FEDERAL SERVICE LABOR-MANAGEMENT LEGISLATION HEARINGS BEFORE THE SUBCOMMITTEE ON MANPOWER AND CIVIL SERVICE OF THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE HOUSE OF REPRESENTATIVES NINETY THIRD CONGRESS SECOND SESSION ON H.R. 13, H.R

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000500220001-6
• Release Decision: RIFPUB
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• Document Page Count: 597
• Document Creation Date: December 9, 2016
• Document Release Date: August 23, 2001
• Sequence Number: 1
• Publication Date: July 25, 1974
• Content Type: REPORT

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FEDERAL SERVICE LABOR-MANAGEMENT LEGISLATION
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FEDERAL SERVICE LABOR-MANAGEMENT LEGISLATION
HEARINGS
BEFORE THE
SUBCOMMITTEE ON
MANPOWER AND CIVIL SERVICE
OF THE
COMMITTEE ON
POST OFFICE AND CIVIL SERVICE
HOUSE OF REPRESENTATIVES
NINETY-THIRD CONGRESS
SECOND SESSION
ON
H.R. 13, H.R. 9784, H.R. 10700
and Related Bills
BILLS TO PROVIDE FOR IMPROVED LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE, AND FOR OTHER
PURPOSES
MAY 21, 22, JUNE 5, 12, 13, JULY 16, 25, 1974
Serial No. 93-51
Printed for the use of the
Committee on Post Office and Civil Service
U.S. GOVERNMENT PRINTING OFFICE
34-619 WASHINGTON : 1974
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COMMITTEE ON POST OFFICE AND CIVIL SERVICE
THADDEUS J. DULSKI, New York, Chairman
DAVID N. HENDERSON, North Carolina, Vice Chairman
MORRIS K. 'UDALL, Arix(ma
DOMINICK V. DANIELS, New Jersey
ROBERT N. C. NIX, Penn(ylvania
JAMES M. HANLEY, New York
CHARLES H. WILSON, California
JEROME R. WALIHE, California
RICHARD C. WHITE. Texas
WILLIAM D. FORD, Michigan
FRANKJ. BRASCO, New York
WILLIAM (BILL) CLAY, Missouri
PATRICIA SCHROEDER, Colorado
JOE MOAKLEY, Massachusetts
WILLIAM LEHMAN, Florida
BOB TRAXLER, Michigan
II. It. GROSS, Iowa
EDWARD J. DERWINSKI, Illinois
ALBERT W. JOHNSON, Pennsylvania
LAWRENCE J. HOGAN, Maryland
JOHN II. ROUSSELOT, California
WALTnR E. POWELL, Ohio
RICHARD W. MALLARY, Vermont
ANDREW J. HINSHAW, California
L. A (SKIP) BAFALIS, Florida
JAMES M. COLLINS, Texas
GENE TAYLOR, Missouri
JOHN H. MARTINY, Chief Counsel
VICTOR C. SMIROLDO, Staff Director and Counsel
TI.E0DORE J. KAZY, Assistant Staff Director
ROBERT E. LOCK HART, Assistant Counsel
ROY C. MESKER, Staff Assistant
Eutaw's C. FORTUNE, Coordinator
SUBCOM WITTER ON MANPOWER AND CIVIL SERVICE
DAVIE N. HENDERSON, North Carolina, Chairman
WILLIAM D. FORD, Michigan EDWARD J. DERWINSKI, Illinois
WILLIAM (BILL) CLAY, Missouri RICHARD W. MALLARY, Vermont
WILLIAM LEHMAN, Florida GENE TAYLOR, Missouri
FRANK J. BRASCO, New York
Ex Officio Voting Members
THADDEUS J. DULSKI, New York IT.R GROSS, Iowa
ROY C. MEEKER, Staff Assistant, Room B-370(b), Rayburn Building?Ext. 52821
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CONTENTS
Hearings held on? Page
May 21, 1974 1
May 22, 1974 169
June 5, 1974 205
June 12, 1974 263
June 13, 1974 343
July 16, 1974 369
July 25, 1974 430
Testimony of?
Bradley, George E., executive director, Organization of Professional
Employees, U.S. Department of Agriculture 425
Brasco, Hon. Frank J., Representative in Congress from the State of
New York 4
Burnsky, Paul J., President, Metal Trades Department, AFL-CIO;
accompanied by Paul R. Hutchings, Research Director 240
Connery, Vincent L., national president, National Treasury Employees
Union 297
Elder, Harmon, Washington representative, U.S. Industrial Council,
accompanied by James S. Metcalfe, president, Yellow Cab Co.,
Nashville, Tenn 439
Flynn, Ralph, president, Coalition of American Public Employees, and
Vincent Connery, president, National Treasury Employees Union,
accompanied by Robert Tobias, general counsel, and Jerry Klepner,
director of communications 295
Ford, Hon. William D., Representative in Congress from the State
of Michigan 2
Hampton, Hon. Robert E., Chairman, Civil Service Commission, ac-
companied by Tony Ingrassia, Director, Office of Labor-Management
Relations, Civil Service Commission 8, 169
Hill, James D., executive director, National Federation of Profes-
sional Organizations, accompanied by Larry Fisher, secretary-
treasurer; Roy Olson, president; Hartley Bowen, Naval Civilian
Administrators Association; George Bradley, executive director,
Organization of Professional Employees of the Department of Agri-
culture; Paul Robbins, executive director, National Society of Pro-
fessional Engineers; William Hughes, general counsel, National
Association of Federal Veterinarians; Dr. Clarence Pals, executive^
vice president, National Association of Federal Veterinarians ;
Robert Calogero, president, Association of Senior Engineers; Dean
Fravel, National Association of Government Engineers; and John
King, executive director, Air Traffic Control Association 399
Hughes, William G., general counsel, National Association of Federal
Veterinarians 423
Kraham, William, National Association of Air Traffic Specialists, ac-
companied by John Enlow, union president, and Lawrence Cushing,
vice president 391
Larson, Reed, National Right to Work Committee, accompanied by
Raymond Lo,sornio 374
Losornio, Raymond, chairman of the board, Right to Work Committee- 376
Leyden, John F., president, Professional Air Traffic Controllers Orga-
nization, accompanied by William B. Peer, general counsel; Allan
Moskowitz, legislative research director; and John Maher, director
of labor-management relations 354
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TestimonyIv
of?Continued
.Lyons, Kenneth, president, National Association of Government tm-
ployees, accompanied by Allan Whitney, executive director, and Page
James L. O'Dea, legislative counsel_ 344
.McCart, John A., operations director, Government Employe's Council_ 245
McLoughlin, Arthur, executive secretary, Overseas Education Associa-
tion 471
Meget, Carl, director, Depart/holt of Legislation, American Federation
of 'Pen ethers, AFL?CIO 479
Meiklejohn, Kenneth A., legislative representative, AFL?CIO 206
Paterno, -Vincent .1., president, Association of Civilian Technicians,
accompanied by John Chapman 453
Robbins, Paul, executive director, National Society of Professional
Engineers 432
Walker, Frederick N., Plymouth Brethren No. 4, accompanied by
Robert A. Smith and Jack Walley_ 370
Webber, Clyde, president, American Federation of Government Em-
ployees, accompanied by Lou Pellerzi, chief counsel, and Dennis Gar-
rison, executive vice president, AFL?CIO 230
White, John, director, legislation and public relations, National Alli-
ance of Postal and Federal Employees, accompanied by Votie D.
Dion. national secretary, and Wesley Young, national vice presi-
dent 461
Wolkomir, Dr. Nathan, president:, National Federation of Federal Em-
ployees, accompanied by Irving Geller, general counsel 264
Statement submitted by?
Bowen, .1. Hartley, Jr., executive secretary, Naval Civilian Adminis-
trators Association 493
Clague, Ewan, president, The Federal Professional Association 484
Joint Council of Unions, Government Printing Office 483
Nagel, W. A., legislative chairman, Association of Senior Engineers 491
National Association of Agricultural Stabilization and Conservation
Service Employees 481
Ross. Richard J.. president, National Union of Compliance Officers,
Independent, representing the employees of Labor Management
Services Administration, U.S. Department of Labor 500
The American Nurses Association 486
Watkins, S. Rayburn, president, National Labor-Management Foun-
dation 481
Communications from--
fampton, Hon. Robert E., chairman, Civil Service Commission, in re-
sponse to questions submitted subsequent to the hearing 493
Losornio, Raymond C., chairman of the board, National Right to Work
Committee 387
Robbins, Paul H., executive director, National Society of Professional
Engineers 436
Webber, Clyde M., national president, American Federation of Govern-
ment Employees, in response to questions submitted subsequent to
the hearing 497
Whitney, Alan J., executive vice president, National Association of
Government Employees, responding to additional questions subse-
quent to the hearing 353
Additional material included?
CSC bulletin 711-30: November :1973 union recognition (statistics)
Chart on labor-relations program authorities 80
Federal Labor Relations Council report on case handling 81
Federal Service Impasses Panel report on case handling 84
Assistant Secretary of Labor for Labor-Management Relations (Al
sa
SLMR) Federal workload data
Labor-management relations climate survey paper 87
Civil Service Commission/Office of Management and Budget (CSC/
OMB) survey report on the collective-bargaining process 92
CSC/OMB guidelines 117
CSC labor agreements survey_ 122
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Additional material Included?Continued rage
CSC Study: Benefits comparison 123
Comparison of E.O. 11491 and legislative proposals 121
Comments and recommendations of the AFL-CIO on areas for review
of the Federal labor-management program pursuant to Executive
Order 11491 217"
Position paper on labor management relations submitted by Vincent
Connery, national president, National Treasury Employees Union 305,
Summary of findings regarding the public attitudes toward the right
to work laws, compiled by the Caravan Surveys of the Opinion Re-
search Corp 382
Portions of document prepared for the National Right To Work Com-
mittee by the Caravan Surveys, Opinion Research Corp., regarding
the public attitudes toward right to work laws 501
Administrative reports received on H.R. 10700, from?
U.S. Civil Service Commission 508
Office of Management and Budget 513
General Accounting Office 517
Department of Defense 524
Department of the Treasury 529
Department of Agriculture 532
National Labor Relations Board 533
Federal Power Commission 534
Federal Communications Commission 538
Administrative reports received on H.R. 13, from?
Office of Management and Budget 539
U.S. Civil Service Commission 548
General Accounting Office 557
Department of Defense L 563
Department of the Treasury 568
Department of Transportation 571
Department of Health, Education, and Welfare 576
Department of Agriculture 578
General Services Administration 581
Tennessee Valley Authority 584
Federal Mediation and Conciliation Service 587
District of Columbia Government 589
Administrative report received on H.R. 9784, from?
U.S. Civil Service Commission 592
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FEDERAL SERVICE LABOR-MANAGEMENT
LEGISLATION
T1TESDAY, XAY 21, 1974
U.S. HOUSE OF REPRESENTATIVES,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE,
SUBCOMMITTEE ON MANPOWER AND CIVIL SERVICE'
Washington,D.C.
The subcommittee met at 10 a.m. in room 210, Cannon House Office
Building, David N. Henderson (chairman of the subcommittee) pre-
siding.
Mr. HENDERSON. The subcommittee will come to order.
The Subcommittee on Manpower and Civil Service is opening
hearings today on legislation to cover labor-management relations
for the Federal service. It has been the long standing policy of the
Government, since the 1930's that employees in the private sector
have the right to be represented by labor organizations which bar-
gain with employers on wages, hours, and working conditions. The
Congress extended this same concept to employees in the Postal
Service when it passed the Postal Reorganization Act of 1970.
At the close of 1973 nearly 1.1 million civilian employees of the
executive agencies of the Federal Government were represented by
labor organizations. This has come about during the past 12
years largely as the result of relationships gained by both Federal
agency officials and labor organization representatives during this
period and the viability of those relationships, I now believe that it
is fitting that legislation be enacted. This legislation will place the
two parties on an equal footing when dealing with each other, both
at the negotiating table and when appearing before third parties
envisaged by the bills before us. I believe it is also of importance that
employees and their representatives have access to the judicial pro-
cess when they have exhausted whatever administrative machinery is
established. Access to the courts is rather tenuous under Executive
order. It is now timely, in my opinion, to consider legislation which
will permit Federal employees to join the great majority of Ameri-
can workers, both in industry and the Postal Service' in the enjoy-
ment of well-earned rights and benefits under a Federal Service Labor
Management Act. However, I believe that matters affecting pay
rates, retirement benefits, health insurance, and similar benefits
should remain in the domain of the Congress.
Among other things, necessity for these hearings is attested to by
the fact that more than 25 bills on Federal labor relations have been
introduced during the 93d Congress. Two of my colleagues on the
committee, Mr. Ford and Mr. Brasco, have also introduced labor
legislation, H.R. 9784 and H.R. 13, repectively.
(1)
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At the time Chairman Dulski and I introduced H.R. 10700 last
fall, I indicated that these hearings would be held so that labor
organizations, the executive branch, and interested persons would
have an opportunity to present their views and positions on the many
concepts embodied in these bills. I believe that labor-management
relations not only must consider the relationship between the patties
and employees but the broader public interest as well. I had this in
mind when I chose the title of "Federal Service Labor Management
Act of 1973.,, We hope that these hearings will provide a forum
for a thorough review by the executive branch of Government.
There are some principals which, as the result of societal progress
made in this country. should no longer be subject to question; these
include the right of employees to freely join or refrain from joining
labor organizations and the right of these organizations to partici-
pate on behalf of the employees they represent in the process of
establishing personnel policies, practices and matters affecting work-
ing conditions.
In the several bills we are considering. I am pleased to find that
there are significant concepts in common. Each bill provides for the
establishment of a full-time independent body to administer the act.
I believe this to be proper because of the size and importance of the
program as well as the need for a full-time and objective body which
will be appointed by the President with the advice and consent of
the Senate. Additionally, the bills all provide for grievance machinery
terminating in arbitration and for "make whole" remedies for em-
ployees. I also realize that there are provisions in the bills before the
subcommittee that treat a number of concepts differently and that
many of the proposals may not be fully acceptable to both labor
organizations and the administration. For these reasons I am hope-
ful and anticipate that the hearings Will focus on such issues as:
the kinds and types of employees and agencies that should be covered;
the place of supervisors in labor-management relations, and whether
labor-management relations legislation should speak to agency rela-
tionships with its own supervisors a;nd managers; whether the bill
should provide detailed specific on such matters as appropriate units,
unfair labor practices, steps in impasse settlement or, instead, general
guidelines permitting such matters to be handled by those responsible
under the bill for its overall administration such as the Federal Labor
Relations Authority proposed in both H.R. 13 and 10700; the sphere
or scope of bargaining; and the relationship between this proposed
legislation and laws now in force, as well as the relationship among
the executive branch, labor organizations, and the Congress on labor-
man agement matters.
At this time I would yield to the gentleman from Michigan, Mr.
Ford, for any comments that he would like to make on the subject of
labor-management -l'elations before us this morning and any specific
remarks he might like to direct to his bill, H.R. 9784 which was
introduced by him on August 1, 1978.
STATEMENT OF HON. WILLIAM D. FORD
Mr. FORD. Thank you. Mr. Chairman.
First, on behalf of all the Members of Congress who are
interested in this legislation, I would like to thank you for under-
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taking these hearings. I apologize, in advance, that I will be in and
out of these first hearings because there- are 120 local officials in
town from my district who are going to require my time and as-
sistance.
During my tenure here?and before coming here for that matter?
I have had more than passing interest in the unusual phenomena
that has developed within our States and within our Federal Gov-
ernment as to how a governmental agency deals, as management.
with its employees, as labor. I have halal an interest in some kind of
structure where the rules of the game are written, well-understood;
based on a regular legislative process, and administered in a way so
that everybody can understand where their rights lie and how they
are to be enforced.
I think that during the next 5 years, and hopefully it's 5 years?
some people are saying 10?that the next big historical develop-
ment in the condition of working people in this country is going to
be in public employment. In the last few years we have seen the
phenomena of the public employees' strike grow throughout the
United States to the point where in the past 3 years, just with
school teachers alone, there have been 6 million man-days of work
lost through strikes.
I might say almost all of them were technically illegal because they
occurred in States like my own where it is illegal for teachers to
strike; however, 20 percent of all the teacher strikes in the country
in the last 4 years have occurred in my State. Nobody has ever
gone to jail for it and they always worked. So it seems to me a
little bit silly that we're still trying to solve these problems with
the old method.
When I first came here, the public employees were operating
under Executive order which had mixed reviews depending on who
looked at that Executive order, and things have not improved greatly.
I have seen Federal administrators attempting to deal with the
Executive order. I am convinced, Mr. Chairman, that we have reached
a state where legislation is necessary so we can really define labor-
management relations for public employees.
I serve on three subcommittees that are now considering this
question one way or another; one subcommittee on this committee
and two subcommittees on the Education and Labor Committee.
Before Mr. Thompson's committee, we are considering the general
question of all public employees being covered under the National
Labor Relations Act, and we have the Clay bill before the second
committee. On this committee we are considering some changes in
the Labor-Management Relations Act for postal employees to pro-
vide for the right to strike, and my proposal before this committee
for all Federal employees includes the right to strike because I am
absolutely convinced that we are wasting our time by trying to
create a totally different model for labor-management relations than
that which is working successfully and has worked successfully
throughout our private enterprise system.
I might say, Mr. Chairman, in closing, I think the experience we
have had with the new Postal Corporation should be a warning to
us that we need a new system patterned on a workable and working
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system and not a new hybrid. We made, a bad mistake it seems to me
in not more closely paralleling the labor-management provisions of
the Postal Service to that which we understand and is in existence.
And people in labor-management relations in the private sector
say, in attempting to set up a hybrid system, what we have actually
done is create a situation where even the most minor differences
between labor and management are now becoming a subject of long-
drawn-out arguments. They are arguing about what is and what
is not negotiable. They are arguing about what is a proper subject
for them to bring to us for legislative attention and what is a
subject that becomes off limits because of some possibility that it
might be negotiated.
I certainly hope that in enacting legislation we will try as best we
can to follow the patterns that have been proven as workable in
the major industries in this country and not launch off again into
an experiment with a hybrid or new model which goads the people
who work under that model to a good deal of disagreement over
trivial matters sometimes in an attempt to develop a new base.
The National Labor Relations Act will be 40 years old next year
and for 40 years the courts and parties?labor and management?
have been interpreting the provision of that act. Its only had four
major amendments in the full 40 years; three of them are fairly
recent. Probably the most dramatic was the Taft-Hartley Act. But in
40 years it has served extremely well; and that's not to say that
everybody has been happy with it, but we have developed a 40-year
history of law that would be very useful to us to the extent that
it can be used in this legislation.
Thank you, Mr. Chairman.
Mr. HENmalsoN. Thank you, Mr. Ford.
Mr. Form. Mr. Chairman, one more thing, I think for the Vice
President's peace off mind, I should say this: Somehow the story
got out that H.R. 9784 was introduced by the other Congressman
Ford before he was appointed Vice President, and knowing the
differences that he and I have experienced over labor-management
relations, I can't imagine that that could be anything but embarrass-
ing for him. But I want the record to show that this is my bill
and not his.
Mr. HENDERSON. Mr. Brasco has had a longtime interest in this
subject. He introdu ;-7!ed the first bill that was assigned to our sub-
committee, H.R. 13. I am delighted to recognize him at this time.
Mr. I3RAsco. Thank you, Mr. Chairman.
I have had a strong interest for a number of years in the prob-
lem of effective labor-management relations in government. During
this time I followed very closely the experience through the Execu-
tive order. I have also read happily the Many letters I have received
from rank and file Federal employees on this subject. The experi-
ence gained by all parties has been valuable.
The issues are better defined and understood today. Some progress
and improvements have been achieved; Perhaps we will see some
further advances as a result of the recent hearings held, by the Federal
Labor Relations Council on possible, revisions in Executive order
practices.
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In any event, Mr. Chairman, I believe that two things are now
evident: that first, a truly fair, stable, and effective system of labor-
management relations in government must be based and founded
in law; second, that we now have sufficient practical experience to
write a sound, workable statute.
These are the reasons why I introduced H.R. 13 which was designed
to provide such a system this year.
One key provision of H.R. 13 is for the establishment of an inde-
pendent and full-time Federal Labor Relations Authority, with three
members to be appointed by the President and subject to Senate
confirmation.
H.R. 13 also provides for the principle of binding arbitration of
grievances and disputes. It provides, too, for the payment of fees
by members of a unit who benefit from representation by the union
but are not dues-paying union members. Together, these two provi-
sions do a little to redress the great imbalance which now exists at
the bargaining table because of the prohibition against strikes by
Federal employees.
H.R. 13 extends the scope of collective bargaining beyond the
arbitrarily narrow limits now possible under the Executive order?
it provides bargaining rights to all employees of all agencies of the
Federal Government except in certain cases where the denial of such
rights is clearly justified because of the conflicts-of-interest that
would otherwise result?and it makes possible the establishment of
bargaining units of appropriate size, in order both to recognize the
true communities of interest among Federal employees and to deliver
management from the present need to negotiate the same issue over
and over again with a multitude of small units.
I think II.R. 13 provides a sound and moderate approach to this
whole problem, one that is fair to management, fair to employees,
and?above all?fair to the citizens of the United States.
I congratulate Congressman Henderson and this committee for
holding these hearings. They are responding to a real need at a
time when interest and desire for action in this area are high. I hope
that the hearings will be most productive and that from them will
come a statute that will provide the base for the kind of equitable,
stable, and effective labor-management relations I think we all want
to see in the Federal Government.
Mr. Chairman, I see that there are many witnesses here, and
perhaps some on the firing line already, just anxious to testify on
behalf of this bill; is that correct
Mr. HAMPTON. Mr. Brasco, I think what you will hear me say is
that there are a lot of factors here. I think I'm going to raise more
questions for you than I'm goinc, to answer.
Mr. BRASCO. In any event, Mr. Chairman, I think that everyone
knows specifically where I stand with respect to this and I certainly
want to commend the chairman for calling the hearings today so
that we could get on about the work of considering all of the pieces
of legislation advanced before this committee and hopefully come
up with a system that's fair to the employee, fair to management,
and above all, fair to the American citizens. I thank you for the
time.
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Mr. HENDERSON. Thank you very much, Mr. Brasco.
Perhaps I should explain to the other members and the audience
too, that I will yield to the minority but I thought that perhaps they
would like to have the statement on the, part of the authors: of the
legislation. Ifs true we have witnesses we want to hear from, but Pm
sure that the, chairman and others would like to have a brief explana-
tion of the philosophy of the authors of the legislation and what we
am attempting to do in the various bills and I appreciate the remarks
of the gentlemen.
If I may at this time, I'd. like to make a brief statement with
regards to my own views on MIL 10700 because in drafting and
introducing this bill which was co-sponsored by Chairman Dulski
of the full committee, I gave full cognizance to the fact that the
competitive civil service system has been with us since 1883 and
provided an equitable method for entering the Federal service.
It's well to recognize that Federal employees operate in the public
interest providing ieryice, to all of the people. The services are
those which we believe are better provided by the Government rather
than by each of us individually. Therefore, in the provisions of
RR 10700 1 provided that Federal employees would continue to
be subject to the no-strike law; that Federal employees will be
free to determine whether they will or will not be required to join
a labor organizatior. It attempts to Provide for the balance of the
respective rights of the parties with effective third party proceed-
ing procedures before independent bodies or arbitrators to ensure
timely decisions with justice. and equity. ,
Additional provisions provide for no cost to employee organiza-
tions for the dues withholding of its members, negotiating an agree-
ment., required appearance before the authority on official time,
certification without elections in certain circumstances, and provides
an employee organization may choose to represent nonmembers in
:,Tieyances.
I suggested in H.R. 10700 the method for broadening the scope of
bargaining and have, provided certain Specific items which should
not be negotiable or, if you will, a public interest clause.
These concepts, taken together, are. in my view a central founda-
tion for legislation governing the Federal service labor-management
relations. It will be within the realm of all of the bills before us
that spokesmen for the administration will be heard; also, the views
of the various labor organizations or other organizations that are
interested in this subject will be presented to us in these hearings.
On that point, it is the intention of the Chair to provide as much
time as possible for the witnesses so that we may have a, full and
complete record. We are plowing new ground and certainly it's a
subject, of great deal of importance to the future of our Nation.
It may be that the committee will decide that witnesses who
testify in these early sessions of the hearings will be helpful to us
later as we hear from other organizations and we may call you
back. I want to assure everybody involved that we will be as deliber-
ate and keep the record open for the views of everybody as we
possibly can. We certainly will make every effort to hear from
responsible organizations. In some eases it will not be possible to
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provide an opportunity to testify, but certainly all views will be
received for the record if they are properly submitted to us.
I want to commend all of you for your attendance this morning.
I recognize, as Mr. Ford pointed out, that some may have to leave.
Mr. Lehman has mentioned that he has to testify before another
committee. But, if you will, as we hold these sessions, make every
effort to come back when you can, I will certainly try to afford you
every opportunity to be kept up to date on the record that's being
written. I guess we should make an attempt to operate under the
5-minute rule as part of the procedure, but the .Chair will certainly
be as lenient in watching the clock as I can to be fair to all the
members that are attending.
At this time I am delighted to yield to the minority and other
members who are here this morning.
Mr. MALLARY. I have no formal statement, Mr. Chairman, but.
I do appreciate your calling the hearings. I think it's very important.
that we do write a full record on this and I think the balanced
scope of hearings which you are planning are very significant..
Certainly this is a vital subject which we are all concerned with
and I think many of us are looking forward to new information. I
think the dialogue and the information that will be presented will
certainly be significant to all of us.
Mr. HENDERSON. Mr. Lehman.
Mr. LEIIMAN. I just want to thank you, Mr. Chairman, for calling
this meeting. I'm sure it's going to very productive. I have had one
experience with labor relations in the public sector when I was on
the Dade County School Board. We had no machinery to set up
to handle the situation when we had a confrontation and therefore
we didn't have a strike which was illegal but we had a walk-out
which was just as destructive.
Mr. HENDERSON. Mr. Taylor.
Mr. TAYLOR. Mr. Chairman, I have no formal statement. I do
look forward to these informative hearings and I commend you -for
your leadership in calling these meetings and for the broad base
of input that you have planned for these hearings.
Thank you.
Mr. HENDERSON. Before I introduce our first witness' I would like
to take just one moment for the benefit of the record and all here
to commend the staff of our subcommittee, and Mr. Masker for the
very long hours spent in drafting some of the bills that are before
us, especially the bill that Mr. Bulski and I introduced. Not only
have they provided the usual staff service to the members of the
subcommittee as we prepared for these hearings, but have been in
constant contact with the Civil Service Commission and the other
Federal agencies vitally involved in the subject that we will be
considering, and in addition to that, on their own time have spent
numerous hours talking and conferring with people at all levels of
Government, both in the Congress as the various Members of Con-
gress have contacted us, and in industry and business, hopefully to
develop a very comprehensive and very important piece of legisla-
tion affecting our Nation. I certainly would want to recognize at
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this time that their work has been outstanding and certainly will
be very fruitful to us in the weeks ahead.,
Our first lead-off witness this morning is the Chairman of the
Civil Service Commission. Of course, Mr. Hampton has appeared
before this subcommittee and the full committee on numerous occa-
sions. I noted earlier this morning, Mr. Chairman, that one of the
writers here in the Washington area commented on the dryness of
the subject. He did also recognize the importance of it, but I have
.always found that these matters perhaps don't catch headlines and
perhaps are not as sexy as some of the others, but when you come
before us you always. do a fine job and show that you have got a
real grasp on the problems of the Federal employees. You always
are very helpful to us and I know of no one better qualified to
lead oft on this particular subject. I recognize that during these
years not only as Chairman but as a member of the Commission in
prior years this is a subject that has been very much before you.
You have had great input into the real meaningful operation of the
Executive orders and I know of no one that will have greater input
into the final resolution of this problem than you and your staff
members at the Commission. It's a real pleasure on behalf of all the
members of the subcommittee to welcome you this morning.
STATEMENT OF HON. ROBERT E. HAMPTON, CHAIRMAN, CIVIL
SERVICE COMMISSION, ACCOMPANIED BY TONY INGRASSIA,
DIRECTOR, OFFICE OF LABOR-MANAGEMENT RELATIONS, CIVIL
SERVICE COMMISSION
Mr. HAMPTON. Thank you very much, Mr. Chairman.
saw that same column this morning and it is a subject that
people tend to think is dull, mainly because it's something that is
not easily grasped. It's very complex. It has a strong element of
law in it. But I thiqk it is one of the Most important subjects that
this eornmittee has had to address in the 20?some-odd years that
I have been around Washington.
Mr. Chairman and members of the committee, we are pleased to
have this opportunity to appear before your committee this morning
to share the administration's thinking on the various labor-manage-
ment bills pending before you. With me is Mr. Tony Ingrassia, Di-
rector of the Commission's Oflice of Labor-Management Relations.
This office has prime authority for assuring the Commission meets
it assigned responsibilities under Executive Order 11191 governing
the Federal labor-management program.
We war t to particularly acknowledge the courtesy the committee
has extended in giving me 2 days in which to explore the ramifi-
cations of a legislated labor-relations system covering Federal em-
ployees. There are many fundamental 'issues concerning the entire
fabric of Federal personnel laws that must be addressed in any
ineaniagf al consideration of broad-ganged legislation of the types
embodied in bills before this committee..
At the outset, let me just briefly preview the areas we would like
to cover during these 2 days of testimony. We have provided
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you with our statement for the record, which is an in-depth treat-
ment of what we'll be discussing today:
1. The principles upon which the Executive order program is
based, our experiences and our accomplishments with the program.
2. The special and unique characteristics of the Federal Govern-
ment as employer.
3. Tho evolution and basic features of the Executive order pro-
gram, our challenges and progress under the program and how
we are moving forward to deal with problems the program is
designed to resolve.
4. The other existing systems which promote bilateralism in Fed-
eral personnel administration, and the need to assure that personnel
policies requiring governmentwide uniformity continue to be handled
through a central agency in which labor relations is fully integrated.
5. The major deficiencies we strongly oppose in provisions of
pending bills, and the fundamental concerns which must be addressed
in any consideration of broad-guacred legislation to govern labor-
management relations in the Federdservice.
6. The lack of demonstrated need for such legislation. And, finally,
the basic philosophy of labor relations we strongly support for
balanced employee, union, and management rights and responsibili-
ties in the public interest.
The thrust of all our testimony is that the Executive order pro-
gram is operating saccessfully and that there is no demonstrated need
for changing to a legislated program?and certainly not to one with
many great departures from tested methods.
Furthermore, it is our strong feeling that any serious considera-
tion of legislation must come to grips with the fundamental issues
inherent in any basic change in the overall program of Federal
labor-management relations. To focus attention on these issues, we
have provided you with Summary Charts on 17 identified issues.
Of these, we would like to devote special attention to the following
in our testimony tomorrow:
The central authority?its role and authorities.
Supersedure?the impact of collective-bargaining legislation on
existing laws.
The scope of negotiations?as it relates to established bargaining-
unit structure, to the current unavailability of economic trade-offs,
and to congressional authority and oversight responsibilities.
The paramount need to protect merit principles and other ex-
pressions of the public interest.
The need to identify who the "employer" will be?for purposes
of collective dealings.
In addition, we have furnished you with detailed background
information on union recognitions and agreements, third-party func-
tions and case handling, collective-bargaining experiences and re-
sults, structures for labor-relations effectiveness, comparison of pri-
vate and public sector economic fringe benefit levels and section-by-
section comparison of Executive Order 11401 and pending bills.
The climate for labor-management dealings and relationships in
the Federal Government has evolved from the first principles on
which the existing program is based. These principles are as valid
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and timely today as they were when the Executive order program
was formalized 12 years ago in Executive Order 10988 and modern-.
ized with the provision for third-party machinery in 1970 by Execu-
tive Order 11491, which has since been amended.
As the essential statutory framework of Federal personnel policy,
merit principles provide the context within which collective dealings
must operate. And the essential authority of public officials to meet
their obligation to manage effectively must be maintained. What
the Executive order reserves to Federal managers?commonly re-
ferred to as "management rights"?are in reality those responsibili-
ties required of Government to manage in the public interest.
A major strength of our program Under Executive order is its
ability to make the periodic adjustments necessary to accommodate
to new conditions in an orderly and evolutionary process. The twin
imperatives of "improved wellebeing of employees" and "efficient
administration of the Government" under Executive Order 11491
have shaped the policy, the procedures and the direction of the
Federal labor-relations program.
That we've come a long way as a result is shown by the overall
record of aecomplisment and benefit.
-Unions have .!,-rovcrit and stabilized. As of 6 months ago, nearly
1,100,000 employees. or 56 percent of the entire nonpostal Federal
work force, lunI Leen organized into exclusive bargaining units.
That's just about double the proportion in private industry, and it
includes very close to the total population of eligible employees in
the Federal bine-collar work force. See attachment 1.
More recently, a dramatic upsurge in negotiating activity has
broadened agreement coverage to ft very considerable measure. Our
studies have shown that over 77 percent of all nonpostal Federal
employees in exclusive units are covered by negotiated agreements,
with an additional 17 percent on the verge of initial agreements.
This overall total of 94 percent cannot be far out of line with the
situation in private industry: and even if we assume agreement
coverage there approaches 100 percent-, the gap is narrowing all the
The collective bargaining process is at the heart of any labor-
management program, and the Civil Service Commission in con-
junction with the Office of Management and Budget recently under-
took to determine ii:ust how it is working under Executive Order
11491. To distinguish fact from opinion?and to sharpen our per-
ception of the total picture?we surveyed the bargaining experience
throughout Government. The returns are now in on almost nine-
tenths of our program's more than .'3,400 recorded units, including
virtually all of those under negotiated :agreements. See attachment
7. What emerges is an overall record of bargaining achievements
under the Executive order program, notably :
The parties are rc aching final agreement in only a few months of
regotiat flivs---within 3 to months--in , two-thirds or more of bar-
gaining situations.
More important, they are learning and managing to settle their
own problems across the table in theiv own way, and mostly on their
own. Only 16 percent of bargaining situations required third-party
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involvement?and most of them involved only mediation-341 cases.
With all other third-party involvement?the Federal Labor Rela-
tions Council, Federal Service Impasses Panel and Assistant Sec-
retary of Labor?confined to just about 80 bargaining situations.
And these agreements incorporate a variety of matters every bit
as broad and important as in private industry?with the exception
of those areas where Congress has either retained direct control or
has established a special statutory mechanism. The matters covered
by agreements are amply documented in the Commission's new Labor
Agreement Information Retrieval System, which for the first time
ever gives us a current, automated handle on what's been negotiated
in the Executive order program. See attachment 9. Included in the-
wide range of negotiated items are provisions which go beyond
what's required in regulations, with bilateral?instead of unilateral
?grievance procedure because of their presence in agreements. We
find, for example:
That more than 820,000 Federal employees enjoy access to nego-
tiated grievance procedures?most of them providing final and bind-
ing arbitration.
That some 718,000 are covered by negotiated promotion policies.
That about 712,000 are 'subject to negotiated overtime clauses.
That almost 652,000 are under negotiated safety provisions.
That over 589,000 are covered by negotiated disciplinary policies.
These are only a few examples of the very real and tangible ac-
complishments produced through the collective: bargaining process
in the Executive order program. And they represent only a part
of the total employee benefits package developed on a bilateral basis
in the Federal service. There are other mechanisms providing for
union participation in developing wage and fringe levels which must
also be considered in the total picture.
But before going on to them, I would like to review some of the
systemic reasons why basic pay and economic supplements aren't
deferred to the bargaining table in the Federal sector?reasons that
inhere in the nature of our system of Government.
The setting -for labor-management relations in the Federal service
has evolved from the special and unique characteristics of Govern-
ment as employer?actually, a multiplicity of employers in some
70 departments and agencies employing some 2 million nonpostat
civilians. Congressional control over taxation and the budget process,
the monopoly character of much of Government's activities and the
concomitant necessity for uninterrupted service, expression of the
public will in Federal personnel affairs?these are some of the
conditions that make us a very special and unique kind of employer,
and distinguish us from employers in the private economy. They do
tend to limit the scope of bargainable matters?in ways deemed to.
be vitally necessary in the public interest.
Notwithstanding these essential differences, however, some critics
of the Federal labor-management program blindly favor a whole-
sale transplant of private sector law, precedents and practices into
Government. This might work if Government were just another
industry. It is not. The Federal program today is a product of the
distinctive conditions that exist in Government, just as the private
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sector program is a product of the quite different conditions that
prevail there. What makes the Federal environment so special?
Labor organizations enjoy long and very important relationships
with the Congress. This hearing itself is an example of their impact
in the legislative process. Unions in private industry do not lobby
their employers for benefits outside and hi addition to those nego-
tiated across the table.
Federal employees benefit immensely from a wide variety of stat-
utory and regulatory policies and protections. These have been
achieved through significant union input to the political and admin-
istrative, processes of Government.
The Executive order itself has fostered a positive approach toward
union organizing and dealings. In contrast to the private sector,
the Federal Government has adopted a position of neutrality on union
representation of its employees. Government officials do not mount
"vote no" campaigns in union elections. ,
The Congress has outlawed the strike among employees of the
Federal Government--in recognition of the paramount need to ensure
the uninterrupted delivery of services to the public. In its place, there
is viable and effective machinery for determining economic and other
major personnel benefits. While this removes concerted job action
is a lawful weapon in collective bargaining, the Government?as
employer- ?has no desire to deny to Federal employees the general
level of rights and benefits secured through ngotiations in private
industry. On the contrary, the rights and benefits which Federal
employees enjoy are fully comparable. to---and in some ways better
than?those in the private economy. See attachment 10.
I think it is eminently clear that labor-management policy in the
Federal sector cannot be the same as in the private sector. While
we have some things in common with, collective bargaining as it is
practiced in private industry, there are basic and special differences
which demand a special and different program for the. Federal
ser vim.
The state of the program for Federal labor-management relations
today is a result, of these essential differences as reflected in our
continually evolving character. The Executive order has been revised
substantially three times; even now, we are headed toward still
another revision as a result of our en Trent review of the program.
As these revisions in. the program suggest, ours is not a model of
immutable perfection. There are problems, and we have made and
continue to make the changes necessary to meet, those problems.
Some of the inevitable, problems that would exist in any program--
statutory or Executive order have hen blown up out of all pro-
portion to create the impression that the Executive order program
isn't working. To the contrary. I believe that the record in resolving
problems ampiy demonstrates that the overall objectives of Executive
Order 11491 are being met and that the machinery for dispute reso-
lution is working, well.
Over 370 grievance-arbitration awards have been rendered under
the Executive. order program; and, of course, this figure, doesn't
inelude, the, many worksite grievances which are settled in the nego-
tiated procedure and which never reach, formal arbitration. These
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awards have resolved disputes in a wide variety of areas?including
such areas as administration of pay and leave, promotion, discipline,
work scheduling and representation. The majority of arbitrations
have involved installations within the Department of Defense, where
a total of only 12 exceptions to arbitrators' awards have been filed-
5 by management, 7 by unions?indicating the high rate of accept-
ance both parties have given to the arbitration process.
The Federal Labor Relations Council has closed 129 of its 146
cases of all types?negotiability disputes, appeals from determina-
tions in representation and unfair labor practice cases, and exceptions
to arbitration awards. The Council's appellate function has increased
dramatically?with three times as many cases closed last year as in
the previous year?and the leadtime, in case processing has been
'shortened dramatically. See attachment 3.
The Federal Service Impasses Panel has closed 92 of its 105 re-
quests for assistance in negotiations?with most of them settled in-
formally. Only 18 cases involved issuance of a formal report and
recommendations following factfinding, and 16 of them were accepted
in toto by the parties; in the other two cases, the Panel's recommen-
dations were used as a basis for settlement. See attachment 4. This
is the Federal alternative to the economic or "contract" strike, and
the record shows wide acceptance by the parties directly involved.
The Assistant Secretary of Labor for Labor-Management Relations
has closed 4,885 of his 4,962 cases of all types?representation, unfair
labor practice, standards of conduct, grievability-arbitrability?while
his Labor-Management Services Administration has supervised 2,063
representation elections. Year-to-year comparisons in the number of
elections supervised reflect the recent leveling off in union organizing
under the Executive order. And although the number of unfair-labor
practice cases had shown a steady increase from 1971 through 1973,
projections based on the first quarter of 1974 indicate there may be
fewer such. cases this year than last. See attachment 5.
Those figures demonstrate that the third-party processes mide,r the
order are distinguished by their "successes' ?that the loudly alleged
"failures" in isolated cases are the exceptions that prove the rule.
This is not to say problems do not exist; they do, and we are moving
ahead to meet them. But they should be viewed in the true and
broad perspective of Executive order experience?and this is one
of overall and increasing successes in surmounting new challenges.
The total envronment of labor relations in the Federal Government
provides a responsiveness to employee and union concerns that ex
tends well beyond the Executive order framework?in many impor-
tant directions. The Executive order program realistically cannot be
viewed as the alpha and omega of formal and structured opportuni-
ties for collective participation in determining personnel policies,
practices and working conditions.
Over and above what is derived through the collective bargaining
process under the Executive order program, improvements in wages
and fringes are obtained through a variety of bilateral mechanisms
which represent a close first cousin to collective bargaining. Together;
they provide direct union involvement on all the various "personnel
policies, practices and matters affecting working conditions" of
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Federal employees. If the particular form utilized in a given area is
not the same as in private industry, it is because the Congress has
determined that the Federal Government is not the same as a private
employer for that purpose.
Even in the so-called "bread-and-butter" areas of wages and
economic fringes which have been temoved by law from the nego-
tiating table in the Federal sector, unions enjoy a very real say and
influence. Their vepresentatives serve on a variety of statutory bodies
dealing with Federal employee pay tuA fringe benefits:
The Pay Comparability Act of 1.970 established a Federal Em-
ployees Pay Council of five union representatives, who deal with
the President's agents in formulating wide-ranging recommendations
on the entire system and processes involved in determining pay com-
parability for white collar Federal employees.
As early as 196.73, the Civil Service Commission established a
National Wage Policy Committee of five union and five agency
representative who met face to face over a long period of time, to
establish all policies and operating instructions for the Federal
blue collar pay system. The Committee Makeup was modified slightly
and established by law as the Prevailing Rate Advisory Committee,
which continues to meet weekly to work out systems and problems
on the wage board pay program.
Other examples of "bilateralism" beyond the Executive order pro-
gram include union participation on the, health benefits and life in-
surance advisory committees on economic fringes, and on the Federal
Safety Advisory Council. Tit addition, the Civil Service Commission
long recognizing the necessity and ,Table of involevement by em-
ployees, through their union representatives?has, on its own initia-
tive, regularly and systematically consulted with them in the de-
velopment of governmentwide personnel policies.
The axis that makes all of these systems work in concert is our
Federal system's provision for a central personnel authority respon-
sible, for personnel policies requiring g,overnmentwide uniformity in
which labor relations is fully integrated. This is the role which is
carried out by the Civil Service Commission in assuring that the
interworkings of central personnel administration and labor-man-
agement relations operate efficiently and effectively.
From the standpoint of effectiveness as well as fairness, it is
essential that government retain this centralized capability for de-
veloping and administering policies designed to achieve a necessary
degree of uniformity and equity in matters common to employees
of more, than one agency. This arrangement doesn't retard labor-
management dealings; it facilitates them. Consider the results:
Employee, representation in the statutory pay and fringe systems
plus employee representation in collective, bargaining under the
Executive order have produced improvements equalling the general
level of benefits in the, private economy, including the most '-highly
unionized industries. See, attachment V/. Tf anything, we are having
to contend with criticisms that the Federal employee is more equal
than his private-sector counterpart in the economic conditions of
employment.
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All of which should make abundantly clear to even the most
skeptical critic that if our existing program and mechanisms do
not happen to fit some preconceived notion of what they ought to
look like, they nevertheless yield improvements that meet or exceed
the full measure of comparable expectations.
The proposals for change embodied in legislation before you now
would usher in wide and potentially disruptive departures from
established systems in Federal personnel administration?beginning
with the repeal of the existina1" Executive order program for labor-
management relations, but not stopping there.
While there are important variations between these bills?varia-
tions in approach, as well as in substance?all of them are variations
on a common theme: They would make fundamental and far-reaching
alterations in the relationships between the Federal Government as
employer and its employees and their union representatives. It is
from this perspective?that is, in terms of impact?that we have
carefully reviewed the bills and compared the variations. See attach-
ment 11.
An exhaustive discussion of all the provisions of all the bills
would not be appropriate at this time. Their implications are de-
veloped more fully in the statement for the record which we have
furnished to you. I would, however, like to highlight some of the
very real practical concerns we have with what we see as deficiencies
of major provisions in pending bills. These are concerns which must
be addressed in any consideration of such legislation.
Conflicts of interest and separation of powers both go largely
ignored from the very outset in II.R. 13 and in H.R. 0784, in their
arbitrary and indiscriminate coverage of all Federal instrumentali-
ties outside the Postal Service. Features of these two bills would
apply to the FBI and CIA in the executive branch and to competitive
positions in the legislative and judicial branches alike?in addition
to the departments and agencies currently under Executive Order
11491. And even within those instrumentalities, the broad-brush
coverage would draw no distinction between the rank and file and
those who investigate and audit their work or enforce the rules and
regulations; would revoke the. authority to exclude on national-
security grounds; and would replace the functional criteria for
excluding supervisors and management officials with unrealistically
narrow standards of income level, span of control and scope of
impact. This kind of shotgun coverage would be sure to backfire
on effective labor relations, just as it would on the efficient and
credible administration of government.
PAYMENT OF THE EQUIVALENT OF UNION DUES AND FEES
This would be required as a condition of Federal employment and
job retention under the so-called "agency shop" arrangement author-
ized by both H.R. 13 and 9784. Requiring membership in a labor
organization or mandatory payment of equivalent fees as a condition
of Federal employment conflicts with merit principles, which base
continued employment on ability to do the job assigned and which
bar use of discriminatory measures in making personnel decisions.
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THE PROSPECT OF STRIKES, INCLUDING DISRUPTION OF VITAL GOVERNMENT
OPERATIONS
This could be posed by H.R. 9784, which would provide a condi-
tional right to strike government operations in certain instances,
while the issue is clotided in H.R. 13 where there is no ban and where;
it is unclear as to what effect the bill's supersedure clause might
have on the current, statutory prohibition. The strike "right" is not
an acceptable alternative to peaceful and orderly impasse procedures,
in Federal labor disputes; it; is manifestly incompatible with the
public's essential. right to continuity Of government services and
national defense.
REPEAL OF EXISTING LAWS AND EXECUTIVE ORDERS
This could be accomplished by the provisions in ILR. 13 or 9784
for supersedure of all previous statutes and Executive orders con-
cerning the same subject matter or inconsistent with these bills. This
raises questions as to the extent to which civil service laws?such as
all of title 5, I.Tnited States Code- -may be overridden. It also.
raises questions concerning the degree to which congressional
authority and determination could be, affected in areas such as pay,
benefits, and classification. In their present form, the supersedure
clauses appear to open to negotiation many areas presently subject to.
congressional action. For example, would separate retirement or
leave systems evolve?one for unit employees, another for nonunit
employees? Would different agencies or, installations negotiate dif-
ferent insurance, programs? Or would the supersedure be selective;
if not, who would determine the criteria and which laws would
be replaced and would not? These are examples of the kinds of
questions these hills raise, but fail to answer.
PREEMPTION OF HIGHER LEVEL RULES AND REouLATtorts
This would be, the effect of provisions in both H.R. 13 and 9781-
which would reverse the current requirement that negotiated agree-
ments conform to "aopropriate"?higlier?agency regulations. Such
regulations would be preempted to the extent they conflict with
terms negotiated in any of the more than 3,400 existing bargaining
units. Ta Civil Seri. ice, Commission could not make or apply rules
or regulations where needed to protect the public interest and main-
tain efficiency of Government operations. Policies and regulations
designed to achieve a necessary degree of uniformity and equity in
the administration of matters common to all employees of the agency,
or to employees in more than one subordinate activity, would be
adversely limited. In their place could Mule extreme disparities in
the conditions of employment for employees similarly situated and
a gradual abandonment of equal pay for equal work as a protection
against inequities in compensation for Federal employees.
T have chosen. to key on these provisions so as to touch on some
of the most, fundamental issues which must be addressed in any
consideration of a labor-relations program in the Federal Govern-
ment.
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H.R. 10700 warrants separate mention. The product of much good
thought and effort, it already has served the extremely useful pur-
pose of provoking dialogue on the implications of labor-management
legislation.
In our review of II.R. 10700, we particularly noted that it presents
a substantially more reasonable approach and balance to the rights
and interests of the public, employees, unions, and management than
other bills in the 93d Congress. But it raises some difficult questions,
too, the most serious of which involve the bill's provision for a
Federal Labor Relations Board?of five agency and five union rep-
resentatives, with a chairman designated by the Chairman of the
Civil Service Commission?to render determinations on centrally
developed and issued personnel policies and regulations of Govern-
ment-wide application.
It is not clear on its face for example, whether the Board's
authority would extend also to rules and regulations affecting the
unorganized and exempt, excluded, segments of the work force. If
so, what would be the justification for this? If not, what would be
the best way to deal with them?
What does seem clear is the potential for the Board?or more
likely for a single individual, in the person of the Board's Chairman
?to exercise essential personnel authorities historically delegated by
the Congress to Federal agencies and officials, the Commission, in
particular, to enable them to cary out their statutory responsibilities.
While we agree that the controlling impact of Government-wide
regulations can have a narrowing influence on the scope of bargain-
ing, we would strongly oppose any approach so extreme as to, in
effect, "throw the baby out with the bath water." In fact, a means
of improving the existing situation?that is, escalating the level of
bargaining to the regulating level?is high on the Federal Labor
Relations Council agenda in the current review of the Executive
order.
In our review of II.R. 10700, we noted also that the bill incor-
porates many of the existing approaches and mechanisms embodied
in Executive Order 11491. Our main concern is whether even this
legislation would enhance labor-management dealings in the Federal
service beyond the measure of progress already provided for through
existing statutory mechanisms and in the advancing Executive order
program.
That is to say, events have not made our system obsolete: rather,
they have confirmed its viability and continuing adaptability. In
fact, the forces for change in our system can be viewed realistically
in three ways:
(1) Changes that can be made successfully within the Executive'
order framework. The Federal Labor Relations Council has just
completed an indepth process of receiving the written and oral sug-
gestions of unions, agencies, and other interested parties and now
is reviewing possible changes in the Executive order program.
(2) Changes that would require the kinds of legislative action
we might support. The executive branch is willing to work with
organized labor and the Congress in such statutory areas as authori-
zation for make-whole relief to afford back-pay remedies and for
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lg
negotiation of binding arbitration of adverse actions?that is, major
:disciplinary actions.
(3) Changes that would require the kinds of legislation we could
not accept and Congress has opposed in the past. Examples include
the union or agency shop, negotiation of pay rates .and economic
fringes on a fragmented bargaining unit basis, the right to strike.
In sum, we are continuing to move forward through established
systems to deal with acknowledged problems. We. have a program
we know can work, one we know we can grow with, .one we know
can promote the optimum balance among all the parties at interest
?Government, its employees, their union representatives and, above
all., the public.
If you accept collective bargaining as a positive force in personnel
administration?and we do?then our record to date, overall, is a
powerful rejoinder to the notion that the existing system isn't work-
ing. It is changing in constructive and purposeful new directions.
Now is not the time to impose fundamental and sweeping changes in
the ground rules for Federal labor relations?not the time for law-
makers to fix their legislative sights on what is still a moving target.
By any measure, the Federal establishment is a "megaemployer,"
a vast and complex configuration of activities and missions that best
responds gradually and deliberately to new conditions imposed by
new systems. This is as true in personnel administration as in any
other field of public endeavor. it is doing so now. It will continue
to do so as our labor-management system continues to improve with
experience.
Those who are urging a "me-too" approach for adopting broad-
gauged legislation fail to take stock of the realities. They are ignor-
ing the very real distinctions of the Federal Government as em-
ployer, and they are blurring the historical perception.
Tho Federal service today is not where the private economy was
40 years ago. We operate under an established system of labor-
management relations: then, there was none. We are progressing in
an orderly and peaceful process; 40 years ago, there was a real
need for a law to achieve industrial peace. ,
In industry then, there was a demonstrated need for comprehensive
labor-management legislation. In Federal Government now, there is
no demonstrated need for such broad-gauged legislation. The situa-
tions are not merely dissimilar: they are diametrically opposite.
The Executive order framework has been refined and continued
through three administrations. Overall, it has been conspicuously
successful in responding to employee interests, in facilitating union
growth, and in improving employee communication with manage-
ment. In contrast. there has been no compelling evidence that the
proposals before this committee would provide a better or more
balanced program.
Mr. Chairman, this concludes my prepared remarks for this morn-
ing. Tomorrow. I plan to consider in more depth the complicated
and serious issues posed by any legislated system of collective bar-
gaining superimposed without full consideration of the impact on an
existing framework of personnel legislation. We will now be happy
to answer any questions you and the members of your committee
may have.
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Mr. HENDERSON. The attachments and the statement submitted
by Chairman Hampton will be entered into the record at the end
of today's proceedings.
Mr. Hampton, I certainly commend you on the decrease of the
cases that are in process by the Council. What reason can you ascribe
to the increased number of cases closed as well as the shortening
of the processing time?
Mr. HAMPTON. Well, Mr. Chairman, we have made some internal
administrative or operational changes in the way the Council proc-
esses its cases and this accelerated the decisionmaking process. In
addition, I think what we see reflected here is that as the third
party machinery began to work the first issues that were before us
were, of course, those coming before the Assistant Secretary, in
determining bargaining units. Then came the second stage after these
organizing and unit matters were taken up; we shifted more into
the negotiating stage and issues of negotiability began to be raised
with the Council. This accounted for the increase in number of
cases and the Council had to change the way it operated internally
in order to review these. It switched from dual handling and many
internal written briefs on every matter and went more to oral pre-
sentations by staff.
Mr. HENDERSON. H.R. 13 and H.R. 9784 generally have broad
definitions of the term "grievance" to include those matters that
are technically now spoken of as appeals. H.R. 10700 would exclude
matters subject to appeal procedures pursuant to law.
What are your views on these definitions?
Mr. HAMPTON. Well, there is a tendency when thinking in terms
of matters of differences between employees and employers to say
grievances, whereas the Federal Government has long had the statu-
tory system for the more serious types of personnel cases and those
are called appeals. So there are grievances and there are adverse
action and appeals and it's a difference in terms of magnitude of
impact on the employee.
Now for a long time under the Executive order, in fact in our
last review, we made it mandatory that each agreement have a
negotiated grievance procedure in it. So the employees in that
exclusive unit can negotiate a procedure.
In adverse actions which are covered by the Veterans Preference
Act, this being a statutory system, it would require an act of Con-
gress to have those in negotiated agreements, but we're working now
on a legislative proposal to ask the Congress to give us the authority
so that these agreements could include a negotiated adverse action
System.
Mr. HENDERSON. In your testimony concerning a Federal Labor
Relations Board that would be established under the provisions of
H.R. 10700 you indicate it's not clear whether the Board's authority
would extend to rules and regulations affecting unorganized seg-
ments of the work force. The bodies that now set pay for both blue
collar and white collar employees, include labor representatives,
and the decisions of these bodies affect the organized as well as the
unorganized.
Therefore, could you give me your views as to the best way to.
handle the scope of the Board's authority in this area?
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Mr. IlAmvroiv. I think you would have to change the language that
is in the law to very explicitly spell out the scope of their?rather,
the breadth of their responsibility. If they are to be a third party
in labor relations, then it isn't necessary for them to have the
authority to issue rules and regulations.
One of the difficulties you get in trying to construct this in law
is the interpretations of whatever agreement they might have under
some particular policy. Are they limited to just making determina-
tions within those parameters or can they reach out and make their
own rules as they see a problem? And this is what I see. It appears
'front the language there that this body Could make any rule or any
regulation which would affect the Federal Government, regardless
of what, the President, as Chief Executive. Officer, might have. I
mean, I don't know the precise language. It is one of the things that
in the process of considering various alternatives in labor relations
the eommittee really is going to have to address itself to what you
really want this Board to do.
Mr. IIEND'einsoi.r. Finally, before I yield to my colleagues?perhaps
T. should turn to the more basic point I think you were making in
your testimony as it relates to the question of whether or not there
should be legislation.
It would be possible for the Congress to simply write into law
the provisions of the existing Executive order. Would you have
objection to that being done?
Mr. HAMPTON. I think I would, in the sense that if you're going
to move to a statutory system, I think that the character of the
Federal Labor Relations Council body or the central body would
really have to change. Essentially, the. Council is a body that really
sort of directs this program in a sense Of keeping it within all of
the various parameters prescribed by law, and if you were to go to
a strictly third-party type of operation I would rather see the
membership of the Council changed from the present way it's con-
stituted.
I ean't see tfie Chairman of the Civil Service, Commission and the
Director of the Office of Management and Budget or the Secretary
of Labor serving Ott a statutory board that would mainly be an
adjudicatory process alone without policymaking authority.
think the. principles in the Executive order are sound. I think
they reflect a balanei rig of interests, a recognition of the fact that the
management in the Federal Government is not free, like the manage-
ment in the private sector, to deal with the economic issues. That's
really something that is reserved to the Congress and I personally
feel that's where it belongs. I mean, Congress is here elected to
represent the public interest and the public has a very proprietary
interest in the conditions of service of civil servants. These sometimes
are not expressed until there's a major ,problem or a disaster, but
it's one of these latent types of things that pops up.
I think you have to recognize in a legislative system?and even in
.our present system?that the policymaking body on most of the
major economic issues and the taxing authority rests with the legis-
lature and we have to operate under the Constraints of certain laws.
There are certain conditions of employment that we have no authority
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to negotiate at all and these, in a sense, the union and the executive,
:speaking broadly of them on the management side, have come up
to the Congress and have said, "We favor this and we favor that,"
:and the Congress has made a choice and passed a law and said this
is law and that's what has to be implemented.
So there are many tiers in the system and then the Civil Service
Commission has certain responsibilities that are given it that are
statutory in nature or there are certain laws that have been passed
that say to the President, "You must do this," and the President
uses the Civil Service Commission as the action instrumentality.
That's why we were set up. So we do regulate in these areas.
Now someone says, "Well, this means that that is off the bargaining
table." It is off the bargaining table in the sense that people down
in Charleston do not negotiate on that because we don't have the
authority to negotiate on it. This is something that has been assigned
to us to do by law. But what we do in the field of regulating
which is something new, which I think goes sight unseen because it
isn't something that anyone is particularly getting credit for,
is
that we do have a very formalized system of consultation with the
unions and with the Government agencies.
We don't sit there and make policy in an ivory tower or in an
abstract way. We go to the agencies and we go to the unions and
we say this is what we're being asked to do by law; this is what
we propose to do; let us have your comments; and they comment
and then we sit and we, discuss these particular issues and then
the Commission, as a policymaking body, makes the final decision?
and it's a question of what the agencies say; it's a question of what
the unions say. So we're sort of in the middle in that particular
thing, but this is not to say that the. employee at this particular tier
in the process has no voice. He has an extremely important voice
and you can look at the substance of policies and regulations that
have been issued and tell this.
Now, one of the problems in this whole situation is how much
further should central level regulating go, which tends to take some-
thing off the bargaining table ? The Federal agencies themselves issue
certain rules and regulations. In many cases this is the direct result
of a statutory requirement placed on them by the Congress. Once
they issue some of these rules and regulations they have the effect
of taking them off the bargaining table for the local people who
are bargaining.
So at all three of these tiers, Congress, central executive agencies
such as OMB and Civil Service Commission, agency levels, you
have involvement in addition to the local level.
Well, one of the things that the Council is considering now is a
recommendation providing a mechanism where a union can challenge
the agency's regulation as being overly prescriptive, that is having
the tendency to unnecessarily restrict the scope of bargaining. The
scope of bargaining has been increasing very significantly and we
wanted to know really what was in all of these agreements.
Well, with 3,400 different units and so many variables in their
conditions of employment and what they're doing, and having none
of the types of tools that the management would normally have?
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22
that is, not bargaining on economic items?we wanted to get a handle
on what was being negotiated. And the best way was to get all of
those agreements and analyze them and find out how broad or how
narrow the scope of bargaining is.
We found that the scope of bargaining was far broader than we
had been led to believe by looking at a few complaints in isolated
areas rather than the rule, and all of that information is available..
It can be provided to this committee. We do have some analysis in
our background information.
But this is the kind of dilemma that you're faced with in a
situation where not only Congress has a piece of the action, the
Executive has a piece of the action, the Judiciary has a piece of
the action?we're not an income-generating type of organization.
We have no economic tools. If I were in the private sector and my
organization made e. $10 million profit, I could be darned sure that
the employees would come in and want a bigger share of that. a.nd
it would be on that basis that you 'would make a settlement with
your workers, their productivity and what they had contributed.
We have, no way of measuring productivity versus profits in the
Federal service for bargaining 011 the major economic issues as in
the private sector; decisions become political in our sector, political
in the sense not only of the parties involved but also the public
interest that's involved and the people who pay the taxes.
So we just don't Lave the type of circumstances for full collective
bargaining. What does that mean; who do you bargain with--I
moan, as any central agency, are we going to be required to sit
down and to work with 3,400 representatives representing the 3,400
units? I'm oversimplifying here and I shouldn't do that because it
tends to distort the issue. But the authority of any statutory body
r think, in labor relations, should be to balance the interests of the
parties in being ihle to make an objective kind of a decision. I don't
think that a statutory body should have the kind of authority that
the Council has because you have two people who are members of
the Council who hold broad central statutory authority and you
could not have that in another board.
Mr. IIRNmazsoN. Thank you very much. I commend you for the
statement that you did present and certainly I look forward to your
appearance and testimony and question session tomorrow.
Mr. Ford.
Mr. FORD. Thank you very much. I took some courses in under-
graduate school about 25 years ago at the conclusion of which
thought I had read much more about the Federal civil service than
ever wanted to read and knew more :,about it than I would ever
want to know, and I'm discovering that I have really had some
misconceptions.
One o F the problems I have, with dealing with your testimony is
I don't know where you're coming at me from because you're kind
of dancing on the head of a pin in your position. The Civil Service
Commission was created out of a very strong public reaction in this
country against the executive branch of :Government primarily, and
theoretically the Civil Service Commission has functioned as pro-
tection for Government employees in the public interest against
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23
undue influence and shenanigans from the executive branch and
from the legislative branch.
It appears to me that you do a pretty effective job in protecting
the public interest and the employees when it comes to the legislative
branch, but that over its entire history the Civil Service Commission
has had an extremely difficult time in its relationship with the execu-
tive branch because after all the executive branch not only has always
exercised great control over your activities and policies but in recent
years, as succeeding Presidents have become more and more central-
ized in your activities, it's become more difficult in that role of
imposed neutrality that was originally set for you. This is one of
the concerns we have about the Executive order approach, no matter
who the President might be who is writing the Executive orders,
because he, too, is in a difficult position?or his representative in
preparing the orders for him?of not really being able to solidly
take a stand as to who the prime interests are that they serve.
I'm interested that you draw a distinction and say that in collec-
tive bargaining in the public sector there's always the overriding
public interest, but that that doesn't exist in the private sector. I
think my friends at the head of management in my district would
take exception to that, because they consider themselves to be very
much aware of the public interest and the public has very direct
ways to tell them whether their interest is being met or not in the
marketplace.
At the top of page 8 you say:
Labor organizations enjoy long and very important relationships with the
Congress. This hearing itself is an example of their impact in the legislative
process. Unions in private industry do not lobby their employers for benefits
outside and in addition to those negotiated across the table.
Well, it may be true they don't lobby the individual employers,
but they do lobby the Congress and the State legislatures for every-
thing from unemployment compensation to the Fair Labor Stand-
ardst'Act at the Federal level. The National Labor Relations Act has
amendments proposed to it from time to time. The new pension
legislation that we have just passed will arbitrarily determine what
kind of a pension plan will meet the Federal standards. The service
contract act which we are in the process of amending at the moment
has become very important because of the large number of Federal
agencies that have contracting out activities.
Your statistics to show how many people belong to unions should
not only show the present Federal employees outside of the Post
Office but the jobs that were formerly Federal jobs now held by
private employees through contracting out and those private em-
ployees, in turn, have a very high degree of unionization. There
is some variation between different parts of the country because of
local conditions, but our hearings in the Labor Committee indicate
that they are in the most part represented by organized labor and
frequently find themselves in a much better position to be repre-
sented as a private employee doing exactly the same job on a Gov-
ernment installation as they were doing, before the contracting out,
as a public employee.
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Later in your statement, where you say that the complaint you
most frequently hear is that public employees are advantaged over
private employees, comes as a little bit of a surprise to me. Maybe.
you could give us some examples?without taking the time now--
of what you meant in your statement about the kind of complaints.
you get that a public employee is advantaged, from an economic
standpoint, over a private employee.
You suggest in your statement that the employees coming to the.
Congress, and the Congress continuing to affect the employee-em-
ployer relationhip by passing various kinds of statutes, is not really
elesirable,?you then go on later?
Mr. 11Ampro.N. Mr. Ford, I didn't say it was desirable or unde-
sirable. I just stated it as a fact that they do. I think it's in the?
public interest that they do this and it's something protected by
law that they do.
Mr. FORD. Should they or shouldn't they? That's the point.
Mr. HAMPTON. I think they should.
Mr. FORD. Okay, because later, on page 13, you talk about collec?
tive bargaining under the Executive order and how it has produced
improvements equalling the general level of benefits in the private -
economy, including the most highly unionized industries. If any-
thing, we have to contend with criticism that the Federal employee -
is more equal than his private sector counterpart in economic con-
ditions of employment. So you suggest, here that the real reason
why the Federal employee has improved and gone ahead of his
private counterpart is because of collective bargaining action, not
necessarily legislative action.
Then, on page 16, you jump back at us again from the other -
side---
Mr. Bn.-xsco. Would you excuse me one moment, Bill? Mr. Chair-
man, will the witnesses be back tomorrow for questions?
Mr. IIENnEusoN. Yes.
Mr. BuAsco. I have some people in my office whom I must see and
I will be back then the first thing tomorrow morning and we will
be able to proceed with the questioning then.
Mr. HENDERSON. I anticipate that other questions will run us to
12 o'clock and I'll be glad to let you have the first minutes tomorrow
morning to ask any questions of the witnesses.
Mr. BnAsco. Thank you.
Mr. Foul). On page 16, the general burden of your statement. at
that point is that if we have legislative ,intervention in the collec-
tive bargaining process an a continuing basis?by taking the legis-
lative approach instead of the Executive order approach?that we
are in danger of having legislative intervention in matters that
would be better left to the collective bargaining process. But then,
when you get to page 19, we get to the really basic philosophical
problem we have in public employee collective bargaining and you
pick out three specific kinds of things that you would find unac-
ceptable in Federal legislation. One would be the union or agency
shop; and second is negotiation of pay rates and economic fringes
on a fragmented bargaining unit basis. You have spoken several
times today of 3,400 separate units. Would your objection to collec-
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tive bargaining remain if they had complete bargaining for every-
thing except pay and fringe "benefits?
Mr. HAMPTON. Well, what I'm essentially saying here, when you
have 3,400 units, it would be necessary to really define the bar-
gaining rights at the local level versus those at the national level.
Mr. FORD. Except when you gave me three things that were wrong
with my bill?the three basic things that shouldn't be in the Federal
statute?you say negotiation of pay rates and economic fringes on
a fragmented bargaining unit basis. Later in your testimony you
talk about problems of the numerous units you have and I think you
said a few moments ago that you had been making astudy and you
were surprised at the scope of the agreements covering those 3,400
units.
Mr. HAMPTON. Right.
Mr. FORD. It really hasn't been a well-controlled situation up un-
til now under the Executive order and you're just beginning to dis-
cover what's been bargained for and received. Is your principal
objection in this legislation to the effect that we would allow nego-
tiation for pay rates and economic fringes or that we would allow
negotiations, period, at the unit level?
Mr. HAMPTON. What I was saying, when we first looked at local
bargaining agreements, we did this on the basis that there were
charges that the scope of bargaining was quite narrow, but what
we wanted to find out is how narrow it really was.
We found it was much broader which shows that you can nego-
tiate on many matters at the local level and it still does not have
the question of uniformity that is needed on some of the more major
policy issues.
Mr. FORD. Isn't that exactly what labor legislation generally does?
Isn't that what the National Labor Relations Act says when it sets
forth a shopping list of those things that are negotiable and those
things that an employer need not negotiate for and not have to
negotiate for?
There are three categories. There are things that are optional
between the parties. There are things required of the parties. There
are things that are prohibited as areas of collective bargaining to
the parties. You don't have that same kind of a breakdown in any
one place in this Federal service.
Mr. HAMPTON. Well, what I mean here is one of the differences?
I'm not an expert on private labor relations system, but that law
generally applies to a single employer who may have a widely dis-
persed situation. What you have in the government is essentially
you have 70 employers.
Mr. FORD. Don't make that point because my friends in the build-
ing trade and the Teamsters would go right through the roof. The
largest single union in the country is the Teamsters. They are the
largest union but they have literally thousands and thousands of
employers in the building trades. Building tradesmen rarely work
for the same employer for a whole year at a time arid they function
under the same act as an auto worker or a steel worker. We haven't
had any trouble with that kind of distinction in the private sector.
We have national contracts in steel and national contracts to one
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degree or another in -communications. : The big three contracts, for
all intents and purposes, are national contracts, but, there are all
kinds of local, conditions that are thereafter bargained for at the
local level and it may be paving the parking lot or illuminating the
parking lot to keep people from being mugged?a whole variety
of things.
Last year Chevrolet couldn't get their factory started in Ohio
because they thought the line was going too fast. That became a
local issue, but that works itself out and these people still make a
profit and we're having more strikes now throughout all the public
sector than we are? ia the private sector.:
What I'm concerned about is when you take these three things
an.d say you can't have them, then you can't have labor-management
relations in the same way we have labor-management in the private
sector?the union or agency shop, for example. You're just asking
for continual grief with the employees and continual backdoor at-
tempts to find the same result and you're going to have the problem
that now exists go on forever.
Management in the private sector discovered a long time ago that
the union and the management shop, after they once discovered how
it worked, was one of the most comfortable adjuncts to labor peace
that they ever entered into. You can examine the records from years
of testimony by our friends on right-to-work, and you will find most
of the big employers in this country want no part of that.
Then when you get, to the right to: strike you have me really
baffled, because all of your employees live in communities and, as a
matter of fact, belong to credit unions With all kinds of other gov-
ernment employees. Thy are spending their social life and a lot of
their free time in constant communication with policemen, firemen,
nurses, rubbish collectors, bus drivers?you name them?who in
every State in this country are going to strike, on a fairly regular
basis, and attaining their goals. It just seems unrealistic for anyone
charged with responsibility for future stability of the work force
in the Federal Government to close their eyes to the fact that this
is going on.
It's a phenomena that's not new. Tt's a phenomena that's been
developing very rapidly for over e decade. We'd better anticipate
that it's only a question of time before it becomes a common phe-
nomena in the Federal Governmeni,
This committee went through the pain of a postal strike and went
through the first instant reaction of the Postmaster General, who
said he was going to fire the people who were on strike?until we
started telling him what we were hearing around the country?that
such action would close every post office in this country.
I don't condone any kind of illegal activity as a way we ought
to be running a business. The plain fact is that when we're faced
with that kind of massive resistance to a law, it becomes unlivable
with the Federal employee. What we were forced to do as a govern-
ment? We were forced to pretend that the law didn't exist and
then overnight try to develop an instant method of bringing the
strike to an end. Shouldn't we anticipate this sort of thing for the
future and have in place a set of procedures and a book of rules by
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which the game should be played? In the private sector, not all
strikes are legal; nor are strikes always legally carried out. When
a private employee steps across the line, when he in fact begins to
do damage as an employee that's beyond a legitimate withholding
of labor, there's a whole set of rules that come into play and he is
in court and he is in jail. That doesn't happen when public em-
ployees strike.
New York put some school teachers in jail and the overall result
of that to the entire community is something that's very hard to
accept as being good for us. I would hate to see what would happen
if we had any major sector of the Federal employees decide that
they were just tired of something and go on strike because all we
can do is say it's against the law, and that hasn't: worked in the
one example we have had.
This committee went to other countries where public employee
strikes have gone on and, strangely enough, we discovered?it's a
source of some embarrassment to me?that the only two major in-
dustrial countries in the world today that have an absolute prohibi-
tion against public employment strikes are the Union of Soviet
Republics and the United States.
I'm not trying to argue you into support of this legislation, but
I would hope that instead of coming at each other with the straight
idea that these three elements which I think are essential to collec-
tive bargaining can't be in ultimate legislation, that your people
and mine and you and I could do some more talking about this.
Unless we can get some philosophical understanding, and at least
start playing in the same ballpark, we're never going to get to bat.
What we will have is a struggle that will be decided on a political
basis. That may not be the best way to write Federal collective bar-
gaining legislation.
There are differences in opinion here on this subcommittee be-
tween the chairman and I as to some of these items and how they
ought to be applied and how broad they ought to be, but I would
hope that in examining this legislation you could give us some con-
structive suggestions about how we could have a workable kind of
a situation that looks a little bit more like what's involved in the
private sector.
And, having said all that, I want to tell you that I commend you
very highly for doing the job you do. It's extremely difficult for any
of us, with the little time we have to prepare ourselves, to try to
understand what these relationships are. I do hope I can impress
you with the fact that a number of us do think that we're caught
up in a very dynamic situation that is moving much faster than
we are. We are being constantly surprised by the people with whom
we speak across the country?the growing militants, the growing
sense of frustration, that we encounter, and with what used to be
nice, quiet little Government unions. I think we're coming into an
era when an Executive order just isn't going to do the job. There's
just not that kind of confidence at the moment?or' I would say in
the last 8 or 10 years?in having the Executive benevolently set
down the rules by which we'll play the game between each other.
