A MODEST PROPOSAL FOR COLLECTIVE BARGAINING REFORM
Collective bargaining law, particularly 5 U.S.C. 7114(a)(1), should be changed to deny those unions that have chronically low membership the right to delay the implementation of agency proposed mid-term changes in the conditions of employment covered by 5 U.S.C. 7106(a) and (b)(1).
Although collective bargaining can generate many benefits for employees, agency managers and the public as recognized in 5 U.S.C. 7101, there is one part of it that all too often undermines efficient and effective government. It is not the need to negotiate a master collective bargaining agreement establishing policy on over 250 HR issues. The agency needs a policy on those issues anyway. Nor is it that employees can serve as union reps helping co-workers enforce their rights. If employees’ co-workers were not there to represent them, many employees would hire lawyers, greatly complicating matters for the agency. It is not even that agencies have to devote limited budgeted funds to pay the salary and benefit costs of employees working as union representatives during the workday. If the agency did not fund this, it would have to meet with union reps after hours or on weekends, substantially delaying many meetings and decisions.
The single most potentially damaging part of the collective bargaining obligation to governmental effectiveness comes from case law, not statutory language. The Federal Labor Relations Authority (FLRA) bars agencies from making changes in any and all conditions of employment until they complete bargaining with the union. For example, if an agency finds the money to replace every employee’s laptop with a far superior machine that boosts efficiency and job satisfaction, those laptops have to sit on the loading dock for weeks, months or even longer until the agency gets the union’s agreement on the conditions under which they can be distributed and used. If the agency purchases new software that will improve the routing of calls from the public seeking help, it cannot be downloaded until the union agrees on an implementation plan. If the agency is assigned a new mission by Congress, it normally cannot move staff into that work until the union agrees on how to lessen the impact of the change on employees.
When the statute was drafted, the thinking was that if a union was broadly supported by the employees, it likely would have competent and responsible officers who would have valuable input for management as changes were contemplated. That kind of union would help the agency reduce employee resistance to change, identify places in the new process where things are likely to bog down, and generate ideas for making things even better for all involved. That high quality input would almost always offset the costs of delaying the implementation of a change designed solely by managers.
However, where the union is supported by only a “super-minority” of employees for a prolonged period of time the potential harm inflicted on government operations and the public is rarely unjustifiable. (For purposes of this article a super-minority is less than 25% of all the bargaining unit employees, less than half of a mathematical majority.) When less than one in four employees thinks enough of the union to even pay dues, the odds are high that the union leaders are not widely admired by their coworkers, they are not doing things widely valued by employees, and they are kept in office by a tiny fraction of the few employees who pay dues, namely, those interested enough to vote in internal elections. Stated differently, if bargaining unit employees show over a substantial period of time, e.g. five years, that they do not value the union and/or its leadership, then why should federal agency executives have their hands tied by these union leaders?
In fact, the logic of giving all unions the same collective bargaining rights irrespective of the union’s membership support is very questionable. If 75% of the employees have joined one union, but only 22% joined the other union representing agency employees why should both unions enjoy the same rights? By comparison, if two students are accepted into an ivy League school and after 4 years one has earned the 120 credits needed to graduate while the other has only earned 70, we do not give them both a diploma for getting in and sticking around for four years. The same applies in sports. You do not get to be on the starting team and get all the media accolades simply because you make the team.
So, it seems time to consider letting agency managers move forward with a proposed change after a reasonable period of bargaining, e.g., 60 calendar days from the date of the notice of change, and continue to bargain over impact post-implementation where the union has failed over a substantial period of time to gather more than a super-minority of membership support.
Frankly, this could turn out to be good for unions as well. If a union wins an election and only gets 15% of the employees to join, this would give it a reason to keep up the campaign or union-building efforts until it acquired the full range of collective bargaining rights. Getting the ability to put proposed management changes on hold until bargaining is complete should be a lot more attractive to employees than a ticket to a free lunch, union t-shirt, or even small cash incentive. At worst, it is another thing the union can deliver if people join.
Given the number of chronically low membership units around government it is clear that union leaders can use help overcoming this sad, free-loading mentality. Even the longtime leader of union membership growth, AFGE, has some locals that have not responded to its otherwise very successful national leadership on membership building.
This is a joint labor-management problem that after more than 55 years of federal sector labor-management relations needs a radical solution. The incremental and well-known ones have not worked. Too many proposed mid-term changes today involve technology that not only cost huge sums of money, but that also have the potential to greatly boost effectiveness. This is not like the old days where mid-term bargaining was about the relocation of a bulletin board, a form being changed, seating assignments altered, or work territories shifted. The statute needs to be rewritten in this area and ideally that will be done in a way that helps both parties