REFORMING THE LABOR-MANAGEMENT STATUTE, NOT “FUTURATING” IT (Changes 1 – 3)
Someday in the future fairness, reason, civil rights, and professional neutrality will once again be the values driving White House (WH) decisions as opposed to vengeance, greed, racism, and bullying. And when that day comes, federal sector unions had better be prepared to not only push for labor law changes, but push in the right direction. Sadly, if history is any guide, even a Trumpless WH will try to co-opt labor by dangling some shiny new labor-management scheme that it promises will deliver employees and their unions to the bountiful gardens of LMR nirvana, e.g., partnership, forums, pre-decisional involvement, etc. Some 22-year old campaign worker recently elevated to shaping White House labor policy—but who never belonged to a union or represented employees– will probably coin an expression like “Futurating Our Workplace” as part of its marketing plan. We have seen unions fall for this mindless WH drivel repeatedly in the last 30 years, and we are watching labor pay a horrible price for it now. If unions are to have any chance of resisting a useless WH offering, they need to begin working now on a plan that has them all committed to demanding nothing less than bolstering traditional collective bargaining. They cannot afford to settle again for a hollow LR tweak, getting invited to lame White House parties, and having the personal cell phone numbers of people who work there. While those things might be important to a union’s legislative staff, they are just cheap, shameful bribes that keep the union’s collective bargaining program weak and vulnerable. So, we thought we would get the discussion going now by listing the changes labor must insist be adopted one way or the other. Today’s post addresses three of about a dozen changes needed that we will focus on in the coming weeks.
#1 STAFF THE FSIP WITH CERTIFIED LABOR-MANAGEMENT (L-M) NEUTRALS
The current Panel members are nothing more than anti-union political operatives solely focused on weakening employee and union involvement not just in the workplace but also in federal elections. But the only reason they can wreck havoc is because in the past union leaders ignored pleas from actual contract negotiators that they immunize the Panel from being politicized. Instead, union policy deciders settled for partnership, forums, personal cell phone numbers of WH staff, and WH party invites because the WH said it could not do more. The Panel structure needs huge changes and at the top of the list is a limit on the President’s power to appoint political thugs to the Panel.
Although the wording of 7119(c)(2) could be modified to include a tight substantive criteria to ensure professionalism, personally, we prefer the statute be changed to require that the Prez appoint from the National Academy of Arbitrators’ (NAA) roster. That removes the need to litigate over the application of the criteria. The NAA roster contains proven L-M neutrals certified by a long process among other neutrals. Filling the Panel from the list of FMCS or AAA neutrals does not guarantee that given they can be politically added to their rosters over a fast food lunch stop.
If putting a certified LR neutral in every seat is too much, union should get a guarantee that the majority of seats are given to neutrals with the President being allowed to seat his/her operatives in the remaining chairs. Or require that any appointee other than from the NAA would require 2/3 Senate approval.
Senate confirmation of Panel members is useless. If the Senate is led by politicians eager to crush employee involvement in elections, as it is now, they will rubber stamp anti-union operatives and veto true neutrals.
Frankly, it would be better to abolish the Panel and replace it with mandatory private neutral interest arbitration of negotiation disputes than pursue Senate confirmation. That would merely require taking the current 7119(b)(2) potential for binding private arbitration one step forward to mandatory arbitration.
#2 REDUCE FLRA POWER TO VOID ARBITRATION DECISIONS & REMEDIES.
The current Trump FLRA appointees are cut from the same anti-union political operative cloth as the Panel members. But that is OK for the future if their power to overturn the processes and decisions of professional neutrals is limited.
Today, the two Trumpettes virtually guarantee that whenever a union wins back pay from an arbitrator they will void the decision for some reason. And they get away with it because there is no judicial review or any other check to ensure that they limit themselves to the very narrow statutory grounds for overturning an arbitrator’s decision.
One fix would be to require that when the Authority reviews an arbitration decision it can reverse only with a unanimous decisions of the three FLRA members or at least one from each party. This would guarantee arbitrators the deference the courts say they are entitled to receive.
If that is too much for the WH to swallow, the statute could be changed to permit FLRA to reverse the future applicability of an arbitrator’s decision on a majority vote. However, the awarded remedy would nonetheless be implemented absent a unanimous FLRA vote.
For example, imagine a case where an arbitrator awarded back pay to a grievant based on violation of some negotiated provision. A FLRA majority could overrule the arbitrator’s interpretation on the grounds it excessively interfered with management rights, but absent a unanimous decision the employee would still receive the back pay owed him up to the point where FLRA ruled the interpretation illegal. That is how it works today when an agency declares a contract provision unenforceable. Past compensation and benefits distributed under an unenforceable contract clause cannot be clawed back.
An alternative would be to continue with a majority vote to overturn an awarded remedy, but require that it consist of one vote from each political party’s member. That is similar what is done at the Federal Elections Commission where nothing gets changed unless someone from each party supports the change.
Finally, creating an option to appeal FLRA arbitration exceptions to the courts, even if only those involving statutory questions, is not attractive, especially now that Trump has polluted the courts with many people of low character rand intelligence.
#3 OFFICIAL TIME AND TRAVEL AND PER DIEM
Trump used an Executive Order to deny unions reasonable official time for grievances, formal discussions, bargaining preparation, arbitration hearings, etc. as well as travel and per diem reimbursement for negotiations. If the unions can ensure that the FSIP is staffed with certified neutrals this problem should be solved under Trump orders or any other delusional anti-union autocrat.
However, given that the courts could decide that the President has the power to issue an executive order that essentially place limits on the time and travel reimbursement that can be awarded, unions should not stop with reforming the Panel. The fix for that potential abuse would be to rewrite 7131(a) to guarantee time for employees and union officials not just to bargain, but also attend grievances, arbitrations, formal discussions, joint labor-management meetings, and any statutory appeal proceedings on behalf of unit employees, e.g., an FLRA ULP allegation, an EEO complaint, a MSPB or Special Counsel case. Reasonable prep time for each would be negotiable under a small modification to 7131(d). For example, the section might conclude as follows: “…shall be granted official time in addition to that in section (a) above of no less than one hour per unit employee per year or in any greater amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.” Forcing the two parties to settle the prep time questions by themselves by denying FSIP jurisdiction over the issue might even be better for LR.
The revised statute should also guarantee the union team members at least 50% reimbursement of union travel and per diem to attend agency-initiated negotiations, e.g., agency proposed mid-term changes, agency proposed term contract modifications, etc. Reimbursement beyond that would be negotiable and dependent on the union’s demonstration of an inability to pay. That is not a perfect solution, but it is fair. It is unrealistic to expect the WH to sign blank checks
Watch for other recommended changes in the weeks ahead, especially the 3rd posting in this series which will describe the most vital change needed.