34 610 74 3
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There has to be a feeling on the part of those people who are
members of the union that the, rules Of the game were made under
some circumstances where neither side was supposedly advantaged
by the fellows that wrote the rules.
Mr. HENmoisox. Mr. Chairman, if I may, I want to reserve the
time for the minority here and I anticipate we will quit by 12. I
know you will want to respond to Mr. Ford's questions and com-
ments and I'll give you a chance in just a minute, but it seems to
me that we're faced with one problem that he didn't mention and
perhaps a quick answer could be helpful.
Recognizing that I philosophically ,olo disagree with. Mr. Ford,
let's just take on the, no-strike question. If we, could be sure of what
the congressional policy on that was, and assume for a minute that
we could got a vote of the Congress that whatever legislation we
would enact would not have or would Contain a no-strike provision
continuing, would your opposition to the legislation formulated in
that be the same as it is in this area of where we don't know what
we're going to decide?
In this legislation, for example, if Mr. Ford's view prevailed in
the Congress that the legislation would contain the right to strike,
I would anticipate that your opposition would certainly be as strong
or stronger than it is in your statement. Is that a fair statement?
Mr. HAMPTON. I think we feel very strongly about the question
of right to strike, but one, of the, things that I think the purpose of
the hearing is for, and just as Mr. Ford has said, is to really iden-
tify the principal issues and consider the various alternatives to
solving them.
Now there should be what I call a better balance of the powers
at the bargaining table, and you're right that there is an imbalance
in a sense, now. It can be a "take it or leave it" situation, and the
only recourse, an employee would have would be an illegal strike.
That is not the proper balancing of the powers.
would hope that we could approach it from the standpoint of
thinking in terms of some type of disputes machinery that would
move immediately into a key area short of?I mean, so that em-
ployees would not be forced to strike in order to assert their de-
mands on an issue which they feel very strongly about because I
think that we have an awkward situation that we deal with and
we do not want to deprive, the citizens of this country of the services
of the central Government and I would like to explore and discuss
what is an elective mechanism short, of this.
But just to say the right to strike without going on into certain
conditions of when this would arise and how you would solve them
is one that think we, have to be in opposition to. In our earlier
discussions we discussed a lot of the issues and recognized the com-
plexity of them, and that's why I point out the 3,100 units and the
rights of those and the different configurations of multi-unit bar-
gaining, coalition bargaining that they have in the private sector
compared to the various tiers and who sits in the national councils
on the broader issues in the Federal sector.
These, are just terribly wide-ranging issues. And essentially the
Government is made up of 70 different employers, all having certain
sets of statutory rights, and this is what we mentioned a ut the
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supersedure thing. If we have certain things that are in statute now
that are employee rights, if those are struck from the statute, do
we immediately go into the question of coming up with a national
agreement? And if the Federal Government, whoever happens to
represent them, goes there to the bargaining table, what economic
tools do they have to achieve the types of things that are necessary
for the management to produce a product or accomplish its mission?
These are questions I just think we are you know, I think we're
openminded on them. I think they really need to be debated and
I think through these hearings we will probably have identification
of a lot of issues and I really think that has to be followed up with
a real discussion of all of those issues, particularly impact. Impact
is the thing that has to come out and be ascertained.
I don't know what some of these things impact. And you're ab-
solutely right. I was on a needle head here, going back and forth
on issues just to raise, in a sense, the frustration of the inability to
focus in on how these would be resolved in some new situation. And
the comfort you have in the situation that exists today and realizing
that what the Congress is saying is we want to move off of that
comfort and try to get ourselves out of the mold of what you're
living with and envisage what you're going to have to live with is
very difficult.
I think we need to spend a lot of time on it and the initial papers
which were presented here, some 130 pages of how we view the
program, really doesn't come up with any great concrete-type con-
clusion. I don't think I want us to come up with concrete things
because I think we want to have an open mind about this. Because
I agree with you. We watch the trends in the public sector and the
state and local governments and we see what's happening. We have
seen the kinds of reactions you get from the public and we see the
dilemma that they are faced with and we know these things are
coming.
Mr. ITENDERsow. Mr. Chairman, if I may just take a minute, for
dialog with my colleague from Michigan, because through the years
serving with him on our committee and recognizing his outstanding
service on the Education and Labor Committee, I certainly want to
recognize that in the earlier labor-management relations in the private
sector he is a real expert, one whom I admire tremendously, and any
time we're together on an issue or a fight I don't know a better
fellow in the House I'd like to have with me.
I realize that on the issues of no-strike or the agency shop we
might have very sharp differences, but I would want the record to
show and the audience to realize that I think he can and will con-
tribute much to this legislation. Bill, I don't know how we get by
our hangups on the point of strike or no-strike.
Mr. FORD. Could I suggest a way? I'm working on an economy
pitch for Mr. Gross at the moment. I stumbled across a study that
somebody made attacking compulsory arbitration in which he
pointed out that in the public sector in those areas in which they
turn to compulsory arbitration, they end up with a 1?year genera-
tion of economic demands as compared to the private sector where
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the strike is the ultimate weapon which has now fallen into a
pattern of three-tiered generation of economic demands.
When an employee knows he can make any demand he wants?
when he goes to a union meeting knowing that--he calls upon them
to make a demand a little differently when he realizes if the de-
mand isn't met he's got to lose his paycheck while they settle the
matter. In the public sector, where they have gone the route of com-
pulsory arbitration, he, can make a demand every year on the anni-
versary of the contract and know ti rat: while it's being fought out
he still goes to work every day and gets a paycheck. It does make
some difference in the employees making extraordinary demands.
There is a school of thought developing that the right to strike
might be the way to put the economic lid on the increasinc, cost of
public employment.. As one that's never been impressed too much
with that as an ultimate goal, I have stayed away from it, but I'm
trying to develop for Mr. Gross that kind of a position.
.Mi'. HENDERSON. I think I'd like to take just a minute. to make
Iwo points with regards to my feelings about the, no-strike in the
public sector and, again, T haven't had great experience at the. State
or municipal level. Certainly all of my interest has developed in the
years here in the Congress and working with the Federal sector.
There are two things that give me the greatest concern or con-
vince me to stay with the position of no-strike in the public sector,
First of all, I feel that. we have had some pretty good indications
that in communications, iii transportation, and some of the other
areas of the private sector that are no vital to our people' to say
nothing of the possible, strikes in public areas such as school teach-
ers, yon get a counter-reaction of people against using the tool to
strike.
Secondly, I feel that the strike is an essential part of the Ameri-
can way in the private sector, but if the right to strike is granted
in the public sector T would he fearful, not about how it might work
in the Government, as much as what might be the public reaction
and what would happen to the right to strike in the private sector.
could see, somewhere down the way that you would have a reac-
tionary government that. would say not only was the right to strike
in the postal or government sectors wrong and we're going to repeal
the law on that, but we'd have, a reaction to the National Labor Act
and circumscribe the rights of the American workers.
So those in labor leadership are going to have to decide on that
-very tough issue and. just speaking personally, Bill, I hope that, as
I see the political situation in this Congress, that we will be able to
work together and devise the best legislation we possibly could.
Certainly the bill that T worked on, H.R. 10700, would be very
different if T knew we were going to have the right to strike, and
Fru sure you would agree that starting with your bill that if the
dec'siett is made, that it would not contain the right to strike that
'roll would be. interested in giving attention to some of the other
things. So I feel we have set the stage this morning for very mean-
ingful hearings that will answer some real questions.
Now I realize the staff has sonic questions this morning that we
didn't get to, but our time and testimony and the comments of the
members have been very fitting for the opening session.
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Mr. Chairman, inasmuch as you're going to be back tomorrow,
I certainly will advise the members who had to leave, as I did Mr.
Brasco, that first thing, what I'd like to do is afford them an oppor-
tunity to follow on with specific questions they might have and then
we will go right into your planned second day of testimony.
Mr. FORD. Mr. Chairman, I can't be here tomorrow, unfortu-
nately, and I do have some questions that I didn't get to.
Mr. HENDERSON. Since Mr. Ford will not be able to be here to-
morrow, we would like to reserve to ourselves the right to, after the
session this week and after we have heard from other witnesses, to
not only retain the right to ask the Chairman to come back, but we
ought to extend to the Chairman of the. Civil Service Commission
the right to submit further comments later in the hearings, or if you
would like to return for a session we certainly are going to try to
work as hard as we can and call as many sessions as we can. I have
made every effort to get our legislative schedule in as good shape
as we can so we can give close attention to this matter and move
forward as judiciously and expeditiously as possible on this matter.
Thank you very much for your attendance this morning, Mr.
Chairman.
The subcommittee will stand adjourned until tomorrow morning
at 10 o'clock.
[Whereupon, at 12:05 p.m., the hearing was adjourned, to be
reconvened at 10 a.m., Wednesday, May 22, 1974.]
[As previously ordered, the statement and its attachments, sub-
mitted by Chairman Hampton follow:]
STATEMENT SUBMITTED BY HON. ROBERT E. HAMPTON, CHAIRMAN, U.S. CIVIL
SERVICE COMMISSION
Mr. Chairman and members of the committee, We appreciate the courtesy
you have given the Commission to provide a comprehensive report on the-state
of labor-management relations in the Executive branch of the Government,
and to present our views on labor-management relations legislation pending
before your Committee.
This is a unique and privileged occasion to report on where we are in labor-
nmnagement relations in the Federal service, what kind of program we have,
how it evolved, its accomplishments and the challenges it faces, the special
characteristics that give it its distinctive structure and quality, and its capacity
to adjust to and respond to the current interests and needs of Federal em-
ployees, the unions who represent them, and agency managers charged with
the accomplishment of agency mission. We welcome the opportunity, occasioned
by these hearings on bills such as H.R. 10700, H.R. 13, and H.R. 9784 and
others?bills which would fundamentally restructure and reorient the existing
Federal labor-management relations program?to examine the Federal expe-
rience in the light of the proposals for change.
We believe, that after an examination of the record, you may well conclude
with us, that while what we have now is not perfect and needs improvement,
it tests out better than any of the proposals that would replace it, and that
no demonstrated need has been established to abandon a system that has
worked eminently well.
That system, which covers non-supervisory employees in the Executive
Branch of the Government and non-appropriated fund activities, excluding
the Postal Service, the Foreign Service and certain other specified categories
of employees, is based upon Executive Order 11491, as amended. The Order
provides a constructive framework for collective bargaining in the Federal
Service, which has evolved over the past 12 years through three different Ad-
ministrations. The present program had its origin in Executive Order 10988,
issued by President Kennedy in January 1902. It continued and received en-
dorsement from President Johnson, and it was updated to reflect changes
that were deemed to be necessary by Executive Order 11491, issued by Presi-
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dent Nixon in 1969, and further amended in 1971. And the program is presently
undergoing review by the Federal Labor Relations Council for possible addi-
tional revisions to assure its continued, evolutionary adaptation, its effective-
IL8. and its responsiveness to the interests and needs of all parties concerned--
eiiiployees, unions, management, and the public.
The Federal labor-nlations program is one of the largest in the world, with
Federal agencies dealing with unions representing over one million employees
in narly 3500 bargaining units spread all over the world, and covering a tre-
mendously wide diversity of occupations not governmental activities?machin-
ists, clerks, scientists, engineers, teachers, nurses, among others.
While there are many similarities, the Federal program is not the same as
that in the private sector, for the Federal Government is unique. To assess
its effectiveness we mist look beyond comparisons. We must measure its ac-
complishments in terms of its stated objectives
We will in this report provide a broad perspective on the Federal labor
relations program by discussing and developing an understanding of the pro-
gram by discussing and developing an understanding of the program prin-
ciples and accomplishments. The report covers the unique characteristics of
the Federal Government as an employer; the state of the program; the pro-
gram within the totat personnel management environment; the deficiencies
of major provisions of pending bills ; the lack of a demonstrated need for
legislation; and the need for a balanced labor-management relations policy
for the Government.
In addition, because of the considerable importance of the fundamental is-
sues and the major concerns which need to be addressed (such as the extent to
which the Congress -will delegate its authority over basic Federal personnel
policies to the bargaining tables, the scope of bargainable matters, the right
to join or not join a union, authority of a central body, supersedure of laws for
the Federal service, we will provide a special supplement to this report on
these issues and the questions and concerns that have to be considered in
formulating policy and administrative mechanisms for labor-management re-
lations in the Federal Service.
We have developed the views expressed in this report by using the expe-
rience derived from the unique vantage point of the Commission as the central
Personnel agency and the center for Executive branch labor relations effort.
This assessment is based on information gathered from day-to-day contacts
with agency managers, evaluations of agency personnel operations, meetings
with agency labor relations awl personnel staff, feedback from special surveys
and studies of agreement provisions and program implementation by our staff
and others, reports of and efforts to resolve problems in program application,
meetings and discussions with agency and union officials, and review of re-
ports in journals and the press.
TIER CLIM ATE : B 1SIC PRINCIPLES, ACCOMPLISHMENTS, PERSPECTIVE OF
C HERE NT PROGRAM
To begin our analysis of what kind of labor-management relations program
we have in the Federal service, let us look first at the principles on which the
program is based, and match these against program accomplishments.
Ilajor principles at ivcrk in the program
In making its recommendations leading to Executive Order 10988 of 1962,
the Presidential Task Force appointed by President Kennedy recognized the
right of Federal employees to deal collectively through unions of their choice
on matters of concern to them in their employment, and that a system to
noeomplish this had to be constructed to accommodate the unique character-
Miles and mission activities of the Federal Government os an employer. The
eel (or principles on which the original Order was based were relevant then
a nil are relevant todaN. They are:
pederal employees t re entitled to the benefits of collective bargaining.
Government responsibility to the public is paramount.
There should not and need not be any basic conflict between a system of
labor-management rla -ions and the Civil Service merit system. The merit sys-
tem is and should remain the essential basis of the personnel policy of the
Federal Government. The principles of entrance into the career service on the
basis of mien competition, selection on merit and fitness, and advancement on
the same basis, together with the full range: of legislative and executive poll-
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cies and regulations that make up the Civil Service system govern the essential
character of each individual's employment. While collective dealing can modify
procedures and practices, it cannot vary merit principles. It must operate
within their framework.
The right of Federal employees to join organizations dealing collectively
with management officials is matched by an equal right to refrain from any
such activity. A more significant role for employee organizations within Fed-
eral agencies is warranted. The corollary is that they must expect to assume
greater responsibility.
There must be no discrimination under the program against employees or
union members based on race, color, religion, or national origin.
The right and obligation of public officials to manage effectively must be
preserved. The concept of managerial responsibility and the role of managers
and supervisors in the public service needs to be strengthened and clarified.
Supporting these basic principles, the twin objectives of (1) "improved well-
being of employees", and (2) "efficient administration of the Government"
direct the focus of policy, administrative structure, and procedures of the
Government's labor relations program. It is ordered by the President, in Ex-
ecutive Order 11491, that to implement the objectives:
"(a) Employees will be provided an opportunity to participate in the formu-
lation and implementation of personnel policies and practices affecting the
conditions of their employment; and
"(b) The participation of employees should be improved through the main-
tenance of constructive and cooperative relationships between labor organiza-
tions and management officials; and
(c) Subject to law and paramount requirements of public service, effective
labor-management relations within the Federal service require a clear state-
ment of the respective rights and obligations of labor organizations and agency
management."
Major accomplishments under the program
With these principles and objectives as a solid foundation, the Executive
order system has produced an effective labor relations program?it has been
a progressive program with solid accomplishments over its relatively short
life of twelve years. How well the system is living up to its principles and
objectives should not be measured in terms of isolated cases cited by its critics,
but rather by over-all progress in day-to-day employee-management relations
under the Executive orders:
"It has been established as national policy that Federal employees have the
right to join or to refrain from joining a union; that employees have a right
to share in the development of personnel policies that affect them on the job;
and that in strengthening the relationships between organized employees and
managers, the public interest must be fully considered.
"Unions have reported gains in membership, in recognition earned, and in
agreements reached. Perhaps the best evidence of the importance of the system
to employees is the phenomenal increase in union organization since Executive
Order 10988 established the formal labor-management relations system in
1962. As of November 1973, unions have bargaining rights for more than a
million (56 percent) of the nearly 2 million non-postal employees. As shown in
Attachment "1", there are 3,486 recognized units. Sixty-five percent of these
are covered by negotiated agreements, and many others are engaged in nego-
tiations. More significantly, 77 percent of all employees in recognized units
are covered by agreements.
"Agreements have become increasingly meaningful and comprehensive with
more and more substantive issues included. The effort to open more areas to
bargaining where there is no overriding need for Government-wide uniformity
is highlighted by the ongoing review of, and recent revisions to, the Federal
Personnel Manual. Agencies are now conducting their own "follow-on" review
og regulations to identify unnecessary restrictions to negotiability.
"Third-party machinery has been created to deal with unresolved disputes.
The Assistant Secretary of Labor for Labor-Management Relations and the
Federal Mediation and Conciliation Service have been given strong roles in
the Federal program, an Impasse Panel has been created, and the Federal
Labor Relations Council exercises general overview.
"Several features of the procedures that govern labor-management relations
in the private sector have been incorporated in the Federal program, while
those that do not recognize the special role of public service have not.
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"Drawing from this progress, we can conclude that the Federal Labor rela-
tions program has not created an atmosphere stifling and frustrating unions,
but, to the contrary, has created a positive atmosphere where employees can,
and do, freely choose their representatives to bargain for them on matters
affecting the conditions of their employment. Under this system, union repre-
sentation (as noted above) has grown in 12 years to an extent far surpassing
the rate of growth achieved by unions in the private sector in almost 40 years
under the National Labor Relations Act.
"In summary, the Federal program that has evolved is one in which a rea-
sonable be lance has Veen struck between management's ability to manage and
employees' rights to have a strong voice in matters that affect them on the
job. There have been "horror" stories of differences of opinion or misunder-
standing between the parties--such as improper actions, failure to act, nega-
tive attitude, and the like. However, if we would be completely honest, these
"horror" stories have been rare exceptions to the rule, for the overwhelming
number of relationships are positive and productive."
For example, last month at the public hearings on the Executive Order pro-
gram, spokesmen for the Department of Defense, which accounts for over
6(45,000 employees or 146 percent of all employees in exclusive bargaining units
under the Order, summed it up this way: "It is our view, as the largest em-
ployer in Government, that on the whole, the Federal labor-management rela-
tions program is operating satisfactorily and, that the third parties in general_
have done a good job?although we have our differences with individual
decisions. The program continues to evolve steadily, and most of the problems'
that inevitably arise from day to day are being resolved. The program has
been changing and maturing through an evolutionary process, and we think
this is the way it should be."
To show that the Order's over-all objeetives are being met and that the
dispute-resolution machinery is working well, the Department of Defense in-
troduced these statistics:
During 1973, over 665,000 employees in DoD (63 percent) were participating'
in the formulation of their working conditions in exclusive bargaining units.
Over 500 agreements were negotiated or renegotiated in Defense last year
involving the Mediation Service in only 61. eases, the Impasses Panel in only
rune eases and the Council (on negotiability) in only 16 cases. (i.e. most of
the negotiations were resolved by the parties directly without a decision on
recommendation for settlement from any third-party.)
In 1973, DoD activities were involved in only 47 of the numbered Decisions
(including both representation and unfair-labor-practice cases) issued by the
Assistant Secretary, only six of which were .appealed to the Council by One
party or the other.
In grievance eases, arbitrators' awards involving Defense activities since
the inception of the program, in only 12 cases were exceptions filed with the-
Council (five by management, seven by unions), indicating the high rate of
acceptance by both parties of the grievance-arbitration process.
This is not to say that no changes in the program are called for?only that
they should be approached with great caution, according to the Department of
.Defense.
in spite of the mar y accomplishments of the program, we do know that
no one has yet developed the perfect model for a labor-management relations
program?one that is universally applicable, absolutely fair and equitable,
internally logical, externally applicable, absolutely fair and equitable, inter-
nally logical, externally consistent with other established institutions, and
guaranteed to produce workable solutions for all labor-relations problems
Even though such a model program does not exist, we have fashioned a pro-
gram suited to the uniemie condition of employment in the Federal civil service
with a view toward striving to he a model program. And with the dynamic
nature of labor relations, we have adapted and refined the program to keep
pace with changing times and conditions, and indeed, we must have the flexi-
bility inherent in the present system to react to the changing times and
conditions.
THE SETT} NG : SPECIAL AND UNIQUE CHARACTERISTICS OF GOVERNMENT AS EMPLOYER
Some critics of the Federal labor-relations program favor, it seems, a whole-
sale accommodation of public employment practices and policies to collective
bargaining as it has evolved in the private sector during the last 40 years.
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This is an unrealistic approach, as will be recognized from the following
discussion.
The policies and practices which collectively make up the private sector
labor-management relations "model" have developed and evolved over the years
to meet conditions and to solve problems in private sector labor-management
relations. We are attempting in the Federal sector to develop and refine a
program which meets the conditions and solves the problems in today's Federal
sector where the public interest is of primary concern.
Upon examining some basic characteristics of the Federal public service
and analyzing how these characteristics have influenced the development of
the Federal labor-management relations program, the imperative of a special
labor-management relations program to meet the unique characteristics and
needs of Federal employment and Federal labor relations can be better under-
stood.
Environmental factors in the Federal program
An essential premise of Federal employment is merit, which was legislated
by the Congress as the governing principle under the Pendleton Act in 1883
and which has endured ever since. This protection from "spoils" considera-
tions for Federal employees, and through them for the operations of Govern-
ment, is the basic personnel policy we follow and maintain. Certainly the
Federal program has many similarities to labor relations in private industry:
the aspirations of working people are much the same everywhere; the day-to-
day responsibilities of Government supervisors and managers are not unlike
those of their counterparts in private enterprise; and many of the unions
representing employees in the Federal service also function in the private
sector. However, there are many significant dissimilarities, and these are
based on the special characteristics which influence the environment of labor
relations in the Federal Government.
Size and diversity.?The most obvious characteristic is the size and di-
versity of the Federal work force.
The program applies to two million employees, in fifty departments and
agencies, with thousands of principal offices and installations located all over
the world. The fact that the work force is spread throughout the world is not
an academic consideration.
Federal agencies have formal dealings with over 85 different labor organiza-
tions. They include the craft and industrial unions active in the private sector
and unions composed of government employees exclusively.
Scope of liar gaining.?The legal limitations which are imposed on the scope
of bargaining in the Federal sector by "applicable laws" and regulations of
appropriate higher authority create significant differences from labor-man-
agement relations in the private sector. In fact, one of the major features that
distfriguish public labor-management relations, as it operates at the Federal
level, from labor-management relations, as it is conventionally conceived in
private industry, is the fact that union negotiations with management in the
Executive departments and agencies are subsidiary and supplemental to the
major employee benefits and protections which have been grantd and are
periodically improved through the legislative process.
The "mandatory" scope of bargaining in the Federal sector under Executive
Order 11491, as amended, is described in section 11 as: "personnel policies
and practices and matters affecting working conditions, so far as may be
appropriate under applicable laws and regulations, including policies set forth
in the Federal Personnel Manual, published agency policies and regulations, a
national or other controlling agreement at a higher level in the agency, and
this Order."
Many of the terms and conditions of employment for Federal employees are
determined through or based on legislation, particularly the basic economic
items?pay, hours, fringe benefits, and retirement; the major personnel poli-
cies?merit staffing, job clasification, training, promotion, performance rating,
and reduction in force; and the protection of job security through a variety
of employee rights of appeal to the Civil Service Commission from actions
of their employing agencies. Further, the Executive orders of the President,
the standards, policies, and implementing regulations of the Civil Service
Commission and the rulings of the Comptroller General add measurably to
the body of common ground rules that govern the employment conditions of
Federal employees. This has resulted from :
Congressional relationships.?In the Federal service, labor organizations
have an important influence and direct participation in the legislative process.
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They long have testified before the committees of Congress on personnel legis-
lation and have worbed closely with committee staffs in offering their version
of proposed bills. They hold large-scale rallies in support of legislation bene-
ficial to their members. And they have ready access to committees and Mem-
bers of Congress to air their complaints and grievances, access which is guar-
anteed by the Lloyd LaFollette Act of 1912.
Statutory and regulatory policies and controls.?This long history of Con-
gressional relationships is responsible, in part, for the extensive coverage by
statute of the principal areas of Federal personnel policy and procedure. The
basic rules governing hiring, pay, hours, leave, job classification, performance
rating, fringe benefits, retirement, and major disciplinary actions in the Federal
service are set by law. In most cases, these are implemented by Civil Service
Commission regulations?and when drafting such regulations, the Commission
consults extensively with labor organizations as well as agency management.
Finally, the great size and spread of the principal departments and agencies
has brought about departmental personnel policies and procedures which further
implement the laws and Commission regulations.
Even though relatively few of the "bread-and-butter" issues are left for bar-
gaining in the Federal sector, this does not mean that there is nothing left for
bilateral negotiations between labor organizations and agency management.
Using information supplied by the Commission's recently developed Labor
Agreement Information Retrieval System (LAIRS), we have catalogued a wide
range of substantive areas covered by provisions of Federal negotiated agree-
ments and the frequencies with which they appear. For example:
Over 820,000 non-postal Federal employees are covered by negotiated grievance
Procedures, most of them providing for binding arbitration.
Almost 590,000 are covered by negotiated disciplinary provisions.
Nearly 718,000 are covered by negotiated promotion provisions.
A more complete rundown of negotiated items is set forth below. Although
these matters deal primarily with immediate working conditions on the job, it
should not be thought that they are of little importance either to employees or
to management. Their importance to employees rests in their direct relevance
to on-the-job conditions and in the opportunity for employee participation in
shaping policies and practices that affect their day-to-day work life. For manage-
ment, their importanee goes directly to its need to get the work of Government
carried out effectively, efficiently and with good morale.
In addition, labor organization representatives serve on statutory bodies which
were formed to ensure employee participation in certain pay and fringe benefits
areas. These include the Prevailing Rate Advisory Committee, the Federal
Employees Pay Council and the Health Benefits and Life Insurance Advisory
Committees. In addition, Executive Order 11612 provides for employee organiza-
tion representation on the Federal Advisory Council on Occupational Safety and
Health, established to advise the 'Secretary of Labor in carrying out a Federal
safety program under the Occupational Safety and Health Act of 1970.
The point here is that all the various "personnel policies, practices and mat-
ters affecting working conditions" are being dealt with in one form or another.
Perhaps the form being utilized in a particular subject area is not the same as
in the private seetor where the scope of bargaining includes basic pay and over-
time: severance pay; Christmas bonuses; pension and welfare plans; profit-
sharing plans; merit wage increases; company housing, meals, discounts, and
services: length of workday and workweek; work schedules; grievance pro-
cedures and arbitration; layoffs: discharges: workloads; vacations and holi-
days; sick leave work rules, seniority, promotions, and transfers; compulsory
retirement age; union security arrangements; and safety. These matters in fact
are also covered in the Federal program, albeit in different forms, containing
all of the substance of the private sector agreements.
Mnployer attitude toward anion organizing.--Another significant difference
between the Federal sector and the private sector is the positive approach the
Government, as employer, has taken toward union organizing.
A private employer may, and often does, exercise his right of free speech to
oppose union representation of his employees. In fact, this right is protected by
section 8(e) of the Taft-Hartley Act: which provides: "The expressing of any
views, argument, or opinion, or the dissemination thereof, whether in written,
printed, graphic, or visual form, shall not constitute or be evidence of any unfair
labor practice under any of the provisions f this Act, if such expression con-
I ains no threat of reprisal or force or promise of benefit."
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In contrast, the Federal government has taken a position of neutrality as far
as union representation of its employees is concerned, and Government officials
do not mount "vote no" campaigns.
Although nothing in the Order expressly prohibits a "vote no" campaign, .
neither does the Order contain a provision similar to section 8(c) of Taft-
Hartley. The policy of management neutrality derives from the preamble to the
Order, where the President, speaking as the head of the Executive Branch, has
said that "the well-being of employees and efficient administration of the Govern-
ment are benefited by providing employees an opportunity to participate in the
formulation and implementation of personnel policies and practices affecting
the conditions of their employment." And it derives from the injunction in section
1 that, "The head of each agency shall take the action required to assure that
employees in the agency are apprised of their rights . . . [freely and without
fear of penalty or reprisal to form, join, and assist a labor organization- or to
refrain from any such activity], and that no interference, restraint, coercion, or
discrimination is practiced without his ageney to encourage or discourage
membership in a labor organization." Officials within the Executive branch are
naturally expected to adhere to the labor-management policy directed by the
Chief Executive.
This policy coupled with easy access to formal recognition and union dues
checkoff during the period 1964 to 1970, under Executive Order 10988, undoubt-
edly accounts in large part for the dramatic growth of union representation
strength in the Federal sector at a time when it was relatively stagnant in the
private sector.
"Right to strike".?There is, of course, no right to strike among employees of
the United States Government. But strike activity in the private sector is per-
mitted (as well as regulated) by Federal statutes. In the Federal sector, on
the other hand, strikes are prohibited by statute as we believe they should be.
In principle we are against the "right to strike" for Federal employees.
There must be continuity of Government operations. But what if, as it is
sometimes argued, the particular function is unimportant. Well, if it is not
important to some of our citizens or the public welfare, then perhaps it shouldn't
be a Government function.
More to the point, however, is that the service is being performed because
appropria te authority, elected representatives, has determined it is in the public
in terest for the Government to perform the service. In the public sector, the
forces at work are basically political. Public managers don't lose business during
a strike. A. strike succeeds to the extent that it hurts the public and, in turn,
their political representatives. To permit a group of Federal employees to strike
goes far beyond the guarantee that Federal employees, like any other group of
American citizens, may petition the Government for redress of their grievances.
If Federal employees were able to withhold their servics in addition to engaging
in the accepted methods of political activity of private interest groups, it could
not only result in the reallocation of national resources in their favor but also
could leave competing private interest groups at a permanent and substantial
disadvantage.
During 1971 the statutory ban against strikes by Federal employees was
upheld by a three-judge panel of the -U.S. District Court. for the District of
Columbia, and the decision of the district court was affirmed by a 6-1 vote of
the Supreme Court of the United States. The Court held that Federal employees
have no constitutional right to strike and that Federal law prohibiting strikes
by Federal employees is neither unconstitutionally vague nor overly broad.
The majority opinion of the district court contains a very pertinent analysis
of the strike ban which bears repeating:
"Given the fact that there is no constitutional right to strike, it is not irra-
tional or arbitrary for the Government to condition employment on a promise
not to withhold labor collectively, and to prohibit strikes by those in public
employment, whether because of the prerogatives of the sovereign, some sense
of higher obligation associated with public service, to assure the continuing
functioning of the Government without interruption, to protect public health and
safety or for other reasons. Although plaintiff [the union] argues that the
provisions in question are unconstitutionally broad in covering all Government
employees regardless of the type or importance of work they do, we hold that
it makes no difference whether the jobs performed by certain public employees
are regarded as 'essential' or 'non-essential,' or whether similar jobs are per-
formed by workers in private industry who do have the right to strike protected
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by statute. Nor is it relevant that some positions in private industry are
arguably more affected with a public interest than are sonic positions in the
Government service . . .
"There certainly is no compelling reason to imply the existence of the right
to strike from the right to associate and bargain collectively. In the private
sphere, the strike is used to equalize bargaining power, but this has universally
been held not to be appropriate when its object and purpose can only be to
influence the essentially political decisions of government in the allocation of
its resources. Congress Las an obligation to ensure that the machinery of the
Federal government continues to function at all times without interference.
Prohibition of strikes by its employees is a reasonable implementation of the
obligation."
By and large, this proldbtion against the right to strike by Federal employees
has proven effective as there have been very few incidents during the program's
existence whieh actually can be termed "strikes".
There were, however, two strike incidents in 1970 which demonstrated the
gravity and potential adverse effects on the public of such concerted employee
actions. in March of that year, a strike starting among postal workers in New
York City had, within a week, spread across the nation and involved approxi-
mately 200,000 employees. Mail service was virtually paralyzed in many
metropolitan areas and many millions of people were deprived of mail service.
Although the strike was ended with the help of a court injunction and the
underlying dispute between the Post Office Department and the postal unions
,as resolved, the cost and impact of the strike on business and the economy
was quite severe.
In the same month, a long-standing dispute between the Federal Aviation
Administration RR(' the Professional Air Traffic Controllers Organization
(PA.TCO) led to a large-scale "sick-out" involving approximately 25 percent of
the nation's air traffic controllers. (This was a repeat of a similar but less
extensive incident which occurred in June, 1069.) As in the postal strike, court
action was required to end the strike and get the controllers back on the job.
By the strike prohibition Federal employees are denied the bargaining lever-
age of the threat of strike, but this does not means that they are relegated to
"second-class" status in our nation's work force. The Federal government, as an
employer, has no desire to deny to Federal employees the general level of rights
and benefits which employees are able to secure through collective bargaining
in the private sector. On the contrary, the record is clear that the rights and
benefits which Federal employees enjoy are fully comparable to those in the
private sector of our economy. Congress has historically provided the basis for
cmPloYee benefits over which private sector unions customarily strike. We are
proud of the enlightened personnel management system we have developed in
the Federal government, a system based upon Congressional study and enact-
ment. We believe that it is responsive to the needs of both employees and
management.
Even though our Fetteral personnel management system has developed under
circumstances in which employees did not possess the right to strike, they have
possessed and used tile right to participate in its development. Regardless of
what critics might allege about "paternalism" the Federal personnel manage-
ment system was not developed by a group of "philosopher-kings" and then
handed down for employees to enjoy. As pointed out earlier, the basic rights
and benefits have been developed through the political process, with Federal
unions 'flaying a large part in their development.
Turning more specihcally to labor-management negotiations within the con-
text of our existing program, Executive Order 11491 provides a means for
resolving negotiation impasses fairly and finally without the need for strikes
and lockouts. First, the Order assigns the Federal Mediation and Conciliation
Service the responsibility for mediating negotiation disputes. It may proffer its
services to assist the parties in reaching agreement and may provide preventive
mediatioo services at other times when needed to improve labor-management
relationships.
When a mg (tin lion impasse defies set tleinent by the parties even after
exlm imsi lug, mnedialioti efforts, the Order p:.rovides machinery which we believe
will guti rantee final settlement of even the toughest negotiation impasss. Opera-
tion of that machinery is the responsibility of the Federal Service Impasses
Panel. The Panel is composed of seven members appointed by the President from
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outside the government. They are persons of high reputation for impartiality
and expertise in labor relations, especially in the field of arbitration.
Following initial inquiry into the circumstances surrounding an impasse,
the Panel may proceed to fact finding with recommendations as a basis for
further negotiation or settlement by the parties. In the event that the parties
are unable to settle within twenty days, they must report back to the Panel
which may then "take any action it considers necessary to settle an impasse."
This means that the Panel may take any of a variety of actions which it
believes appropriate to the situation, including directing final and binding arbi-
tration or itself directing a settlement of the unresolved issues. It is believed
that this process, with its uncertainty as well as its finality will help reluctant
parties see the wisdom of engaging in serious collective bargaining and, in any
event, provide an importial and equitable resolution to the strike or lockout
alternative in private sector collective bargaining.
Therefore, because of the major reasons just discussed and others we believe
It is eminently clear that labor-management policy in the Federal sector cannot
be the same as in the private sector. While We have some things in common
with collective bargaining as it is practiced in the private sector, there are
basic dissimilarities which require a special labor-management relations
program for the Federa service.
THE STATE OF THE PROGRAM: EVOLUTION, STATE'S, SUCCESS, PROBLEMS,
CHALLENGES
Union representation of Federal employees did not begin with the promul-
gation of an Executive order formalizing the program of labor-management
relations. Federal unions can be traced back to the early days of labor organi-
zations in this country. Craft unions existed in Navy shipyards as early as
1830. These unions were active in bringing about improvements ill the working
conditions of Federal employees. Their efforts, and those of other labor organi-
zations led to the granting of a 10-hour day in 1840, and an 8e-hour day for
Federal workers in 1868. Another early achievement was the enactment by
Congress in 1861 of the first of the prevailing wage statutes.
Other Federal employees followed the lead of the craft workers. In 1869,
associations of letter carriers and postal clerks were established. The National
Alliance of Postal Employees was founded in 1913, followed in 1917 by the
organization of the National Federation of Federal Employees. AFGE came on
the scene in 1931, after a split within NYFE. over the issue of position classi-
fication.
By 1961, according to a study at that time, there were 40 labor organizations
with membership among Federal employees and dealing with Federal agencies.
Included among these----in addition to those already mentioned?were organiza-
tions such as the National Association of Alcohol and Tobacco Tax Field Offi-
cers, the National Customs Service Association, the Overseas Education Asso-
ciation, the Organization of Professional Employees of the Department of
Agriculture, the International Association of Fire Fighters, the American Fed-
eration of Technical Engineers, the International Association of Machinists, the
International Brotherhood of Electrical Workers, the American Federation of
State, County and Municipal Employees, the Air Traffic Control Association, and
the International Printing Pressmen's and Assistants' Union of North America.
Note that these organizations cover the spectrum of various types of labor
organizations?craft unions, postal unions, associations, unions based on occu-
pation or employing agency, and industrial-type. unions. Many, in fact, most,
were affiliated with AFL-CIO, and others were non-affiliated (independent).
The parties to a labor-management relationship were there, and to some
extent, on a permissive basis, they were dealing with one another. What was
needed was a bridge to span the gap created by the absence of a government-
wide system of rights and responsibilities for collective dealings between the
unions and the employing agencies. Such a bridge was. established for the
private sector by the Wagner Act in 1935. It remained for Executive Order
10988 of 1962 to do the same for the Federal service.
While Executive Order 10988 did not bring unions on to the Federal scene,
it did much to enhance their status and promote their growth; neither did it
establish for the first time the right of Federal employees to join or not join a
labor organization. This right was first established in law for postal employees.
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following union-restricting action by President Theodore Roosevelt and Presi-
dent Taft, by the Lloyd-LaFollette Act of 1912. This law, which is now incor-
porated in Title 5 of the U.S. Code, provided in pertinent part as follows:
"(.c) Membership in any society, association, club, or other form of organiza-
tion of postal employees not affiliated wildi any outside organization imposing
and obligation or duty upon them to engage in any strike, or proposing to assist
them in any strike, against the United States, having for its objects among
other things, improvements in the condition of labor of its members, including
hours of labor and compensation therefor and leave of absence by any person
or groups of persons in said postal service, or the presenting by any such
person or groups of persons of any grievance or grievances to the Congress
or any Member thereof shall not constitute Or be cause for reduction in rank
or compensation or removal of such person or groups of persons from said
service.
"(d) The right of persons employed in the,civil service of the United States,
either individually or collectively, to petition Congress, or any Member thereof,
or to furnish information to either House of Congress, or to any committee or
norther thereof, shall not be denied or interfered with."
That Act has remained, except for the laws barring strikes, the only signifi-
cant Federal statute on union-management relations with broad application to
the Federal service. The Postal Reorganization Act of 1970, P.L. 91-375, appli-
cable to the new U.S. Postal Service only, but of great significance to the entire
Federal service, provided a statutory basis for collective bargaining in the
Postal Service.
The hi-lateral approach to the formulation and implementation of policies
and procedures affecting the working life of Federal employees varied greatly
among Federal agencies. Some had, like the Tennessee Valley Authority and
Bonneville Power Administration, developed !, comprehensive programs, others
had none at all. By the beginning of the 1900'a it had been generally recognized
that a government-wide policy should be developed in order to provide for
uniform, orderly and constructive relationships between labor organizations
and management officials.
After his inauguration in 1961, President kennedy appointed a Presidential
Task Force of top-level Government officials, with then Secretary of Labor
Arthur J. Goldberg, as Chairman, and then Civil Service Commission Chairman
3obn W. Macy, Jr., as vice-chairman. The Task Force, following a thorough
review and hearings on labor relations, made its report and recommendations
to the President in November 1961. These recommendations were accepted and
were promulgated in January 1901 as Executive Order 10988. A Government-
wide labor relations program was thus established.
The first generation Executive order
Executive Order lOPliS was primarily designed as a " start up" program for
collective bargaining in the Federal Service. It established a basic pattern for
union-management dealings, and contained provisions permitting the continued
development of union-management relationships that had been established, and
that had proven to be effective. The Executive order, entitled, at that time,
"Employee-Management Cooperation in the Federal Service", was basic both
in its policy approach and its system structuring. It incorporated the following:
The right of Federal employees to join Or to refrain from joining an employee
organization was reaffirmed. On the exercise of this right by employees, Federal
managers were to be neutral. Federal managers were to demonstrate an
affirmative willingness to enter Into a collective bargaining relationship with
the unions, once the employees had chosen their representatives.
There was a minimum adverse impact on organizations then in existence,
resulting from a three-tiered level of recognition based upon the strength of
organization rept esen ta ion. (Informal, fern ial and exclusive.)
The riOit of management to have limited dealings with veterans, religious
and social organizations was preserved.
Merit principles were retained.
Thronghout the Order, there was recognition of the differences between the
private and public sectors.
Consultation and negotiation, according to level of recognition was mandated.
Advisory arbitration was permissible for settlement of disputes over the
titerpreta don or application of agreement language, and over disputes involv-
ing bargaining unit determination.
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Non-veteran employees were granted the same rights to appeal in adverse
action cases to those provided veterans preference eligibles under 'Section 14 of
the Veterans Preference Act as amended.
A bar was placed on the negotiation of a union security arrangement. How-
ever, a measure of union security was introduced later with provision by the
Civil Service Commission for union dues withholding. (Application of this
recommendation had to be delayed pending clarification of statutory authority
for such arrangements.)
Responsibility for implementation of the program was vested in the head of
each department and agency, with the Civil Service Commission given a leader-
ship role in providing guidance, management training, and program evaluation,
and the Department of Labor was assigned responsibility to assist in the reso-
lution of representation disputes.
Technical services required to implement the order were to be provided by
existing agencies.
The unions were reasonably satisfied with Executive Order 10988 at first,
calling it a "Magna Carta". The agencies were generally satisfied as well. The
first generation Order served its purpose well in providing a bridge between
what had been a completely unstructured Federal program and the developffients
that followed. The unions existing at the time were not only able, by and large,
to retain their existence and identity, but also to flourish.
As the program evolved, unions that at first had attained informal and formal
recognition, had reasonable opportunity to expand to the point of eligibility for
exclusive recognition.
Starting out under a very basic program, the parties had greater opportunity
to get to know each other and to establish relationships relatively free of
adversary confrontation. Reported union membership soared resulting from
both the new status acquired from the Executive Order, and the stability and
union security brought about by the adoption of membership dues withholding
from the pay rolls of employees choosing this method of dues payment.
The program developed under the Order, with its affirmative approach to
collective bargaining by management, afforded unions a green pasture in which
they were free to grow in status, membership strength, and employee repre-
sentation. And grow they did, at a rate far outstripping the union movement
in the private sector, to the point where union involvement in the Federal sector
is, proportionately, more than twice that in private industry.
For the first few years following the issuance of Executive Order 10988,
statistics on Federal union growth was preponderantly among postal workers,
who had been well organized even before the Order. However, by mid 1963,
180,000 non-postal workers were in exclusive bargaining units; by 1965, the
number had risen to 320,000; and by 1967, 630,000 non-postal Federal employees
were exclusively represented by unions, 339,000 blue-collar (Wage Board) and
291,000 salaried white collar (GS) employees. Combined, they represented 29
percent of all non-postal employees of the Executive branch of the Federal
government. (Today over one million non-postal executive branch employees
are represented by unions.)
Success, and some problems under E.O. 10988, led to demand for change by
both unions and management. In response, an Interagency Review Committee
was established by President Johnson in 1969, under the leadership of the then
Secretary of Labor W. Willard Wirtz and the then Chairman of the Civil
Service Commission, John W. Macy, Jr. A draft report was prepared suggesting
program changes, but was not adopted as it came at the time of the close of
the Johnson Administration.
President Nixon, recognizing the need for Executive Order reform, appointed
an Interagency Committee to review and evaluate the program. The findings
and recommendations of the 1967 Review Committee were considered and re-
examined and to a considerable extent reaffirmed by a new "Interagency
Committee on Federal Labor-Management Relations" established in 1969 by
President Richard Nixon shortly after his assuming office. Robert E. Hampton,
the new Civil Service Commission Chairman, was named Chairman of the Inter-
agency Committee, and serving with him were George P. Shultz, then Secretary
of Labor, and Melvin R. Laird, then Secretary of Defense, Winton M. Blount,
then Postmaster General, and Robert Mayo, then Director, Bureau of the
Budget.
Based on the Committee's recommendations, the President, on October 29,
1969, issued Executive Order 11491. The new Order adjusted the Federal labor-
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management relations program to meet the problems that had been identified,
to respond, within reason to objections that had been voiced, and to provide
an outlet for the greater sophistication and maturity that had developed under
the Kennedy order.
The second generation Executive order
On January .1, 1970, in principal part, Executive Order 11491 became effective,
setting the stage for a new era in labor relations for unions and management
in the Federal Service. The new Order maintained the basic principles and
objectives of labor-management relations in ?the Federal service established
back in 1962 by Executive Order 10988, but procedures for its administration
were evolutionary in nature. It preserved much of the system of relationships
that had developed between unions and Federal agencies; yet it contained
dramatic and farreaching changes in the overall labor relations structure.
The key changes were:
The establishment of a central body, the Federal Labor Relations Council, to
provide overall direction to the program and to make final decisions on disputed
matters;
The provision of third-party processes for resolving representation and unfair
labor practice disputes assigned to the Assistant Secretary of Labor for Labor-
Management Relations;
The utilization of the Federal Mediation and ? Conciliation Service to assist in
the resolution of negotiation impasses' ? ?
The establishment of the Federal Service Impasse Panel as the ultimate
authority for the resolution of impasses;
The elimination of multiple levels of recognition.
Other major provisions related to extenshm Of coverage; exclusion of certain
categories of security end agency internal audit personnel; special provisions
on recognition for guards and labor relations personnel; elimination of the
prohibition on negotiations; binding arbitration of employee grievances and
disputes arising under the terms of an agreement; prohibition on the use of
official time for negotiation of an agreement; changes in procedures for certifi-
cation of representatives; strengthening standards of conduct and union
reporting requirements revisions to the code of fair labor practices; changes
in the scope of negotiation and agreement approval provisions; and the incor-
poration of procedures for the resolution of negotiability disputes.
Basically,what the new Order did was provide third-party machinery for the
resolution of disputes and establish a central authority to set major policy.
In August 1970 the Postal Reorganization Act, PL 91-375 became law. As a
result of provisions in that law, the U.S. Postal Service and its employees were
exempted from the administrative procedures of the Executive Order and placed
within the jurisdiction of the National Labor Relations Board.
The third (and present) generation Executive Order
At the time President Nixon signed Executive Order 11491 in October 1969,
he directed that. a review and assessment of operations under the Order be made
after one year. The Federal Labor Relations Council initiated such a review
with public hearings ht ld on October 1970. Several Members of Congress, top
union officials, and key Government officials testified at the hearings or sub-
mitted written remarks for the record.
Based upon proposals received from the Council, the President issued Execu-
tive Order 11616, amending his earlier Executive Order 11491. It was signed on
August 26, 1971 and became effective 90 days later (November 24, 1971). The
Council, in making its Report and Recommendations to the President, empha-
sized that the Order had greatly enhanced the climate for collective bargaining
in the Federal service.
The major amendmerts to Executive Order 11491 were limited in number,
but were none-the-less important and significant to program improvement. The
changed were directed to increasing the scope of bargaining, perfecting the
exclusivity of certified bargaining units and broadening the use of third-party
machinery.
Major changes included:
The addition of "Professional" to the list of lawful associations, not qualified
as labor organizations, with which an agency may have limited dealings not
inconsistent with the rights of recognized labor organizations.
'The deletion of that provision of E.O. 11491 that precluded the recognition of
an organization that "asserts the right to strike" was deleted based on a
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Federal District Court decision involving First Amendment impact on Section
7311, Title 5, U.S.C.
A requirement that all agreements contain a grievance procedure as the
exclusive procedure available to the parties and the employees in the units for
disputes over the application and interpretation of the agreement.
Negotiated grievance procedures are subject to the following:
An employee's grievance on a matter not covered in the agreement may be
presented under any procedure available for the purpose but not under the
negotiated procedure.
Matters for which statutory appeals procedures exist are excluded from
processing under negotiated grievance procedures.
Complaints filed under the negotiated grievance procedure can have repre-
sentation only by the exclusive representative.
Negotiated procedures may include arbitration (advisory or binding) limited
to interpretation or application of the agreement, which may be invoked only
by the agency or the exclusive representative.
The Assistant Secretary of Labor for Labor-Management Relations is author-
ized to resolve disputes on questions whether a grievance is subject to the
negotiated grievance procedure, or whether a grievance under the procedure is
subject to arbitration.
The restructuring of Section 19(d) to provide that the processing of unfair
labor practice complaints is within the exclusive jurisdiction of the Assistant
Secretary of Labor for Labor-Management Relations subject to appeal to the
Federal Labor Relations Council.
Furthermore the amended Order provides that:
Decisions under grievance or appeals procedures shall not be construed as
unfair labor practice decisions under the order nor as precedents for such
decisions.
When a grievance includes an alleged unfair labor practice, it is optional with
the aggrieved party whether to seek redress under the grievance procedure or
th unfair labor practice procedure. Ile may not use both procedures.
The modification of Section 20 to eliminate the absolute prohibition of official
time for employees when engaged as labor organization representatives in
negotiation with agency management. The parties may negotiate on the issues
within specified official time limitations.
Elimination of the provision that the costs of dues deductions must be charged
to the labor organization. This matter is left to negotiation between the parties.
A revision of Section 25 to provide that the Civil Service Commission in
conjunction with the Office of Management and Budget shall establish and
maintain a program of policy guidance to agencies on Federal labor-management
relations and periodically review the implementation of these policies.
On December 17, 1971, the President made a further change in the program;
Executive Order 11636 was issued, placing the Foreign Service agencies under
a separate labor-management relations system to take into account the unique
conditions of work in the Foreign Service.
This was how the Executive order system for Federal labor relations which
exists today evolved?with its tested principles and objectives and mechanisms
and procedures, including third parties to assist and guide labor and manage-
ment in peacefully and constructively formulating and implementing personnel
policies and practices that meet their respective and mutual needs and working
out differences which inevitably occur in the context of union-management
relationships.
The state of the program today
Federal union-management relations, at the present time, can be characterized
as being in a state of maneuver, of testing by the parties of their inherent
strength and of the boundaries of the system. The factors relevant to this are:
the evolving body of rules based on third-party decisions, with many important
areas yet undefined; a slowing in the rate of union representation gains as the
saturation point is approached; and indications that there is less awkwardness
and indecision and more maturity shown by both parties at the bargaining table.
Third parties and mediation.?A most significant feature of the program is the
provision for third-party involvement and assistance in addition to services
provided by the Federal Mediation and Conciliation Service. Information state-
ments on the roles and work activities of the Federal Labor Relations Council,
the Federal Service Impasses Panel, and the Assistant Secretary of Labor for
Labor-Management Relations are contained in Attachment "3", "4", and "5". Also
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included for your reference in Attachment "2" is a chart showing the relation-
ship of the authorities involved in Executive Order 11491.
As the principal authority in the administration and interpretation of policy
under Executive Order 11491, the three-member Federal Labor Relations Council
has a dual role: It decides major policy issues and may consider appeals from
decisions of the Assistant Secretary, appeals on negotiability issues, exceptions
to arbitration awards, ard other matters which it deems necessary to effectuate
the purposes of the Order. The Council's appellate activity has increased dra-
matically in its attempt to keep pace with an ever-increasing workload. Thus,
iii calendar year 1973, it closed nearly three times as many appeals cases as in
the previous year.
The number of appeals filed has also grown. In the past year, there was a
t,2 percent rise over similar filings in calendar year 1972, and in the first 3
months of this year, a 41 percent increase was recorded over the highest quarter
(luring 1973. It is expected that this trend will continue.
While the number of negotiability appeals filed appears to have leveled off,
due probably to the large number of determinations made by the Council during
the past year, exceptions to arbitration awards and appeals from decisions of
he Assistant Secretary have increased. As to the arbitration cases, which showed
the greatest increase in Council filings, the upward trend can be expected to
continue as the number of bargaining agreements in the Federal sector grows
and as the sophistication of the parties increases. Greater public awareness of
the Council's appellate mle may account, in part, for the increase in the number
of appeals filed from decisions of the Assistant Secretary.
Tile Federal Service Impasses Panel is composed of seven individuals, ap-
pointed by the President, whose function is to assist Federal agencies and labor
organizations in the resolution of negotiation impasses. The number of eases
filed has grown each year from 16 In calendar year 1970 to 30 in 1973. The fact
that as of April 15, 1974, 9 cases have already been filed would indicate that the
case intake will continue to grow. Of the 105 cases filed with the Panel as of
mid-April 1974, 92 have been closed, and 13 are pending. Only 20 disputes, or
19 percent of those cases closed, required a fact finding hearing. Panel Report
and Recommendation for settlement following such hearing was issued in 18
of these cases, and of this number, 16 were accented in full by the parties, and
the Panel's recommendations formed the basis for the settlement in the other
eases. Of the remaining 72 cases, most were settled informally.
The current trend in impasse issues appears to be away from those which
were most prevalent in the past (official time for union negotiations, advisory
versus binding arbitration, union representation concerning promotions and
awards, and scheduling of work) toward other issues (merit promotions, details
and temporary promotions, incorporation of "just and sufficient" cause as a
criterion for disciplinary actions, and contract language in which disputes over
the interpretation of agercy regulations, which have been cited in the agreement,
would be subject to the negotiated grivance and arbitration agreement).
In his role under the Executive Order, the Assistant Secretary of Labor for
:Labor-Management Relations decides questions relating to the appropriate unit
for collective bargaining, supervises representation elections and certifies their
results, decides unfair labor practice complaints, and in so doing may issue
cease and desist orders as well as require such affirmative action as may be
deemed necessary to remedy violations found and as he considers appropriate to
effectuate the policies of the Order, resolves grievability and arbitrability dis-
putes and administers standards of conduct for unions.
The Assistant Secretary of Labor for Labor-Management Relations (A/SLMR)
has closed 4,385 of his 4,962 cases of all types?representation, unfair labor
practice, standards of conduct, grievability/atbitrability?while his Labor-
Management Servicles Administration has supervised 2,063 representation elec-
t nms. (Attachment "5" contains a summary of A/SLMR workload data through
March 1974.) Year-to-year comparisons in the number of elections supervised
reflect the recent leveling off in union organizing under the Executive Order.
And although the number of unfair-labor-practice cases had shown a steady
increase from 1971 through 1973, projections Wised on the first quarter of
1974 indicate there may be fewer such cases this year than last.
The Federal Mediation and Conciliation Service makes available to assist
parties negotiating agremients under Executive Order 11491 the use of its
mediation services and also furnishes parties upon request panels of arbitrators
from its roster of qualified arbitrators, which it maintains.
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The growing hotly of preeedent.?A substantial body of administrative deci-
sions, providing precedents for the program is being built on representation,
conduct and unfair labor practice case decisions of the Assistant Secretary
for Labor-Management Relations; negotiability and policy decisions of the
Federal Labor Relations Council; fact finding and recommendations on im-
passes of the Impasses Panel; and grievance arbitration awards. Many of the
decisions, built on particular case circumstances, are being generalized as doc-
trine and direction. The decisions are helpful and necessary, but program direc-
tion must also continue to come from the program authorities otherwise a
fairly flexible program can be converted into a formal, legalistic structure.
The extent of union recognition.?There has been a slowing down in the
number of units being certified and recognized._ The continued rise in union
representation strength of the past 11 years began to taper off in 1972 and
continued in 1973. This leveling off can be explained by the fact that almost all
the eligible blue-collar workers (84 percent) and about one-half (47 percent)
of the white-collar workers are now organized. It would appear that unions
have shifted emphasis to negotiating agreements and consolidating their recent
gains in representation. Overall, the unions now have bargaining rights for over
one million (56 percent) of the close to two million non-postal Federal employees.
These data and many of the statistics that follow were derived from the
annual survey of union recognition in the Federal service conducted by the
Commission's Office of Labor-Management Relations.
The most recent survey was as of November 1973. A comprehensive summary
of the results of the survey is contained in Attachment "1".
Included in the major findings of the 1973 survey of union recognition were:
A total of 1,086,361 (56 percent) of non-postal Federal employees are repre-
sented by unions, compared to 1,082,587 (55 percent) in 1972. Under Executive
Order 11491, which governs the labor relations program, employees have the
right to join, or not join, the union. Thus, the number of employees belonging to
unions is less than the number covered by exclusive recognition. (The Commis-
sion does not maintain records on employee union membership.)
Blue-collar coverage declined in absolute numbers for the second consecutive
year (-22,134). However, the decline in the number of blue-collar employees
in exclusive units was exceeded by the total decreas in blue-collar employment;
as a net result, exclusive recognition rose I percent in that segment of the
Federal work force. Of all blue-collar employees, 84 percent (404,955) were
represented in exclusive units as of November 1973.
White-collar coverage, on the other hand, showed a slight increase both in
number covered (a total of 681,406) and percent covered (47 percent). The
increase between 1972 and 1973 was 25,908 (2 percent).
Representation among major unions
American Federation of Government Employees (AFL-CIO) increased its
representation by 3,578?to 624,322?in the 12-month period ending November
1973, As of that time, 75 percent of employees represented by AFGE were
covered by negotiated agreements.
The National Federation of Federal Employees represented 118,139, an in-
crease of 3,719, and 77 percent of those employees were covered by agreements.
National Treasury Employees Union (formerly, NAIRE), which has repre-
sented only white-collar employees, added 3,870 to its total representation. It
brought to 50,392 the number of employees represented?of which 96 percent
were covered by agreements as of November 1973. Unions showing gains appear
to have benefited from the over-all expansion in white-collar employment.
Three unions, whose blue-collar representation approaches or surpasses their
white-collar representation, all showed continued declines in number of em-
ployees under exclusive recognition: National Association of Government Em-
ployees from 82,187 to 75,953; Metal Trades Council (AFL-CIO) from 57,038 to
52,585; International Association of Machinists (AFL-CIO) from 30,585 to
29,552. Losses in representation by NAGE, MTC, and IAM reflect continued
cutbacks in total blue-collar employment.
The bargaining unit structure.?The fragmentation of the bargaining unit
structure which has affected and conditioned the level and substance of Federal
union-management dealings remains a problem as indicated by the table below
(additional discussion is contained in Attachment "9") which reveals that 53
percent of the units contain less than 100 employees.
As of November 1972, exclusive units numbered 3,392, by November 1973
there were 3,486. The average unit contained 312 employees in 1973; in 1972
the average was 319.
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The distribution of Federal recognition units by size was determined by a
special survey conducted by the Office of Labor-Management Relations as of
April 1974:
Number of employees
Number of units
Percent of total'
number of units
1 to 10
280
a
11 to 49
996
28
50 to 99
610
17
100 to 499
1,067
31
560 to 999
306
9-
1,000 and over
234
7
Total
3,493
100
Negotiating agreements.?Exclusive recognition carries with it the right to
negotiate with agency management and this may lead to an agreement. Our
annual survey of 1973 revealed an unprecedented acceleration in the negotiation.
of agreements with employing agencies. For example:
Agreements have been negotiated in 335 additional recognition units, an in-
crease of 17 percent over 1972.
Overall, 2,2(14 or 05 percent of all units are covered by 1,904 agreements. (Sense-
so-called multi.-unit agreements cover more than one recognition.)
The number of employees covered by agreements has likewise grown 11 per-
cent to a new high of 837,410, more than 84,000 above last year and encom-
passing 77 percent of all employees under exclusive recognition. Of the entire-
non-postal Federal work force, 43 percent were in recognition units covered by
negotiated agreements as of November 1973.
Following is a partial listing of what's in these negotiated agreements?their
frequency SIM coverw?extracted from the Commission's LAIRS system.
(Additional discussion s provided in Attachment "9.") These illustrate the
very broad range and impact of provisions that already have been negotiated
tinder the Executive Order.
Subject
Number of
agreements
Number of
employees covered
Promotion policy
Joint Promotion Committee
Joint Performance Review Committee.
Union member(s) on Promotion Panel
Union participation (wage survey)
1, 579
112
92
197
512
717, 912
62,019
44,513
83, 873.
246, 087
Joint EEO Committee
436
294.773
Physical examinations
156
104, 583
Drug abuse clause
61
50,350
Alcoholism clause
82
65, 189.
Grievance procedure_
1,989
820, 104
Discipline policy
1,300
509,274
Pay policy clause
225
118,922
Call-in allowance.
543
246, 654
Environmental pay
Seniority
335
481
189, 959.
251,391
Union review (RIF)
300
184,006
Technological displacement
236
139, 416
Safety provision
1, 521
651, 637
Safety clothing
696
350, 091
Safety equipment
744
370, 566
Jowl Safety Committee
886
441, 923
Overtime clause
1,579
711,923
Compensatory time
498
229, 075
Call-in limitation_
150
55,640
ti oars guarantee
383
172,920
Excused time (training)
Cafeteria services
Parking
Work equipment
Tools
Joint Suggestion/Awards Committee
359
190
436
326
239
367
217,271
97, 364
318, 511
153,871
13.6, 668
291,034
Leave (hold union office)
727
382,367
Paid-time allowances (stewards)
668
308,062
time ct space (union)
1, 179
578, 597
Use of telephone (union)
299
260, 597
Mail privilege (union)
311
114,255
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How the negotiating function is working.?Labor and management represent-
atives are learning to work with each other in a productive bilateral atmo-
sphere, generally devoid of major disagreements or long delays in the negotiat-
ing process. This is the profile that emerges from a comprehensive survey of
more than 3,000 exclusive bargaining units conducted by the Civil Service
Commission in conjunction with the Office of Management and Budget. Unions
and agencies were surveyed during a six-month period ending March 15, 1974.
Covering nearly nine-tenths of recorded exclusive units?including virtually all
units under agreements?it furnishes an overview of how the bargaining func-
tion is working under the Executive Order.
This survey was conducted at the request of the Federal Labor Relations
Council and the data is being used by the Council in its current general review
of the Federal labor-relations program. Attachment "7" provides an overview
of the report on the survey. For example:
While the parties generally have taken much longer to get to the table to .
negotiate an initial basic agreement than is customary in the private sector,
once they get there they reach final accord in time periods somewhat com-
parable to their private-sector counterparts. There is strong indication, how-
ever, that the existence of a prior dues-withholding agreement considerably
extends the period between certification or recognition and request for nego-
tiations.
More important, they are learning and managing to settle their own problems
across the table in their own way, and mostly on their own. With the exception
of mediation (344 cases), third parties were involved in only about 80 bargain-
ing situations;' they were not resorted to in the remaining 3,000-plus situations.
The survey also tends to show that while official time for union negotiators
has been a troublesome issue it was not widespread statistically, and once the
parties reached agreement over total amount the union used less than that
allotted.
On the negative side, the agency approval process tended to use as much or
more time than the parties used at the table to reach agreement. In almost
20 percent of the cases, special problems or circumstances were cited in the
approval process.
Climate of relationships under the present system.?In May 1973, the Com-
mission's Office of Labor-Management Relations conducted a sample survey
of the climate of labor-management relations activity at Federal field installa-
tions throughout the country?with similar results. Slightly over 10% of all
field activities were included in the survey. Samples were taken of those activi-
ties that in the judgment of our field staff are representative of the overall
perspective in their assigned areas.
Following is a consensus of our findings (a more detailed discussion is
contained in Attachment "6") :
A good case was made for the stability of existing relationships.
Problems in negotiation delays are improving as the parties gain maturity
and become more proficient in negotiation techniques.
Delays in headquarters approval and union ratification of agreements con-
tinue to exist. Streamlining methods are improving this situation.
More meaningful and substantive agreements are being negotiated as time
goes on. Greater understanding of the collective bargaining process is begin-
ning to pay off in better relationships.
Unfair labor practice charges had increased in volume. This is not bad in
itself. The orderly processing of such matters is helpful to the parties in their
settlement of disputes. There was some evidence that a number of frivolous
charges were filed. Unions were testing the parameters of the system.
Disputes over the use of official time for union representatives in negotia-
tions were found to be not as wide spread as had been thought. This was also
true of the fee for dues withholding. In over 85% of all negotiation activity
the parties had settled for the maximum of the options permitted for nego-
tiations "on the clock," and for the standard two cent fee that had existed
prior to amendment of the Order.
Few real problems had surfaced in the field over bargaining unit frogmen-
fa tion. The multi-unit agreement concept has provided one solution to problems
that had existed.
It was difficult to obtain a good "fix" on problems that might exist in nego-
tiability because of the imposition of agency headquarters regulations. As was
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48
to be expected, the opinions of union and management representatives varied
Ill this regard.
Administration of agreements is working well in a majority of the activities
sampled.
In large measure, employee problems are being solved through constructive
cooperation of the parties.
The largest problem surfaced as a result of this survey is that many first-
tine supervisors do not relate to their management roles.
Most activities consider that third-party involvement has facilitated their
dealings with unions.
There are, in fact, signs of growing maturity on both sides of the bargaining
table. Reports from Commission field evaluations indicate that management
is gearing up more effectively than in the past to deal with the labor relations
process and that there is more expertise at the bargaining table. There is
little evidence of serious conflicts?to the point of militant job actions?between
the parties. Agency managers have found their counterparts on the union side
more skilled and program-wise.
The overall picture, of course, is not uniform; there being great variations
from place to place. While there is a greater program understanding, and a
more surface acceptance of bilateralism, much' yet needs to be done to build
the management team and its effectiveness at the bargaining table and in the
implementation of agreements.
In addition, there are recent developments that could materially affect
the substance of agreements. Included are decisions by the Commission to revise
certain regulations in order to remove Federal Personnel Manual impediments
to the scope of bargaining; decisions by the Federal Labor Relations Council
on negotiability (involving tours of duty, scheduling of shifts, promotion prac-
tices, setting academic pay) ; and decisions by the Assistant Secretary of Labor
for Labor-Management Relations on the obligation to bargain during the life
of an agreement. It is too early at this stage ? to assess the impact of these
decisions.
Problems, issues, and general review of the program
Although the existing labor-management relations system is working reason-
ably well, it is of course, not without: friction and problems. Examples of ma-
jor problems or potential problems, issues, and areas of concern are listed
below.
The impact of higher-level agency regulations on what may be bargainable
at the subordinate levels, where the bulk of recognitions are and most of the
negotiations take place, is a critical issue; it is probably the most fundamental
issue affecting the program today.
Agencies have the authority to regulate, but it is evident from the report
loading to the issuance of E.O. 11491 that such authority should not be exercised
in a manner to frustrate the obligation to bargain. The August 1969 report
slated "except where negotiations are conducted at the national level, agencies
should increase, where practicable, delegations of authority on personnel policy
matters to local managers to permit a wider scope of negotiation." The report
also states that: "Agencies should not issue overprescriptive regulations, and
should consider exceptions from agency regulations on specific items where both
parties request an exception and the agency considers the exception feasible."
Some unions have strongly expressed distrust of agency use of its regulatory
authority, alleging that such authority was used to throttle meaningful nego-
tiation at the local level. The unions want lhe locus of authority to conform
to the level of negotiation or vice versa. This is a difficult problem, but legis-
lation provides no easier means of resolution than does working with the Exec-
utive Order.
While new provisions of the Order have slowed down fragmentation, they
have done little to consolidate existing units or to bring about better matching
of locus of bargaining with locus of authority. This has produced great friction
a!: the policy-making levels within uni"ons, particularly those with the greater
numerical strength but limited negotiations at the higher rule-making level
of agencies. (As noted in the CSC field survey, however, this did not emerge as
a major issue at the field activity level.) Nevertheless, there is a need to con-
sidr what can be done to alleviate this problems, particularly since permitting
local negotiations to override higher level regulations presents additional con-
This, too, can be handled administratively.
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Delays in approval of agreements by agency headquarters. Greater delegations
of authority and expedited procedures by agencies are now resulting in more
efficient and timely handling.
The definition of and the role of the supervisor continues to be an issue.
Is a supervisor entitled to representation in an agency grievance or appeals
procedure by a person who represents the union with exclusive recognition of
employees in the unit? There is an apparent need for clarification here.
Is the definition of a supervisor, particularly in the white-collar area, pegged
too low? Supervisors with limited authority have difficulty identifying with
the management team. In this regard we have seen some improvement in efforts
to build the management team, but much remains to be done.
The unresolved legal issue on the authority to make employees whole be-
cause of losses incurred due to agreement violations has damaged the credibility
of the arbitration process. The answer is to provide legal authority for back
pay and other make-whole payments to employees who have sustained losses
because of agency violations of negotiated agreements. The Commission is
working on proposals to be included in its legislative program (a) to authorize
payments and retroactive personnel actions arising from agency violation of
law, order, or regulations, and (b) to permit negotiation of grievance proce-
dures which may include binding arbitration on all disciplinary actions, includ-
ing adverse actions.
The investigation and prosecution of unfair labor practices.
In addition to these major concerns, certain unions have proposed changes
that would enlarge the scope of negotiations, establish a full-time central author-
ity, provide access to courts, and include additional union security.
- These items and the matter of "make-whole" remedies and negotiation of
binding arbitration of adverse actions, would, of course, require legislation.
However, the balance of the issues just noted and others are currently being
addressed in the general review (started last September) of the Federal sector
labor-management relations program being conducted by the Federal Labor
Relations Council. Unions, agencies, and other interested parties were asked
to suggest issues for consideration, including possible alternative courses of
action. Subsequently, the Council announced the areas to receive the central
focus of the review, as indicated in Attachment "3." This was followed by the
parties submitting position papers and hearings on April 8-10, 1974, to seek
amplification of the written submissions and pursue proposals included in the
written submissions.
Following a careful review and analysis of the transcript and the parties'
written submissions, the Council will prepare a report and whatever recommen-
dations it deems needed for submission to the President.
THE TOTAL ENVIRONMENT: RESPONSIVENESS WITHIN AND OUTSIDE EXECUTIVE ORDER-
CENTRAL PERSONNEL AUTHORITY, INTEGRATING LABOR RELATIONS
Union-management relationships in the Federal service extend well beyond
the formalized labor-management relations structure, they exist within the
context of total governmental mechanisms for personnel matters and employee
involvement. This is "bilateralism," the Federal form of union-management deal-
ings?extending to the totality of union-management relations, transcending the
growing formal scope of bargaining in the Federal service.
Responsiveness within and outside Executive order
The Executive Order realistically cannot be viewed as the alpha and omega
of union and management rights and responsibilities insofar as establishing
personnel policies, practices, and working conditions affecting employees on the
job. While the Order is the basic part of the totaLlfederal approach to labor-
management relations, there are other structures or systems established to
provide meaningful union input into determining policies and practices affect-
ing them and benefits accruing to them.
For example, recent laws have established permanent vehicles for direct
union involvement in white-collar and blue-collar pay setting. The Pay Compara-
bility Act of 1970 established a Federal Employees Pay Council consisting of
five union representatives to deal with the President's agent on the whole
process by which Federal white-collar pay is adjusted each year to keep it
comparable with private enterprise pay. This is not collective bargaining per se,
but those involved in the process are aware it is a significant step forward
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in meaningful consultation. The Comparability: Act also provided an Advisory
committee on Federal Pay, composed of three experts from outside the Gov-
eminent. The Advisory Committee meets with the President's agent and with
th unions and submits an independent report to the President on the workings
of the comparability process.
Likewise, PL 92-392, the so-called Blue-Collar Wage Bill of 1972 establishes
a new Prevailing Rate Advisory Committee made up of five union and five
gency representatives chaired by an appointee with no other position or re-
sdonsibilities in government. Tins replaces the Coordinated Federal Wage Sys-
tern and National Wage Policy Committee which had provided a union voice
in pay setting for several years prior to enactment of PL 92-392.
These are special arrangements to deal with the special problems of an
Executive branch comprised of many agencies, diverse jobs and different, as
well as competing, unions. Both Council and the Committee have specific and
direct tie-ins to the labor relations program under Executive Order 11491 since
1111lial membership on them is keyed to the extent of exclusive recognition. This
0
recognition which covers more than one million employees and membership
and dues payments from an estimated half or, more of that number, did not
Verne about without a positive approach to unions and collective bargaining on
the part of the Executive branch as expressed in Presidential Executive Orders.
Other examples of union involvement are the Health Benefits and Life Insur-
4/11C0 Committees and the Federal Safety Advisory Council. Also, the Commis-
sion has long acknowledged the need for employee input, through their repre-
sentatives, and regularly and extensively has, On its own initiative, consulted
unions in the development of government-wide personnel
in this total context, we do not see the Federal approach of bilateralism as
narrow, one-sided, or unproductive. We view bilateralism as a constructive force
in decision-making, requiring better managers and more accountable managers,
and in turn making for better personnel management. And the results we have
catalogued have been accomplished within a merit system, and without damage
to merit principles. Procedures and practices have been determined bilaterally,
but merit principles have remained controlling. What is needed to improve this
form of bilateralism can not be provided by merely enacting a law, but instead
I 'trough understanding, applying and improving this new system of personnel
management.
central personnel authority, integrating labor relations
As the central personnel agency of and center ,for labor relations effort in the
Executive branch and administrator of the merit system principles, the Commis-
sion has a broad range of responsibilities with respect to the statutory and ad-
ministrative structure of the Federal personnel system. Since labor relations is
an integral part of the Federal personnel system, it is in the public interest that
the Government through the Commission have the capability to develop and
administer, where appropriate, personnel policies and regulations designed to
achieve the necessary degree of uniformity and equity in regard to matters com-
mon to employees Government-wide or in more than one agency. This is from the
standpoint of costs as well as equal treatment for employees similarly situated.
trader Executive Order 11491, as amended, the President assigned to the Civil
service Commission a broad range of responsibilities.
