Ready for A Truce
Union and labor relations officials are united in their desire for a new presidential administration to set a more harmonious tone.
One of the most persistent story lines of the past eight years has been the conflict between the Bush administration and the unions that represent federal employees. The administration has pushed for broader management rights, and the unions have fought back in court, Congress and the media. But union officials aren't the only ones who feel locked out. Agency labor relations specialists say the Bush administration has eschewed opportunities for partnership, spurned labor law and scaled back training.
Professionals representing both management and labor unions have attempted to pick through this tangle of bad feelings to foster positive relationships and spread the message that cooperation can yield positive results without infringing on managers' or workers' rights. They are hoping a new president with a different set of labor relations priorities will help their cause.
Some hope President Bush's successor will support legislation to restore Clinton-era labor-management partnerships. Though these partnerships are not prohibited, they have all but disappeared since 2001, when Bush issued an executive order dissolving President Clinton's national labor-management partnership council and lifting a requirement that agencies create their own councils.
Others want labor relations to become a priority field within human resources and to see more attention devoted to training and recruiting a new generation of labor relations specialists. All are looking for a change in tone.
"I don't think we'll ever go back to partnership, per se, where it's like 'Let's all get together in a room and be friends,' " says Sue Whitney, labor relations officer at the National Science Foundation and first vice president of the Society of Federal Labor and Employee Relations Professionals. "But I do think the hostility against even sharing the information or ideas with the union before they become decisions of management is what will change. I just think it's an attitude change that will come, which will be open and more accepting of letting the union play their role."
It's not that unions and management are seeking to return to a lost Golden Age of labor peace. The federal government has long been rife with labor conflicts, says Robert Tobias, director of public sector executive education programs at the American University School of Public Affairs and former president of the National Treasury Employees Union. But the partnership era in the 1990s represented to many a respite from that pattern of strife and an opportunity to collaborate on issues affecting morale and productivity.
Howard Friedman, an attorney at the Patent and Trademark Office and second vice president of the Society of Federal Labor and Employee Relations Professionals, says the partnership councils fostered trust and provided an opportunity for joint training that taught managers and labor officials bargaining techniques. At the height of the initiative, PTO had 53 partnership councils, covering everything from legal education to transit subsidies. Now only one survives-on telework.
"It's the most successful telework program in government, so what does it say that it's the one remaining partnership at PTO? It says to me that partnership works," Friedman notes, suggesting that the next administration should re-instate partnership requirements. More than 3,000 agency employees participate in the telework program and they are held to rigorous performance standards that agency officials say have improved productivity dramatically.
Christina S. Merchant, professor of practice in public administration at Syracuse University's Maxwell School and former director of labor-management cooperation at the Federal Labor Relations Authority, says the Bush administration forfeited a valuable opportunity to foster performance management when it abolished the mandate for partnership.
The executive order required agencies to measure savings achieved through labor-management partnerships, Merchant says. And studies demonstrated that the government did save money by resolving conflicts through the councils rather than litigation. An oft-cited 1998 review by consulting firm Booz Allen Hamilton found that the then-Customs Service saved $1.20 in decreased dispute resolution and increased productivity for every $1 it invested in partnership be-tween 1994 and 1998.
Ana Mazzi, deputy associate director of the Center for Workforce Relations and Accountability Policy at the Office of Personnel Management, notes that Bush's decision to lift the executive order was meant to preserve management's right to decide which issues are negotiable. But NSF's Whitney says those concerns might have been overblown, because federal law gives managers more rights than their private sector counterparts.
In the absence of a mandate, it was difficult to sustain the councils and impossible to maintain the atmosphere they created, Tobias says. It's unclear today how many partnership initiatives continue across government.
"Some places where they had very strong labor-management partnerships called them something else and continued to conduct them under the table, without fanfare and without support," Tobias says. "When managers changed and new political appointees came in, it stopped."
The executive order wasn't the only Bush administration change to labor relations. Observers from both unions and agencies say that during the past eight years the federal entities that resolve labor conflicts have grown significantly biased toward management. Even under President Reagan, who dealt the labor movement a crippling blow in 1981 when he fired striking air traffic controllers and replaced them with nonunion workers, "it wasn't as hostile as under Bush," Whitney says. The Reagan administration clearly was pro-management, she says, but "that was a period, at least in my perception, that was based on the law on both sides."
In 2002, Bush removed all seven members of the Federal Service Impasses Panel, which settles contract disputes when negotiations between unions and agencies break down. He replaced the Clinton-era appointees, many of whom had experience in neutral dispute mediation and labor law, with former business executives and panelists who served at a number of government agencies, though none that dealt with labor issues. It is not unusual for a president to replace his predecessor's appointees, but observers say it is out of the ordinary to choose so many panelists without substantive mediation experience. The number of professional staffers supporting the panel has declined during the Bush administration, from six in 2001 to two in 2007, according to documents obtained in November 2007 by the National Treasury Employees Union through a Freedom of Information Act request. The panel's travel budget also fell during that period, from $62,578 in 2001 to $25,341 in 2007.
Panel members and labor relations advocates differ on the effect of the new makeup and the cuts in staffing and travel. Becky Norton Dunlop, FSIP chairwoman and vice president of external relations for the Heritage Foundation, said at the time the documents were released that the agency was able to cut staff and travel because efficiency had improved and its caseload was shrinking. Dunlop said the dwindling caseload suggested that labor and management were resolving issues more frequently before reaching impasse. But union leaders say they merely have changed their tactics to avoid the impasses panel because they believe the members are likely to find in favor of management. The record supports that perception. A 2007 Government Executive analysis of 75 panel decisions from the Clinton administration and the same number from the Bush administration found that the Clinton panel brokered substantial compromises in 27 percent of cases and the Bush panel in 8 percent. The Clinton panel decided 44 percent of cases in favor of management, while the Bush panel sided with management in 68 percent.
