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What Are We Required To Bargain Over This Month?

This is the third of four blogs related to the topic of federal labor-management relations. The first blog discussed the historical use of the executive order. The second blog discussed the challenges caused by the use of the executive order as it relates to official time.

Beginning with Executive Order (E.O.) 12871, President Clinton ordered Executive Branch federal agencies to start bargaining over permissive topics (numbers, types, and grades of employees; technology; means and methods of work; and appropriate arrangements for those adversely impacted by the exercise of a management right). Prior to this time, federal managers did not have to negotiate over the number of employees that were assigned to perform work, for example. Additionally, the grades (and, therefore, the pay) were not previously a required topic of bargaining. Under Clinton’s executive order, when a union provided a proposal that contained such a topic, management then had the responsibility to negotiate over these topics. Now, the budgets of the government agencies could be impacted by the negotiation of the numbers and grades of employees.

Clinton’s executive order, which seemed to give the federal unions more power, were seen by some groups, such as the Heritage Foundation, to have gone too far. These groups argued that Clinton’s E.O. 12871 be replaced with something that gave federal agencies more flexibility. E.O. 12871 gave the unions the unprecedented right to get involved in federal agency decision making. While some agencies quickly complied with Clinton’s order to create labor-management (L-M) councils for the purpose of improving government performance, many resisted this order. The secretaries of defense, justice, and treasury hesitated in implementing E.O. 12871, and many of the other secretaries followed. What resulted from this high level “revolt in the ranks” to fully implementing E.O. 12871 was that Clinton declined to further enforce the act. This move proved unpopular with the unions, since they saw his declination to force the issue as a failure to support them.

Some arguing on the union’s behalf, however, felt that putting partnership as a requirement in legislation could adversely impact some smaller agencies. Richard Johnson, a labor-management expert, believed that keeping partnership requirements flexible allowed the “spirit of entrepreneurship” to continue between unions and management. Also, Robert Tobias, an official with the National Treasury Employees Union (NTEU) for 31 years, wrote that it wasn’t until after Clinton’s E.O. 12871 that L-M relationships began to improve.

Tobias predicted that if and when G.W. Bush rescinded Clinton’s partnership executive order, union leaders working under partnership would revert to the adversarial relationship that previously existed. That prediction seemed to have merit, since many L-M relationships continued to suffer after G.W. Bush cancelled Clinton's executive order.

Shortly after taking the oath of the office, President Obama swung the pendulum back in the other direction, allowing unions to bargain over permissive topics. This lasted until President Trump took office and cancelled the requirement to bargain over permissive topics. Every administration (of a different party), results in a direction change of the pendulum.

As was previously stated, the management position with regards to expanding the scope of bargaining under Clinton and Obama is that it gave the unions too much power and hurt agency efforts to bring about changes. The union, though, believes that Clinton’s and Obama’s orders actually helped improve relationships, since employees (through unions) had a voice in change decisions.

The FLRA continues to develop case law, which has had the effect of expanding the scope of bargaining beyond what was originally envisioned. Depending on whether republicans or democrats control the FLRA, case law could go pro-union or pro-management as it develops. The problem with case law being one side or the other is that it has long-lasting impact on the L-M situation. This allows bias into what should be unbiased rulings.

Public sector unions (at the local, state, and federal levels) are funded by the taxpayer. In times of a budget surplus, union-related expenses are of smaller concern than when there is a budgetary shortage. In recent years, republicans have targeted reductions in the federal workforce in the hopes of reducing the deficit. As noted in an earlier section, union officials on official time are paid for accomplishing other-than government work (as they perform representational work and other union activities). Some politicians, mostly republican, believe that if they can tailor back union privileges and other union benefits, such as office space, official time, and other expenditures, that they can reduce spending. Indeed, that was one of the focus areas of President Trump’s E.O. 13837. However, those aspects of the executive order remain in limbo as they have been declared “unconstitutional” by one court.

Public sector unions are unlike private sector unions in that the public sector unions can directly negotiate with the government (their employers); whereas private sector unions only negotiate with their employers. Negotiating with the government can lead to gains for the government employee that are largely unseen by the American public. Americans generally do not look too closely at the government’s budget, but rely on their representatives to keep it in check. The public finances some of the governmental (federal, state, and local) union operations and are directly impacted by the negotiations that take place. This could include changes to pension contribution, salary increases due to permissive topic bargaining, as well as office space and office equipment. Though the public may not know about what takes place in negotiations or even the topic of negotiation, their taxes are being spent.

Recently in Wisconsin, Governor Walker proposed – and received - serious reductions of union rights in order to bring finances under control. This move had an explosive impact on L-M issues throughout the United States. Similarly, in Ohio, Governor Kasich proposed legislation to reduce union benefits as part of his legislation. This, along with the recent Wisconsin action, drew heavy criticism in a predominantly unionized state. In 2011, Governor Kasich signed the bill into law. This same trend to attempt to curtail costs by reducing union benefits occurred in several other states, and is still a topic of discussion to this day. Dau-Schmidt, Glenn and Lin argue that this is the “golden opportunity” to rectify the spending that has gotten out of control.

Not everyone, though, agrees that these changes actually impact the budget in the way that it is suggested. Dau-Schmidt, Glenn, and Lin argue that not only are public service employees typically paid less than their private sector counterparts, cutting the pay and benefits of public employees would have the effect of hurting the economy since there would likely be less money circulating.

After Clinton’s and Obama’s executive orders, which expanded the scope of bargaining, many in management felt that the unions had been given too much power, and as a result fought for concessions that they had not previously been able to get. Some that are aligned with the union’s perspective report that any attempt to reorganize in the attempt to increase quality will fail unless the employees have an equal input into the decision-making process. They further argue that the traditional L-M relationships that exist in which there is an adversarial relationship will likely not change because managers are reluctant to give up control.

In the next blog, we’ll cover another source of conflict that is exacerbated by the issuance of contradictory executive orders every new administration, as well as offer some recommendations for ways forward.

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