Policy guidanee.?In conjunction with the Office of Management and Budget,
the Commission established and maintains a program for the policy guidance
of agencies concerning the Federal labor relations program.
Technical advice and training.?The Commission provides technical advice
and training for agencies and management officials.
Program review.--The Commission continuously reviews the program to
assure adherence to its provisions and merit system requirements. The Commis-
sion also from time to time reports to the Federal Labor Relations Council on
the Ante of the program and makes recommendations for its improvements.
Information.?The Commission, in conjunction with the Department of Labor,
develops programs for collection and dissemination of information to agencies,
labor organizations and the public.
Third-party involvement?The Commission Chairman has designated the
Vice-Chairman of the Commission to assume duties of the Assistant Secretary
or Labor when the Department of Labor is a party in matters involving unit
determinations, elections, national consultation rights, unfair labor practices
and Standards of Conduct cases.
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Dues tvithholding.?The Commission issues regulations governing dues with-
holding procedures with labor organizations and supervisory-management asso-
ciations.
Adverse action appeals.?The Commission prescribes regulations extending
to all employees in the competitive civil service rights identical in adverse
action cases to those provided preference eligibles under sections 75/1-7512
of Title 5 U.S.C.
Performing a vital role in the transition to bilateral labor-management rela-
tions, the Civil Service Commission has, for example:
Served as the focal point for policy direction and problem resolution before
E.O. 11491 established central authority and third-party machinery.
Established the Office of Labor-Management Relations (OLMR) in 1966 to
coordinate and direct CSC and agency-wide attention to changes in Federal
personnel management for dealing with the growing unionization of the Federal
workforce.
Recruited, trained and assigned Labor Relations Officers in all CSC Regional
offices to coordinate field attention to union-management relations.
Provided labor relations training for various levels of the management team
throughout the 1960s in the field as well as in Washington culminating with
establishment of the Labor Relations Training Center (LRTC) in Washington
in 1971. ?
Evaluated and reported on management performance of its labor relations
responsibilities.
Drafted and issued, in conjunction with OMB, and at the direction of the.
President in 1972, "Guidelines for the Management and Organization of Agency
Responsibilities Under the Federal Labor-Management Relations Program."
(See Attachment "8.")
Revised parts of the Federal Personnel Manual, opening up the possibility of
broadening the scope of bargaining between agencies and unions by the elimina-
tion of unnecessary regulations. (This is a continuing effort.)
Developed the Labor Agreement Information Retrieval System (LAIRS),
for the purpose of systematically analyzing, storing and retrieving the texts
of labor agreements negotiated in the Federal service. Through the application
of modern computer technology, supplemented by conventional microfilming
techniques, all extensive data base has been created by extracting from each
agreement 176 substantive elements of labor relations information. As of Febru-
ary 1, 1974, the LAIRS file contained statistics on 3,493 recognition units, of
which 2,422 are covered by negotiated agreements.
Rapid access to the data file is achieved by direct search through a keyboard
terminal located at the Civil .Service Commission. In addition, comprehensive
reports, both statistical and analytical, are generated periodically by specially
designed programs.
Complete and reliable Federal labor agreement information is now available
for the first time by virtue of this automated technique. Full operation of the
LAIRS system, on a trial basis, commenced on April 29, 1974. Information serv-
ices are now provided to Federal agencies, unions and the general public.
Access to the system, of course, is open to the Committee and its staff. (A
concise briefing session has been prepared and can be scheduled and presented
upon request.)
But this does not account for all of the Commission's heavy involvement in
labor-management relations; much of it is a function of the CSC's pay-setting,
personnel policy-making and related authorities in areas of immediate concern
to organized labor. Even beyond the broad responsibilities we perform under
the Executive Order, the Commission deals with labor organizations through
a variety of mechanisms?both formal and informal. On the formal side, as
noted above, unions sit with management on the Federal Prevailing Rate Ad-
visory Committee (on blue-collar pay), and participate on the Federal Employ-
ees Pay Council (on white-collar pay) and the Health Benefits and Life Insur-
ance Advisory Committees. In a less formal sphere the unions are consulted on
other benefits and terms we administer. Thus, the Civil Service Commission's
role in labor-management relations has developed into a combination of dual
approaches?one inside, the other outside the Executive Order framework. The
Commission deals bilaterally in these areas, under these permanent systems,
as only a centralized personnel agency?with its broad and comprehensive range
of authorities?can.
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TIIE PROPOSALS FOR CHANGE : DEFICINCIES OF MAJOR PROVISIONS
OF PENDING BILLS
At the same time the Federal labor relations program is undergoing a general
review for possible changes, Congress has before it the question of the need for
it legislated labor relations system. As part of this assessment, we have been
asked to comment on the various bills.
in general, we found these bills in conflict with the public interest and with
the unique characteristics of Federal employment. We believe that they are
unsound and would be disruptive to an existing, orderly labor-management
relationship. We should like to discuss in an overview fashion, our objections
to the major unacceptable features of the bills and their implications. In addi-
tion, for your consideration, Attachment "11" compares features of Executive
order 11491, as amended, and H.R. 13, H.R. 9784, and H.R. 10700.
Application/Coverage.?All Federal departments and agencies, excluding only
the Postal Service would be covered under H.R. 13 and 11.R. 9784. This is a
most serious failing as such broad-brush ceverage does not provide for special
problems and separate circumstances such as those applicable to supervisors,
managers, and guards; security agency employees; employees in competitive
positions in the Legislative and Judicial branches and the District of Columbia,
the Library of Congress, the Government Printing Office, and the Federal Reserve
System. Also, certain existing labor organizations could be excluded from
covers ge.
For example, features of these two bills would apply to the Federal Bureau
of investigation, the Central Intelligence Agency and other agencies, offices
and bureaus which have as a primary function intelligence, investigative or
security work, The authority of agency heads to exclude installations outside
the United States would also be revoked. And the bills would cover foreign
nationals.
Conflicts of interest are diregarded by the two bills in numerous ways. For
example, 11.R. 13 replaces the functional definition of supervisory and managerial
roles with artificial criteria of income level, span of control and scope of impact.
H.R. 9784 would include supervisory and non-supervisory personnel in the same
bargaining unit under certain circumstances. Such features would create un-
aceptable conflict-of-interest conditions. The lack of prohibition on the inclusion
of guards with non-guard employees presents another conflict-of-interest ques-
tion, especially in view of the allowance for strikes in labor disputes under H.R.
9184.
Certain labor organizations presently recognized as exclusive representatives
could be excluded from coverage under the two bills because of the definition
regarding their primary purpose and national or international stature or affilia-
tion. and from obtaining additional recognitions under the "primary purpose"
criterion of H.R. 10100.
A tlministration.--Under all three bills, powerful centralized bodies would be
established to administer the respective features. These central bodies would
be virtually independent and would supplant the key existing third-party agen-
cies authorized under the Executive Order program. With greater authority
coneentrated in fewer hands and with the enlarged scope of bargaining, espe-
cially under H.R. 13 and H.R. 9784, the bodies would probably have immense
impact on the Federal personnel program. Should such central mechanisms be
established, the experience and body of precedents developed over the years
should not be summarily rejected or ignored. '
Careful consideration needs to be given to the range of authority for policy
setting by a centralized body. For example, should such a body, without account-
ability, have power to commit elected officials to the major, unappropriated ex-
penditure of funds, or to matters affecting the mission of agencies? An agency
head's responsibility to manage in the accomplishment of assigned mission
needs to be carefully defined. To do otherwise, would be to divorce concern for
lire public interest from those officials held accountable by the electorate.
Recognition and representation.?Provisions in H.R. 13 would permit the
smallest unit to be certified as an appropriate bargaining unit, creating prolif-
erations of fragmented units. This is based upon a "community of interest" as
the single criterion for establishing appropriate bargaining units. Manage-
ment and the public, of course, also have an interest in the npact of unit
sl !Picture. The bill ignores (1) the effectiveness of dealings, and (2) the efficiency
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of agency operations?an essential part of Government responsibility to the
public. These additional criteria under the existing program by Executive Order
are intended to avoid excessive fragmentation of bargaining units, while pro-
moting units which are more directly linked to existing personnel authority.
Under all three bills, employees of the central bodies could be represented by
labor organizations, thereby becoming a party-at-interest in matters coming
before the central body as well as becoming involved in union-management
dealings with the central body. Such potential conflicts of interest definitely
are not in the public interest.
All three bills propose other means for determining exclusive recognition as
well as secret ballot elections. This is an issue currently before the Federal
Labor Relations Council.
Labor organizations could also obtain national exclusive recognition to the
detriment of any and all other recognized labor organizations, including the
abrogation of agreements with other labor organizations, according to provi-
sions in 11.R. 13. This would permit one labor organization to obtain a monop-
oly and create a situation where that labor organization alone could represent
all Government employees. This is contrary to the concept of the sanctity of
of agreements and stability of labor relations based on existing agreements.
It also permits by simple devices the establishment of a single, all-powerful
union of all Government employees to the exclusion of all others. This would
create tremendous potential for adverse impact on the public interest from
the vantages of equity, cost and disproportionate combinations of political and
collective-bargaining power.
There could be automatic National Consultation Rights for every local ex-
clusive representative, under H.R. 13. Such a device would be untenable. It
would require highly elaborate administrative coordination of every agency-level
personnel management policy, and a response in writing to justify virtually
every management policy.
Entitlements.?Agency shop arrangements are included in 11.11. 13 and H.R.
9784. This conflicts with the civil service concept that required membersship in
a labor organization or mandatory payment of equivalent fees as a condition
of Federal employment is completely inappropriate and in direct opposition to
merit principles, which base continued employment on ability to do the job as-
signed and which bar use of discriminatory measures in making personnel de-
cisions.
Also all three bills have provisions that grant, as a right, matters that custom-
arily are determined bilaterally. For example, H.R. 13 and H.R. 9784 mandate
that agencies withhold dues allotments to exclusive labor organizations, at no
cost under 11,11. 13; official time for employees representing labor organizations
under H.R. 13 and H.R. 0784; binding arbitration of grievances; and 11.14. 10700
requires that arbitrators be selected from lists furnished by the Federal Media-
tion and Conciliation Service. As a practical matter, we believe these issues should
be left to the parties for bargaining arrangements that best accommodate to
their particular situations.
In addition, under H.R. 9784, in the absence of an exclusive labor organization
unrecognized unions would be entitled to dues withholding privileges and use of
employer bulletin boards, mailboxes and other communications media. Addi-
tionally, such unions would have the right of representation at meetings be-
tween an agency and employees concerning grievances, potential grievances, per-
sonnel policies and practices and other matters affecting working conditions
of employees in the unit. And this would clearly be unworkable.
Negotiations.?Virtually all aspects of employment could be opened to nego-
tiation under H.R. 13 and H.R. 9784. Many of the items which are now deter-
mined by Congress or delegated to the Civil Service Commission for implemen-
tation would be subject to collective bargaining with potential for adverse ef-
fects?not only from the standpoint of costs, but also from the standpoint of
equal treatment for employees similarly situated. For example, a union with
local recognition could negotiate with local management over the entire range
of employment issues, which would directly conflict with the equal-pay-for-
equal-work policy by authorizing a system that would produce extreme variations
of pay and benefits at every local activity where a union represents Federal
employees.
The retained rights of management in the public interest, as contained in
E.O. 11491, the Postal Reorganization Act, and inherent in various U.S. laws
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are absent from H.R. 13 and H.R. 9784. For example, there is no provision,
as in the Order, that management officials of an agency would retain the right,
in accordance with applicable laws and regulations, to direct employees of the
agency, to hire, promete, transfer, assign, and retain employees in positions
within the agency, and suspend, demote, discharge, or take other disciplinary
action against employees, and the like. Management could be obligated to nego-
tiate on matters with respect to the mission of the agency, its budget, its organ-
ization, and the technology of work. Conceivably, public policy as it affects em-
ployment?the agency mission?would be negotiable, with negative impact on the
functioning of responsible government, in disregard for the will of the Congress.
Also, the grievance definitions and procedures set forth in H.R. 13 and H.R.,
9784 are so broad as hi appear to encompass many matters which directly by
law or indirectly by Civil Service Commission .regulations pursuant to law are
covered by existing appeals procedures. This, coupled with the provisions giving
direct, legal right to binding arbitration of grievances, would turn over to arid-
trators ninny decisions which Congress itself has made or has deemed should
he made by other institutions of Government,?for example, classification ap-
peals, equal employment opportunity appeals, performance-rating appeals and
political interference appeals.
In our review of H.R. 10700, we particularly noted that it substantially pre-
sents a more reasonable approach and needed balance to the issue of labor rela-
tions legislation in general, and to the rights and interests of the general pub-
lic, employees, unions, and management in particular, than other bills introduced
in the 93rd Congress. W4ile H.R. 10700 incorporates many of the approaches and
mechanisms already embodied in Executive Order 11491, it contains a number
of unique provisions, which warrant detailed assessment.
For example, posing the most serious problem in H.R. 10700 is the feature es-
tablishing a "Federal Labor Relations Board" The Board is to make determina-
tions on personnel management policies and regulations that relate to employees
in more than one agency. This provision alone E would gravely erode, if not ef-
fectively usurp, essential authorities historically delegated by the Congress to
Federal agencies and officials for fulfilling their responsibilities. Empowering the
Board, as proposed and structured, to determine government-wide policies that
affect Federal employees, would seriously cripple management's capability to
manage. The decisions would not even-be made bilaterally by management rep-
resentatives authorized to, and accountable for, making them and employee
representatives specifically elected to participate in their determination. Instead,
these decisions would be made by majority vote of the eleven members of the
Board, with the Chairman of the Board resolving ties. This would mean that one
person?answerable to himself alone--would have the power to determine a vast
range of government-wide policy without responsibility to any authority includ-
ing the President, the Congress, the Civil Service Commission, or the heads of
departments and agencies. Such a concept plainly is not in the public interest.
Furthermore, it would be impracticable to administer the Board arrangement.
The wide range and volume of subjects and material that various agencies of
the Government would he required to submit for policy determination, the very
real prospect of extended quasi-negotiations on many issues, the provision for
introduction of issues by labor organizations and the need to operate within the
specified timeframe for the consideration of proposals all would contribute to
nearly continuous and piece-meal bargaining, periodically interrupted by time
constraints unrelated to priority issues, workload or status of negotiations. This
process and environment would seriously jeopardize deliberation, decision mak-
ing, and implementation of government-wide policies. This proposal would per-
manently damage the capability of the Civil Service Commission to function and
to manage as the central personnel agency of the Government, and to administer
the inherent Civil Servic merit system principles. More important?though just
as inescapable it would disrupt, frustrate and perhaps on some occasions even
paralyze the functioning of Government gem 'ally, since vital operating regula-
tions of virtually all agencies would be miffeelcd directly.
In addition, there are other significant issues and problems stemming from
this provision of UR. 10700. For example, would the Board have authority to
determine personnel policies and practices for all employees, including (1) non-
represented employees and (2) employees excluded from coverage? If so, what
would be the justification for this? If not, what would he the best way to deal
with employees mit represented by unions or exeluded from the coverage under
Pie law?
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There are also serious problems inherent in the H.R. 10700 mechanism for
negotiation on agency regulations issued by authorities above the level of rec-
ognition. For example, this would result in bargaining rights where there is no
appropriate bargaining unit and the employees affected have had no opportu-
nity to express their views. In addition, as we understand the concepts involved,
it would be extremely impracticable for agencies- to implement and administer
the provisions. Piecemeal and continuous negotiations could result. This would
be unworkable in terms of the capability of management to effectuate central
policies where there is a need for uniformity throughout the agency or in
major organizational segments. Thus, such an arrangement would be chaotic
and impracticable from the vantage points of meaningful and constructive
negotiations, labor-management stability in general and sound personnel man-
agement practice needed for mission accomplishment in the public service.
Impasses.?Negotiation impasses would be dealt with differently under the
three bills, and none of the arrangements are acceptable. For example, unions
would have the right to strike as an option according to H.R. 9784. Although
there would be some limitations on the right to strike, the right to strike against
the Federal Government in a labor dispute simply is not compatible with the
public's need for uninterrupted continuity of Government functions and nation-
al defense concerns, as discussed above.
The impasse procedures of TER 13 are contrary to the concept of voluntary
collective bargaining; they are the same as compulsory, binding arbitration
without the necessary procedural protection. Since there would be easy and
automatic access to the Authority, the effectiveness of mediation would become
virtually nil. Quick recourse to binding arbitration has been found in stifle
efforts of the parties to resolve their own differences and encourage "holding
something back" for the arbitrator.
And, conceivably under H.R. 13, a union could strike with impunity if it
also follows the impasse procedure, since there is no specific prohibition against
the strike while the broad supersedure clause could be interpreted as repealing
the "no-strike" law.
To assist the parties in settling impasses, II.R. 10700 provides that at the re-
quest of either party, the Authority is required to establish a three-person panel.
In our opinion, this mandating of a panel would serve to limit the flexibility of
the Authority. The Authority needs more discretion in its consideration of a
particular impasse matter. For example, this could include preliminary meet-
ings with the parties, fact finding, use of its own staff, and recommendations to
the parties for the resolution of the impasse or the use of a panel to settle the
impasse by appropriate action.
Also, as we interpret 11.11. 10700, the action of an ad hoc panel is final and not
subject to further review. Except for negotiability questions it appears that the
Authority could not review a panel's decision on an impasse concerning major
policy issues. For program integrity and effectiveness, we believe that such
review should be available to the Authority- as the central body responsible for
administering the functions and purposes of the Act. Furthermore, there could
well be provisions for checks and balances on actions and decision of the Author-
ity when major policy matters requiring the oversight of the Congress and the
highest levels of the executive branch are concerned.
Unfair labor practics.?An independent category of unfair labor practices
for any "person," is contained in H.R. 13. This concept goes beyond all known
labor relations law by permitting the Authority to require action against super-
visors and managers, rather than the agency itself. Such a provision creates
potent disincentive to initiative by an individual manager or supervisor in any
situation of uncertainty involving personnel adminstration.
Also, in H.R. 13, it is not designated an unfair labor practice for unions to
call or participate in a strike, slowdown or picketing against any Federal
activity. Arguably, a strike would at most be an indirect unfair labor practice
for refusal to comply with the impasses procedure of the bill. There would be
110 effective sanction against an actual strike.
H.R. 9784 also fails to make it an unfair labor practice for a union to call or
Participate in strikes and related incidents; or to coerce, attempt to coerce,
or discipline, fine, or to take other economic sanction against members of the
union as punishment or reprisal for, or for the purpose of hindering or im-
peding their work performance, their productivity or the discharge of their
duties as employees of the United States.
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Without such strictures there would be no effective sanction against unfair
union actions. This would substantially weaken existing and conventional stand-
ards for responsible unionism.
Standards of conduct?H.R. 13 establishes for unions only a general require-
ment to maintain democratic procedures, prohibit conflicts of interest and main-
tain fiscal integrity, and HAL 9784 fails to include even that. Unions in the
current Federal program are subject to standards of conduct and reporting
requirements similar to the Landrum-Griffin Act for the private sector. These
bills would release unions from much of this responsibility and remove any
obligation for demonstrated compliance with stated standards.
SUpersedare.--All previous statutes and Executive orders concerning the same
subject matter or inconststent with provisions of the bill could be superseded,
according to H.R. 13 and MR. 9748. That raises serious questions as to the extent
to which civil service laws such as all of Title 5, U.S.C. may be overridden. It
also raises questions concerning the degree to :which Congressional authority
and determination could be affected in areas such as pay, benefits and classifi-
cation. In their present form, the supersedure clauses appear to open to nego-
tiation many areas presently subject to Congressional action. For example,
would two separate retirement, leave, etc., systems evolve, one for unit members
and another for non-unit members? Would different agencies and/or installations
negotiate different leave or insurance programs? Would supersedure be selective?
If not, who would determine the criteria and which acts would be replaced and
which would not? These ire examples of questions which the bills fail to answer.
Because of the reasons stated above, and others, we, therefore, recommend
against enactment of H.R. 13, H.R. 9784, arid H.R. 10700.
THE CONCLUSIO_N S NO DEMONSTRATED NEED FOR LEGISLATION?
LED FOR A BALANCED PAILOSOPHY
No df.vionstrated need for legislation
There is no demonstrated need for legislated labor relations program, particu-
larly so comprehensive a program as discussed above. Those who would copy
the private sector should consider the troubled conditions existing in the 1930's
under which the National Labor Relations Act?a law to provide industrial
peace?was enacted. The purpose of the N) R4 Is in sharp contrast with that
stated in the Executive Order--an order "to facilitate improved employee per-
formance and efficiency"; one concerned with employee well-being and one
which favors improved participation of employees "through the maintenance of
constructive and cooperative relationships between labor organizations and
management officials."
Each year, the NLRB directs private sector employers to reinstate thousands
of employees who were terminated because they formed, joined, or assisted a
union. The Federal program, on the other hand; requires management neutrality
in employees' selection of a union; management is not to express its views on
the "advantages or disadvantages" of unionization.
.Further analysis of today's Federal sector labor relations environment as
compared to that which existed in the private sector and led to enactment of the
NLRA in 1935 reveals that:
Wages and fringe benefits under the multi-tiered Federal personnel structure
are comparable to those of the private sector. This view was most recently con-
firmed by the Commission's December 1973 study of benefit programs of 25
leading employers, summarized in Attachment "10." That the Federal sector is
twice as heavily organized as the private sector argues for continuing under
the present system?unless success is to be viewed as a reason for change, hardly
a tenable proposition.
The program for exclusive recognition and bilateral setting of personnel poli-
cies is functioning reasonably well. There have been many more "successes"
issued by the Federal Service Impasses Panel in four years. Many hundreds of
than "failures." In only 18 cases were fact-finding reports and recommendations
successful negotiations have been concluded with no need for third-party inter-
vention. Of over 3,000 bargaining situations surveyed in the CSC/OMB study
(discussed previously), only 16% involved mediation or third parties (FMCS-
344, FSIP--54, FLRC-23, A/SLMR-6).
Of course, this does not mean that the program is perfect. There are problems,
many minor, but some major, as discussed above. Many of these can be dealt
with through revisions to the Executive Order or by limited legislation.
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Some issues have been raised which we expect would be of major interest to
the Congress. These are: Union or agency shop; all-powerful central labor rela-
tions authority; negotiations on wages and fringe benefits that could result in
lack of uniformity, lack of equal-pay-for-equal-work; and right to strike.
In addition because the Federal program is governed by Executive Order we
have a framework that has given us the flexibility, versatility, and accommoda-
tion not found under legislation in the private sector.
In 38 years, the National Labor Relations Act has been revised substantially
just twice?generally in 1947 when it took a Congressional override of a Presi-
dential veto to do it, and on reporting and disclosure alone in 1959 when the
major change was a requirement for reporting and disclosure, essentially by
unions.
In 47 years, the Railway Labor Act has been changed substantially only once?
in 1936 to extend its coverage to air carriers.
In just 12 years, the Executive Order has gone through three revisions, and a
general review of the program is underway.
Thus, the record of the Federal exeprience in labor relations clearly shows no
demonstrated need for a legislated program. Rather, it confirms that the Execu-
tive Order approach is operating successfully and that it should be continued?
in a progressively modified and improved form.
Need for a balanced philosophy
Under the Federal program that has evolved, a reasonable balance has been
struck between management's ability to manage and employees' rights to have
a strong voice in matters that affect them on the job. The need for some very
special thinking about the requirement to achieve a sensible, rational balance
between union and public employer interests within the unique environment
of the public service is pointed up by many of the features of the bills discussed
above. Among the factors to be considered are the budgetary process, the impact
of collective bargaining agreements on taxation, the expression of the public will
in personnel matters, legislative enactments, the monopoly character of much of
the activities of Government, and the need for uninterrupted public service.
These do tend to limit the scope, as well as the acceptability of bargainable mat-
ters; and such considerations are vitally necessary in the public interest.
Public policy demands that the performance of such governmental functions
not be hampered by any particular group in the interests of its members. The
public interest must be the prevailing interest in our society. Under our economic
system a private firm belongs to its stockholders; the Federal Government be-
longs to all the people and therefore must be responsive to the will and the needs
of all the people.
The public has always had a proprietary interest in the public service and its
confidence in that service is something we dare not lose sight of. Efficiency,
costs, performance, mission accomplishment, management's capacity to make es-
sential decisions and to manage?have to be accounted for to the public.
After all, the very premise of Government is that it exists to serve the people,
not the employees or public managers or unions. Put in another context, a sys-
tem of labor-relations is not devised for the purpose of benefitting employees per
se, or employers or unions. Rather, a labor-relations system is, or should be, a
means for providing employee input in personnel policy decision-making through
their chosen representatives. Such a system, to be truly effective, and in the pub-
lic interest, must provide for employee dignity and well-being, protection from
arbitrary decisions, and maintenance of management's ability to carry out its
assigned mission?all with the overriding objectives of high standards of per-
formance and efficient, effective administration of Government.
Over all, the record is clear. The Executive Order program is conducive to
employee well-being and efficient administration of Government. It is meeting the
problems and challenges it's been designed to resolve. It is adjusting to change
in an orderly and timely manner. It is workable, viable, versatile.
Before abandoning this system, we must satisfy ourselves that there is a
factually demonstrated need for a whole new program and that the new program
itself would provide us with a better, more balanced approach. Above all, we
must first pay very careful and thoughtful consideration to the fundamental
issues that are involved. (Our concerns in some of the most important of these
areas are outlined in our supplemental submissions.)
[The 11 attachments to the statement follow:]
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ATTACHMENT 1
(J. 8. CIVIL SERVICE COMMISSION,
Washington, D.C., May 7, 1974.
Bulletin No. 711-30
Subject: Analysis of Data and Report on Union Recognition in the Federal
Service.
To : Heads of Agencies and Independent Establishments.
This bulletin contains graphs, charts, and tables presenting a summary analy-
sis highlighting the statistics on employee covered by exclusive recognition
and negotiated agreements in the Federal Service, and the changes in the extent
recognition from November 1972 to November '1973. The report is based on
information furnished to the Civil Service Commission by government agencies.
The principal finding is that agreements have been negotiated in 335 additional
recognition units, an increase of 17 percent over 1972. Overall, 2,264 or 65 percent
if all units are covered by 1,904 agreements as compared to 1,929 or 57 percent
of units covered by 1,694 agreements in 1972. (Some multi-unit agreements cover
more than one recognition). The number of employees covered by agreements has
likewise grown to a new high of 837,410 (43 Percent of the total non-postal
workforce), an increase of more than 84,000.
There are 3,486 exclusive units of recognition, representing a net gain of 94
units. Exclusive recognitions cover 84 percent of wage system employees and 47
percent of General Schedule or equivalent employees. Comparable figures for
November 1972 were 83 percent wage system and 46 percent General Schedule.
Fifty-six percent (1,086,361) of executive branch employees (excluding the
Postal Service) are represented by unions holding exclusive recognition rights
in Federal agencies compared to fifty-five percent (1,082,587) in 1972.
BERNARD ROSEN,
Executive Director.
A tta chment.
kttachment to Btn. No. 711-30
STATISTICAL REPORT
Graphs. charts, and tables in this report provide statistics on exclusive recog-
nitions and agreements :granted and negotiated by Federal agencies under the
provisions of Executive Order 11491---liabor-Aanagement Relations in the Fed-
eral Service and under the former Executive Order 10988?Employee-Manage-
ment Cooperation in the Federal Service. The statistics are based on informa-
tion reported to the Civil Service Commission by Federal departments and
:1,!;:elLeif'S as of November 1973.
Tile report covers Feueral employees in the Executive Branch, government-
wide, excluding the U.S. Postal Service, FBI, NSA, and CIA, and foreign na-
tionals employed outsidr of the United States. The statistics include recogni-
tions and agreements in he Tennessee Valley Authority and in certain activities
of the Department of the Interior and the Department of Transportation which
predate Execntive Order 10988.
Executive Order 11491, signed by the President on October 29, 1969, became
effective on January 1, 1970, except sections 7(f) and 8 which became effective
on the date of signing, Oetober 29, 1969. Executive Order 11616, amending Exec-
utive Order 11491, was signed by the President on August 26, 1971, and became
effective on November 24, 1971.
toenail ions of terms and abbreviations
Agency?Department or agency of the Executive Branch.
Mion--Union, employee organization, or association granted exclusive recog-
nition under the provisions of Executive Order 10988 or Executive Order 11491.
(58)
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Exclusive?Exclusive recognition granted by an agency to a union.
Exclusive Unit?The grouping of employees within an agency, activity, or
installation for the purposes of exclusive recognition and representation.
Agreement?Is a document which sets forth the terms and conditions of em-
ployment negotiated by a union and an agency under the provisions of Executive
Order 10988 or of Executive Order 11491. An agreement providing for union
dues withholding is not an agreement for the purpose of this report.
Multi-unit Agreement?An agreement which is applicable to more than one
exclusive unit.
Wage'?Wage system employees, i.e., trades, labor and other employees paid
on a prevailing rate basis.
`GS'?General Schedule employees and those in similar occupations.
'Prof'?General Schedule employees designated as professional.
'Other GS'?General Schedule employees and those in similar occupations other
than professional.
NOTES
All percentages appearing in this report have been rounded off to the nearest
whole number and are not shown if less than one half of one percent.
The charts provide a comparison of the status of union representation of
Federal employees as of November 1973 and November 1972.
In table A, the term 'number' appearing under the heading 'Employees in
Exclusive Units' refers to the total number of employees in each agency covered
under exclusive recognitions. The corresponding percentages are based on total
employment in each agency, and those listed under `ToW' and 'eAGS' are based
on agency employment figures for each category.
In table B, the term 'number' appearing under the heading 'Employees in Ex-
clusive Units' refers to the total number of Federal Service employees covered
under exclusive recognitions by union. The corresponding percentages are based
on total Federal Service employment, and those listed under '%W' and `ToGS'
are based on total employment figures for each category.
DATA CONTAINED IN THIS REPORT HAS BEEN COMPILED FROM INFORMATION SUBMITTED
BY THE FOLLOWING DEPARTMENTS AND AGENCIES
Executive Office of the President:
Office of Economic Opportunity
Executive Departments:
Department of State
Agency for International
Development
Department of the Treasury
Department of Defense:
Office of the Secretary
Department of the Army
Department of the Navy
Department of the Air Force
Other Defense Agencies
Defense Nuclear Agency
Defense Contract Audit Agency
Defense Mapping Agency
Defense Supply Agency
National Guard Bureau
Department of Justice
Department of the Interior
Department of Agriculture
Department of Commerce
Department of Labor
Department of Health, Education,
and Welfare
Department of Housing and Urban
Development
Department of Transportation
34-619 0-74 5
Agencies:
Atomic Energy Commission
U.S. Commission on Civil Rights
Environmental Protection Agency
Equal Employment Opportunity
Commission
Federal Communications Commission
Federal Home Loan Board
Federal Power Commission
General Services Administration
Interstate Commerce Commission
National Aeronautics and Space
Administration
National Capital Housing Authority
National Labor Relations Board
Overseas Private Investment
Corporation
Railroad Retirement Board
Renegotiation Board
Securities and Exchange Commission
Selective Service System
Small Business Administration
Smithsonian Institution
National Gallery of Art
Tennessee Valley Authority
United States Civil Service
Commission
United States Information Agency
United States Soldiers' Home
United States Tariff Commission
Veterans Administration
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Commonly used abbreviations of federations and national and international unions
and associations
Abbreviation: Name of union or association
AAE Aeronautical Examiners; National Association of (Ind).
ACT Association of Civilian Technicians (Ind).
AFGE Government Employees; American Federation of
(AFL-CIO).
AFT Teachers, American Federation of (AFL-CIO).
ANA American Nurses Association (Ind).
APCA Aeronautical Production Controlmen Association (Ind).
APWU American Postal Workers Union (AFL-CIO).
APWU?Clerli. Craft.
APWU?Maintenance Craft.
APWIl?Motor Vehicle Service Craft.
APWU?Special Delivery Messenger Craft.
BBF Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers
and Helpers; International Brotherhood of (AFL-
CIO).
BPAT Painters and Allied Trades; International Brotherhood
of (AFL-CIO).
BRASC_ Railway, Airline and Steamship Clerks, Freight Han-
dlers, Express an d Station Employees; Brotherhood
of (AFL-CIO).
BRC Railway Carmen 4 America; Brotherhood of (AFL-
CIO).
CJA Carpenters and Joiners of America; United Brother-
hood of (AFL-CIO).
FOP Police, Fraternal Order of (Ind).
FPQI Plant Quarantine Inspectors National Association;
Federal (Ind).
GAIU Graphic Arts Intemational Union (AFL-CIO).
TAFF Fire Fighters; International Association of (AFL-CIO).
IAM Machinists and Aerospace Workers; International
Association of (AFL-CIO).
IAS Siderographers; International Association of (AFL-
CIO).
IATC Tool Craftsmen; International Association of (Ind).
IBEW Electrical Workers; International Brotherhood of
(AFL-CI 0) .
IBFO Firemen and Oilers; International Brotherhood of
(AFL-CI 0) .
ICW Chemical Workers Union; International (AFL-CIO).
IFFP_ International Federation of Federal Police (Ind).
IFPTE 1 Professional and Technical Employees; International
Federation of (AFL-CIO).
IPPA Printing Pressmen and Assistants Union of North
America; International (AFL-CIO).
ITU Typographical Union; International (AFL-CIO).
IIJOE Engineers; International Union of Operating (AFL-
C10).
LIUNA Laborers International Union of North America (AFL-
CIO).
MEBA Marine Engineers Beneficial Association; National
(AFL-CIO).
MMP Masters, Mates and Pilots; International Organiza-
tion ot, International Marine Division of ILA
(AFL-C10).
MTC Metal Trades Council (AFL-CIO).
NAATA National Army Air Technicians Association, Affiliate
of TUE (AFL-(710).
NAATS National Association of Air Traffic Specialists (Ind).
NABET Broadcast Empl. yees and Technicians; National
Association of (AFL-CIO).
NAGE Government Employees; National Association of
(Ind)
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Commonly used abbreviations of federations and national and international
unions and associations?Continued
Abbreviation: Name of union or association
NA GI Government Inspectors, National Asso ciation of (Ind)
NALC Letter Carriers of the United States of America;
National Association of (AFL-CIO).
NAPEP Planners, Estimators, and Progressmen; National
Association of (Ind).
NAPFE Postal and Federal Employees; National Alliance of
(Ind).
NCSA Customs Service Association; National (Ind).
NEA_ National Education Association (Ind)?NEA Over-
seas Education Association (CEA).
NFFE Federal Employees; National Federation of (Ind).
NLRBP National Labor Relations Board Professional Associa-
tion (Ind).
NLRBU National Labor Relations Board Union (Ind).
NMU Maritime Union of America; National (AFL-CIO).
NTEU 2 National Treasury Employees Union (Ind).
NUCO National Union of Compliance Officers (Ind).
OAA Operations Analysts Association' National (Ind).
OCAW Oil, Chemical and Atomic Workers International
Union (AFL-CIO).
OPEIU Office and Professional Employees International Union
(AFL-CIO).
PATCO Professional Air Traffic Controllers Organization,
Affiliate of MEBA (AFL-CIO).
PML Pattern Makers League of North America (AFL-CIO).
POMH Post Office Mail Handlers, Watchmen, Messengers and
Group Leaders; National Association of, A division
of LITTNA (AFL-C10).
POPA Patent Office Profsessional Association (Ind).
PPDSE Plant Printers, Die Stampers and Engravers Union of
North America; International (AFL-CIO).
PPF Plumbing and Pipe Fitting Industry of the United
States and Canada; United Association of Journey-
men and Apprentices of the AFL-CIO.
RCIA Retail Clerks International Association (AFL-CIO).
RLCA Letter Carriers Association; National Rural (Ind).
SOME State, County, and Municipal Employees; American
Federation of (AFL-CIO).
SEIU Service Employees International Union (AFL-CIO).
SIU Seafarers International Union of North America
(AFL-CIO).
SMW Sheet Metal Workers International Association (AFL-
CIO).
TDA Train Dispatchers Association; American (AFL-CIO).
TRSOC Trademark Society, Inc. (Ind).
UTU United Transportation Union (AFL-CIO).
UT W United Telegraph Workers Union (AFL-CIO).
Councils and directly affiliated locals of AFL-CIO:
CBTC Columbia Basin Trades Council.
CPTC Columbia Power Trades Council.
DATU Truckers Directly Affiliated Union.
ECNS Employees' Council of the USMV North Star III.
TVSE TVA. Public Safety Service Employees' Directly
Affiliated Union No. 2033.
TVTLC Tennessee Valley Trades and Labor Council.
1 Formerly AFTE.
Formerly NAIRE.
NOTE?The abbreviations listed are not necessarily the official ones for these organizations, but are those
used in this report and elsewhere.
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62
LO CAL IND EPENDE NT UNIONS
Alaska Fisherman's Union.
Executive Committee of Planners and Estimators, Progressmen, and Assistants.
Educational Secretaries of the Nation's Capitol.
Federal Employees Council, Picatinny Arsenal, N.J.
McClellan Employees for Equality.
Methods and Standards Analysts Association.
National Government Employees Union.
Navy Civilian Professional Association.
Organization of Contract Administration Engineers.
Policemen's Association of the District of Columbia.
Professional Association of the Interstate Commerce Commission.
Seattle Center Controllers Union.
Technical Skills Association.
TVA Engineers Association.
United Police and Security Association.
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GRAPH I EMPLOYEES IN EXCLUSIVE UNITS AND COVERED BY AGREEMENTS
1969 - 1973
NUMBER
OF
EMPLOYEES
1,100,000 ?
1.050,000
1.000,000
950,000
960000
850,000
800,000
750,000
700000
650,000
600.000
550.000
500,000
450,000
400,000
350.000
300,000
250,000
200.000
150.000
100,000
50,000
YEAR
707,067
1,002.60
Total Employees in
Units
Wage Grade Employees
in Units
General Schedule
Employees in Units
Total Employees covered
by agreements
.066.361
1969
1970
1971
1972
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1973
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=
z
;822111112RIBIBSSWR RR 4R 22?
cc
LI :
\
:11.1111
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UNION RECOGNITION IN THE FEDERAL GOVERNMENT,' NOVEMBER 1973 AND NOVEMBER 1972
1973
1972
Change/percent
I. Employees covered by exclusive recognitions, executive
branch totals:
Total covered 1,
086, 361
1,082, 587
*+3, 774
Wage system
404, 955
427, 089
-22, 134(-5)
General schedule
681, 406
655, 498
+25, 908(+4)
II. Employees covered by exclusive recognitions, by major
agency :2
1. Army
185,192
195, 412
-10,220 -5
2. Navy
179, 515
192, 659
-13,144 -7
3. Ai r Force
179,468
181632
-2,164 -1
4. Veterans' Administration
126, 455
120, 344
+6,111 +5
5. Treasury
69, 741
64, 327
+5,414 +8
6. Health, Education, and Welfare
69, 345
59, 503
+9,842 +1)
7. Denfense Supply Agency
36, 578
37, 309
-731 -2)
8. Transportation
35, 345
34, 532
+813 +2)
9. National Guard Bureau
29,051
28, 986
+65 ")
10. Interior
23, 549
23, 164
+385 +2
11. General Services Administration
22, 354
21, 806
+548 +3
12. Tennessee Valley Authority
21, 895
22, 550
-655 -3
13. Agriculture
21, 803
19,778
+2,025 +1)
'Change is less than 1 percent.
Date extracted from the forthcoming November 1973 edition of the Civil Service Commission publication "UNION
RECOGNITION IN THE FEDERAL GOVERNMENT.' Postal Service data are excluded unless otherwise indicated.
2 An agency in which the number of employees in exclusive recognition units exceeds 20,000.
1973
1972
Percent
change
Number
Percent
Number
Percent
III. Exclusive coverage compared with total employ-
ment,' executive branch totals:
Total
1, 086, 361
56
1, 082, 587
55
d-1
Wage system 2
404, 955
84
427, 089
83
+1
General schedule 2
681, 406
47
655, 498
46
d-1
,
IV. Exclusive coverage compared with total employ-
ment, by major agency:
1. Army__
185, 192
58
195, 412
58
2. Navy
179, 515
60
192, 659
60
3. Air Force
179, 468
76
181, 632
76
4. Veterans' Administration
126,455
64
120,344
63
+1
5. Treasury
69, 741
65
64, 327
61
+4
6. Health, Education, and Welfare
69, 345
53
59, 503
52
+1
7. Defense Supply Agency
36, 578
70
37, 309
78
-8
8. Transportation
35, 345
51
34, 532
51
9. National Guard Bureau
29, 051
59
28, 986
61
-2
10. Interior
23, 549
34
23, 164
33
+1
11. General Services Administration
22, 354
60
21, 806
58
12. Tennessee Valley Authority
21, 895
91
22, 550
90
ti
13. Agriculture
21, 803
19
19, 550
17
+2
Federal employment in the executive branch, excluding U.S. Postal Service, FBI, CIA, NSA and foreign nationals
serving outside the United States. November 1973=1,940,648; November 1972=1,957,076.
2 Wage employment: November 1973=483,824; November 1972=512,695.
General schedule employment: November 1973=1,456,824; November 1972=1,413,874.
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Union Number units
Employees Units under Employees
represented agreement covered
Percent
covered
V. Exclusive recognitions and agree
ments, by major union, Novembe -
1973:
I. AFGE
1, 587
624, 322
987 469, 371
75
(WG 210088)
(GS 414, 234
2. NFFE
659
118, 13
429 91,306
77
(WG SO, 930)
(GS 87, 209)
3. NAGE
376
75,953
228 57,880
76
(WG 35, 652i
(GS 40, 301
4. MTC
53
52, 58
40 42, 797
81
(WG 50, 145)
(GS 2, 440)
5. NTEU
88
50, 392
82 48,250
96
(WG non
(GS 50, 392
6. IAM
91
2, 552
74 24, 338
82
(WG 26,862
(GS 2,690
Number of units
Employees represented
Percent
Percent
Union
1973
1972 change
1973 1972
change
VI. Growth in exclusive recognition,
by major unFon:
1. AFGE
1,587
1,541 +3
624322 620,744
+1
2. NFFE
659
646 +2
118, 139 114, 420
+3
3. NAGE
376
381 ?1
75, 953 82, 187
?8
4. MTC
53
50 +6
52,585 57,038
?8
5. NTEO
88
86 +2
50, 392 46,522
+8
6. IAM_
91
89 +2
29, 552 30, 585
?3
VII. Number of Different Unions Recognized, by category, November 1973:
AFL?CIO national and international unions 40
Independent unions 23
Total 63
VIII. Units of Recognition, executive branch total, November 1973:
AFL-CIO affiliates
2,161
Independent unions
1,325
---
Total
3,486
IX. Units of Recognition, by selected union, November 1973:
AFGE.1,587
NFFE
659
NAGE
376
IAM
91
NTEU
88
IAFF
79
MTC
53
IBEVT
46
ANA_
44
NAIL.
36
SEIU
27
IFPTE
24
LIUNA
21
ACT
20
IFFP
20
NAPEP
20
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X. Summary of recognitions, agreements, and employees covered:
1973
1972
Change/percent
Exclusive recognitions
3, 486
3,392
+94(+3)
Employees covered
I, 086, 361
1,082, 587
+3, 774(*)
Recognitions under agreements
2,264
1,929
+335(+17)
Employees covered
837, 410
753, 247
+84, 163(+11)
Employees covered under agreements as a percent of
employees in recognition units
77
70
(+7)
*Less than 1 percent.
1973 1972
Number
Percent
Number
Percent
Percent change
XI. Employees covered by exclusive
recognition, postal and nonpostal:
Postal
614, 554
89
604, 660
91
?2
Non postal
1, 086, 316
56
1,082, 587
55
+1
Total 1
1, 700, 915
65
1, 687, 247
64
+1
1 November 1973 Federal employment, postal and nonpostal combined=2,632,387.
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TABLE A -RECOGNITIONS AND AGREEMENTS BY AGENCY NOV. 197
AGENCY
EMPLOYEES IN EXCLI.WIVE UNITS
AGREEMENTS
EMPLOYEES
...0E, AGREEmENT
RECOGNITIONS
NUMBER S
WAGE
SW PROF
OTHER GS SOS
Number
?????
NUMBER
Office Fcunon1H OPP0,1915.1Y
3
I
In
4
975 ?
3113 4 1 37
4-
1,657 I 317
97
?
39%
776
1
975
?
......_____
Deparlmtn1 of Slate
23
263 27
258
2% ,
-
Apericy Intl. Develop
22
4.454
1.
T4:
962J
L
t-
06';
845
11
+
39^,
"--
77.;
152
1.483 31%
II
I 657
31%
lreasury
64.741 I---65';
333 1 ?
24,432
40.825 634
35
116
65.061
60%
?MC Of Octavos%
Office of S...crti,
48?
15
9.832
3.804
3.093
312
251
265
_
270 ?
4
4
398
333
142,712
?
40 . 1
Army
601
600
241
1
14
75
-1-
1115.192 1 59';
I-
179.515 1 607
- -4---
179,468 [ 76';
223 1 ?
373 1 11.;
r
1.7119 23';
83,940
115,705
87,995
14
523
.1.47.0
60.006
88.380
1 119
61 1
1
1.015
45%
401
667
117
303
Navy
.?er Force
.._H-
Defense Natekar Ammo
kfense Conirmi Audit
_.
Meese Maw**
Dcfcrise Simply Agency
--t-
339
145
369
161
133,815
45%
120,626
51%
213
1
1
373
117
-
20%
10
10
1,452
19%
.1
36.578 1 70'.;
9,029
27.284 68%
49
59
33,755
64%
National Guard Bureau
Justice
Irdetior
i 37
1.
209
29,031 1 54' ;
11.9711 -r 42%
4
23,549 341:
15.914
66%
t_. 737
617
40% i.
77'.i.
917-
721.:.
100%.
757
117
441
3,164
2.468
I 2.396
6,561
13.137 537
75
76
15.301
317
1.046
8.679
2,769
1.839
74
4,703
62
4,334
1'
-I-
1
-1-
-I-
10.491
11,706
56.566
6 5
3.560
40%
277
7
7
11,321
39%
154
160
20,579
297
Sancultine
96mucius
Leer
Ikahh, Eduralion & Welfare
floosie,/ Urhan Domlornicnt
I 34
I lb
3
271
57
__i_
21.8031, 19%
r
, 10,746 1 32',1
10.195 -r-,-;.-:-
-1 --
69,345 1 53';
1-
9634 1 557
10%
9311 -.1..
83
48 1--95
83
18.069
167 .
t 8,671
26';
'
.757
3 3
10,195
75%
4032
421
60,610 I 52';;.
9. 1 5 1 54%
127
27
128
30
93
31/31
40%.
3,382
197
Transportation
219
12
-
I
-r-
35,345 1 51';
3,039 -1 ,40:::
1,052
982
29.959 4
2.045
4974
75
26,114
38%
Atomic Fiwyry Commission
407
9 9
536
7%
'animist:ion on Civil Kiphis
- -i-
72 t '
3.310 L34%.
I
161
II
j_.
?
71%
19
164
152 1 ?
LnwronInental Protection .1cency
14
1-
I
2,785
33%
904
EEOC
.1 -
2.067 t ?
1 ?
1,231
825
Communications Comm.
Federalm
1
1
1?5
5 ?
475 1 ?
18
5 ?
251
206
?
350
Federal Dome loan Bank Board
4
Federal Power commission
Federal 'Dade Commission
I
I
1.102 1 ?
36 ?
27
52i
25
550
11
Genera Service Administration
165
22.354 60%
12,371
486
9.497
45%
73 98
14,845
40%
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TABLE A (cont'd) ? RECOGNITIONS AND AGREEMENTS BY AGENCY
NOV. 1973
AGENCY
RECOGNITIONS
EMPLOYEES IN EXCLUSIVE UNITS
AGREEMENTS
EMPLOYEES
UNDER AGREEMENT
NUMBER
I
WAGE
I %W
PROF.
OTHER GS
V
%GS
Number
Reco3.
.6.0.
Coremd
NUMBER
%
Interstate Commerce Commission
3
1,229
12.161
, ?
I -
I 45'.4
1 ?
t?
I 735
I ?
24
1.494
1 *
1
1 93',i,
I
I ?
L';.__6
1 ?
-1-71'
1
1
1 "
1 58%
324
3.615
__ .
97
10
881
7,052 4
789
61
1,312
72
500
514
*
425
3
12
3
13
1,229
7,313
?
27%,
NASA
22
National Capital Housing Authorit
/ I
468
468
19
2
26
73%
?
?
?
?
1 14%
1
1
468
?
73%
_
?
NLRB .
7
I
1,784
7 3
3
i ..1
.
I .
1
1
4
7
I

1
I
1,784
73
1,346
Overseas Private Investment Corp.
Railroad Retirement Board
1
--
1346
I
I *
8
87
106
?
Renegotiation Board
1
159
621
525
I ?
1----H
I14%
15
11
159
*
Securities and Exchange Comm.
1
_
1
4
461
_ 314
--I--
*
, 85
Selective Service System
8
Small Business Administration
23
2,040
4 435
I 295
20
297
Ar_
I 100';
I
1 485.
35
1.985
448
113
5.213
3.329
1,550
178
435
235
*
78%
4W;
415
1 ?
10
4
Li
-
2
2
I ll
4
1
1 21
L.. 2
1.217
745
132
26'.;
Smithsonian
4
. 745
29',;
National Gallery of Art
1
21
9
137
1 ?
19
14 497
47
355
418
I?
I ?
i 99;1
1 81',:
'7
1 94'.;
1-
I ?
2,185
M5
50
39
TVA
21,895
3,461
1,955
1 ...91c;
I 485
1- .
, 46%
21,895
915
U.S. Civil Srvice Commission
_ 489
455
U.S. Information Agency
3
2
2
1,925
596
U.S. Soldiers Home
3
635
-I
I *
'
?
U.S. Tariff Commission
2
244
I ?
8
: ?
124
112 .
81,162 1
?
1
I
8
Veterans Admin.
333 ?
126,455
i--
I 645
33,332
I 915
11.961
58%
270
276
113,843
585.
TOTALS
3,486
1,086,361
I
I 56%
1
404,955
f
I 84%
I
86,978
594,428 475
1,904
2,264
837,410
43% -
? Pereentoge? are not shown for agencies of fewer than 2.500 empto
Approved For Release 2001/09/06 : CIA-RDP75600380R000500220001-6
Approved For Release 2001/09/06: CIA-RDP75600380R000500220001-6
70
,
NOV. 1973
TABLE B - EXCLUSIVE RECOGNITIONS AND AGREEMENTS BY UNION
UNION
RECOG-
NITIONS
EMPLOYEES IN EXCLUSIVE
UNITS
PROF.
REC.
NITIOMS
c.v...
re
1,17.it
EMPLOYEES
UNDER AGREEMENT
EXCL.
NUMBER I %
WAGE -raT, w
.THER GS %GS
NUMBER
%
AAF
6
221 I
221
I
2
105
ACT
20
7,609 14,076
1 -1.----
%
28,799
3,533 I
385.435128%
9
987
2,573
469,371
24%
A FGE
1,587
624,322 1 32%
1-'
210,088 i 43%
AFT
1,221 1
1--
1-
1_
1,221
5,168
I
16t
3
179
ANA
APCA
44
5
14
2
6
1
I
4
a
f
5,1414_1
30
3,774
890 4
I
--
890 1
4
607
APWU
REIF
1,121 1
788 1
1,534 I
4 1
897 I
788 1-
1,214 1--
224L
320 1
4
2
5
341
788
BPAT
1.525
BRASC
-1---
I
141
1
14
SRC
CIA
FOP
32 T
1,31.2 1
341 1
--
52 L._
1340 L
I
1,121 F
4 r
26.862 1 6%
4t
I
2-21--
341-I---
1
2
52
1,339
6
296
FPI:31
I5117
14
79
91
1
1
4
46 46
3
1,2527 1.
t
2,462 1
29,552 1 2%
4 1
35 I
10,240 r 1%
507 507
I-
1
507
GAIU
AFF
1AM
IAS
IATC
1--
141 .
13
1,148 I
1
2.4581
56
1,884
2,690 L
I
74
24,338 1%
1-
35 ,
9,040 2%
I
1
35
186W
IBFO
1,2001---
43
8,170
236 r
236 1
I
--
17-131---
2
6
236
1CW
6
20
24
460
295 j
468
iFF!
IFPIE
IPPA
TU1
1U0E
t
1,609 [
6,719 3_
I
597 I
2,829
1,609 i
5
370
3.2931
14
3,520
4
10
21
18
10
53
6
4
4
376
le7 1
5 I
2,408 I1
7,169 r
699 r
103 T-
41_
3
99
5 r
2,173 1
6,748
1
682 i_
I
2531
4211
17T-
7
2,352
1UNA
MEBA
MMP
16
6340
9
152
382 I
382 1
r
5
77
MTC
t
52.565 . 3%
50,145 1 10%
290
2,1504,
387 1
4
40
42,797
2%
NAATA
1- -
695
308 I
NAATS
3,374 I_
242 1
75,953 1 4%
I
21 1
1
35,652 . 7%
-r-
35 .
-1
1,392 4
3,374 1
4
3,374
NABET
2,570
221 i i_
37,7311 3%
4
242
NAGE
228
57,880
3%
NAGI
NAPEP
9
20
7
971 1
1,472 r
915 r
936 1
8131-
7
10
7-971--I-
8781
NAPFE
633 1
195 1_
I
9
6,173
28-21-
5,7111--
5
8
850-t-
NCSA .
8
3
659
2
5
5,9191-
i
6,173 .
5,919
NEA
-I--
2
429
4,404
NFFE
NLRBP
NLRBU
I
118,139 1 6%
208 1
1.576 1
30,930 1 6%
9.76$
-I---
77,444 j 6%
91,306
5%
1
19-1
208
768
I
789 1
2
5
208
-
1,576
-
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Approved For Release 2001/09/06 : ckA-RDP75B00380R000500220001-6
NOV. 1973
TABLE B (cont'd.) ? EXCLUSIVE RECOGNITIONS AND AGREEMENTS BY UNION
?
UNION
RECOG-
NITIONS
EMPLOYEES IN EXCLUSIVE UNITS
REC.
NITIONS
....Er.
VA%
EMPLOYEES
UNDER AGREEMENT
EXCL.
NUMBER 1 %
WAGE %W
PROF.
OTHER GS % GS
NUMBER 1 %
NMU
36
5.862 1
5.446 1
4
22,135
4121
28,2571 3%
27
82
5,120
48,250
2%
NTEU
88
50,392 1 3c;
1
NUCO
1
350 1---
1
350
1
1
350
OAA
5
1-97--r-
1971
1
74
OCAW
1
120 1----
120 -1--
?1-
1
120
OPE1U
3
2,950 ,
----2-,t1
I
2,723
PATCO
13
I
15.000 , 10
15,000 1%
13
15,000
1%
PML ?
12
I
182 1
102
80
6
138
POPA
1
1.231 1
1,231
1
1,231
PPDSE
3
205 1
205

2
183
PPF
7
1,488 1
1.488
7
1,488
RCIA
2
220 1
181
391
120
SCME
5
2,758 1-
686
19
2,053
2
2,535
SEIU
27
-1--- ,
9,995 , l';,
4.140
1%
5,855
21
8,680
SIU
9
I
1,648 1
1,634
II.1
I
3
1
101
1
SMU
2
242 I
242
230
TDA
1
7 I
71
I
1
7
62
TRSOC
1
62 1
162
1
UTU
2
1401F
11n-
7,125 T---
140
114
1
1
2
2
140
391
UTW
5
Other AFL-CIO
20
3.052
4,0731
13
20
2,679
7,252 1
Other IND.
31
9.328-1-
1,112
4,870
3,37-161-
TOTALS
3,486
1
1
1,086,361 , 56%
404,955
, 84%
86,978
1
594,428! 47%
2264
1
837,410 , 43%
Approved For Release 2001/09/06 : CIA-RDP75600380R000500220001-6
Approved For Release 2001/09/06: CIA-RDP75600380R000500220001-6
'72
UNION RECOGNITION IN THE EXECUTIVE BRANCH - NOV. 1973
TABLE C - EMPLOYEES COVERED BY EXCLUSIVE RECOGNITIONS, BY PAY METHOD
3,4Y METHOD
NUMBER
PERCENT OF
TOTAL EMPLOYMENT
,
Trades and labor
General schedule
404,955
681,406
84%
47%
TOTAL
1,086,361
56%
-....
TABLE 0- EMPLOYEES COVERED BY EXCLUSIVE RECOGNITIONS, BY AGENCY
AGENCY
NUMBER
PERCENT OF AGENCY
EMPLOYMENT
Army
185,192
58%
4
Navy
179,515
60%
Air Force
? 179768
76%
"1
---
Veterans Administration
126,455
64%
--
Treasury
69,74165%
,
Health, Educcion, and Welfare
69,345
53%
All Other
276,645
43%
Approved For Release 2001/09/06 : CIA-RDP75600380R000500220001-6
Approved For Release 2001/09/06 : 9A-RDP751300380R000500220001-6
UNION RECOGAITION IN THE EXECUTIVE BRANCH - NOV. 1973
TABLE E - EMPLOYEES COVERED BY EXCLUSIVE RECOGNITIONS, BY UNION
UNION
1973
1972
American Federation of Government Employees, AFL-CIO
624,322
620,744
National Federation of Federal Employees
118,139
114,420
National Association of Government Employees
75,953
82,187
Metal Trades Councils, AFL-CIO
52,585
57,038
National Treasury Employees Union
50,392
46,522
International Association of Machinists and Aerospace Workers, AFL-CIO
29,552
30,585
All other
135,418
131,091
TABLE F - EXTENT OF ORGANIZATION, BY MAJOR UNION
R I
A
N
K
UNION
RECOG-
NITIONS
EMPLOYEES IN EXCLUSIVE UNITS
RECOG,
NITIONS
COVERED
BY
AGREE
'BENTS
EMPL. UNDER
AGREEMENT
EXCL.
N TuOMTBAE LR
,
RANK I WAGE
1
'
RANK 1 GENE RA L
1 SCHEDULE
NUMBER I. %
1
1 I
/LEGE
1587
624,322
1 1 210,088
1 1 414,234
987
469,371 124%
2 1
NI-FE
659
118,139
4 1 30,930
2 1 87,209
429
91.3061 5%
3 1
NAGE
376
75,953
3 1 35,652
4 1 40.301
228
57.8801 3%
4 I
MTC
53
52.585
2 1 50,145
6 1 2,440
40
42,797 1 2%
5 I
NTEU
88
50,392
6 I 0
3 1 50,392
82
48,250 1 2%
6 I
IAN1
91
29,552
. 5 1 26,862
5 I 2.690
74
24,338 1 I%
('NOTE. This percentage is based on Mai nonposial etnploymet I (1.940.648).
TABLE G - UNION RECOGNITION 1969 - 1973
UNION
EMPLOYEES REPRESENTED IN EXCLUSIVE UNITS, BY MAJOR UNION
1973
1972
t011
1970
1969
RANK 1 NUMBER
RANK I NUMBER
RANK NUMBER
RANK
I
2
NUMBER
530,550
RANK
1
NUMBER
482,357
AFGE
1 624,322
2 1,1 118,139
1 620,744
2 I 114,420
1 606,391
2 106,881
NI-FE
77,099
3
58,676
NAGE
3 I 75,953
3 82,187
3 83,067
3
68,615
4
58,239
MTC4
52,585
4 1 57,038
5 .1 46,522
6 1 30,585
4 61,046
5 I 41,331
4
66,089
2
75,243
NTEU5
50,392
5
38,502
5
38,518
JAM
_ 6 j 29,552
6 1 31,098
_ 6
32,350
6
34,139
Approved For Release 2001/09/06: CIA-RDP75600380R000500220001-6
9-1?000ZZ009000t108?0089/dCIU-VIO : 90/60/1?00Z eseeieu Jod peAwddv
TABLE H -- TOTAL EMPLOYEES :N EXCLUS:VEUNiTS AND COVERED BY AGREE:VitN
1963 .1973
emPLOYEES IN EXCLUSIVE UNITS
17.M;',..:',YELT. C.C'VCriLD
BY AGREEMENTS
TOTAL EMPLOYEES WAGE SYSTEM EMPLOYEES GENERAL SCHEDULE EMPLOYEES
`,EAn?
Ti..YrAL
PERCENTNUMBER
PERCENT
NUMBER
PERCENT
NUMBER
PERCENT
1963
180,000
1964
230,543
12
110,573
6
1965
319,724
16
241850
12
1966
434,890. ?
21 226,150
40
179,293
15
291.532
14
1957
529,915
29
338,660
54
291,235
21
423,052
20
1968
797,511
40
400,669
67
396,842
28
556,962
28
1969
842,823
42
426,111
72
416,712
29
559,415
28
1970
916,381
48
429,136
81
487,245
35
601,505
31
1971
1,038,288
53
437,586
84
600,702
42
707,067
36
1972
1,082,587
55
427,089
83
655,498
46
753,247
39
1973
1,086,361
56
404,955
84
681,406
47
837,410
43
"NOTE: 1963-1966 Statistics based on figures as of mid-year; 1967-1973 figures are as of November
**NOTE: Wage system and general schedule combined do not equal total because of unavailability
of information on status of some employees.
Approved For Release 2001/09/06 : OtA-RDP751300380R000500220001-6
TABLE I--GROWTH OF EXCLUSIVE RECOGNITION
MID-YEAR
EMPLOYEES
IN EXCLUSIVE UNITS
% GAIN
EMPLOYEES
1963
180,000
1964
231,000
28%
1965
320,000
39%
1966
435,000
36%
1967 (Nov.)
630,000
45%
1968 (Nov.)
798,000
27%
1969 (Nov.)
843,000
6%
1970 (Nov.)
916,000
9%
1971 (Nov.)
1,038,288
13%
1972 (Nov.)
1,082,587
4%
1973 (Nov.)
1,086,361
*
*Less than 1%
Approved_Fpg Release 2001/09/06 : CIA-RDP75600380R000500220001-6
0
CD
0-
0
.0s, 1973
TABLE .1. ? ? RECOGNI I IONS AND AGREEMENTS BY UNION AFFILIATION
UNION
RECOG-
NITIOFIS
EMPLOYEES IN EXCLUSIVE UNITS
REGOGNITiONS
EMPLOYEES
UNDER AGREEMENT
NUMBER
I
i
%
WAGE
I SW
4-
PROF.
OTHER GS
1
% GS
COVERED BY
AGREEMENTS
NUMBER
%
EFL-C10
2,161
763,705
I
73%
330455
1 82%
33,162
429.888
'
1
685
1,400
604,735
72%
. ational Independent
283.328
26%
73 1118
1 18%
48,946
161.194
1
31%
844
225.423
27%
her Independent
31
9,328
" 1
I%
1,112
1 .
4,870
3,346
I,
1',T
20
7,252
1%
.1294
TOTALS
M
3,486
1,086,361
i
I
I
100%
404.955
I
1100%
I
86,978
594,428
1
1
100%
2,264
837,410
100%
tri
CO
Co
0
0
0
tri
0
0
K.)
K.)
0
0
0
Approved For Release 2001/09/06 : CIA-RDP75600380R000500220001-6
77
TABLE K ? NATIONAL EXCLUSIVE RECOGNITION* November, 1973
,
,
RECOGNITION GRANTED BY
LABOR
ORGANIZATION
DATE
RECOGNIZED
UNIT DESCRIPTION
l Office of Economic Opportunity
AEC&
4/30/72
All non-supervisory GS-WG
employees including prof.
of the 0E0. nationwide.
Agency for International Development
AFGE/1534
3/6/72
Activity-wide except Foreign
Service employees & employees in
the Office of Auditor General en-
gaged in security work.
Department of Treasury/ Bureau of
Alcohol. Tobacco and FirearmN
NTH.,
4/23/73
liurcau-wide excluding prof.
Criminal Enforcement Division
employees, and National Head-
quarters employees.
Department of Treasury/Bureau of
The Mini
Al-GF
9124/73
Activity-wide except prof.
Department of Treasury/Bureau of
The Mini
Al-GE
9/24/73
Professional activity-wide.
Dematment of Navy/Military Sealift
Command
MFBA
6/15/73
Marine Engineering Officers
Worldwide.
Department of Justice/Bureau of
Prisons and Federal Prison Industries
Inc.
ARill
(Council of Prison
Locals)
1/17/68
Service-wide. except Deadquarters
perNotilld.
Department of Justice/Immigration .d
Naturalization Service
Al:GI
(National Border
Patrol ('ouncil)
6/21/67
Non-prufessiona i employees assiped
to Border Patrol Sectors. Service-wide.
Department of Justiw/Iminigration
and Naturalization Service
AWE
(Council off. &
N.S. Locals)
4/26/68
Service-wide, except prof. and Border
Patrol employees
Departnient of Agriculture/
' Agricultural Marketing Service. Meat
Grading Branch
AFGE
(National Office)
8/28/70
Meat Graders activity-wide.
Department of Agriculture/
Agricultural Marketing Service,
Tobacco Div.
NFEE Local 1555
9/6/68
Tobacco Inspectors activity-wide.
Department of Agriculture/Animal
and Plant Health Inspection Service,
Office of the Administration
Al-GE
(National Joint
Council of Food
Inspection Locals)
3/7/72
Food Inspectors activity-wide.
Department of Agriculture/Animal
and Plant Ilealth Inspection Service,
Plant Protection and Quarantine
EPOI
9/1/64
Professional activity-wide.
Department of Agriculture/Office of
the Inspector General
WEE Local 1375
9/25/64
Special agents & auditors GS-5 to
GS-I 3
Department of Labor
. AEGE Local 12
_
8/29/62
1
Department-wide in Washington,
IX' Metropolitan area.
Approved For Release 2001/09/06 : CIA-RDP75600380R000500220001-6
Approved For Release 2001/09/0g CIA-RDP75600380R000500220001-6
TABLE K ? NATIONAL EXCLUSIVE RECOGNITION* November, 1973
(Continued)
RECOGNITION GRANTED BY
LABOR
ORGANIZATION
' DATE.
RECOGNIZED
UNIT DESCRIPTION
Departnicnt of Labor
AFGE
(National Council
of Held Labor
Lodges)
II/5/65
Department-wide outside the
Washington DC Metropolitan
area.
Department of Labor (IMSA)
NUCO
10/18/72
All nonsupervisoly field Labor-
Management Relations
Compliance Officers &
Compliance Assistants, GS-13 &
below.
Department of Transportation/FAA,
Flight Service Stations and Inter-
national Hight Service Stations
NA VI'S
2/29/72
All air traffic control specialists.
Department of .franspot tation/ FAA.
Airport TratTic Control Dowers. Air
Route Trellis Control Centers and
Conibined Station Towers
PATCO
(an affiliate of
MEBA)
0/20/72
All air traffic control specialists.
Department of Transporta Eon/
Federal Railroad Administration
Headquarters
AFGE
(National Offix)
4/28/71
Nationwide, except prof. and the
Alaska Railroad.
Department of Tr. spor ta non/
National Traffic Safety Administration
AFGE
(National Office)
5/4/73
All non-professional employees.
Equal Employrnent Opportunity
Commission
AFGE
7/6/71
Activity-wide.
Federal Power Commission
AFGE Local 421
11/13/70
Activity-wide.
National Labor Rd:tilt/11S Board.
General Counsel
NLRB()
11/27/64
All professional employees of the
regional, sub-regional and resident
offices of the NLRB excluding
Region 8 in Clevekind.
National Labor ReLi lions Beard.
General Counsel
NLRBU
1 i t'27/64
All clerical and non-professional
employees of the regional, sub-
regional, and resident offices of the
NLRB excluding Region 8 in
ClevelandOverwas
Private I nvestinen 1
Corporation
AFGE Local 1534
9/22/71
Activity-wide.
Railroad Retirement Board
----------
AFGE
(Council of Locals
375 and 8081
5/8/63
Activity-wide.
Tennessee Valley Authority
Tennessee Valley
Trades and Labor
Council
i', )37
TVA-wide.
1 Tennessee Valley Authority
__------ ?
Salary Policy
Employee Panel
11/18/43
TVA-wide.
...See Civil Service Commission Bulletin 711-28, Page 5. for guidelines.
Approved For Release 2001/09/06 : CIA-RDP75600380R000500220001-6
Approved For Release 2001/09/06 : 96A-RDP75B00380R000500220001-6
TABLE L ? NATIONAL CONSULTATION RIGHTS. November, 1973
AGENCY
UNION AGENCY
UNION
TREASURY
NTEU
INTERIOR
NFFE
NCSA
(Bureau of Reclamation) . . .
.
IBEW
AFGE
AGRICULTURE
AFGE
(Customs)
NCSA
NFFE
(Customs)
AFGE
COMMERCE
NFFE
NAGE
DEPARTMENT OF DEFENSE .
?
MTD
HEALTH, EDUCATION &
.
NFFE
WELFARE
AFGE
?
0EA
(Social Security)
AFGE
.
IAM-AW
HOUSING & URBAN
AFGE
DEVELOPMENT
AFGE
Office of Secretary
AFGE
TRANSPORTATION
AFGE
Army
IAM
NAGE
NAGE
ATOMIC ENERGY COMM
AFGE
NFFE
ENVIRONMENTAL PROTECTION
AFGE
AGENCY
AFGE
Navy
AFGE
GENERAL SERVICES ADM . .
?
AFGE
IAM
?
NFFE
MTD
INTERSTATE COMMERCE COMM .
.
AFGE
NAGE
NATIONAL AERONAUTICS & SPACE
NFFE
ADMINISTRATION
AFGE
Air Force
NFFE
RENEGOTIATION BOARD
AFGE
NAGE
SECURITIES & EXCHANGE COMM .
AFGE
AFGE
SELECTIVE SERVICE SYSTEM
NFFE
DEFENSE CONTRACT AUDIT .
AFGE
SMALL BUSINESS ADMIN
AFGE
DEFENSE MAPPING
AFGE
SMITHSONIAN
AFGE
DEFENSE SUPPLY
AFGE
CIVIL SERVICE COMM
AFGE
NATIONAL GUARD BUREAU.
?
ACT
VETERANS ADMIN
SEIU
?
AFGE
NAGE
NAGE
NFFE
NFFE
AFGE
JUSTICE
AFGE
ARMY & AIR FORCE EXCHANGE .
AFGE
(U.S. Marshals Service)
AFGE
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AUTHORITIES INVOLVED IN EXECUTIVE ORDER 11491 1
PROGRAM ADMINISTRATION
CIVIL SERVICE COMMISSION
Regulates and adVlses on Government-
wide personnel policy through the Fed-
eral Personnel Manuel. Provides Tech-
nical advice and assistance to agencies
an labor-management relations. Develops
labor relations policy guidance in con-
junction with the Office of Management
and Budget and transmits this to agen-
cies. Provides information on labor rela-
tions to agencies, anions and the public
IEvaluates agency labor relations opera-
tions and adherence to merit system
requirements. Provides labor relations
? training to rnonegers. supervisors and
personnel specialists.
OFFICE OF
MANAGEMENT AND BUDGET
Develops labor relationApolisy guidance for
agencies with Civil Service Commission
FEDERAL MECIATION
AND CONCILIATION SERVICE
Provides mediation services to assist parties
negotiating an agreement.
FEDERAL
LABOR RELATIONS COUNCIL
Altac'nment 2
SINV011 as principal administrative
authority for labor relations policy
making under E.O. 11491. Prepares
reports to the President with recom-
mendations for program changes.
Adjudicates appeals on arbitration
awards, decisions of the A/SUAR, and
negotiability disputes.
ASSISTANT SECRETARY OF LABOR
FOR
LABOR-MANAGEMENT RELATIONS
Determines units, supervises elections,
certifies exclusive representative. decides
unfair labor practice complaints, resolves
grievability and arbluability disputes, ad-
ministers standards of conduct for unions
IMPASSE RESOLUTION
DC 0,
? ?
0
0
tri
CO
co
tri
rs.)
rs.)
FEDERAL SERVICs
IMPASSES PANEL
Serves as final authority on resolution of
negotiation impasses.
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ATTACHMENT 8
U.S. FEDERAL LABOR RELATIONS COIJNOIL,
Washington, D.C., April 26, 1974.
To: Mr. Anthony F. Ingrassia, Office of Labor-Management Relations, Civil
Service Commission.
From: Harold D. Kessler, Acting Executive Director.
Subject: Council Case Handling Statistics.
The following is supplied pursuant to your request for a breakdown of certain
Council case processing statistics previously furnished your office by Mr. Frazier.
Received
Closed
I. 1972:
A/SLMR cases
26
16
Negotiability issues
19
10
Arbitration awards
10
3
Total
55
29
II. 1973:
A/SLMR cases
33
33
Negotiability issues
22
38
Arbitration awards
12
11
Total
67
82
III. 1974 (January?March):
A/SLMR cases
14
12
Negotiability issues
4
4
Arbitration awards
8
2
Total
24
18
FEDERAL LABOR RELATIONS COUNCIL
The Federal Labor Relations Council was established by Executive Order
11491, Labor-Management Relations in the Federal Service, which was issued by
President Nixon on October 29, 1969, effective on January 1, 1970. The Council
consists of the Chairman of the Civil Service Commission, who is the Chairman
of the Council, the Secretary of Labor and the Director of the Office of Manage-
ment and Budget.
The Council was established in response to a clearly recognized need for a
central authority to administer the Federal sector labor-management relations
program. Executive Order 10988, the first Executive Order governing labor-
management relations in the executive branch, had provided that authority to
administer the program should be vested in the heads of executive departments
and agencies with technical guidance and assistance provided by the Department
of Labor and the Civil Service Commission. Within a few years agencies and
unions clearly recognized the need for a central authority to administer the
program and make final decisions on policy questions and disputed matters.
