The traditional federal labor relations system is being crushed under the weight of personnel reform.
In June 2002, the White House unveiled proposed legislation to create the Homeland Security Department. The proposal asked for presidential authority to waive collective bargaining when necessary for national security and also called for the creation of a personnel system that would restrict collective bargaining. Federal labor unions protested. Democrats on Capitol Hill balked. But President Bush threatened to veto the legislation if his limits on the unions were removed.
"To meet the threats, I must be able-and future presidents must be able-to move people and resources where they're needed, and to do it quickly, without being forced to comply with a thick book of rules," he said.
Fearful of standing in the way of homeland security legislation, Democrats backed down. They insisted that union voices be heard in the design of a new personnel system, but they let the department have the final say. For the unions, it was a fateful moment. Soon, the Defense Department asked Congress for, and received, similar authority. And now both departments are on the verge of rolling out their systems.
Under the new systems, nearly half of all civil servants will lose the ability to rely on unions to look after their interests in the assigning of work, the deploying of personnel and the use of technology. Most issues once governed by bargaining agreements now will fall under the broad rubric of management rights. That includes everything from overtime, shift rotations and deployment away from regular work sites, to health and safety concerns about new technologies. Federal unions have never had the right to bargain over pay or benefits, as their private sector counterparts do, or to strike.
Pentagon officials stress that, unlike DHS, they have not yet finalized their rules and may change them. Still, both departments are informing union leaders that deals they arranged on "permissive" issues in the past-areas where management had no obligation to bargain but did so in the interest of good will-now are void. And the departments will no longer bargain over the impact and implementation of changes that are within management's rights.
The changes at Defense and Homeland Security turn back the clock on labor-management relations, circumscribing the rights first offered in an executive order by President Kennedy in 1962, expanded by Richard Nixon and finally codified in the 1978 Civil Service Reform Act.
"The area [where the unions have] veto power has been significantly decreased," says Robert M. Tobias, director of the Institute for the Study of Public Policy Implementation at American University and former president of the National Treasury Employees Union. Tobias hopes Pentagon and DHS managers will involve unions in making decisions, even where they no longer are required to do so. But he admits: "My fear is they won't."
Of course, whether that would be a good or bad thing depends on one's point of view. Many Bush administration officials, and some federal managers, dislike unions because of their complaints about working conditions, funding and pay rates. At times, government managers also have accused employees and union members of threatening national security by exposing vulnerabilities in U.S. defenses. Union advocates say their efforts to improve working conditions attract talented people to government. They also say the freedom to speak out, which union representation provides, allows for better oversight by Congress and the public.
Employees at DHS are represented by three unions: NTEU, the American Federation of Government Employees and the National Association of Agriculture Employees. Defense workers are represented by more than 35 unions, but AFGE is the biggest.
Led by AFGE, unions filed lawsuits earlier this year against both the Homeland Security and Defense departments in an effort to stop implementation of their new systems. The unions accuse Homeland Security of ignoring congressional intent in scaling back collective bargaining, and the Pentagon of violating Congress' terms by refusing to allow the unions to negotiate over the content of its preliminary labor relations rules, released in February. The unions say they might file another suit against Defense on the substance of its rules when they are finalized.
Defense and Homeland Security officials deny they violated Congress' intentions and say they plan to vigorously defend themselves in federal court. In their view, the limits on bargaining and increased management rights are key elements of personnel reform. Without them, they say, neither department would have the ability to move quickly when national security is threatened. And even in less severe cases, they say that managers' time is better spent protecting the country than hashing out agreements with unions.
For political reasons, DHS and the Pentagon have not openly attacked the unions, which have powerful allies on Capitol Hill. As a result, the departments' reasons for limiting bargaining never have been fully detailed. The closest either agency has come to articulating its reasoning came during congressional hearings leading up to the creation of Defense's National Security Personnel System. Pentagon officials argued that bargaining with about 1,500 union locals sometimes takes too long. As a result, the Pentagon asked for, and received, permission to conduct bargaining at the national level when it desired. The unions agree that national bargaining is sometimes more efficient.
