Do We Need Federal Unions?

Are unions needed in federal government? The author addresses what is a complex question based on his labor relations experience.

Congress said employees could have federal unions when it passed the Federal Service Labor Management Relations Statute (Statute). Employees, in many federal agencies, have said they need a union when they vote for a union to represent them.

There are currently many members of Congress who don’t believe there is a need for unions within the federal government or anywhere else for that matter. There are many states that work hard to prevent unions from being recognized to represent employees. If states prevent unions, why are there unions in the federal government?

Aside from the Statute which gives employees the right to have a union, do we really need federal unions?

I grew up in small town where unions were unheard of. It was not until I was in law school that I took a course on the National Labor Relations Act and started to understand labor law.

It was when I worked as a law intern for the county executive where I lived that I realized that there was a union that represented county employees and that my mother who worked for the county was a member of the union. She never talked about the union and was far from an active union member. She grew up on a farm and knew nothing about unions. Our family had no history of union membership because in large part, outside of the county workers’ union, there weren’t many unions.

Based on where I grew up, I have often wondered how I became a labor lawyer. As a result of that background I came to labor law without any preconceived notions about unions. 

My first exposure to labor unions came when I was an Air Force JAG. I started out prosecuting court martials and gradually moved to handling labor and employment cases. There was a very active union at the Air Force base where I was stationed, so I was very busy. I often credit the base union with giving me a very extensive crash course in federal labor relations not available anywhere else.

I also learned that there are good union leaders and bad ones as well as good and bad managers.

Just as I was getting out of the Air Force, The Federal Service Labor Management Relations Statute (Statute) was enacted. Needing a job, I applied and started working in the Los Angeles Region of the FLRA. This began an almost 40-year career in federal sector labor relations. This life long experience has given me a unique opportunity to form an opinion on whether or not we need federal unions.

When I first began enforcing provisions of the Statute, I never really thought about the value of unions in the work place. The only question was whether there was a violation of law.

My job was not to determine if the Statute made sense as to the impact it had on the workplace. I presumed that Congress, in passing the Statute, had determined it was necessary to prosecute violations of the law. I never thought that on issuing an unfair labor practice complaint against management that I was doing something to improve the lot of unions because it was important that unions thrive in the work place, nor did I believe I was doing something to interfere in management’s ability to carry out the Agency’s mission. I did it because I thought management violated the law.

Likewise, as a JAG, when I prosecuted a drug case, I never thought about whether military members should be prosecuted for smoking marijuana because marijuana is or is not a dangerous drug. They violated the law and that was enough for me.

As I matured in my understanding of what labor relations in the federal sector was really all about, my views changed somewhat.

Many unfair labor practice charges (ULPs) are filed for serious issues needing a remedy. There are many occasions when management violates the law unwillingly through a lack of knowledge or understanding of the law. But as I found, there are also managers who not just willingly violate the law but purposely seek to harm union representatives who have undertaken to represent employees. Likewise, there are union representatives who disregard the right of employees to fair representation and also violate the law willingly.

There are a significant number of ULPs filed which have very little to do with the violation of law alleged. Quite often there was an underlying reason for the charge and many times it was the real reason the charge was filed.

However, this reason was different from the issue in the unfair labor practice. Usually it was a relationship problem between labor and management and the union was using the ULP process to get attention. Depending on the nature of the relationship, sometimes ULPs were filed in part to harass management. The harassment was to retaliate against harassment the union believed it was experiencing. Sometimes it was harassment for seemingly no good reason and just for the sake of causing havoc. Also, ULP charges were filed because the union thought an employee was treated unfairly. However, every unfair thing done to an employee is not a ULP.

Some managers have come to believe that all ULPs and grievances are spurious and all that unions do is complain. Most people don’t like to be second guessed, and no manager wants to be charged in a ULP or a grievance. In their minds, if there were no unions, managers would never have to be concerned about responding to complaints about something they had done. Few managers believe that they have truly done something wrong. Many union reps believe it is their job to protect employees against bad managers and in some organizations, there are a number of them.

What do unions really do? 

The two most important things that unions do is represent employees in collective bargaining and file grievances concerning violations of their collective bargaining agreement. There are a number of other important things unions do, but in my opinion, these two are the most important.

Collective Bargaining

When Congress passed the Statute, it specified that collective bargaining is in the “public interest”.

Many managers in the federal sector would disagree with the concept of collective bargaining being public interest. Instead, for many it is a time-consuming nuisance which can potentially have an adverse effect on the accomplishment of the mission of the Agency. In their view, management has the ultimate responsibility for achieving the mission of an Agency while Unions do not have the same responsibility. The question most often asked by many managers is why did Congress encumber them with the obligation to bargain which is time consuming, can be expensive, and often in their minds a fruitless endeavor.

Is collective bargaining worth all the time and money? The essence of collective bargaining is unions having an enforceable right to give input into employee working conditions and come to agreement with management on the best working conditions for employees. Collective bargaining provides an opportunity for employees through their unions to participate in the work place through bargaining over working conditions.