According to the Report of the 1969 Study Committee, agencies had found that
the lack of authoritative central rulings on policy questions tended to build up
unreasonable pressures on the labor-management relationship. The mere ap-
pearance of bias inherent in agency resolution of disputes between the agency
and a union had placed an excessive burden on agency decisionmaking. Labor
organizations complained of the basic inequality in such an arrangement and
insisted on program supervision by a central authority and third-party handling
of disputed matters.
(81)
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Thus, the Council was established to provide overall policy and program
direction for labor-management relations in the executive branch and to resolve
specific disputes between unions and other Federal agencies. In resolving such
disputes, it serves as a third party in the sense that it is not a party to the
disputes before it. The ?Study Committee and the President concluded that a
central body of high-level officials in the executive branch, such as the Council
with its particular composition, would ensure the desired balance of judgment
and expertise in the resolution of disputes and in the administration of the
program. In effect, it is the responsibility of the Council to promote what the
Study Committee, which recommended its creation, described as "an equitable
balance of rights and responsibilities among the parties directly at interest?the
employees, labor organizations, and agency management?and the need, above
all, in public service to preserve the public interest as the paramount consid-
eration."
The functions of the Council are described in section 4(b) and (c) of the Or-
der. Section 4(b) states that the Council shall administer and interpret the
Order, decide major policy issues, prescribe regulation, and, from time to time,
report and make recommendations to the President. Section 4(c) provides that
the Council may consider, subject to its regulations? (1) appeals from decisions
of the Assistant Secretary of Labor for Labor-Management Relations issued
pursuant to section 6 of the Order (2) appeals on negotiability issues as pro-
vided in section 11(c) of the Order; (3) exceptions to arbitration awards; and
(4) other matters it deems appropriate to assure the effectuation of the purposes
of the Order.
To carry out its functions, the Council has issued rules and regulations which
are contained in Table 5, Chapter XIV, of the Code of Federal Regulations, Part
2410 of those rules sets forth the procedures under which the Council, as pro-
vided in section 4(b) of the Order, will issue interpretations of the Order and
8,:atements on major policy issues. Part 2411 of those regulations sets forth the
procedures under which the Council will review decisions of the Assistant
Secretary of Labor, negotiability issues, and arbitration awards.
The Assistant Secretary of Labor for Labor-Management Relations is respon-
sible for deciding questions as to the appropriate unit for purposes of exclusive
recognition and related representation issues; for supervising representation
elections; for deciding unfair labor practice complaints and alleged violations of
the standards of conduct for labor organizations; and for deciding whether a
grievance is subject to a negotiated grievance procedure or to arbitration under
an agreement. The Council will accept an appeal from an Assistant Secretary
decision in such matters where a major policy issue is present or where it
appears that his decision was arbitrary and capricious.
Because bargaining in the Federal sector takes place within an extensive
existing legal structure of statutes, executive orders and regulations, the Order
provides a means to resolve disputes as to whether a given bargaining proposal
conflicts with such law. Determinations in such cases are initially made by the
head of an agency. A union may appeal to the Council for a decision when it
disagrees with an agency head's determination that the proposal would violate
applicable law or regulation of appropriate authority outside the agency or the
Order, or, where the agency head has relied upon agency regulations, the union
may appeal to the Council if it believes the agency regulations, as interpreted
by the agency head, violates applicable law, the Order or regulation of appro-
p rite authority outside the agency.
The third type of appeal which may be brought before the Council is an
(exception to an arbitration award issued pursuant to a negotiated grievance
procedure. The Council will grant a petition for review of an arbitration award
only where it appears from the facts described that the exception presents
grounds that the ward violates law, appropriate regulation, or the Order, or
other grounds similar to those upon which challenges to arbitration awards are
sustained by courts in private sector labor-management relations.
From its creation in January 1970 through March 81, 1974, the Council has
received 218 appeals cases under section 4(c) of the Order-115 have been ap-
peals from decisions of the Assistant Secretary of Labor for Labor-Management
Relations which were issued pursuant to section 6 of the Order--74 have been
appeals from agency head determinations on negotiability issues under section
11(c) of the Order?and 29 have been exceptions to arbitration awards issued
Pursuant to agreements negotiated under the Order.
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When President Nixon signed E.O. 11491, he directed that a review and
assessment of operations under the Order be made after one year. That review
was initiated by the Council with public hearings in October 1970. Those hear-
ings were followed by an intensive study by the Council of major policy issues
which were raised and subsequently by a report to the President which resulted
in amendments to the Order.
In September 1973 the Council initiated its second general review of the
Federal sector labor-management relations program. As a first step, unions,
agencies and other interested parties were asked to suggest issues for consider-
ation, including possible alternative courses of action. After carefully examining
all the matters proposed for inclusion in the review, the Council selected 23
areas which became the central focus of the review and parties were asked
to submit substantive position papers on these areas. Following receipt and
review of the submissions, the Council held public hearings on April 8, 9, and
10, 1974. Representatives of selected agencies and labor organizations testified
at the hearings. The purpose of the hearings was to provide the Council an
opportunity to seek amplification of the written submissions which had been
previously submitted and to pursue proposals made.
Among the areas under review by the Council are the following:
(1) The treatment of specific categories of people under the Order, such as
supervisors, management officials, confidential employees, professional employees,
guards, and attorneys.
(2) Recognition procedures, including the requirement for secret ballot elec-
tions under the Order.
(3) The consolidation of existing bargaining units.
(4) The scope of negotiations, including the impact of agency regulations
and management rights on the scope of negotiations.
(5) Negotiated grievance procedures and arbitration.
(6) The requirement for review and approval of agreements to ensure that
they comport with law.
(7) Operation of third-party procedures.
(8) Official time for union representatives.
(9) The impact of agency reorganizations on the labor-management relation-
ship.
Those who testified were invited to submit supplementary statements to the
Council. Following a careful review and analysis of the transcript and the
parties' written submissions, the Council will prepare a report and recommenda-
tionsfor submission to the President.
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ATTACHMENT 4
U.S. FEDERAL 'SERVICE IMPASSES PANEL,
Washington, D.C., April 26, 197.4.
To: Anthony F. Ingrass'.a, Director, Office of Labor-Management Relations,
Civil Service Commission.
From: Howard W. Solomon, Executive Secretary.
RE: Background material for Chairman Hampton's testimony.
In response to your April 16, 1974, request for a brief statement on the
Panel's function, organization, membership, and case statistics for Chairman
Hampton's testimony on Federal labor relations legislation, the following infor-
mation is provided..
The Federal Service Impasses Panel, which has been in existence since August
10, 1970, is an agency e3tablished pursuant to section 5 of Executive Order
11491, as amended, to assist Federal agencies and labor organizations in the
resolution of negotiation impasses. If the Panel gives favorable consideration
to a request for assistance, it will make recommendations for the resolution of
the impasse.
The Panel is composed of seven individuals, appointed by the President from
outside the Federal Government who are experienced in the field of labor-
management relations awl who devote some or a major part of their time to
the arbitration of labor disputes. Many have also had War Labor Board expe-
rience in dispute settlement, and have served on Presidential Emergency Boards
under the Railway Labor Act, Taft-Hartley Boards of Inquiry, and various
State, county and municipal boards for dispute resolution.
The members of the Panel are: Jacob- Seidenberg, Chairman; Lloyd H. Bailer,
Richard L. Epstein, Albert L. McDermott, Jean T. McKelvey, Arthur Stark, and
James C. Vadakin.
The members of the Panel serve on a part-time basis to the extent dictated
by the volume of Panel business. Although three or more members constitute
a quorum, the entire Panel has been meeting almost monthly at its Washington,
D.C., office.
As the administrative head of the Panel, the Chairman is responsible for the
overall leadership and dintction of its operations. He presides at all meetings of
the Panel and provides coordination with the Federal Labor Relations Council,
the Federal Mediation and Conciliation Service, and the Department of Labor
regarding administration of the Order.
An Executive Secretary assisted by three Staff Associates, is responsible for
he day-to-day administration of the Panel's responsibilities. Encompassed
within the sphere of the Office of the Executive ?Secretary are ease handling,
:informal assistance to agencies and labor organizations, liaison with key staff
members of other third-party agencies providing services under the Order, and
other administrative responsibilities.
As of April 15. 1974, the Panel had received a total of 105 requests for assist-
ance. (Chart I) Except for five joint requests, all other actions have been
initiated by labor organizations. Ninety-two cases had been closed as of April
15, 1974, (Chart II) and 14 were still pending. Only 20 disputes, or 19 percent
of the closed cases, required a factfinding hearing. Eighteen of these factfinding
hearings were followed by the issuance of a Panel Report and Recommendation
for Settlement. It is noteworthy that 16 of the 18 Panel Reports and Recommen-
dations were accepted in toto by the parties. In the other two cases, the Panel's
recommendations were used as a basis for settlement. Most of the remaining
72 cases were settled informally either at the ['rehearing conference after fact-
finding had .5een directed, or during the course of negotiations which were
resumed voluntarily or at the direction of the Panel.
Chart III indicates that the most prevalent impasse issues, which have been
brought before the Panel, are: official time for union negotiations ; advisory
(84)
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versus binding arbitration as the terminal step of the negotiated grievance
procedure; union representation concerning promotions and awards; and sched-
uling of work. In the past year, however, the focus of the issues at impasse
coming to the Panel have shifted to issues concerning: merit promotions; details
and temporary promotions; incorporation of "just and sufficient" cause as a
criterion for disciplinary action; and contract language in which disputes over
the interpretation of agency regulations, which have been cited in the agreement,
would be subject to the negotiated grievance and arbitration procedure.
Attachments.
CHART I.?CASES RECEIVED
1970
1971
1972
1973
1974 1
Total
Cases received 16
24
26
30
9
105
'As of Apr. 15, 1974.
CHART II.?DISPOSITION OF CLOSED CASES
"
1970
1971
1972
1973
1974 1
Total
Withdrawn
1
6
8
8
1
24
Jurisdiction declined
7
1
8
Returned for more negotiation
4
1
5
Returned for more mediation
4
4
1
1
10
Returned for other voluntary arrangements
1
1
2
Directed to 11(c)
1
4
3
1
9
Settled prior to factfinding
1
5
8
2
16
Settled after panel report and recommendations
3
3
7
5
18
Total closed
16
24
25
24
3
92
'As of Apr. 15, 1974.
CHART III.?FREQUENCY OF ISSUES IN CASES
1970
1971
1972
1973
1974'
Total
Official time for negotiations
1
2
5
10
18
Grievance arbitration: advisory v. binding
2
4
4
6
16
Promotion and awards?union representation
3
3
3
6
15
Hours of work?including work scheduling
5
3
2
4
14
Grievance procedure
2
3
4
1
2
12
Leave
2
4
2
8
Pension, health, safety
1
1
5
1
8
Allocation of parking spaces
2
2
1
2
7
Service charge for dues withholding
2
5
7
Wages
3
1
1
1
6
Merit promotion
5
5
All other
8
37
22
35
19
116
Total
27
58
53
68
26
232
As of Apr. 15,1974.
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ATTACHMENT 5
U.S. DEPARTMENT OF LABOR,
OFFICE OF' THE ASSISTANT SECRETARY,
Washington, D.C., May 10, 1974.
Hon. ROBERT E. HAMPTON,
Chairman., U.S. Civil Service Commission,
Washington, D.C.
DEAR BOB The attached data is supplied pursuant to your request for a
breakdown of certain Assistant Secretary case processing statistics.
If you desire additional information, please let me know.
Sincerely yours,
PAUL J. FASSER,
Assistant Secretary of Labor.
Attachment.
FEDERAL LABOR-MANAGEMENT RELATIONS?WORRLOAD DATA?JAN. 1, 1970 THROUGH MAR. 31, 1974
1970
1971
1972
1973
1974%
Total
Representation cases:
Opened
1,409
970
583
679
179
3,820
Closed
755
1,311
599
642
172
3,479
Unfair labor practice cases:
Opened
240
197
243
343
70
1, 093
Closed_
63
262
203
256
94
878
Glievability and arbitrability cases:
Opened
5
26
18
49
Closed
1
17
10
28
Elections supervised
646
666
303
367
81
2, 063
Representation hearings held
18
88
69
62
13
310
Unfair labor practice hearings held
2
14
35
77
27
155
Assistant Secretary's decisions:
Representation cases
2
111
95
57
21
286
Unfair labor practice cases_
1
8
15
40
17
81
Standards of conduct cases
2
3
5
Assistant Secretary's rulings on requests for review
27
114
99
91
26
357
1 As of Mar. 31, 1974.
Total number of cases:
Opened 4,962
Closed 4, 385
Total number of hearings held. 465
Total number of Assistant Secretary's decisions 372
Total number of Assistant Secretary's rulings on requests for revsew 357
(86)
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ATTACHMENT 6
AN ASSESSMENT OF LABOR-MANAGEMENT RELATIONS CLIMATE
AT FEDERAL FIELD ACTIVITIES
Basis of the survey
Each of the Commission's ten Regional Labor Relations Officers conducted a
survey during the month of May, 1973 in order to sample the general climate
for labor-management relations existing at Federal field activities and installa-
tions. The sample was composed of field activities which in the judgment of the
Labor Relations Officers are representative of the overall perspective within
the region. Very small installations and those with little or no labor relations
activity were excluded from the sample.
The sample consists of 99 representative field activities that are engaged
as exclusive representatives of 362 units of recognition (bargaining units) under
in a bilateral relationship with unions that have been recognized or certified
the Federal program. In those situations where multi-unit agreements apply to
multiple units of recognition or to a nationwide agreement, where for adminis-
trative purposes, employees are organized into separate local unions on a geo-
graphical basis, all such elements are considered as a single unit for the purpose
of this study.
In order to provide for uniformity among the regions, a series of 13 questions
designed to elicit information to provide an overview of program successes and
problems was prepared for use as a survey agenda. A list of the questions used
as agenda is attached as Appendix "A."
Limitations of Findings and Assessment
We believe that we have selected a wide enough sample to establish a fairly
representative overview of the manner in which Federal labor relations are being
carried out. The 362 bargaining units that are represented in data gathered at the
99 installations represent greater than 10% of the total number of units that
exist. This percentage would of course be higher if a total count were made
of all units covered by multi-unit agreements, rather than to consider them as
a single unit. This would be reflected in perhaps a two point increase in percent-
age of sample.
The data that has been collected was derived through interviews with a single
level of management, the managers within the activities having labor relations
and/or personnel management responsibilities. The facts as established in this
report, therefore, are those as seen through the eyes of staff persons engaged
in personnel management activities. No contact was made with union repre-
sentatives whose views might have differed in some respects. An overview of
labor relations climate at local installations extracted from the findings of the
Commission's regular program of personnel management evaluation reviews
bears out in general terms the findings of this survey. All levels of management,
rank and file employees, and the unions give input to such evaluations. This fact
points to the general reliability of this survey.
Findings and assessment
1. status of Union-Management Relationship.?An overwhelming number of
activities report that they consider that satisfactory relationships have been
established with the unions with which they deal. One large installation reported
a good relationship despite the fact that the exclusively recognized local union
is under a trusteeship imposed by its parent national union. In the few cases
reporting adversary relationships, they were attributed to problems generated
by personality conflicts or deficiencies.
(87)
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88
A ssessment
On the basis of our findings a good case is made for the stability of relation-
ships that have evolved in the Federal collective bargaining process. One man-
ager "hit the nail on the head" when he said that good labor relations has im-
proved the installation's overall management process.
2. The process of negotiations.?Most activities reported that negotiations
with their unions progressed reasonably well, although there were a significant
number who believed that there had been delays that should have been avoided.
Reasons stated for delays were:
The immaturity of both parties.
Problems created by internal union political situations.
Delays ID headquarters approval. A number of agencies reported this. One
reported "nit-picking" on the part of headquarters reviewers.
Problems over union proposals that, managers considered as non-negotiable
issues.
Lengthy delays in the union membership ratification process. A number of
agencies reported this.
Delays caused when national union representatives failed to appear at sched-
uled meetings.
The hard stand that management took on contract issues.
Assessment
Many of 1:he problems cited will never be corrected under any system. As the
parties gain in maturity and become more knowledgeable and proficient in nego-
tiation techniques we can expect attitudinal problems to diminish to some extent
but never totally. The outstanding reasons cited for negotiation delays concern
the headquarters approval and the union ratification processes. The streamlining
of headquarters approval methods that have been initiated in many agencies
should be continued and improved.
3. Substance of agreements.?Only 17 instances were given where the activity
considers that their agreements are simple boilerplate. Most others believe
that their agreements are substantive and properly deal with means and meth-
ods for the problem solving process. Agencies are generally in agreement that
agreement language and content becomes more sophisticated and meaningful
each time that they are renegotiated. A few activities recognize that both parties
require additional training in negotiation techniques.
Assessment
There is no doubt but that more substantive agreements are being negotiated
as time goes on.
4. Understanding of the collective bargaining process.?A very large majority
of those questioned are of the opinion that the parties to negotiations are deal-
ing with each other with a better understanding of the collective bargaining
process. This item closely parallels item 2 to which we received similar response.
The general consensus is that the negotiating experience is an educational
process, and that the parties, especiall3, managers, had achieved a much better
understanding of bilateralism as a result of the negotiation experience. Man-
agers recognize their deficiencies and are aware that they need more training
and a still greater understanding of the collective bargaining process. A few
acknowledged that union representatives had matured faster than management
personnel, indicating the need for additional management training. Some, while
if the opinion that their skills had improved, realize that they are far from
:?xperts in collective bargaining techniques. One respondent stated that agree-
ment proposals are better researched and presented at the bargaining table. A
number of activities attributed a lack of understanding to the fact that nego-
tiating teams change frequently.
.4 ssessmeat
The passage of time during which both parties have gained experience in the
collective bargaining process has improved understanding of the collective
rgaining process on the part of both unions and managers. While problems
still exist, it seems quite apparent that labor relations training activity is
beginning to "pay off."
5. Unfair labor practice complaints.--40% of the activities reported that they
had had involvement in the Unfair Labor Practice machinery of the Executive
Order. Many of these had been resolved informally, or had been withdrawn by
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the union prior to settlement. Others had gone the full route to A/SLMR deci-
sions, had been dismissed by LMSA or were currently in process. Charges had
been filed on just about every possible issue. One activity reported that a union
that they deal with has made many threats but has not to date filed any charges.
An activity reported that it had been the recipient of 34 charges and that a union
trend seems to be developing to file unfair labor practice charges in lieu of
grievances.
Assessment
The filing of numerous unfair labor practice charges should not in itself be
considered as a breaking down of the Federal labor-management relations pro-
gram. Provisions for the orderly processing of such matters were placed in the
Executive Order for the use of the parties in dispute settlement efforts. While
the reports from this survey are not specific enough to make a sound evalua-
tion, there seems to be fragmented evidence that some unions have a misunder-
standing of the purpose and use of the unfair labor practice concept. There is
no question but what some frivolous charges have been filed. On the other hand
activity managers should govern their actions so as to minimize any deliberate
violations leading to charges. This entire area of unfair labor practice charges,
their causes, their effect upon continuing relationships, problems created by un-
favorable decisions, etc. might well be the future subject for a widespread study.
6. Official time for negotiations and dues withholding.?There were few nego-
tiation problems reported for either official time or dues withholding. Most activ-
ities gave a simple yes or no answer, and the record is not complete regarding
either the amount of time or of fee that has been negotiated. On the basis of those
reporting actual charge for dues withholding 76% report that a 2 cent fee has
been established; 12% report a fee higher than 2 cents; and 12% report a fee
lower than 2 cents. On the basis of those activities reporting actual arrange-
ments for negotiating time on the clock 75% reported the establishment of a
straight 40 hours; 14% less than 40 hours; and 11% one half of all duty time
that union negotiators are engaged in bargaining. This indicates that a definite
pattern has been established. In three quarters of all negotiation activity, there
is little or no actual negotiation on these issues.
7. Fragmentation of bargaining units.?Approximately 70% of the activities
reporting stated that they have had no problems because of the over-fragmen-
tation of bargaining units. A number of others that indicated problems char-
acterized them as minor, more a nuisance than any thing else. A few referred
to additional costs, generated as a result of separate negotiation sessions with
each union: Examples of specific problems are: overlap of units in periods of
reorganization; movement of employees between bargaining units; and union
whipsawing in negotiations.
Those activities that have instituted multi-unit bargaining as a solution to
unit fragmentation problems are well pleased with the results.
Assessment
There are few real problems resulting from fragmented units, most of which
were established under Executive Order 10988. The multi-unit agreement concept
provides one solution to many of these problems.
8. Agency regulations as an inhibitor to negotiations.-70% of the activities
reported that the imposition of higher agency regulations has not limited the
scope of bargaining or otherwise bad a significantly inhibitory effect on negotia-
tions. Several of those, however, say that they do not believe that the union
would necessarily agree with their judgment. On the other hand 10% made
definite statements that higher agency regulations have created negotiation
problems at their activities.
Aaseasment
It must be expected that opinions of both union and management representa-
tives would vary in this regard depending upon the degree of their collective
bargaining sophistication and their desire to negotiate significant issues in
collective agreements. The results of this survey do seem to indicate that there
is less of a problem in this area than might otherwise have been suspected.
9. Administration of agreements.?A majority of the respondents indicate
that agreement administration is working well at their activities and that
they have few problems in this regard. Most problems cited have their basis in
the steward-supervisor relationship or with the manner in which the stewards
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perform their representative duties. Problems that have developed in agreement
administration are listed as follows:
Personal animosities holding over from conflict at the bargaining table.
Problems because of personal relationships between the steward and the
supervisor.
Improper use of stewards time while engaged in representational duties.
Turn over in military supervision.
Frivolous grievances.
Supervisors violation of agreements.
Managers who have not embraced the spirit of bilateral dealings.
Assessment
There were no surprises in the replies to this question. They were about as
should have been expected, and generally parallel experience in the private sector.
10. Solving problems through union-management cooperation and application
of the negotiated grievance procedure.?There were very few examples of activi-
ties reporting that employee problems are not being solved through constructive
cooperation of the parties. Other than the problems reported in 9 above, the
program with the assistance of third parties seems to be working as contem-
plated, although at times there are delays and irritations. 25% of the respondents
noted that problems are being solved although the grievance procedure has not
been used. 10% advised that all grievances had been settled at the informal
stage. This is not to imply that there are no "horror stories" such as the local
union that has sent 23 grievances to arbitration.
asessment
This is an area in which the respondent was required to exercise judgment.
We do not know how the union representatives would have responded to this
question, but findings from evaluation reports do not suggest a different view-
point.
11. Supervisors.?Of all the matters raised in this survey, the greatest problem
that has surfaced concerns the lack of supervisory identity as a member of the
management team. Only 40% of the respondents consider that they have no
problems in this area. Despite the emphasis on supervisory training in labor-
management relations over the past two years, supervisors are generally identi-
fying with employees, rather than recognizing their role as members of the
management team. The problem is especially severe at the first level of super-
vision, but reports show that there are some problems at higher levels. A few
reports do indicate that the situation is improving. It is no doubt due to the
training that they have been receiving both in agency and Commission training
programs that the situation is improving but, much remains to be done in
continuation of this effort. Very few reports make a definite assertion that
"supervisors relate to the management team." The following are examples of
responses received from the activities:
Supervisors are reporting to union officials.
Supervisors are giving information to unions, and are siding with union posi-
tions.
Supervisors identify witn employees; there is little inducement to become a
supervisor.
Supervisors bow to union demands.
Some supervisors are former union officers with divided loyalties.
We have definite problems with 1st and 2nd level supervisors.
The turnover of military supervisors creates problems.
Problems are created bj the retention of supervisors in the unit under the
Section 24 savings clause of the Executive Order.
1st level supervisors pass the buck.
Assessment
Evaluation reports clearly support the information gathered in this survey.
This is a real problem which will be difficult to solve. The first level supervisor
is management's first line representative in the bilateral process. All efforts
should be made to engage him in full management participation.
12. Professional organizations.?None of the activities responding recited
problems in dealing with professional organizations. Very few, however, have
had dealings with such organizations.
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13. Third party procedures.-90 percent of the activities reported that they
had experienced no problems with third party procedures that had inhibited
their dealings with the unions. Many, in answer to this question, gave straight
"no" answers, making it difficult to evaluate gradations in their replies. Twenty
of the activities reported that they had no dealings involving a third party.
Twenty-two activities reported that third party agencies had facilitated their
dealings with the union. FMCS was cited very often in this context, although
in one instance FMCS efforts were said to be pro-union.
Assessment
Assuming that the sample used in this study is representative of the over-
all universe, about 10% of Federal local activities see third party procedures as
Inhibiting their dealings with unions representing their employees. Most com-
plaints have to do with delays in rendering decisions. Now that the third party
agencies have had experience and have "geared up" for discharge of their
responsibilities, decisions are coming out with an increasingly greater frequency.
It is encouraging to note that so many activities consider that third party
involvement has facilitated their dealings with other unions.
APPENDIX A
Questions asked in the survey of local installations
1. Does management at the estabishment level believe that their relationehlps
with organized unions are basically satisfactory?
2. If an agreement has been negotiated or renegotiated since November, 1971
(the effective date of the amended Order), did the negotiations move? along
reasonably well, or were there significant problems or delays? Identify the
problems and the extent and reasons for the delays. Were these negotiability
disputes? Delays in agreement approval?
3. Was the agreement substantive; did it deal with problems and issues par-
ticular to the employees in the unit of recognition? If renegotiated, has the
substance been increased over the previous agreement? If so, give examples, if
available.
4. Are there indications that the parties to the negotiation are dealing with
each other with better understanding of the collective bargaining process?
5. Have ULP charges been filed? What type of charges? How resolved?
6. Have any problems been indicated relating to use of official time for
negotiation? Dues withholding fees?
7. Have any problems been caused by unit structure (size and composition)
of bargaining unit? Illustrate.
8. Have agency regulations had a significantly inhibitory effect on agreement
negotiations? Have the parties identified this as a problem? Are there instances
of agency regulation changes narrowing the scope of negotiations?
9. Are there any indications as to whether agreement administration is work-
Ing well, or problems? Specify.
10. Any indications of constructive union-management cooperation to resolve
employee problems? If there is a negotiated grievance procedure, how has it
been working?
11. Any problems with identification of the supervisors role as a part of the
management team?
12. Any problems in dealings with professional organizations?
13. Any indication that third-party procedures (A/SLMR, FLRC, FMCS,
Panel) have facilitated or inhibited dealings between unions and management?
If so, specify.
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ATTACHMENT 7
CSC/OMB SURVEY OF TUE COLLECTIVE-BARGAINING PROCESS UNDER EXECUTIVE
ORDER 11491, Mama 1974
SECTION I. OVER VIEW
A profile strongly indicating the parties are learning to work with each other
in a productive bilateral atmosphere, generally devoid of major disagreements
or long delays in the negotiating process, emcrges from a comprehensive survey
of more than 3,000 exclusive bargaining units conducted by the Civil Service
Commission in conjunction with the Office of Management and Budget.'
While the parties generally have taken much longer to get to the table to
negotiate an initial basic agreement that is customary in the private sector,
once they get there they reach final accord in time periods somewhat com-
parable to their private-sector counterparts. There is strong indication, however,
that the existence of a prior dues-withholding agreement considerably extends
the period between certification or recognition and request for negotiations.
The survey also tends to show that while official time for union negotiators
have been a troublesome issue it was not widespread statistically, and once the
parties reached agreement over total amount the union used less than allotted.
On the negative side, the agency approval process tended to use as much or
more time than the parties used at the table to reach agreement. In almost
20 percent of the cases, special problems o:r circumstances were cited in the
approval process.
A quick overview of the findings:
1. In about 65 percent of the units, dues-withholding agreements were nego-
tiated before an initial basic agreement. (This figure likely is influenced by the
fact that some units achieved dues withholding under formal recognition, which
did not entitle the union to negotiate agreements on other matters.)
2. While dues withholding typically was achieved in six months or less (58
Percent) and in three months or less 45 percent of the time, only 23 percent
of the units were covered by basic agreements in less than six months and
more than 51 percent took a year or more to negotiate their initial agreement.
3. The existence of a dues-withholding agreement tended to delay the nego-
filiation of a basic agreement. In those units with prior dues agreements, it
took an additional six months or more to negotiate a basic agreement 65 percent
of the time and more than a year in 47 percent. Furthermore, in 29 percent of
the cases the part:ies have gone more than two years without a basic agreement
although a dues-withholding agreement exists.
4. Once a request was made to negotiate (initiated 87 percent of the time by
the union) the parties went to the table and started bargaining (including
ground rules) in one month or less 40 percent of the time and in three months
or less 76 percent of the time.
5. In 64 percent of the exclusive units, ground-rules negotiation took less than
one week, and in 87 percent the parties reached agreement in one month or less.
6. Once ground rules were determined, the parties completed negotiations in
three months or less in more than 66 percent of the units. Only about 18 per-
cent took more than six months, and about 8 percent took more than one year.
Actual period at the table once negotiations on a full agreement were started
was six months or less in 82 percent of the cases.
7. More than 71 percent of the units completed negotiations in 10 bargaining
sessions or less, with only about 12 percent taking more than 20 sessions.
Figures are based on 3,085 unit responses?representing 89 percent of exclusive-unit
population reported under Executive Order 11491. (See Section 2 for methodology and
t'overage.)
(92)
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8. The elapsed time between request to negotiate and effective date of the
current agreement was six months or less over 50 percent of the time and a
year or less 78 percent of the time.
9. The prevailing pattern for official time for union negotiators was 40 hours
maximum (53 percent), with the prevailing number of union negotiators being
three or four (57 percent). The actual time used per negotiator was 20 hours
or less in 57 percent of the cases, while less than 9 percent used more than 40
hours.
10.. In 256 cases, or 12 percent of the units, there were requests for excep-
tions to regulations; waiver of regulations was granted to 19 percent of the
requests, including a 50-percent rate on requests involving disciplinary proce-
dures.
11. The most time-consuming issues at the bargaining table were scope of
grievance procedure (indicating apparent confusion and problems with the 1971
amendments to the Order covering scope), promotion policies and procedures,
overtime policies and practices, time allowances for union stewards, manage-
ment rights, and official time for negotiations (in that order).
12. Third-party assistance was utilized in only 16 percent of the units, with
FMCS involvement predominant (344 cases). The Panel was utilized in 54
cases, the Council in 23 and the A/ SLMR in six.
13. The issues most often requiring third-party assistance were promotion
policies and procedures, grievance procedure, management rights, official time
for negotiations, dues withholding, work-week definition and overtime policies
(in that order).
14. In 69 percent of cases, the agreement was forwarded for agency approval
within a month after local negotiations were completed; In 7 percent, it was
sent forward in three-to-six months.
15. After settlement at the local level, the approval process took three or
more months in 36 percent of cases?including over six months in 16 percent,
and more than a year in 4 percent. In only 27 percent of the cases was approval
completed in less than a month. (These figures include time taken to resolve
negotiability issues, and to renegotiate provisions rejected by higher authority.)
SECTION IL METHODOLOGY
This survey was conducted at the request of the Federal Labor Relations
Council?initially, as a result of concerns raised at its first resident summit
conference last summer with the other third-party principals responsible for
administering the Government-wide labor relations program under Executive
Order 11491. During that conference, third-party principals acknowledged a
need?expressed before and since by agencies, unions and others?for informa-
tion, on a comprehensive basis, about just how the negotiating function is
working under the Executive Order program. As it developed, the survey
objective became more clearly defined as: To produce the basic information
essential to informed decision-making by program administrators on the collec-
tive-bargaining process?with special emphasis on those aspects staked out as
areas of immediate concern to the Council?for its use in connection with the
1973-74 general review of the program.
The Civil Service Commission, in conjunction with the Office of Management
and Budget, conducted this survey during the six-month period from September
18, 1973, to March 15, 1974. In anticipation of public hearings on the program
scheduled for April 8-10, the Council requested completion of the survey report
by April 1, 1974.
The basic survey instrument was a computer-coded questionnaire (Appendix
III) developed jointly by CSC's Office of Labor-Management Relations and
OMB's Executive Development and Labor Relations Division?with primary in-
put from the Mediation Service, Council and Impasses Panel. Technical as-
sistance from Commission experts in questionnaire-drafting and computer-
planning contributed to its design?so as to maximize the objectivity of the
responses in eliciting the information sought. Before "locking in," the design
and substance of the questionnaire were discussed with headquarters Labor
Relations Officers of major Departments and agencies whose suggestions were
incorporated, ani reviewed by Council staff for final approval.
Some 3,500 questionnaires?one for each unit of exclusive recognition reported
under the Order?were mailed to appropriate Federal officials at activities, Gov-
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94
ernment-wide. Their return was monitored by OLMR and the Commission's
Regional Labor Relations Officers for maximum response.
This effort produced 3,085 usable questionnaires by March 15, 1974?repre-
senting 89 percent of the 3,486 exclusive units recorded in CSC's Labor Agree-
ment Information Retrieval System (LAIRS) as of the November 1973 reporting
period for the latest annual recognitions-and-agreements census (Appendix IV).
More significant, survey responses included virtually all units covered by nego-
tiated agreements: 2,306 questionnaires indicated coverage by agreements in
force or awaiting higher-level approval?representing 102 percent of the 2,264
units under agreement in the LAIRS file as of November 1973.
For programming purposes, an extended deadline of February 15, 1974, was
established for keypunching; 2,868 questionnaires were received by the cutoff
date and processed by computer. An additional 217 questionnaires, which arrived
between February 15 and March 15, were tabulated manually in OLMR to pro-
vide the total survey coverage of 3,085.
SECTION uI. SUMMARY
At the outset, it is essential to recognize the unit basis of the statistical in-
formation produced by this survey.
Figures represent the number (or proportion) of exclusive recognition units?
as distinguished, for example, from the number (or proportion) of negotiated
agreements?covered by a given response. This is commonly indicated by the
term "situation."
Example.?To say that there are 513 multi-unit situations with respect to
agreement coverage means that 513 units are reportedly under multi-unit agree-
ments; it does not mean that there are 513 separate multi-unit agreements
reported.
The discussion elow is punctuated with parenthetical keys?referencing the
response table(s) in Appendix I, unless otherwise specified. In addition to pin-
pointing the statistical bases of summary findings, they facilitate location of
the detailed tabular breakdowns for more specific information.
1. Basic collective-bargaining patterns
In the beginning, there was dues withholding, forerunner of basic negotiated
agreements in almost two-thirds of situations covered by agreements today (04).
In fact, the Federal exaerience sugests a significant difference between the
sense of urgency--in terms of elapsed time?in obtaining dues?withholding
arrangements as compared with basic negotiated agreements:
The parties have managed to reach agreement on dues checkoff within three
months of recognition in over 45 percent of situations (05.a).
Whereas it has taken the parties a year or more from the date of recognition
to reach initial basic agreement in just over 50 percent of situations?half of
these stretch on for more than two years from recognition date (1).
And it has required over two years for the parties to achieve basic agreement
once dues checkeff had been acquired in nearly 30 percent of situations (05.b) ;
in over a fourth of units under withholding arrangements, the parties haven't
even negotiated a basic agreement--most of them continuing under dues checkoff
for over two years now (05.a-c).
In a majority of situations, the request for basic-agreement negotiations was
made within six months from the date of recognition (03) while the effective
date of initial basic agreement followed recognition by a year or longer (1).
Today, over nine-tenths of units are covered by basic negotiated agreement,
dues withholding or both--most of them by both (01). Where there is no basic
agreement in force (although there may be dues checkoff), situations are about
evenly divided between nci request for negotiations and some stage of the col-
lective-bargaining process following the request for initial negotiations (02).
In almost seven-tenths of situations, agreements currently in effect have been
negotiated since the November 1971 amendments to the Executive Order (f)?
nearly half of them for a two-year term, with another one-fifth operating under
automatic renewal (g). Over two-fifths of units covered by in-force negotiated
agreements are under basic agreements for the first time (2.a). And negotia-
tions for the current agre.unent were requested by th union in slightly over 87
percent of situations?by management in almost 13 percent (1.a).
Single-unit bargaining?normally involving a union Local and individual Gov-
ernment activity on a one-to-one basis?is the rule in the Federal program,
accounting for nearly four-fifths of units covered by negotiated agreements (c).
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A majority of all units covered by agreements (whether single- or multi-unit)
comprise a mix of General Schedule with Wage Grade employees?although
where they are separate, GS-only units outnumber WG-only units by more than
7?to--3 in terms of agreement coverage (e). Just over half of all units under
agreement contain 150 or fewer employees each, while a significant proportion
(nearly a fourth) include over 500 employees each (d).
2. Chronology of collective bargaining
Currently, in nearly three-fifths of situations the parties are somewhere at
mid-term in their negotiated agreement (3). From the request to negotiate, it
took them between a week and three months to actually start the negotiations
in almost three-quarters of situations (4.a) and between a week and six months
to reach an effective agreement in about half of situations (4.b).
Commonly, ground rules were wrapped up in one or two sessions, each lasting
four hours or less, during the first week (6). From there, the parties proceeded
to basic-agreement negotiations within a month in over three-fourths of situa-
tions (7).
Negotiations on the basic agreement were wrapped up within the first three
months in two-thirds of situations?commonly in 10 or fewer weekly bargaining
sessions, lasting four hours or less each (8).
Once the parties had wrapped up all agreement terms, their settlement went
forward within a month for agency-head approval in nearly seven-tenths of
situations 9.a). It was approved to become effective within three months from
the date the parties had reached agreement in about two-thirds of situations
(9.b). And in over four-fifhs of situations, there reportedly was no problem
encountered on the approval process (10).
3. Substance of collective bargaining
As a rule, the parties agreed to official-time bargaining for employees repre-
senting the union in negotiations during regular working hours (13)?with
straight time within the 40?hour limit as the prevailing formula, accounting for
nearly three-quarters of situations (14). And the official time commonly was
provided, in the parties' agreement, for from two to five employee-negotiators
(15).
That's what the parties agreed to, but how much official time was actually
used during the negotiations?
Commonly, one to five employee-negotiators wound up on the clock (16)?but
for only 20 hours or less in practice in almost three-fifths of situations (17.a).
Consequently, a total of 1000 or fewer hours were spent on the clock by the
entire union negotiating team during bargaining in over seven-tenths of situa-
tions ( 17 ) .
Respondents were asked to identify up to six of the most time-consuming
issues involved in the negotiations. This produced information on 10,549 re-
sponses to a selection of important subjects for bargaining-93 percent of them
discussed primarily in the basic-agreement stage of negotiations. Just over 6
percent of these responses indicated requests for exceptions to regulations on
the issues-19 percent of which were granted?while less than 9 percent in-
volved resort to a third party?commonly, a Federal mediator. (See Appendix
II, Table 2, for complete statistical analysis of bargaining issues?by frequency,
stage of negotiations, exception requests and resort to third parties.)
Thefl specific issues prominently identified as requiring the most time to nego-
tiate included:
Scope of the negotiated grievance procedure (identified in over half oe
situations).
Promotion policies and procedures (in over two-fifths).
Overtime policies and practices (in almost a fourth).
Time allowances for union stewards (in over one-fifth).
Management rights (in just under one-fifth).
Official time for negotiations (in over one-sixth).
Respondents were asked to identify up to four issues on which exceptions to
regulations were requested in conjunction with the negotiations; this produced
671 responses on selected issues. In most situations, the parties had an answer
to the request within a month; only a bare handful required over six months;
none took longer than two years (12.b).
Requests for exceptions to regulations figured in negotiations affecting less
than an eighth of situations (12)?most commonly involving promotion policies
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and procedures, travel time, scope of the grievance procedure (in that order).
Among issues with significant responses, the "success quotient"?in terms of
requests actually granted?ranged from only 5 percent on management rights
to 50 percent each on discipline, official-time bargaining and time allowances for
stewards.
Respondents were asked to identify up to six issues requiring third-party
involvement in connection with the negotiations; this elicited 939 responses on
selected issues. Resort to third parties was a factor affecting few (just 16
percent) situations?with the requests for third-party participation divided
about evenly between both parties acting in concert and the union acting alone
(18).
Third-party referrals bore some correlation (though not in the same order)
with issues identified as time-consuming?with the top six issues in terms of
third-party involvement identified as:
Promotion policies and procedures (in almost a quarter of situations).
Scope of the negotiated grievance procedure (in over one-fifth).
Management rights (in almost an eighth).
Official time for negotiations (also, in almost an eighth).
Service fee for dues deduction (in just over one-tenth).
Definition of the workweek (in about one-tenth).
Other issues with significant response as to third-party participation included
overtime policies and practices, discipline, the terminal step in arbitration, and
clothing and uniforms.
As a rule, the third-party assistance was invoked during negotiations on the
basic agreement (19)?as distinguished from the ground-rules stage?and did
not involve a suspension of the bargaining, in about three-fourths of situations
(20.a). Third-party participation lasted no longer than a month in a majority
of situations?most of them under a week?while it took over two years in less
than 2 percent of situations (20).
SUPPLEMENTAL REPORT 1
Delays in getting to the table
Delays in beginning negotiations following the request to negotiate or expira-
tion of the prior agreement were reported in just under one-fifth (496 responses)
of situations under agreement or in collective bargaining. Of these, respondent
activities attributed the delays to the union in 45 percent of situations (208),
to management in 22 percent (110) and to both parties in 33 percent (178).
The most commonly cited reasons were broken down as follows?in descending
order:
Delays on the union side?(1) lack of response or preparation, (2) studying
the proposals, (3) preoccupation with representation challenges, (4) unavail-
ability of union negotiators, (5) turnover among union officials.
Delays on the management side--(1) studying the proposals, (2) unavail-
ability of management negotiators, (3) reorganization of the unit, (4) turnover
among management officials, (5) preoccupation with other negotiations.
Delays on both sides-11) mutually agreed to time for preparation, (2) await-
ing issuance of 1971 amendments to Executive Order 11491, (3) impasse on
ground rules, (4) mutual agreement to defer start of bargaining, (5) scheduling
conflicts.
Other reasons commonly given for delay in beginning negotiations?affecting
both parties alike--included deaths and illnesses, holidays and vacations, work-
load requirements and training of negotiators. Some delays were attributed to
internal union activities--including election of officers. And both sides reportedly
were involved in delays caused by their resort to national headquarters for
assistance in preparing for the negotiations.
SUPPLEMENTAL REPORT 2
Delays in the approve process
A review of installations' comments on problems in higher-level approval of
negotiated agreements points up their keen and recurring dissatisfaction with
both the mechanics and the operation of such procedures.
Multi-tiered clearance requirements (sometimes bottlenecked by bickering
between different review levels), excessive delays in processing the approval,
repeated rejections of sanitized provisions, lost or misplaced agreements (some-
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times never returned)?these were common problems reported by respondent
activities. Most changes required by higher-level authority were? described?
without further specification?as minor technical revisions in negotiated lan-
guage, to bring it in line with agency policies and regulations. But many installa-
tions identified specific issues as most troublesome in securing agency-head
approval?in descending order:
Grievance procedures not in conformity with the amendments to Executive
Order 11491.
Limitations on assignment of unit work, including contracting out.
Pay policies and practices, including overtime and environmental-pay differ-
entials.
Scope of grievance-arbitration, including the end step and payment of arbi-
trator's fee.
Promotion and placement, including R-I-F procedures.
Dues withholding, including service charge.
Union-sponsored training, including leave policies and apprenticeship.
Some installations characterized the approval process as an engine of con-
troversy, at higher agency levels, over interpretation or intent of negotiated
provisions. A couple of respondent activities even reported "whipsawing" or
application of dual approval standards by their own national headquarters.
On the other side of the labor-management equation, many installations at-
tributed delays in agreement approval to the union?in membership ratification
where provided for in the agreement, or in national-union approval where that
was provided for. And in many situations, respondent activities ascribed delays
in agreement approval to such outside influences as questions concerning repre-
sentation and appeals to the Council on negotiability.
The most favorable experience with the approval process were reported where
the parties had managed to short-circuit the requirement?notably, where the
agency was experimenting with delegations of approval authority or where
continuing dialogue with higher-level authority during the negotiations made
approval a pro forma exercise.
APPENDIX I
BASIC PATTERNS
(a) Distribution of exclusive-recognition units, by unions within individual
agency:
(See Appendix II, Table 1.)
(b) Chronology of exclusive recognition, by unit recognition (or certification)
date:
Prior to Jan. 17, 1962 95
Jan. 17, 1962 through Dec. 31, 1969 1, 771
Jan. 1, 1970 through Nov. 23, 1971 704
Nov. 24, 1971 to present 400
(a)
Total 2, 970
Nature (or type) of agreement coverage, by unit of recognition:
Single unit 1, 852
Multiunit 513
Total 2, 365
(d) Number of employees, by unit, covered by negotiated agreements:
Under 50 687
51 to 150 667
151 to 250 287
251 to 350 173
351 to 500 191
Over 500 621
Total 2, 626
(e) Composition of units under agreement, by pay method:
General schedule 875
Wage grade 345
Both (mixed) 1, 312
Total 2, 532
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(f) Effective date of current negotiated agreement, by unit:
Prior to Jan. 17, 1962
38
Jan. 17, 1962 through Dec. 31, 1969
226
Jan. 1, 1970 through Nov. 23, 1971
440
Nov. 24, 1971 to present_
1,
--
597
Total_
(g) Termination date of current negotiated agreement, by unit:
2,
301
1 year
161
2 years
1,
097
3 years.
358
Over 3 years
59
Automatic renewal
501
Indefinite duration
102
? -
---
Total
2,
278
I. PRELIMINARY PROFILE
01. Is the unit covered by:
a. Basic negotiated agreement.
304
b. Dues-withholding agreement
562
e. Both._
1,853
d. Neither
269
Total
2,
988
02. If there is no basic agreement, what is the parties' current status?:
a. Negotiations rot requested
459
b. Negotiations requested; have not begun yet
114
r. Negotiations started; not completed yet.
175
d. Negotiations completed; agreement waiting approval
149
Total
897
03. How much time elapsed between the date of recognition and the request to
negotiate initial basic agreement?:
Under 1 week
110
1 week to 1 month
283
1 to 3 months....463
3 to 6 months
401
6 to 9 months_
280
9 to 12 months
224
12 to 18 months
176
18 to 24 months
105
Over 24 months..
387
Total
2,
429
04. Did the effective date of the dues-withholding agreement precede the effective
date of initial basic agreement?:
Yes 1, 588
No 1,009
05. How much time elapsed between:
a. Certification, or recognition, and the effective date of the dues-
withholding agreement?:
Under 1 week_.
268
1 week to 1 month
377
1 to 3 months
422
3 to 6 months
296
6 to 9 months_
184
9 to 12 months_
167
12 to 18 months_ _
149
18 to 24 months..
101
Over 24 months_..
366
Total
2,
330
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Approved For Release 2001/09/06 9tIA-RDP751300380R000500220001-6
05. How much time elapsed between?Continued
b. Date of the dues-withholding agreement and the effective date of
initial basic agreement?:
Under 1 week
241
1 week to 1 month
98
1 to 3 months
164
3 to 6 months
182
6 to 9 months
168
9 to 12 months
176
12 to 18 months
223
18 to 24 months
129
Over 24 months
555
Total
1,
936
c. Date of the dues-withholding agreement and (where no initial basic
agreement has been completed) the present?:
Under 1 week 31
1 week to 1 month 22
1 to 3 months 16
3 to 6 months 22
6 to 9 months 15
9 to 12 months 23
12 to 18 months 35
18 to 24 months 27
Over 24 months 451
Total 642
II. FACTORS RELATED TO TIME REQUIRED TO NEGOTIATE AGREEMENTS
A. Background
1. How much time elapsed between date of recognition and the effective date
of the initial agreement?
Under 1 week
1 week to 1 month
1 to 3 months
3 to 6 months
6 to 9 months
9 to 12 months
26
43
185
259
283
297
12 to 18 months
418
18 to 24 months
187
Over 24 months
540
Total
2,
238
a. Which party made the original request to negotiate the current
agreement?
Management
292
Union
1,
994
Total
2,
286
2. a. Is the current agreement:
Initial
1,
003
Renegotiated
1,
300
Total
2,
303
3. At what stage of the collective-bargaining proces are the parties now?
a. Mid-term in the current agreement; negotiations for successor
agreement not requested yet
b. Previous agreement has expired; negotiations for new agree-
ment not requested yet
c. Negotiations for new agreement have been requested; have
not begun yet
1,
367
109
291
d. Negotiations for new agreement are under way now
e. Negotiations for new agreement have been completed; cur-
rently awaiting approval
265
253
Total
$2,
285
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Approved For Release 2001/09/061061A-RDP751300380R000500220001-6
4. How much time elapsed between:
a. Request to negotiate and actual start of negotiations (including
ground rules)?
Under 3 week 87
1 week to 1 month 804
1 to 3 months 825
3 to 6 months 332
6 to 9 months 77
9 to 12 months 47
12 to 18 months.. 39
18 to 24 months... 19
Over 24 months 21
Total 2, 251
h. Request to negotiate and effective date of current (or most recent)
agreement?
Under 1 week
17
1 week to 1 month
110
1 to 3 months_
380
3 to 6 months_
476
6 to 9 months
313
9 to 12 months._
228
12 to 18 months._
208
1S to 24 months._
89
Over 24 months
130
TotaL
1,
951
B. Time in Negotiations
6. What time frame was covered by negotiations on ground rules?
Under 1 week
week to 1 month
1,
353
482
I to 3 months
179
3 to 6 months
36
6 to 9 months
24
9 to 12 months
14
12 to 18 :months
8
18 to 24 months
6
Over 24 months
9
Total
a. How many negotiating sessions were held on ground rules?
2,
111
1.
1,111
2.
454
3.
191
4.
99
5
51
6.
32
7.
6
8.
14
9_
3
10 to 20
18
Over 20
5
b. How frequent were these sessions on ground rules?
aily _
1,
984
806
Weekly
571
Monthly
55
Less often
464
Total
1,
896
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Approved For Release 2001/09/06 i&IA-RDP751300380R000500220001-6
B. Time in Negotiations?Continued
6. What time frame was covered by negotiations on ground rules?Con.
c. How many hours did each ground-rules session average?
1 hour 532
2 hcurs 702
3 hours 322
4 hours 309
5 hours 27
6 hours 38
7 hours 5
8 hours 22
Total ---
1, 957
7. How much time elapsed between completion of ground rules and beginning
of basic-agreement negotiations?
Under 1 week 592
1 week to 1 month 989
1 to 3 months 376
? 3 to 6 months 85
? 6 to 9 months 21
9 to 12 months 12
12 to 18 months 9
18 to 24 months 5
Over 24 months 6
2
Total_ , 095
8. What calendar period was covered by negotiations on the basic agreement?as
distinguished from ground rules?
Under 1 week 452
1 week to 1 month 458
1 to 3 months 515
3 to 6 months 331
6 to 9 months 122
9 to 12 months 103
12 to 18 months 71
18 to 24 months 43
Over 24 months 52
Total 2, 147
a. How many negotiating sessions were held on the basic agreement?
1 189
2
177
3
224
4
199
5
185
6
147
7
83
8
112
9
61
10
115
11 to
20
344
21 to
30
97
31 to
40
81
41 to
50
19
51 to
60
10
61 to
70
12
71 to
80
14
Over
80
23
Total
2,
092
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Approved For Release 2001/09/06 : CIA-RDP75600380R000500220001-6
102
8. What calendar period was covered by negotiations on the basic agreements?as
distinguished from ground rules--Continued
b. How frequew; were these sessions on the basic agreement?
Daily_ 4
Weekly
801
Monthly
117
Less often
181
Total
c. How many hours did each basic-agreement session average?
i hour
2,
138
73
2 ]tours
394
3 hours
505
4 hours_
548
5 hours _
136
6 hours
222
7 hours
48
8 hours
105
9 hours
53
Total 2, 034
9. How much time elapsed between:
a. Settlement on all agreement terms (ground rules and basic) and the
date it was sent forward for agency approval?
Under 1 week 440
1 week to 1 month 972
1 to 3 months 365
3 to 6 months 139
6 to 9 months 38
9 to 12 months_ 34
12 to lti months 23
18 to 24 months 9
Over 24 months 14
Total 2, 034
b. Settlement on all agreement terms ground rules and basic) and the
date of approval?
Under 1 week 62
1 week to 1 month 455
1 to 3 months 709
3 to 6 months 385
6 to 9 months 163
9 to 12 months 77
12 to 18 months 45
13 to 24 months 13
Over 24 months_ 17
Total_ 1, 926
10. Were any special problems or circumstances involved in the approval
process?
Yes 363
No 1,604
1,967
C. Issues in Negotiations
11. What issues consumed the most time in negotiations, over-all? Designate
whether each was discussed primarily in the ground-rules or basic-agreement
stage of negotiations.
(See Appendix II, table 2.)
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Approved For Release 2001 -6
12. Were there requests for exceptions to regulations in connection with the
negotiations?
2
Yes 56
1, 911
No
Total
a. What issues were involved? Indicate for each whether the exception
was granted or refused.
(See Appendix II, table 2.)
b. How much time (aggregate) elapsed between the requests and the
answer?
Under 1 week 135
1 week to 1 month 114
1 to 3 months 30
3 to 6 months 12
6 to 9 months 1
9 to 12 months 2
12 to 18 months 1
18 to 24 moiths 1
Over 24 months 0
---
Total 296
13. Was official time authorized for employees representing the union in negotia-
tions during regular working hours?
Yes 1, 878
No 367
---
Total 2, 245
14. If official time was authorized, what formula was agreed to?
Straight time under 40 hours maximum 387
Straight time up to 40 hours maximum 970
Half-time under 80 hours maximum 50
Half-time up to 80 hours maximim 33
Half-time over 80 hours maximum 117
Other 285
2, 165
Total 1, 842
15. How many employee-negotiators representing the union did the parties agree
would be entitled to official time?
1 83
2 288
3_ 647
4_ 419
5_ 286
6_ 84
7_ 27
8_ 21
9_ 2
Total 1, 857
16. How many employee-negotiators (both regulars and alternates) representing
the union actually used the official time authorized?
1__ 142
2__ 311
3 las- 623
4__ 323
5_ 204
6 89
7_ 25
8 17
9 4
Total
1, 738
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Approved For Release 2001/09/061041A-RDP751300380R000500220001-6
17 How much official time (aggregate number of hours) actually was used during
the negotiations?
to 100
1,299
1 _
101 to 200
339
201 to 300
65
301 to 400
24
401 to 500
46
501 to 600
12
Over 600_
11
Total ?1-,-79-6
a. Average hours used per employee-negotiator.
1 to 10_ 597
11 to 20 400
21 to 30 284
31 to 40 308
42 to 50 32
51 to 60 47
61. to 70. 11
71. to 80. 27
81 to 90. 7
Over 90 28
Total 1, 741
D. Third-party involvement
18. Did negotiations involve resort to a third party?
Yes
352
1, 8327
No_
?
Total 2, 189
Designate which third part (or parties).
FMCS...344
FSIP 54
FLRC 23
A/SLMR
6
Other
47
Total_ 474
Indicate whether management, union, both or neither requested the
assistance.
Management 21
Union
140
Both
137
Neither_ 23
Total
19. At what stage of negotiations was third-party assistance invoked?
Ground-rules stage
Basic-agreement stage
Both
321
36
307
35
Total_ 378
20. What time frame was covered by the period of third-party involvement?
Under 1 week 134
1 week to 1 month 73
1 to 3 months 66
3 to 6 months 53
6 to 9 months_ 24
9 to 12 months _ 17
12 to 18 months_ 20
18 to 24 months 12
Over 24 months 7
Total__
406
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Approved For Release 2001/09/06 19A-RDP751300380R000500220001-6
20. What time frame was covered by the period of third-party involvement?Con.
a. For how much of this period did negotiations continue?
All 110
Most 61
Some 133
None 112
Total 416
21. What issues were referred for third-party involvement? Specify third part
for each.
(See Appendix II, Table 2.)
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>
13
13 AGENCY
UNIONS
'APPENDIX II (Table
1)
>
13
13
-I
0
(D
CL
-In
-I
PO
(D
Ri
2,1
0
(1:0
INJ
CD
CD
-a
8
8
--0.)
(,)
5;
*1
CO
s4
cn
1010
CD
CD
C4
CO
CD
PO
CD
CD
cn
CD
CD
INJ
INJ
CD
CD
CD
-a
47)
-I
0
<
PATCO
IBEW
IAFF
AFGE
LIMA
GAM
U14
MMP
MTC
NMU
IUOE
Other
IFPTE . SEW<
AFL-CIO
(D
CL Agriculture
-Ino
o Commerce
-I
Air Force
PO
(D Army
FIT Navy,
2,1
(1) National Guard
(D
INJ DSA
CD HEW
CD
-a
,, HUD
CDOD
OD Interior
CD Justice
.. Labor
C) Transportation
Treasury
PO GSA
013
13 NASA
s4
cn NLRB
CU VA
CD
CD rvA
C.)
CO Other (Includes
CD NAFAO
POCD
CD Unspecified
CD,
CD
9
1
2
9
6
2
17
2
1
1
20
20
24
?
1
1
1
1
2
1
48
27
131
249
216
27
43
141
36
33
36
4
56
16
61
11
164
58
15
5
5
3
1
1
3
1
2
3
2
3
4
24
29
4
4
1
2
1
1
1
1
4
2
2
5
30
6
2
1
3
18
3
2
6
1
1
4
2
1
1
5
1 1 3
1 11
13 6 10
6
1
2 4
1
1 1 3
1 6
7
12
2 2
14 6
1 12
2
cn
CD TOTAL
CD
9
41
71
1372
21
8
73
7
46
33
9
18 27 90
INJ
INJ
CD
CD
CD
-a
Co
9-1?000ZZ009000t109?008 Cl
9/dtl-VIO 90/60/1.00z ase6i '8110.16Y13eAoiddv
AGENCY
UNIONS
2
NCSA
NFFE
IFFP
FOP
NAGE
NTEU
NEA
ANA
NAPFE
Other
Independent
Un-
specified
TOTAL
Agriculture
66
2
6
1
124
Commerce
12
39
1
3
91
Air Force
46
21
2
1
3
1
239
Army
96
1
1
56
13
3
522
Navy
31
6
3
51
1
48
4
493
National Guard
17
47
14
111
DSA
8
1
15
1
1
79
HEW
44
3
2
2
208
HUD
14
2
53
Interior
130
4
4
7
3
205
Justice
2
38
Labor
1
5
Transportation
14
75
1
2
2
178
Treasury
9
2
1
82
2
1
121
GSA
20
6
5
3
3
2
119
NASA
3
1
21
NLRB
10
10
VA
48
2
14
1
31
2
3
291
.
TVA
3
20
Other (Includes
NAFAs)
18
10
3
2
100
Unspecified
12
1
1
1
1
24
57
T 0TAL
9
583
15
6
343
84
7
36
5
122
50
3085
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APPENDIX It (Table 2)
(See footnotes at p. 3.)
Stage of Negotiations
Exceptions to Regulations
Referrals
Third-Party Involvement
(%)
Ground-Rules
(%)
Basic
(%)
Requests
Granted
(7.)
FMCS
(%)
PSI?
(%)
FLRC ?the'
(%)
Most Time-Consuming
Total
Issues
ALL TCCHrq.
10,549
67.
937.
671
19%
939
817.
87.
37,
87.
Annual Leave
283
47.
957.
12
337.
13
91%
(2)
(2)
97.
Arbitration Hearing:
Official Time
29
137.
877.
5
(2)
9
1007.
0
0
0
Arbitration Procedure (Scope)
291
47.
957.
10
177,
20
727.
227.
(2)
67.
Arbitrator's Authority:
Final Step
87
17.
997.
3
(2)
26
727.
287.
(2)
(2)
Arbitrator Selection, Payment
49
0
1007.
1
0
6
1007.
(2)
(2)
(2)
Assignment Clause
114
37.
97%
2
(2)
9
1007.
(2)
(2)
(2)
Cafeteria Services
16
0
1007.
0
0
1
1007.
0
0
0
Call-In Allowance
65
37.
977.
9
257.
1
0
1007.
(2)
(2)
Clean-Up (Wash-Up) Time
142
37.
977.
2
(2)
10
897.
117.
(2)
(2)
Clothing and Uniforms
126
47.
947.
29
117.
25
797.
87.
57.
87.
Discipline Clause
351
27.
981.
17
502.
29
1007.
(2)
(2)
(2)
Dues Withholding (Charge)
290
37.
977.
15
387.
38
857.
97.
37,
37.
Dues Withholding (General)
210
97.
907.
12
(2)
14
857.
(2)
(2)
157.
EEO Joint Committee
46
0
1007.
5
(2)
4
1007.
0
0
0
EEO (Nondiscrimination,
General)
47
37.
977.
4
o
8
1007.
0
0
0
Environmental Pay
149
(1)
987.
10
137.
6
1007.
0
0
0
Facilities, Services (Union
Use)
308
37.
967.
13
29%
23
907.
107.
(2)
(2)
9-1?000ZZ009000t108?0089/dCIU-VIO : 90/60/1.00Z eseeieu -10d peACLIddV
2
(See footnotes at p. 3.)
Stage of Negotiations
Exceptions to Regulations
Referrals
Third-Party Involvement
Ground-Rules
(%)
Basic
(%)
Requests
Granted
(%)
FMCS
(%)
FSIP
(X)
FLRC
(%)
Other
(X)
Most Time-Consuming,
Total
Issues
Grievance Meetings: Repre-
sentation Presence
242
3%
95%
5
33%
9
1007.
(2)
(2)
(2)
Grievance Procedure (Scope)
1,208
3%
97%
49
23%
78
847.
1%
47.
117.
Health and Safety (General)
249
0
99%
15
17%
17
847. ?
8%
87.
(2.)
Joint Committees (Except EEO)
148
4%
95%
20
20%
11
677.
(2)
227.
117.
Management Rights
436
. 3%
96%
26
5%
41
867.
(2)
67.
8%
Meal and/or Rest Periods
151
3%
97%
6
(2)
13
927.
87.
(2)
(2)
Miscellaneous Leave (Except
Annual and Sick)
153
2%
967.
22
237.
15
100%
0
0
0
Negotiating Team:
Composition
98
77%
227.
3
(2)
6
1007.
(2)
(2)
(2)
Official Time for Nego-
tiations
414
74%
24%
21
50%
41
767.
167.
(2)
87.
Overtime Policies, Practices
. 539
2%
97%
31
10%
30
767.
(2)
127.
127.
Parking and Transportation
136
1%
98%
7
(2)
19
82%
187.
(2)
(2)
Past Practices Clause
116'
0
99%
6
(2)
19
817.
137.
(2)
67.
Printing, Distributing Agree-
ment
94
47.
96%
4
(2)
14
927.
82.
(2)
(2)
Promotion Policies?
Procedures
979
3%
96%
79
187.
85
817.
57.
97.
47.
Reduction-in-Force
Provision
193
3%
95%
17
257.
12
787.
227.
(2)
(2)
Seniority
181
4%
95%
21
(2)
7
837.
17%
(2)
(2)
Sick Leave
174
2%
97%
16
437.
4
1007. ,
0
0
0
9-1.000ZZ009000t108?0089/dC11:13W110 : 90/60/1?00Z eSeelell -10d peACLIddV
3
(See footnotes below.)
Stage of Negotiations 1 Exceptions to Regulations
Referrals
Third-Party Involvement
(%)
Ground-Rules
(%)
Basic
(%)
Requests
Granted
(%)
FMCS
(%)
FSIP
(%)
FLRC Other
(%)
Most Time-Consuminik
Total
Issues
Stewards: Time Allowances
497
(1)
99%
10
501
18
86%
77.
77.
(2)
Subcontracting (Contracting ,
Out)
108
17.
997.
13
(2)
19
867.
77.
(2)
77.
Time (Productivity)
?
Studies
10
0
1007.
1
(2)
0
0
0
0
0
Tools and Equipment
43
0
1007.
0
0
1
1007.
0
0
0
Training (General)
287
17.
987.
'12
297.
8
1007.
(2)
(2)
(2)
Transfer CleufP
18
0
1002.
4
(2)
3
100%
(2)
(2)
(2)
Travel Time
129
47.
957.
52
87.
8
767.
127.
127.
0
Unit Definition (Recognition
88
Fr%
897.
2
107.
7
50%
(2)
(7)
(2)
Unit Work (Limitations).
152
2%
987.
7
(2)
17
447.
317.
197.
67.
Visitation: Union Officials
86
87.
927.
1
(2)
- 5
807.
0
0
207.
Wage Surveys (Union
?
Participation)
49
37.
947.
4
337.
2
1007.
0.
0
0
Workweek (Definition)
290
27.
987.
19
317.
37
827.
97.
67.
3%
Lipper Clause
29
47.
967.
2
(2)
8
877.
137.
0
0
Ot%er (Not Classified
Above)
649
77.
927.
47
237.
143
677.
87.
17.
247.
(I) -- Less than 0.5 percent.
(2) -- Statistically negligible or
indeterminable.
NOTES: Where percentages in the "Ground-Rules" plus "Basic" columns do not add up to 100%, the
difference represents situations of overlap--i.e., where the issues were discussed for
approximately equivalent periods of time in both stages of negotiations.
The "Other" column under Third-Party Involvement does not include referrals to the Assis-
tant Secretary (A/SUR)--reportedly involved in only two issues: Promotion Policies
(1 response), Unit Definition (2 response).
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Approved For Release 2001/09/06 : CIA-RDP75600380R000500220001-6
111
DIRECTOR
E
U.S. CIVIL SERVICE COMMISSION
OFFICE OF LABOR-MANAGEMENT RELATIONS
WASHINGTON. D.C. 20415
DIRECTOR OF PERSONNEL
APPENDIX III
APPROVED OSA 0006.OSC.OT.O
October 1, 1973
The Civil Service Commission in conjunction with the Office of Management
and Budget will be conducting a Government-wide survey of the negotiating
function under Executive Order 11491 during the months of October-November
1973.
The purpose of this study is to determine how the collective-bargaining pro-
cess is working, with a view toward how it might be made to work better. It
will be particularly responsive in meeting the widely expressed need for
basic information, on a comprehensive basis, about the time required to
negotiate collective-bargaining agreements under the Order.
The enclosed questionnaire is designed to elicit factual information on the
experience and current status of negotiations at your activity--primarily in
terms of the time and issues involved. Covering the entire collective-bar-
gaining process, start to finish, the survey deals centrally with bargaining
on ground rules for the conduct of negotiations and on the basic agreement
itself. Preliminary information, on the pre-negotiation period, is sought
even where bargaining has not been requested.
The questionnaire is post-paid and self-addressed to the CSC Regional Office
serving your activity. The Labor Relations Officer there will monitor time-
ly receipt of your response, and is available to answer any question you may
have concerning the questionnaire.
When you have completed it, please fold the questionnaire twice (with the
self-address showing on the outside) and staple it once for mailing. It must
be received in the Regional Office by October 31, 1973.
Thanks in advance for your timely cooperation in this important venture.
Enclosure
r
L__1111 111
1883-1973
MERIT PRINCIPLES ASSURE
OUAUTY AND EQUAL OPPORTUNITY
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1 1 2
CODE KEYS
GROUP!. (AGENCY CODES)
PLEASE SELECT CODES THAT MOST NEARLY DESCRIBE YOUR SITUATION.
01
Agriculture
15
USIA
02
Commerce
16
Transportation
03
Air Force
17
Treasury
04
Army
18
AEC
05
Navy
19
EPA
06
National Guard
zo
GSA
07
DSA
21
NASA
06
HEW
22
NLRB
09
HUD
23
VA
10
Interior
24
GPO
11
Justice
25
0E0
12
Labor
26
TVA
13
State
27
Non-Appropriated Fund
14
AID
28
Other
GROUP II. (UNION CODES)
01 Air Traffic Controllers (PATC0)
02 Boilermakers (BBF)
03 Electrical Workers IIBEW)
04 Fire Fighters (IAFF)
06 Government Employees (AFGE)
06 Laborers I LIUNA)
07 Lithographers (LPIU)
06 Machinists ilAM)
09 Minters, Mates & Pilots (MMP)
10 Metal Trades Councils (MTC)
11 National Maritime Union (NMU)
12 Office & Professional Employees (OPE IU)
13 Operating Engineers (WOE)
14 Profeesional & Technical Engineers (vies AFTE)
15 Retail Clerks (RCIAI
16 Seafarers (SIU)
GROUP III. (DATE CODES)
1 Prior to Jan. 17, 1962
2 Jan. 17, 1962 through Dec. 31. 19
GROUP IV. (UNIT CODES)
1 Under 50 employees
2 51-150 employees
3 151.250 employees
GROUP V. (DURATION CODES)
1 One year
2 Two years
3 Three years
17 Service Employees ISEIU)
18 State, County Employees (AFSCME)
19 Teachers (AFT)
20 Typographers (ITU)
21 Other AFL-CIO
22 Air Traffic Specialists INAATS)
23 Custorns Service Ann. (NCSA)
24 Federal Employees (NFFE)
26 Federal Police IIFFPI
26 Fraternal Order of Police (FOP)
27 Government Employees (NAGE)
28 Notional Treasury Employees (was NAIRE)
29 National Education Ann. (NEA)
30 Nurses (ANA)
31 Postal & Federal Employees MAFFEI
32 Other Independent
3 Jan, 1, 1970 through Nov. 23, 1971
4 Nov. 24, 1971 to Present
4 251-350 employees
5 351.509 employees
Over 500 employees
4 Over three years
5 Automatic renewal
6 Indefinite duration
DETACH THIS TEARSHEET FOR CONVENIENT
REFERENCE, COMPLETE ATTACHED QUESTIONNAIRE,
FOLD TWICE, STAPLE OR SEAL, AND MAIL
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GROUP VI. (TERM CODES)
1 Under one week
2 One week to one month
3 One to three months
4 Three to six months
5 Six to nine months
GROUP VII. (OFFICIAL TIME CODES)
1 Straight time under 40 hours max.
2 Straight time up to 40 hours max.
3 Half-time under 80 hours max.
GROUP VIII. (THIRD PARTY CODES)
1 Federal Mediation Service (FMCS)
2 Impasses Panel (FSIP)
3 Council IFLRCI
GROUP IX. (SPECIALTY CODES)
1 Ground-rules stage
2 Basic-agreement stage
3 Exception granted
4 Both
GROUP X. (SUBJECT-MATTER CODES)
01 Annual Leave
02 Arbitration Hearing: Official Time
03 Arbitration Procedure (Scope)
04 Arbitrator's Authority: Final Step
05 Arbitrator Selection, Payment
06 Assignment Clause
07 Cafeteria Services
08 Call-In Allowance
09 Clean-Up (Wash-Up) Time
10 Clothing and Uniforms
11 Discipline Clause
12 Dues Withholding (Charge)
13 Dues Withholding (General)
14 EEO Joint Committee
15 EEO (Nondiscrimination, General)
16 Environmental Pay
17 Facilities, Services (Union Use)
18 Grievance Meetings: Representation Presence
19 Grievance Procedure IScope)
20 Health and Safety (General)
21 Joint Committees (Except EEO)
22 Management Rights
23 Meal and/or Rest Periods
24 Miscellaneous Leave (Except Annual and Sick)
6 Nine to 12 months
7 Twelve to 18 months
8 Eighteen to 24 months
9 Over 24 months
4 Half-time up to 80 hours max.
5 Halftime over 80 hours max.
6 Other
4 Assistant Secretary )4/SLMR?LMSA)
5 Other
5 Exception refused
6 Management
7 Union
8 Neither ?
25 Negotiating Team: Composition
26 Official Time for Negotiations
27 Overtime Policies, Practices
28 Parking and Transportation
29 Past Practices Clause
30 Printing, Distributing Agreement
31 Promotion Policies, Procedures
32 Reduction-in-Force Provision
33 Seniority
34 Sick Leave
35 Stewards: Time Allowances
36 Subcontracting (Contracting Out)
37 Time (Productivity) Studies
38 Tools end Equipment
33 Training (General)
40 Transfer Clause
41 Travel Time
42 Unit Definition (Recognition Clause)
43 Unit Work (Limitations)
44 Visitation: Union Officials
46 Wage Surveys (Union Participation)
46 Workweek (Definition)
47 Zipper Clause
48 Other (Not Classified Above)
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_
CSC REGION
Leave wank)
PLEASE COMPLETE ALL BOXES BELOW;
ANSWER ALL QUESTIONS, ESTIMATING OR
APPROXIMATING WHERE NECESSARY. (TYPE
OR PRINT ALL ANSWERS.,
FOLMR NO.
L?eve Slane I
r DEPARTMENT OR AGENCY/ACTIVITY
UNION/LOCAL
? eaten-code from GROUP I here n, r I 1 CC 4.7
? intercede frcun GROUP II here ... [ CC 8 9
C,partroent
Organizal iol
C.ono :v/Subrhy
I ni, 1:it i on
Coca' No
C:ity. Slate
RECOGNITION DATE
AGREEMENT COVERAGE (check one)
SINGLE-UNIT 0 MULTI-UNIT 0 CC 11
? enter code from GROUP Ilf here.- I I CC 10
? ismer coda frorn GROUP IV luefe ... L ICC 12
Number of Employees (check one)
Covered by Agreement
Ce 0 Both 0
CC 13
WO 0 Total
EFFECTIVE DATE ICurrent Agrhement)
? enter code from GROUP III here* r----1 CC 14
lERMINATION DATE 1Current Agreement)
? enter code from GROUP V here ...
L I cc ,s
01 s the unit (check ore) covered by:
basic negotiated agreeMOnt!
dues-withholding egreenient?
c. both?
c. neither?
u.
I. Preliminery Profile
CC 17
02. If there is no bask agreement knock one), chat is the ponies'
ch/rent status?
n Negotiations not requested
b. Negotiations requested; have not b?Itur,
yet
Negotiations smutted; not completed vet...
d. Negotiations cornpleted; agreement ewes-
ing approval
0
CC 113
03. How much time elapsed between the dote of recognition and
the reouest to negotiate initial basic egreem ?
