Fixing Federal Labor Relations: A Statutory Markup for Change

The author says that the current labor relations statute is a failure that should be repealed or revised. He offers a detailed analysis of the changes he thinks need to be made to the law.

For 43 years, I’ve represented Federal Agencies in unit determination, negotiability, unfair labor practice, arbitration, mediation, impasse cases and at the bargaining table for both term and I&I frequently as a chief negotiator. I still bargain and am involved in cases as an advisor.

I like to think Albert Einstein was right when he said, “the only source of knowledge is experience”. Well, I’ve experienced way too much of the labor statute and the many problems it has created for Agencies attempting to deal with it.

The statute says, “the provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government.”

The last and other Federal Labor Relations Authorities (FLRA) in their expansionist philosophy have done everything but support efficient and effective government. This statute is a failure and should be replaced or repealed.

My guess is that repeal is politically unrealistic. If I’m right, then perhaps we can hope for a statutory reform that helps Agencies actually produce efficiency and effectiveness in programs instead of a virtually endless union game of leveraging needed Agency change for union institutional rights.

That’s right, virtually all the I&I and term bargaining I’ve seen isn’t focused on gains for employees but rather improvements for the institutional unions. I’d invite a look at negotiability, ULP, arbitration and Impasses cases for a count of the percentage involving union rights not employee benefits.

The absolute truth is that virtually all the costs associated with these cases for both sides are borne by the taxpayer. Everyone involved is on the clock from beginning to end. Even if the union uses a non-government advocate, it can do so because dues pay for nothing other than some institutional costs away from the workplace.

In most recognitions, the cost to the government of having a union represent employees is many, many times the amount paid in employee dues. In some cases 100 times or more. Not only do unions get boatloads of official time but free offices, furniture, computers, copiers etc. The taxpayer is paying virtually the entire operating cost of a union. So, dues go exclusively to national or local union internal business rather than representation.

I believe the true cost of a Federal labor relations program under the current law goes to literally billions of taxpayer dollars a year. None of this reflects a line item in an Agency budget. None of it is counted or accounted for. OPM, in the last administration, actually stated that any union time spent in the Executive Ordered forums with Agencies shouldn’t be counted against negotiated official time. That means using duty time and with no negotiated or statutory limits. Want to save billions, Mr. President? Get this program under control.

As someone who represents Agencies, now as a contractor, I, unlike current Federal employees, can speak out about this. The above is absolutely true. Having said that, all in this article represents my views and experience, not those of anyone I have worked for in the past or work for now. I hope James Madison was right when he said:

A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.

Attached to this article is a markup of 5 U.S. Code §7101-7134 that I believe, if adopted, will go a long way to getting a handle on a way out-of-control program.

Below is an outline of the changes I’m suggesting and why they are necessary. There are many and there may not be room here to address them all, but I will be happy to detail the rationale for these proposals to any public official on or off the Hill at my own expense.

Section 7101

Since little said here has proven true, perhaps the law should focus on what’s required in its outcome i.e., that the law serve government efficiency and effectiveness primarily.

Section 7103

  • Authorizes the President to exclude Agencies or parts of Agencies from coverage if inconsistent with mission accomplishment.
  • Seeks to fix certain definitions of excluded positions that were written without regard for how they might be interpreted by an expansionist FLRA.
  • Makes certain Agency regulations carry the force of law under this chapter.

Section 7104

  • Returns to the system used by the government prior to 1978 to address unfair labor practice ULP) claims. Each party filing a charge will be responsible for advancing its own case. Currently virtually 100% of claims are filed and pursued by the General Counsel of the FLRA. This proposal would abolish that office while retaining the Office of Administrative Law Judges who would hear the claims of union and management through an adversary process. This worked for almost 10 years before the passage of the current law and removes substantial subsidization of union claims by the taxpayer.

Section 7105

  • Agency regulations applicable to its employees on an Agency-wide basis would have the force of law under this proposal.

Section 7106

  • Make negotiation elective to the Agency, the procedures and arrangements resulting from the exercise of a management right.

Section 7111

  • Requires the majority of the employees in a prospective representational election to vote for a particular union for it to gain recognition.

Section 7112

  • Requires that any prospective bargaining unit must demonstrably promote effective dealings with, and efficiency of the operations of the specific agency involved.
  • Fixes a situation in which the FLRA not the Agency decides how much time a person must be involved in intelligence related work to be excluded from coverage.
  • Requires Agency agreement to effect a consolidation of bargaining unions rather than merely the union’s desire to do so.

Section 7113

  • Requires a union to have represent a majority of Agency employees to be accorded national consultation rights.

Section 7114

  • Changes the definition of a “formal discussion” to require the meeting address changes in working conditions as a precondition to a union’s right to attend.
  • Requires a determination by the Agency not the FLRA that requested information is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.
  • Changes strengthening the review of an agreement by an Agency head regarding whether negotiated matters are consistent with law or regulation as specified in this proposal.

Section 7115

  • Permits an employee to revoke dues withholding after one year as opposed to current complex system.
  • Eliminates dues withholding for labor organizations which do not have a recognition.

Section 7116

  • Requires unions to pay for any facilities, services or supplies provided by the Agency to avoid the appearance of a conflict of interest.
  • Applies a doctrine used in private sector that encourages ULPs to be filed as grievances subject to the negotiated procedure.
  • Encodes the adversary ULP process discussed above.

Section 7117

  • Makes matters selectively negotiable by the Agency if the matter is covered by an Agency regulation.

Section 7118

  • Conforms language to proposed new ULP process.
  • Requires the FLRA to request from an Agency an interpretation of any regulation in dispute in a matter before the FLRA.

Sections 7119, 7120, 7121 and 7122 – no change

Section 7123

  • Permits parties to challenge all decisions of the FLRA in Federal court as opposed to current limitations.

Section 7131

  • Places substantial limits on the use of “official time” for union activity by Federal employees
  • Places with the Agency the determination of whether any official time may be granted for union activity and under what circumstances.
  • Specifically caps official time used by any employee to 10% in any a work year.

Section 7132 – Conforming changes

Sections 7133 and 7134 – No change

The above represents changes that would make government more manageable; make unions more accountable to their members; place authority in Agencies to determine what suits their mission needs rather than the FLRA; lessen substantially the taxpayer subsidy of Federal unions; and require unions, like any other outside entity, to pay its way when dealing with the government.

If any or all of the above proposals are adopted, I’m sure I won’t be an invitee to holiday parties on H or K Street in DC in future. Since I haven’t before, I had low expectations anyway.

Seriously, I hope those in position to change or influence change the way labor relations in the Federal sector operates will give this a read. I will be happy to explain in detail the rationale for these proposals to any public official at my own expense. (See the full document containing my proposed revisions)

A number of years ago, I was upbraided by a union official who told me that he was only an ordinary government employee not a civil servant. He said he didn’t serve anybody.

I guess my reaction to that philosophy, in large measure, has helped drive my belief that those of us who do the people’s business shouldn’t do it in an average way. We should always put the American people first and give our very best. I hope these proposals reflect that.

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.