Carol Waller Pope ushers in a new era in federal labor relations.
Congress and the media. After a poisonous eight years, the beginning of the Obama administration represented an opportunity for a thaw.
Ten months later, the administration has made significant strides on some labor relations issues. But it has not progressed as far as expected on others. The Obama team has made efforts to rebuild the Federal Labor Relations Authority, but the president has not yet issued an expected executive order restoring labor-management collaboration throughout the executive branch. Some of Obama's first executive orders addressed how contractors treat their employees and their right to form unions, but the administration has yet to extend collective bargaining rights to workers at the Transportation Security Administration. And unions were taken aback when a panel appointed by the administration concluded that NSPS should be reformed rather than scrapped.
Battling a Backlog
Nowhere has the change been more dramatic than at FLRA, which oversees labor-management relations in the federal sector. Julia Clark, the small agency's new general counsel, noted during her confirmation hearing this summer that staffing at FLRA had declined by half since 2001 and her own post had been vacant since February 2008. That has contributed to substantial growth in the agency's backlog of cases. Carol Waller Pope, appointed by President Obama to head FLRA, was the only member of the authority between July and October 2008. Without a quorum, she couldn't operate, worsening the backlog. And the Federal Service Impasses Panel, a unit of FLRA, experienced similar declines in staffing and funding during the Bush administration. The former head of the panel said the declines were the result of increasing efficiencies. Unions accused the administration of neglecting the panel, and declared it was so skewed in favor of management that they would avoid it altogether.
The Obama administration has moved swiftly to address labor's concerns. Unions praised Obama's selection of Pope, who began her career as a federal labor law attorney 30 years ago and joined FLRA as a staff member in 1980. President Clinton appointed her to be a member of FLRA in 2000, and she was appointed to a second term by President Bush in 2008. In August, the Senate confirmed Ernest DuBester to be the third member of the authority (Thomas Beck was confirmed last fall to join Pope). And in September, Obama appointed a new slate of appointees to FSIP, six months after firing their predecessors, giving FLRA a full roster of top officials for the first time in years.
"We're just in the process of letting people know we're back in business, we're fully staffed, we're going to issue timely decisions and manage our resources to provide training," says Pope.
The results are apparent. In fiscal 2009, FLRA issued 215 decisions-more than in any year since 2003, and twice as many as in fiscal 2007 and 2008 combined. The agency participated in a collaborative training project with the Office of Personnel Management during the summer. And on Oct. 5, FLRA launched a redesigned version of its Web site, built on an open-source framework. The site's functions had not been substantially updated since 1997.
But for Pope, this is only a start. She says FLRA's backlog of cases affected not just the external perception of the agency but the morale of staffers who worked on cases only to see them linger for months. Pope has met with the FLRA union as a way to start assessing employees' needs, and with staffers at the Office of Management and Budget, which also sent analysts to an FLRA field office to learn more about the agency's workload. She says she has anecdotal evidence that the changes at the agency are producing improvements in morale: Some former staff members have returned, while others have postponed their retirements.
But Pope also wants to see the Federal Labor Relations Authority take its place as a training organization, providing high-quality labor relations education to federal employees. Agencies, she says, have relied on generalist managers, who have broad training in human and employee relations, rather than specialists who focus solely on labor issues. Sen. Daniel Akaka, D-Hawaii, has introduced legislation that would provide funding for training programs for federal supervisors. That, he says, would include education on issues such as prohibited personnel practices, collective bargaining and other aspects of labor-management relations.
Awaiting an Order
But agencies still lack a larger framework to guide supervisors in applying their new training, if they eventually get it. One item that topped unions' wish lists for the Obama administration was an executive order that would restore a federal labor-management partnership council and mandate agencies to form their own collaborative groups. President Clinton created such an organization (known as the National Partnership Council) and ordered agencies to set up their own councils via an executive order in 1993. But President Bush rolled back those moves (though he did not explicitly ban partnerships) in 2001.
A draft of a potential Obama executive order on partnerships circulated in August, but as of mid-October, it had not been issued. The administration would not comment on whether the draft reflected what it was considering, and OPM officials declined to speak about the draft or on the Obama administration's labor relations agenda more broadly for this article.
That draft differed from the Clinton-era order in several important respects, including ordering agencies to negotiate so-called permissive bargaining issues, which include the number and kind of employees assigned to do a job and the technology used to do it. Those issues normally are not subject to negotiation in the federal sector, and the Clinton rule did not include a binding order that agency heads bargain over them. Obama's draft order also did not use the word "partnership," a term that some labor leaders had suggested implied a false closeness between labor and management.
And perhaps most significantly, the draft abandoned the Clinton order's requirement that both labor and management representatives be trained in consensus-based bargaining techniques that avoid treating negotiations as competitions in which there are winners and losers. John Gage, president of the American Federation of Government Employees, sharply criticized such training in February, saying that during the Clinton administration, the requirement obscured the fact that labor and management have inherently different interests.
