The Swing of the Pendulum

October 27, 2020 1:52 PM
View this article online at https://www.fedsmith.com/2020/10/27/swing-of-pendulum/ and visit FedSmith.com to sign up for free news updates
Pocket watch swinging back and forth in a pendulum motion

iStock.com

Most people who have spent a part of their careers in federal labor relations either on the union side or the management side understand the concept of the swing of the pendulum.

The pendulum concept relates to how labor relations changes from one Administration to another, dependent on the political party in the White House. Most observers would argue that the pendulum swings in favor of unions during a Democratic Administration and in favor of management during a Republican Administration.

In looking at the swing of the pendulum during changes in Administration, it is important to look at actions of the Administration on the relationship between labor and management and the impact of its actions on expanding or contracting the scope of bargaining.

Democratic Administrations tend to favor collaborative labor relations – giving unions a seat at the table.

The Clinton Administration

During the Clinton Administration, there was the Executive Order on Partnership. It essentially mandated federal agencies to engage in collaborative labor relations – in essence working as partners solving workplace problems. It also required the use of interest-based problem solving in place of traditional positional bargaining.

In some labor management relationships, it worked great. In others, management was simply going through the motions.

As I always thought, there were certain union representatives and managers who did not have a collaborative bone in their bodies. Aside from these managers and union reps there were, at times, legitimate concerns about the boundaries of collaboration and management’s need to run the enterprise without union participation aside from traditional collective bargaining.

The Clinton Administration also tried to expand the scope of bargaining by requiring federal agencies to bargain over the permissive subjects of bargaining contained in 5 U.S.C. 7106 (b) (1). This effort was overturned by the D.C. Circuit Court of Appeals.

Interestingly the Clinton FLRA issued a significant decision on the “covered by doctrine” which in the eyes of federal unions reduced the scope of bargaining over changes in working conditions when a provision of a collective bargaining agreement “covered” the matter. 

The Clinton Administration moved the pendulum towards the union side but did not significantly expand the scope of bargaining.

The Bush Administration

The next Administration was a Republican Administration and the pendulum swung back to a more compliance-based approach favoring management.

Compliance based labor relations is a philosophy based on enforcement of law and rules through litigation and other enforcement approaches. It is the antithesis of collaborative labor relations.

In fact, one of the very first Executive Orders issued by the Bush Administration terminated the Partnership Executive Order. It basically said Partnerships are not required nor is engaging in interest-based bargaining. It did not say you could not have a collaborative relationship. You just could not have a partnership. Where collaboration was beneficial to both sides, they kept the relationship but often changed the name.

In places where collaboration was not working, it ended the day after the new Executive Order was issued. There were a lot of terminations of Partnerships that day. 

The Bush Administration was instrumental in having the ill-fated National Security Personnel System (NSPS) enacted. Aside from the significant change in the approach to performance management in the Department of Defense (DOD), NSPS also attempted to make very significant changes in how labor relations would operate in the DOD.

To a large extent, DOD’s approach to NSPS greatly restricted the union’s right to engage in collective bargaining. This approach was subsequently overturned by the Federal Courts.

The Federal Labor Relation Authority, during the Bush Administration, did not issue any earth-shattering decisions which greatly reduced union rights or significantly increased management rights. In fact, it left a great number of cases undecided which provided the next Administration opportunity to make decisions on them.

The Bush Administration moved the pendulum towards the management side of the spectrum, especially considering NSPS which was later undone by the federal courts, but it otherwise did not change the essential nature of the federal sector labor relations program.

The Obama Administration

The next Administration was a Democratic Administration and the pendulum swung back to a more collaborative approach to labor relations.

Instead of Partnership, the new form was Labor Management Forums as required by an Obama Administration Executive Order. Under this Executive Order, Labor Management Forums were to be established in Federal Agencies where unions represented employees. These Forums were to engage in collaborative approaches to solving work place problems and interest-based bargaining was also to be used.

Once again, in some places Forums worked great and in other places, they were simply an exercise of management checking the box that it had a Forum. There were no consequences for not having an active, let alone successful, Labor Management Forum.

The Obama Administration moved the pendulum back to the union side of the spectrum with respect to labor management relations through its Executive Orders on Labor Management Forums. The decisions of the FLRA were perceived by management as favoring unions but did not act to expand the scope of bargaining although they did have some impact on the effect of arbitration decisions. The Obama Administration did not change the essential nature of federal sector labor relations.

