

The first area highlighted (the creation of Forums) has had the undisputed effect of directly involving political appointees in dealings with the unions more than ever before. These appointees’ party of affiliation is intimately tied to unions by union contributions and fund raising and the work of union members and union employees directly in campaigns for electing Democrats, including the president.

It is likely that a number of these appointees either worked side by side with the same union representatives in the campaign or solicited their effort to influence voters. Anyone who has read anything about the history of labor relations knows that there are many areas in which union and management interests are different. Also, the unions have lobbied publicly and vocally to exclude from the forums anyone in the Agency who has negotiated previously on the Agency’s behalf.

So, when political appointees indebted to a constituency are supposedly representing a management interest in these forums, which way do you think they lean: defending an Agency’s prerogatives or satisfying a current and more importantly a future political ally? You figure it out.

Is this how the founding fathers envisioned the way a government would work? Even the Federal labor law envisioned collective bargaining on employee working conditions but never foresaw co-management with unions. One should also be aware that Federal employees covered by unions need not join them and in many organizations less than 1 in 5 employees are members or even less than a 1 in 10 membership is common. It is exceedingly naive to believe that these forums give a voice to the average Federal employee.

The only players present are elected union officials whose focus historically has been the advancement of institutional union benefits often at the cost of employee benefits as virtually any experienced Agency representative can attest.

Abandoning Agency Statutory Rights

In the second highlighted area, the president invites these forums to address issues despite the fact that the matters would violate statutory bargaining restrictions. 5 USC 7106 starts out by saying that “nothing in this chapter shall affect the authority of any management official of any agency” to do the following:

(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and

(2) in accordance with applicable laws—

(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;

(C) with respect to filling positions, to make selections for appointments from—

(i) among properly ranked and certified candidates for promotion; or

(ii) any other appropriate source; and

(D) to take whatever actions may be necessary to carry out the agency mission during emergencies.

So now the political appointees and the unions may literally work out what an agency will do (it’s mission); how much funding to request (it’s budget); how it will be structured (its organization); how many employees it will have; and its internal security practices. Need I go on?

Congress (and a Congress in 1978 controlled by Democrats at that) included these restrictions to put controls on Agencies and unions. So the president has, in essence, told the Agencies to negotiate these but since the law prohibits such negotiation, he directed them to do so under the guise of a “Forum.” A rose, by any other name. You got it.

Restricting Agency Prerogatives to Make Operational Decisions

The third highlighted area speaks to a part of the law that allows Agencies to negotiations at management’s option on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work…”  In other words, Agencies are empowered by the law to look, issue by issue, at a union proposal and decide whether, at its exclusive option, whether it is in the Agency’s interest to bargain the matter.

The executive order strongly encourages Agencies to involve unions directly in such things as how many will work a shift (Remember “featherbedding?” It’s alive and well in this administration), how the work will get done and what technology (cell phones, computers, etc.) will be used. Andy Stern (then of SEIU) claimed that unions had contributed $60.7 to the Obama campaign and Federal employees unions, while difficult to separate from general contribution figures, certainly made up a substantial percentage. In effect, it looks like you get what you pay for.

OMB and OPM are the Executive Order Police

The Order creates a National Council on Federal Labor Management Relations co-chaired by the Director of the U.S. Office of Personnel Management and the Deputy Director of OMB. It is reliably reported that OPM’s Director John Berry has opened sessions of the Council with admonitions to Agencies to make sure they follow both the spirit and letter of the Executive Order. An early issue was the extent of pre-decisional involvement of unions in Agency decision making. AFGE President John Gage is quoted in the October 2010 Council Notes as saying:

“… some people see predecisional involvement almost as a pilot, and think it’s sufficient to try predecisional involvement on just one issue. He said, “We want predecisional involvement on all issues.” (My emphasis in bold)

Following Gage’s comments, in January of this year, Mr. Berry and his OMB Co-Chair issued a memorandum clearly putting Agencies on notice to involve unions to the fullest and immediately. Here’s an excerpt:

“Further, as the Executive Order expressly requires, agencies should also allow predecisional involvement with unions in all workplace matters to the fullest extent practicable, without regard to whether those matters are negotiable subjects of bargaining under 5 U.S.C. 7106. As stated in the Executive Order, “Management should discuss workplace challenges and problems with labor and endeavor to develop solutions jointly, rather than advise union representatives of predetermined solutions to problems and then engage in bargaining over the impact and implementation of the predetermined solutions.” Therefore, it is imperative that management immediately engage unions on an ongoing basis consistent with the spirit and intent of the Executive Order.” (My emphasis in bold)

Is the implied Or Else as clear to you as it is to me? This is clearly a top down driven effort with little concern for Agency priorities nor certainly attention to a rising concern about the growing power of public employee unions.

FLRA Abandons Neutrality to Advance a Pro-Union Political Agenda

In a not very well covered (after all it’s a little complicated for the mainstream media) series of cases, the Federal Labor Relations Authority (FLRA), an Agency set up by the statute to enforce the labor law, has gutted the ability of an Agency to express concerns about or litigate its management rights. (The majority of FLRA members are Democrat appointees.) The absolutely clear wording of post Obama FLRA decisions will inevitably find any union proposal which violates one of management’s rights to be an “appropriate arrangement for employees adversely affected by the exercise” of a management right.

Historically, prior FLRAs have weighed the management right effect using a test in which the union had to establish that employees were, indeed, adversely affected but not any longer. If the proposal affects a management right, it is assumed to adversely affect employees and the Agency must therefore bargain it.

There’s another Agency involved if there’s no agreement called the Federal Service Impasses Panel (with all presidential appointees by the way). To be fair to them, how do they not grant the union its proposal if the Panel’s parent Agency, the FLRA, has already said it’s an appropriate arrangement? The statute is slickly trumped and unions gain rights the law didn’t intend them to have.

Listen for the Train

The Washington Post recently ran an article asking whether Federal Unions are next to get attention from the media and budget cutters. The article has an interesting quote:

“Donald F. Kettl, dean of the University of Maryland School of Public Policy, said by e-mail that “state-level battles are lining up as an express heading straight to DC. We’re going to be seeing these issues framed for the feds in the not-too-distant future. In a nutshell: the domestic discretionary cuts won’t get us far, almost no one wants to tackle entitlements (where the real cash is), so federal employees represent a huge target with the (arguable) potential for big savings.”

What Dr. Kettl may not know is that the cost of Federal employee union institutional subsidies including such things as official time granted to representatives, use of Agency facilities (space, technology, furniture, etc.) and other benefits may exceed a billion–that’s right a billion dollars. Many of these costs are hidden and no one has ever done a comprehensive tally.

Also, the fact that the Clinton era FLRA granted Federal employees, who are union representatives, duty time to lobby Congress and that unions have gotten travel costs to go along with the time, may push some citizen or other buttons. Looks like Federal employee unions are in for interesting times. As Johnny Cash once sang “I hear the train a comin‘ / It’s rollin’ ’round the bend”. Johnny hadn’t seen the sunshine but I suspect Federal labor management relations will and more than the usual sun block application will handle.

As always, if you discern opinion in the above, it’s mine and mine alone.

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.