This is the second of four blogs related to federal labor-management relations and the impact that executive orders have on it.
Traditionally, democratic presidents tend to support labor, whereas republican presidents typically support management. Many people that work in the field of federal labor-management (L-M) relations will likely describe the relationship between unions and management as adversarial. Others believe the relationship has become overly legalistic, as well as obstructionist.
There are many reasons for this state of relationship, which include the use (some say abuse) of official time for union business, changes to the scope of bargaining, budgetary concerns, desire for power, and conflicting agendas, as well as other issues. In this blog, we’ll cover the volatile subject of official time.
To set the foundation for the problem of official time being subject to the current president’s agenda, and not regulated by legislation, the below clarifies how the changing political landscape affects case law, which directly affects official time.
When a president takes office, one of the functions of the president is to appoint members to the Federal Labor Relations Authority (FLRA). There are three FLRA board members, who are appointed by the president and confirmed by the Senate to serve 5-year terms. By statute, no more than two of these three positions can come from the same political party. By placing a majority of members of one political party in the FLRA, there is a high likelihood that the FLRA members will vote along party lines. This type of voting typically happens in the private sector labor-management relations board, the National Labor Relations Board (NLRB), according to Cooke and Gautschi.
In addition to the 3-member FLRA, the president appoints a general counsel (GC) of the FLRA to hear and decide on unfair labor practice (ULP) complaints. Appointinga GC of the FLRA puts someone with the same political ideology as the president into a position to determine if one of the parties acted contrary to CBA or statute. Again, this has the potential for allowing a pro-union or a pro-management bias to come into play instead of applying a neutral perspective.
Another more well-known appointment that presidents make is the appointment of federal judges, who may or may not be inclined to allow politics to interfere with consistent, sound legal reasoning. However, the same action can be lookedat through multiple lenses, so a judge’s perspective is more likely to come into play, whether it is politically based or not. These judges preside over the various federal court systems and hear cases that can impact federal labor-management (L-M) relations.
Topics that are addressed in an executive order, but are not adequately defined in statute and set within parameters, tend to result in differences in interpretation. Those that want to use official time freely will have a different interpretationof the meaning and intent of the statute than those that want to establish limits to its use.
The concept of official time resulted in a trade-off for the decision not to create a federal “closed shop,” in which every federal employee must pay for union representation. The Civil Service Reform Act of 1978 allowed federal employees to join the union (and pay the dues) or not. However, the union would still be required to represent all employees in the bargaining unit – regardless of whether they pay dues or not. The union has the right and the responsibility to bargain with management and enforce the collective bargaining agreement (CBA) on behalf of all employees, not just the dues-paying members of the group.
To explain what “official time” is, consider this example. When a federal agency hires an applicant such as a physical therapist, and that physical therapist becomes a union representative, a portion of that physical therapist’s duty time switches from 100% patient care to some patient care and some union time (the percentage is a subject of bargaining). If that physical therapist becomes a 100% official time union representative, the physical therapist does not work with patients, but works on union activities exclusively. The problem is that the federal agency is not allowed to hire a replacement physical therapist since that 100% union representative still encumbers the available position (essentially, the taxpayers pay for someone to do no government work, but to work exclusively on union activities). What results is that the work of the physical therapist/union official is spread out among the other physical therapists. This problem becomes exacerbated when there is more than one union official who is of the same specialty in the same work group (in other words, two physical therapists from the previous example). In some cases, the union representative has been doing union work for so long, that he/she loses the credentials necessary to perform the work that he/she was hired to perform. In that situation, when a union representative loses an election and returns to patient care, the agency would be required to retrain the former union representative.
In a news article, called “VA takes action to restrict collective bargaining and official time,” Ian Smith highlights this concern. He wrote that the Veterans Administration (VA) has 2 doctors, 65 nurses, and 405 other employees on 100% official time. This means that those employees are not treating patients, but are only working on union matters in the VA. The VA claims that this is negatively impacting their ability to provide health care for veterans as well as costing the taxpayers money for work that is arguably irrelevant to them. Chase Gunter, a reporter for Federal Computer Week (FCW) reported that last year the VA spent $49 millionon union work (the salaries of the union representatives who do not treat patients, but instead work on union matters).
The American Federation of Government Employees (AFGE), the largest public sector union, said that this is money well spent. They argue that official time allows the union to ensure that management does not mistreat their constituents, thereby ensuring quality medical care for veterans.
Official time is not regulated by statute, but is subject to bargaining and therefore varies. Some of the negotiations have resulted in the creation of a bank of hours to be used per month, a set percentage of duty hours to be used per month, or the use of a “reasonable” amount of hours for union work.
Union officials argue that because the statute specifically forbids requiring every employee to pay union dues (union shop), the union should have the ability to use employees who act as representatives instead of having non-employees come on-site to fulfill their union role, as happens with the Teamsters Union in the private sector. Another argument that union officials make is that they are required to represent everyone in the bargaining unit, and most do not pay union dues, so there needs to be an offset to the amount of representational work they have to do (grievances, negotiations, etc.).
At this time, official time (taxpayer-funded work time that is used exclusively for union business) is not regulated by statute. Instead presidents issue executive orders to order agencies to adhere to their ideology on unions. This creates an unstable L-M environment, which is a cause of friction as political parties change control of the presidency.
Standardizing official time – through legislation – would provide consistency, which would help L-M relations heal.