A Time to Review the Status of Federal Labor-Management Relations Policy
By: Marick F. Masters*
Submitted for publication on November 29, 2020. The opinions expressed here are solely those of the writer and do not in any way reflect SFLERP’s positions.
The advent of a new presidential administration, especially one to succeed the highly controversial Trump presidency, produces volumes of suggestions on desirable changes in policy and practice in federal sector labor-management relations. After nearly four years of Trump’s presidency, these relations appear significantly strained and distrustful. To many observers, President Trump’s strong emphasis on asserting managerial prerogatives runs counter to conventional norms about comporting labor-management relations, even in a sector known for guarding management rights.
Unsurprisingly, a clarion call for rescinding President Trump’s trilogy of May 25, 2018, executive orders reshaping federal labor and personnel policies, along with various other managerial decisions to recede union influence in the federal service, has emerged since November 3, 2020. In an extensive 141-page document https://www.nteu.org/~/media/Files/nteu/docs/public/legislation/biden-transition.pdf?la=en) the National Treasury Employees Union (NTEU) details its lengthy list of corrective policies. It recommends rescinding Executive Orders 13836 (to expedite and focus the collective bargaining process), 13837 (to accelerate the removal of inferior-performing federal employees), and 13839 (to constrict the availability and usage of “official time”) and a host of other presidential decisions; making sweeping changes in presidential appointments to independent agencies such as the Federal Labor Relations Authority (FLRA), Federal Services Impasses Panel (FSIP), and Merit Systems Protection Board (MSPB) to rebalance their perceived orientation; and adopting a modified version of former President Clinton’s October 1, 1993 Executive Order 12871 establishing a comprehensive labor-management partnership program which included expanding the scope of bargaining to include “permissive” items under section 7106(b)(1) of the Federal Service Labor-Management Relations Statute (FSLMRS).
Certainly, these policy recommendations deserve careful attention. Regardless of political ideology, managerial philosophy, or operational orientation (labor, management, or neutral), common ground exists to justify a thorough review of the state of policy and practice in the domain of federal sector labor-management relations, including cognate personnel issues regarding removal authorities and procedures and the staffing of relevant administrative agencies. Policy in this domain occupies a special space, subject to intensely political cross-currents that coincide with presidential turnover. Rescinding the presidential orders and other decrees of President Trump promises only to take us back to the pre-Trump status quo. Implementing a modified E.O. 12871 resurrects a policy initiative which produced somewhat mixed results.
Sixty years have elapsed since President Kennedy appointed a high-profile task force to examine federal sector labor-management relations with an eye toward making government-wide policy recommendations. The task force, chaired by then-Secretary of Labor Arthur Goldberg, led to the issuance of E.O. 10988 on January 17, 1962, which established a broad-based policy granting federal (and also postal) employees the right to unionize and bargain collectively. While conferring these basic rights, E.O. 10988 deferred to the argument against the full transplant of the private sector labor model to the federal government. The order thus restricted the scope of bargaining, forbade strikes, disallowed union-security arrangements, and enumerated expansive managerial rights.
Through a series of subsequent presidential modifications, this basic executive order framework remained in place until Congress passed the FSLMRS in 1978 as part of a comprehensive civil service reform package. During the period between the Kennedy decree and the FSLMRS, federal employee union representation expanded rapidly. By the late 1970s, roughly 60 percent of the federal service (general schedule and wage grade) was participating in exclusive recognized bargaining units. [The 1970 Postal Reorganization Act placed the newly established U.S Postal Service under a separate statute with its own labor-management program, generally more expansive in according labor rights than under the then both the presidential orders and subsequent federal service statue of 1978.] This level of representation has remained relatively steady since.
Though substantially organized from the purely representational standpoint, the federal service has experienced turbulent labor-management relations. As mentioned, such relations have occurred in the vortex of political debate, with competing ideological perspectives blending with differing philosophies of management to produce sometimes abrupt and highly disruptive changes in policy and practice. Having evolved through several distinctive phases dotted by turning-point events, such as the 1981 air traffic controllers strike led by the Professional Air Traffic Controllers Organization (PATCO), the tragedy of 9/11 which ushered in waves of organizational change with direct labor-management implications, budgetary showdowns between Congress and executive resulting in government shutdowns, federal sector labor-management relations policy and practice have undergone extreme tension and discord.
Several issues have remained at the forefront of public-policy debate over time. The absence of consensus on either how to resolve differences or to reconcile competing perspectives ensures continued controversy on these key issues, regardless of who is president. Ironically, this reality makes the election of the president all the more important to the course of federal sector labor-management relations. Simply put, relevant policy depends to a sizable extent on who occupies the office, for executive power, with attendant judicial review, plays an important role in this domain, notwithstanding the enactment of the FSLMRS.
The role of government generally and the federal government specifically has changed vastly since the early 1960s. So have the economic, legal, political, social, and technological dynamics of our society. Under the arc of these sweeping alterations have emerged changing employment relationships amid new forms of work. The ongoing pandemic has served to accelerate these forces.
Consequently, it behooves the stakeholders in the federal sector labor-management domain to urge a systematic assessment of the current policy landscape. We should strive to find if the existing framework meets the test of time, or do we need major changes to balance the interests of parties in this circle. We live in times of deep political division, with highly polarized perspectives. Labor-management relations does not enjoy a safe harbor from these pressures.
Therefore, at the same time the next presidential administration considers making immediate changes in executive orders and personnel assignments, it should also address the longer-term. The bottom-line question is whether or not the current federal sector labor-management relations policy (and its attendant practice) reflect an appropriate balance of the interests of the immediately impacted parties in the context of the public interest in governmental performance in accord with democratic precepts.
A presidential task force to address this question seems appropriate. A bipartisan and ideologically balanced membership should address this overriding issue as well as a host of subsidiary ones, including the:
- appropriate scope of bargaining in the federal service,
- adequacy of existing dispute resolution procedures and rights,
- balance between the exigencies of national security and realities of collective bargaining,
- allowance of “official time” to conduct labor-management relations,
- prerogatives of management to discipline and discharge employees,
- role of union-security in light of recent judicial rulings,
- role of administrative agencies and appointment of officers,
- procedures for determining pay and benefits,
- nature and scope of prohibited personnel practices, and
- procedure for resolving budgetary stalemates to avoid or mitigate the negative effects of potential government shutdowns.
In short, a new administration presents a timely opportunity to both make immediate changes and to address the longer-term. A failure to confront the longer term will only guarantee that we will regularly face a cacophony of urgent policy-change actions with any turnover in administration, without the benefit of having assessed the adequacy of the current arrangement.
*Marick F. Masters is a Professor of Business at the Mike Ilitch School of Business, where he is also Interim Chair of the Accounting and Finance Departments. marickm@wayne.edu