I am a retired Federal employee who (as a contractor) negotiates on the behalf of Agencies with their unions and trains managers in both labor and employee relations issues. I want to start this article by stating that the views listed here are mine and do not represent or claim to represent those of the Senior Executive Association or any of my clients.
We are six months into the Trump administration. As a Federal practitioner, I am hoping this Administration and the majorities on the Hill turn their attention to a series of major issues facing government management in the area of labor relations. When I say government management, I am including both political and career decision makers at national, regional, installation or operational level.
Since the passage of the 1978 Civil Service Reform Act, there has been a monumental expansion of the labor relations provisions of that statute by certain appointees seeking to empower Federal employee unions and the Agencies that manage the statute.
When Congress passed this statute, it was portrayed as the codification of an existing Executive Order envisioning placing into law the status quo at the time with only a very few significant changes. Those changes included:
- The addition of a General Counsel who was empowered to pursue unfair labor practice allegations as opposed to the prior system of an adversary proceeding with each party responsible for its own case presentation. Since the law passed, over a quarter million such unfair labor practices have been filed, more than 99% by unions with a few by individual employees. In these cases, everybody in the room is being compensated with taxpayer funds, unions, employees, advocates and the judges.
- An appointed Federal Labor Relations Authority (FLRA) composed of three appointees named for that particular job as opposed to the prior decisionmakers (Federal Labor Relations Council) including the Secretary of Labor as well as the Directors of the Civil Service Commission and the Office of Management and Budget.
- Slight, or so it was thought at the time, amendments to management rights permitting bargaining over exercise of those rights when employees were adversely affected; union rights to request data on a limited basis; and the inclusion of mandatory binding arbitration as an inherent union right.
The expansion of the statute and the authority of the Authority started in an interesting way.
In the early 1980s, in a case involving the Air Force, the FLRA decided that the provision of child care to Air Force civilian employees was negotiable. In this, its first foray into ruling on employee compensation, FLRA didn’t consider that there was no authority in law to pay for such a benefit or that no personnel policies or regulations addressed the matter, it just ordered bargaining.
Subsequently, FLRA ventured into interpreting banking law. Congress had passed laws in the wake of the savings and loan crisis of the late 1980s giving the heads of Agencies such as FDIC, Comptroller of the Currency, National credit Union Administration, Securities and Exchange Commission and the office of Thrift Supervision the authority to determine employee compensation. The unions at these Agencies claimed that such authority carried the obligation to bargain employee pay with them. FLRA ruled that a bargaining obligation existed because if the Agency head had “discretion”, he or she must bargain to the extent of that discretion. Only one Agency was excused because its law said that the Agency head had “sole” discretion to set compensation. Federal Agencies are bargaining pay without any authority of the Congress to do so, merely by a decision of the FLRA.
Not only has FLRA been overly generous with taxpayer funds without any accountability, it has created a case law in which no Agency may make virtually any change without entering into negotiations with its employee union. The most recent FLRA dropped any pretense that employees must be adversely affected by a change deriving from a management right. The state of the law, at this point, is that a number of unions are actually issuing something they call a “cease and desist order” and even crazier, Agencies are actually stopping mission needed efforts for fear of an order from the FLRA requiring them to return to the status quo in existence before the union filing.
A reader, unfamiliar with Federal operations, may say that such a situation is impossible. I have observed a union hold up an Agency relocation for more than five years by filing case after case claiming its bargaining rights were violated.
There is example after example of FLRA exceeding any reasonable definition of its legal role. Recently, FLRA ruled that civilian employees were entitled to commissary privileges on a military base; that Agency were obliged to bargain over the payment to union employees (not Federal employees) of their travel expenses; and on and on.
What’s to be Done?
The Congress keeps focusing on official time as if that is the only issue needing attention. Issues needing at least the same attention as official time included but are not limited to:
- Removing those provisions of law that:
- Created the General Counsel and staff in the FLRA,
- Limit Agency authority to make needed mission-related changes on a timely basis,
- Give FLRA broad discretion to require negotiation over Agency policies and regulations including those not of a human resources nature,
- Allow FLRA to interpret any law other than the Federal labor law without deference to the Agency responsible for the administration of the law or, if unclear, requiring deference to the Office of Management and Budget, Office of Personnel Management and Department of Justice opinion in the matter.
- Require bargaining on Agency-wide regulations.
- Provide unions with space, furniture, computers, mail, and other services free of charge,
- Prevent the implementation of a government-wide or Agency-wide regulation during the life of a collective bargaining agreement,
- Prevent an Agency challenging an FLRA decision on a bargaining unit or inclusion of a position in such a unit in the courts,
- Require an Agency to do extensive data gathering and organization at union request.
In addition, the Congress should legislate and the President should sign and implement the following:
- Establish the law of the case for disputes within an Agency. In other words, what is negotiable or non-negotiable, releasable or not releasable, or constitutes an unfair labor practice is only applicable within an Agency at the level of recognition not across the Federal sector.
- Require that union recognition must be reconsidered at any time membership falls below 20% of bargaining unit employees.
- Require that no organization or reorganization of employees become or continue to be union represented without an election.
- Require that Federal sector unions establish an inspector general type position accountable for insuring compliance with law and regulation and that any union official convicted of a crime be removed from Federal service and from representing Federal employees.
- Require that no Federal employee may use more than 25% of their work hours for representational work of any kind.
- Require that any arbitrator hearing a Federal case be bound by the applicable law or regulation and that hearings and decisions are subject to the same standards applied to Merit System Protection Board or other applicable adjudicative body.
- Prohibit the payment of attorney fees to a labor organization that employs attorneys at any level.
- If the FLRA General Counsel continues to function, require that office to provide to Agency authorized representatives any and all evidence relied upon prior to or after the issuance of an unfair labor practice complaint.
- Require that the FLRA hear any appeal (exception) from an arbitrator’s award that makes a bona fide claim that the decision violates a law or government-wide regulation.
- Require that FLRA hold a hearing on any negotiability appeal upon a showing that a dispute exists on the material facts in the matter.
- Prohibit political activity and lobbying by Federal employees who are union representatives at government expense on official or duty time.
- Eliminate the negotiation of pay and fringe benefits government-wide.
- Treat a union as a contractor under Federal ethics regulations.
Some might ask whether the above recommendations are needed or whether the issues the recommendations correct either are that serious or even exist at all.
Because the FLRA determined that unions got to the limits of existing law about 10 or 15 years after its passage, that body made every effort to expand the statute without consideration of the effect on Agency mission or operations. This was done during the Clinton and Obama eras because, of course, the unions couldn’t possibly tell members they couldn’t get them anymore.
If America is serious about an efficient, responsible government, a principal stumbling block, Federal union activity must be balanced with meeting mission needs and ensure that positive change is possible. Federal unions are absolutely perfect at the creation of an unchanging bureaucratic climate in which the mediocre are honored, the below average is protected and any one in opposition to that is subject to intimidation. It’s time to step up to the plate Uncle Sam.
Bob Gilson has been involved in Federal Labor relations for almost 44 years. He has represented Federal Agencies during that entire period. As the reader can see, he believes the system is broken and in dire need of repair.