?
carat -node from GROUP VI here 0 CC 19
04. Did the effective date of the dues-withholding agreement
(check one) precede the effective deo of initial
basic agreement? Yes No ci CC 20
06 How much time elapsed between:
a. certificistion, or recognition, and the effec-
tive date of the dueswithholding agreement?
a enter code from GROUP VI here
Om 21
b. date of the dues-withholding agreement end
the effective date of initial basic agreement?
e enter code from GROUP VI here OCC 22
c. clots of the dues?withholcang agreement and
(where no initial basic agreement has been
completed) the present?
? ante! CO* from GROUP VI here OCC 23
PLEASE CS.NFINE "X" TO APPROPRIATE ANSWER BOX
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IF NEGOTIATIONS FOR INITIAL BASIC AGREEMENT HAVE BEEN REQUESTED
OR COMPLETED, PLEASE ANSWER ALL QUESTIONS BELOW.
II. Factors Related to Time Required to Negotiate Agreements
A. BACKGROUND
1. How much time elapsed between the date of recognition and the
effective date of the initial agreement?
? enter code from GROUP VI here 0 CC 25
a. Which party (check ono) made the original
request to negotiate the current agreement?
Management El Union [3 CC 26
2. Is the current agreement
(check one) . . . Initial El Renegotiated El CC 27
3. At what stege (check one) of the collective-bargaining process
are the parties now?
a. Mid-term in the current agreement; negotia-
tions for successor agreement not requested
yet.
b. Previous agreement has expired; negotia-
tions for new agreement not requested
yet. El CC 25
c. Negotiations for new agreement have been
requested; have not begun yet.
1:1
d. Negotiations for new agreement are under
way now
El
e. Negotiations for new agreement have been
completed; currently awaiting approval. ...
4 How much time elapsed between:
a. request to negotiate and actual start of
negotiations (including ground rules)?
? enter code from GROUP VI here .... DCC 29
b. request to negotiate and effective date of
current for most recent) agreement?
? enter code from GROUP VI here .... CC 30
5. If the start of negotiations ems delayed after the request of
either party to negotiate or after expiration of the previous
agreement, why (explain reasons) the delay?
B. TIME IN NEGOTIATIONS
6. What time frame was covered by negotiations on ground rules?
? enter code from GROUP VI here :ICC 32
a. How many (enter number, using 0 as first
digit if less than 101 negotiating sessions
were held on ground rules? ED CC 33-34
b. How frequent (check one) were these sessions
on ground rules?
Daily. 51 WeeklyEl CC 35
Monthly El Leta often
How many hours (enter number) did each
ground rules seteion average? DCC 36
7. How much time elapsed between completion of
ground rules and beginning of basic-agreement
negotiations?
? enter code from GROUP VI here DCC 37
8. What calendar period was covered by negotiations
on the basic agreement?es distinguished from
ground rules?
? enter code from GROUP VI here DCC m
a. How many (enter number, using 0 as first
digit if less than 10) negotiating sessions
were held on the basic 411r44)7480? ? ? ?
MCC 39.40
b. How frequent (check one) were these
sessions on the basic agreement?
Daily Weekly M
CC 41
Monthly jJ Less often
c. How many hours (enter number) did each
basic-agreement session average? 0 CC 42
P. How much time elapsed between:
a. settlement on all agreement terms (ground
rules and basic) and the date it was sent for-
ward for agency approval?
? enter code from GROUP VI here DCC 43
b. settlement on all agreement terms (ground
rules and basic) and the date of approval?
? enter code from GROUP VI here Oft 44
10. Were any special problems or circumstances (check
one) involved in the approval process? (If so,
cop/am.) Yes 0 No 1:1 CC 45
C. ISSUES IN NEGOTIATIONS
11 What issues (in descending order, left to right) consumed the
most time in negotiation., over-all? (Beloweach, designate
whether it was discussed primarily in the ground-rules or basic-
agreement stage of negotiations.)
? enter codes from GROUP X hers
1 2 3 4 - 5 6
CID CO CD CO CO DC
CC 47-45 CC 49-50 CC 51-52 CC 53-54 CC 55-58 CC 57-58
? enter codes from GROUP IX here
1 2 3 4 8 6
ODD O
CC 59 CC 60 CC 61 CC 62 CC 63 CC 64
12. Were there requests (check one) for exceptions to
regulations in connection with the
negotiations? , Yes No [3 CC 65
(CONTINUED)
PLEASE CONFINE "X" TO APPROPRIATE ANSWER BOX
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IL 16
a. What iwues ware involved? (Below (tech, in-
dicate whether the exception was Wanted
or refined.)
? emer codes trot, GROUP X here
14.
If official time was authorizod, what formula was
signed to?
? enforced, from GROUP VII here [ICC so
1 2 3
4
BEGIN CARD
11] CO ED
OD
15
How many (enter numbed employee-negotiators
CC 85-57 CC 8889 CC 70-71 CC 72.73
representing the union did the parties agree would
be entitled to official time? CC
? Inter codes from GROUP IX here . . . .
16
How many (Inter number) employeehegotiators
0 0 0
(both regulars and alternates) representing the
Cc 74 cc 75 cc 75
CC 77
union actually used the official time authorized? DCC?
b. How much time (aggregate) sispeen between
the requests end the answer?
17
How much official time (enter eeirepte number
of hours. using 0 as first digit(s) if les than 100
? enter code from GROUP VI here ....
13 Was official time withorized (check one; for em-
ployees representing the union in negotiations
during regular working hours?
[3CC 78
(or 101, respectively) actually wee treed during
the negotiations? CC 9-10
lilt
is Average hours (enter number, using 0 as
first digit if less than 101 used per em-
E;No
ci cc 79
ployee-negotiator MCC 11.12
D. T
HIRD-PARTY INVOLVEMENT
Did negotiations (Mack one) involve resort to a
third party? (Below. designate which third party
(or parties) and indicate whether management,
union, both or neither requested the assistance.)
Yea Ei No CC 14
? inner codas, front GROUP VIII hole
1 2 3 4
0
Cdt CC15 CC 17 CC 18
? enter code's) from GROUP IX here
3
Ccli CC 20 CC 21 CC 22
' 9. At whet stage of negotiations Iground-ru es, basic-
agreement or both) vas third-party assistance in-
voked?
? enter cod. from GROUP IX here
liEMARK.55
Ei CC 23
20. Whet time frame was covered by the period of
third.carty involvement?
? enter code f rom GROUP VI here
a. For from much of this period (check one)
did negotiations continue?
All EP Most
Some Ej None
21. What 'muss (list in descending order, left to right,
and specify third party) were referred for third-
party involvement?
? enter codes from GROUP X here
1 2 3 4 5
CO CO ED CD OD
OCC 24
Ei CC 25
ED
CC 25.27 CC 28-29 CC 30-31 CC 32-33 CC 34-35 CC 36-37
4 enter codes from GROUP VIII here
0 00 DO 0
CC 38 CC 39 CC 40 CC 41 CC 42 CCC?
PLEASE CONFINE "lr TO APPROPRIATE AIIISINER BOX
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ATTACHMENT 8
THE WHITE HOUSE,
Washington, September 6, 1972.
Memorandum to heads of departments and agencies.
This year the Federal Government marked the tenth anniversary of its labor
relations program, which now covers more than one million Federal employees.
I support collective bargaining for Federal workers, and I have demonstrated
that support during the past three years by strengthening the program with the
issuance of two Executive orders broadening the scope of bargaining.
Now, at the end of the first decade of this, the largest organized labor rela-
tions program in the Nation, I am calling on you to make this program even
more effective. At my request, the Chairman of the U.S. Civil Service Com-
mission and the Director of the Office of Management and Budget have drawn
up a set of guidelines for Federal agencies under the Federal labor-management
relations program. These guidelines are a solid step forward and should be
implemented as quickly as possible.
If we can make this program work better, we can make Government work
better.
I cannot urge you too strongly to take a personal interest in the labor rela-
tions activities in your agency and to make your managers aware of your in-
terest. You should impress on your top managers that good labor-management
relations has a high priority in my Administration. It is as much a part of their
overall managerial responsibility as is the accomplishment of their basic mission,
whether it be in the defense of our country or in the effective delivery of
services to the public.
RICHARD NIXON.
EXECUTIVE OFFICE OF THE PRESIDENT,
OFFICE OF MANAGEMENT AND BUDGET,
Washington, D.C., September 13, 1972.
Memorandum for heads of departments and agencies.
In his memorandum of September 6, 1972, President Nixon strongly reaffirmed
his desire to bring about more meaningful collective bargaining for Federal
employees. To this end, he has called on the heads of departments and agencies
to join in a directed effort to make the program even more effective. He has
asked that positive and constructive labor-management relations be considered
a matter of high priority in his administration.
Executive Order 11491, as amended, directs the U.S. Civil Service Commission,
in conjunction with the Office of Management and Budget, to establish and
maintain a program for the policy guidance of agencies on labor-management
relations in the Federal service. Under this authority, and in order to promote
the efforts which the President has urged in his memorandum, CSC and 0M13
have developed the attached "Guidelines for the Management and Organization
of Agency Responsibilities under the Federal Labor-Management Relations
Program."
? The Guidelines are fundamental precepts for developing a positive and con-
structive bilateral relationship with Federal employee unions and for use by
agency management in assessing program adequacy. Although they are applic-
able throughout the Federal establishment, full consideration was given to the
wide diversity of agency roles and missions and the varying stages of program
development among agencies during preparation of the Guidelines. As a result,
the Guidelines are flexible enough to fit a broad range of program requirements.
Agency heads are requested to assure that the Guidelines are applied to the
maximum extent feasible. The Commission through its evaluation process and
OMB in its regular budget review responsibilities, will periodically analyze
(117)
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....gency performance in implementing the Guidelines. In addition, the Com-
mission, through its Office of Labor-Management Relations, will continue to
furnish technical advice and guidance to agencies on a day-to-day basis.
ROBERT E. HAMPTON,
Chairman, U.S. Civil Service Commission.
CASPAR W. WEINBERGER,
Director, Office of Management and Budget.
GUIDELINES FOR THE MANAGEMENT AND ORGANIZATION OF' AGENCY RESPONSIBILI-
TIES UNDER THE EDERAL LABOR-MANAGEMENT RELATIONS PROGRAM?SEP-
TEMBER 1972
I. MANAGEMENT FRAMEWORK
A. Objective: Develop and issue a clear statement of management policy and
philosophy concerning labor relations
1. Need for broad general policy.----The President has stated, in the preamble
to Executive Order 114H, as amended, the Government's general labor relations
policy. As a means of oroviding all agency representatives (managers, super-
visors, staff support) with overall guidance in bilateral dealings, the head of
the agency, primary national subdivision or subordinate activities at all levels
should affirm in writing acceptance and support for such policy and spell out
the philosophy and approach to be followed in implementing it.
2. Content of policy statement.?The statement should clearly define principles
to be observed in management relations with unions. This involves such matters
as management's commitment in the public interest to modern and progressive
work practices, employee and union rights and responsibilities, high standards
of employee performance, management's positive approach to third party resolu-
tion of disputes, improved well-being of employees through maximum appro-
priate participation in establishing personnel policies affecting them on the job,
and the importance of sound labor relations to mission accomplishment.
3. Interface of management framework with organization framework.?Agen-
cy organization of labor relations activities should reflect the conviction that
the growing dimensions of union involvement in the formulation and implemen-
tation of personnel policies and practices affecting employees they represent
must become an integral part of agency approach to personnel management in
order to maximize the cooperative and productive benefits of the relationship.
There should be visible, top level commitment to the total personnel manage-
ment program. Specific emphasis should be given in allocation and utilization
of personnel managemert resources to the new dimensions of labor relations
which continue to transform many personnei decisions from a unilateral to a
bilateral process. Such a total integration of labor relations responsibilities in
personnel management is reflected and intended throughout these Guidelines.
It. Objective: Prepare plans and resource estimates required to achieve labor
relations goals
1. Labor relations program plan?Guided by its identified management policy
a rid philosophy, each agency should prepare a comprehensive plan for achieving
its labor relations objectives. Short-range planning period should cover the fiscal
year about to begin and the subsequent budget year. Long-range planning period
generally will cover the next five years. Thee plans should be the products of
two specific steps, described below.
a. State short-range end long-range labor relations program objectives.?
Agencies should prepare written program objectives for labor relations activi-
i ies. These objectives should be formulated according to management's con-
sensus of what are desirable and practical goals for the agency to accomplish
through its labor relations efforts with the understanding that management is
only one of the parties to a bilateral relationship.
Short-range objectives may, for example, be (1) reorganizing the personnel
staff at the headquarters to provide more effective labor relations support for
agency field staff or (2 reviewinng agency regulations relating to matters
within the scope of bargaining under Executive Order 11491 to insure locus of
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119
authority rests at the most effective level for bilateral dealings between unions
and agency managers, or (3) reviewing and improving, it necessary, procedures
for agency approval of negotiated agreements.
Long-range objectives might include (1) eiforts to deal more effectively with
fragmented exclusive units through possible use of multi-unit bargaining ap-
proach, or (2) seeking to enlist union support for general improvements in
quality of public service and implementation of pubiic policy through such
matters as improved worker productivity, safe work conditions and practices,
or (3) strengthening line supervisor and middle management perception and
performance of their role as management representatives.
b. Develop strategies to achieve desired tabor relations objectives.?The other
necessary step in development of an agency's labor relations plan is to establish
priorities and methods by which these objectives are to be achieved. The short-
range strategies resulting from this process generally will be more specific and
more fully developed than those applied to the agency's long-range labor rela-
tions objectives.
2. Develop a resource plan for agency labor relations activities for the /Meal
year about to begin and for the subsequent budget year.?Estimates for the
agency's personnel management function should reflect the requirements neces-
sary to accomplish the labor relations objectives formulated according to the
program planning steps outlined above. The resource estimates should be used
as a management tool to guide the agency in its obligation of manpower and
money toward meeting its current labor relations plan. Amount of funds appro-
priated may require adjustment of resource estimates, however the full estimate
should serve as the basis for relating the planned labor relations activity
with the associated expenditures. It is not necessary to include indirect and
overhead costs for this purpose. Similarly, the portioned salary cost for labor
relations activities performed by line managers as part of their normal, functions
should not be included. The labor relations training budget estimate is sum-
marized below.
The budget estimate should include the annual salary cost of agency staff
personnel involved in activities related directly to labor relations. Full-time
and part-time personnel should be included roughly to the extent that they
participate in labor relations activities.
Other significant costs that are related directly to the labor relations effort
should be included such as training, expense of third-party procedures, consult-
ing fees or staff travel.
C. Objective: Develop a systematic approach for planning agency labor relations
training
1. Identify agency-wide labor relations training needs.?To determine train-
ing needs, the agency manager should initially define, in some detail, the skills
required to perform effectively the various labor relations functions in the
agency. That is, with what degree of skill should the various levels of super-
vision and management in the organization be able to comprehend and apply
the rights and responsibilities designated for management representative under
EX). 11491, as amended. After defining required skills, the manager should in-
ventory abilities possessed by present agency personnel as a guide to the mag-
nitude of training needs.
2. Develop a program to meet the training needs.?After agency training
needs have been identified, alternative methods of meeting the needs should be
considered. With each method, whether it be hiring skilled personnel, training
current personnel through agency or outside means, redistributing current skilled
employees, cost estimates should be developed so the agency's needs may be
met efficiently and economically with due consideration to long, as well as
short, range objectives.
These estimates should include all relevant costs. Agency administered train-
ing, for example, should include costs of development, facilities, instructors, and
participants. The Civil Service Commission has developed a Training Cost Model
which agencies may find useful in making these estimates. The Commission
also has developed a basic curriculum of labor relations courses designed to
meet training needs most common to all agencies.
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120
D. Objective: Develop a systematic approach for planning and negotiating
agreements
Successful negotiation of agreements requires systematic planning and high
level attention. blajor areas of concern include, but are not limited to:
1. Select and train management s negotiating team.
2. Establish management's bargaining objectives and develop management
proposals where appropriate. This must involve top and line management as well
as total personnel management input.
3. Anticipate union proposals.
4. Attempt to merge management's objectives with anticipated union pro-
posals for analysis.
5. Estimate impact of each proposal in terms of cost-benefit ratio, possible
problems in administering it, compliance with Order, employee well-being and
performance, management effectiveness and mission accomplishment.
6. Settle on bargaining strategies and priorities, involving both line and
staff input.
7. Assign management's negotiating team with appropriate authority to bind
management to the terms of a labor-management agreement.
8. When mutual agreement is not possible, determine management position
and representation in third-party proceedings.
9. Summarize the key negotiation proceedings for use in administration of
the agreement and for future negotiation planning.
E. Objective: Conduct and annual review and evaluation of the labor relations
program
1. Report progress in meeting labor relations objectives.?A system for
evaluating agency-wide progress should be established at the headquarters level.
Each primary national subdivision, major bureau or command should be re-
quested to submit an evaluation of its labor relations activities over the past
year to agency headquarters. This report should cover progress made toward
established program objectives and should highlight major problems which
interfered with achieving those objectives:. It should also discuss activities
which were not included in the agency's statement of objectives and analyze
the nature of such activities for possible consideration in future plans. Evalu-
ators should be careful not to measure program effectiveness solely against
achievement of planned objectives.
Events may have proved the objective unwise, untimely or unobtainable. An
assessment should be made as to the appropriateness of the objectives and
possible redirection. Finally, reports should discuss the extent to which actual
expenditures exceeded or fell short of the budgeted expenditures for labor
relations to assist mana gement in subsequetit planning and budgeting.
2. Evaluate agency labor relations training output?Labor relations training
activity should be reviewed annually to evaluate its success in fulfilling the
agency's skill needs. Tin review should focus, if possible, on the degree of skills
increase on the part o those involved in the labor relations function. The
revision of training materials, the need for further training or retraining, and
the efficiency of the training function should also be considered. These quali-
tative analyses should be in addition to any reporting of numbers of persons
trained, hours of training conducted, and other quantitative output measure-
ments.
3. Review agency-wide performance in its ',5ilateral negotiation of labor agree-
ments.?Using the record of negotiation proceedings prepared at the conclusion
of each collective bargaining agreement as outlined above, each agency should
determine the extent of its overall success in achieving the objectives set for
its negotiators. This prooess should attempt to highlight strategies which have
proved to be particularly effective in reaching agreements consistent with
management's intentions and to identify workable tradeoffs. This process may
also reveal areas in which management can take appropriate permissible uni-
lateral steps to improve the conduct of its operations.
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LE ORGANIZATION FRAMEWORK
A. Objective: Insure top management recognition of total personnel manage-
ment with occult emphasis of labor retations.?Insure adequate line and
staff support of tlie pruovain
1. Organization of personnel, management function.?The management of hu-
man resources, whether represented ay labor organization or not, requires the
personnei management junction ( witnin which labor relations responsibilities
are totally integrated) to nave direct access to the head or principal deputy of
an agency, activity or installation. Agency policy and program development
should incorporate the total personnel management input in the formulative
stages ot that development.
2. Assign appropriate responsibility and authority for agency labor relations
matters to line supervisors/managers.?Sound labor relations is a line manage-
ment concern. Since the line supervisor/manager so deeply affects labor rela-
tions policy and in turn is so deeply auected by that policy and by the provi-
sions of negotiated labor agreements, agency management should provide that
sufficient and appropriate responsibilities and authority are delegated to the
line supervisor/manager in order tor him to direct the workforce within the
terms of a negotiated agreement and represent higher level management in a
labor relations capacity.
3. Assign appropriate responsibility and authority to the personnel staff for
agency labor relations activities.?As with the duties and authorities of line
supervisors and managers, the agency personnel staff at appropriate levels,
requires responsibilities and decision-making authority, as delegated by the
head of an agency, to be that agency's primary interface with labor organiza-
tions in all aspects of labor relations. It will normally serve management's best
interests to delegate to this function the authority to represent the agency in
dealing with unions, in third-party proceedings, and in conjunction with line
management, preparing and conducting negotiations with labor organizations
and implementing and administering the resulting agreement.
4. Engage line management in pre-negotiation planning and in contract ad-
ministration.?Line management participation is essential in effective labor
relations. At the supervisory level, management has the benefit of frequent,
direct contact with rank and file employees which can help identify employee
needs and concerns and anticipate union demands. Line managers also can
identify provisions that affect efficiency and effectiveness of their division's
operations. They know best which provisions will place undesirable and/or
unworkable limits on the authority needed to meet agency goals and missions.
5. Provide line management at all levels with labor relations staff support.?
The line supervisor's/manager's need for authoritative technical and policy
guidance on labor relations matters of agency-wide significance should be
furnished by staff support aware of the supervisor's/manager's specific area
of responsibility and able to interpret the agency's official position on a
particular question of policy. Each agency's particular circumstance should
dictate the appropriate pattern.
6. When appropriate, utilize external sources of labor relations skills for
guidance and assistance.?Within government, the U.S. Civil Service Commis-
sion through its Office of Labor-Management Relations and its Regional Labor
Relations Officers, furnishes day-to-day technical advice and guidance to agencies
In all aspects of Federal labor relations. This includes coordination of inter-
agency activities in all facets of labor relations. The Commission stands ready
to assist agencies in labor relations training through its Labor Relations
Training Center. Experts from other agencies can also be called on for assist-
ing an agency's labor relations staff. Outside government, numerous private
and academic institutions and experts can offer assistance in specialized areas;
however, all agencies should insure that capabilities do not exist within gov-
ernment before turning to outside sources.
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ATTACHMENT 9
SPECIAL LABOR AGREEMENT INFORMATION REIRTEVAL SYSTEM (LAIRS) SURVEY,
Aram 1979
The distribution of exclusive units by number of employees shows that 84%
of recognitions cover fewer than 500 employees, and more than one half (53%)
cover less than 100. Coupled with the fact that the average unit size is 312
employees (corresponding figure for 1972 wat 319), there is a strong suggestion
here that fragmentation of bargaining units- is a prominent characteristic of
tile Federal labor relations program.
As indicated In the report, 1,283 out of 2,400 agreements contain provisions
for binding arbitration. 615,469 employees are covered by the provision of these
arbitration clauses. Records available in our office show that more than 372
grievance-arbitration awards have been rendered since the inception of Execu-
Order 10988. (This includes a large number of arbitrations connected with
unit-determination issues under E.O. 10988.) Additionally, 161 agreements
covering 72,509 employees provide for advisory arbitration in adverse action
eases. Whether the nature of the arbitrations is binding or advisory, 1,452
agreements covering 643,727 employees permit official time to be used by em-
ployee participants in the process. Frequently this also includes, in addition to
ggrieved employee, employees who are representatives of the union or witnesses
called by either party. A survey of these awards reveals that a variety of
issues have been addressed. Included are: pay policies, incentive awards, over-
time, promotion, wage survey, sick leave, annual leave, performance evaluation,
discipline, work scheduling, work assignment, training and representation.
Subject
Number of
agreements
Number of
employees covered
Promotion policy
Joint promotion committee
Joint performance review committee_
Union member(s) on promotion panel
Union participation (wage survey)
1,579
112
92
197
512
717, 912
62,019
44, 513
83, 873
246,087
Joint EEO committee
436
294, 773
Physical examinations
156
104, 583
Drug abuse Clause
61
50,350
Alcoholism clause
82
65, 189
Grievance procedure
1,989
820,104
Discipline policy
1, 300
589, 274
Pay policy clause
225
118,922
Call-in allowance
543
246, 654
Environmental pay
335
189,959
Seniority
481
251,391
Union review (RIF)
300
184,006
Technological displacement
236
139, 416
Safety provision
1,521
651, 637
Safety clothing
696
350, 091
Safety equipment
744
370, 566
Joint safety committee
886
441, 923
Overtime clause
1, 579
711, 923
Compensatory time
498
229, 075
Call-in limitation
150
55, 640
Hours guarantee
383
172, 920
Excused time (training)
359
217, 271
Cafeteria services
190
97, 364
Parking
436
318, 511
Work equipment
326
153, 871
Tools
239
136, 668
Joint suggestion/awards committee
367
231, 034
Leave (hold union office)
727
382, 367
Paid-time allowances (stewards)
668
308, 062
Use of space (union)
1,179
578,597
Use of telephone (union)
299
260, 597
Mail privilege (union)
311
114, 255
(122)
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ATTACHMENT 10
SUMMARY OF COMPARISONS OF RETIREMENT, LIFE INSURANCE, HEALTH BENEFITS
AND OTHER MAJOR EMPLOYEE BENEFIT PROGRAMS, DECEMBER 1973
The U.S. Civil Service Commission has recently completed a study of retire-
ment, life insurance, health benefits, holiday, and sick and annual leave pro-
grams provided by 25 leading employers.
Recognizing that employers spend benefit dollars in different ways, often
providing one benefit at the expense of another, the Commission wanted to find
out how the government compares with these other employers on the basis of
6 fringe benefits, individually and overall.
Employer contribution to life insurance, age and service requirements for
optional retirement, number of holidays granted each year, health insurance
coverage for surgical expenses?these are but a few of the benefit features the
CSC considered.
Various features of the other employers' benefit programs were compared to
the Federal counterpart and rated as being comparable to, or more or less
liberal than, the Federal. The same determination was made for each benefit
and then for the total benefits package. The results were:
One employer provided retirement benefits more liberal than the govern-
ment's; 14 provided comparable benefits; 10 provided less liberal benefits;
Three employers provided a holiday, sick and annual leave program more
liberal than the government's; 3 provided comparable programs; 19 provided
less liberal programs;
One employer provided a health insurance program more liberal than the
government's; 7 provided comparable programs; 17 provided less liberal pro-
grams; and
Five employers provided life insurance programs more liberal than the
government's; 3 provided comparable programs; 17 provided less liberal pro-
grams.
Overall, of the 25 other employers included in the sample only the State of
New York offers its employees a fringe benefits package that is more liberal
than the Federal government's. The benefits packages offered by Baltimore,
General Motors, Marylan 3, St. Louis, and U.S. Steel are comparable to the
government package. Within their packages, some individual benefits are more
liberal, while other are comparable. and still others are less liberal. A limited
benefit feature in one category can be balanced or more than offset by a more
liberal feature in another category.
Private employers:
Bank of America, E. I. du Pont de Nemours & Co., General Electric, General
Motors Corp., International Business Machines Corp., Pacific Gas & Electric Co..
J. C. Penney Co., Inc., The Prudential Insurance Co. of America, Standard Oil
Co. (New Jersey), Traveler's Insurance Co., United Airlines, and United States
Steel Corp.
Public employers:
Baltimore, California, Dallas, Georgia, Maryland, Michigan, Minnesota,
Mississippi, New York State, Phoenix, St. Louis, Virginia, and Wisconsin.
(123)
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ATTACHMENT
NO. 11
Comparison of Executive Order 11491, as Amended, to Bills on Federal Labor Management Relations
TITLE
Executive Order 11491,
amended by E.G. 11616
H.R. 10700 (Henderson)
H.R. 13 (Brasco)/S. 351 (McGee)
H.R. 9784 (Ford)
Labor-Management Relations in the Federal Service Labor-Management Federal Employee Labor-Management Federal Pmptcyee
Federal Service. Act of 1973 (To amend Sec. 2(a) Act of 1973. Act of 1973.
Subchapter 1 of chapter 71 of title 5,
USC, as "Subchapter I?Employee
Labor Organizations".)
Lor-Management
PREAMBLE
Public interest requires high standards
of employee performance and modern
work practices to iopr" cm.
ployee performance and efficiency.
Efficient administration and em-
ployee well-being require orderly
and constructive relationships be-
tween labor organizations and man-
agement officials. Clear statement
of respective rights and obligations
needed.
Participation of employees of the
executive branch, through labor
organizations of their own choosing,
in the formulation and implementa-
tion of personnel policies and prac-
tices and matters affecting working
conditions, is in the public interest;
and collective bargaining rights
which are consistent with the public
service and the efficient administra-
tion of Executive agencies shall be
enjoyed by labor organizations rep-
resenting employees. [7101]
Participation of employees of the
Federal Government through labor
organitatioiie a their own choosing
in decisions which affect them con-
tributes to the effective conduct of
public buziness. Therefore, labor or-
ganizations and collective bargaining
in the Federal service are in the
public interest. 1101(a)1
Statutory protection of the right of
employees to organize and bargain
collectively safeguards the public
interest and contributes to the effec-
tive conduct of public business.
Labor organizations and collective
bargaining in the public interest. Act
prescribes rights and obligations of
Federal employees and establishes
procedures to meet special require-
ments and needs of the Federal
Government. 12 (a)1
POLICY
Employee free right to join or not Similar. Elaborates on right to petition Employee protected in exercise of Similar to HR 13, except agency man-
join labor organizations. Except as Congress by including "right to fur- right to form, join, assist organize- agement prohibited from either en-
noted below right to assist labor nish information to either House of tions; with prohibition on discourag- couraging or discouraging member-
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organization extends to participa-
tion in its management and acting
as a representative, including pres-
entation of its views to officials of
the Executive branch, the Congress,
or other appropriate authority.
Head of agency to assure that em-
ployees informed of rights and that
no interference, restraint, coercion,
or discrimination is practiced within
agency to encourage or discourage
membership in a labor organiza-
tion. [1 (a) . ]
Right to be an officer or representa-
tive, except a supervisor may not
participate in the management or
representation of a labor organiza-
tion (other than as excepted by sec.
24) nor may an employee where
there would be conflict or apparent
conflict of interest or incompata-
bility with law or official duties.
(b)
Congress, or to a committee or mem-
ber thereof". [7102; 7103 (b) (1);
7117(a) (2) ; 7117(c).]
Similar. [7103(b) (2)]
jug membership, but does not pro-
hibit encouraging membership. At
request of organization employees
required to become members (union
shop) or pay equivalent dues (agency
shop) as condition of employment.
Would permit representation of
supervisors and managers with rank-
and-file employees. [201(j) (k); 101
(b) ; 701 (a) (2) .1
Does not limit supervisors and man-
agers from being involved in manage-
ment of labor organizations. [101]
ship other than requiring 8S condition
of employment union membership
and payment of dues (union shop) or
pay equivalent dues (agency shop).
Supervisors and managers can be
represented together with rank and
file employees under certain condi-
tions. [2 (a) ; 5(a) (c) ; 6 (f) ; (10) .]
Same limitations as noted above.
DEFINITIONS
Agency: an Executive dept., a Govt.
corporation, and an independent
establishment as defined in section
104 of title 5, USC, except the Gen-
eral Accounting Office. [2(a)]
Similar but Tennessee Valley Authority
specifically excluded. Also President
can make exceptions due to national
security requirements and considera-
tions; and head of agency, with ap-
proval of Authority, can make excep-
tions related to internal security of
agency. [7105(a) (3)]
Agency means any department, agency,
bureau, activity, or organization of
the U.S. Government which employs
employees as defined in 201(b), refer-
enced below.
Agency means any department, agency
bureau, activity, or organization of
the U.S. Government which employs
employees as defined below or any
person acting as an agent thereof
[3 (c) ]
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Executive Order 11491,
amended by E.G. 11616
H.R. 10700 (Henderson)
H.R. 13 (Brasco)/ S. 351 (McGee)
H.R. 9784 (Ford)
Employee: an employee of an agency
and an employee of a nonappropri-
ated fund instrumentality of the
U.S. but does not include, for the pur-
pose of exclusive recognition or
national consultation rights, a su-
pervisor (except as provided in sec.
24) [2 (b)]
Supervisor: an employee having au-
thority, in the interest of an agency
to hire, transfer, suspend, lay off,
recall, promote, discharge, assign,
reward, or discipline other employ-
ees, or responsibility to direct them,
or to evaluate their performance,
or to adjust their grievances, or
effectively to recommend such
action, if in connection with the
foregoing the exercise of authority
is not of a merely routine or clerical
nature, but requires the use of inde-
pendent judgment. [2(c)]
Guard: an employee assigned to en-
force against employees and other
persons rules to protect agency
Similar, but includes individuals no
longer employed relative to an unfair
labor practice under section 7109;
and those employed at Veterans'
Canteen Service, Veterans Admin-
istration, described in section 5102
(c)(14) of USC 5. Specifically ex-
cludes employees in Foreign Service
who are paid under Chapter 14 or
14A or section 2385(d) of title 22;
aliens and noncitizens employed out-
side US; employees stationed in
Canal Zone; and members of the uni-
formed services. President can ex-
clude employees working in locations
where intelligence, investigative, or
security work is performed and na-
tional security requirements and con-
siderations are involved. [7103(a) (2))
Similar. [7103 (a)(8)]
Similar. 17103 (a) (11)1
Definition of employee is broad-brush
and expanded to include supervisors
and managers, security agency em-
ployees, employees in competitive
service of legislative and judicial
branches, employees in Library of
Congress, in Government Printing
Office and Federal Reserve System,
but excluding US Postal Service.
(Alm see reference below concerning
coverage as contrasted to Order.)
[201 (b) ]
Definition of supervisor in describing
authority is similar, provided that
employee's pay is at or above top
step for GS-10, and that employee
has direct responsibility for at least
ten employees. [201(j)]
Similar to FIR 13, but specifically in-
cludes individuals no longer employed
relative to an T.:LP under section 10 of
Act, and definitions for manager and
supervisor differ. [3(b) (f) (r)]
Supervisor: definition similar to Order,
except with respect to firefighters
wherein term to include only employ-
ees who perform a preponderance of
specified acts of authority. [3(f)]
No definition for guards, and does not No definition for guard, but provides
provide any limitation on their definition for public safety officer: any
representation or inclusion in mixed employee engaged in (1) enforcement
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property or the safety of persons on
agency premises, or to maintain law
and order in areas or facilities under
Govt. control. [2(d)]
Labor Organization: a lawful organiza-
tion in which employees participate
and which exists for the purpose, in
whole or in part, of dealings with
agencies concerning grievances, per-
sonnel policies and practices, or
other matters affecting the working
conditions of their employees, but
does not include organizations which
consists of managers or supervisors
(except as provided in sec. 24);
assists or participates in a strike
against the Govt. or imposes a duty
or obligation to conduct, assist or
participate in such a strike; advo-
cates overthrow of the constitu-
tional form of the Govt.; or dis-
criminates on race, color, creed, sex,
age, or national origin. [2(e)]
Agency Management: the agency head
and all mgt. officials, supervisors,
and other representatives of mgt.
having authority to act for the
agency on any matters relating to
the implementation of the agency
LMR program. [2(f)]
Similar, except organization must have
as its primary purpose dealings with
an agency concerning grievances,
etc., and shall not include an organi-
zation whose basic purpose is purely
social, fraternal, or limited to special
interest objectives which are only
incidentally related to terms and
conditions of employmmt. Also adds
that cannot deny membership be-
cause of preferential or nonpreferen-
tial civil service status. [7103(a) (4)]
Similar. Management official means an
employee who formulates, deter-
mines, effectively influences, or effec-
tuates policies of an agency, or who,
in the performance of his duties, has
discretion to modify the established
policies of an agency. [7103(a) (9)]
units based on potential conflict-of-
interest problems.
Labor organization: definition similar
to 10700 except it means any na-
tional or international union, federa-
tion, council or department, or any
affiliate thereof . . . in which em-
ployees participate and pay dues;
and which exists for primary purpose
of dealing with agencies concerning
grievances, labor disputes, wages,
rates of pay, hours of employment,
or conditions of work. Does not ex-
clude organization which assists or
participates in strike against Gov-
ernment, etc. [201(d)]
Management official. Employee in posi-
tion which presents conflict of inter-
est, or potential conflict of interest,
between an agency and employees or
who formulates, determines, or ef-
fectuates agency's policies and who
has discretion in performance of .his
job, with power to modify employer's
established policies. [201(k)]
of criminal laws including highway
patrol; (2) a correctional program,
facility, or institution where the
activity is potentially dangerous be-
cause of contact with criminal sus-
pects, defendants, prisoners, proba-
tioners or parolees; or (3) a court
having criminal or juvenile delinquent
jursidiction where the activity is
potentially dangerous because of
contact with criminal suspects, de-
fendants, prisoners, probationers, or
parolees. [3 (h) ]
Labor organization: definition similar to
HR 13, except does not exclude orga-
nizations which assist or participate
in strikes or related activities pro-
hibited under Order. [3(d)]
Management official. Similar to HR 13
[3(4]
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Executive Order 11491,
amended by E.O. 11616'
H.R. 10700 (IIendersun)
H.R. 13 (Brasco)/S. 351 (McGee)
H.R. 9784 (Ford)
Council: The Federal Labor Relations
Council established by Order [2(g)].
Panel: The Federal Service Impasses
Panel established by Order. [2(h)].
Assistant Secretary: The . Assistant
Scorttary of Labor for Labor.
Management Relations. [2(i)].
Authority: means Federal Labor Rela-
tions Authority established under
section 7104, replacing Council 17103
(a) (5) ; 7104; 71111.
Duties of Panel performed by Federal
Labor Relations Authority (Author-
ity). [7103(a) (5) ; 7104; 7111].
Most of duties of A/S LMR performed
by Authority established under sec-
tion 7104.
Person: an individual, labor organiza-
tion, or agency. [7103(a) (1)).
Agreement: an agreement entered into
as a result of collective bargaining.
[7103(a) (6)].
Grievance. eumplaiut by employee or
labor organization concerning per-
sonnel policies and practices and
matters affecting working conditions;
complaint concerning effect, inter-
pretation, or claim of breach of agree-
ment; or complaint by agency con-
cerning interpretation and applica-
tion of agreement, but does not
involve complaint involving matters
subject to appeals procedures pre-
scribed by, or pursuant to, existing
or future specific provisions of law.
[7103 (a) (7)]
Confidential employee: an employee who
acts in a confidential capacity to
person who formulates or effectuates
mgt. policies in labor relations. [7103
(a)(12)]
Authority: Means Federal Labor Rela-
tions Authority provided in section 301,
replacing Council. [201(e)].
Duties of Panel assumed by Authority.
[301, 401].
Board: The Federal Employees Labor
Relations Board established by sec-
tion 4 of Act, replacing Council, and
A/S LMR under Order.
No provision.
Most of A/S LMR duties performed by No provision. Most functions assumed
Authority established by sutler. 301. by Beard referenced above.
Person: means one or more individuals,
labor organizations, or agencies of
the U.S. Government. [201(a)].
Agreement: means agreement negotiated
through collective bargaining pursu-
ant to provisions of Act. [201(f)].
Gricvanon. any complaint by cinployuc
or labor organization concerning any
aspect of employment relationship
with agency including any matters
formerly subject to final administra-
tive review outside agency under
regulations of CSC, or law, com-
plaints related to agreements, and
any claimed violation, misinterpre-
tation, or misapplication of any law,
rule, or regulations governing con-
ditions of employment. [201(h)]
No provision.
Person: Same as HR 13. [3(a)].
No definition for agreement.
Giicvanuc. any complaint by au mu-
ployee or by a labor organization con-
cerning any aspect of the employment
relationship with an agency as well as
any complaint concerning the effect,
interpretation, or claim of breach of a
collective-bargaining agreement, and
any claimed violation, misinterpreta-
tion, or misapplication of any law,
rule, or regulation governing condi-
tions of employment. [3(q)]
No provision.
0
0-
0
(T)
rs.)
co
0
0
th
CO
co
th
rs.)
rs.)
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Professional employee: (not defined in No provision.
Order but same definition by Asst.
Secretary in case determination):
employee engaged in performance of
work requiring knowledge of ad-
vanced type in field of science or
learning customarily acquired in
specialized intellectual instruction
and study in institution of higher
learning. . . requiring consistent ex-
ercise of discretion and judgment in
its performance . . . predonainantely
intellectual and varied in charac-
ter . . . or such study and is per-
forming related work under direc-
tion of professional person to qualify
himself to become professional
employee. [7103(a)(13)]
Dispute: includes any controversy con-
cerning terms, tenure, or conditions
of employment, or concerning the
association or representation of em-
ployees in the negotiating, fixing,
maintaining, changing, or seeking to
arrange terms or conditions of em-
ployment, regardless of whether the
disputants stand in the proximate
relation of employer and employee.
[201(g)]
CondilionA of employment. Definition
includes virtually all aspects of em-
ployment including pay practices,
fringe benefits, work procedures,
seniority, union security, travel and
per diem. [201(i)]
Professional: includes any employee
whose work?(1) is predominantely
intellectual and varied in character;
(2) requires the consistent exercise of
independent judgment; (3) requires
knowledge of an advanced nature in a
field of learning customarily acquired
by specialized study in an institution
of higher education or its equivalent;
and (4) is of such character that the
output or result accomplished cannot
be standardized in relation to a given
period of time. [3(g)]
Labor dispute. Similar to HR 13. [3(n)]
Similar to HR 13. [3(p)]
Firefighter: includes any employee en-
gaged in the performance of work
directly connected with the control
and extinguishment of fires or the
maintenance and use of firefighting
apparatus and equipment. [3(i)]
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Executive Order 11491,
amended by E.O. 11610 H.R. 10700 (Henderson)
H.R. 13 (Brasco)/S. 351 (McGee) H.R. 9784 (Ford)
Collective Bargaining: Bargaining in
good faith between authorized rep-
resentatives of a labor organization
having exclusive recognition and
management officials having manage-
ment responsibility for the amiro-
priate unit:
Educational employee: includes any em-
ployee of a school system, college or
university who?(1) has regular con-
tact with students; (2) participates
in the development, implementation,
or evaluation of an educational pro-
gram; or (3) is otherwise involved in
the teaching-learning process. [3(j)]
Service: means the Federal Mediation
and Conciliation Service established
by chapter 29 or title 172, U.S.
Code. 13(1)]
Collective bargaining. Definition de-
scribes mutual obligation of repre-
sentatives of parties to bargain in
good faith in effort to reach agree-
ment. Duty to negotiate extends to
matters which are or may be subject
of a statute or regulation and if
legislative action necessary to imple-
ment agreement shall include the
obligation of agency to submit such
to appropriate governmental body
for action. Agency not to make or
apply rules or regulations restricting
scope of bargaining or which con-
flict with any negotiated agreement.
13(m)]
Determination of agent: in determining
whether any person is acting as an
agent of another person $o as to make
such other person responsible for his
acts, the question of whether the
specific acts performed were actually
authorized or subsequently ratified
shall not be controlling. [3(0)]
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Exclusive Representative?includes any
employee organization which has been
(1) selected or designated pursuant to
the provisions of section 6 of the Act
as the representative of the employees
in an appropriate collective bargain-
ing unit; or (2) recognized by an
agency prior to the effective date of
this Act as the exclusive representa-
tive of the employees in an appro-
priate collective bargaining unit.
[3(e)]
APPLICATION
Applies to employees and agencies in
executive branch . . . except for
FBI, CIA, or agency components
having intelligence, investigative, or
security functions, including the
investigation of employee integrity
in perfonnance Of duties, when
agency head determines order can-
not be applied consistent with na-
tional security requirements or
internal security of the agency. No
appeal. Exceptions do not apply to
section 22. [3(b) (1), (2), (3), (4)]
Agency head may suspend any pro-
vision, except non-veteran adverse
action appeal right (Section 22), in
installations outside U.S. No ap-
peal. [3(e)]
Employees involved in administering
a labor relations law or the order
may not be represented by organi-
zations representing other em-
ployees subject to such law or
order 3(d)]
Similar to application under Order (see
definitions above for agency and em-
ployee): President can make excep-
tions based on national security;
exemptions by agency head, with
approval of Authority, based on in-
ternal security. [7103(a) (2)(3)1
Exemptions by agency head limited as
noted above. Non-veteran adverse
action appeal right remains in effect
under continuity clause. [7103(a) (2)
(3)1
Such limitation applies only to em-
ployees administering this Act.
[7106(b) (2)]
Coverage greatly enlarged to apply to
all Federal Departments and agen-
cies, excluding only the Postal Serv-
ice. It would apply to the FBI, CIA,
and other agencies having as primary
function intelligence, investigative or
security work, or agencies concerned
with internal security duties. No ex-
ception by agency head based upon
national or internal security. [201(b)
(c)1
Exceptions by agency head not pro.
vided. [201(b)(c)]. No provision on
non-veteran adverse action appeal
rights.
No such limitation on representation
for employees administering Act.
[201(b); 501(d)]
Coverage similar to HR 13. [3(b)(0)1
No provision.
No provision.
? ADMIN-ISTRATION??
Executive Order 11441,
amended by E.O. 11616
H.R. 10700 (Henderson)
H.R. 13 (Brasco)/S. 331 (McGee)
H.R. 9784 (Ford)
Federal Labor Relations Council
(FLRC): consisting of CSC Chair-
man, who is Chairman of FLRC,
Secretary of Labor, Director of the
Office of Mgt. and Budget, and
other officials President may desig-
nate.
??to administer order, decide major
policy issues, prescribe reguletions,
report to President; and
?to consider appeals from decisions of
Asst. Secretary of Labor, certain
negotiability issues, exceptions to
arbitration awards, other appro-
priate matters.
CSC to provide administrative sup-
port and services to Council. (4)
Federal Service Impassea Panel: con-
sisting of at least 3 members ap-
pointed by President. Panel had
independent authority but is or-
Establishes the Federal Labor Rela-
tions Authority to carry out func-
tions of Act except as otherwise pro-
vided, including activities of FLRC,
FSIP, and Asst. Secretary under
Order. Arbitrability and grievability
issues to be determined under
negotiated grievance procedures.
Pvithcrity con certify exclusiu,, p-
resentative without election under
section 7106(1). Authority composed
of Chairman and two additional
members; full time; appointed by
President and confirmed by Senate.
Annual report to President for
transmittal to Congress. Can delegate
functions to Executive Director or
other employees, whose decision or
action is subject to review by Author-
ity within 60 days. To prescribe
rules and regulations to carry out its
responsibilities, and appoint neces-
sary staff. [7104; 7105; 7117(a) (1)]
Activities of Panel under Order as-
signed to Federal Labor Relations
Authority as discussed above. (also
see impasse procedures, below, 7111.)
Creates Federal Labor Relations
Authority.. Authority to carry out
such functions as performed under
Order by FLRC, FSIP, and Al
SLMR, with enlarged authority and
scope, including certification of rep-
resentative without election. [501
(b)(g)I However, arbitrability and
gricvabiiity questions subject to
negotiated grievance procedure. [201
(h); 1101(e)] Composed of a Chair-
man and two additional members,
full-time, appointed by President
with advice and consent of Senate,
from a list of ten persons submitted
to President by the American
Arbitration Association; to report in
writing to Congress and to President
at close of fiscal year concerning
cases, decisions and moneys dis-
bursed. Can delegate functions to
Executive Director and certain other
employees whose determinations
stand unless Authority undertakes
to grant review within 30 days after
request for review filed. Executive
Director has final authority con-
cerning alleged ULP violations. To
prescribe rules and regulations and
appoint necessary staff. Certain
restrictions on employment of attor-
neys, and on review of trial exam-
iner's report. (301, 401)
No provision. Activities performed by
Panel under Order assigned to Au-
thority as reflected above.
Creates Federal Employees Relations
Board, consisting of five full-time
members, appointed by President with
consent of Senate. Board to issue rules
and regulstion.s necessary to carry out
provisions of Act; has subpoena
power; decides unit and representa-
tion issues [6 (b) (c) (d)1: conducts
elections where appropriate; rules on
showing of interest and recognition
without election [6(b)]; determines
alleged ULP's including directing
back pay and disciplinsxy actions as
necessary, with cease and desist
powers relative to violations of Act;
and fines and/or imprisonment for
interference with Board. Establishes
position of General Counsel of Board ;
appointed by President with consent
of Senate; to investigate alleged
violations of Act; file and prosecute
complaints; intervene before Board in
unlawful act proceedings brought
under section 11; and to have other
powers as Board may prescribe.
(4, 6, 10, 11)
No provision. Special impasse procedures
established under section 7.
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ganizationally located within Coun-
cil for services and staff assistance.
Authorized to take action necessary
to settle impasses on substantive
issues in negotiations. (5) Parties
may agree on techniques to assist in
resolving impasses (11a), but arbi-
tration or third-party factfinding
with recommendations may not be
used except when expressly author-
ized by panel. (17)
Assistant Secretary of Labor for Labor-
Management Relations:
?decides unit mut representation
issues.
?supervises elections and certifies
results.
?decides disputes on eligibility for
national consultation rights.
?decides unfair labor practice com-
plaints and standards of conduct
COSS.
?decides grievability and arbitra-
bility questions under an agreement.
?may require an agency or labor
organization to cease and desist
from violation of Order and require
affirmative action.
?may request and use the services
and assistance of employees of
other agencies.
?shall prescribe regulations to ad-
minister his functions under Order.
?costs not reimbursed.
?a member of the Civil Service Com-
mission to perform duties of Assis-
tant Secretary when such matters
involve the Department of Labor.
(6)
No provision. Activities of A/SLMR
under Order assigned to Federal
Labor Relations Authority as noted
above.
No provision. Most activities per- No provision. Most duties of A/SLMR
formed by A/SLMB. under Order under Order assumed by Board or
assigned to Authority. Board empowered to issue appro-
priate regulations effectuating the
Act. (4)
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RECOGNITION
Executive Order 11491,
amended by E.O. 11616
H.R. 10700 (Henderson)
H.R. 13 (Brasco)/S. 351 (McGee)
H.R. 9784 (Ford)
Recognition to be accorded to quail- Similar. 17106(a) (m)]
fled organizations.
New determination of right to exclu- Same. [7106(c) (2)]
sive recognition not required in unit
or subdivision thereof within 12
months after prior. 141ectioxi
with respect to unit. [7(e)]
Recognition of labor organization does Language of Act differs from Order but
not preclude an employee, regard- it appears that intent is to parallel
less of whether he is in a unit of rights under the Order.
exclusive recognition, from. exercis-
ing grievance or Appeal rights es-
tablished by law or regulations and
from choosing his own represents.;
live excent when presenting a griev-
ance under a negotiated grievance
procedure as provided in section 13.
17(d) (1)1
Recognition does not preclude or Similar. [7106(1)(2)(3)]
prevent consultation and dealings
with religious, social, fraternal,
professional orgauir,,tions, or other
lawful organizations not qualified
as labor organizations (with certain
restrictions)..17(d) (2) (3)]
Separate system for .comrauni.cation
and consultation with associations
of supervisors required. [7(e)]
Similar. [501(a)]
Similar. [501(f)]
Negotiated grievance procedure is pro-
cedure for all grievances and com-
plaints. Exclusive representative to
represent all employees, but em-
ployee can present own grievance,
provided that organization has op-
portunity to be present and to pre-
sent its views. [502(1) ; 110 (3) (c)1
Exclusive representation and recogni-
tion to be accorded organization des-
ignated or selected by majority of
employee.; in appropriate unit. [6(a)]
Similar, except majority determination
and representation can be determined
without election. [6(h) (3) (4) ; 6(d) (iH)]
Similar exclusive representation rights,
but scope of bargaining virtually un-
limited. [6(a); 5(b)]
Continues under continuity clause until
otherwise specifically superseded by
order of President or regulations
issued pursuant to Act. [7117(0(2)1
Similar. [502(2)(3)]
No provision.
No provision.
No provision.
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Natitmal consultation rights accorded
based upon criteria established by
Council. Right to comment on pro-
posed substantive changes in per-
sonnel policies, to suggest changes
in personnel policies, to confer
in person on such policies, and pre-
sent views in writing. NCR not
accorded for unit covered by na-
tional exclusive recognition. Or-
ganization may appeal to Assistant
Secretary of Labor agency decision
not to grant national consultation
rights (9)
Exclusive recognition to be accorded
organization selected in secret bal-
lot election by majority of em-
ployees. 110(a)]
National Consultation Rights granted
per criteria issued by Authority: when
labor organization has exclusive rec-
ognition below agency level for sub-
stantial number of employees of the
agency. Not applicable when there
is exclusive recognition at agency
level. Issues over recognition re-
viewed by Authority. Right to be in-
formed on proposed changes in
agency personnel policies and prac-
tices and matters affecting working
conditions and shall have sufficient
time to present its views and to in-
initiate proposals. Proposals shall re-
ceive consideration by agency before
final action is taken, and agency shall
provide written statement of rea-
sons for its actions. Scope of con-
sultation same as that for exclusive
recognition. [7106(m)]
Exclusive recognition determined by
secret ballot "election; or Authority
may certify without election if it
determines that unfair labor prac-
tices by agency prevent free elec-
tion; or Authority may certify upon
its determination that organization
represents majority of unit and no
other petitions or questions exist over
appropriateness of unit. Authority
supervises elections, certifies, and
hears issues at dispute. Waiving of
hearings not prohibited by stipula-
tion for consent election per regula-
tions and rules or decisions of Author-
ity (presently provided in Asst.
Secretary's regulations). [7106(a) (c)
(e) (k)]
National Consultation Rights may be
granted organization that has ex-
clusive recognition at local level, per
criteria issued by Authority. Con-
sultation to permit sufficient time
for organization to initiate pro-
posals, present agreement or objec-
tion to agency proposals and its rea-
sons. Agency to consider vfews of
organization before action and pro-
vide written rational,' far its actions.
Does not appe.erfhen there is national
exclusive re gaition. (504)
Exclusive recognition similar to HR
10700, except in any election where
none of choices on ballot receives
majority, but majority of all votes
cast for representation, runoff elec-
tion shall be conducted between two
organizations with largest number
of votes. National exclusive recogni-
tion to supersede all other recogni-
tions. Determinations by Authority
not subject to judicial review. [501]
No provision. Exclusive recognition is
only form of recognition and na-
tional exclusive recognition of agency
to supersede all recognitions within
unit. [6(h)]
Exclusive recognition obtained either
through showing of credible evidence
that majority of employees desire
representation or through secret bal-
lot election in which majority of bal-
lots cast favor petitioning organiza-
tion. [6(b) (c) (d) (e) (01
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Executive Order 11491,
amenrjari by E el liens
H.R. 10700 (11ender5ou)
H.R. 18 (Brasco)/S. 351 (McGee)
H.R. 9784 (Ford)
Appropriate unit may be established
on a plant or installation, craft,
function, or other basis which will
ensure a clear and identifiable com-
munity of interest among the em-
ployees and will promote effective
dealings and efficiency of agency
operationa. Also unit shall not
include mgt. officials or supervisors
(except as provided in section 24),
or guards together with other em-
ployees, nonclerical, Federal per-
sonnel workers, or professionals
with nonprofessionals unless pro-
fessionals vote for inclusion. [10(b)]
Exclusive recognition to represent
unit of guards not to be accorded
to organization which admits other
employees to membership or is
affiliated with such organization.
[10(c)]
Established right of organization to
act for and negotiate agreements
covering all employees in unit,
obligation to represent interests of
all employees without discrimina-
tion or regard to membership, op-
portunity to be represented at
formal discussions between mgt. and
employees or employee representa-
tives concerning grievances, person-
nel policies and practices, other
matters affecting working conditions
in unit. [10(e)]
Unit criteria are similar. Plus specifies
that unit may be on agency basis.
With approval of Authority, organi-
zation and agency may agree to com-
bine two or more units. Adds criterion
that unit be consistent with the
centralization or decentralization of
authority for personnel policy mat-
ters within agency. Exclusions
include nonclerical "personnel work-
ers", confidential employecs, and
employees engaged in administering
Act together with other employees.
[7106(g) (WW1
Similar provision for guards. [7106(b)]
Differs as follows: Organization "entitl-
ed to represent and bargain collec-
tively for employees in the unit."
Thus, organization not obligated to
represent interests of all employees
who have a grievance. Employees
can represent self under negotiated
grievance procedure but organization
has right to be present when griev-
ance adjusted.
Similar to HR 10700, except sole unit
criterion is community of interest; no
reference to confidential employees;
supervisors not excluded; narrow
definition for managerial officials who
are to be excluded; and guards are
not treated separately. (501)
No provision covering guards.
Exclusive representation rights similar
to Order, except scope of representa-
tion extends virtually to all matters
related to employment. [502; 503(a)]
Appropriate unit may be established on
agency, plant, or installation, func-
tional or other basis insuring a clear
and identifiable community of inter-
est among employees and will pro-
mote effective dealings and efficiency
of agency operations as well as
insuring employees fullest freedom in
exercising rights under Act. Excludes
units including managerial employees,
both professional and nonprofessional
without self determination, and em-
ployees engaged in Federal personnel
work in other than purely clerical
capacity. Permits combining super-
visory and nonsupervisory firefighter,
educational employees and public
safety officers. WO]
No provision on guards. Reference to
public safety officers as noted above.
Exclusive representative to represent in
collective bargaining "all employees
in such unit for such purpose."
Employees may individually or as
group present complaints informally
to agency, provided exclusive given
opportunity to be present at adjust-
ment and to make its views known.
Employee cannot be represented by
any other labor organization. Right
to dues withholding and agency or
union shop. Right to be present at
diseussions between agency and em-
ployees or employee representatives
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concerning grievances, potential griev-
ances, personnel policies and prac-
tices, or other matters affecting
working conditions of employees in
unit; and employer to grant access
solely to representatives of exclusive
representative. In addition, exclusive
to have access at reasonable times to
employee work areas, right to use
employer's bulletin boards, mailboxes,
and other communication media,
subject to reasonable regulation, and
right to use employer's facilities at
reasonable times for purpose of meet-
ings concerned with exercise of rights
under Act, and provided challenging
organization denied use and access
until timely and lawful challenge.
I5 (b) (e) ; 6 (a)]
AGREEMENTS
Agency and organization representa-
tives shall meet and negotiate in
good faith on personnel policies and
practices and matters affecting
working conditions, subject to ap-
plicable laws and regulations, in-
cluding policies set forth in the Fed-
eral Personnel Manual, published
agency policies and regulations, a
national or other controlling agree-
ment at a higher level in the agency,
and the Order. In the negotiation
which can result in the execution of
a written agreement, parties may
determine appropriate techniques
to assist them (consistent with sec-
tion 17 of Order). [11(a)]
Similar rights and duties of labor orga-
nizations and agencies, to deal in
good faith, with some changes in pro-
cedures and scope of dealings as out-
lined: Representatives to meet and
negotiate in "good faith" for purpose
of arriving at an agreement, with
description of good faith bargaining.
[7107(a) (b)] Negotiation to encom-
pass personnel policies and practices
and matters affecting working con-
ditions. [7107(c)] Most matters and
areas presently in sections 11(b) and
12(b) or E.O. 11491 are combined
and reserved to management. Exclu-
sions do not include technology of
performing work and related impact,
and maintenance of efficiency of
Government operations. [7107(h)]
Negotiations are also limited by laws,
policies and regulations, and control-
ling agreements. [7107(d)]
Similar obligation to bargain in good
faith, except scope of bargaining
virtually unlimited, not to be re-
stricted by agency regulations. (503,
901)
Similar rights and responsibilities of
organization and agency to bargain in
good faith, except bargaining under
Act extends to virtually all conditions
of employment. See definition of
"collective bargaining." [3(m) (p)]
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Executive Order 11491,
amended by E.O. 11616
H.R. 10700 (Henderson)
H.R. 13 (Brasco)/S. 351 (McGee) H.R. 9784 (Ford)
Obligation to consult or negotiate does
not include matters with respect to
the rolasion of an agency; its budget;
its organization; the number of em-
ployees; and the numbers, types,
and grades of positions or employees
assigned to an organizational unit,
work project or tour of duty; the
technology of performing its work;
or its internal security practices.
May negotiate appropriate arrange-
ments for employees adversely af-
fected by impact of realignment of
work forces or technological change.
[11(b)]
Issues 99 to whether a proposal is not
negotiable because contrary to law,
regulation, controlling agreement,
or the Order are to be tet.11,ed ill, a
specified manner?by agreement
procedures, by agency head or by
Council, depending upon circum-
stances. [11(c)]
Application of agreement provisions
is subject to existing or future laws
and the regulations of appropriate
authorities, including policies set
forth in the Federal Personnel
Manual; published agency policies
and regulations in existence at the
time the agreement was approved;
and subsequently published agency
policies and regulations required by
law or by the regulations of appro-
priate authorities, or authorized by
the terms of a controlling agree-
Most matters within section 11(b) of No reserved rights of management. No provision. See definitition of co llec-
Order are herein combined with areas Scope of bargaining virtually un- tive bargaining. [3(m) (p)]
presently reserved to management in limited as noted above. [201(i); 503;
section 12(b) of Order. See note 504; 901; 1704(01
above. [7107(h)]
Similar provisions for resolution of No similar provision on negotiability No provision. See above.
negotiability issues. Function of issues. See above.
Council assumed by Authority. [7107
(i)
Similar provisions; [7107(d)]
No provision. Bargaining not to be No provision. Bargaining not limited by
limited by agency regulations. agency regulations or law. [3(m) (p))
[503(o); 1704(a)1
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ment at a higher agency level.
[12(a)]
Agency management retains right to
direct employees; to hire, promote,
assign, retain, discipline or lay off;
to maintain efficiency; to determine
methods, means and personnel for
doing the work; to take necessary
action in emergency. [12(b)]
Agreement shall not require an em-
ployee to become or remain a union
member, or to pay money to a union
except as he voluntarily authorizes
for payment of dues through pay-
roll deductions. [12(c)].
Same areas reserved to management
except no reference to efficiency of
operations. As noted above, are com-
bined with existing optional matters
under section 11(b) of Order.
[7107(h)]
Employees have same freedom of
choice. [71.08 (c)].
Establishes new and special bargaining
arrangements as follows:
Issuance of policy or regulations con-
cerning negotiable matters are sub-
ject to: (1) if to be issued by Civil
Service Commission or any other
agency (except Department of De-
fense) and relates to more than one
agency, copy goes to Federal Labor
Relations Board for consideration
under section 7107(h); (2) if to be
issued by head of agency or manage-
ment official, relates to employees of
the agency, and labor organisation
holds exclusive recognition at the
agency level, proposal subject to
negotiation with such organization;
(3) if to be issued by head of agency,
proposal subject to negotiation upon
reqtest from labor organizations
holding national consultation rights
Under section 7106(M) if such organi-
zations hold recognition among ma-
jority of employees affected by the
proposal; (4) if to be issued by mgt.
No provision.
No provision.
Employee either becomes member and Employee either becomes member and
pays dues, or pays representation pays dues, or pays representation
fee amounts to union shop or fee?agency shop. [5(c)].
agency shop upon request of organi-
zation. [701(2)].
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Executive Order 11491,
amended by E.O. 11616
H.R. 10700 (Henderson) H.R. 13 (Brasco)/S. 351 (McGee)
H.R. 9784 (Ford)
official, other than head of agency,
and exclusive recognition not held by
organization at level of the mgt.
official, proposal shall be transmitted
to labor organizations holding ex-
clusive recognition at subordinate
levels of agency, and upon request
by organizations which represent
majority of employees affected, pro-
posal subject to negotiation. Issues
on representation of majority of em-
ployees affected under (e)(3) or (4)
determined by Authority. Organiza-
tion representatives participating
within (e)(3) or (4) are not entitled
to travel costs or per diem. [7107(e)
Federal .Labor Relations Board estab-
lished to consider policies and regula-
tions involving negotiable matters
under section 7107(e) (1) to be issued
by Civil Service Commission or any
other agency (other than Depart-
ment of Defense). Members des-
ignated by Chairman of Civil Serv-
ice Commission consisting of a Chair-
man, five mgt. officials, and five
labor organization representatives,
under special criteria. Board to meet
and consider proposals not earlier
than 21 days, nor later than 30 days,
after date on which proposal is
transmitted. Determination on pro-
posal by majority vote. Chairman
votes only to break ties. When pro-
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Grievance procedures are required in
negotiated agreements. Procedure
to be applicable only to unit em-
ployees for consideration of griev-
ances over interpretation or applica-
tion of the agreement, and it may
not cover other matters for which
statutory appeals procedures exist,
and shall be the exclusive procedure
available to the parties and the em-
ployees in the unit for resolving
such grievances. Employees may
present their own grievances with-
out the intervention of the exclusive
representative so long as the ad-
4ustment is not inconsistent with
the terms of the agreement and the
_exclusive representative has been
given an opportunity, to be present
at the adjustment. [13(a)]
posal required by law to be issued
within specified time, the policy or
regulation to be issued within the
time required by law although Board
may not have reached agreement on
proposal. If four members of Board
propose change or addition to policy
or regulation of Civil Service Com-
mission or any other agency (other
than Dept. of Defense) relating to
employees of more than one agency
it will be considered by Board. Man-
agement Board members serve with-
out additional pay, and members
representing organizations not en-
titled to pay from Government. Civil
Service Commission to provide cleri-
cal and professional personnel serv-
ices to Board. [7107(g)]
Negotiated grievance procedures re-
quired in agreements, and to cover
arbitrability questions. Procedure
not limited to matters covered by
agreement, to be exclusive griev-
ance procedure available to unit em-
ployees, but grievance procedure not
to supersede appeals procedures es-
tablished by law. Employee cap pre-
sent own grievance, but exclusive
representative has right to be present
at adjustment if it is not the repro-
sentative of employee, [7112;
7106(I) (1) ; 7107(d) (1)]
All agreements to have grievance pro-
cedure: sole procedure for unit em-
ployees concerning all grievances
over agreement or otherwise related
to employment; employee can pre-
sent own grievance if organization
has opportunity to be present and
present its views. Binding arbitra-
tion required, may be invoked by
organization, including questions of
arbitrability. [101 (h) ; 502 (1) ; 1101]
Grievance procedures required in agree-
ments for binding arbitration of
grievances, including 'criestions of
arbitrability; exclUsive ' procedure
available to unit employees. Party to
agreement aggrieved by second par-
ty's failure or refusal to proceed with
arbitration under agreement can ask
court for summary. action directing
that arbitration proceed. Arbitrator's
decision may be enforced by appro-
priate court. Other conditions and
rights of organization and employee
similar to HR 13 as noted above
under exclusive recognition. [8; 5 (b) ;
6(a)]
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Executive Order 11491,
amended oy 11010
H.R. .19709 (Henderson)
H.R. 13 (Brarsco)/S. 351 (McGee) H.R. 9784 (Ford)
Arbara4ori is permitted and is limited
to the same matters as is the griev-
ance procedure. Arbitration may be
invoked by the agency or an exclu-
sive representative. Either party
may file exceptions to an arbitra-
tor's award with the Council, under
regulations prescribed by the Coun-
cil. [13(b)]
Grievances may be initiated by unit
employees on matters other than
the interpretation or applicaton of
the agreement under any procedure
available for that purpose. [13(c)]
Grievabiiity and Arbiirubilsty issues.
Disputes over what is subject to the
grievance procedure or arbitration
may be referred to the Asst. Secre-
tary of Labor. [13(d)]
Provisions are not applicable to agree-
ments made before effective date of
the Order as amended. [13(e)]
Agreements are subject to approval
by agency head or his designees.
Agreement must be approved if it
conforms with law, published
agency policies and regulations (un-
less agency has granted exception),
and regulations of other appropriate
authorities. Local agreements sub-
ject to controlling agreement at
higher level is approved under pro-
cedures of controlling agreement.
(15)
Procedure must include a process for
binding arbitration, to be invoked by
organisation or agency. Arbitrators
to be selected from Federal Media-
tion and Conciliation Service list.
Either party may file exception with
Authority to arbitrator's award.
Agency must implement decision by
arbitrator to make an employee
whole, including back pay. (7112)
Negotiated procedure is sole grievance
procedure to be used by unit employ-
ees for settlement of grievance de-
fined in Act?see above definition,
[7103(a) (7) ; 7112(a))
Grievability and arbitrability issues,
processed under negotiated proce-
dures. [7112(a)]
Arrangements in existing agreements
protected under savings clause.
[7117(b) (1)]
Similar due to continuity clause. Pro-,
visions to continue until specifically
superseded by order of President or
regulations issued pursuant to Act.
[7117(0 (2)1
Binding arbitration required in griev-
ance procedure. Similar to HR 10700
provision except invoked only by
organization, and arbitrator's award
appealable to courts. (1101)
No provision. Negotiated procedure is
only procedure available to unit em-
ployees. [1101(c)]
Similar to HR 10700. [1101(c) OA
Arrangements in existing agreements
protected under savings clause.
(1702)
No provision. Existing arrangements
subject to negotiation. (1702)
Binding arbitration required in griev-
ance procedure, similar to lilt 13. (8)
Similar to HR 13. [8(a)]
Grievability and arbitrability issues
processed under negotiated grievance
procedure and arbitration. [8(a)]
Arrangements in existing agreements
protected under savings clause.
[12(a)]
No provision. Provision in existing
agreements protected under savings
clause. [12(a)]
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NEGOTIATION DISPUTES AND IMPASSES
Federal Mediation and Conciliation
Service to assist parties in resolving
negotiation disputes, subject to its
rules. (16)
If voluntary arrangements, includ-
ing services of FMCS or other third-
party mediation fail to resolve nego-
tiation impasse either party may re-
quest the Federal Service Impasses
Panel to consider the matter. Panel
may, in its discretion and under its
rules, consider the impasse; may rec-
ommend procedures to the parties
for resolution of impasse, or settle
the impasse itself. Arbitration or
third-party factfinding with recom-
mendations may be used by parties
only when authorized or directed by
the Panel. (17)
Same FMCS services and assistance.
[7111(a); 7117(a) (1)]
Similar, except either party may re-
quest Authority to consider. Author-
ity to establish impartial three mem-
ber panel to consider impasse. Three
panelists to be "familiar with Federal
Government operations and knowl-
edgeable in labor-management rela-
tions". Action of panel on impasse is
final and not subject to further re-
view. (7111)
Similar provision. [901(a)]
Provides for voluntary arrangements
including FMCS services. Either
party can subsequently request as-
sistance of Authority, but parties
may agree to binding arbitration of
impasse. Authority to determine ap-
propriate methods and procedures
and may determine binding settle-
ment. (901)
Similar FMCS services and assistance.
[7(6)]
If mediation procedures agreed to by
parties and FMCS assistance does not
resolve impasse, impasse referred to
factfinding with advisory recommen-
dations (binding if agreed to by labor
organization). If binding, organiza-
tion prohibited from striking to resolve
impasse. (If organization selects ad-
visory factfinding, it may strike under
provisions of section 9.) (7)
Strikes. Provides right to strike for the
exclusive representative and for em-
ployees to participate in strikes aris-
ing out of or in connection with labor
dispute. Restrictions: Restraining or-
ders or injunctions may be granted
on the basis of findings of fact made
by the appropriate district court after
due notice and hearing that the strike
poses a clear and present danger to
the public health or safety and it is
in the best public interest to prevent.
If the exclusive elects binding fact-
finding during negotiation disputes
they will be prohibited from striking
for the purpose of resolving the dis-
pute. Courts may grant restraining
orders and injunctions where strikes
are conducted in violation of a nego-
tiated agreement provision. [9(a) (b)
(c) ; (e)
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CONDUCT OF LABOR ORGANIZATIONS AND MANAGEMENT
Executive Order 11491,
amended by E.O. 11616
H.R. 10700 (Henderson)
H.R. 13 (Brasco)/S. 351 (McGee)
HR. 9784 (Ford)
Standards of Conduct for Labor Orga-
nizations require recognized orga-
nizations to subscribe and adhere
to internal democratic practirpg,
exclude from office persons affiliated
with Communist, totalitarian or
corrupt influences, brohibit officers
and agents from having business or
financial conflicts of interest, main-
tain fiscal integrity, file financial
and other reports, provide for bond-
ing of organization officials and
employees, meet trusteeship and
election standards. Asst. Secretary
o Lgh,..? preseeifies regulations,
decides alleged violations. (18)
Unfair labor practices. Agency man-
agement shall not interfere with,
restrain, or coerce an employee in
the exercise of rights; encourage or
discourage membership in labor or-
ganization; sponsor, control, or
otherwise assist a labor organization
(except for customary and routine
services and facilities under certain
conditions); discipline or otherwise
discriminate against an employee
because he files a complaint or gives
testimony under Order; refuse to
accord appropriate recognition to a
labor organization qualified for such
recognition; or refuse to consult,
confer, or negotiate with a labor
organization as required by Order.
Similar, except organizations subject to
reporting and disclosure requirements
applicable in private sector under
diesetion sod regulations of Sec-
retary of Labor. (7115)
Similar. Does not include phrase in
section 19 (a) (3) of Order concerning
the furnishing of services and facili-
ties whereby such is to be "consistent
with the best interests of the airenny,
its employees, and the organization".
And section 19(a) (5) not included:
"refuse to accord appropriate recog-
nition to a labor organization quali-
fied for such recognition. Adds to
ULP's for agency: (6) to fail or refuse
to cooperate in impasse procedures
and impasse decisions as required by
this subchapter; or (7) to fail or re-
fuse to comply with any provision of
this subchapter [7109(a)]. Complaints
filed with Authority. (7110)
Requires that organizations only adopt No provision on standards of conduct
governing requirements providing for labor organization as in Order.
for democratic practices, freedom See UPL's below concerning unlawful
from aunt:Med and business eciriffiets VaULJ.
of interest, and fiscal integrity. No
reporting or disclosure requirements,
or procedures for deciding alleged
violations. (1401)
Management ULP's similar to H.R
10700, except not ULP for mgmt. to
encourage membership, or to require
union or agency shop arrangement
es eonditien of empleyment. Com-
plaint filed with Authority. [701(a)]
Similar to H.R. 13, except not improper
to enforce agency shop arrangement
as condition of employment, and ULF'
to either encourage or discourage
membership. Alleged violations Men
with Board. [10(a)]
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[19(a)]. Unresolved complaints filed
with Asst. Secretary [19(d)]
Similar prohibited practices for labor Similar. Same additional ULP's as for Similar to H.R. 10700, except no listing Similar to H.R. 13, except strikes are
organizations, with additions that agency as noted above. [7109(b) (c)] of ULP for calling or participating legal under stated conditions. Alleged
organizations may not coerce, dis- Complaints filed with Authority, in strike, slowdown, or picketing violations filed with Board. [10(b)]
cipline, fine, or take other economic (7110) against any Federal activity. [701(b)]
sanction against a member as pun-
ishment for or to hinder his work
performance or productivity; may
not condone strike or prohibited
picketing activity by failing to take
affirmative action to prevent or stop
it; may not discriminate in member-
ship because of race, color, creed,
sex, age, or national origin; and may
not refuse to consult, confer, or
negotiate with an agency as re-
quired by Order. [19 (b)] Organiza-
tions to have reasonable and uni-
form membership standards, and
may enforce appropriate discipline
of membership. [19(c)] Unresolved
complaints filed with Asst. Secre-
tary. [19(d)]
Only issues in an unfair labor practice Similar. Unresolved complaints filed No provision. No provision.
which can be raised in appeals pro- with Authority under procedures of
cedure may not be raised as an section 7110, discussed below. [7109
unfair labor practice. Issues which (d)]
can be raised under a grievance
procedure may be processed through
either grievance or unfair labor
practice, but not through both pro-
cedures. Appeals or grievance deci-
sions are not considered unfair
labor practice decisions and are not
precedent for unfair labor practice
decisions. Unresolved complaints
filed with Asst. Secretary. [19(d)]
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Executive Order 11491,
amended by E.O. 11616
H.R. 10700 (Henderson)
H.R. 13 (Brasco)IS. 351 (McGee)
H.R. 9784 (Ford)
Authority empowered to prevent ULP'S,
Its power not to be affected by any
other means of adjustment or pre-
vention that has been or may be
established by agreement, existing
or future laws, by procedures author-
ized to be issued by existing or future
laws, or otherwise. Procedures out-
no complaint, hearing, and
testimony. Authority can order cease
and desist from ULP or take other
affirmative action including rein-
statement of employee (backpay may
be required of agency or labor organi-
zation), and require periodic reports.