Most employers would agree that getting input from employees is a good thing. It enriches the workplace and can improve work processes. In fact, many agencies have spent considerable money training their employees on “employee engagement” in order to find ways for employees to be more involved in the work place.

However, engagement through a union in the federal sector is a totally different concept of involving employees. It involves obligations and rights that are enforceable. A union becomes a power center which can disagree with management and seek the assistance of the Federal Labor Relations Authority (FLRA) to support its position in the disagreement. 

Unions in the federal sector have significantly fewer and more restricted rights than unions in the private sector. Most notably, federal sector unions cannot bargain over wages, hours or benefits except in a few rare agencies where this type bargaining is permitted. They also cannot engage in work stoppages such as strikes or slowdowns.

There are also a number of statutory management rights which greatly restrict the union’s ability to bargain over work place issues. In addition, federal unions cannot have a union shop agreement requiring all employees in a bargaining unit to be members of the union. When you add these all together federal sector unions have significantly less rights than their private sector counterparts.

With all these restrictions, you might be wondering why federal employees vote to have a union represent them. Furthermore, why do federal employees pay union dues when the union has a statutory obligation to represent them whether they are a dues paying member or not?

The American Federation of Government Employees (AFGE) alone reports that it represents over 700,000 federal employees. Many fewer than that actually pay dues. Some bargaining units have a very high level of dues paying members and others have significantly less dues payers. Some employees, who never pay dues, consider the union an insurance policy in case they ever need it to represent them.

Filing Grievances 

Having the ability to grieve management actions to an arbitrator is very attractive to many employees. Having an outside neutral who has the authority to make decisions which can overturn inappropriate management actions, as mentioned above, is one of the most significant rights that employees represented by a union have. Without this there, in many situations, there would be no redress for unfair or even malicious actions by a manager. The grievance process to a certain degree levels the playing field. 

It is clear that a great number of employees in the federal government think they need the protections and benefits that a union provides.

The next question to ask is; do managers think they need unions? The answer from a vast majority would be no.

With that said, there isn’t the same level of hostility toward unions by federal managers as can be found in the private sector. Some managers just consider them a cost of doing business.

As noted above, no one likes to being second guessed or told they have a bad idea or approach to doing something. Would many, if not most, managers like to not have to deal with a union? The answer for many would undoubtedly be yes, but if they have to have one, they can learn to live with a union. However, if managers had the right to decide whether they would have a union or not have one there would be few, if any, unions in the federal sector. 

The bigger question is: are unions good for the effectiveness of the federal government?

Many may argue that putting effectiveness and federal government in the same sentence is an oxymoron. Do unions through the collective bargaining process improve management decisions? If employee engagement results in better decisions, why doesn’t bargaining with a union result in the same thing?

My experience, having been involved in many collective bargaining sessions, is that when management and the union are working towards a common goal, they greatly improve the workplace. However, if the relationship is dysfunctional to start with, it often results in poor solutions to work place problems with more time spent fighting than problem solving. 

Is it good for management to be challenged to support its decisions and to listen to what employees think about a work place issue? Most managers would probably say yes.

In most situations, management and union work successfully on coming to common sense work place solutions. The problem is that unions have the statutory right to disagree with management as to what should be an appropriate solution. These rights lead to often contentious relationships and waste in government operations which create all the bad things that managers and some Congressmen, for that matter, think would be avoided without unions.

My Answer and Conclusion

After over 40 years working in federal labor relations as a neutral, on the management side and on the union side, do I think the government and employees are better off with federal unions? My answer would be yes with some caveats.

I think employees need a voice in this massive and sometimes overwhelming bureaucracy which is the federal government. There needs to be way for employees complain about bad management and have input in their working conditions.

I have too often seen no accountability for individual manager’s actions. What used to be called the “good ol’ boys network,” which still exists with different nomenclature and more diverse members, needs a counterpoint. There needs to be an independent check on management which in the long run will be to the benefit of an agency. Management also needs input from employees in an era where employees are less likely to be interested in strict top down management.

There also must be a check on unions. Often, unions have failed to keep their own house in order when union officials run amuck. This is the minority of union officers, but there have been enough to cause a problem with the credibility of unions.

I understand that most union officers are elected by the bargaining unit and that the national union professes to have little control over them. However, it is in the interest of the unions to ensure union officials are properly doing their jobs. If a union can be placed in trusteeship for financial irregularities the use of trusteeship should be available for other problems.

There is a need for reform of labor management relations in the federal government. The government is driving a 1935 gasoline engine car in a soon to be electric vehicle world. The Statute was patterned on the National Labor Relations Act which was passed in 1935 when the work place was very different and a vast majority of employees were hourly workers. To get the greatest value from the labor management relationship, new ideas on what its goals should be and processes to be used need to be considered.

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.

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