Having worked with the Federal Service Labor Management Relations Statute (Statute) for over 40 years, I have often wondered what I would do if given absolute authority to change the Statute. I know a magic wand may never come my way, but one can always dream.
It’s pretty clear what management and union would do with the wand. At a minimum, management would considerably reduce the scope of bargaining more so than it already is and union would expand the scope. Management would virtually eliminate official time and unions would make it more available.
There would also be some other tinkering around the edges. Unions might want union shops with all bargaining unit members being required to pay dues. Management might want to eliminate binding arbitration. The wish list for both sides could go on forever.
If given a magic wand, I would put into effect my own wish list. My list differs from both union and management. In many ways it is more process oriented than dealing with bestowing expanded or limited bargaining rights or greater or lesser power for either side.
The following are some of the changes I would make:
- I will start with something easy. I would eliminate the formal discussion right contained in the Statute. In a previous article (Do We Really Need Formal Discussions?), I explained my belief that the formal discussion right is not necessary. The vast majority of meetings that are formal discussions do not require union representation for the union to protect its rights. However, management cannot bypass the union and negotiate directly with bargaining unit employees. A bypass interferes with the union’s right to represent employees in collective bargaining.
- I would also do away with Agency Head Review. In another previous article I outlined my view of Agency Head Review (Agency Head Review – The Good, The Bad and The Ugly). I think Agency Head review was useful when the Statute was first enacted because of the complexity of bargaining in the federal sector. However, with over 40 years of collective bargaining experience and FLRA decisions, it is no longer of true value. It unfortunately gives management an advantage at the bargaining table because it leads to a second bite of the apple not available to unions. It also is frequently used to implement policy and not just police violations of law and regulation. The parties should fight it out at the bargaining table and not give one side the opportunity for a “do over”.
- I would eliminate Section 7106 (b) (1). The confusion created by these “elective rights” as each succeeding Administration establishes its approach to whether you can or cannot bargain over them has led to needless and sometimes exasperated conflict. The intent is to allow Agencies to expand the scope of bargaining if they “elect” to do so. These rights should either be negotiable or not negotiable. It shouldn’t depend on whether a Republican or a Democrat is President. Even with this much attention very little is really known about bargaining over (b) (1). See my article (The Biden Executive Order and Section 7106 (b) (1) Bargaining).
- The negotiability process can seemingly take forever. Since every negotiability decision issued by the FLRA has to face potential judicial review these decisions are written very carefully. No Chair of the FLRA wants to be known as the one who consistently is overturned by the federal courts. Even with such care in drafting decisions it is not rare that a Federal Circuit Court of Appeal or even the U.S. Supreme Court spanks the FLRA for a poorly thought out or written decision. There needs to be a process which speeds up the decision making. The FLRA should have a requirement to issue a decision within 6 months of an appeal being filed. Additional staff and increasing the number of FLRA Members should be a new part of a speedier process.
- The Vacancies Act needs to be amended to allow for an acting FLRA General Counsel to be named for all periods that there is no Senate confirmed General Counsel. Over the life of the Statute, there have been long periods when the General Counsel position has been vacant. When there isn’t a General Counsel, unfair labor practice charges can not be prosecuted. In the last Administration, there was never a duly confirmed General Counsel during any period. Waiting over four years for an unfair labor practice complaint to be prosecuted leads to very inefficient and unstable labor relations.
- Greater use of post implementation bargaining should become a part of the Statute. There should be a category of issues for which bargaining should be mandated only post implementation. The Statute allows for post implementation bargaining when an emergency exists. While this provides a helpful approach to allowing post implementation bargaining, there are other categories of issues for which post implementation bargaining would be appropriate where implementation would not undermine the union’s ability to bargain over adverse effects.
- The FLRA’s right to issue Major Policy Statements should be eliminated. Allowing an entity which is not subject to the Statute (as was done in the last Administration) to Request a Major Policy Statement is an example of the abuses which this process can lead to. It gives the FLRA Members unvarnished authority to rewrite labor relations in the federal sector whether there is a need for a new approach or not.
- Federal Services Impasses Panel Members should be Senate confirmed appointments. Recent history has shown that the FSIP has tremendous authority to decide and enforce labor relations in the federal sector. With this authority, the members of FSIP should have to go through Senate Confirmation process.
This is my short list of changes I would make given a magic wand to change the Statute. Many of them are unrealistic if they were to be subject to the very partisan political atmosphere that exists today. Someday, there may be a change in the political winds and change in the Statute may be possible.