Gage says that the lack of an executive order is a "moderate disappointment," while National Treasury Employees Union President Colleen Kelley, who was more supportive of the Clinton order, says, "it's been slower than I had hoped." Neither blames disagreements over the specific provisions of the proposed order for the lengthy delay. Kelley says the holdup might be due in part to the fact that the Senate has yet to confirm Obama appointees whom the administration would like to consult on the order. Robert M. Tobias, director of public sector executive education at American University and a former president of NTEU, points the finger at the delay in the confirmation earlier this year of Jeffrey Zients, the Obama administration's chief performance officer, who is responsible for evaluating federal programs. Gage says the problem lies in figuring out how to enforce the requirement that agencies negotiate over permissive issues, which traditionally they have had the right to decline to do. Whatever the reason, an executive order on labor-management collaboration does not appear to be imminent.
The lack of such an order has not prevented individual agencies and their unions from seeking to revive collaborative efforts. The Environmental Protection Agency held the first meeting of its reconstituted partnership council in April. Other agencies have proceeded more deliberately. The Patent and Trademark Office continued a cooperative effort to implement a telework program throughout the Bush administration, but other joint efforts lapsed. Now Howard Friedman, chapter president of the NTEU local representing trademark attorneys at the agency and first vice president of the Society of Federal Employee and Labor Relations Professionals, says there has been a dramatic change in tone from PTO's leaders.
The day after David Kappos, PTO's director, was nominated, Friedman says Kappos called to introduce himself.
Since his confirmation, Kappos has attended a long meeting at NTEU's national headquarters and set up steering committees with union and management representatives to examine how PTO can improve weaknesses revealed by employee surveys. Friedman has supplied him with studies on how labor-management partnerships functioned at the agency during the Clinton administration and discussed whether the union could support the agency as it works with Congress and the administration on issues such as increasing staffing to address backlogs. Even on small issues such as computer and network problems, Kappos has instructed the agency's chief information officer to stay in touch with Friedman so he knows PTO is making an effort when things go wrong.
"I think it would be helpful to have an executive order," Friedman says. But, "We're going to do what we can to move forward, to try to get all parties involved-unions, agency heads and employees-to solve these most pressing problems."
Tobias says this approach and other similar efforts to put labor-management partnerships in the context of how agencies function effectively are appropriate. But he says agencies should measure the results of partnerships, something that wasn't done in a systematic, governmentwide fashion during the Clinton administration.
"I think the issuance of an executive order is important," Tobias says. "If it's part of a total effort to involve political appointees in public policy implementation, if it's part of an approach to create goals and increase productivity and have discussions with employees and their representatives about what's needed to make that happen, then we'll have something."
While unions and agencies alike wait to see whether an executive order will emerge from the White House, they're hardly twiddling their thumbs. Both NTEU and AFGE, which have begun organizing locals of TSA workers, have urged Homeland Security Secretary Janet Napolitano to grant the agency's employees collective bargaining rights. When Congress created TSA, the question of whether or not to let its employees bargain over a labor contract was left up to the agency's administrator. During the Bush administration, TSA decided against it. Napolitano said early in 2008 that she had asked the DHS general counsel to look into whether she had the authority to extend bargaining rights herself. But she has not made a decision, and it's possible the choice will be left either to Obama's selection to head TSA, Erroll Southers, or to Congress, which is considering legislation to grant TSA workers bargaining rights permanently.
Another union, the International Federation of Professional and Tech-nical Engineers, found itself testing one of President Obama's first executive orders, which forbade agencies from paying for or reimbursing contractors for any expenses they incurred through trying either to discourage or encourage employees from joining unions. IFPTE began a campaign earlier this year to form a small union at a federally chartered nonprofit organization, the Legal Services Corporation, which hired an outside lawyer to advise its management during the drive. IFPTE maintained hiring the lawyer was a violation of the executive order, but chose not to sue over the issue, leaving it unresolved. The employees voted almost unanimously to form a union.
Looming over all the administration's human capital efforts, whether related strictly to labor law and union rights or in the much broader scope of pay and personnel reform, is the future of the National Security Personnel System. Though President Bush abandoned his effort to use the pay-for- performance system as a vehicle to narrow the scope of collective bargaining rights in the Defense Department in 2008, to unions the system remains a lingering symbol of those intentions. They want it permanently dismantled. A panel appointed by the Obama administration and operating under the auspices of the Defense Business Board recommended in August dramatic modifications to the system, including a name change, and Deputy Defense Secretary William Lynn and OPM Director John Berry are reviewing those recommendations.
And in October, a House-Senate conference committee working on the fiscal 2010 Defense authorization bill approved a full repeal of the system, though members ordered the Defense secretary to begin working with OPM to develop a new performance management system. Any changes made could be rolled into a much larger reform of the federal personnel system as a whole, something Berry has said he would like to pursue.
With issues like these still unresolved and others destined to arise should the administration decide to make dramatic changes to how federal workers are hired, evaluated and paid, representatives from unions and agencies say it's still early to judge the president on labor relations. But they agree the signs are promising. The White House is picking its way through the labor policies of the two prior administrations and getting the people in place who will help make big decisions about the federal government's future. It could be November, but when it comes to the relationship between labor and management, spring is just beginning.