Unions are turning to more adversarial tactics to protect their rights and their members. "I file more national grievances as a way of doing business because we don't solve problems anymore," says Colleen Kelley, president of NTEU.
In an extreme case, the National Air Traffic Controllers Association has filed more than 250,000 grievances at the FLRA, which governs the processes by which employees form unions and determines whether agencies have used unfair labor practices, among other duties. The grievances are in protest of pay and work rules the Federal Aviation Administration imposed on air traffic controllers in the wake of failed contract negotiations in 2006.
OPM's Mazzi says the administration still is committed to building positive relationships, and notes that agencies are taking steps to improve employee satisfaction and foster good working relationships with labor organizations.
But American Federation of Government Employees general counsel Mark Roth says the appointments at the impasses panel, along with actions to limit the scope of collective bargaining rights at agencies such as the Transportation Security Administration and the implementation of Defense Department personnel reforms without adequate consultation, tell a very different story.
"It's not rocket science," he says. "When you put people in the highest positions regulating federal labor relations that hate unions and hate government, and are incompetent, then you end up exactly with what you have ended up with, and that is a system that is totally broken down and serving not only the labor relations community poorly, but more importantly the public."
Trouble With Training
The change in tone has placed labor relations specialists in an uncomfortable position, whether they are dealing with the concerns of managers or rank-and-file employees.
"Even me as a management advocate, I can't advocate as much for the labor law, because the law itself is being discredited," says Whitney, though she notes the situation at NSF is better than at other agencies. "It used to be that you could go to a manager and say, 'Well, the labor statute requires this' . . . whereas what I've felt under this administration, because the top managers don't really like the labor statute, it doesn't really do me any good to go and say [that]."
Roth says the labor relations specialists he works with are under stress, too. "I don't want to understate how many true labor relations professionals, who work with us to accomplish the goals of their agency, are still out there plugging away in a very hostile environment for them," he says. "They come back and say we can fight this for three years with the unions and never get it, or we can work with them and get 85 percent. They'll get told, 'Don't work with the unions.' "
It's not just the environment that is difficult; labor relations have taken lower priority in the orbit of human resources. In 2002, OPM stopped holding its annual Symposium on Employee and Labor Relations, which, until then, was the largest labor relations training conference in government.
Mazzi says the conference required a big staff and likely was halted because of workload and budget issues. Instead, OPM is organizing forums on employee and labor relations, with six held in 2008. But agencies determine their own labor relations training needs, and while OPM conducts networking meetings for labor relations specialists, Mazzi says the agency does not collect or distribute suggested best practices in labor relations.
OPM's step back from labor relations training has left a void that has not been filled by courses developed by contractors, and agencies are not requiring as much training as they have in the past, Whitney says. FLRA also has stopped providing some free training and making resources available on its Web site. But, she notes, the Clinton years were not a perfect time for labor relations education either because the focus of training often shifted away from labor statutes.
Whitney, Friedman and their colleagues at the Society of Federal Labor and Employee Relations Professionals are trying to fill the gap. The organization runs a large conference and nationwide training sessions, and is in the early stages of developing a labor relations credential based on a rigorous series of classes. Sen. Daniel Akaka, D-Hawaii, who chairs the Senate Homeland Secu-rity and Governmental Affairs Federal Workforce Subcommittee, has taken up the cause, too, and is calling for mandatory labor rights education in the 2007 Federal Supervisor Training Act.
Friedman says the benefits of training go far beyond the information included in any course. "They get, perhaps for the first time or one of the few times, a balanced perspective from both sides on what the law is in labor relations and employee relations," he says. "I think sometimes they see that the presenters really like each other. This one's in management, this one's a neutral, this one's in labor and they like each other. 'How come that can't occur when we go back to our agencies?' "
Beyond the atmosphere in the labor relations community, the biggest casualty of the Bush administration's labor policies could be human resources innovation.
Akaka says he is concerned that the administration's strategy of pairing human resources reforms with measures that weaken the power of unions in programs such as the Defense Department's National Security Personnel System could stymie future innovations and arguably already has delayed important changes.
Roth says the fight against NSPS un-intentionally did "what George Meaney and Samuel Gompers could not do: bring disparate unions together." The coalition that formed ended up concentrating so hard on fighting changes that curbed organized labor's power that it has not lined up behind any alternative pay reforms, nor has it had much of a forum to do so.
"I believe, for example, if the administration had really been serious about involving unions in creating a pay-for-performance system, there would be one in place today," Tobias says. "But because they wanted to do it unilaterally and to diminish the scope of collective bargaining, unions fought back, and as a result of winning, created a very, very hostile environment."
All this has been possible, Tobias says, because political appointees are not responsible for the ultimate success of the programs they initiate. A strong performance management system could be a step in the right direction, he says.
Other advocates are counting on the passage of a bill by Rep. Danny K. Davis, D-Ill., that would restore the Clinton administration's requirement that agencies and unions participate in partnership councils. Roth says AFGE is drawing up a list of recommendations for appointees in key positions governing labor relations in a possible Obama administration. And Whitney hopes the next president will follow up on a Clinton-era effort that established a panel to write a white paper on reforming federal labor law, but its recommendations never came to fruition.
"They could call together people who were really doing it," she says. "There's been nothing like that in this administration. No one's ever asked the practitioners' opinion on how the field works. You could even do it jointly. The number of us who really know this field and think about it is dwindling."