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Labor Law and Labor Relations

The author says that to be successful in federal labor relations, you must know both the law and the relationship between labor and management.

Having spent over 40 years involved in federal labor relations, I have always considered that there are two parts to labor relations. There is labor law which is embodied in the Federal Service Labor Management Relations Statute (Statute) and the decisions of the Federal Labor Relations Authority (FLRA). There is also labor relations which is the relationship between labor and management.

I have always thought you needed to know the law to be effective in representing your side in labor relations. That means both union and management need to have a well-grounded understanding of the law of federal labor relations. However, you also need to know how to create an effective relationship with your counterpart. 

The Statute establishes a very complex system of labor relations, replete with multiple due process systems providing ample opportunities to litigate disagreements between labor and management and with the FLRA.

I recall when the Statute first was enacted, I was on active duty as an Air Force JAG. I received a call from a fellow JAG who was at Strategic Air Command Headquarters. He had just read the Statute and told me it was great, but was misnamed. It should have been called the lawyer’s civil relief act for all the work it was going to give lawyers. It has turned out to give lawyers and labor relations practioner’s more work trying to understand its meaning than anyone could have believed was possible at the time it went into effect. 

I recently wrote an article for the JSA Newsletter about formal discussions (July 28, 2020 edition – Do We Really Need Formal Discussions?). It outlined how each word and phrase of the statutory formal discussion right had resulted in considerable litigation.

In the big scheme of things, the formal discussion right, while important to unions, is not one of the major provisions of the Statute. However, there has been an incredible amount of litigation over its meaning and application. The meaning developed by all these decisions must be learned by labor relations practitioners, both union and management, to be able to successfully represent their side in the hand to hand combat labor relations has become. 

Negotiability

Now let’s take something much more difficult, if not the most difficult, to understand in the Statute. It’s called negotiability.

The Statute sets out a number of management rights. The union can make proposals to mitigate the adverse effects on employees from the exercise of these rights. Such proposals must be either negotiable procedures or negotiable appropriate arrangements. There are specific rules the FLRA has established in determining what is negotiable, but they are not easy and require an extensive understanding of negotiability.

The Statute also limits bargaining on federal laws and government wide rules and regulations. However, the Union can make proposals, which if they do not conflict with the laws and regulations, may be considered negotiable.

Once again, there are a series of often difficult to understand rules on what is negotiable when it comes to laws and regulations. The concept of negotiability has led to a tremendous number of disputes and consequent litigation including before the federal courts. 

In bargaining, management must decide if the union’s proposals are negotiable and the union must decide if management is right when it declares union proposals nonnegotiable. If this dispute cannot be resolved at the bargaining table, it can go to the FLRA on a negotiability appeal filed by the union.

As noted above, understanding negotiability takes a good understanding of the Statute and FLRA case decisions. Many practitioners on both sides don’t have the in-depth understanding of what the FLRA requires when a negotiability appeal is filed and what to argue before the FLRA to support their case.

It is actually quite easy for management to declare a union proposal nonnegotiable and it is then up to the union to win the dispute before the FLRA. This requires extensive knowledge of negotiability by the union, which often times unions are lacking. 

Knowing the Law

To be proficient in federal labor relations you need to know the law. You don’t have to have the whole Statute or all FLRA decisions memorized, but at a minimum you need to know the basics of federal labor law.

Many practitioners, both management and union, have a good grasp of the law. However, they still need more understanding of the more difficult aspects of federal labor relations especially if they are to advise their side on what to do when faced with a labor relations problem.

However, many non-practitioners, such as managers and union stewards, have only a passing knowledge of some of the most important principles. This can get them in trouble. If you are working in a unionized environment, investing the time and money to train your supervisors and union stewards in the law will pay dividends. 

The Relationship Between Labor and Management

Today’s federal labor relations climate is all about the law and how to enforce the law. In the current environment, very little is heard about the importance of the relationship between labor and management. Even in this environment, both sides have a choice as to how to handle problems. You can enforce rights and therefore you have to be good at labor law or you can problem solve. You can only problem solve if there is a good working relationship between labor and management.

In my long experience in federal labor relations, I’ve learned that when the parties had a productive relationship it was because they worked on the relationship and only resorted to enforcing their rights under the law when it was the only appropriate way to solve a problem. 

Enforcement of the law can leave scars and attempts at retribution when it is considered to be mean spirited and not just a way to solve an issue the parties themselves could not resolve.

A good relationship is based on respect between the parties. Not infrequently, unions have filed grievances and unfair labor practices (ULPs), whether they believed they would prevail or not, solely because they felt disrespected by management.

Ignoring a union’s right to bargain is a supreme example of showing the union a lack of respect. Unions calling managers names and using harsh language in describing supervisors is seen by management as not respecting the role managers and supervisors have in the work place and disrespecting them personally. 

The relationship between union and management can be very personal. How the respective participants in labor relations feel about each other has a great influence on how labor relations are conducted. If demeaning your counterpart is your approach to labor relations then the relationship will be wrought with difficulties. Saying outrageous or mean-spirited things may feel good in the moment but it does little to bring about solutions to problems. 

The two basic ingredients of a good relationship are communication and trust; they go hand in hand. If the parties to a relationship communicate effectively with each other they will build trust. If the parties trust each other they will communicate more effectively. However, building trust that has been lost or communication which has become nonexistent or difficult requires hard work and persistence. It can be done, but it takes a commitment on the part of both parties to the relationship. 

You need to know the law because you need to know how to enforce your rights. You need to figure out how to have a good relationship with your counterpart because you need an avenue to be able to resolve problems without constant escalation to what often is acrimonious litigation. Knowledge of labor law and the ability to establish an effective relationship are both needed to have a productive labor relations environment.

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.