Who Decides What is An Effective and Efficient Government?

September 12, 2020 12:37 PM
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The phrase “an effective and efficient government” has been used quite liberally during the current Administration’s regulation of federal labor relations. It is the basis of many Federal Service Impasses Panel (FSIP) decisions. It is found in Section 7101(b) of the Federal Service Labor Management Relations Statute (Statute): “The Provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government”. Every union bargaining proposal must meet this standard as well as every management counterproposal.

There is nothing in the Statute that defines what this phrase means. It is left up to the members of FSIP and the members of the Federal Labor Relations Authority (FLRA) to interpret. 

Depending on who these deciders are, you can have very widely differing interpretations. One person’s efficiency can be another person’s gross inefficiency. Anything that costs the government money could be seen to be inefficient. 

Anything that requires an Agency to do something it doesn’t want to do could make the agency ineffective because the Agency solely knows best how to make its operations effective. 

If your orientation is that this phrase provides you the unfettered discretion to do whatever you think is right, there are no bounds to what you can do either favoring unions or favoring an agency. This is especially the case with FSIP, where there is no appeal of your decision.

Official Time

Some of the more interesting FSIP decisions during this Administration have dealt with official time. 

Official time is duty time a union can use to perform representational activities. It is provided for in the Statute. 

Official time has been controversial since the Statute was enacted. Agencies have had a difficult time over the years with dealing with the use and abuse of official time. 

Abuse of Official Time

Have some union reps abused the use of official time? There is no question that there have been abuses.

Very early in my career while I was a judge advocate in the Air Force, I was tasked with working with the Personnel Office to reign in a union president who was abusing official time.

She rarely showed up for work, claiming she was on official time. She did not comply with the collective bargaining agreement provisions concerning checking in with her supervisor to seek approval to go on official time. Her supervisor never knew where she was. The reality was that she was running a personal business off-base on her government time. 

She was given a 5-day suspension and told to comply with check-in procedures. She continued as before. She was given a 30-day suspension. She continued to not comply, so she was removed from government service. It was clear she had no intention of complying. 

This is an extreme example of official time abuse. Undoubtedly someone reading this could also come up with an extreme official time abuse example. 

The vast majority of union reps who use official time do not abuse it. They follow the rules and perform their presentational duties as prescribed by the Statute and the collective bargaining agreement. 

Those who do abuse official time are often “allowed” to not follow the rules by supervisors who don’t have the time or the desire to enforce the rules or union officials who don’t bother to control their reps. These rules can be a burden on a supervisor. Many do not want to police the use of official time. Clearly some union reps take advantage of this lax enforcement.

Is Too Much Official Time Being Used?

A second concern of management is that there is an excessive amount of official time used by union reps. Most union reps follow the rules, as prescribed by their collective bargaining agreement on the use of official time. However, even following the rules results in the use of a considerable amount of official time. 

This Administration clearly believes that there has been too much official time granted to union reps. Many federal managers would probably agree. Union reps receive statutory official time for bargaining and the processes of the FLRA. An agency has no choice but to give a union rep official time for these purposes. However, official time for other representational purposes is subject to collective bargaining. 

Reducing the amount of official time, both as to the amount a union rep can receive and the total amount available, in theory should result in less abuse of official time and less excessive use. 

In this Administration, this has been accomplished by Executive Order and FSIP decisions. Every President has the right to issue Executive Orders on federal labor relations issues. In this discussion, I am putting aside the legality of this Administration’s Executive Orders and Federal unions’ ability to challenge them based on current Federal Court decisions.

What I find interesting is the FSIP approach to official time on a couple of cases in particular. In at least two cases, the FSIP has found that the amount of official time proposed by the union was excessive.  That is not surprising. That could have happened in any Administration. What was surprising was that in these cases the FSIP also found the amount proposed by the Agency to be excessive and arbitrarily reduced the amount to be granted to the union.

When management and union bargain over a bank of official time hours they are making a best guess as to how much time will be needed. The bank concept works for both sides. The union has a guaranteed amount of time and the Agency has a guaranteed limitation on the amount to be used. 

When the Administration made one hour per bargaining unit employee its “recommended” amount of official time to be set up as a bank of hours it was also guessing. There was no supporting evidence showing where the one hour came from or what it was based on. It just became a magic number all agencies were expected to follow. 

Setting a target number of hours was nothing new. OPM used to use 2.5 hours per bargaining unit employee as its benchmark rate based on a somewhat analysis of what agencies actually used. Agencies and unions could follow this benchmark or not. 

When in prior Administrations, Agencies decided on an amount of bank time it was making a decision as to what was the most effective and efficient way to run its labor relations program. It was complying with the Statute. It took into account all the various labor relations activities and estimated how much time was needed. The union did the same thing. Through collective bargaining both sides came to agreement or not. 

Conclusion

Why is official time interesting, aside from the many years of continuing strife over its use and misuse? Because official time presents a clear issue of who gets to decide what’s an effective and efficient government. 

Does the Agency decide what is the most effective and efficient way to run its labor relations program or does the FSIP? When the FSIP, as has been the case recently, significantly reduces the amount of official time a union needs below what the Agency had proposed it is making a guess as to how much is actually needed. It is also saying the Agency doesn’t know how to manage itself and the FSIP knows better. Whatever the FSIP decides is the best way to manage an Agency is non reviewable.

Is FSIP doing something wrong by taking over the management of an Agency? It’s not doing anything wrong in the eyes of the Administration that appointed them. They are doing what is expected of them. They are reducing union official time. The real question is, do their actions result in a more effective and efficient government? But maybe that’s not the point.

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email [email protected] or subscribe to JSA’s newsletter.

© 2020 Joe Swerdzewski. All rights reserved. This article may not be reproduced without express written consent from Joe Swerdzewski.

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