Exceptions to proposed report by
Authority may be filed and Authority
to grant review if it believes ex-
ception raises substantial issue of
fact or law. (7110)
Similar to HR 10700 except Authority
may order agency to discipline
supervisor or official of agency upon
determination of arbitrary, capri-
cious, or otherwise kliowitig
of Act. (801)
Establishes independent category of
ULP'S for any person. [701(c)]
Prevention of unlawful acts. Similar to
HR 10700. Board empowered to pre-
vent any person from engaging in
unlawful acts under section 10. Board
may diteci, back pay, discriplinary
action against management repre-
sentatives, and may petition courts
to seek enforcement of its orders.
Judicial review of Board decisions
authorized. Provides detailed pro-
cedures on prevention of ULP'S. (11)
MISCELLANEOUS PROVISIONS
Use of official time. Solicitation of
union membership, dues, and in-
ternal union business must be dur-
ing non-duty hours. Negotiations
by an employee representing a
labor organization shall not be on
official time unless the parties agree
to other arrangements which may
provide for official time for ;'ent:,
Internal business of labor organization
during nonduty hours of employees
concerned. However, negotiations by
employees representing organize,
tion, including attendance at im-
passe settlement proceedings, to be
on official time for such during
regular working hours. Employees on
such authorized official time shall
Mandates full official time for em-
ployees called by either party to
participate in any phase of pro-
ceedings, or representing organiza-
tion in negotiations, grievance or
impasse prooedures, without limit
on number of employees. (1201)
Similar to H.R. 13:
0
0-
0
(T)
to
co
o
CO)
? ?
0
th
CO
C.c.)
CO
0
0
0
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ployees for up to 40 hours or one-
half the time spent in negotiations
during regular working time. Num-
ber of employees authorized of-
ficial time "normally shall not ex-
ceed number of management repre-
sentatives." (20)
Allotment of dues. Authorizes volun-
tary dues allotments by organiza-
tion's members in unit of exclusive
recognition pursuant to negotiated
agreement. Allotments subject to
CSC regulations. Employee can
revoke authorization at stated six-
month intervals [21(a)]
Authorizes voluntary dues allotments
pursuant to agency agreements
with associations of mgmt. officials
or supervisors, subject to CSC
regulations. Agencies not required
to recover cost of making dues
allotments. [21(b)]
Adverse action appeals. All employees
in competitive civil service have
same rights in adverse action cases
as preference eligibles under section
14, Veterans' Preference Act. Right
of appeal to Civil Service Commis-
sion. CSC decision binding upon
agencies. (22)
Agency implementation. Agencies to
issue policies and regulations for
implementation of Order, after con-
sultation with appropriate organiza-
tions. (23)
not exceed the? number of persons
representing agency. Additionally,
? Authority to determine if employees
participating for, or on behalf of,
organization in any phase of pro-
ceedings before Authority to receive
official time for such purposes dur-
ing regular working hours. (7113)
Similar, except allotments at no cost
to organization or employee, with
exceptions assignment irrevocable for
one year. (7108)
Continues under continuity clause until
otherwise specifically superseded by
order of President or regulations
issued pursuant to Act. [7117(a) (2)1
Continues under continuity clause until
superseded as noted above.
Similar. [7117(a)(2)]
Requires agencies to withhold dues and
initiation fees at no charge. Assign-
ments irrevocable for one year or
until expiration of agreement, which-
ever occurs later. (601)
No provision.
No provision.
No provision
Similar to H.R. 13, no reference to cost.
Requires agencies to withhold from
nonmembers, as a condition of con-
tinued employment, amount equal
to dues, fees, and assessments that a
member is charged: Authorization not
revocable for one year. [5(b) (2), (c)]
No provision.
No provision.
No provision.
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Executive Order 11491,
amended by E.O. 11616
H.R. 10700 (Henderson)
H.R. 13 (Brasco)/S. 351 (McGee) H.R. 9784 (Ford)
Savings clauses. Order does dot pre-
elude?(1) renewal or continuation
of a lawful agreement between an
agency and representative of its
employees entered into before the
effective date of Eli loose
(1/17/62); or (2) renewal, continua-
tion, or initial according of recogni-
tion for units of mgmt. officials or
supervisors represented by labor
organizations which historically or
traditionally represent mgmt. offi-
cials or supervisors in private in-
dustry and which hold exclusive
recognition for units of such officials
or supervisors in any agency on the
date of Order. (21)
Guidance, training, review and infor-
mation. Civil Service Commission,
in conjunction with the Office of
Management and Budget, shall
establish and maintain a program
of policy guidance to attenciea nn
labor-mgmt. relations and period-
ically review implementation of
these policies. CSC provides tech-
nical advice and information, and
training assistance to agencies; re-
views operation of program to assist
in assuring adherence to its pro-
visions and merit system require-
ments; and, from time to time, re-
ports to Council on state of the
program and recommends improve-
ments. [25(a)]
Department of Labor and Civil Ser-
vice Commission to collect and dis-
seminate program information to
Similar. Savings clause expanded to
specifically protect exclusive recog-
nitions and certifications of repre-
sentation entered into before effec-
tive date of Act. 17117(b)] Continues
policies, regulation, and procedur=
established under Executive orders
in effect on effective date of Act,
until revised or revoked by President,
or unless superseded by specific pro-
visions of this Act or regulations
issued pursuant to Act. 17117(a) (2)]
Savings clause. Rights and responsi- Savings clause continues agreements
bilities under exclusive recognition prior to Act. [12(a)]
or national consultation rights
granted pursuant to E.O. 10988 and
E.O. 11491, as amended, or ? any
agreement thcreander except as may
be agreed to by parties thereto, or
until modified or superseded by an
agreement made pursuant to Act.
(1702)
Continues under continuity provision No provision,
until superseded by order of Presi-
dent or regulations issued pursuant to
Act. [7117(a) (2)]
No provision.
Authority to maintain file of its pro- Similar to H.R. 10700, except Bureau No provision.
ceedings and publish texts of its de- of Labor Statistics to maintain files
cisions and actions of panel under and data and publish information to
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agencies, organizations and the pub-
lic [25(b)]
section 7111. Civil Service Commis-
sion, for guidance and information of
any interested person, to maintain
file of copies of all available and ap-
plicable agreements and publish full
texts of all arbitration decisions in-
volving any such employees or
agency. All ffies maintained -relative
to such services open to inspection
and reproduction subsect to section
552 of title 5 USC. (7114)
effective date. Order effective 1/1/70, Effective date of Act not mentioned.
(issued 10/29/69). (26)
interested parties?files open to in-
spection under conditions prescribed
by Secretary of Labor. (1301)
Effective date of Act not mentioned.
Funding. Authorizes appropriation of Funding provision similar to H.R.
sums to carry out functions and 10700 (1601)
purposes of Act. (7116)
Supersedure. Provides for supersedure
of regulations, Executive orders and
rules noted above under savings
clause. (Amendment to Sec. 5, USC
5).
Severability. Standard severability
clause on any provision of Act.
(Amendment to Sec. 6, USC 5)
Specifies that Administrative Procedure
Act applicable to rules, regulation
or adjudication provided by author-
ity or FMCS in carrying out Act.
(1701)
Provides that Act supersede all previous
statutes and Executive orders con-
cerning subject matter under Act.
[1704(a)]
Standard severability clause on any
provision of Act. [1704(b)]
Violations, enforcement, and suits.
Maximum fine of $5,000 and/or
imprisonment of one year, of persons
interfering with Authority and offi-
cials or an arbitrator in performance
of duties under Act. (1501)
Effective one hundred and twenty days
following enactment. (13)
Supersedes laws or parts of laws which
are inconsistent with provisions of
Act. [12(b)]
Standard severability clause on any
provision of Act. [12(c)]
Similar to HR 13. [11(m) (7)]
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Issue
Issues
1. Philosophy and Policy
References
?gator Concerns
Whet should be the public policy and philo-
sophy for the labor-management program for
the Federal service?
How should the program balance concerns
for the representation rights of em-
ployees, status of unions, responsibil-
ities of managers to manage, efficient
accomplishment of agency mission, and
responsiveness to the public interest.
Background
The public policy of the existing program,
shaped by experience and the special con-
ditions of the Federal sector, is based
upon these principles:
Law and public intermit are paramount.
Opportunity for employee participation
in personnel policy setting and imple-
mentation contributes to employee well-
being and efficient administration of
the Government.
? Such participation is improved through
constructive labor-management relation-
01,
Program should facilitate improved em-
ployee performance and efficiency, and
the continued development and Imple-
mentation of modern and progressive
work practices.
A clear statement of rights and respon-
sibilities of unions and management is
required.
Agreements are subject to laws.
. Negotiations are subject to higher-
level regulations required to assure
that degree of uniformity necessary to
protect equity to employees and merit
principles.
E.O. 11491 maintains public policy
favorable to collective bargaining for
Federal employees within framework of
law and higher level regulations. First
stated in E.O. 10988 of 1962 and contin-
ued through three successive Administra-
tions.
-- H.R. 10700 is similar in policy and
philosophy to E.O. 11491.
-- H.R. 13 and H.R. 9784 provide for col-
lective bargaining as the basic mechan-
ism for determining Federal Service
personnel policies and practices.
Supersede laws or portions of laws
in conflict with their provisions;
Agency regulations subordinate to
agreements.
Virtually all conditions of employ-
ment are negotiable.
. Bmployees required to join union or
pay equivalent duee ee condition of
employment.
Management rights and efficiency of
operations not included as policy
objectives.
H.R. 9784 legalizes strikes under
specified conditions; H.R. 13 has no
prohibition against striking by
Federal employees.
In constructing any Federal Service labor
relations system, the following warrant
consideration:
-- Protection of the public interest.
-- Impact of any legislated program on existing
and future laws affecting Federal personnel
and agency management.
Recognition of diversity of missions and
other special differences among Depart-
ments and agencies.
-- Special circumstances and limitations which
distinguish Federal personnel administration
from private and other public sectors.
-- Assurance of uninterrupted continuity of
public services.
-- Protection of Federal management's essential
rights to manage and mission accomplishment.
-- Meaningful opportunity for broad range of
collective bargaining, within balanced system
reflecting employee needs, union interests,
and public expectations that Government
operations be efficient, effective, and
responsive.
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Issue
2,; Definitions
References
Major Concerns
What definitions are needed, and how should
they be expressed in a labor-Management rela-
tions (LMR) program for the Federal service?
Background,
-- Definitions are necessary to:
. resolve potential ambiguities
. set parameters of various terms used in
the program
-- Definitions exist under E.O. program with
history of workability. with Assistant
Secretary of Labor for Labor-Management
Relations (A/SLMR) and Federal Labor
Relations Council resolving disputes as
to meaning of terms.
E.O. 11491 provides numerous terms
commonly used in the LMR program.
A/SLMR has fashioned definitions for
Management Official, Confidential Em-
ployee, and Professional Employee, and
they are now undergoing test.
-- H.R. 10700 provides definitions aimilar
to E.O. 11491 except
. "labor organization"
. "grievance"
-- H.R. 13 and H.R. 9784 definitions fit
the greatly expanded coverage and scope
of bargaining. Major differences from
E.O. appear in definitions for:
. agency
. employee
? supervisor
. guard
. labor organization .
grievance
dispute
conditions of
employment
collective
bargaining
-- That the definitions clearly reflect the
special personnel, organizational, and
mission characteristics of the Federal
Service.
-- That the definitions be consistent with
the intended scope and coverage of the
Federal labor-management relations pro-
gram.
-- That the definitions are not in conflict
with other terms defined in Title 5 U.S.
Code, and other laws; and any differences
in terms that are intended are clearly
specified.
-- That coverage is clearly defined, with
attention given to relationship to coverage
of other personnel laws and regulations.
-- That definitions be specific yet flexible
enough to accommodate to the wide variety
of situations in the Federal Service.
-- That terms used to define the scope of
bargaining reflect understanding of the
bargaining structure in the Federal
Service and the locus of delegated decision-
making authority.
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Issue
3. Coverage
References
What employees and employers 'should be
covered?
Who is affected by or excluded from
coverage of LMR law?
Background,
-- Under E.O. program, coverage has extended
only to employees and employers of
Executive branch.
. Non-appropriated fund employees brought
in under E.O. 11491.
-- Onions are interested in greatest possible
coverage.
Groupe and categories of employees
covered by State statutes differ among
states.
-- Some States follow NLRA and exclude
supervisors from coverage.
-- Other States cover supervisors, but they
must bargain in separate units.
-- In number of States professionals afforded
solf-4atailmatlwm Ly eLaiwie or agency
decision.
E.9. 11491
Covers only employees of Executive
branch
Exclusions based on security and
investigations considerations,
conflict of interest
Foreign Service employees under
E.O. 11636
, ?
-- H.R. 10700
. Similar to E.O. 11491
-- H.R. 13 and H.R. 9784 greatly enlarge
coverage to include, except for Postal
Service: '
Employees of Executive branch,
Legislative and Judicial branches
(employees in competitive positions)
. Library of Congress
. CPO
? Federal Reserve System
? And, due to definition for super-
visor, as in H.R. 13, many super-
visors under E.O. 11491 could become
ber.ssioioe
Major Concerns
That coverage be compatible with the basic
policy objectives of the LMR program.
--Whether Foreign Service personnel should
be covered--justification for separate
itceLmuni.
--That "supervisors" be treated as meaning-
ful members of the management team.
--Whether, or thu extent to which, employees
involved in national and internal security
and investigative activities should be
covered.
--What would be the impact of coverage of
employees in the three branches of
Government on the separation of powers
doctrine:
--Whether employees of the Administrative
body responsible for LMR program im-
Plementation should be covered or ex-
cluded; and whether they should be
affiliated with other labor organizations.
an independent organization, or none.
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Issue
What should be the structure and authority
of a central body (or bodies) to administer
the program? What functional responsibili-
ties will be placed in such authority or
authorities?
Who Mill have what authority and under
what circumstances are considerations
vital go success or failure of program?
-- How will the authority (it.) relate
to existing agencies of government, to
the President, to Congress?
Background.
Moat labor relations systems in public
sector provide central body, as is the
case in the private sector with the NLRB.
-- The power or authority of the central
body varies by jurisdiction.
4. Administrative Machinery
References
E.O. 11491 places administrative author-
ity in:
Major Concerns
. Federal Labor Relations Council (FLRC)
. Federal Service Impasses Panel (FSIP)
. Assiitant Secretary of Labor for
Labor-Management Relations (A/SLMR)
. In addition, Federal Mediation and
Conciliation Service (FMCS) provides
mediation services.
-- H.R. 10700 establishes central authority
and special Federal Labor Relations
Board.
. Central authority assumes roles of
FLRC, FSIP, A/SLMR.
The Board, creprising of union and
management members, would make deter-
minations on Government-wide personnel
policy.
-- H.R. 13 and H.R. 9784 also establish a
central body with wide authority.
. Authority extends to major policies
due to broadened scope of bargaining.
. Agency heads and Governmental agencies
such as the Civil Service Commission,
would be subject to decisions of
central authority.
-- What would be the authority of the tentral
body? Would it be superior to present
central personnel policy-setting agencies,
Would it have authority to override Executive
Orders of the President?
--.To what extent would it be given latitude
to make policy determinations presently
established through legislative actions
of the Congress?
-- Credibility with all parties.
Would it be so structured as to facilitate
timely and judicious case detilions?
-- Accountability to President and/or Congress.
-- Relationship to the courts.
. Finality of decisions, rulings
. Scope of judicial review
. Standards for review
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5. Recogation
Issue References Major Concern
What should be the method of granting 11491 -- That employees have free choice as to
recognition?
-- This will determine J. employees are
to be represented: if so, by whom,
Background
-- Under E.O. 10988 and E.O. 11491:
. Showing of interest requirement.
. 607. participation criteria in elec-
tion under E.O. 10988.
. Dissatisfaction led to majority
voting criteria as-sole method in
elections under 8.0. 11491.
-- Private and other public sectors:
? NLRB provides for voluntary recogni-
tion, without board certification, or
certification by election, unless un-
fair lab practices preclude fair
election.
. Most states have recognition policies
similar to NLRB.
Election is sole method (of majority
voting)
I. 8,11. 10700, H.R. 13 and H.R. 9784
Central body may certify exclusive, if
-- Proper showing of interest.
-- Mgt. OLP prevents fair election.
Election if dispute or petition by
another union.
representation.
-- That method effectuates stable LMR.
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Issue
6. Unit Recognition
References
Major Co earns
Bow should the appropriate bargaining unit
be determined?
Background
-- Critical issue as it determines,
^ What will constitute a proper group-
ing of employees for purpose of col-
lective bargaining.
? How collective bargaining will be con-
ducted.
-- Fragmented unit may narrow the scope of
bargaining because mgt. may have limited
authority at that level.
-- Pre-determined agency-wide or Government-
wide units may have broadest scope of
bargaining, but
. May join together many diverse inter-
ests serving to frustrate employees in
selection of bargaining agent.
. May serve to prevent challenges to
unit by other unions.
-- Private sector: NLRB determines
-.- Many public sectors follow private sector
practice, but a few states fix unit or
indicate preference for broadest unit.
Practices differ widely at local govern-
ment level.
E.O. 11491
. Early 'roots of community of interest
as sole unit standard under 140.
10988 leading to substantial number
of units,
. E.P. 11491 established criteria of
community of interest, promotion of
effective dealing and efficiency of
agency operations.
. Supervisors and other conflict-of-
interest employees excluded.
__ H.R. 10700 follows criteria of E.O.
11491, plus:
. Criterion that unit be consistent
with centralization or decentraliza-
tion of personnel management authority.
. Permits consolidation of units by
agreement of parties; subject to re-
view by central authority.
-- H.R. 13
. Community of interest is sole
criterion.
. Guards not treated separately.
. Supervisor definition would allow in-
clusion of lower-level supervisors
in unit.
-- H.R. 9784
. Basic criteria similar to E.O. 11491.
. Supervisors can be in units under
special circumstances.
-- That appropriate unit promote effective
dealings and meaningful bargaining,
while promoting efficiency of opera-
tions.
-- That unnecessary existing unit frag-
mentation be minimized.
- Maximum flexibility to parties and
-central authority in determining appro-
priate unit, thus effectively dealing
with relationship of agreement and
recognition bars. ,
-- Minimize unnecessary adverse impact
on established stable relationships.
-- Supervisors be treated as important.
members of mgt. team. And provision
for exclusion of other conflict-of-
interest employees (e.g., confidential
employees, guards, etc.)
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Issue
7. Scope of Negotiations/Bargaining
References
Major Concerns
What should be the scope of bargaining?
Background
-- Conduct of negotiations and scope of bar-
gaining are of fundamental importance as
they are connected with outcome of bilat-
eral dealing.
. Meaningful dealings, of substance;
. or perfunctory gestures.
-- Private sector dealings encompass wide
range of conditions of emplOyment including
pay and fringes, and are conducted by
various means ranging from small single..
unit bargaining to bargaining at corporate
and industry-wide levels.
-- Most States have followed N1RA language of
"wage:, hours and oihai conditions of
employment."
-- Some States have been more specific by
making bargainable fulfillment of "pro-
fessional duties," "all matters over which
appointing official may exercise discre-
tion," etc.
E.O. program of Federal SOLVICO makes bar-
gainable personnel policies, practice, and
matters affecting working conditions, with
major items, such as pay and fringes, set
by Congress, subject to:
? law, regulations and published policy
? areas reserved to gene). management
? higher-level agreements
. other conditions specified in 6.0., such
as negotiated grievance procedure
-- 6.0. 11491
? Negotiable matters subject to laws,
higher-level regulations, PPM
policies, management rights provi-
sions.
. Multi-unit and agency-level bargain-
ing *Alit* in practice.
. While not in Order, exception to
agency regulations encouraged when
agreed to by parties.
? FLRC determines negotiability
disputes.
-- H.R. 10700, similar to 6.0. 11491,
except;
Prescribes FLRB to rule on multi-
agency or Government-wido personnel
policies.
National consultation rights can lead
to negotiations.
Parties cin combine units, subject
to FLRA review.
-- H.R. 13 and H.R. 9784 provide bar-
gaining similar to private sector:
? virtually all aspects of employment
. no management rights provided
? may Nuke bargalnahlo areas now
covered by law, per supersedure
provision
? agency regulations not controlling
. H.R. 9784 permits negotiations on
matters set by law, but dues not
override law. Agency, if it agrees,
must seek change in lot.
-- What items will be specifically allowed?
Compatibility with merit principles?
-- Some items be specifically excluded:
. such as necessary management right
under 6.0.;
. owner:hip of woik and right of con-
tracting out.
-- In what areas is uniformity of policy
desirable or necessary?
Intended that wages and other major
fringes be negotiable, how would this
work? Bargaining:
. in each of approximately 3500 units?
? on a coalition bails? effect on existing
units?
^ on regional or nptionAl h..4.9
? in legislatively-defined units more
attuned to major issues, such as pay,
fringes?
- Jtll management be able to develop and
implement personnel programs, including
wages and fringes for managers and other
employees not covered, or will these
be concretise by Congress?
Negotiability determination. Role of
Courts?
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Issue
8. Impasse Resolution
Reference
Major Concerns
How would negotiation impasses be resolved?
8aShIE2112i:
Constructiue and peaceful resolution of
impasses is paramount to mission accom-
plishment and LMR in the public interest,
Wide range of methods exist in private and
other public sectors, including joint
efforts such as joint fact-finding through
third-party intervention, strikes and
lockouts (private sector).
Historically, strikes by public employees
have been prohibited by statute or by
court decision.
While public employees do not have right
to strike, the power to strike exists;
hence, the threat of strike is ever-present
during negotiations.
Alaska, Hawaii, Minnesota, Montana, Oregon,
Pennsylvania and Vermont enacted legisla-
tion allowing strikes under limited
circumstances.
Strikes by Federal employees are illegal.
Emphasis is on bilateral resolution, with
third-pary intervention (arbitration in
Postal Service, and FSIP under E.O. 11491).
FSIP offers recommendations for settlement,
with imposition of a settlement as a last
resort.
Evidence in other public sectors of author-
ization of strikes, with limitation,
coupled with binding arbitration.
E.O. 11491 program
Federal Mediation and Conciliation
Service (FMCS) provides mediation serv.
vice.
FSIP may recommend settlement or decide
conditions itself.
Arbitration or factfinding with recom-
mendations only upon decision of FSIP.
Overall emphasis is on voluntary settle
men t,
Strikes are illegal.
H.R. 10700 similar to E.O., except:
Authority, on request of either party,
establishes 3-member Panel.
? Panel decision binding, not reviewable.
? Arbitration when authorized by Panel.
. Strikes illegal.
H.R. 13
. FMCS and other voluntary means.
? May agree to binding arbitration of
impasse.
May request assistance of central body
which may decide settlement.
No reference to strikes.
H.R. 9784
? FMCS services.
? If FMCS assistance fails, to factfinding
(advisory or binding at unions' option).
Union can strike if it selects advisory
factfinding, subject to public safety
and health limitations.
-- Emphasis on voluntary settlement.
-- Availability of FMCS services.
-- High degree of objectivity in any third-
party intervention.
-- Public interest remains paramount.
-- That strikes remain improper and illegal.
-- Speedy and effective resolution of impasses.
-- Impasses panel has option of involvement
with authority to implement actions, subject
to review by central body.
-- Role that courts may play.
-- That impact of impasse-resolving decisions
on public be given weight.
-- That impasses be resolved in the context
of the total negotiated package.
-- That in the absence of strikes, non-
disruptive dispute resolution machinery
be available that is satisfactory to the
parties, and accountable to public con-
cerns for costs, efficiency of govern-
mental operations, and equity to em-
plo,,ees.
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Issue
9, Grievance Procedures
References
Malor Concerns
What procedures should be provided for the
resolution of grievances?
Background
Important for parties to know what griev-
ance-resolving procedures may or may not
be required to be included in agreements.
Not legislated in private sector, but
practice includes:
Binding arbitration on conditions of em-
ployment extending beyond scope of
agreement.
? Decisions of arbitrator appealable to
courta under special circumstancea.
. Union is exclusive representative.
Binding grievance arbitration is gaining
acceptance in public sector.
. Its legality is well-established.
. Estimated that over 507. of agreements
now include binding arbitration.
Legislated arbitration is recent de-
velopment with 16 states and several
municipalities having it.
E.O. 11491:
All agreements to contain procedure.
Sole procedure for terms of agreement,
Nor to Include appeal, on matters
where statutory procedures available.
Union is exclusive representative, but
employee may represent self.
Union has right to be present at ad-
justment.
May include binding arbitration.
Exceptions to arbitrator's award to
FLRC.
Grievability and arbitrability
questions to A/SLMR.
H.R. 10700, almilar to E.O. 11491, ex-
cept:
May include grievability and arbitra
questions.
Not limited to scope of agreement.
? Must include opportunity for binding
arbitration.
? Arbitrators from FHCS jest.
? Arbitrator has authority to make em-
ployees whole.
? Union not obligated- to represent non-
members.
? No specific reference to role of court.
H.R. 13 and H.R. 9784s
. Unlimited scope.
. Mandatory binding arbitration.
. Arbitration invoked only by union,
in H.R. 13.
-- Should negotiated grievance procedures
extend to matters not covered by
negotiated agreements.
-- Scope of procedure to include matters
outside agreement?
erotecti,1 ot statecery appeal. rights.
Right of union to exclusive repre-
sentation in grievances of unit employees.
Authority of arbitrator to make em-
ployee whole.
Role of courts and central authority.
Exception to arbitrator's award.
Resolution of arbitrability and
grievability disputes.
eight or employee to moose nix own
representative; and to process his
own grievance.
Avoidance of duplication in reviews
of grievance on same matter.
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Issue
10. Union Security
References
What union security arrangements should
apply?
Background
-- Union security is a major objective
of unions and serves to stabilize
labor-management relations.
Under NLRA, agreements may require
union membership when not prohibited
by State law.
Public sector:
Hawaii requires checkoff of
service fee.
15 States permit checkoff per
agreement.
A number of states have agency
or modified agency shop union
security arrangements.
Federal sector:
Voluntary checkoff of union dues per
agreement with union. Subject to
CSC regulation.
Union membership or payment of dues
or fees to a union mar not be made
a condition of continued Federal
employment.
--E.O. 11491
Voluntary checkoff per agreement,
subject to CSC regulations, revoca-
tion at 6-month intervals; cost
negotiable.
No required membership or payments
of dues or fees to unions.
--H.R. 10700 similar to E.O. 11491 except:
Allotments at no cost.
Revocation of allotment after one
year.
13
Requires payment of union dues
and initiation fee at no charge
(employees join union or pay
equivalent dues).
Allotments revocable after one year
or at end of agreement, whichever
is later.
-- H.R. 9784 - similar to H.R. 13,
except:
No reference to cost.
Revocation after one year.
Union without recognition could
obtain voluntary dues allotments.
Major Concerns
-- Employees free to join or not join union
-- Cost of dues withholding negotiable
economic item vs. total no-cost withhold
-- What arrangement should be made to pro-
vide unions with reasonable financial
security and membership stability, as
against compulsory membership or payment
of fees and dues?
-- How would such arrangements fit into mer
system requirements that continuation of
employment be conditioned solely on fitn
and be free of all forms of discriminato
treatment2
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Issue
11, Unfalc labei prat:tiues
References
Major Concerns
What unfair labor practices (ULPs) and pro-
cedures should apply is parties?
Background
Prohibited practices are necessary in
order to protect and guarantee rights
and responsibilities.
-- Pertain in both private and public sc.,:
tors but vary in what specific actions
are prohibited and how enforced.
tinder National Labor Relations Act:
. General Counsel (GC) of National Labor
Relations Board investigates, prose-
nip ,nmplaint. ho.for,. AAmtnis-
trative Law Judges. AU l Decision is
appealable to NLRB within 20 days.
NLRB decisions enforced by and appeal-
able to Court of AppeAl s, which Aprite,
substantial evidence standard.
. NLRB may seek district court to enjoin
CL?, pending disposition of complaint.
-- Various state laws provide for prosecu-
tion by separate body or administrative
body itself with burden of proof on
complainant or the prosecutors office.
-- Bill before Congress to modify NLRA by
establishing Court for labor disputes
to hear and determine, replacing that
function of NLRB.
E.O. 11491
? CLE's specified f,,r manag..cnt and
unions.
? Burden of proof on complainant, ex-
cept in strike cases.
? A/SLMR hears and rules, with power
to order cease and desist; appeals
to FLRC.
? Make ,whul remed-, tacktoi;.
H.R. 10700
? Specific ULPs similar to E.0. 11491.
FLRA hears and rules - can order
cease and desist and make-whole reme-
dies.
. FLRA will entertain requests for ex-
ceptions if filed within 20 days
based on substantial issues criteria.
. No sporifir r.f, ..... to,ourts.
-- H.R. 13
. Mgt. ULPs similar to H.R. 10700, ex-
cept not ULP to enforce agency shop.
? Strikes, etc. by unions not listed
UL?.
. Independent category of ULP's for
individual.
? FLRA assumes role of A/SLMR and FLRG
under E.O.
? FLRA has power to order cease and de-
sist,make-wholc remedies and disci-
plinary remedies for supervisors and
managers.
? Access to courts by all parties.
That IlY pertain to both siana,:emcnt
and anion, as in
Who shall bear burden of proof?
What standard of proof shall apply?
Wheiner ti.rs in L.0. 11491 be re-
tained, contracted or expanded.
Central body have adequate authority
to enforce, including make-whole
remedies.
Mo indepeadeui category of ULFs, or
authority of central body to discipline
managers, as that is role of agency.
thc right of one Fi.dteol dgency, such
as FLRA, to take action against another
agency.
Effect of make-whole and reinstatement
In context of Veterans Preference Act
and existing adverse actions system.
Relationship and role of courts.
-- If strike prohibited,who shall enjoin?
Central authority? Courts?
-- Limitations on taking matter through
more than one available procedure, such
as grievance and CL?.
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Issues
11. Unfair labor practices (con't.)
References
Major Concerns
--Federal sector moved from sole determina-
tions by agency to hearing and enforce-
ment by A/SLMR; appeals to FLRC.
--Burden of proof on complainant, except in
S. 19(b)(4) expedited procedure, where
Assistant Regional Director (LMSA) prose-
cutes, has burden of proof.
--H.R. 9784
? No independent ULP, as in H.R. 13.
? Management ULPs similar to H.R. 13.
. FLRB handles violations, Office of
GC as under NLRB; make-whole
remedies.
. Procedures on access to court.
? Strikes, subject to some limita-
tions, are legal.
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Issue
12. Standards of Conduct
References
Malor Concerns
What standards of conduct should apply
labor organizations?
Background
unions in both private and public
sectors required to meet certain
minimal standards of conduct:
. Report and disclose financial
transactions.
Maintain democratic admin-
istrative practices.
Necessary for protection of em-
ployees and integrity of LMR
system.
to --E.O. 11491
. S.18 specifices standards.
. A/SLMR prescribes regulations and
decides alleged violations.
--HR. 10700
. Similar to E.O. 11491, except as
in private sector under dir.,,ion
and regulations of Secretary of
Labor.
--H.R. 13
Requires only that unions adopt
own governing requirements 09
democratic practices and fiscal
and financial integrity.
No reporting or disclosure re-
quirements.
No procedures on deciding
alleged violations.
. No provisions on standards of
conduct.
Standards for protection of employees
and integrity of LMR program.
Continuation of E.O. 11491 standards.
Procedures on deciding alleged violations,
Authority of new central body to enforce,
or remain as at present with Labor
Depattment.
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Issue
13. Supersedure
Reference
Malor Concerns
Under a Federal LMR program based on statute,
what should be the impact on existing laws
affecting conditions of employment, such as
pay, classification, E.E.O., health and life
insurance, veterans preference, retirement,
and merit principles?
Background
Major items such as those noted above are
established by law. Most are bargainable
in private sector and increasingly are
bargained in other public sectors. These
are the so-called nbread-and-butter.
issues, generally excluded from the E.O.
program.
Unions continue calling for greatly-
enlarged bargaining in Federal sector,
but failing to specify what statutes, if
any, should be wiped out.
Issue is central to scope of bargaining,
delegation of authority by Congress to
collective bargaining process, the method
of personnel management in the Federal
service, public policy and public interest.
There is already union involvement through
congressional enactments on setting blue
and white collar pay.
--E.O. 11491 program is subject to existing
and future statute.
--H.R. 10700 would not supersede existing
laws, but would provide Board with author-
ity over Civil Service Commission regu-
lations that are within the scope of
bargaining.
H.R. 10700 also provides for negotiation
on agency regulations issued by author-
ities above the level of recognition.
H.R. 13 and H.R. 9784 would supersede
laws in subject areas in conflict with
its provisions; it is not clear as to
how this would work--which laws and the
process of termination.
Depending on how the supersedure pro-
visions of these bills are interpreted
and applied, much of the existing
statutory structure of Federal employee
rights and benefits could be wiped
out - to be replaced by what could be
bargained between the many unions hold-
ing exclusive recognition and agency
management.
-- Which laws would or should be super-
seded, and what would be the effect
on various systems?
-- Separate retirement and pay systems
for unit members and non-unit members?
Would supersedure be selective?
What criteria would be used to de-
termine supersedure?
What provisions exist for transition
and s.sfeguarding
Would statutory benefits serve as
floor for collective bargaining?
Who would determine which Acts would
be replaced?
-- What would be the impact of supersedure
on personnel management regulations?
-- Would consultation between agency and
non-union groups (i.e., supervisors,
professional associations, minority
groups, etc.) be continued?
-- Would Federal personnel policies and
employee rights and benefits be de-
termined by what happens in about
3400 different bargaining units?
-- How would the costs resulting from
such negotiations be met?
-- Is the Congress prepared to relinquish
control over matters traditionally
determined by statute?
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Issue
14. Merit Principles
Reference
What would or should be included to
maintain a Federal service system based
upon merit principles?
Merit principles are fundamental to
the viability of the Federal Civil
Service and effective and efficient
public services.
Background
This involves compatibility of
collective bargaining and merit prin-
ciples.
. Special system for Federal LMR
accommodates to merit principles.
Full collective bargaining as sought
by some unions could - but need not -
conflict with merit principles (eon-
nideraLion based upon ability and not
non-member factors), as the bedrock
of public policy.
--E.O. 11491 and earlier order based on
merit principles:
No discrimination based upon non-
merit factors.
Union membership and activit-, iv
entirely voluntary.
Precedence of existing and future
laws and regulations.
Emphasis on well-being of employees,
efficient work practices and adndn-
istration of Government.
Kg10700 is conceptually similar to
E.O.
--HR 13 and HR 9764 provide no protection
for merit principles:
Full scale collective bargaining,
including use of seniority and union
security, in determining lob status
and advancement.
Virtually all laws and regulations
are conditions of employment subject
to supersedure.
Employees may be required to join
union or pay equivalent fee as con-
dition of employment.
War Concerns
--That any Federal LMR program recognize,
preserve and clearly spell out the
supremacj of merit principles.
--That established rights and responsibi-
lities with respect to merit principles
be maintained.
--That accountability or' application of
merit principles be specified.
--That merit principles and collective
bargaining be compatible as regards the
paramount needs of the public interest.
--That continuity of employment be de-
termined by fitness for the work and
without discrimination based on union
membership or payment of dues or fees.
--That lob related faetoes, and not solel
seniority, be determinative in employee
advancement.
-- That merit principles be defined, and
specifically exciudeo from matters suoject
to collective bargaining.
That personn:i practicis, if are., carried
on in name of merit which have nothing [0
ml with mm. ri , and , fa. t , cv he ,untrue
to merit principles do net SI re 1 bar
diversity and innovation in personnel
systems.
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Issue
15.. Congressional Authority
Reference
Major Concerns
What authority over matters affecting con-
ditions of employment, i.e. LMR, would be
delegated or retained by Congress?
Nsckgyound
--- Congress has retained or has specifically
delegated authority over many items which
are not subject to collective bargaining,
e.g.,
pay; classification; retirement; and
insurance.
rights of employees in
appeals on adverse act
classification.
regard to
on, EEO,
Such areas are of interest to unions rep-
resenting employees and unions continue
to exert pressure to make Chem bargain-
able.
Congress and authorities such as the CSC
and agencies retain control on certain
of these matters in the interest of
mission accomplishment, cost, and equity
through use of regulations and policies
which unions see as unjustifiable road-
blocks to negotiation.
- E.O. 11491 provides that negotiated agree-
ments be governed by existing or future
laws and regulations of appropriate autbor-
ities, including policies set forth in th.
Federal Personnel Manual. Thus, laws of
Congress, and regulations issued pursuant
to them are controlling.
H.R. 10700 follows E.O. 1191.
H.R. 13 and H.R. 9713:. broadly define
collective bargaining and conditions
of employment so as to cover virtually
all aspects of employment, including
pay practices, fringe benefits, work
procedures, etc.?while providing for
supersedures of laws, Executive Orders
or regulations which relate to or are
in conflict with the concept.
. [hug, related authority presently
retained or delegated by Congress
could be subject to collective
bargaining.
That there he appropriate balance of au-
tilority on conditions of employmert be-
tween what is retained by the tongress
and what is subject to collective bar-
gaining.
Effective cost control.
Effective and efficient public services.
Meaningful bargaining on appropriate
matters, subject to public interest
criteria, with accountability ultimately
to representative of the general public.
Equity to employees; basic rights and
benefits be assured.
9-1.000ZZ009000t109?0089/dCltl-VIN: 90/60/1.00z aseeieu JOd PeACLIddV
Issue
16. Employer
References
Malor Concerns
An essential prerequisite to the process of
negotiations is the clear identification of
the "parties" who generate the give-and-take
that culminates in mutual agreement, and
who are responsible for the interpretation
and application of the terms of the agree-
ment during its life. Genuine labor nego-
tiations, whether bilateral or multilateral,
private or public sector, requires at least
one distinct and unmistakably identified
party, who possesses the legally-constituted
and effective authority over the resources
to be committed in support of the agreements
terms. This party is the "employer."
Bzglaur_Lt
Meaningful collective bargaining's essential
characteristics:
-- clear identification of parties
-- authority to reach agreement at level
of bargaining
-- responsibility for administration of
agreement
E.O. 11491, while containing no defini-
tion of "employer", identifies "agency"
as "an executive department, a Govern-
ment corporation, and an independent
establishment as defined in Section 104
of Title 5, United States Code, except
the General Accounting Office."
"Agency" includes all cognizant
subordinate echelons.
The scope of negotiations is deter-
mined by the authority of manage-
ment at the level of recognition.
-- H.R. 10700 similar to E.O., except it
establishes special bargaining
mechanisms.
. Federal Labor Relations Board to
pass on multi-agency policy and regu-
lations affecting negotiable matters.
. Higher level regulations must be
negotiated with any union or group of
unions which hold exclusive recogni-
tion for majority of affected em-
ployees.
-- H.R. 13 includes as employers depart-
ments, agencies, bureaus, activities
or organizations of Executive, Legis-
lative, and Judicial branches, Library
of Congress, and Federal Reserve System.
-- H.R. 9784 similar to H.R. 13.
-- If negotiations with Executive Branch at
national level on Government-wide personnel
policy, or across agency lines, is intended,
who would be the employer representative?
-- What authority should be delegatdd to bar-
gaining agent, and to whom is the agent
accountable? Should agent in all 3,400
plus units have power to reach agreement
on all bargainable items at the level of
recognition?
-- How will the separation of governmental
powers be preserved? Is it possible to
devise a labor relations program that
covers all branches of government that is
equitable and workable, while continuing
to regard each branch as a virtually auto-
nomous employer?
-- Must there be one employer, or can there
be joint or different levels of employers?
-- Who will have ultimate authority when
executive branch is controlled by one poli-
tical 7,,rty and leqislative branch by
another.
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Issue
17. Impact of Federal LMR Legislation on
State and Local Government
References
Major Concerns
What impact would Federal LMR have on State
and local governments?
-- As a catalyst for further LR develop-
ments at state and local level? As a
model?
Bar kg
E.O. 10988 in 1962 triggered torrent of
legislation at State and local level.
Prior, only one State (Wisconsin)
had legislation.
Since, over 30 states enacted legis-
lation.
Executive orders and ordinances also
enacted.
-- No reference in E.O. 11491 or pending
bills.
-- Under the IPA, CSC is involved in State
and local personnel administration (in-
cluding LMR) in following ways:
? Grant Program
? Merit Systeme
? Technical Assistance
? Cooperative Recruiting and
Examining
Mobility Assignments
What are the probable consequences that
would be felt in State and local govern-
ments?
What relationshlp, if any, should chere
be between State and local government
personnel practices and Federal LMR
legislation?
Should proposed 7:8is1utlzr
state inapplicability to Federal grant-
aided programs which require merit
systems?
Should State/local eligibility for
Federal funds (grant or revenue-sharing)
be in any way contingent upon presence
or absence of LMR legislation?
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FEDERAL SERVICE LABOR-MANAGEMENT
LEGISLATION
WEDNESDAY, NAY 22, 1974
U.S. HOUSE OF REPRESENTATIVES,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE,
SUBCOMMITTEE ON MANPOWER AND CIVIL SERVICE,
Washington, D.C.
The subcommittee met at 10 a.m. in room 210 Cannon House
Office Building, Hon. David N. Henderson (chairman of the sub-
committee) presiding.
Mr. HENDERSON. The subcommittee will come to order.
It's our pleasure again this morning to have Chairman Hampton
of the Civil Service Commission back before the subcommittee and,
Mr. Chairman, I'm going to ask that you proceed with your, pre-
pared statement. At the conclusion of that statement, unless other
members here want to return to the portion yesterday, we will try
to get questions relating to your statement this morning and then
afford them an opportunity as they come in to either ask questions
on the subject of yesterday or today. 7:ou may proceed.
STATEMENT OF HON. ROBERT E. HAMPTON, CHAIRMAN, CIVIL
SERVICE COMMISSION, ACCOMPANIED BY TONY INGRASSIA,
DIRECTOR, OFFICE OF LABOR-MANAGEMENT RELATIONS, CIVIL
SERVICE COMMISSION
Mr. HAMPTON. Fine, Mr. Chairman.
Mr. Chairman, in our earlier testimony we discussed the history
of the Federal labor-relations program under Executive order, the
changes that have been made during its 12?year period, the struc-
ture of the program and our views concerning the various bills
pending before Congress. We also indicated that in our view there
is no demonstrated need for the substantial changes embodied in
the statutory approaches pending before this committee. Furthermore,
we stated our belief that the program as it currently exists does
establish a viable system for effective labor-management relations
and that this system has been and will continue to be revised to
accommodate to any demonstrated needs.
At this time I would like to amplify some of our views concerning
matters that time,
should consider before determining the desira-
bility of establishing a statutory system of collective bargaining for
Federal employees. We have furnished our analyses of the broad
issues which we think Congress should address in its consideration.
These are discussed in some length in our statement for the record.
1.69)
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This statement, Mr. Chairman, is some 80 pages long and I think it
gives an excellent history of the fundamental issues and I only hope
that the members of the committee and the staff can give them
some attention and that we can have further discussion because I
think this is a very, very complex subject.
Mr. HENDERSON. I certainly do think it w ill be very helpful, Mr.
Chairman.
Mr. HAMPTON. I think even to the point, Mr. Chairman, on that,
I'm not sure how the legislative process works in all this, but I
think some kind of joint staff discussion even with people from the
unions which are not in the form of a hearing might be helpful.
But I don't know whether that's out of order or not in the legislative
process. It's that type of subject matter.
Mr. HENDERSON. I appreciate the suggestion and we will keep
it in mind.
Mr. HAMPTON. We do believe, however, that certain of these issues
warrant priority consideration by this committee and by Congress
in the consideration of any statutory program.
The issues include:
The role and authority of the central administrative body.
The impact of collective bargaining legislation on existing laws:
the so-called "supersedure" issue.
The scope of negotiations, including such concerns as (1) bar-
gaining unit structure, (2) the presence or l ack of economic items
needed to provide the "glue" for successful "full" collective bargain-
ing, (3) the presence or lack of congressional authority and over-
sight responsibilities.
The paramount need to protect merit pr i nciples and other ex-
pressions of the public interest.
The need to identify who the "employer wil:L be.
UTE CENTRAL A U 1 AORITY
At present, the Executive order provides for a central authority to
oversee the Federal labor-relations program--namely, the Federal
Labor Relations Council, consisting of mysel f as Chairman along
with the Director of the Office of Management and Budget and the
Secretary of Labor. In other words, the President's principal per-
sonnel, fiscal and labor-relations officials with their broad and cen-
tralized authorities in areas affected by labor. management dealings
are empowered to regulate and administer abor-management re-
lations.
Each of the bills now pending would establish an independent
regulatory body appointed by the President, with the advice and
consent of the Senate, to administer the Fixleral labor-relations
program. Although the number, responsibility and authority of the
members of the administrative body vary, there is a common denomi-
nator in all of these bills. All would establish a regulatory body
which would have the authority to dictate to other Federal agencies
in the Executive branch that they take certain actions.
Such a regulatory body is the so-called "liHe NLRB" discussed
and sought by union representatives for over a decade. The very
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nickname used indicates part of the problem presented by an all-
powerful, all-encompassing body. The National Labor Relations
Board, which administers the private sector labor relations program,
has authority to determine bargaining unit structure, exclusive repre-
sentation, mandatory bargaining subjects and to resolve unfair labor
practice complaints. It does not, however, have any authority to
determine the wages, hours or conditions of employment the parties
must accept. It does not have any authority to supersede other
existing laws.
In sharp contrast, the so-called "little NLRB's" proposed by some
of the pending bills being considered by this committee would be
given a type of authority the National Labor Relations Board has
never had.
We certainly do not oppose a central administrative body if and
when legislation is enacted. But we are concerned with the authority
of such a body and feel strongly that the Congress should carefully
delineate its role and structure. Necessary limitations or protections
could be accomplished by the makeup of the body and/or specifically
listing those areas over which it could and could not exercise author-
ity. This is an issue that cannot be ignored.
The approach in some bills of empowering a regulatory body to
direct other Presidential appointees to carry out certain actions of
very real and direct consequence in performing their statutory
responsibilities without checks and balances and without congres-
sional oversight is not only novel in the Federal establishment, but
poses serious practical, as well as statutory, problems which we
believe this committee must consider and consider most seriously.
Although Congress has created many regulatory agencies to Im-
plement its statutes as they impact on the general public, on labor,
or on industry, it generally has not, with the exception of the Civil
Service Commission, established any authority, any commission, any
board with the sweeping power envisioned in pending bills to over-
see compliance with personnel management and related requirements
among other Federal agencies. And even our enforcement authorities
are subject to considerable statutory limitations.
Let me just cite a few examples, Mr. Chairman:
In the Civil Rights Act of 1972, the equal Employment Oppor-
tunity Commission was given authority over all other employees
but Congress specifically did not place Federal agencies under the
regulatory wing of the Equal Employment Opportunity Commis-
sion; rather, Congress elected to give this role to the Civil Service
Commission.
When Congress decided to extend the Fair Labor Standards Act
to Federal establishments and to State and local employees earlier
this month, it again placed the administration of Federal-employee
coverage with the Civil Service Commission.
When Congress established systems for determining and applying
prevailing rates applicable to the private-sector employees of Federal
contractors (Walsh-Healey Act and Davis-Bacon Act), it placed
these functions in the department of Labor. When, however, in 1972,
a statutory system of prevailing wage rates was established for
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172
Federal blue-collar employees, Congress placed its administration in
the Civil Service Commission.
Similar examples of statutes vesting in the Civil Service Com-
mission the responsibility to implement statutory requirements con-
cerning Federal employees are included in laws dealing with ad-
verse-action appeals, retirement, health benefits, life insurance and
leave administration. In fact, we can say without overstatement that
in virtually every instance (outside the areaE, of occupational injury
and safety) in which a Governmentwide system has been established
by Congress to protect Federal employees, the responsibility for
administration has been placed in the Civil Service Commission.
These comments are not an invitation to place a statutory pro-
gram for Federal-employee labor relations in the Civil Service Com-
mission; they are offered only to point up Chngre,ss' traditional and
continuing recognition of the special, integre ted nature of personnel
administration in the Federal Government. In fact, I would like to
add here that I really don't think that if a statutory program is
established in another body that the Commission would be the place
that this program would be.
The consistency of approaches adopted by Congress to date reflect
the very real problems associated with the establishment of an
authority outside, and in addition to, our central personnel agency
to direct other Federal agencies to take action in the area of per-
sonnel management or to seek compliance with its directives by
instituting court action against a Federal agency.
SUPERSEDURE
The issue of the impact of labor relations legislation on existing
laws is a natural "follow-on" to the concern with the undefined but
apparently unlimited authority given the "little NLRB's." One of
the most vexing problems currently surf acir.g in States which have
enacted laws granting collective bargaining rights to their own
employees is the overlap and interaction of such laws on other legis-
lation covering personnel policies and practices applicable to these
same employees. Where the laws have been drafted carefully, where
the continued commitment to merit principles and the public interest
have been maintained, friction has been minimized. Where, however,
this was not done, friction and disputes have mushroomed with the
courts being placed in the position of determining which laws should
have precedence.
Of the bills before this committee only H.R. 10700 deals with
this issue in a direct and, in OUT opinion, appropriate manner. H.R.
10700 clearly requires the continuance of all existing laws and
related regulations required to implement and administer those
laws. Other bills speak in terms of supersedure of existing legislation
covering this same subject matter. Since those bills cover everything
conceivable in the area of personnel policies and practices, a literal
reading would wipe much legislation off the books. Title 5, including
Veteran Preference, conceivably could cease to exist, at least insofar
L5 employees in exclusive bargaining units arc concerned.
Supporters of those bills claim this interpretation was not intended
but they are reluctant to speak to specific laws and issues. Will
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laws involving pay and fringe benefits prevail? Will they be super-
seded? Will they continue and serve as a guaranteed floor from which
negotiations must begin? What about the Classification Act? the
Civil Service Act? the Retirement Act? the Health Benefits and
Life Insurance Act?
The list could go on and on. Suffice it to say, unless this issue is
dealt with head on in any consideration of broad-gauged legislation,
it will be decided by the courts after much turmoil between agencies
and labor organizations.
SCOPE OF NEGOTIATIONS
The scope of bargaining issue is a continuation of the supersedure
issue, just as supersedure concerns flow logically from consideration
of the structure and role of a central authority.
Obviously, the scope of bargaining is affected by the controlling
or noncontrolling impact of existing legislation. But this is only
part of the problem. As we have previously noted, the Federal labor
relations structure is marked by extreme fragmentation of bargain-
ing units. We have over 3,400 exclusive units, some quite small and
far-removed from ultimate authority on many personnel manage-
ment matters. As long as the scope of bargaining was clearly limited
to only that authority help by the top management official at the
level of recognition, few real problems developed. These limitations
were clearly understood by the parties; in fact, union representatives
acknowledge and subscribed to them in hearings before the task
force chaired by former Secretary of Labor Goldberg which led to
the issuance of Executive Order 10988 in 1962.
As exclusive recognition has grown, and unions have expanded,
the limitations of 1962 no longer are accepted. This is understandable.
What is not understandable and what this committee must carefully
consider are the provisions of some bills that would give the bar-
gainers in all those thousands of units the authority to "override"
all higher level regulations, both within and outside the agency
involved. To put it another way, there was justification for finding
thousands of small units appropriate for exclusive recognition when
the scope of bargaining was limited to the authority of the manage-
ment official at the bargaining unit level, but there is no justification
for greatly broadening the scope of bargaining without at the same
time reassessing the continued appropriateness of the units.
An increasing number of States that have been faced with this
problem have decided that if the rules of the game are being changed
?scope of negotiation?then the determination of "teams" should be
changed. Thus, they have legislated broad bargaining units or ac-
complished the same result through stated criteria and policy direc-
tion to the central authority.
H.R. 10700 attempts to deal with this problem through a com-
plicated system of ad hoe, coalition-type bargaining on higher level
regulations within the agency and equally complicated but even more
potentially disruptive "ouasi-negofiations" on regulations issued by
central agencies which have go?ernment-wide application. As indi-
cated in my earlier testimony, this problem of dealing with higher
level regulations is a serious and difficult one. You are to be corn-
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mended, Mr. Chairman, for attempting to fi ad a solution. However,
in all candor, I must say the proposed solutions in all the bills
before this committee are not only unaccepta'ile, but potentially very
damaging to the efficient and effective operations of Government.
This brings us to a consideration of the dynamics of so-called
"full" collective bargaining. In the private sector, the economic
package?the bread-and-butter items?provides the glue?or trade-
offs?that enables the parties to resolve their differences. The union
is able to show results and management is able to protect its vital
need to retain the essential tools of managing. This is particularly
important where, as in most of the pending bills, no provision is
made for the mandatory protection of management rights.
When, however, direct negotiation of economic items within each
bargaining unit is not feasible, and we believe that is the case in
the Federal structure, the dynamics of bargaining cannot operate.
True there can be much room for bilateral decisionmaking in a
broad area of personnel policies and practices, but an elaborate system
of "full" collective bargaining with compulsory, binding arbitration
of impasses, as envisioned by pending bills, cannot operate success-
fully. For example, demands for detailed procedures and practices
to be followed. in carrying out management's personnel responsibili-
ties which seldom become impasse or ?strikE " issues in the private
sector because of compromise language arrived at through economic
concessions, remain at impasse to be decided I hrough the arbitration
process.
think this. is caused, Mr.. Chairman, by the fact that economic
concessions may have been made in another arena and with involve-
ment of union representatives, but these concessions play no role in
determining the contract language at another level. This is a round-
about way of saying that without the full economic package and
without labor being able to say to their members that we have
obtained this for you, negotiations tend to concentrate on procedures
and the fine legal aspects of an agreement.
Would the Congress be willing to turn over authority for economic
benefits to over 3,400 bargaining units without control on appro-
priations, without oversight responsibilities; with no way of ex-
plaining to constituents why they are being treated differently, from
identical employees working for the agency 'Jut in a different bar-
gaining unit? If not, the Congress must give serious attention to
the scope of bargaining envisioned in pending legislation.
PARAMOUNT NEED TO PROTECT MERIT PRINCIPLES .kND OTHER EXPRESSIONS
OF THE PUBLIC INTEREST
The basic concept of merit as the guiding factor in the employ-
ment, promotion and retention of Federal err ployees has long been
determined to be in the public interest.
If the principle of merit is not to be eroded or superseded altogether
in the collective-bargaining process, then very careful consideration
must be given in several areas. A major cond3rn involves proposals
which would mandate union membership?or payments in lieu of
such membership?as a condition of acquiring or continuing employ-
ment. Such a statutory provision, which was rejected by the Con-
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gress in passing the Postal Reorganization Act in 1970, would con-
stitute a non-merit intrusion in personnel decisions. While we recog-
nize the real concern for union security, some other way to accomplish
it must be found other than denial of freedom of choice.
Promotions predicated solely upon seniority, a provision frequently
found in the private sector, similarly would be contrary to the
current system which provides that merit shall be the determinant
for promotion. Private-sector type agreement provisions which de-
termine the mix of helpers, apprentices and trainees would not only
be incompatible with Federal-sector merit considerations; they could
cripple an agency's ability to perform its mission.
This is not to say meaningful collective bargaining cannot take
place with respect to most employee concerns without damage to
merit principles. While the principles themselves should never be
compromised, there is ample room for the negotiation of alternative
procedures and practices by which the principles can be effectuated.
However, the laws and implementing regulations that protect merit
principles must specifically take precedence over the terms of any
collective-bargaining legislation or agreements flowing from such
legislation.
Of course, concern for the public interest cannot be limited to
preservation of merit principles. It is our firm belief that all public
policy issues such as, but not limited to, mission, budget, choice of
mothods, means and personnel should be determined by the normal
political processes set up by the electorate and answerable to the
electorate so that institutionalized collective bargaining machinery
does not overwhelm other competing and legitimate public interest
groups.
NEED TO IDENTIFY THE EMPLOYER
We have discussed the need to address what subject matter should
be negotiated, the level at which it should be negotiated and the
interface with existing legislation and governmental structure. All
of this has a bearing on the vital issue of who the employer shall
be; that is, who represents the executive branch in negotiations as
envisioned by pending bills? Obviously, if the concerns we have
addressed are successfully dealt with, the matter of identifying the
employer automatically is resolved. If, on the other hand, approval
is contemplated of provisions in some bills that would permit nego-
tiations on a wide range of wages and fringe benefits, then serious
consideration must be given to identifying the employer.
For example, in determining executive branch white collar pay
the President is the employer and his designated agents are the
Director of the Office of Management and Budget and the Chairman
of the Civil Service Commission. In determining blue collar pay,
the head of an agency is the employer, and he is bound by policies
and regulations issued by the Civil Service Commission with the
advice of a union-agency advisory board_ In determining most fringe
benefits, the Congress and the President act together as the employer.
.If broad-gaged legislation is passed, the issue must be addressed
with an eye to not fragmenting the employer in a manner inviting
whipsawing, inequities, confusion and lack of authority at the
bargaining table and uncontrollable costs.
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As I indicated earlier, what have discussed is not an exhaustive
list, nor an exhaustive analysis. Instead, I have attempted to high-
light some of the most fundamental considerations posed to this
committee; others are included in our statement for the record.
I am certain that in your deliberations you will consider other
important matters. My failure to mention other issues we have raised?
such as the denial to Federal employees of the right to strike and
alternative machinery for resolution of impasses?should not be
construed as minimizing their importance.
Although we have attempted to show that the present program
is satisfactory and successful and that there has been no demonstrated
need for legislation, we recognize that otli ers may not agree. In
your deliberations, we ask that you seriously consider the issues
posed. We would be pleased to discuss with you any issues, at any-
time, on which you may wish additional clarification, or to answer
any questions you may have.
In closing, I would like to again express my appreciation for the
courtesy you have extended in giving me these 2 days in which to
testify.
Mr. HENnraisow. Thank you, Mr: Chairman.
For the benefit of the members, Chaim an Hampton has just
completed his prepared statement which he lad planned to give for
the second day of hearing. Some of the members yesterday suggested
they had questions they would like to submit today or ask today
of the chairman regarding yesterday's testimony. If you'd like to
do that the Chair would afford you any opportunity at this time,
or if you have no objection we will go right into questions and open
up the entire subject for the, members for questions on either day's
presentation by the Chairman.
Chairman Hampton, in discussing the role and authority of the
ventral administrative, body, you indicated you had no objection to
such a body but you did have concern with the functions assigned
to the central body. You specifically referred to the National Labor
Relations Board and the possible correlation with this legislation.
What suggestions or ideas do you have as to the functions and
responsibilities that should be assigned to a central administrative
body?
Mr. HAMPTON. Well, giving you a rather informal opinion, wanting
to keep options open as we go along through this process, I don't
want to be bound by anything that I say shout the role of this
kind of a body at this time because I think it depends upon many
other things.
Mr. HENDERSON. Yes. It very definitely does, but I think it would
be helpful for us to have your ideas within the constraints that you
suggest. I want to keep the same options open.
Mr. HA MPTON. Well, I would envisage, say, an operation of a
central authority as assuming the duties and responsibilities that
now rest with the Assistant Secretary of Labor and with the Federal
Service Impasses Panel and with the Federal Labor Relations
Council.
Mr. HENDERSON. f T could interrupt right there, starting from that
point, leads me to ask another question. You have indicated that the
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central regulatory body as you envisage it in the bills would have
authority to dictate to other Federal agencies in the executive
branch.
How do you see that the legislative proposal differs from a council
under the existing Executive orders regarding the dictating to
Federal agencies?
Mr. HAMPTON. Well, the Council really cannot dictate to Federal
agencies in the broad way. I mean, the parameters of the Council's
action are related very strictly to interpreting the Executive order.
So it cannot go beyond those bounds that are spelled out in that
Executive order. In other words, we can't initiate a new policy. We
have the authority to enforce a decision that usually comes to us in
the form on an individual case. Only recently have we changed our
rules to allow a major policy issue to be brought before the Council
by both parties in order to make a determination under the Executive
order.
Mr. HENDERSON. But to the extent that decisions are made in
matters before the Council, they are binding on the agencies, aren't
they?
Mr. HAMPTON. That is correct. They are binding on the agencies
but they are limited to only those things that are spelled out in the
Executive order and that's mainly in the relationship area.
Mr. HENDERSON. So do I understand from your testimony that if
the central body we would create in the legislation is limited in its
authority to decisionmaking and circumscribed within those areas,
it could function comparably to the Council now?
Mr. HAMPTON. I would think that you could so structure a body.
There are certain authorities that the Council has because of its
membership; as Chairman of the Civil Service Commission I have
broad statutory authorities to regulate. If deficiencies are noted, then
I can use that regulatory authority to make changes in the basic
system. I wouldn't recommend this to a body that was separated
from all of the other statutory responsibilities.
Mr. HENDERSON. That leads me to another question. Do you feel
that as we provide for the Chairman of the regulatory body the
Chairman should be the Chairman of the Civil Service Commission
or his designee or the appointee of the President? Let me add, in
the instance where I would require a Chairman to be appointed by
the President, it certainly would be my great hope that the President
would consult with the Chairman of the Civil Service Commission.
He would take his recommendation. But I'd like to have your feel-
ing as to whether or not or how wise it would be that we designate
the Chairman of the Civil Service Commission as the Chairman of
that regulatory body.
Mr. HAMPTON. No, sir. I don't think the Chairman of the Civil
Service Commission should be. I think that?I mean, I'm just
thinking in my own mind how I would envisage such a body?that
it would be essentially a body outside of any existing organization
of government; in other words, a creation of a new body with new
people, but that there be parameters on their authority considering
the existing statutory structure of what the Congress is already
giving and the Constitution gives to the heads of agencies and the
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other authorities given to the Civil Service Commission and the
Office of Management and Budget over economic matters.
Mr. HENDERSON. What would you think cf the requirement that
the Chairman or the Commission designate the Chairman of the
regulatory body?
Mr. HAMPTON. Well, it all depends upon what you do before that.
In other words, how you structure in the statute and what the
duties are. I would really think that the Board should be a Board
that is appointed by the President and confirmed by the Senate and
would be independent of any ties with the Civil Service Commission.
think there has to be provisions of consultation where if they're
dealing with an issue that requires some sort of better understanding
of a statute or policy of the Commission which is based on statute,
that they would seek our advice.
Mr. HENDERSON. Arguing just .for a mornenl: contrary to your posi-
tion?and I certainly am appreciative of the difficult task you have
as Chairman of the Commission?but the concern I have in the
President's nomination and the Senate confirmation is whether or
not the primary emphasis would be that we have someone serving
as the Chairman of the regulatory body who does understand the
real differences between private sector employment and what we
are attempting to do with the Federal sector.
One of the big problems you have highlighted in your testimony
we must always keep in mind is that if we're talking about a little
"NLRB," and I think that has great danger as we discuss the
regulatory body here, the tendency could be on the part of a President
sometime in the future to pick someone who has great expertise in
labor-management relations in the private sector and be the most
unknowledgeable practitioner in the world with regards to this legis-
lation and the responsibility of the regulatory body. It's for this
reason I continue to explore the possibility of the Chairman of the
Civil Service Commission or his designee naming the Chairman of
the regulatory body or choosing the Chairman from members of
the Board.
In other words, at least it would be limited?he would be picking
who he thinks is the best qualified person from the membership. I
would certainly express my great support and feeling that if you
had this responsibility upon the enactment of the legislation you
certainly would not go out and seek one who had negotiated con-
tracts between U.S. Steel and their workers, for example, but rather,
you would look within the Federal sector. I think you would agree
with me that from these 12 years of experience we have on both
sides of the table within Government and labor organizations very
competent people to serve on a regulatory =Board and serve as a
Chairman with good understanding of the constrictions that are
necessary in the public sector.
Mr. HAMPTON. Well, I have to agree with you, I mean, in terms
of my own exnerience of being Chairman of the Commission and
Chairman of the Federal Labor Relations Council. As we go along
in the number of years that we have had under 11491 I think the
fact that I served in both capacities was o plus because of the
knowledge of what really goes on in the personnel management areas
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in the public sector. And it has been I think invaluable to have that
experience and if the Congress thinks this is a desirable thing,
then whatever the Congress passes in law that's what I deal with.
The other thing, if I were given the authority to appoint such
a person, I would appoint someone that had a distinguished record
of understanding the public sector problems. They are significantly
different. It has been the major problem that we have faced from
the outset of this program, particularly when we began to bring in
third parties, that everyone that had experience in labor relations
essentially had that experience out of the private sector and they
tended to draw similarities where similarities really did not exist;
and we have had to build over a period of years experts in the public
sector and that expertise is in the unions today that represent Fed-
eral employees and in the people who administer the program in
the Department of Labor and within the agencies; and I agree
with? you that it's quite significant and it's always difficult to
explain.
Most of the participants in the conferences and seminars and
things that I go to with the bar associations and all and the aca-
demics are all experienced in the private sector, but not in the public
stocr' and the problems are unique. So there's considerable merit in
what you say.
Mr. HENDERSON. I hope through these hearings we are able to
demonstrate that we have the quality of personnel in the Federal
sector both within the employee organizations and on the manage-
ment side to perform very competently in this area. I certainly
recognize this. One of the reasons I believe legislation is timely is
that I have seen such great improvement in understanding on both
sides of the bargaining table. This has given me a great deal of
satisfaction.
Let me move on to supersedure before my time expires. You
pointed out H.R. 10700, the bill introduced by Mr. Dulski and me
that no laws would be repealed.
Do you know of any other way to do this except to rim a risk
that this kind of legislation does supersede law without Congress
specifically knowing what we're doing?
Mr. HAMPTON. Well, I think in the other bills, as I pointed out,
the language?and I don't recall offhand specifically?but it says
that all laws affecting these matters?well, there's nothing in the
personnel business that isn't covered in some way in the labor
relations incident, and even though people have said this is not
the intent, what I'm saying is that if that is not the intent, then it
is the job of the Congress to say what it really means very specifically
so that we do not have continual litigation in the courts; and it
was the other point about the central body.
The central body can, by its action, say that this law is now
superseded by our judgment and I don't think it was the intent that
that be done; but it needs to be addressed very specifically.
And I think the very real issues here that come out that the
Congress must address?it's very easy and very simple to say full
collective bargaining and full situation of rights. but you have a
management that is constrained by the board of directors in the
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Congress and what is the Congress' role going to be in the economic
area ? What happens if you have a law and we do have the economic
package and the economic package, as we have tried to point out,
is the glue that sort of holds together any kind of collective bar-
gaining relationship that is going to be similar to the private
sector.
But I do not think that the Congress is willing to say to the
President of the United States:
You have the authority to set pay completely, both blue collar and white
collar, to negotiate whatever you negotiate. You have the right to affect all of
the conditions of the retirement system without any congressional review. You
have the right to change the health benefits package. You have the right in
life insurance. You can change Veterans Preference.
All of these things have an 83? or 90?year history.
Now I just wonder, if this is the case, then 'you can have bargain-
ing that's similar to the private sector but then you even run into
the unit structure.
Mr. HENDERSON. Well, I want to touch on one item that I believe
makes the point so well. You have touch on it. That's veterans
preference.
If this committee wants to get this legislation in a turmoil and
be sure that it doesn't pass or it gets all torn apart, all it has to do
is try to get into that area. We are vitally interested as Members
of the Congress is veterans preference. I hear iirom time to time that
some people want changes to veterans preference. I could even
admit that if 1 were legislating alone and going back over this, I
might not devise the law just as it is today, but it has been law
and it's so meaningful. I think a word of warning needs to be given
to all of us on this committee. We have got to be sure that we
protect veterans preference. If there's anything that has been clear
out of the Bolling committee report with regards to jurisdiction, it's
that one of the big problems in this Congnss is the overlap or
assuming of jurisdiction. Certainly you and I have had much
experience with regards to the supergrades in the Federal sector. I
noted just recently?and I think it's worthy of note here?that Mr.
Dulski, in his recommendation to the Hansen subcommittee sug-
gested that rules of the House make it clear with regards to all
other committees of the Congress that they be restricted and this
committee's jurisdiction should be protected to that point.
So I think that in the formulation of this legislation you have
pointed out an area in which we must be very careful or we will
do more damage than simply superseding existing law.
Mr. HAMPTON. In following on that, one of the things I have
noted recently is that we have had three major bills that impacted
on Federal employees and the Commission we,s not even given the
opportunity to testify on such legislation that came out of other
committees. I mean the Fair Labor Standards Acts amendments
having a significant impact, far greater than was anticipated; also
the age discrimination provisions that were in that; and the Reha-
bilitation Act which sets up the structured program dealing with
the handicapped.
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Those were matters that I think should have been under the
jurisdiction of this committee to at least take testimony on and to
observe its impact.
Mr. HENDERSON. Let me respond on two of those. On the Fair
Labor Standards Act, your point is well made. It was with the
assistance of Mr. Dulski, Mr. Gross and members of the committee
we were able to get the provision for the administration of that
legislation in the Civil Service Commission. I felt very strongly that
this was where it should be and we had some success which you
noted in your statement.
But with regards to the handicapped bill we were not able to,
and not only were you not able to testify, but I found the attitude
of the managers in the House when it was being considered was
absolutely adamant. I realize that we have a primary commitment
to this legislation in the next few weeks but just as soon as I
finish this, you can be sure that HEW officials, as relates to the
program of the handicapped, are going to be sitting right where
you are and they are going to spend more days than you telling
this committee how they are operating over there and what they
are paying their people, simply because they did rape the jurisdiction
of this committee and run all over us. They will certainly account
for their stewardship of the very broad authority they received.
Mr. HAMPTON. May I mention this one other thing that was on
a point?
Mr. HENDERSON. And I hope the press made note of that and
the public.
Mr. BRASCO. Double-spaced, fellows.
Mr. HAMPTON. One of the things you mentioned about Veterans
Preference, when that issue was faced in the Postal Reorganization
Act, that act was not repealed.
Second, one of the issues that I think this committee has been
dealing with is the fact that no provisions were left in for con-
gressional oversight, and the Congress has been fighting that issue
ever since the Reorganization Act was passed.
Now you have absolutely no oversight of some of these bills that
are passed, and, quite frankly, I have been in the executive branch
for 20?some-odd years and I think public interest issues and over-
sight belong in the Congress. And I think that in any kind of a
bargaining situation where you have a monopoly where employees
have the right to strike and the tools of settlement, if they are not
in the hands of management and they are unable to settle and
then the public begins to bring pressure on appointed officials who
are there for a limited period of time, the tendency is going to be
for excessive settlements. And I think the Congress, as the elected
representatives, is the only body that has the wherewithal to resist
such pressures.
Mr. HENDERSON. I thank you very much. I have some other ques-
tions I will come back to. At this moment let me yield to Mr.
Brasco.
Mr. BRASCO. Mr. Chairman, yesterday we made an observation?
well, the chairman made one and said this was rather dry material
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and I agree with that. You said it was rather complicated and it
certainly is. But the thing that really troubles me?and I admit it
and I don't say this facetiously but just to make a point?basically,
what the problem is, as I see it, is that the role of the Civil Service
Commission is so intertwined in so many areas that it, of necessity,
becomes involved in a real conflict. And I understand and appre-
ciate the fact that it's a difficult bill to work out, but I think that
you fellows have the expertise if you were for the bill in some way
to help us work it out.
For instance, in this Executive order it says public interest re-
quires high standards of employee performance and modern work
practices to improve employee performance and efficiency. Efficient
administration and employee well-being require orderly and con-
structive relationships between labor organizations and management
officials.
That's the preamble of the Executive order. Ts that correct?
Mr. HAMPTON. That's correct.
Mr. BRASCO. Isn't that conflicting in and of itself? I mean, you're
wearing two hats and sometimes more than two hats and this is
the problem I think the employee organizations perceive and that's
why they have been complaining about it, I want you to answer.
Mr. HAMPTON. My view is that efficient operations come about
through good employee relations. I think the two go hand in hand.
In other words' I see a benefit to having good relationships with the
people who are doing the work.
Mr. %Asa). :But don't you think that from time to time the
trying to strive for both of these goals could put you in a con-
flicting position?
Mr. HAMPTON. I have never run into that kind of conflict to
date with the---
Mr. BRASCO. You say no?
Mr. HAnyrmst. yes: I say no.
Mr. BRASCO. Well, getting down to the administration portion of
this, you have the situation where the Civil Service Commission, even
under this Federal Labor Relations Council, :s responsible for pro-
viding all the administrative support and services to the Council.