It's clear, though, that Defense and Homeland Security leaders have more serious concerns about the unions and at times have found the actions of their union counterparts irresponsible. After the Sept. 11 attacks, for example, two Michigan Border Patrol agents were nearly suspended for criticizing security along the Canadian border on a television news show. The agency backed down under pressure from Congress.
Problems in federal labor-management relations extend beyond the two departments currently overhauling their personnel systems. Former officials at the Federal Labor Relations Authority say the agency, which adjudicates disputes over collective bargaining, has seen increasingly bitter recriminations in recent years. Even when the top government leaders have tried to broker peace, they've faced tough sledding.
Former FLRA member Donald Wasserman, who provided a sympathetic ear to union leaders during the Clinton administration, points to the demise of labor-management partnership councils, which President Clinton established in an effort to reduce the adversarial nature of bargaining and give unions a voice in the creation and implementation of management initiatives. Few on either side complained when the Bush administration scrapped the councils, saying they had not achieved their goal.
In the wake of the councils' demise, and especially since the Sept. 11 attacks, the Bush administration has succeeded in circumscribing union rights. The administration took them away from some employees of the Justice Department and blocked collective bargaining at the Transportation Security Administration.
When Defense signaled in 2004 that it would seek far-reaching limits on collective bargaining, even Kay Coles James, the Bush-appointed director of the Office of Personnel Management at the time, had reservations. She wrote to Defense Secretary Donald Rumsfeld, warning: "We strongly support the objective of assuring DoD's discretion to act without being burdened by collective bargaining obligations. . . . However, we believe the proposal may be contrary to law, insofar as it attempts to replace collective bargaining with 'consultation' and eliminate collective bargaining agreements altogether."
The unions strongly defend the current bargaining system. They note that while the administration has cited national security as one of the primary reasons for limiting union rights at Homeland Security and Defense, President Bush proposed in January to extend those limits to the rest of government, including many agencies that have no role in defending the nation.
Likewise, the unions cite the example of the Michigan Border Patrol agents in saying they fear whistleblower protections will be scaled back under the new rules. "If you speak out, forget about ever receiving another raise," says AFGE President John Gage.
T.J. Bonner, a Border Patrol agent for 27 years and the president of the National Border Patrol Council, recalls instances where bargaining has led to improved work conditions and good will. Under the existing rules, for example, the Border Patrol has a right to transfer employees from one region to another. But it must negotiate the "impact and implementation" of redeployments.
So, for example, if the agency needs to transfer agents from San Diego to Douglas, Ariz., it would bargain with the union over how those employees would be selected. Volunteers might go first, followed by the most junior employees. A pregnant employee, or an employee experiencing difficulties getting child care, might be exempt from a temporary assignment. Those were the types of deals that established trust between management and employees, says Bonner.
In other instances, bargaining saved agency managers from making bad decisions. Bonner cites an effort by managers at the now-defunct Immigration and Naturalization Service, which was subsumed by DHS in 2003, to bar Border Patrol agents from asking a suspected illegal immigrant to remove any outer garment, such as a hat or coat, without first receiving permission from a supervisor. The rule would have made it difficult for agents to detect concealed weapons, Bonner says.
Another management directive, in 1998, would have required all agents to wear body armor while on duty. That would have posed health risks for agents working in the hot temperatures of the desert Southwest, Bonner says. Eventually, the union reached an agreement that allowed agents in most cases to take off body armor at their discretion.
More recently, INS management required that its inspectors undergo training in the use of pepper spray, which involved exposing employees to the inflammatory agent. The union reached an agreement that allowed current employees to skip the training and set guidelines to minimize the discomfort of the new inspectors who had to undergo it. But now DHS has reversed itself and is again requiring all agents who carry the spray to undergo the training, according to Charles Showalter, president of the National Homeland Security Council, which represents inspectors.
