The Federal Service Labor Management Relations Statute (5 U.S. Code 7101ff) is a very limited law that unions and union-friendly White House advisors, Democrat administration appointed “third parties” and the unions have struggled mightily over the years to grossly expand union subsidies and bargainable topics.
The law addresses what the Agency and a Union may bargain. It states:
“§ 7103. Definitions; application
(14) “conditions of employment” means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, …
We have 72 volumes of case decisions trying to come to grips with this and other parts of the law. There are many court decisions including at least 15 before the Supreme Court. What has evolved is a rival to the Linear A of ancient Crete which virtually no one can read or understand.
Past Democratic Party administrations have tried any number of things to prop up Federal sector unions to make them appear more important. I’ve never seen any payoff to either the Democrats or the various administrations in doing so. Let’s look at what has happened in the past.
Clinton ERA Policies
In the Clinton Administration, we saw “partnership”; “interest-based bargaining” and an order requiring Agencies to bargain the “permissive topics” in 5 U.S.C. 7106 (b)(1).
Partnership ended up requiring the parties in every recognition to form a committee with union representatives on the clock but not on “official time” to talk about the unions’ input into decision making. It failed because the Agencies thought they were there to discuss upcoming changes involving “conditions of employment” while at least the largest Federal employee union, the American Federation of Government Employees (AFGE) loudly proclaimed that all new policies were subject to discussion. Agency management didn’t think the unions necessarily had its mission, the public interest or fiscal responsibility as fundamental goals and the “partnership councils” withered on the vine.
Interest-based bargaining as demanded by the unions and the FLRA was largely dead-on arrival as it required a consensus approach among both bargaining teams to arrive at contract terms. There were at least three problems difficult to overcome:
- Most Agency principals weren’t interested in giving their bargaining teams unfettered ability to make deals over their (the principals) prerogatives.
- The idea of reaching an agreement ‘in principle” on an issue frequently left teams uncertain what was agreed.
- When bargaining got down to specific language, and it always did, it went back to the evil “position-based” approach from which almost all involved felt that a ton of time had been wasted on seeking a consensus that had no real meaning.
Joe Swerdzewski, in his February 8th article in FedSmith did a great job explaining exactly how litigious and often confusing the case law seeking to explain “permissive” bargaining became during the Clinton Era. He tells us that the new Biden order addressing (b)(1) solves all the problems by using the word “elect” versus “negotiate”.
Clinton Executive Order 12871 of October 1, 1993 Sec. 2. Implementation of Labor-Management Partnerships Throughout the Executive Branch. The head of each agency subject to the provisions of chapter 71 of title 5, United States Code shall: (d) negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same…
Biden Order 1/22/2021 Sec. 4. Ensuring the Right to Engage in Collective Bargaining. The head of each agency subject to the provisions of chapter 71 of title 5, United States Code, shall elect to negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1) and shall instruct subordinate officials to do the same.
What Joe missed was that the law vests the election in the Agency not the President. While some Executive Branch Agencies are subject to Presidential orders, some are less so. This was an issue in some of the court cases and may be again. Joe is a very smart guy, but notice he didn’t address why any Agency might think it’s not such a good idea to bargain in the permissive area. That’s because it isn’t, except in very limited circumstances.
Will the Biden rewording change everything? Well, that’s yet to be seen.
Obama Era Policies
President Obama in Executive Order 13522 had even more fun with the “permissive” area than the Clinton presidency:
Sec. 4. Negotiation over Permissive Subjects of Bargaining.
(a) In order to evaluate the impact of bargaining over permissive subjects, several pilot projects of specified duration shall be established in which some executive departments or agencies elect to bargain over some or all of the subjects set forth in 5 U.S.C. 7106(b)(1) and waive any objection to participating in impasse procedures set forth in 5 U.S.C. 7119 that is based on the subjects being permissive. The Council shall develop recommendations for establishing the pilot projects, including (i) recommendations for evaluating such pilot projects on the basis, among other things, of their impacts on organizational performance, employee satisfaction, and labor relations of the affected departments or agencies; (ii) recommended methods for evaluating the effectiveness of dispute resolution procedures adopted and followed in the course of the pilot projects; and (iii) a recommended timeline for expeditious implementation of the pilot programs.
(b) The Council shall present its recommendations to the President within 150 days after the date of this order.
(c) No later than 18 months after implementation of the pilot projects, the Council shall submit a report to the President evaluating the results of the pilots and recommending appropriate next steps with respect to agency bargaining over the subjects set forth in 5 U.S.C. 7106(b)(1).
Please correct me if I’m wrong, but I don’t remember a report and certainly saw so no action going forward?
The Obama Era is also marked by the creation of Labor Management Forums, pre-decisional involvement and the identification of metrics to assess the success of labor management cooperative efforts.
The unions thought the Forums were a reinvigoration of Clinton’s partnership councils and the pre-decisional involvement meant Agencies could make no changes in management rights areas without their OK. FLRA helped this along by finding that virtually any union proposal affecting a management right was an “appropriate arrangement under (b)(3). More confusion, more court cases, more wasted time.
I hesitate to even mention “metrics”. It was the ultimate joke. The only Agency that took it seriously was OPM and even they abandoned all hope in Obama’s second term.
Other than spending lots of Federal dollars on meetings, committees, Councils, Forums and the like, little changed in the Clinton and Obama years except an enormous growth in the government funding of union operations.
Union time and operational funding has been the carrot that was held out to get union support and it worked. Despite empowering unions by extremely liberal third parties and much political pressure, Agencies have tried to get their missions accomplished. That they did is a testament to them.
What changed in recent years was the last administration’s rejection of the total and virtually absolute commitment by political policy to use Federal dollars to completely fund the operations of Federal unions. Prior to the recent administration’s efforts to curtail the use of official time and government funding of union space, equipment, phone and internet service, and government paid union attendance at union conferences, the taxpayer was paying hundreds of millions of dollars a year to support federal unions without any authorization in law.
President Biden appears initially to be taking advice to return to the past policies of the Clinton and Obama presidencies and a status quo of buying the unions with financial subsidies. Past efforts have been ineffective. Perhaps its time to do what no other President has done since this law was enacted; that is, to establish a bipartisan study group to analyze the 40 plus years of Federal labor relations under the law, identify what has worked and what hasn’t, ask if we have a better government because of the law, and what, if anything needs changing.
I, for one, believe that swinging the pendulum of FLRA decisions and program policies to the former pro-union position without a consideration of the last 40 years and perhaps a hearing of other views on the issues involved is bad government. How about a fresh look?
As always, the above represents my views.