Is that correct?
Mr. HAMPTON. That administrative support is only to the extent
of providing them with space and the fact that I go before the
Congress and testify as to their budget.
Mr. BRASCO. No bodies?
Mr. HAMPTON. The Council?no bodies. They are all employees
of the Federal Labor Relations Council and tney are not employees
of the Commission.
Mr. BRASCO. So that role, you feel, doesn't put you in a unique
kind of position with respect to the Council?
Mr. HAMPTON. No, there's no intermixing 4)f the people whatso-
ever.
Mr. Bmksco. Well, going down a little further, the Federal Service
Impasses Panei supposedly has independent authority, but organi-
zationally is located within the Council for services and staff as-
sistance.
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Mr. FIAMVPON. The Impasses Panel is made up of people that are
recognized nationally in their field. We have no direct input or
contact or provide any kind of support.
Mr. BRASCO. In the Executive order it says specifically that the
Impasses Panel is organizationally located within the Council for
services and staff assistance. Now I think Chairman Henderson
pointed out very clearly when we began the hearings, thanking the
staff for their tremendous amount of work, and there's no question
in my mind that staff has an important and an influential role with
respect to development of legislation because you work side by
side, but it just seems to me that there's an overlapping of staff;
that, in and of itself, is a problem and I wanted to ask you
whether or not you perceive it as a problem.
Mr. HAMPTON. There's no overlap of staff. The Impasses Panel
has its own executive secretary. He hires the people on that staff
and he reports directly to Mr. Seidenberg, the chairman of the
Impasses Panel.
Mr. BRAsoo. Well, we can settle this very quickly, Mr. Chairman.
You say this statement is incorrect when it says that the panel has
independent authority but is organizationally located within the
Council for services and staff assistance? You say that portion
that relates to staff assistance is incorrect?
Mr. HAMPTON. Well, staff assistance doesn't mean providing people
to perform the duties.
Mr. BRAsco. What does that mean?
Mr. HAMPTON. It's simply the housekeeping types of functions.
They are included in the budget of the Council and they are housed
in that and that is all. In fact, the only time that I ever see Mr.
Seidenberg, the chairman, is when we get together all of the third
parties to critique the program. That is to say, what kind of
problems have you run into; what kind of changes can be made to
improve the program--there's no communication on any cases or
any overlapping staff work or anything of that kind.
Mr. BRASCO. Well, let me drop clown a little further where it
gives the duties of the Assistant Secretary of Labor for Labor-
Management Relations, and down at the bottom it says a member
of the Civil Service Commission will perform duties of the Assistant
Secretary when such matters involve the Department of Labor.
Isn't that overlapping?
Mr. HAMPTON. No. In that particular case., if there's an issue
involving the Department of Labor in terms of their own internal
problems, rather than have those people in the Department of Labor
perform the services for that?say they have an unfair labor prac-
tice; you don't want Labor Department people considering an unfair
labor practice. In this case the Vice-Chairman of the Civil Service
Commission hears the case and deals with it like the Assistant
Secretary would normally deal with it, and the Vice-Chairman of
the Civil Service Commission has absolutely nothing to do with the
Federal Labor Relations Council.
Mr. BRASCO. I certainly do appreciate your explanation of it, but
to me, as I sect it, we just have an agreement to disagree. It just
seems that it's too much of an overlap and it seems to be too clubby
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and too chummy in terms of the general mission that is supposed to
be set forth.
In your discussion with the chairman a moment ago, you said
that?at least I thought you said if such a bill were passed you
thought the Civil Service Commission should be out of it.
My own thought would be that the Civil Service Commission
had a mission and has a mission to be involved in the protection
of employees That should be its mission. Management should be
concerned with general productivity and efficiency of the Federal
work force, obviously, as it relates to the An erican citizens who pay
the tab; and any one of these bills that has an independent authority
to be there is the arbitrator between management and labor.
Let me go on for a moment. We talked about bilateralism in the
context of labor relationships and I suppose that by definition is
two parties, labor and management, of equal strength, conducting
negotiations toward a goal and obviously ultimately reaching agree-
ment.
Now with regard to the Federal Employees Pay Council, the
President has total authority to accept or reject the suggestions of
this Council, and the record of the President in this regard has
been to delay all pay increases and reject a:1 Pay Council sugges-
tions.
Mr. HAmmorsr. I'm not sure that in eery instance?I know
that?
Mr. BRASCO. But the point is, though, does that bother you that
after somebody says---
Mr. HAmprrox. Well, there's no real, in the use of the term,
bargaining. I mean, the President can accep: the recommendations
or he can go for an alternate plan. In the cases during the eco-
nomic stabilization period we went for deferrals, but it's been upset
by Congress, in one case by the courts, because he did not submit
to the Congress an alternate plan; but that's the responsibility of
the President to do that.
Whether or not he followed the recommendations, that's within
his prerogatives. It may have been that the agency and so forth
recommended something that wasn't bought either.
Mr. BRASCO. But notwithstanding that, doesn't that contradict the
point you're making to Chairman Henderson when you were talking
about whether or not the Congress wanted to give up its prerogatives
in this area ?
Apparently, no matter what we do, we have the Civil Service
Commission come up?and I have been here on many bills?they're
not for any bills. I don't remember when the Civil Service Com-
mission was for any bills that we want to pass that have anything
to do with the uplifting or upgrading of labor. The President
certainly doesn't care what we do because he tither vetos it or sends
word back from the Bureau of Management and Budget that it is
out of line. So it just seems to me that the argument of our wanting
to preserve congressional prerogatives is just kind of an item for
debate. As a practical matter, it doesn't work out that way. Would
you say that ?
Mr. HAMPTON. No.
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Mr. BRASCO. No?
Mr. HAMPTON. There were a number of bills that we supported
and there a number that we are opposed to.
Mr. BRASCO. I can't remember any.
Mr. HAMPTON. Well, there's a few.
Mr. BRASCO. That you do support?
Mr. HAMPTON. That we do support. I'll agree with that.
Mr. BRASCO. That's the truth of the matter; right?
Mr. HAMPTON. But most of the bills that we were in opposition
to were liberalizations in the retirement program, a program that has
a $68 billion unfunded liability that is going to cost $11 billion in
government contributions by fiscal year 1980 on the most conserva-
tive assumption, and that's a 5 percent pay increase every year and
a 3 percent rise in the cost of living every year. Now there has
been, in our opinion, very little hue and cry?
Mr. BRASCO. Well, you were against the health benefits, weren't
you? I was sitting on that committee. That's not retirement.
Mr. HAMPTON. Well, we have a package of fringe benefits that
now exceeds the best packages in industry by a little over one and
some-odd percent. I think it's a question that we're bound to have
debate on these issues which I don't see that the debate is wrong.
In fact, I think it's good. Where many of the bills that are intro-
duced in this committee are initiated by the unions in the desire to
achieve more for employees, which is understandable.
Mr. BRASCO. But that doesn't strike true in terms of your initial
statement yesterday v-hen you said this Executive order is working
out and the bargaining and everything is working out. It's obviously
not because what is happening here is that the Congress is getting
involved in terms of attempting to pass legislation which you people
can't apparently agree on, and I don't think that there can ever
be any agreement because there's really no bargaining. It's bargain-
ing if the employee groups agree ivith the position that the Council
takes. If they don't they're out in the cold.
Mr. HAMPTON. No. The issues that come before Congress are not
of the issues that we face in the bargaining situation because we
have no authority to change the retirement plan. We have to come
to you.
Mr. BRASCO. I know, but I'm transposing the attitude with respect
to it.
Mr. HAMPTON. You know, I could turn the question around. How
would the employees be if they dealt with management that was
essentially against everything? You know, they come to Congress.
They're getting a better deal. But the retirement thing, I'll be send-
ing to the Congress very soon a complete report on the status and
cost of many of these bills and one of my responsibilities under
the law is to keep this retirement system fiscally sound and reason-
able. We have the best plan in existence for retirement that is not
bankrupt.
Mr. BRASCO. Let me ask you this, Mr. Chairman. How does the
Commission view its role in this situation? How do you view your
role?
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Mr. HAMPTON. Well, in the first place, I have had a number of
studies done on what is the appropriate role of the. Civil Service
Commission and the question of protection of rights is one of how
do you view the definition of "protect." In fact, we do have a
responsibility to See that employees are unencumbered in the. exer-
cise of those rights. It doesn't mean that we prosecute claims in
favor of employees and so forth, but we do assure that their rights
are protected in the sense that they are given the authority and the
wherewithal with which to exercise them.
Now you have to view the. personnel opera don as an integral part
of the management process. I would say that we have to view
ourselves as an important part of management as far as personnel
administration is concerned and this has really been the thrust of
most all of the legislation that has been passed by the Congress and
even in the original Civil Service Act, and I think in many cases
we are put in conflict with the management of an agency because
we're assuring that employees can get?good management is going
to see that employees are given the rights that the law says they
are entitled to, and so we have the . position as a central agency of
exhorting management, at the same time leading the personnel man-
agement system to continually improve it ar.d modernize it, recog-
nizing the need to be responsive to employee needs.
In fact, yesterday in your opening statement, you said three
things that I agree with 100 percent, and fiat was in your state-
ment, that we must recognize legitimate employee needs; that we
must recognize the taxpayer; and we roust recognize the ability of
agency managers to manage. And most of the conflict that results
from our role is one that is an internal type of thing.
My job is a very unpopular job. I mean, we have far more
Mr. INAsco. Ours is unpopular too.
Mr. HAMPTON. It is. I agree- with you. Ent I would think we
have many more conflicts or disagreements with management as we
do with employees but we don't advertise thin.
Mr. BRASCO. Let me just ask this one quest ion and then I'll yield
back to the chairman.
You discussed yeSterdav improvements e Executive order .and
the bargaining process. You kept using the word "bargaining."
Now, as I understand it, what- we're really talking about is that
the Civil Service Commission is voluntaril3; consulting with the
unions. Is that right?
Mr. HAMPTON. That's correct, yes.
Mr. HENDERSON. Would the gentleman yield?
Mr. BRASCO. Yes.
Mr. HENDERSON. Bargaining is going on, though, in these 3,400
units you're talking about?
Mr. HAMPTON. Yes. That is correct, and the agreements are quite
significant.
Mr. BitAsco. But getting back to my questim, doesn't consulting
mean that you retain the right to reject?
Mr. HAMPTON. That's correct.
Mr. BRASCO. Then, in that sense, you re not indicating that that
means bargaining?
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Mr. HAMPTON. It's not bargaining in the private sector sense.
Mr. BRASCO. It's not bargaining in any sense.
Mr. HAMPTON. Well, in the question of consulting, it's just not
going to the union and saying, 'Here it is. Take it or leave it."
Mr. BRASCO. Well, I consult with my children all the time but
that doesn't mean we're bargaining.
Mr. HAMPTON. But there are many things, though, that in con-
sulting with your children you respect their views and you agree
with them.
Mr. BRASCO. I usually have the final say. That's what I think
the employee unions are objecting to.
Mr. HAMPTON. Well, even under a bargaining situation where they
can come to a consensus, there are gives an takes on both sides.
We don't have the gives. I mean, we don't have the economic pack-
age. I really can't promise someone they will get a better health
benefit or a better life insurance or a better salary because they buy
something that we're proposing.
We do try to achieve consensus, but I not, only consult with labor
unions; we consult with management; we consult with public interest
groups.
Mr. BRASCO. Just one very short last question. I know that I have
a bill and Mr. Ford does and Mr. Henderson does. Don't you really
think that the Commission can come up with something in this
area that is workable?
Mr. HA-mpToN. Well, being very pragmatic about it, I know even-
tually we're going to have a labor relations law.
Mr. BRASCO. night. Don't you think we can come up with some-
thing that's workable instead of being dragged in by the feet?
Mr. HAMPTON. Well, I would hope so and I hope this is the
initiation of that process. The thrust of my testimony
Mr. BRASCO. Yesterday you said you were against all three bills
I thought.
Mr. HAMPTON. Well, that's a good position to start out with when
you're bargaining.
Mr. BRASCO. That's bargaining. Thank you.
Mr. HENDERSON. Mr. Mallary.
Mr. MALLARY. Thank you, Mr. Chairman.
Mr. HENDERSON. If the gentleman would yield just a moment, Mr.
Brasco opened a subject that is very vital and I want to conic back
to it, but I think in all fairness we should yield to the other members.
Mr. MALLARY. I Will just proceed on a couple areas, if I may,
Mr. Chairman, and let me just follow on the area Mr. Brasco was
just discussing.
I gather that your position, officially at least, is that the time is
hot ripe for legislation in this area. Is that essentially right?
14r. HAMPTON. That essentially is it. I think that the issues are
quite complex but our mind isn't closed. I think what experiences
we have had has been very pioneering in cutting new ground. What
I tried to do in this testimony is simply raise the kinds of issues
that I think that the Congress has to consider and that we would
like to be a part of that consideration, and the vehicle by which
34 619 74 13
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you get to the point of drafting a bill which is acceptable to the
administration and is acceptable to tlie unions and to the Congress
is going to be very, very painful and lengthy in its consideration.
But our mind is not closed because in this area of public admin-
istration the whole foundation--your actions are basically based in
law and I think for the future and for thc benefit of the program
and its credibility that we should seek to come up with something
that is workable.
Mr. MALLAny. You stated yesterday,: I think, that you did not
feel that to embed in permanent law the present provisions of
Executive Order 11491 would be appropriate. In other words, you
felt there were parrs of that that were appropriate as Executive
order, but would not be appropriate as statutory law.
Do you find any substantial impediments or problems in dealing
with the, labor-management relations problems that you necessarily
face by working under an Executive order rather than working
under specific, more precise statutes?
Mr. HAmmoN. Well, right now, I think we face considerable im-
pediments in the Executive order because we have a lack of statutory
authority in certain areas. I think one, of the, critical issues is this
question in a process where you're unable to implement the awards
of arbitrators that result from the negotiated agreements procedures.
We are unable because, we do not have the legal authority to make
people whole.. So I think this is a serious deficiency that must be
corrected.
We can still correct that by a special law t,t the same time leaving
the Executive order structure.
The second impediment is ore that we're dealing with adminis-
tratively and at this point T think it's best to keep it that way, and
that is what do you do with 3.400 units? This is an awful lot of
bargaining going on on a lot of issues. But the limitation there is
that they can only bargain up to the level of authority that is given.
the person they're bargaining with. which is sound to get the
process started, but they're outgrowing this, And some of the gut
_issues are above that level. And what we're seeking to do in the
present review of the. Executive order is C.etermine how can you
deal with this question of higher level regulations; and the
other issue is the continued fragmentation of units.
It would. be much easier, believe me, if liere were, some process
where you could deal on some of the pint ismes, but the ouestion is
who do you bargain with? The praeticalities here are, quite real.
mean, in the States where they dealt with this, you must keep in
mind that a State is a much smaller entity than the Federal Gov-
ernment which is located. in 50 States. In state law in a few cases
they have been able to spell out the bargaining units and Inte.,
achieved that kind of stability. In those lager States where tliev
have not been able to spell out units, they Lave done to some ype
of criteria.
It's a very _complex issue and. this is something that the anions
are going to :lave to address themselves to because a lot of unions
as you know them today could not survive in the bargaining pro-
cesses. There, will be new elections and new representatives deter-
mined. So that's an issue.
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The "make-whole" situation is one that is an impediment. The
other is the desire on the part of unions to achieve judicial review.
Traditionally, the courts do not provide judicial review for any
rights that are the result of an Executive order, although it has
the force of law. Only if constitutional issues are raised will the
courts then review a case. So this is an objective of the unions that
could be achieved by separate legislation.
But we, have a lot of growing to do. This program isn't standing
still and it is moving along quite well. The question is: How long
does it go on before you have a statute? And many people feel that
the time is here. I feel it's not far away myself because most of the
issues that we're now confronted with are ones where only changes
in the law are going to achieve it.
Mr. MALLARY. Let me pursue one corner of that issue. I gather
from your testimony today that you feel that adherence to merit
system principles and the continued prerogatives of the Congress in
its budget and appropriations authority precludes collective bar-
gaining in the traditional sense that is done in the private sector.
Mr. HAMPTON. That's right, sir.
Mr. MALLARY. But you don't say at any point that you don't feel
that collective bargaining or bargaining is not appropriate. Have
i
you identified anywhere n your statement a list of those areas
which you feel would be appropriately bargainable?
Mr. HAirryroN. I don't think we attempted to do that in any way
in our statement or even in our background statement, but I think
it's one of the things that in the process of considering legislation,
considering the responsibilities of the Congress and the executive
branch, that must be addressed.
Mr, MALLARY. If legislation is to be enacted, have you addressed
yourself to the definition of areas or appropriate scope of bargain-
ing? You have raised the problems?and I gather you don't feel that
any of these bills fully outlines what is an appropriate scope of
bargaining, but if, in fact, legislation is to be seriously considered,
do you have or can you recommend to the committee a listing of the
appropriate scope?
Mr. HAMPTON. We probably could. We have many, many discus-
sions among ourselves?Mr. Ingrassia and I and others. We have
said to ourselves many times, what kind of a statute can you draft;
how can you get at this problem? And we have run into some
blank walls. But that doesn't mean that you can't do this, and
certainly I will be glad to try anything.
MT. MALLARY. Thank you very much.
MT. HENDERSON. Mr. Lehman.
Mr. LEirmAN. Thank you very much. In the school board we ran
into one problem that I think relates to this. When we do have
problem, the assistant principal and the principal really don't know,
who they are with regards to labor-management relations. Which
level in the school system is management and which is really labor?
How would you advise us to handle the role of the supervisor ?
Mr. HAMPTON. Well, I think defining the supervisor by statute
would be really essential in any labor relations law. The question is:
Who is the supervisor and what supervisors are a part of manage-
ment?
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Mr. LEHMAN. At what point?
Mr. HAMPTON. Right. Because we have had?this has been one of
the critical problems all along. I mean, the claim of the unions that
the definition that we have drawn from the Labor Relations Act?
the Taft-Hartley---may be too narrow as far as the Federal service
is concerned, and I think it should be and must be defined and I
think the Fair Labor Standards Act passage affecting Federal em-
ployees makes this even more critical because there are exempt and
nonexempt categories there in which, by the law,. we in the Com-
mission are going to have to come up with the definition.
Here, the Commission may be in confide; with the definition that's
in the Executive order. To give you some idea of the problems
we're talking about, it's no easy task.
Mr. LEHMAN. I was troubled by that when I was on one of our
big school boards and I didn't know exactly who we should be
talking to as a representative of management and who do you .talk to
as a representative of labor. There is ar overlap and I think we
have to make a pretty careful definition.
Mr. HAMPTON. I agree with that.
Mr. LyanyrAN. Thank you.
Mr. FIENDERsow. Mr. Chairman, let me come back and go over a
matter that both Mr. Braseo and Mr. Mallary went over with you.
It seems to me it's fair to say at the present time that in these
numerous bargaining units there is meaningful bargaining going on
until you come to the area of statute, which is pay, benefits, and so
on, or veterans preference; or we come to Commission regulation or
agency regulation; and it's in that area where in our colloquy with
Mr. Britsco you talked about the consultation at the Commission level.
- Consultation also goes on at the agency level, but once policy has
been established it's not unusual at the local bargaining -level for the
management to say, in addition to the matters of statute, items are
not bargain able, because of agency regtilat on.
Isn't it fair to say that under ExecutiN e order today there is no
negotiation going on in connection with agency regulations and Com-
mission. regulations? You've got consultation.
Mr. HAMPTON. Well, there is, in the sense that while the specific
regulation may not be bargainable, there are certain aspects of achiev-
ing the purposes of that regulation that are bargainable, and this is
one of the things that, through. experience, both parties are beginning
to rOCOgrHZe.
Mr. ITENDERsoN. Well, don't you anticipate that labor organiza-
tions are going to come in and testify that there is a need for legisla-
tion in this area. They will contend that at the Commission level
you go through the consultation process, but when you receive theiy
comments very little attention is given to their recommendations or
their positions, that very little chang...e is made. The argument is also
made with regard to agency regulations.
Don't you think that's going to be?
Mr. HAMPTON. Well, I think they will make that charge in all
probability, but in our consultation process, to say that no changes
have been made that were of their suggestion would be incorrect. It's
had a considerable impact and I think very salutary effect. There
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191
have been significant changes made, but that won't keep the charge
from being made, because it isn't something we're sitting down on a
negotiating table and negotiating.
Mr. HENDERSON. Under the bill that Mr. Dulski and I introduced,
H.R. 10700, we require true bargaining at the Commission level.
What difference do you see in what you do now and the require-
ments of the bill for bargaining with the organizations?
Mr. HAMPTON. Well, it wouldbe, hard to envision. Mr. Ingrassia
may want to comment.
Mr. INGRASSIA. Well, to put the whole thing into perspective first,
Mr. Chairman, there is negotiating on agencywide regulations wher-
ever the union has achieved national exclusive recognition, as we
call it.
Mr. HENDERSON. How many have you got out of the 3,400 we're
talking about?
Mr.&'INGRASSIA. Probably not 20 or 25 out of that, but in some of
the big agencies, for example, the Department of Labor has agency-
wide contracts that are negotiated with the Secretary of Labor and
there are a few other agencies such as that.
Mr. HENDERSON. And wouldn't you envision that if H.R. 10700 be-
came law, you would have more of that?
Mr. INGRAssiA. It could very well be, particularly because the
criteria for determining bargaining units could have an impact on
whether the unit is appropriate up at the national. level. So how you
structure your unit will determine to some extent what your scope
of bargaining is.
Mr. HENDERSON. In the course of the hearings I want to go in
depth into the recent experience we have had with regards to bar-
gaining units. We have had some real problems in this area, haven't
we?
Mr. INGRASSIA. That's right.
Mr. ITENDEnsoic. And I think this legislation has got to face up -
to those problems. Go ahead.
Mr. INcrizAssu. Then in the consultation process it's not just sub-
mitting of paper and then a comment back. I know the agencies and
I know the Civil Service Commission do a lot of what I call face-to-
face or eyeball consultation which is much more effective than asking
somebody what their comments are on a piece of paper.
Mr. HENDERSON. As to the question of what the impact would be,
under the board proposed in ll.R. 10700, I believe the board would
have final authority on any personnel matters within the scope of
bargaining. This would not be recommendations to the three Civil
Service Commissioners. It would be by majority vote. The board is
composed of five union representatives, five agency representatives
and a chairman appointed by the, Civil Service Commission Chair-
man. Any action they would take would be final. So there would
obviously be considerable difference in what presently transpires in .
that it would go beyond consultation, and a final decision would be
reach d without involvement of the three- statutorily appointed Civil
Service Commissioners.
Mr. HAMPTON. And what we're saying is that this is where we
come down to the real differences with regards to any bill. This is
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192
the area where you see the greater objections to legislation because
thif; is the area where there's real change in the procedures under the
Executive order.
Mr. INGRASSIA. That's right, because the areas now are outside of
the scope of bargaining because bargaining units not recognized at
those. levels would then come under this new machinery. Not only
the Commission, of course, but by the provisions of H.R. 10700, any
central agency, whether it was the Office of Management and Budget
or the Federal Energy Office or the Environmental Protection
Agency?anything that they would put. out that would have an
impact would have to run by this board, and the timetables there
would be rather brutal to meet even if it was otherwise workable,
which I doubt.
Mr. IIEN-orasoN. But the attempt we havr made was to get above
the present bargaining level under the, executive order to give to the
labor organi2iations meaningful bargaining as it pertains to agency
regulations or Commission regulations. The chairman recognized this
in his statement.
was not completely satisfied with all the provisions but I think
we have to get over the first decision of what levels of bargaining
we are going to permit in the Federal sector. Are we going to keep
it as it is under the Executive- order so that as they bargain the
management side says, "These are not bargainable items at any
level," or will we under H.R. 10700 be abb to say that those items
hot bargainable at the bargaining levels that now exist, are bargain-
able at a higiaer
I would hope, and I feel sure, that the, employee organizations
are going to address themselves to this important difference because
they certainly led ine to believe that this is one of the big things
they are contending for by way of legislation.
In an attempt to give them better bargaining at the agency and
Commission level, we tried to devise a bill that would provide a
syslem and, just as yon say, we have the five management representa-
tives, five labor representatives, and w chairman. I'm sure charges
are going to be made, Mr. Chairman, that it ends up to be a 6-5
'Commission again. We made the best attempt we could and it ought
to be obvious to everyone that my decision was to come down on the
side of bargaining' it. the. higher level.
Mr. HAMPTON. Well, one of the difficulties I see. there, Mr. Chair-
man, is that who are the five union people going to be and what
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93
five agencies, because in a sense it excludes all others. The other thing
is that they are not issues that come up in a collective bargaining
type process.
The thing is that that isn't a unit. The five people you would have
to say are representing all employees.
Mr. BRAsco. Would the chairman yield at that point?
Mr. HENDERSON. Let me make one other point and then I'll be
glad to yield.
You must keep in mind the bill does provide that no statutes will
be superseded. So that constraint must be considered in my own
view. On page 26 beginning on line 20, we set out what is not bar-
gainable. "Collective bargaining procedures under this subsection
shall not involve matters with respect to?" and here's where I try
to spell out management prerogative and I want to make this point
so you will give us recommendations with regards to anything we
have left out of what are management prerogatives. I feel very
strongly and I think you agree with me that we're going to have
these prerogatives:
(h) Collective-bargaining procedures under this subchapter shall not involve
matters with respect to?
(1) the mission, budget, or organization of an agency;
(2) the number of employees;
(3) the numbers, types, or grades of positions or of employees assigned
to an organizational unit, project, or tour of duty;
(4) the internal security practices of an agency; or
(5) the right of management officials of an agency?
(A) to direct employees of the agency;
(B) to hire, promote, transfer, assign, and retain employees in posi-
tions within the agency and to suspend, demote, discharge, or take
other disciplinary action against employee;
(C) to relieve employees from duties because of lack of work for
other legitimate reasons;
(D) to determine the methods, means, and personnel by which
agency operations are to be conducted; and
(E) to take whatever actions may be necessary to carry out the
mission of the agency in emergency situations.
So the record ought to be clear that all items are not bargainable
even at that level. We attempted to bring bargaining up to a high
level but we clearly said in the "hill that where Congress has pre-
rogative or Congress has acted the law must be complied with at all
levels.
? Then we go on to say items which are not bargainable, so I would
hope that we, would understand that the bargaining at the higher
level is ended.
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Mr. BRAsco. The chairman was talking about the composition of
the board as it appears in 10700, but isn't it a fact that it would
be easier as proposed in either one of the two bills. H.R. 13 or H.R.
8794 to have a three-man board appointed ly the President with the.
advice and consent of the Senate from a ?list of ten persons submitted
to the President hy the. American Arbitration Association.
So you don't have to go through this business of what agency.
Isn't that really easier?
Mr. HAMPTON. not sure, but the structure of what you have in
10700 is entirely different than H.R. 13.
Mr. BRAsco. I wasn't talking about all the subject matter. I sup-
pose you coind have a board predicated on fiat and pick up the part
of the chairman's bill which says you can negotiate for this or not.
But just from the point of view of the composition of the board_
isn't that easier to arrive at?
Mr. HAMPTON. Three is a lot easier to arrive at than 11. There's
considerable, difference in the structure.
Mr. BRASCO. Yes, but I was Mst talking ibout--
Mr. HAMPTON. I'm not sure, either, on the question of using arbi-
trators as members of the board in an area like this is really the
best thing. I mean, we're dealing with tremendous economic issues.
Mr. HENDERSON. 77)on't you think if we are talking about using
arbitrators we are talking about arbitrator> that are expert in the
private sector?
Mr. HAuFroN. In most cases that's where the expertise is, although
that's building up.
Mr. BRAsco. That's still appointed by the President.
Mr. ITEximaisox. 'You're talking about a list submitted by arbi-
trators. Can you imagine an arbitrator sirmoitting to us anybody
who has no arbitrating experience in the public sector?
Mr. BRASCO. I don't think that's very comparable.
Mr. INCRASSIA. M. Brasco, could I attempt to clarify a previous
point? I think we're talking about two different bodies. The body
that Chairman Henderson was talking, about in his question to the
Chairman dealt with his bill's provision for a Federal Labor Rela-
tions Board that is separate and apart from the administrative cen-
tral authority which is in both your bill and the chairman's bill.
Three or five-man bodies could administer the law.
Then, in addition Chairman Henderson's bill has a provision for,
a Federal Labor Relations Board that would deal only with the
quasi-negotiation of matters at the Commiision level or the OMB
level.
Mr. BRAsco. I understand that, but 11 just was suggesting that H.R.
13 sort of cuts through the red tape and lays it right on the table
without bogging down with what agency should be chosen.
May I ask this question? I know that H.Tt. 13 has a provision for
union shop or agency shop and T know that -r-aises a red flag in many
quarters. But, let me ask you this quetion: Why is it not proper for
an employee, who derives benefits by virtue of the fact that people
working in the same area where he is have organized into a union
and are bargaining not only for their Own individual benefits but
collectively for everyone who is involved on the. same job doing the
same work, to pay union dues or a registrar: on fee?
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If it were in any other walk of life you'd call; that guy a free-
loader if he didn't want to contribute towards the collective benefits
of all. Why is that improper?
Mr. HENDERSON. Mr. Chairman, do you want me to take that, it
being a political question?
Mr. HAMPTON. Go ahead. I'd be delighted for you to, Mr. Chair-
man.
Mr. BRASCO. Really, why is that improper? I don't think you'd find
that improper, would you?
Mr. HAMPTON. I think that there should be no condition on the
public employment that
Mr. BRASCO. Why would that be a condition?
Mr. IIAmpToN. That an individual has to pay dues or a member-
ship fee to keep his job. I just think that it goes against the whole
concept of public employment.
Now turning it around a little bit, union security is what you're
essentially talking about. I think it's a real problem. I think that
we ought to consider alternatives to that.
Mr. BilAsco. Let me say this: What really disturbs me?and I
don't want to take all the time, but maybe I can make the point by
telling a little story about the philosopher who is sitting up on a
hill with a servant of his and he's looking over this vast gardens
and talking with this servant and he's got a real fetish with the
gardens and he sees a wild bull chopping up all his flowers and he
sends the servant, Erasmus, down there and tells him to take care
of that Wild bull. He's a real big guy and he goes down there and
gets the wild bull and pins it and rolls it out of the garden.
Lo and behold, it's not his day, and he turns around and sees a
big horse coming down the garden path. Erasmus just about sits
down and he sends him back down there and tells him to bridle that
horse and, as a matter of fact, "He's so good-looking, put him in
our barn," and he does that.
They ''get to talking a little more and he turns up to the cherry
tree and he sees a big hornets' or bees' nest up there and he turns
to Erasmus and says, "Take care of that. It's going to destroy our
tree. Get rid of that bees' nest." And Erasmus turns around and he
walks away and the master says to Erasmus, "Listen, you threw the
bull out of the garden and you bridled that big horse. What's the
problem with those bees?" And Erasmus turns and says, "Master,
them bees is organized."
And I think what the real problem is is just that management is
concerned for no other reason than if there are many more people
in unions they are obviously more organized and obviously protect-
ing their rights. I don't think that's a condition of employment.
As a matter of fact, in all the time that I have been here, we have
had one group that came before us in one of the bills?I think it
was the Seventh Day Adventists group, and they said based on
religious conviction that they couldn't do it, but they understood
and even agreed with the principle. So unions take their dues and
fees and give it to charity or something, and we worked out the
problem with them. But I just don't see why it's so frightening other
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than the fact that good organization produces a more effective bar-
gaining unit.
Does that make any difference in your previous response?
Mr. HAMPTON. The public employment issue is paramount in my
own thinking.
Mr. HEN-mutsolsr. I often wonder, Mr. ChErrman, if those of us who
feel strongly on this issue would introduce a bill simply to give
agency shop to all Federal employees?I have been tempted to do
this?and to say I will give you that but 7 won't give you any of
the H.R. 10700 or 11.R. 13 provisions or anything else, what would
we be doing to Federal employees, to union members. It seems to
me there's so much meaningful possible legislation that we get bung
up on the one little issue here. I think you could say from the head-
aches and the problems you have had in the experience of the
Executive orders that if you could trade al that off and just give
union security as such, simply by the dues 0-Heck-off with the require-
ment that everybody in an organized unit puy dues, we'd be tempted
to do that if we were not conscious about the real meaningful things
for employees.
Mr. HAM Pril'ON. You might be tempted to do it, but I just cannot
see, that as a condition of employment in the public sector.
Mr. ITEN-DynsoNt. T hope we're realistic as to what we're trying to
accomplish because T don't want us to get too bogged down on the
problems and TT think we'll face these as the employee organizations
come to testify on legislation. We have a lot of technical questions
that the staff is just chafing to get at and time is almost gone, FO let
me yield now to Mr. Mesker. I know he's got, a number of questions
he would like to get in the. record and it's much better if we can
do it with the Chairman here than it is to simply do it by way of sub-
mitting them.
Mr. Mssicze. Thank you, Mr. Chairman.
Mr. Chairman, there are many areas we have, not touched in detail.
One of them is the question of professionals and supervisors in a
labor-management statute.
In your opinion, should provisions he added to the bills to provide
for recognition of separate unions for supervisors?
Mr. HAMPTON. T don't think so.
Mr. MtskEn. What. about the treatment of professionals? Under
11.11. 10700, as it's drafted, it would permit an agency to discuss with
organizations, veterans groups, professionals. and others, matters of
interest to tho members as long as those. discussions did not intrude
upon bargaining rights.
know in yew FLRC hearings there's been a considerable amount
of discussion on the role of professionals. Do von think, for example,
iii the way the, bill is written now. that such discussion should be
optional with the agency. or should they be mandatory? What should
be. the role in dealing with these groups?
Mr. HAMPTON. Well, T think it's a very sensitive. problem because
you have a number of professionals that are included in bargaininty
units and it all depends upon the way the. professional organizations
also view themselves.
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Many of the issues the professional organizations are interested
in are those items that are covered in the labor relations situation,
and management could be cited for unfair labor practice if they dealt
with such organizations when they have an exclusive unit that is
made up of professionals in that unit. So it's the way they view them-
selves.
We're trying to look at this and it's part of something that we'll
take up as soon as we have the time in which to deal with it. Right
now we're involved more in the question of the review, but I'm not
sure that you want to spell out in the statute some of these things in
view of the conflict that is presented so often between professionals
and others in the union.
Tony may have much more insight into the details of this and
may want to elaborate on the matter.
Mr. INGRASSIA. Just briefly. I think the treatment in the Execu-
tive order which is reflected in II.R. 10700 is the appropriate way for
dealing with the professional organizations that seek to represent
their members on personnel policies, practices, and working con-
ditions. If they seek that role, then they should be treated and meet
the same requirements that a union must meet, and if they want to
deal in purely professional matters, then management should be able
to deal with them in concerns of their members without committing
an unfair labor practice.
I think a perfect example that comes from my own background
where I used to represent the American Newspaper Guild and there,
of course. I represented employees as a minion representative. I also
was an officer of Sigma Delta Chi, which was the national journalism
fraternity, the professional society.
Now, as an officer of the Sigma Delta Chi, I made no attempt, nor
would management have ever permitted me, to deal on wages, hours,
and working conditions of employees of various newspapers; and
when those differences are understood we have very little problem
with the interaction of professional organizations and unions. When
they're not understood and where an organization wants to deal on
wages, hours, and working conditions, personnel policies, but not
meet the requirement of recognition or the proper running of the or-
ganization, of the nonsponsorship and control by management, then
they have to deal in the other areas.
Mr. Mnsfun. One other area that takes a great deal of time to go
into but maybe we can open it up this morning is the question of
coverage of individuals, organizations, parts of organizations or, I
guess more importantly, we could phrase it as exclusions.
Page 4, H.R. 10700 provides a procedure for an agency head with
the approval of the central authority, to exclude certain organiza-
tions from the bill's coverage. What are your views about the estab-
lishment of a similar procedure in the bill for any agency or group
of employees to be excluded from coverage by using this procedure
in0,ea,d of the specific exclusions that are currently included in the
bill to cover certain agencies and groups of employees.
Mr. HAMPTON. I think on exclusions, I think the Congress should
legislate on who is really excluded rather than resorting to an ad-
ministrative procedure to do that, because I think there are some
very significant exclusions that you should consider.
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Mr. MESKER. Then, in addition to general exclusions, you would
not object to a procedure in H.R. 10700 which provides that the
head of an agency can recommend :9(c,lus on of certain groups but
only with the approval of the central. authority.
Mr. TTAmpro-K. I think that appears to be appropriate because
you're dealing with a unit- within an agency that isn't excluded over-
all by statute. Like the question of whether the CIA or the FBI?I
think that's a public policy issue that Congress, if they legislate in
this area, should face.
Mr. INGRASSTA. That's an issue that, while it's an issue of concern
perhaps from an academic point of view, his not been a real issue in
the program. The current Executive order permits the head of an
agency to exclude from coverage certain .?arts of the agency that
are involved in internal investigative, work and auditing work and
that is subject to review by the assistant secretary and the council
as to whether that action was arbitrary and capricious.
H.R. 10700, in the, first instance, would require approval by the
central authority and, as the chaima.n points out, it presents no big
problem. But, of course, it, has not resulteC. in a problem in 4 years
under the Executive order. There's been very limited exclusions.
There's only been one, time where a charge has been made that it was
an arbitrary exclusion and that went through the machinery. So it
has not presented itself as a real problem.
Mr. MEsx.En. To return to the subject of the Labor Board, accept-
ing the fact that we have heard the Comitission's objections to the
Labor Relations Board which will be negotiating regulations issued
by an agency which affect more than one 'agency, for example, the
Civil Service, Commission.
Tinder IT.R. 10700, the choice of the members of the Federal Labor
Relations Board from among management officials is based on the
number of employees in a particular agency who are under exclusive
recognition.
However, the Board would consider regulations governing all em-
ployees, and I think you recognized this point. Would it be practical
for its to base the management representation on the basis of the
total number of employees in the agencies rather than the other
procedure?
Mr. TTAmproN. Well, T don't really know how it would come out,
the mathematics of that.
Mr. MESNEE. I was thinking in terms of who is negotiating and is
it representative negotiation.
Mr. IfAmpToN. Well, I would think that in all probability those
agencies that are large and represent 90 pe7cent of the employees--
I mean. have 90 percent of the employees, would also be the same
ones that would have, the, largest number civered by exclusions. I'm
not. sure of that statisticalliJI don't know how it, would prove out.
T don't, think if we ever went that far that that would be a great
problem.
Mr. MEs-KErt. You don't think that would necessarily improve the_
acceptability of the Board itself in terms of our current discussion?
Mr. HAmproN. I don't, think so. Tony, car you think of any?
Mr. TNGRASSIA. No. You know, the, way you choose, the. agency rep-
resentatives is not the problem that's presented by the- Federal Labor
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Relations Board. The problem would be how the machinery would
function, the fact that each issue is taken up as if it's an individual
grievance rather than the normal structure of bargaining where you
deal with issues in totality and where priorities can be determined
and trade-offs can be made?what is more important today?and
instead, each one is dealt with on the merits of its own issue.
These are the matters that would be of concern, and the matter of
union involvement and agency involvement in decisions that then
would not just apply to the bargaining units but as we read the, bill
would apply to people outside the bargaining units; and their man-
agement would not be in a position to determine the policies that
affect management representatives.
For an example, the Fair Labor Standards Act has just, been
passed and the Commission must implement and enforce that. Tinder
that provision of H.R. 10700, we could not issue implementing in-
structions to put that law into effect without going through that
board. Yet the Department of Labor which has the same authority
to administer insofar as State and local employees and private sector
employees, is not required to bargain in the same way before it issues
its own implementing regulations:
Mr. HAMPTON. Another thing is that the three Civil Service Com-
missioners would have no say about what is implemented.
Mr. HENDERSON. Would you say in connection with Commission
regulations to implement law that the procedure should not be fol-
lowed?
Mr. INGRASSTA. That certainly would be a narrowing through, but
there's very little that we issue that doesn't flow from a law that we
have to administer.
Mr. MESRER. Could we go back to the board in that context and
maybe you could give us your experience and a comparison on a
projection basis in looking at H.R. 10700. In effect, the Labor Rela-
tions Board in negotiating regulations versus consultation at the
present time could be a very similar operation. Granted, that PRA_C
coming from statute on blue-collar employees has certain limitations,
there you are consulting with employee organizations who do not
necessarily represent all of the employees.
What would be the difference in a negotiation procedure set up
under the Labor Relations Board and consultation that doesn't neces-
sarily represent all of the employees? Based on that experience, could
you draw any comparisons?
Mr. HAMPTON. Well, the Prevailing Rate Advisory Committee is
dealing with, in a sense, broader issues on one narrow area and that's
blue-collar pay and the conditions, like hazard pay and certain other
utilization of certain skills. There's a very pragmatic limitation
there, too, in the law. The law says that you will go out and '"fret
prevailing rates and application and that sort of thing. Here, then
you'd lose all similarity. The structure appears to be similar but in
the impact it's significantly different in that the issues that would
be before this board are matters of major policy concern that the
Chief Executive, the President of the United States may have a
point of view or the Office of Management and Budget or the three
Civil Service Commissioners. There is no input of those into the
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consideration of the matters before this board and so I think impact
and scope is a significant difference.
Tony's examined this a lot closer and we haven't discussed all of
the implications but he may have something to add.
Mr. INGRASSTA. Just two brief points. The two major differences
between the two boards, in addition to wi at the chaiman has com-
mented on, under PRAC, the decisions of that board are advisory
to the three Civil Service Commimssioners. ITnder the. Federal Labor
Relations Board., as envisioned in the bill, it's final action.
Secondly, the actions taken by the Prevailing Rate Advisory Com-
mittee deal with the advice affecting employees that would be eligible
for bargaining units. In other words, the rank and file employees.
And while the conditions in the regulations that go out may often
be the same, nevertheless, the Commission is not hound insofar as it
would apply to supervisors, for example, as it wdfild be in a decision
made, by the Federal Labor Relations Board.
Mr. MEsKEn. Why is it that the five mar agement members of the
Board who are somewhere in the chain of command from the chief
executive down, plus the Commission-appointed Chairman, could not
represent management's interest, on the basic issues that are before
the Board
Mr. ITAmmoic. Well, I would think tha: if you would think in
those terms that you would have five agency heads on the Board. I
don't think that. would be. practicable.
Mr. MEstom. I'm sure that they would caucus, as any bargaining
parties do.
Mr. HAMPTON. Yes. They caucus now in he Prevailing Rate. Ad-
visory Committee, but I'm not sure that you will get the breadth of
the overall picture. of the operations of the 7ederal Government. An
agency is more or less thinking in terms of that agency. He's not
thinking in terms of the agency as it relates i;o the total Federal Gov-
it ici it.
There are only two central agencies of glvernment who do that,
and that's the Office of Management and Budget and the Civil Service
Commission. Those are the principal central agencies of the Govern-
ment, other than GSk which is not as involved in these matters.
So I think that would be a deficiency of input because I may view
a personnel
management issue quite differently than someone who is,
say, with the Air Force or the Vete.ran.s Aiministration or HEW,
because from my vantage point I see how niis impacts on the Gov-
ernment as a whole and not inst. on One particular agency. Although
their input and so forth is valuable, there are considerable variations.
T think, too, the labor-management relationship is essentially one
-between the employer and the employee. ani that we should strive
in any legislation to foster that kind of relalonship, even though it
may involve 70 agencies, up to a point. In otaer words. I don't think
there'e any escaping the fact, that we have a tier system in the Gov-
ernment and that any bilateral situation must recognize the limita7-
'inns of that tier.
Now what vou're, really trying to do is te get at the top tier be-
cause. I think it is helpful to have local union-management relation-
ships. I don't think we should do anything to destroy that. It has
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great benefits. It's taken 12 years for the management of Federal
agencies to begin to recognize that it is good business for them to
deal directly with their own employees. So let's let them do every-
thing that they possibly can within the scope of that authority.
Then you get to the second tier and this is the question of agency
regulations. The question is: Are those agency regulations overly
prescriptive in that they take things off the bargaining table at the
-local level without any real consideration, is this an equity issue that
it is essential to deal with at, say, agency headquarters level?
Now that's one way we can enrich the bargaining where it should
-take place and that is directly between the employer and the em-
ployee.
Mr. HENDERSON. Mr. Chairman, didn't the Commission recently
direct the agencies to review their regulations to try to make them
less restrictive and to put more matters back on the bargaining table?
Mr. HAMPTON. Yes, we did, and we also reviewed our own Federal
Personnel Manual to see if the regulations of the Commission were
overly prescriptive. So matters that were even- covered at the Corn-
-mission level would then be picked up.
Now if the agencies view; our loosening up on the Federal Person-
-nel Manual as a signal for them to regulate in this area, then it
defeats the purposes of our actions. Now one of the items that we're
reviewing in the present review at the Council is some mechanism
'whereby if it is contended by the unions that agency regulations are
Dverly prescriptive, that they can get an answer to this question and
thus here again enhance the bargaining relationship at the local level.
So we're doing something right now to get at the second tier.
Now the third tier is the one. that I think you're interested in
getting at, and that is the regulations that are issued by the Civil
Service Commission which may have a tendency to take things off
the bargaining table. At the same time, most of the rules and regnIa-
tions that we issue. are covered by a statute which under 10700 still
.does not change the statutes, and then you set up this Board that is
going- to supposedly bargain on these issues. .
Well, I'm not sure and I'm not ready to commit myself to thinking
as to really does this accomplish in an orderly way what you want
lit to accomplish, Which we would agree with you is a good thing to
'accomplish; but does this do it? And does it do it in a way that .it
reduces the input of the President of the United States through his
.central authorities because the Civil Service Commission, despite what
everyone says, in our basic statute, it says we will assist the President
.and all of our authority essentially flows from that.
So while I would object to this kind of body because it tends to
distort that, somewhere, someday, somebody is ()ping to have to repre-
-sent top central management of the executive branch. T mean, I don't
know how we get at this. Our way that we have gotten at it, Mr.
'Chairman, is to extend consultation, which we didn't have to do and.
-which no one really appreciates the. fact that we did because they
don't win 100 percent of the time, but even in a collective bargaining;
.situation you don't win 100 percent of the time either. So it's one of
the things that when we do (rive, that local union leader sitting out
there can't go to his membership and say, "Hey, look what we got."
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Mr. ffincralasoNr. Let me touch on an earlier point you made with
regards to the desires of the labor organizations to get into court. How
would you suggest. we meet that objective without trying to set up
some formal procedures?
I was interested in your comment there; you were not suggesting
we might ,(2;_ve greater freedom to the. labor organizations to go to
court on theme matters as a. simple solution, were you?
Mr. ETA.mrToNt. Well, T was just saying that is one of ?the points. I
think one of the erhical points a, lot of the unions have expressed in-
formally is this question of judicial review. It's not anything that is
unique to the personnel business of the Federal Government because
there is judicial review of most of the deci3ions made that are as a
matter of .law, and the only .limitation on that is the exhaustion of the
administrative remedies.
Now if you have a labor relations system, after the exhaustion of
those remedies they can go to court. I think what you have to examine
here, though, is what is it that they want to get into court under the
question of individual rights. Under the Equal Employment Oppor-
tunity Act that was extended by statute, people who have, discrim-
ination complaints do have the right of judicial review. In the ap-
peals setup under the Veterans Preference Act that is subject to
judicial review, but it is limited in the case of the exercise of indi-
vidual rights..
Now when you get into some of the complex issues of collective
rights and say an unfair labor practice or a unit determination or a
negotiability issue, then you're putting into the courts issues that
transcend individual rights and questions of equity that are very
complex and require an understanding of organizations. The Con-
gress, if it would consider this question of judicial review?say, in
other words, that this committee determines that we need a transition
period; that in order to get to what you would think would be an
excellent, labor relations program statute but you don't feet comfort-
able in just doing it in. one, fell swoop, that what you might want
to do is go to the question of the "make-who l e" legislation and some
kind of judicial review. But I think you. would have to ascertain
what is it that you want. reviewable by the judiciary. Is this a limited
review or is it all out ?
I don't know the answer. I don't even pretend to know it. But I
think in the courts, in terms of reviews of private sector labor de-
cisions, there's a limited review by the. courts. It isn't, a total review.
I think the court has set standards, for instance, on reviewing an
arbitrator's award. We use similar standards in the Federal Labor
Relations Council. T think that the courts have limited the review of
NLRB decisions.
Tony is more expert on all this than T. Tony, can you think of any
other thing in terms of judicial review? There are some limitations.
Mr. INGRAssr.A. Cettainly in the private sector, but I think you
covered it very well. Getting back to Chairman Henderson's comment
in the question, I don't think the chairman was intending in any way
to leave the impression that he was advocating: a bill that. would turn
the Executive order over to judicial review aid I think that should
be clarified.
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Mr. HENDERSON". Well, that's a point I guess I was really making.
Mr. MESKER. Another aspect is the GAO position and their re-
sponsibilities and how that can be spoken to in any statute and how
they make decisions on certain fiscal matters. Thank you for your
comments on the Labor Relations Board. I think it's probably safe
to say that we would both agree that the provisions in H.R. 10700
providing for negotiation at the Civil Service Commission and agency
levels would tend to discourage regulations being issued by agencies
and the Commission.
Mr. HENDERSON. Well, I have no problem in getting it, but I will
ask unanimous consent that the record be held open. Certainly, any
comments that you would like to submit for the record, feel free to
do so. There may be questions as our staff reviews our two days of
testimony and responses. There will be further questions for clarifi-
cation you might want in the record. The staff will work that out.
I See p. 493 for material furnished.]
Thank you very much. I think it's been a very helpful and very
fruitful opening of these hearings.
Mr. HAMPTON. Thank you.
[Whereupon at 12:20 p.m., the hearing was adjourned.]
34-519-74 14
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FEDERAL SERVICE LABOR-MANAGEMENT
LEGISLATION
WEDNESDAY, JUNE 5, 1974
U.S. HOUSE OF REPRESENTATIVES,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE,
SUBCOMMITTEE ON MANPOWER AND CIVIL SERVICE.
Washington,'D.C.
The subcommittee met at '9 :40 a.m., in room 210, Cannon House
Offiec Buliding, Hon. David N. Hemierson (chairman of the sub-
..committee) presiding.
Mr. HENDERSON. The subcommittee will come to order.
Today the Subcommittee on Manpower and Civil Service is con-
tinuing hearings on legislation to cover labor-management relations
in the Federal service. It's been a long-standing policy of the Govern-
ment since the 1930's that employees in the private sector have, a right
to be represented by labor organizations to bargain with its employers
.on wages, hours, and working conditions.
Congress has extended this same concept to employees of the Postal
Service in the passage of the Postal Reorganization Act in 1970. At
the close of 1973 nearly 1.1 million civilian employees of the executive
:agencies of the Federal Government were represented by labor orga-
nizations. This has come about during the past 12 years largely as a
result of the relationship established by Executive order.
Because of the experience gained by both Federal agencies and
the, labor organizations representatives during this period and the
viability of those relationships, I now believe that it's fitting that
legislation be enacted. This legislation will place the two parties on an
'equal footing when dealing with each other both at the negotiating
table and when appearing before third parties envisioned by the bill;
before. us.
I believe it's also important that employees and their representa-
tives have access to the judicial process when they have exhausted the
administrative remedies established by law. Access to courts is rather
tenuous under Executive orders.
It's now timely I think to consider legislation that will permit
Federal employees to join the great majority of the American workers
both in industry and in the Postal Service in the enjoyment of the well
earned rights under a Federal service labor-management act.
However, I believe that matters affecting the pay rates, entitlement
benefits, health insurance should be retained by the Congress, at least
in the immediate foreseeable future.
There are several bills introduced on this legislation and one of the
chief sponsors, Mr. Brasco of New York, certainly has long demon,
(205)
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206
at his interest both by the introduction of his bill and by attend-
ance at these heari?gs, but today found it is necessary to be in his dis-
trict in New York. He sent me word on this and asked that I explain
his absence and express his regrets and certainly I'm sure Mr. Brasco
will attend the future sessions to the best of us ability and will con-
tribute much to the resolution of the problem.
I understand that the, other members of the subcommittee are mak-
ing efforts to be here and I'm very appreciative of Mr. Clay's attend-
ance early this morning so that the meeting might get started.
Our witnesses today are Mr. Ken Mei kiejoha, on behalf of Mr. Bie-
miller, Director, Department of Legislation, AFL-CIO; Mr. Clyde
'Webber, president of the American Federation of Government Em-
ployees; Mr. Paul J. 1.3urnsky, president of the Metal Trades Depart-
lent, AFL-CIO ; and Mr. John A. McC art, Operations Director, Gov-
ernment Emjiloyees Council; and will testify in that order.
Mr. Meiklejohn, I understand that there are others with all of you.
1 would request that you introduce your associates in the Department
ef Legislation of the AFL-CIO, and T. will ask Mr. Webber and the
other witnesses to do the same at the time they testify.
It's my pleasure to welcome you this morniug and you might begin
your testimony in any manner that you would like.
STATEMENT OF KENNETH A. MEMLEJOHN, LEGISLATIVE
REPRESENTATIVE, AFL-CIO
Mr. Miutc?Fdottx. Thank you very much, Mr. Chairman, Mr. Bie-
miller had .hoped to be here this morning and he asked me to express
his regrets he is not able to do so. I will read his statement but I will
be available for any questions if any of the members of the committee
have, any questions.
1.kt me identify in vself. T am Kenneth Meiklejohn, legislative rep-
resentative of the AFL-CIO. I think it would be just as well if the
representatives of each of the groups identify the people who are with
them and we will leave that to them if that's all right with you.
Mr. lituvonitsoN. Very good.
Mr. MEnii.,ibonutx. Mr. Chairman, the American Federation of Labor
and Congress. of Industrial Organizations appreciates very much this
opportunity to present our views on lc:gigaton to place the Federal
labor-management relations program on a statutory foundation.
Three bills are before this committee: H.R. 10700, introduced by the
chairman of the subcommittee, Congressman Henderson, for himself
and the committee chairman, Congresman Dulski; H.R. 13, intro-
duced by Congressman 13rasco, the bill which we support; and H.R.
0784, introduced by Congressman William D. Ford. Each of these bills
is designed to place on a statutory foundation a system of labor-
management relations in the Federal service generally similar to that
which applies in the private economic sector under the National Labor
Relations Act, as amended. A similar system of labor-management re-
lations based on union recognition and collective bargaining already
exists for employees of the U.S. Postal Service pursuant to the Postal
Reorganization Act of August V?,, 1970.
The system of labor-management relator s in the Federal service
called for in each of the bills that are the subjects of these hearings
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also resembles in many respects the Executive order system that has
been in operation in the Federal Government since January 1962 when
Executive Order 10988 was issued by President John F. Kennedy.
Union recognition and collective bargaining as established under that
order, and its successors, Executive Orders 11491 and 11616, have since
become an integral part of relations between Federal Government em-
ployees and their unions, on the one hand, and Federal agency man-
agement, on the other.
Indeed, I think by now we can all agree that union organization and
collective bargaining in the Federal service is no longer a matter of
controversy. The issue before the committee in its present hearings is
simply whether Federal employees are to have a legislated system,
with the administration and rules of the program laid down by the
Congress, or an Executive order system, subject to amendment or
revocation by the executive; whether the program is to be adminis-
tered by an impartial outside board or by Government management
and personnel officials.
In 1967, in testimony before the Cabinet-level Committee appointed
by President Lyndon B. Johnson to review the then 5-year experience
with Executive Order 10988, president George Meany of the AFL?CIO
made some observations concerning the Federal labor-management
program which I believe the committee will find informative in con-
nection with the legislation now before them. I would like to quote
briefly some of the things president Meany had to say on that occa-
sion. He said:
We find general agreement that the Executive Order of President Kennedy to
Provide for employee-management cooperation in the federal service has brought
significant improvements in labor-management relations within the federal
government.
"For the first time, bilateral collective bargaining has become the recognized
way to determine issues regarding personnel policies that affect the working
conditions of federal employees. Although there are still considerable differences
from collective bargaining in private industry, unions in the federal service have
gained the right to bargain collectively wth management on a variety of issues,
including grievance procedures and arbitration.
"Nevertheless, in spite of this progress, government employees?union mem-
bers and non-union members alike?are dissatisfied and restless.
"The AFL?CIO believes that in the light of past experience with collective
bargaining under the Executive Order, the scope of collective bargaining must
be enlarged, more effective machinery must be developed to break negotiation
impasses, the grievance and arbitration procedure must become more meaningful
and an impartial government board must be established to deal with unfair
labor practice charges and to supervise the administration of the Executive
Order."
Parenthetically, I might note that in reading that it seems to me
that we have not done all that much since 1967 in this field because all
of these are still the same problems.
Basically, these observations of President Meany are as applicable
with respect to the Government's I abor-manaffement relations program
today as they were in 1967. Some improvements have undoubtedljr been
brought about in procedures and operations, and the system as a whole
has been strengthened under Executive Orders 11491 and 11616. It
is also true that the number of nonpostal Federal employees now
represented by unions with exclusive recognition rights has increased
from 630,000 in 1967 to some 1,100,000 in 1973, and during this same
period the number of agreements has grown from 650 to 1,904. How-
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ever, the rate of increase has slowed markedly in the last year, and'
discouragement and frustration have continued among Federal em-
ployees and their unions in attempting to advance their interests under
the order.
The AFL-CIO and its Government; employee unions want to see
established principles and procedures of labor-management relations
that will assure Federal employees basically ihe same recognition and
collective bargaining rights that most other employees in the United
States already enjoy. This has been against the background of the
fact that, except for State. and local government employees?though
by no means all of them?and farmworkers, only Federal employees.
are still denied protection by statutory law of their right to organize
into unions of their own choosing and to bargain collectively for their.
own interest and welfare.
This activity has proceeded in two forums--first, within the execu-
tive branch of the Government in the development and implementation
of principles and procedures to bring the Executive order system
into lino as closely as possible with those of true union recognition
and collective, bargaining, and second? in the Halls of Congress to
place such principles and procedures on a statutory foundation. The
AFL--010 urions having members employed in the Federal service -
have worked cooperatively with the Government throughout the his-
tory of the Executive order system to make this system function fairly
and effectively.
Although much thought and effort have one into accomplishing ?
this objective, the lack of impartiality in administration of the Execu-
tive orders and the absence of standards and requirements which
agency heads and representatives, as well as unions and their rep-
resentatives, must comply with have proved -0 be insurmountable ob-
stacles. We have experienced, and we contint e to experience, lack of -
uniformity in administration of the program in the various Federal'
agencies and persistent. frustration on the par; of employees and their
unions in their efforts to secure and exercise the rights supposedly
guaranteed them by the order.
We believe this is inherent in the present :741xecutive order system;
administered as it is by m.anagernent,
Mr. Chairman, as you know, the Federal Labor Relations Council.
during the past 6 months has been engaged in a general review of
Executive Ore er 11491. To the. extent that we have been able to do so,
within the, procedures and methods of review adopted by the Council,
the AFL-CM has been endeavoring to coonerate with the Council'
in this review. I would like at this point to offer and request inclusion.
in the record of the committee's hearings---and I will have to submit
this to the committee at a later date since I find I didn't bring them
with me?a copy of a letter and comments, dated February 20, 1974,
submitted to the Council by the AFL-CTO and its affiliated unions
having members employed in the Federal service.
The comments contained in these documents dealt with areas the
Council stated "should be the central focus" of the review as deter-
mined by the Council. Many of these subject areas are the same or
-
similar to issues the committee will have to consider in developing
legislation following these hearings. We believe our letter and com-
ments will provide a useful basis for judging the complacent sun
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port, of existing Executive order procedures which Chairman Robert
E. Hampton of the Civil Service Commission, who is also Chairman
of the Federal Labor Relations Council, presented to the committee
during his appearance on May 21 and 22. As I say, Mr. Chairman, I
would like to ask that this be included in the record as part of our
testimony.
Mr. HENDERSON. Without objection, the letter and the material to,
which you refer will be placed in the record at the end of your
testimony.
Mr. MEIKLEJOIIN. Chairman Hampton came before the committee.
with voluminous material to support his contention that there is "no'
documented need for the substantial changes embodied in the statutory
approaches pending before this committee." The comments made in
our letter and memorandum last February provide the rationale, based
upon experience in attempting to function under the Executive ordei.
system, for our firm conviction that a legislated collective bargaining.
system must now replace the Executive order system.
One of the principal reasons why we believe legislation is needed,
. is that we have serious doubts that the Federal Labor Relations Coun-
cil, as presently constituted, can successfully implement or review ob-
jectively a system of labor-management relations in the Federal Gov-
ernment based on union recognition and collective bargaining. Who,
is it that makes up the membership of the Council? It is the Chairman,
of the Civil Service Commission, the Director of the Office of Manage-
ment and Budget and the Secretary of Labor. While the Connell's,
administrative and review functions are spelled out in the Executive.
order, we question seriously its capacity to administer or review the
operation of the order with the objectivity and impartiality required:
to deal effectively with the problems or define fairly the issues to be.
considered in the course of its administration or review. Without
prejudice for or against any of the individual Federal officials who
presently serve as members of the Council, we believe that the adminis-
tration of the order and review of its operation by the Council as pres-
ently constituted is necessarily and inherently limited and biased in
favor of management's point of view.
As we see it, this has two unfortunate consequences. On the. one hand
it has led to attempts to divert attention from efforts to secure from.
Congress legislation to remedy the weakness and arbitrariness which
have long characterized the Federal labor-management program. As
we pointed out to the Council in our submission last December listing
issues we thought should be considered in its review of the present
Executive order, it is not mere coincidence that the announcement of
the Council's review came at a time when more and more public dis-
trust was being articulated against both the procedural framework
of the program and concerning decisions being issued under the pro--
gram. Nor is it mere coincidence that the Council only within recent.
months began to issue decisions in cases that had been backed up for
months and, in some cases for years. It's also not mere coincidence, we
think, that this review comes at a time when Congress is beffinning.
actively to consider legislation in this field.
While the role of union organization and collective bargaining has
increased substantially under the Executive order, even more signifi-
cant have been?the recent dramatic increases in unfair labor practice
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complaints before the Assistant Secretary of Labor, in appeals to the
Council, and in the filing of grievance and arbitration cases. These
statistics do not necessarily evidence the present system is working or
that the system enjoys the trust and confidence of employees. We be-
lieve they indicate that relatior s between management and employees
have been worsening because true and meE.ningful participation by
employees in the bargaining process has not been accomplished. Based
upon. their day-to-day dealings with Federal management and their
daily contacts with their members, our unio:as tell us, they do not be-
lieve. the Council hes a finger on the pulse of Federal labor-manage-
ment, relations.
The second unfortunate consequence of the management-oriented
conduct of the present Executive order program is the failure of the
Council to appreciate the importance of recognizing and attempting
to remedy some of the irritating and frustrating problems that have
arisen in the administration of the program. For example, it is par-
ticularly important, we believe, to eliminate the unnecessary and
provocative safeguards of management rights. These are implicit in
the employment relationship, are founded firmly in statute, and need -
not be specifcally spelled out in the order as at present. The purpose
of the order is to assert and maintain the organization and collective-
bargaining rights cri labor, both those, of employees and those of the
unions that represent them, which are not yet established by statute.
The format of the Council's present review also reflects the man-
agement orientation of its attitude toward administration and review
of the Executive order. Instead of providing an opportunity for free
presentation of analysis and .recommendatiors by interested parties as
in prior reviews and revisions of the order, the Council sought list-
burs of "issues for consideration," selection therefrom by the Council
of the issues they would consider, and finally a hearing "to seek am-
plification of written submissions and to pursue proposals included in
the written submissions."
We found this a particularly unrewardirg format for review. It
provided no opportunity for joinder of issues which might have been
illuminating for both the Council and intel ested parties. The state-
ments of issues and subsequent substantive position papers tended to
Force the parties to concentrate on special pmblems. The overall im-
provement of the Executive order in terms of its contribution, if any,
to stable and constructive labor-management relations in the Federal
service was lost sight; of in a forest of particular problems of particu-
lar agencies in particular places and at particular times. The hearing
which resulted based on our experience must have provided little new
enlightenment of any significant value to the Council.
The issue selections made by the Council omitted a number of issues
which we felt should have been included fcr consideration, such as
(1) the question of "make whole" remedies; (2) inclusion of job
classification within the scope of negotiat on and grievance pro-
cedures; (3) use of arbitration in agency adverse action appeals; (4)
a system of union security or representation fees; (5) elimination of
interference by the 6-eneral Accounting Office in the implementatim
of remedies ordered by arbitrators, the Assig:ant Secretary of Leber,
or the Federal Labor Relations Council; ,(6) and strengthened renie-
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dies in connection with unfair labor practices and enforcement of arbi-
tration awards.
Unfortunately, we can expect little relief with respect to these mat-
ters under the present Executive order labor-management relations
system. The Council asserts that existing law and regulations preclude
dealing with most of them and that new legislation would be necessary
to do so.
But if legislation is necessary, why should it not be sought by the
Council ? 'We feel it is incumbent on the Council, if it wishes to im-
prove the operation of the Executive order system significantly, to
propose and work for such legislation. The AFL?CIO has indicated
its support for and would cooperate with the Council in obtaining
enactment of the necessary bills. We would, of course, welcome the ad-
ministration's support, and particularly that of the Council, for legis-
lation to provide a statutory underpinning which we believe is clearly
necessary for a truly effective Federal service labor-management re-
lations program.
I should like to turn now to a discussion of the three bills that are
before the committee. Each of these bills would establish by law the
right of Federal employees to join unions of their own choosing and to
engage in collective bargaining with the agencies by which they are
employed through their union representatives. Each would set up an
authority or board to certify bargaining representatives, to prevent
unfair labor practices by agencies or unions, to provide machinery and
rules for settling bargaining impasses an to establish independent
arbitration procedures to deal with grievances. The authority or board
would function generally in the manner of the National Labor Rela-
tions Board, although its impasse and arbitration roles would give it
a substantially broader jurisdiction than that board has under the Na-
tional Labor Relations Act.
The AFL?CIO and its interested unions have given careful consid-
eration to all of the bills that are before the committee. We believe
that there are features in each one of them which should receive care-
ful study by the committee. As I pointed out at the beginning of my
statement, we prefer H.R. 13, the bill introduced by Congressman
Brasco. This bill was the subject of lengthy discussion among the rep-
resentatives of our unions. In the form in which it is before the com-
mittee at this time, it has the united support of all our interested
unions. This does not mean that there are not features of H.R. 10700,
Chairman IIenderson's bill, and H.R. 9784, Congressman Ford's bill,
that might well be included in H.R. 13 when it is reported by the com-
mittee. We appreciate very much the interest of all three sponsors of
these measures, and particularly that of you, Chairman Henderson,
in scheduling these hearings.
I am not going to discuss in detail at this time any of the three bills.
Many of the issues discussed by Chairman Hampton of the Civil Serv-
ice Commission were dealt with in the letter and memorandum sub-
mitted for inclusion in the record earlier in this statement and will be
'discussed in the statements of the union representatives who will fol-
low me. Our affiliates in the Federal Government field have had the
experience of operating under the present and past Executive orders.
It is they who can be most helpful to the committee in informing them
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212
of the problems they have encountered in attempting to function effec-
tively under tie Executive order system and the reasons for believing
that this system must now be replaced with a. statutory system.
The committee is aware, I am sure, that there are substantial seg-
ments of Government service that already enjoy the benefits of union
recognition and collective bargaining. Long before Executive Order
10988 was issued by President ,John F. Kennedy, systems of union
recognition and collective bargaining were srecessfully operating in
the Tennessee Valley Authority and certain units of the Department of
the Interior. Under the Kiess Act employees of the Government Print-
ing Office have enjoyed some measure of participation in the setting
of wages in that Agency. In 1970, when Congress had occasion to con-
sider, and acted to recognize, the U.S. Post Office Department, one of
t he most important aspects of that reorganization was to institute a
!fermi ne system of collective bargaining administered by the National
Labor Relations Board. So far as we know, that system is functioning
pfiectively and in the public interest in the U.S. Postal Service today.
ILIZ. 13 would establish a Federal Labor 11 elatioms Authority. This
Authority would be composed of a chairman and two additional mem-
bers appointed by the President, with the advice and consent of the
Senate, from a list of 10 persons submitted to the President by the
A merican Arbitration Association. The powers and duties of the Au-
thority would, include unit determin.ations, ce:7tifications of bargaining
repre,sentatives, prevention of unfair labor practices, and decision of
negotiation impasses.
In considering the type of agency that sl ould be assigned the re-
,Iponsibility of administering the substantive provisions included_ in
the law, we have given considerable attention to the question whether
his should be a separate authority or whether the existing National
Labor Relations Board should be assigned this duty as under the
Postal Reorganization Act of 1970. We support the idea of a separate
board for the reason that the National Labor Relations Board's exist-
ing jurisdiction is already very broad and the problem of delay, which
already is serious in the administration of the present Executive order
program, might wel be accentuated across the whole scope of the labor-
management field. The special character of government employment
'indicates a separate authority is needed which would more readily
develop the expertise for dealing with the problems coming under
its jurisdiction.
Such an 1.11thority would be established by all three bills before the
committee. .FLIZ. 10700. however, provides for an additional bipartisan
Board appointed by the Chairman of the Civil Service Commission to
consider policies and regulations involving "matters subject to negoti-
ation" encompassing "personnel policies and practices and matters
affecting working conditions" which the Commission or any other
agency. except the 1/epartrnent of Defense, proposes to issue.
TI!e Board would be composed of a Chairman, without vote except to
break ties, five members from among management officials of Govern-
ment agencies, and live members from unions holding exclusive recognition rights. This bill also spells out many matters that may not lie
made the subjects of negotiation or bargaining, such as the mission,
organization or budget of an agency, the number of employees, the
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213
number, types or grades of positions, internal security practices, and
management rights in relation to employees. Under H.R. 10700, negoti-
ability questions would be determined by the head of the agency, sub-
ject to appeal to the Federal Labor Relations Authority.
These provisions would result in a limited system of negotiation and
bargaining basically similar to the procedures and rules that prevail
at the present time under Executive Order 11491, as amended. Man-
:agement control would continue to be maintained through the Board
'mid the broad delineation of management rights contained in the bill.
This is a basic defect, as we see it, in H.R. 10700 and requires us to
,oppose this bill in its present form despite the fact that in many re-
spects its passage would institute a number of important improve-
ments as compared with the existing Executive order system.
Both H.R. 13 and H.R. 9674 would be administered by an independ-
ent public authority or board appointed by the President, with the
'advice and consent of the Senate. They contain no such provisions
limiting the scope of bargaining or protecting management preroga-
tives as are contained in FIJI. 10700. Under these bills the collective
'bargaining system for which they provide would function in substan-
tially the same manner as the U.S. Postal Service system and the pri-
vate sector system administered by the National Labor Relations
Board. In our view, these bills are definitely to be preferred over H.R.
10700.
II.R. 10700 provides that employees are guaranteed the right not
to join, as well as the right to, join a union. It further provides that an
employee shall not be required to become or remain a union member,
or to pay money to a union in lieu thereof, except as he may volun-
tarily authorize payment of dues through dues deductions. This bill
would expressly forbid even the. so-called "agency shop." H.R. 13 and
H.R. 9784 provide that when a union has exclusive recognition rights,
employees in the unit must either become members of the union and
pay dues, or pay a "representation fee." Thus, while H.R. 10700 would
in effect continue the limited union status that even exclusive recogni-
tion provides under Executive Order 11491, as amended, the other two
bills would provide a measure of union security when the results of
the nni on's organization and bargaining work have resulted in a col-
lective bargaining agreement.
The subject of "union shop" or "agency shop" is one, of course, about
which there is great controversy. It is also one about which there is
great misinformation. The union shop, or agency shop, which unions
representing employees in the Federal Government seek, is basically
a moans through which the union can bring about in the minds of the
employees it represents a recognition that the gains they achieve
through collective bargaining are the result of the, union's work on
their behalf. The union is required to represent all the employees in a
unit, not just their own members, if it enjoys exclusive recognition. It
seems to us it is entitled to all the employees' support, not just that of
its members, for the work and activity it carries on in their behalf.
The, support of employees in the unit, without reference to whether
each one is or is not a member of the union, is important to provide the
union some measure of security against the activity of employer or
outside agents who might want to undermine or destroy its majority.
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214
status. Unless such security is provided, the stability of the relationship
between the, union and the management is weakened, and a period of
some turmoil within the unit can well ensue.
We, believe that union security is in the interest, not only of the
onion, but of the nonmember and the ae.ency itself as well. The record
of constructive, stable relationships between labor and management
where union security agreements are not forbidden by archaic open
shop laws is persuasive evidence that the agency shop is not some-
thing to be feared, ;tut rather something to be welcomed. Its enact-
ment as a part of a labor-management relations law for the Federal
service would put the Federal Government in the vanguard in this
field where, it belongs. We strongly urge that any bill reported by the
committee include such a provision.
In the private sector the right to strike has been regarded as the
basic requirement for assuring equality of bargaining power between
labor and management. The AFL?CIO strongly affirms and supports
the right to strike. The Tenth Constitutional Convention of the AFL?
CIO last fall resolved:
That the APL?CTO and its affiliated unions :work diligently to repeal laws
and ordinances that seek to prohibit public employees, from exercising their right
as workers to withhold their services, and to defeat future attempts to penalize
public workers who choose to exercise the right to strike. We believe that the
right to strike is basic to all American workers, public and private alike.
We recognise, however, that the coinniittee may feel that in the
public sector alternative means may be required to achieve the equality
of bargaining power without which true collective bargaining is
unachievable. Principally, we believe, these are to be found in the vol-
untary inclusion in agreements of commitments by the parties to sub-
mit issues, including grievances and disputes concerning the interpre-
tation or application i' the agreements, to final ind binding arbitration
when the parties are, not able to resolve, them through negotiation or
collective bargaining. in this effort, obviously, the services of effective
mediation and conciliation by the Federal and State mediation author-
ities can be of great assistance.