Under the revised DHS and Defense personnel systems, cases like the ones listed by Bonner and Showalter will fall under newly defined management rights over work assignments, deployments and the use of technology. If disputes arise over the definitions of those terms, then union officials will have to turn to internal boards that will replace most of the functions of the Federal Labor Relations Authority.
Both Defense's National Security Labor Relations Board and DHS' Homeland Security Labor Relations Board will have at least three members, who will serve overlapping three-year terms. At Defense, the secretary will have sole discretion on all appointments to the board except one, which will come from a list provided by the director of OPM. The DHS secretary will consider union recommendations for two of the slots on its board, but need not choose candidates from the union list.
Unions can appeal decisions of the internal boards to the FLRA, but the authority will have to accept the boards' findings of fact and can overturn the boards only if the ruling was arbitrary, capricious, an abuse of discretion, caused by harmful error or unsupported by substantial evidence. After that appeal, the unions could bring a case to federal court.
Bargaining will be required in only a few areas. The Defense rules state that the agency will bargain over changes if they are foreseeable, substantial and significant in impact and duration. When the department decides to lay off, suspend, remove or reduce the pay of an employee, it will bargain over procedures and impact. Homeland Security has similar plans.
For federal employees, the difference between the current system and the Defense and DHS systems is "like night and day," says former FLRA General Counsel Joseph Swerdzewski. Under the new approach, Defense and DHS undoubtedly will be "much more efficient," he says. But, he cautions, "Management could be too successful. . . . Employees [don't like] it if they don't feel they have a voice in the workplace." Turnover could rise, and work quality decline, he warns.
Into the Unknown
Union leaders, never shy in talking to the media, are even more amenable than usual these days. They say the American people care about their plight, even though it's not clear that they do.
The unions trust that by launching an aggressive public relations campaign they can convince Congress to undo the new labor rules. Beyond the courts, congressional action is the unions' only hope for forestalling the Defense and DHS systems.
At an April hearing on the National Security Personnel System, union leaders were encouraged when a skeptical Sen. Susan Collins, R-Maine, chairwoman of the Senate Homeland Security and Governmental Affairs Committee, questioned Navy Secretary Gordon England and OPM Acting Director Dan G. Blair.
But the unions face an uphill battle. Republicans in charge of both the House and Senate aren't fond of them, because the unions almost always favor their Democratic opponents come election time. Nor is it likely that many Republicans will risk antagonizing the Bush administration.
The unions are using the Transportation Security Administration as their model in designing a game plan. When TSA was created after Sept. 11 to screen passengers traveling out of U.S. airports, Bush convinced Congress that collective bargaining should be barred at the agency in the interest of national security.
Since then, the American Federation of Government Employees has sought to overturn the rule and has launched an organizing campaign among agency employees. Of 45,000 workers, though, only 800 have signed up. Even so, says AFGE spokeswoman Adele Stan, the union has won victories by using the press to try to build public support.
For example, in March, The Atlanta Journal-Constitution ran an article quoting TSA workers who said they had been forced to sign documents indicating that they had received the required three hours per week of training, even though the agency provided much less. TSA changed course after the article ran, Stan says.
In December 2003, more than 200 screeners at Seattle-Tacoma International Airport sent a letter to TSA headquarters alleging that managers had allowed inconsistent security procedures, that one manager had accepted bribes in exchange for help with promotions, and that required overtime and poor management training was causing high turnover. The Seattle Times followed up with a three-part series detailing employee complaints about managers who rebuked them for wearing blue socks instead of black, slouching on the job or using green ink on forms instead of blue. In April, the top four security officials at the Seattle airport were removed.
Stan calls the employees' efforts a model for what federal unions must do in the future. "It's not what we want," she says, but "TSA is our lab for how to be a union without collective bargaining. We represent our members in the courts of law and public opinion."