The Trump Administration

The next Administration, which is the current Administration, is a Republican Administration.

This Administration terminated the Obama Administration Executive Order on Labor Management Forums. This was to be expected. It further, by Executive Order, did not allow Agencies to engage in interest-based bargaining. Also, not surprising. These things are expected of Republican Administrations.

The actions of this Administration, in the eyes of federal unions, is a swing of the pendulum on steroids. For the first time, some federal unions are not talking about being unhappy with the swing of the pendulum towards management, but rather coming up with strategies to just survive as a union.

This is especially serious when it comes to official time for union representation. The Administration’s Executive Order sets a template of one hour of official time per bargaining unit employee each fiscal year. It tells Agencies to limit the most a union rep can receive to 25% official time in any one year, and if the rep goes over this amount because they have to use statutory official time for collective bargaining over management proposed changes, it will come out of the next year’s allotment.

The Executive Order additionally tells federal agencies not to allow any official time for the handling of employee grievances. This is a swing of the pendulum which goes to the essential nature of what federal unions do. They represent employees in grievances and in work place matters. They contend that it is difficult to carry out their statutory duties to represent employee without adequate time especially since employees are not required to pay union dues.

The federal unions challenged these Executive Order provisions as contrary to the Statute. A federal district judge issued an injunction against the implementation of the Executive Orders on labor relations. This injunction was overturned by the Federal Court of Appeals on the basis that the unions did not exhaust their administrative remedies by going to the FLRA first. It did not rule on whether the Executive Orders did violate the law because the unions’ actions were premature. They were supposed to go to the FLRA General Counsel with an unfair labor practice charge. Interestingly, there has been no FLRA General Counsel for over 3 years, therefore they could not file an unfair labor practice. No unfair labor practices can be prosecuted absent a General Counsel. Consequently, the unions have no ability to obtain judicial review of the Executive Order.

FSIP Under the Trump Administration

One part of the FLRA has become much more prominent in this Administration than ever before – The Federal Services Impasses Panel (FSIP).

The Panel has been considered, by litigants before it, as more favorable to one side or the other based on its make-up. More or less, the FSIP in Democratic Administrations have been seen as more favorable to unions and in Republican Administration’s more favorable to management.

Over the years, until the current FSIP, the various Panels, whether Republican or Democratic, have been relatively consistent in their approaches to handling disputes. 

The current FSIP has adopted an approach which is often based on whether something proposed meets the test of a more effective and efficient government.

In many cases, if a union proposal costs the government money, no matter how small, it is not efficient. It’s a difficult and sometimes impossible standard for unions to be successful overcoming as interpreted by the FSIP. Whatever the FSIP thinks is effective and efficient is implemented because there is no judicial review of FSIP decisions.

The FSIP often disagrees with Agencies and imposes contract language much more severe on unions than originally proposed by the Agency itself. Apparently, it knows better than Agencies as to what is the most effective and efficient way to manage their organizations. 

One of the more interesting decisions on effectiveness of government adopted by the FSIP is granting an Agency that requests it a 7-year term agreement. The rationale is that it saves the government money not to have to bargain over shorter term agreements.

There is no way for a union to rebut this rationale. It also prevents the union from reopening when a new Administration comes into office and desires to swing the pendulum back again. It also solidifies this Administration’s approach to labor relations potentially well behind its end.

The FLRA has issued a number of decisions overturning long standing precedent in Federal Sector. Every new Administration has the right to change the law based on their particular interpretation of the law.

One decision related to the definition of working conditions and conditions of employment. Long standing precedent has held they mean the same thing, however, the current FLRA disagreed and found that they mean very different things. The impact of its decision was to restrict bargaining over changes made by management depending on whether it was a working condition or condition of employment. A recent D.C. Circuit decision overturned this FLRA decision finding they essentially mean the same thing. 

Conclusion 

Will the pendulum swing back again if there is a new Administration after the November election?

In some respects, it undoubtedly will. Such a severe swing in the pendulum as has taken place has resulted in considerable anger on the part of federal unions. A growing sense of payback can be expected should there be a change.

Many Agencies have taken full advantage of this Administration’s approach to labor relations while others have been more measured in their dealings with their unions. Trying to put Humpty Dumpty back to together, in Agencies where severe changes have taken place, may end up being a difficult process.

Should there be no change in Administration after the November election, the ability of federal unions to survive additional severe swings in the pendulum may be very difficult. 

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

Tags:

About the Author

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.

Top