This is the method proposed in H.R. 13, the t ill which we support?
and I note that it's the bill that we generally i-upport, but all this in
this respect we believe it does not go as far as 'it should in connection
with the right to strike.
By contrast, :FI.R. 10700 leaves the parties to depend on decisions of
a management-appointed board. Under this bill the problem of
inequality of bargaining power on behalf of the employees is resolved
by perpetuating', rather than alleviating, this inequality.
KR. 9784 purports to assert the right to strike, but provides that
restraining orders or injunctions may be, sought and granted on the
basis of findings of fact by the appropriate United States District
Court made after due notice and hearings that a strike would pose a
clear and present danger to the public health or safety. Furthermore,
if the union elects binding fact-finding during negotiation disputes the
union would be prohibited from striking for the purpose of resolving
the dispute. These provisions, it seems to us, give the, right to strike
with one hand, but take it away with the other. In our judgment, the
better way is the way proposed in H.R. 13, the wiiy of voluntary agree-
ment on final and binding arbitration.
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Obviously, there are many facets of the bills which are the subjects
of this hearing which are of importance but which I have not been
able within the time available to deal. Many of these matters will, of
course, be discussed by the other union representatives appearing with
me here today. I have tried to stress that the time for a legislated
Federal labor-management relations system is now, and I have tried
to put some of the basic questions the committee will have to con-
sider in drafting legislation for this purpose in proper perspective and
significance.
We strongly urge the committee to report favorably H.R. 13, with
such amendments consistent with its basic purpose as the committee
feels will make it the kind of bill it would like to see enacted into law.
We will be glad to work with the committee and its staff in developing
the bill into a measure that will assure Federal workers equal status in
the labor-management field with all other workers and that will place
the Government in firm support of the following principle and policy
declared in this bill:
That participation of employees of the federal government through labor
organizations of their own choosing in decisions which affect them contributes
to the effective conduct of public business. Therefore, labor organizations and
collective bargaining in the federal service are in the public Interest.
Thank you very much, Mr. Chairman.
[The letter and attached material referred to are as follows:]
AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS,
Washington, D.C., June 7, 1974.
HOD. DAVID N. HENDERSON,
Chairman, Subcommittee on Manpower and Civil Service, Committee on Post
Office and Civil Service, Rayburn House Office Build/ing, Washington, D.C.
DEAR CONGRESSMAN: You will recall that during the course of my testimony
before the Subcommittee on Manpower and Civil Service on June 5, 1974, I
requested that there be included in the record of your hearings on legislation
to place the Federal sector labor-management relations program on a statutory
foundation a copy of the comments and recommendations of the AFL-CIO and
the covering letter, dated February 20, 1974, in connection with the current re-
view of the Federal labor-management program pursuant to Executive Order
11491 being conducted by the Federal Labor Relations Council.
A copy of the letter in question from Andrew J. Biemiller, Director of the
Department of Legislation, to Chairman Robert E. Hampton of the Federal
Labor Relations Council, and the comments and recommendations of the AFL-
CIO to which I referred are enclosed herewith. Thank you very much for includ-
ing this material in the record as a part of our statement.
Sincerely yours,
KENNETH A. MEIRLEJOIIN,
Legislative Representative.
AMERICAN FEDERATION OF LABOR AND CONGRESS
OF INDUSTRIAL ORGANIZATIONS,
Washington, D.C., February 20, 1974.
Mr. ROBERT E. HAMPTON,
Chairman, Federal Labor Relations Council,
1900 E. Street, NW.,
Washington, D.C.
DEAR Mn. HAMPTON: The AFL-CIO and affiliated unions having members em-
ployed in the Federal service have considered the announcement of the Federal
Labor Relations Council concerning the areas which the Council stated "should
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be the central focus" of its general review of the Federal sector labor-manage-
ment relations program.
The areas listed by the Council in its Information Announcement of De-
cember 18, 1973, do not include all of the natters which the AFL?CIO and its
affiliated unions believe should be included in the scope of the Federal Labor
Relations Council's review of the operations of Executive Order No. 11491, as
amended by Executive Order No. 11616. In this connection, the Council's announce-
ment stated :
"A number of proposed items which were not selected would have required.
legislation. These hove not been included because they are beyond the scope of
the review of the Order. For example, a number of! submissions suggested the
question of `make whole' remedies he included. Legislation would, of course, be.
required to effectuate such a change."
The Council's announcement of December 18, 1973 enumerated for similar ex-
clusion several additional items which had been proposed by the AFL?CIO for
consideration with the Council's review of the operation of the Order. These in-
eluded items 8 and 12 of Section One and items 1, 3 and 11 of Section Two of
the AFL?CIO submission.
In the view of AFL?C10 and its affiliated unions the issues raised by these
items encompass many areas, some of which may be restricted by statute, some-
which are in no way affected by statutory provisions, and others which although
related to statutory provisions, are not outside the FLRC's authority,
For example, we fail to see why legislation would be required to provide for
direct enforcement of arbitration awards by the FLRC, as proposed in item 11
of Section Two of the AFL?CIO submission. Prior to their revision in 1972, the
FLRC's own rules and regulations provided for Enforcement of arbitration
a.wards.1 If the FLRC now believes legislation would be required, we believe it is
incumbent upon them to give the rationale for its conclusion, including relevant
citations and authorities.
We were also greatly concerned over the FLRC's statement that "Legislation
would, of course be required . . ." for make whole :7emedies. Specifically what
"make whole" remedies are included in this statement? Reinstatement?with or
without backpay'? Retroactive promotions?with or without backpay? Gissell-type
bargaining orders?' Any others? The FLRC has accepted two AFGE arbitration
cases for review on precisely the issue of retroactive pi ()motion with backpay. Are.
we to assmne these cases have already been decided?
Another very significant issue raised in item 11 of section Two is the relation-
ship between unien grievance procedure and other griermnce or appeal procedures.
The plethora of different procedures and forums whiffi federal employees .must
cope with is a tremendous burden on labor organizations and federal employees.
Till,: multiplicity of forums is by no means required by etatute.
We do not agree that legislation would be required in order to permit certain
issues to be litigated pursuant to unfair labor practice proceedings or binding-
arbitration. Why would legislation be required to litigate adverse actions involv-
ing nonveterans under negotiated procedures? What is the FLRC's rationale for
concluding that legislation would be required to make issues regarding perform-
ance ratings, reductions-in-force, salary retentions, E:107) matters, separation of
probationary employees, or withholding of step increases, subject to union
grievonee procedures? Specifically what statute or court decision precludes mak-
ing these matters subject to the negotiated procedure IL a manner consistent with
the basic statutory rights of federal employees!
We believe that where review of such important issues is denied on the basis
of a need for leE,,isf,ation, it is incumbent upon the FLRC to state the specific areas
which, in its view, would require legislation, and to give the supporting reasons
for its conclusions, including relevant citations and authorities. In keeping with
the Freedom of Information Act, 4 U.S.C., Sec. 552, agencies are expected to
make available any opinions, policies, or interpretations upon which they rely,
1 cnemare. see. 2411.20(al of the PLR(''s original Rules and Regulations with See.
2111 27(10 of the current Rules and Regulations.
2The, NLRB 11,11V reonire an emnlover to reeoemize ri union without lip eleet'on wher,,
determines that the unfair labor nraetices committed by tile employer during an organizing
eampaign woold tend to podwaninp the 11T110'1'S 111211,1tV and make i fair election an un-
likely possibility. See, NLRB v. GiRset. Packing Co., 395 U.S. 5'l5 (1969), and related eases.
3 See for exnmple, OnlIner Insulated Wire, 192 NLRB No. 150, and related eases, where
the NLRC gives a broad delegation of its stat 'tory responsibll ties to arbitrators.
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particularly where such reliance is to the detriment of the party requesting the
information described above.
We also suggest that it serves little purpose to exclude items from considera-
tion that require legislation if such matters materially and substantially affect
the operation of the program. If legislation is needed to deal with such problems,
then legislation should be obtained. If the area's problems are important and
cannot be dealt with without legislation, then legislation should be sought by the
administration to enable such problems to be dealt with. As you know, it has
been our consistent view that a system of effective union recognition and col-
lective bargaining in the Federal service cannot be achieved without the enact-
ment of legislation placing such a system on a statutory foundation. We would
invite the Council's cooperation in achieving any necessary legislation that may
be required to establish such a system.
Enclosed herewith are our detailed comments on the various items listed by
the Council in its Information Announcement of December 18, 1973. It is our
understanding that hearings will be held by the Council at a future date on
the areas for review listed in that announcement. The AFL?CIO and its affiliated
unions would wish to be represented at any such hearings.
Sincerely yours,
ANDREW J. BIEMILLER,
Director, Department of Legislation.
COMMENTS AND RECOMMENDATIONS OF THE AFL?CIO ON AREAS FOR
REVIEW OF THE FEDERAL LABOR-MANAGEMENT PROGRAM PUR-
STJANT TO EXECUTIVE ORDER 11491
AREAS DETERMINED BY THE FEDERAL LABOR RELATIONS COUNCIL To BE THE
CENTRAL FOCUS OF TILE REVIEW
I. SPECIFIC CATEGORIES OF PEOPLE UNDER THE ORDER
I. Should section 3 of the Order be amended to provide for additional exclusions?
Executive Order 11491, hereafter referred to as the "Order", we believe, should
not be amended to provide for additional exclusions. Instead, it should be
amended to remove the present exclusions of FBI, CIA and the Foreign Service.
(The principle which should apply is that all persons who appear on the pub-
lished rosters of Federal agencies should be covered by Labor-Management Re-
lations.) Specifically, Executive Order 11636, establishing "employee-manage-
ment" relations for the Foreign Service should be revoked especially since this
Service was originally included in Executive Order 10988 and Executive Order
11491. The Order should be deemed to cover all Federal employees, including
Panama Canal Government and Company employees, in the Panama Canal Zone.
The Zone is not a territory "outside the United States"; consequently, Federal
employees there have a right to be covered just as any employee in any U.S.
territory.
Section 3(c) should be amended to end the discretionary authority which
agency heads have to suspend provisions of the Order. No reasonable basis exists
to justify this provision of the Order, especially when Section 3(c) fails to pro-
vide standards for agency heads to apply when deciding whether to suspend the
Order. Certainly, there is no rational basis for an agency head to deny arbitrarily
coverage of employees under the Order on the basis of geography, e.g. the Army's
exemption of the Panama Canal Zone Company/CZ Government under Section
3(c) of the Order.
Section 3 (d )-type employees should only be excluded from a unit if they are
effectively recommending the formulation or execution of agency labor relations
for the unit in question.
Continuation of the present provisions of Section 3 arbitrarily denies excluded
employees equal protection and equal rights.
Section 3 should, we urge, be modified to provide that, in the event no labor
organization exists for representing Section 3 employees in an appropriate
unit under the Order, the employee may designate any union of his choosing to
represent the employee's interests under statute or regulations without reference
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to the provisions of the Executive Order, except the general policy provisions of
Section 1. Furthermore interpretations of Section 3 in its existing form, by the
Federal Label- Relations Council, hereafter referred to as the "FERC", should
be made in accordance with established appeals procedures.
2. Should the Order be amended to include any additional definitions pertaining
to inclusions and exclusions (e.g.., management official, confidential employee,
professional employ ee ) ?
Consistent with our answer to Ll., we believe there is no need for additional
definitions regarding exclusions.
To clearly j.dentify the rights of employees and labor unions and the matters
with which they can deal through unions, we recommend that the following defi-
nition be included in the new Executive Order: "Employee" means an employee
of an agency and an employee of a non-appropriated fund institution of the
United States.
3. What should be the Executive Order policy with respect to guards? (See
sections 2(41) and 10(b) (3) .)
The definition and references of guards in sectiens 2(d) and 10(b) (3) should
be deleted.
We believe the provision in E.O. 11491 relating to guards is a misconception
of the role of guards in private enterprise as contradistinguished from their use
in the Federal government. The Federal government has access to a whole series
of protective services additional to guards, whereas private employers must
rely on their own guards to protect premises or :*ely on protective services by
hire or on public police forces. But U.S. can use FBI, Deputy Marshalls, Secret
Service and imst of other protective forces and in the final resort, the military
without going outside its own jurisdiction. Its resources are all within the
premises. Consequently, we believe that considerations valid for private enter-
prise are irrelavant and tangential in Federal 'service and are only harmful and
confusing.
For this reason we call for removal of the prohibition against unions who
represent non-guards from seeking new units of guards, as well as removal of
the prohibition against such unions from appear .ng in reresentation proceed-
ings, including placement on the ballot, in defense of established exclusively rec-
ognized units Df guards and of mixed guards and non-guards.
Since currently there are criminal and civil sanctions for Federal employees
who engage in strikes. Federal guards cannot antciipate being called upon to
play a role in labor relations strife, especially in hght of complete lack of such
activity by guards throughout E.O. 10988 and E.O. 11491, as amended.
The Assistant Secretary's handling of ct.rve-out elections involving units of
both guards and non-guards should be changed to allow the incumbent union to
appear on the ballot in contrast to NLRB procedure. (A/SLMR Nos. 45, 325, 326
and 333).
Present Assistant Secretary procedures put an incumbent union which rep-
resents a mixed unit or a pure guard unit at a disad?-antage contrary to the Study
Committee Report and Recommendations which provides at Page 39: "These
requirements would not affect existing units of representation but should be
applied in all unit representation determinations m der the new Order."
The Assistant Secretary's handling of carve-outs or challenges to pure guard
units is illogical because, on the one hand, it denies an incumbent a place on the
ballot on the theory that guards may not be represeited by a unit which includes
guard employees, while on the other hand, allowing guard units to continue if
the challenge unit fails to win the election.
4. What special policy, if any, should be established concerning the status of
attorneys under the Executive Order?
There should not be any special policy regarding the status of attorneys under
the Executive Order, or of any other professional.he relationship of attorneys
to other employees in the Federal service does not per se create any conflict Qf
interest. Other than clearly recognizable conflict of-interest situation, which
would apply to all employees, attorneys should nceive no special treatment,
regarding either inclusions or exclusions.
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XL surEnvisofts
1. Should the definition of Supervisors be modified? (See section 2(c).) If so,
how?
Yes, we believe it is necessary to redefine supervisor in terms relevant to the
Federal Service where so-called "supervisors" in fact do not have the same func-
tions, powers or roles as "supervisors" do in private enterprise.
For this reason, we propose retaining all of the present definition of "super-
visor" in Section 2(c), but adding to it also the following paragraph of two
"presumptions" making the definition relevant to Federal Service:
"Provided, That all employees in civil service grade GS-1.0 and below shall
be presumed not to be supervisors within the meaning of the Order.
"Provided further, That fire captains and fire prevention inspectors, shall not
be considered to be supervisors within the meaning of the Order except where
it is demonstrated that a preponderance of the duties they perform are within
the scope of section 2(c)."
2. What provisions, if any, should the Order contain concerning associations of
supervisors and management officials? (See section 7(e) and 21(b).)
Associations of supervisors and management officials should have no status
under an executive order dealing with labor-management relations. The inclusion
of such associations is a contradiction of fact, overlooking or ignoring the basis
for the original exclusion of supervisors and managers on the basis of conflict of
interest. This original exclusion is conceptually insurmountable. If individual
managers and supervisors have any rights of association, it should not be within
the context of the Order, which should deal only with the rights provided to labor
unions.
For this reason, we recommend elimination of Section 7(e) of the Order.
3. What policy should pertain to the representation of supervisors by unions in
proceedings under agency grievance and appeals procedures?
We believe the following policy should pertain:
A labor organization which holds bargaining rights and represents an appro-
priate unit of employees of an agency may, if requested by a supervisory em-
ployee who is a member of such labor organization and employed by the agency
at the same activity, not in the recognized bargaining unit, represent such em-
ployee in proceedings under the agency grievance and appeals procedure; and
such recognized labor organization may similarly represent in a grievance or
appellate action any employee within the unit for which it holds exclusive recog-
nition on any grievance or appellate action that is not subject to the negotiated
grievance procedure of the labor organization's negotiated agreement.
TU. RECOGNITION PROCEDURES
1. Should the requirements in section 10(a) for a secret ballot election as a
prerequisite to exclusive recognition in all cases be modified or retained?
Section 10 should be modified to allow certification on the basis of designated
majority support, e.g., authorization cards. Such practice has worked well in the
private sector and would promote efficiency for both unions and government
agencies. There is no evidence whatsoever that this procedure was defective as
utilized during the eight years of E.O. 10988.
Thus, we favor this item, and recommend that Section 10 of E.O. 11401 be
modified by deleting the phrase "selected, in a secret ballot election" and sub-
stituting for it the phrase "designated or selected".
The revised section 10 would then read as follows:
"Section 10. Excln,,tive recognition. (a) an agency shall accord exclusive recog-
nition to a labor organization when the organization has been designated or
selected by a majority of the employees in an appropriate unit as their repre-
sentative."
2. Should unions and agencies be permitted to consolidate bilaterally their exist-
ing units without meeting the requirement of a secret ballot election if the
resulting unit is otherwise in conformity with the provisions of the Order?
Unions should be permitted without secret ballot to consolidate existing units
unilaterally on the basis of certification as to appropriateness of the larger units.
This should not require any action by agency management.
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The present Assistant Secretary rule of certifi?ation and agreement bars pre-
venting consolidation of units must be reversed because it means that the more
employees a union represents in individual unit, the more difficult it becomes
for that union to acquire a showing of interest necessary for certification of a
larger all-encompassing unit. Further, if such unit is deemed appropriate, unions
should not be forced to lose already established smaller units because of the
present Assistant Secretary's requirement of "putting them on the line" in an
election. This is particularly valid when no other unions are involved.
Whenever a union wishes to merge its existing units into one larger consoli-
dated bargaining unit, it should be allowed to do so without agency consent
and without an election.
An election should not be necessary because a consolidation of existing units
does not constitute an attempt to represent new employees. Rather, it is merely
an effort to eliminate artificial unit lines which divide agency employees into
fragmented nnits. Therefore, the employees of these units should be allowed
to express their feelings regarding consolidation through their elected represen-
tatives without the necessity of a second election.
Agency approval should not be required for an appropriate unit consolidation
because such consolidation merely seeks to join individual units, which have
already been certified as appropriate, in order to at am more effective and efficient
labor relations.
If, on the other hand, a union is seeking to consolidate its units with other
unrepresented units or with units represented by other unions, then an election
should be conducted to determine the wishes of al employees involved. .
Agreement and certification bars, correctly understand, are intended to promote
stable labor relations by providing some protectien against the harrassment of
raiding units and should never be allowed to impede the consolidation of bargain-
ing units. The present Assistant Secretary rule on unit consolidation (Veterans
Administration and Council of AFGE VA Locals, A/SLMR No. 240, FLRC No.
73A-9) must be overturned because it punishes unions for their success in organ-
izing employees and reaching collective bargaining agreements.
(V CONSOLIDATION OF EXISTING trivrrs
1. What should be the Executive Order policy with respect to the consolidation
of bargaining units?
2. What changes in the Order or its implementailon should be made for this
purpose?
We believe the new Executive Order should elm rly establish the principle of
non-application of agreement and certification bars now in effect through various
decisions of the Assistant Secretary of Labor, it petitions for exclusive recog-
nition of nationwide units or "national exclusive recognition".
In this connection, attention is called to the lest paragraph of Section B.6
of the Study Committee Report and Recommendations, dated August 106D, which
reads as follows:
"When national exclusive recognition has been granted in an appropriate
national unit, no recognition should be granted to any other labor organization
for employers within the national exclusive unit. This does not preclude consul-
tation or negotiation at any level with representatives of the nationally recog-
nized exclusive union."
V. SCOPE OF NEGOTIATION S
1. Should the Order be amended to delineate a recognized union's rights con-
cerning agency regulations and the impact of such regulations on the scope of
bargaining? If so, what changes should be made for this purpose?
2. Should sections 11(a), 11(b) and 12(b) be modified or revised or clarified?
How?
3. Do the agency's obligations to negotiate, to consult and to inset and confer. es-
pecially with respect to midcontract changes in personnel policies and proce-
dures, require clarification?
Our position on these issues includes three related recommendations:
(1) The Order should be amended to include a general list of representa-
tive items which are mandatory subjects of bargaining, irrespective of agency
regulations.
(2) Sections 11 and 12 of the Order Should be deleted and Section 10(e)
expanded to define the continuing obligation to bargain in good faith.
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(3) There should be no doubt that the obligation to bargain is a continuing
obligation. It is a violation of Section 19(a) (6) to make a unilateral change
in? any contract item during the term of the contract. Even where a past
practice is not specifically covered by a contract, management may not make
a unilateral change in a past practice without first bargaining to impasse,
including recourse to the Impasses Panel.
For purposes of convenience, we are presenting separate discussions of each
recommendation. The recommendations are, however, interrelated and should
not be viewed in isolation.
Listing representative items as mandatory subjects of bargaining
We recommend that the term "personnel policies and practices and matters
affecting conditions of employment" (see our proposed amendment to Section
10(e), infra), be specifically defined by adding the following subsection to Sec-
tion 2. Definitions:
"(j) 'Personnel policies and practices and matters affecting conditions of em-
ployment' means, but is not limited to, such matters as working conditions and
environment, pay practices, fringe benefits, work hours and schedules, overtime,
work procedures, automation, safety transfers, job classifications, details, pro-
motion procedures, seniority, assignments and reassignments, reduction in force,.
job security, contracting out, use of military personnel, disciplinary actions and
appeals, training, labor-management relationship, methods of adjusting griev-
ances, granting of leave, union security, travel and per diem." [See Section 201
(i) of S. 351 or H.R. 13.]
At the present time, two entire sections of the Order are devoted to areas
excluded from the duty to bargain, but their is no detailed listing of areas where
management must bargain. Even the nine-word phrase "personnel policies and
practices and matters affecting working conditions" in Section 11(a) is practi-
cally qualified out of existence and can, in fact, be regulated out of existence by
an agency.' Surely unions should have certain areas clearly established so that
we can avoid as much litigation as possible.
At the very minimum, the scope of negotiations should include any areas not
specifically prohibited by statute. If an agency believes that circumstances pe-
culiar to their operation warrant a different conclusion, this is properly aii.
impasse question to be determined only after a factfinding hearing where all
relevant factors can be evaluated.
Elimination of sections 11 and 12 and eopansion of section 10(e)2
We recommend that the obligation to bargain be set forth in detail. This can
be accomplished by expanding Section 10(e) to provide as follows:
"(e) When a labor organization has been certified as the exclusive repre-
sentative of employees in an appropriate unit, it shall be entitled to represent
and baragin collectively for all the interests of all such employees. Such labor
organizations shall have the right to participate in the formulation, implemen-
tation, and modification of personnel policies and practices and all other mat-
ters affecting the conditions of employment of employees in the unit and shall
be given the opportunity to be represented at discussions between management
and employees or employee representatives. The agency and such labor orga-
nization, through appropriate officials and representatives, shall meet at reason-
able times and places for purposes of negotiating a written collective bargaining
agreement in regard to all matters not prohibited by statute. The agency and
the labor organization shall negotiate in good faith for the purpose of arriving at
a collective bargaining agreement. Such obligation to bargain shall include the
execution of preliminary ground rules and any such understandings reached by
the parties may be incorporated in a separate written agreement. The duty of
an agency and a cretified, employee organization to negotiate in good faith shall
include the obligation?
"(1) to approach the negotiations with a sincere resolve to reach an
agreement;
"(2) to be represented at the negotiations by duly authorized representa-
tives prepared to discuss and negotiate on all matters within the scope of
collective bargaining;
1 See, National Federation of Federal Employees, Local 779 and Department of the Air
Force, Sheppard Air Force Base, Texas, FLRO No. 71A-09, p. 3 (Report No. 30, Aar. 27,
1973), and related cases.
Section 4(e) (2) should also be eliminated.
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"(3) to meet at reasonable times and. corr,enient places as frequently as
may he necessary, and to avoid unnecessary delays;
"(4) to furnish to the other party, upon request, data normally main-
tained in the regular course of business, reasmably available and necessary
for fah and proper discussion, understanding, and negotiation of subjects
within the scope of bargaining; and
-(5) if an agreement is reached, to execute upon request a written docu-
ment embodying the agreed terms, and to talit such steps as are necessary to
implement the agreement,.
?rhe agency shall not make or apply rulet or regulations which restrict
the scope of collective bargaining permitted )3, this Order or which are in
conflict with any agreement negotiated under this Order."
In addition to expanding Section 10(e), we beLeve Sections 11 and 12 of the
Order should be entirely eliminated. Our experience under the Order has con-
vinced ns that the most fundamentally damaging aspect of the existing labor-
management program is the concept of a separate category of nonnegotiable items
and a separate adjudicatory procedure for determining those items. Not only are
these procedures unnecessary in terms of protectir g the public interest, but they
invite and encourage agency abuse of the collective bargaining process. As long
as these procedures exist, there will be no freed?. n of contract and equality of
bargaining power between management and emrloyees.3 Without such funda-
mental rights, collective bargaining in the federal sector will remain collective
bogging.
Sections 1.1 and 12 of the Order, as interpreted by the PLRC, suggest that there
exists some abstract body of items which by their very nature are nonnegotiable.
As interpreted by the FLItC, these items are viewed as inherently belonging to
management and any dilution of management's absolute rights will, in the
FI,RC's view, automatically damage the public in:erest because the mission of
the agency would be thwarted. Presumably, in these areas of nonnegotiability,
management rghts are viewed as being identical w.th the public's interest.
This entire concept of negotiability disputes fails to recognize the underlying
problems of effective collective bargaining in the public sector. The real problem
is how the terms of a collective bargaining agreement?or the lack of an agree-
ment---impact .apon the public interest. The problem is not simply what the parties
should be permitted to talk about at the table. Both the public interest and the
mission of the agency will be enhanced by a satisled and efficient civil service
work force. It is a question of balancing tile interests of the parties. In other
words, the real questions are impasse questions an questions of refusals to bar-
gain in good faith.
Only impasse proceedings and unfair labor practiee proceedings are responsive
to the underlying problem. Each seeks the proper balance between the public
interest and the interests of employees in those areas where there may be a
conflict. Balancing the legitimate interests of the public, of management, and of
labor organizations and the employees they represent requires careful considera-
tion of many factors. To he fair and accurate, these factors must be objectively
Iletermined by record testimony, as evaluated by men and women who possess the
necessary expertise?administrative law judges, and arbitrators.
The broad outlines of the respective rights and interests of the parties can be
set forth in enabling legislation, or for the time-being, in the Executive Order."
This broad outline sholild strike a balance between the interests of the parties.
It should not list only management rights and leave mandatory areas of bargain-
ing unstated and in doubt.'
With the overall guidance from the enabling legislation, specific questions as to
the proper balance between the legitimate interests of all concerned can be de-
See, Section 1 to the Labor Management Relations Act which specifically recognizes the
need for legislation to restore equality of bargaining Power.
4 This would be accomplished by defining the term "personnel policies and practices and
matters affecting conditions of employment" and by expe:nding see. 10(e), as suggested
tthove.
In a recent speech before the Maryland Public Sector Labor Relations Board, .Terome
Darrett of the PMCS, nottd the growing trend in state labor-management legislation of
omitting any reference to management rights. It is felt that with management's rights ade
qmitely protected by impasse proceedings and with no right to strike or :I limited right to
strike, management can protect itself adequately at the bargaining table without such addi-
tional statutory protection. See, ERR. No. 524, p 17-1 at 7-2 (Dec. 17, 1973). The states
-have never required separat, negotiability "nrocedurRS.
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termined only after a full factfinding hearing which takes into account all of
the relevant considerations. To wit: the practical impact of a particular proposal
on the operations of a particular agency; the validity of the, reasons advanced in
support of or against the proposal, including any evidence of previous manage-
ment abuses; any evidence of present or past attempts to abuse the collective
bargaining process directly or indirectly; and the relative needs of the em-
ployees and management as these needs may impact upon the public.
Our experience thus far under the Order amply demonstrates that the negoti-
ability procedures set forth in Sections- 11 and 12 of the Order are totally
incapable of determining the proper balance between the interests of the parties.'
These procedures are, therefore, incapable of protecting the public interest. In
fact, particularly as administered by the FLRC, negotiability procedures have
seriously threatened the public interest by failing to recognize the legitimate
interest of employees. The decisions of the FLRC have given management a
carte blanche to abuse the very purpose for which the Order was established,
to encourage high standards of employee performance and modern and progres-
sive work practices.'
Two examples involving actual cases amply demonstrate the way in which
Sections 11 and 12 of the Order operate to prevent consideration of the public
interest by precluding consideration of the factors listed above (the practical
impact of the proposal, evidence of abuse of the collective bargaining process,
etc.). Both examples demonstrate how impasse proceedings- or unfair labor
practice proceedings would have given greater protection to the public interest.
The first example involves the question of whether employees should receive
temporary promotions, rather than details, when they perform the work of a
higher level position for an extended period of time. When a labor organization
attempted to negotiate a proposal which would require employees who were
properly qualified to be temporarily promoted after serving in a detail status
for over 80 days, the Army was able to preclude the union from even discussing
the merits of the issue through the simple device of asserting a regulation as
a bar to negotiations.'
In spite of a statutory policy recognizing the principle of equal pay for equal
work,' a clear warning in the PPM against management abuse of details in lieu
of temporary promotions,' and a general industry practice consistent with the
union's proposal, the Army's regulation was viewed as automatically precluding
negotiations.
There are no factfinding hearings in negotiability disputes. Moreover, . the
Army's formal brief did not even bother to offer any justification for the regula-
tion, and the FLRC did not require any justification. There was no attempt to
consider the needs of employees or the needs of the Army in relying on this
regulation. The Army was not even required to show that its regulation was,
in fact, uniformly applied to all its component activities.
In contrast, where the same issue was litigated as an impasse, recognition of
eveyone's interest was permitted. The impasse panel noted the history of agency
abuse in this area, as demonstrated by record testimony and exhibits, and also
recognized the agency's need for flexibility and efficiency in performing its mis-
sion. Consideration was also given to the practices at other activities and
agencies.
After a full hearing, the Panel found that the interests of all the parties would
be served if a maximum limit on details before temporary promotions was
agreed upon by the parties. If the parties are not able to reach agreement on the
precise limit, the Panel will recommend a precise limit."
The second example demonstrates how easily management can use even the
threat of negotiability procedures as a means of avoiding its obligation to bar-
gain in good faith, leaving labor organizations and their members no legal
recourse.' It involves not only an abuse of the authority to approve contracts at
0 See, .the preamble to Executive Order 11491, as amended, for a statement of its purposes..
7 Local Lodge 2424? IA M?AW, and Aberdeen Proving Ground Command, FERC No. 72A?.
17 (Report No. 29, June 1, 1973).
5 11.5.C. 5341.
O PPM 300.3-4d. and e. ; FPM 335.4?le and 4-4a.
10 General Services Administration, Region III, Washington, D.C., and AFGE, Local 2111,.
cip,w No, 73 FSIP 15 (Dec, 6, 1973).
11 Once an issue of negotiability is raised by management, the Assistant Secretary auto-
matically defers to the negotiability procedures and disndsses any charges alleging a refusal
to bargain in good faith. A/S Report No. 26.
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the agency head level," but also represents a clear disregard for the role of the
"SIP.
The example involves an impasse case currently pending before the Panel.'
The issue at impasse is whether or not references to agency regulations should
be included in certain provisions of the contract and thereby be made subject to
interpretation er application by the arbitrator. It iE another version of the cele-
brated "Elmendorf" issue.
While bargaining to impasse over this issue, in a unit of national exclusive
recognition at a sub-agency level, no issue of negctiability was raised. At the
impasse proceedings, however, a higher level agency official actually testified on
the record that while the agency would not raise a negotiability issue at this
stage of the proceeding?which would permit the P mel to refer it to the FLIIC
pursuant to the expedited procedures?he did intend to raise a negotiability
issue if the Panel finds for the union.
This official, in effect, has ma de it a matter of public record that he intends
to force the union to go through the time-consuming and expensive process of
taking the issue through impasse proceeding, only to be faced with disapproval
of the Panel's recommendation when the contract comes to him for approval at
the agency head level.
What possible good faith reason could there be for such a tactic? It is simply
a device to delay reaching agreement? (The agency has not signed the contract,
refuses to agree ro a reopener, and even refused to extend the previous contract
pending resolution of the impasse.) Perhaps he int( ads to hold the embarassing
prospect of declaring their recommendations non-negotiable over the Panel, in an
effort to persuade the Panel th reach a decision in favor of the agency. What
reconse does the Panel have? They cannot refer the case until the agency takes
a position on the negotiability issue, and if the Panel refuses jurisdiction, it
will only demonstrate the inability of the present program to deal with manage-
ment abuses of the system.
If ever there was a per se violation of the ditty to bargain in good faith, it is
the conduit of this official before the Panel. Since we are powerless to raise a
negotiability issue on our own (and should not be remired to do so in any event),
and any unfair labor practice would only be dismissed by the Assistant Secretary,
we can only hope this official will decide to honer his obligations. There are
many other examples but it is clear from the above that separate negotiability
procedures are incapable of protecting the legitimate interests of the parties and
are not responsive to the interests of the public. Such procedures are weighted
in favor of management and no protection is available to labor organizations
or employees when management uses these procedures to undermine the status of
time union as collective bargaining representative, 0:7 to deprive employees of the
protection of a contract.
The manner in which the present negotiability procedures invite abuse are
a matter of public record in the cases described titove. Cases which are now
in the preliminary stages and have not yet reached the FERC level will demon-
strate, even more graphically, how negotiability procedures are used to litigate
what is really an impasse question.
For example, a unit of immigration officers has proposed that the agency
youth all immigration vehicles used in remote areas with appropriate com-
munication equipment which will permit: prompt contact with local law
enforcement authorities. The Union is seeking this provision on the basis of
its right to negotiate health and safety issues. Eoth the safety of the public
and of the individual officers is involved. Thas, if an immigration offi-
cer who works alone in a 100 mile patrol area discovers a group of illegal
aliens in a remote border area, he now has no way of calling available local
law enforcement officers for additional help in bringing in the aliens. Instead,
'2 Higher level agency officials still use their authority to disapprove of contract provi-
sions as a -means of avoiding a provision of which they d a dot approve. What should have
been an impasse issue is then artificially raised as FL negmlability dispute. Again, the agen-
cy's authority is absolute and labor organizations have ru. remedy when their members are
left without the protection of a contract.
Hearing Transcript, pp. 45-52, and pn. 57-90, Agricultural Marketing Service. Meat
etradina Branch, Wa Rhino on, D.C., and A POE National Meat Grader's Council, Case No. 73
FSIP 26 flannasse Pending).
'4 M. APGR Local 2595 and rmatrigra,tion and Naturalization Service, U.S. Border Patrul,
Varna Sector (vanta, Arizona), FLRC No. 70A-10 (Repor- No. 6, Apr. 16, 1971), the loLliC
recognized a union's right to negotiate in areas of health Rad safety.
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if attacked, he must make the appropriate response, including where necessary,
using his firearm to stop the aliens. In remote urban area, without prompt
recourse to local law enforcement officials, immigration officers may have to
use their weapons in a populated area, thus increasing the risk to innocent
bystanders.
In response to the union's position, the agency declared the proposal non-
negotiable, claiming that it violates the management's rights clauses in Sec-
tions 11(b) and 12(b) of the Order. Specifically, management claims the
proposal violates its right to determine technology, the methods and means of
operation, and to maintain the efficiency of agency operations.
The real question here is to balance the union's interest in maintaining safe
working conditions, and the agency's problem in finding the money to provide
the necessary equipment. It is not a problem of interpreting some of the abstract
terms in Sections 11(b) and 12(b).
Yet, by creating an artificial category of nonnegotiability items, the Order
permits an agency to declare this nonnegotable, refuse to even discuss it further
at the table, and force the union to litigate the issue without the benefit of
factfinding and the expertise of experienced arbitrators.
The litigation of negotiability issues takes a minimum of one year, and we
can still be forced to take the question to the Impasses Panel. This would
take an average of another six months. In the meantime, our members are
without the benefit of a contract. Is management attempting to undermine the
status of the union by trying to make their representative appear to be unable
to get results? Such conduct on the part of agency management only increases
the frustrations and distrust of federal workers in the present program. It
serves no useful purpose.
Many more examples could be given of health and safety issues, promotion
issues, efficiency of agency operations issues, etc. All of these areas require
a balancing of the different interests of the parties. They do not?or should
not?turn on abstract notions and dictionary definitions of terms used in what
are basically management rights clauses.' The entire concept of a separate
negotiability procedure is unrealistic. It creates artificial distinctions, obscures
the real issues, and is simply another procedure used to divert the time and
resources of unions and employees from the more significant and substantial
problems. The states do not find separate negotiability procedures necessary
and the federal sector should follow their example. Negotiability procedures
do not protect the public interest?they only encourage management abuses
and this undermines the public interest.
The continuing obligation to bargain
We believe implementation of the changes recommended above would remove
the obscurities which currently plague the area of scope of negotiations.
If the present restrictions on the duty to bargain are removed, there will
be no doubt as to the continuing obligation to bargain collectively with respect
to personnel policies and practices and matters affecting working conditions.
VI. GRIEVANCE AND ARBITRATION PROCEDURES
1. Does the meaning and scope of Section 13 need amplification?
2. Should Section 13 be revised to:
a. Exclude from the negotiated grievance procedure grievances over agency
regulations?even if regulations are referenced or cited in the agree-
ment??or
b. Provide that the negotiated grievance procedure is the sole procedure
available for all grievances filed by or on behalf of unit employees thereby
including grievances over agency regulations and policies not contained in
the agreement and excluding only those issues subject to statutory appeal
procedures ??or
e. Permit negotiation on scope of grievance procedure, with statutory appeal
procedures as the sole mandatory exclusion?
3. Should parties be permitted to take jointly to an arbitrator questions as to
whether a grievance is subject to a negotiated grievance procedure or subject
15 See, for example, Tidewater Virginia Federal ginployees Metal Trades Council and
Nava/ Public Works Center, Norfolk, Virginia. FLRC No. 71A-56 (Report No. 41, June 29,
1973).
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to arbitration under an agreement?--or should such questions be resolved only
by the A/SLMR? [see sections 6(a) (5) and 13i d).1.
Our positien on this item is as follows :
(1) The parties should be permitted to n?gotiate a grievance procedure
as broad as they wish. The sole limitation should be those areas in which a
statute does not permit an alternate forum.
(2) The scope of the grievance procedure should be negotiated, not uni-
laterally prescribed by the Order.
(3) Section 13(d) should be eliminated in its entirety.
1. Scope of grievance proecdure.--We believe the grievance should include any
aspect of the employment relationship except areas which, by statute, are spe-
cifically and exclusively assigned to another forum. Unless a statute specifically
provides that a particular issue must be 'litigated in certain forum, we believe
an employee should be permitted to choose the route he prefers. For example, an
employee should be permitted to liquidate an EEO issue pursuant to the negoti-
ated procedure if he prefers. There is no requiren.ent in the Civil Rights Act of
1072 to preclude this.
The question posed in paragraph 2.a. of the FLIIC announcement appears to
IW an attempt to reverse the Elmcmlorf case." There is no reason why agency
regulations should not be subject to intertmetati.on or application by an arbitra-
tor. If agencies are applying their regulations in a fair and equitable manner,
they should have no fear of submitting them to r wiew by an independent arbi-
trator. This ..can only increase the trust and cenfidence of employees in the
agency's effort to act in a manner consistent with merit principles and sound
personnel management. Moreover, as pointed out in the Elmendorf case, an
agency can always appeal an arbitrator's award to the FLRC, if it believes the
award is contrary to lf.w or regulation.
If management contends that only management can understand the complex
regulatory provisions of their operation, our question is how can employees be
expected to understand? Can it be assumed that an arbitrator cannot grasp what
every personnel officer must know? Most importantly, any attempt to exclude
consideration of agency regulations would virtually wipe out union grievance
procedures. There are no areas of personnel policies not affected in some way
by agency regulations.
The Elmendorf issue is simply an attempt to limit the union's participation in
the collective bargaining process. This is hardly consistent with the purpose of
the Order and should be rejected out of hand. A s:!stem whore the agency is the
prosecutor, judge and jury is hardly a credible system. It is definitely not
bilateralism. .?
2. Negotiating the wope of the procedurc.?The scope of the grievance proce-
dure in a particular unit should be left to the elscretion of the parties--not
unilaterally prescribed by the Order. The needs of each unit may differ, and
we should not presume, to know what is in the beat interest of the parties in a
particular situation.
Moreover, as a general rule, most items shoul d be left on the table, not
unilaterally prescribed. It gives the parties greatet flexibility and room to work
out compromises where necessary.
3. Elimination of Scotian. 13(1).?We believe that Section 13(d) should be
deleted and ah questions of grievability and arbitrability should be determined
by the arbitrator. The present procedure of referring these questions to the
Assistant Secretary is time-consuming and inefficient, and is making a shambles
out of contract enforcement. It should be returned to the arbitrators as has
been the practice in the private sector and in the federal sector for the 10
years prior to the addition of Section 13(d).
.Questions of grievability and arbitrability are essentially questions of con-
tract interpretation am) an arbitrator, not the AssIdant Secretary, is the expert,
in this area. Moreover. as pointed out by the Supreme Court in the Steelworkers
Trilogy, questions of grievability and arbitrability are often integrally related
to the substance of the grievance itself. Therefore, the Assistant Secretary may
end up deciding the substance of the grievance itself. This is certainly not what
the parties bargained for nor is it consistent with the overall intent of Section 13.
The existence of Section 13(d) suggests that arbitrators are not to be trusted
to do the very thing they have the recognized professional expertise to do! It is
AMPriear Pedevation of Government Rtapiove,,,. Pm": 1668 and Elmendorf Porte
Rase (Wildumod kir Form. Station), Alaska, FLEC No. 12A-10 (Report No. OR, May 21,
1973).
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a totally unnecessary procedure which only encourages management to avoid
its contractual obligations. It is another example of how the process of the
Order permit management free reign in undermining the strength of the union
through extensive and time-consuming litigation in a multiplicity of forums.
Justice delayed is justice denied.
A recent survey demonstrates how unnecessary and time-consuming this pro-
cedure is." Without this added procedure, the 1973 figures indicate that it takes
an average of five months from the time the grievance is filed to receive the de-
cision of the arbitrator. If this decision is appealed to the FLRC, ten more months
must be added?making a total of one year and three months to receive a final
decision. If a question of grievability or arbitrability is filed, however, another
six months is required to receive a decision from the Assistant Secretary, and
another ten months added if his decision is appealed to the FLRC. This means it
could take an additional period of one year and four months just to litigate the
question of grievability or arbitrability! It would bring the total time period up
to two years and seven months if all decisions were appealed to the FLRC.
The futility of this procedure and the potential for abuse is obvious from the
time periods involved. Also, significant is the fact that, thus far, decisions from
the Office of the Assistant Secretary (none have reached the appeal stage yet)
have demonstrated that management's claims have not been meritorious.' If this
procedure is not eliminated, it could be used to make a shambles out of the
grievance-arbitration process.
The FLRC's reference to permitting the parties to "jointly" take a question of
grievability or arbitrability to the arbitrator is unrealistic. If the parties agree,
they will submit such questions to the arbitrator. They do not need a provision in
the Order to permit them to do so. The fact is that unless the parties disagree, no
one will raise the issue.
VII. APPROVAL OF AGREEMENTS
1. Should section 15 be revised to include additional limitations upon the author-
ity of an agency head to disapprove negotiated agreements (e.g., by requiring
the review to be exercised on a "post-audit" basis; by limiting disapproval to
specific agreement provisions, permitting the remainder to go into effect; by
setting time limits for agency action; by precluding intermediate level review
of agreements prior to agency head review) ?
Section 15 of the Executive Order should be deleted in its entirety since all
contracts should go into effect when they are signed off by the parties, rather
than being subject to review by the head of the agency or his designee. The
present agency review procedures are making a mockery out of bargaining as
they are extremely time-consuming, often taking many months, and the agencies
have consistently refused to approve clauses that are not in violation of law
or regulations, but which merely they do not like.
Certainly, after 12 years of collective bargaining in the federal sector, this
paternalistic concept of higher agency authorities' approval of lower level nego-
tiated agreements no longer has substance. If agency heads do not, trust their
local negotiators, then they should retrain or replace the local negotiators. Why
should the unions and the employees they represent be asked to bear the burden
of management's inability to direct and supervise their own local officials?
Contracts should go into effect immediately at the local level. The agency head
would then have only 30 days to disapprove of a particular section. It should
be specifically stated that any evidence of abuse of the authority to disapprove
a contract are grounds for a violation of Section 19(a) (6).
VIII. OPERATION OF THIRD-PARTY PROCEDURES
I. Should the Assistant Secretary of Labor hear and rule negotiability disputes
that arise in the context of unfair labor practice proceedings under- the Order?
The Assistant Secretary of Labor should rule on negotiability disputes which
arise in the context of unfair labor practice proceedings. (See A/S Report Num-
aer 26) The FLRC is not established to deal with fact-finding issues which would
"For a SITP,MRrV of the results of the survey, see, the AFGE Washington Letter, vol. 8,
N6. no, Oct. 12. 1978, at 9. 5.
1,, Warner Robins Air Material Area, Robins Air Form Base, Ga., Case No. 40-4930 (GA) ;
TOtrerot of Retirement and Surv4vors Insurance, Social SPeurity A dministration? ensp No.
20-5214 (GA) ; Department of th-e Army Watervliet Arsenal, Cases Nos. 35-2902 (GA) and
35-2885 (GP) and 35-2892 (AP).
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he involved in a mixed negotiability-unfair labor practice dist Me. In this regard,
H) be noted is the Report and Recommendations on the amendment of Execu-
tive Order 11491 at Page 43 which states:
"Issues as to whether a proposal advanced during negotiations, either at the
local or national level, is not negotiable, because the agency bead has determined
by appropriate authority outside the agency may be referred to the Federal
Labor Relations Council for decision."
Therefore, such disputes should not automaticallr be channeled to the FLRC
without the Assistant Secretary rendering a decision after full consideration of
all the disputed facts in the unfair labor practice proceeding.
In addition, we should like to offer certain contrients and recommendations
with respect to section 1.9(d) of the Order. We believe this provision should be
revised to the effect that unfair labor practice complaints may be pursued re-
gardless of existing agency appeal procedures, such as adverse actions, equal
employment opportunity discrimination, etc.
'Phis position is consistent with our strong opyosition, as set forth in our
covering letter accompnnying this memorandum, the FLRC's statement of De-
cember 18, 1973 that legislation would be required for such matters.
Neither the Federal Labor Relations Council nor tny other Federal agency has
as yet afforded express statutory or case law authority which provides exclusively
for one agency appeals procedure regarding a specific management action. We
have found no such authority.'
:Further, it has been our experience that, in Many' cases, proffered evidence of
unfair labor practices as an issue to support alleg.ttions of wrongful personnel
actions, such as removals, will not even be considered in agency appeals
procedures.
Directly on point is the October 18, 1973 FLRC O. 73A-27 ruling in United
States Postal 8ervice, iferwyn .Post, Office, illinois, A/SLMR No. 272, where the
Council sustained the Assistant Secretary's decision overturning of the Adminis-
trative Law Jndge's findings that agency management and the agency bearing
officer, with subsequent approval by the hoard of Appeals and Review of the
Post Office Department, prevented the complainant in his removal during "the
established grievance or appeals procedure" from introducing evidence of alleged
discrimination because of union activity. The Council affirmed the Assistant Sec-
retary's conclusion that he lacked jurisdiction uncle:. Section 19(d) of unamended
KO. 11491 and considered it none of his business "whether such procedures have
been applied in a fair and regular manner Or whether they have provided an ade-
quate remedy."
With the above frustration in mind, we looked 7iorwarcl to the Assistant Sec-
retary affording some sort of equitable relief through Executive Order 11616,
which amended Section 19 (d ) and reads in pertinenl part as follows:
"Issues which can properly be raised under an appeals procedure may not be
raised under this section."
To no great surprise, it now appears that any hoped-for relief is not forth-
owning, The Assistant Secretary held in Departmertt of Defense, National Guard
Rureau. Texas Air National Guard, A/SLAIR No. 336, decided January 8, 1974,
"that there is no evidence that Burgamy [the appellant] was prevented from
raising under the appeals procedure the issue wlether he was denied reenlist-
ment for discriminatory or other improper reasons under the Order," again con-
trary to the findings of unfair labor pactiees by the Administative Law Judge.
Among other frustrating points of decision in this case, it should be noted that
the hearing record revealed no evidence, proffered or otherwise, to support the
agency's pleaded defense which nakedly contended such an issue could be raised--
although any support for this contention appeared to be clearly within the singu-
lar knowledge of the agency. Thus, it appears the Assistant Secretary has cre-
ated, in effee7, an irrebuttable presumption that an unfair labor practice issue
ean be raised in any agency appeals procedure without an agency offering any
simporting evidence whatsoever for its pleaded defense and, as such, the related
unfair labor practice complaint would be dismissed for lack of jurisdiction.
Accordingly, we recommend that the first sen-ence of Section 19(eT) he de-
leted and the second sentence be revised as follows
',Somewhat remotely related, FIxemitive Order 109S7 provides authority for advisory
arbitration in neotiated aareements for adverse actions, such as removals. However. Civil
Service Commission appeals procedure is available after a final decision by the activity
or agency heat.
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"Issues which can be raised under a grievance [or appeals] procedure may, in
the discretion of the aggrieved party, be raised under that procedure or the
complaint procedure under this section, but not under both procedures."
Of course, in line with our discussion above, if there exists express statutory
or case law authority which provides exclusively for an agency appeals proce-
dure with respect to a specific management action, i.e., the law prohibits any
other procedure, Section 19(d) should be amended to that effect and such au-
thority be cited for reference by all interested parties.
Finally, regardless of whether our recommendation is accepted, we strongly
believe that any favorable change in Section 19(d) would still be inadequate
where administrative or arbitrated remedies based upon protected union activi-
ties result without an expressed right for effective judicial review and enforce-
ment.
2. Should the Order be amended to provide for the investigation and prosecu-
tion of unfair labor practices by the Assistant Secretary of Labor?
We urge that the Order be amended to provide that the Assistant Secretary of
Labor should have the authority and responsibility to investigate and prevent
unfair labor practices.
Although tile Federal Labor Relations Program has developed a staff within
the Assistant Secretary's Office with the expertise necessary for proper protec-
tion and enforcement of rights guaranteed under Executive Order 11491, the
program nevertheless requires that individual employees or their representatives
bear the entire burden of pursuing their own unfair labor practice cases. This
means that individual employees can be pitted daily against the resources and
expertise of agencies such as the Department of Defense. Even the presence of
a union does not necessarily correct this obvious imbalance because, under the
present system, local unions must often depend entirely upon shop stewards or
local officers unschooled in litigation or labor relations.
No reason or justification exists for making the effectuation of rights guaran-
teed by Executive Order 11491 depend upon the financial resources of an indi-
vidual employee or his chosen representative. The purpose of the Federal Labor
Relations Program as stated in the Preamble to Executive Order 11491 is to
serve the public interest, not the interest of agency management, or the interest
of unionism, or even the interest of public employees. It is time to reject the
hypothesis that the wishes of agency management ,are automatically in the
public interest.
It is also time to realize that no justification exists for expending Federal
resources to support agency labor relations and training (both directly through
individual agency funding and indirectly by providing programs such as the,
Civil Service Commission's Office of Labor-Management Relations) without also
acknowledging the government's responsibility to support individual employee.
rights under the Executive Order.
The question is not how best to help Federal employees or unions or man-
agement. The question is how best to create a workable labor relations system
in the public interest. The answer requires a balanced, even-handed approach.
As long as all parties agree that the Federal Labor Relations System of the
future must take cognizance of the public interest, it is only natural that the
public have an impartial prosecutor with the resources and expertise necessary
to protect the rights of all parties.
Accordingly, it is recommended that the Assistant Secretary perform investiga-
tory and prosecutory functions as has long been the practice of the NLRB's
counsel in the private sector.
TX. IMPACT OF THE EXPIRATION or AN AGREEMENT ON DUES WITHHOLDING
1.. Should a uniform policy be established that so long as the .parties are nego-
tiating or seeking to negotiate a renewal agreement dues deduction .should
continue until (1) a new contract is negotiated, (2) the union loses repre-
sentation rights, or (3) procedures for the resolution of a bargaining impasse
have been exhausted.
We recommend that dues deduction allotments be authorized immediately upon
'inning of exclusive recognition election and that there should be no charge
fi'Fr this service to the union.
1Regarding agreements which are being negotiated, the Order should provide
tht.lt all provisions of the old agreement including dues withholding and the ne-
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gotiated grievance and arbitration procedure automatically continue in effect
until a successor contract is executed. In particular, agencies should not be al-
lowed to use dues withholding to discourage access to the Impasse Panel or the
FLItli because of the time factor involved in using these third-party procedures.
Also, antomatic extension of an agreemeat and dues withholding agreement
maintenance should apply during any challenge to the status of an incumbent
union until an Assistant Secretary determination of the representation question
is finalized.
X. STATUS OF NEGOTIATED AGREEMENTS DURING, REORGANIZATION
I. What special policies, if any, should be established concerning the status of
exclusive bargaining units (together with existirg negotiated agreements and
dues withholding arrangements) which are affected by agency reorganizations?
Time Order should contain provisions for maintaining exclusive units intact
with accompanying negotiated agreements and dues withholding arrangements
idler agency reorganizations until the Assistant secretary of Labor and the
'LRC (if so appealed) have rendered a filial decision as to any change.
This has special validity since recent Assistant Secretary decisions have begun
to establish criteria for dealing with agency reorganizations. (See A/SLAIR No.
282.)
XL OFFICIAL TIME
I. Should the policy regarding the use of official time (section 20) be eleminated,
modified or retained?
Since collective bargaining is as ranch in the imerest of management and of
the public as it is in the interest of employees, employees and their representa-
tives should be entitled to the same amount of official time for training, con-
sultation and ether labor-management related matters as is granted management
representatives assigned functions under the ExEcutive Order.
Mr. IIENDEllsoN. It's my pleasure to recognize Mr. Webber, the nresi-
dent of the American Federation of Government Employees. Mr.
Webber, you may want to introduce your associates and proceed.
STATEMENT OF CLYDE WEBBER, PRESIDENT, AMERICAN FEDERA-
TION OF GOVERNMENT EMPLOYEES; ACCOMPANIED BY LOU
PELLERZI, CHIEF COUNSEL; AND DENNIS GARRISON, EXECUTIVE
VICE PRESIDENT
Mr. WEBBER. Thank you very much, ME. Chairman.
This is our general counsel, Mr. Pellerzi ; and our executive vice
president, Mr. Dennis Garrison.
The American Federation of Government Employees represents
over 650,000 Federal employees in exclusive recognition units or-
ganized under Executive Order 11491. We look forward with a great
sense of urgency to the day when all of our exclusive recognition units
will exist under Federal statute. In our view, that day should come
sometime this year and we are most grateful to you, Mr. Chairman,
for these hearings which give us the prospect that our hopes will be
fulfilled.
At the very outset, I should like to stress the civic. and legal phi-
losophy with which we appear before you today. Its principles and
concepts permeate every particular proposal or provision which we,
will be endorsing during this hearing.
Just as the Congress speaks on behalf of fill citizens in matters go,
erning the scope of political and economic life as a whole, so lalvor
unions should be able to bargain for workers they represent in a
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oanized unit on the entire scope of all matters affecting the working
conditions of employees in that workplace.
Moreover, just as the elected Congressmen in their exclusive dis-
tricts represent all their constituents and not merely those who voted
for them, labor unions in their exclusive units rightfully do represent
all employees in that unit and not merely those who voted for them.
This system of representative democratic government has evolved
a code of tested procedures which protect the .best interests of all.
At the heart of these procedures is the rule that the elected representa-
tive has both the right and the obligation to represent all members
within the recognized unit and may not rightfully refuse to protect
the interests of any.
But there is also a corollary to this rule. Just as the elected repre-
sentative has both rights and obligations to the members of the orga-
nized unit, so do the members of that unit also have rights and duties
vis-a-vis the elected representative. While they have the right to claim
full. service and protection and representation?they also have the duty
to pay for that service, just as much as everyone else does.
The foregoing reflects our views on representative democracy. We
believe it conforms historically to the American experience.
But there is one other distinctive element in our legal philosophy,
as a union of Federal employees, which is also fundamental. This re-
lates to our union's attitude as to the nature of Federal employment as
distinguished from private employment.
As you know, we are members of the AFL?CIO and subscribe com-
pletely to its philosophy regarding the rights of all workers to orga-
nize and choose by majority vote an exclusive representatiVe in mat-
ters affecting them at the working place. There is no difference whatso-
ever between us and the AFL?CIO on this matter.
We hold that the application of those rights of labor to the Federal
workplace must take into account the statutory environment in which.
Federal employees work. Although Federal employeesare all workers,.
the legal structures within which they carry out their duties are sig,.
nificantly different from those in which private enterprise employees.
function.
We not only state these principles?we live by them. As you know,
we have opposed the recommendations of the Select Committee on
Committees to abolish the House Post Office and Civil Service Com-
mittee and to merge it into the Labor Committee. The entire AFL?
CIO joined us in this opposition. The principles underlying our oppo-
sition to the report of the select committee are precisely the same prin-
ciples with which we present our recommendations today. There is
meaningful difference between the Federal workplace and the work-
place of private enterprise. But both workplaces must give full scope
to the workers and their unions to. exercise their rights as representa-
tive democratic organizations.
You have already heard the AFL?CIO spokesman present the,
rationale of our preference among the bills, before you today. I beg'
your indulgence in not repeating or .elaborating on those arguments.'
Instead, I should like to use this occasion to review with you the un-
fortunate interpretation of data in reports concerning the current
status of relations in the Federal service which appears inthe State:
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meat made to you by the spokesman for the administration, Chairman
Hampton of the Civil Service Commission, who is. also the chairman
of the Federal Labor Relations Council established under Executive
Order 11491.
Though Chairman Hampton's theses may be summarized in various
ways, in any case he praises the present, labor-management system in
the Federal service as better for employees than the collective bar-
gaining in the private sector; and ho intimates strongly the collapse
of the, entire Federal. personnel structure, if not the whole government
itself, if the present Executive Order 11491 were replaced by a proper
labor-management, statute, whether that be modeled on H.R. 13 or
H.R. 10700. Specifically, his theses may be -reduced to two main argu-
ments, as follows:
First, there is no need for legislation because the existing system is
more than adequate. since it includes, in addition to the alleged "bi-
lateralisms" in Exemtive Order 11491, such other "bilateralisms" as
union participation in the. Federal Pay Cuencil, the Prevailing Rate
Advisory Committee, the Health Benefits and Life Insurance Ad-
visory Committee and the Federal Safety Advisory Council.
Second?and here I quote verbatim:
The proposals for change embodied in legislation before you now would usher
in wide and potentially disruptive departures from established systems in Fed-
oral personnel administration?beginning with the repeal of the existing Exec-
utive order program for labor-management relations, but not stopping there.
Both of these sets of arguments reflect lic.rd and fast management
biases and_ a complete disregard for the veluminous compilation of
data submitted with the testimony. Frankly, I am underwhelmed by
the vast array of paper and the illogical conclusions based on un-
supported opinions.
And, as an example of the opinions, this Attachment 10, I couldn't
put that out of our office, a report on a summary of the comparisons of
retirement, fife insurance benefits and other major benefit programs,
-December 1973--there's not a single number rn there in comparison of
one of these 25 companies or cities with the other.
As to the first, let me observe that all of the alleged "bilateralisms,"
excepting Executive Order 11491, are statutory. You will, recall the
dire predictions of doom delivered to you from the same sources when
Congress was considering the passage of Public Law 92-392 establish-
ing a statutory wage system for the blue collar employees, which up to
that time had been authorized by Presidential directive and not by
statute.
It's noteworthy that Mr. Hampton now cites the wage grade statute
itself as an example of "bilateralism." On page 12 of his summary
statement Chairman Hampton says of the National Wage Policy Com-
mittee the following, and I quote verbatim:
The Committee makeup was modified slightly and established by law as the
Prevailing Rate Advisory Committee, which continues to meet weekly to work
out systems and problems on the wage-board pay program.
You will note, he says the "make-up was :modified slightly and es-
tablished by law"?this is the kind of "slight" change established in
law which we a,re seeking here today. That "slight change" in the wage
grade system produced a chairman made neutral by law; made the
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representation of management and labor genuinely "bilateral" by
express statutory equality of numbers, and further provided a statu-
tory base for the system with prescribed authority not subject to
change without congressional action. You will recall, during the wage
grade hearings before your committee, in our testimony we com-
plained about the repeated 6 to 5 votes favoring management when the
CSC official acting as Chairman had to cast the deciding vote on im-
portant issues involving employee rights or pay.
Instead of a management-dominated Federal Labor Relations
Council, we want that "slight change" in labor-management relations.
We want a neutral authority such as that proposed in H.R. 13 as well
as H.R. 10700. And we want it "established in law." Since by Mr.
Hampton's own admission, the change in the wage grade system
brought about by Public Law 92-392 was "slight," we are perplexed
by his opposition now to a similar "slight" change in labor-manage-
ment relations.
But let us look a little closer at those other highly praised "bilater-
alisms" Chairman Hampton cited and see whether anybody at all has
been violating, or trying to violate, the spirit and even the letter of the
laws on which they are founded.
Let us take for example, the Federal Pay Comparability Act of
1970, one of die "bilateralisms" Chairman Hampton cited. That law
has been in existence for 3 fiscal years?the administration has had the
opportunity during those three fiscal years to act on three separate
occasions under that law. What happened?
In 1971, the President, on the advice of 0Ml3, sought to postpone
for a half year the 6.5-percent pay increase rightfully due Federal
employees on January 1, 1972. Fortunately, the Congress placed a
rider on the extension of the Economic Stabilization Act resulting in a
5.5-percent pay increase on January 1, 1972, for Federal employees. On
the next occasion, the President's legal and political advisers again re-
fused to obey the law. Instead, they recommended that the President
defer the 5.14-percent pay increase due by law on October 1, 1972, until
January 1, 1973. The issue was taken to the courts which ruled that the
President had acted illegally. The executive branch is now laboriously
going through its past records at great costs to pay this 5.14 percent
retroactively for the period between October 1, 1972 and January 1,
1973. Finally, just last year, the President's legal and political advisers
tried to delay the 4.8-percent pay increase, itself based on a dubious
and new so-called dual pay line, from October 1 to December 1, 1973.
On this occasion, the Senate in an overwhelming 72-16 vote, refused to
concur.
The record of the present administration regarding compliance with
the terms of the statutes setting Federal pay is the worst in American
history and this is cited as good "bilateralism."
It is true there is union participation in the Federal life insurance
and health benefits programs through union representation on statu-
torily required advisory committees. I would suggest, Mr. Chairman,
that you request copies of the agendas and minutes of such meetings
for the past few years and learn for yourself how sincere and exten-
sive the spirit of ?bilateralism" has been manifested in terms of sub-
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234
stantive proposals which bare been changed in any way whatsoever
as a result of Advisory Committee consultatiors.
The situation is somewhat different, in regard to the Federal Safety
Advisory Committee. Assistant Secretary of Labor, John Stender,
Las extended every opportunity for union re L)resentatives to partici-
pate in the formulation of policy and implementing regulations; how-
ever, when proposals reached the stratospheric levels of Federal policy
determination as represented by OMB, many of the safety protective
?iiieasures were, in I he vernacular of today, "deep-sixed."
C 1 AIMING CREDIT FOR PEOPLES WORK-11 EA LT Fl RENEE ITS l'Rl /GRAM AND
ORGANIZATION
Chairman Hampton builds his theses of how good the Federal
labor-management system is by giving it, cre lit for everything Fed-
eral employees have?for fringe benefi Is Such as the health and hos-
pitalization program, and believe it, or not, even for union member-
ship! As to the Federal health benefits prow' am, you will recall how
strongly the executive branch resisted raising the Federal Govern-
ment's contribution, even though most large private employers now
pay the entire cost of health and hospitalization insurance as well as
life insurance.
As for union membership, I should like to slate as clearly as possible
that we, the unions, take full and. exclusive credit for organizing Fed-
eral employees against, obstacles raised against us which do not exist
in private enterprise. We face delays, hindrances, difficulties from the
very first to -e..h.e very last moment. For ?example, unlike in private
enterprise, Federal employee unions must always submit to secret
ballot elections, at great cost in money and time, even when it is obvi-
ous that the majority of, and sometimes. all, employees belong to a
union. That's at the beginning--and from there on out, as shown in
the appendix on Executive Order 11401 to the AFL?CIO statement
before you, obstacle after obstacle confronts us.
Let us look at some figures: Chairman Hampton said, and I quote
verbatim, "As. of 6 months ago, nearly 1,100,00 employees, or 56 per-
cent of the entire nonpostal Federal work force'had been organized
nto exclusive bargaining units. That's just about double the propor-
tion in private industry. . . ."
Of course, Chairman Hampton is playing games with statistics. The
Federal Government is the largest employer n the United States and
he should be comparing unionization statist cs with large industrial
employers. What, do those statistics show, compared to the 56 percent
for Federal employees? They are as follows Basic steel, 05 percent;
motor vehicles, 95 percent.; pulp and paper, 04 percent ; petroleum re-
fining, 92 percent; motor vehicle parts, 90 percent; meat packing, 84
percent; electricity and gas, 83 percent; coal mining, 79 percent.;
cigarette Manufacturing, 72 percent.
As you can see Federal employees are not organized even as much as
employees in cigarette manufacturing, let alone as those in basic steel,
motor vehicles, or petroleum refining. We, have far, far to go and we,
need legislation to help us attain our proper role.
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THE ISSUE OF MANAGEMENT RIGHTS
Chairman Hampton has suggested that enactment of any of the
bills before you would disrupt the Federal personnel system. Most of
all, I believe, he objects to H.R. 13, which is silent on "management
rights." We believe that 11.11. 13 appropriately omits reference to
"management rights" because these are nothing more. than the corpus
of the U.S. Code, none of which could be abrogated, derogated, or bar-
gained away, no matter how weak or poor or misguided management
was.
Here again, I want to ask you who in the past has been the less re-
spectful of "management rights"? After all., who is the real "manager,"
the real board of directors of the Federal Establishment? It is Con-
gress. And who recently has been disregarding repeatedly the will of
Congress?
Let us review the history of the Office of Economic Opportunity. It
was 0E0 management which proclaimed the impoundment of funds;
it was 0E0 management which decided to violate the civil service
laws; and yet when this happened, it was not the Civil Service Com-
mission or the Office of Management and Budget or the White House
which ordered the Director of 0E0 to exercise his legal "management
rights." It was the Federal court, on petition of our union and others,
which ordered "management" to exercise "management rights" in
obedience to the, will of the board of directors of our country, the
Congress of the -United States.
MANAGEMENT RIGHTS AS SEEN BY THE EXECUTIVE ORDER AND AS
ADMINISTERED BY THE FEDERAL LABOR RELATIONS COUNCIL
What could be more revealing of the poor climate for collective
bargaining in the Federal Government than the Executive order ex-
clusion or a long list of so-called management rights from the test
of collective bargaining?
I think this illuminates the whole landscape with an eerie light.
First, we are asked to believe that there is practically a 100-percent
correlation between these so-called management rights and the public
interest. We know better?every member of this committee knows
bettor?and the administration spokesmen know better. Now, I can
understand any manager not wanting to give up some authority and
privileges he's gotten used to--but let's analyze the issue objectively,
not just allow a protective cloak labeled "public interest" to be thrown
over everything that management itself says is its 'right."
Second, anyone who has ever drafted a law or regulation can take
one look at the section covering these management rights in the Ex-
ecutive order and tell you one simple thing: No one sweated trying to
find language which protected management rights of unquestioned
validity but at the same time giving equal protection to the public
interest or employee rights in collective bargaining. Quite the con-
trary. The Executive order reflects a one-sided reflex reaction on the
part of managers to whom the best collective bargaining is the least
collective bargaining.
Third, as a result of this very broad statement of management
rights in the Executive order, any Federal manager is handed a
34-619-74--16
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weapon not available to labor?which many managers will use and
have used?to limit the scope of collective bargaining or even to
frustrate bargaining entirely until it just can't be dignified as such
by an honest man. What member of this committee, pating himself
in the shoes of an agency head, doubts that he .ould, if he wished, find
a way to relate almost any significant proposal put forward by a labor
'mien to one of these management rights or to an agency regulation?
and then 4: lecla re it nonnegotiable ?
Couldn't almost anything be somehow related to: the agency "mis-
sion," the agency "organization," the "grades of positions," "internal
security" of the agency, the right to "direct employees," the right to
determine the "methods, means, and personnel" by which agency
operations are to be conducted, and the right to hire, promote, trans-
fer, assign, retain, suspend, demote, discharge, "ake disciplinary action,
a ad so forth, with respect to employees ?
And, if you will then consider the exclusion of Commission, OMB,
GSA, and agency regulations from bargaining, as well as the entire
area of pay and fringe benefits, I think you will see why this whole-
sale exclusion of so-called management rights by Executive order is,
indeed, a sore point with us. As long as it exists, let no honest man
say we do or can have equality in bargaining in the Federal
Government.
Fourth, even the mere mechanics of the system are stacked in favor
of management. Management can raise the question of management
rights and nun-negotiability whenever it suits their bargaining tactics.
This can be at the outset of the bargaining?hr after expensive time-
consuming negotiations?or even as late as impasse procedures. This
action ends negotiations and precludes consideration of the real issues
involved. It negates bargaining.
Lastly, our actual experience under the order has shown that one
of the most fundamentally damaging aspects of the existing labor-
management -program is, indeed, this very concept of an arbitrary,
unilaterally established separate category of non-negotiable items.
.\ nd, also, the unique time-consuming adjitdie atory process for deter-
mining them.
To sum up this point: We maintain that this whole process operates
to establish management control of the bargaining process and to
preclude real collective bargaining. We object to the entire concept
of arbitrary, predetermined, non-negotiable "management rights." We.
object equally to the separate adjudical3ory procedures, for determin-
ing which specific items are negotiable and which are non-negotiable.
Therefore, ecause these procedures are unnecessary to protect the
public interest, because they invite and encourage management abuse,
and because they prevent freedom of contract and equality at the
bargaining table, we would propose an alternative.
Ti INT ALTERNATIVE IS COLLECTIVE BARGAINING ESTABLISIIED IN LAW
Let the parties discuss these issues. Let both be charged with pro-
tecting the public interest as well as the interests of management and
employees. Let all the relevant factors be considered on each issue
under appropriate legislative guidelines. Let the issue, if it can't be
resolved by the parties, go to a trained administrative law judge or an
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arbitrator?who should also be charged with protecting the general
public interest as he weighs all the factors involved, again under legis-
lative guidelines. Only thus, we believe, will the impact of any pro-
posal on management, on employees, and on the public be fairly and
thoroughly considered and balanced.
How much bilateralism is there really in the Executive order sys-
tem ? Aside from the recitation of so-called management rights there
are other elements in the Executive order which violate the proclaimed
aspiration to bilateralism.
A clear symbol of this is the structure of the Federal Labor Rela-
tions Council itself. It consists of three top executive managers, none
of them identified with labor unions representing federal employees.
The Chairman of the Federal Labor Relations Council is concurrently
Chairman of the Civil Service Commission. I must say for Chairman
Hampton that, at least, he attended the public hearings of the Council
when we provided testimony before it. I note that neither Mr. Roy
Ash, the Director of the Office of Management and Budget, nor Secre-
tary of Labor Peter J. Brennan attended any of the meetings of the
Council. Though their alternates, Mr. David Taylor of OMB and Mr.
Richard F. Schubert of the Labor Department are fine gentlemen,
we are nevertheless left with the distinct impression that both the
Director of OMB and the Secretary of Labor themselves have little
i
personal time for, or official interest n, the rights or the problems of
Federal employee unions. This is indeed a strange form of bilateral-
ism not much better than sharecropping where the worker only sees
his bilateral partner when he turns half his proceeds over to the land-
lord.
If there is to be genuine bilateralism, the ultimate central authority
must be composed of a neutral body whose members shall not engage
in any other business, vocation, or employment while functioning on
that authority. We find such a central authority in both 11.11. 13 and
H.R. 10700. Certainly Federal employees are entitled to a legally
established neutral body to supervise their labor-management rela-
tions.
Who prefers Executive orders and why? There is no one today
who will challenge the statement that the "participation of employees
of the executive branch, through labor organizations of their own
choosing, in the formulation and implementation of personnel policies
and practices and matters affecting working conditions, is in the
public interest."
Certainly, President Nixon does not challenge that; he issued it in
Executive Order 11491; Chairman Hampton is bound by it and does
not challenge it. It appears in your bill, and I know of no person in a
responsible position in the executive branch who challenges it.
Therefore, the main difference between you, Mr. Chairman, and Mr.
Hampton on this point is that you believe there should be legislation
on labor-management relations in the Federal service and Chairman
Hampton does not. We agree with you.
What is the root cause of this difference between Chairman Hamp-
ton, on the one hand, and you and us on the other? May I offer a
suggestion?
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I believe that the root cause is that this administration generally
prefers to execute its programs on some otaer basis than statute.
Whenever possible, this administration seeks to actin terms of official
eommand, a procedure, by which an incumbent officerholder seeks to
ovoid accountability by resorting to manageritl techniques and execu-
tive powers not readily subject to congressienal or judicial review.
We see this growing i esort to command in all sectors of the executive
branch today; it accounts, among other things, for the great stress
on "contracting out" of Federal jobs. In this 'vay, the rule of men by
official command is gradually substituted for the rule of institutional,
low based on statute.
The exercise of executive command not subject to congressional or
luridieial review did not begin, of con t.se, -?y-th this administration.
But it has grown continuously over the period of the last 30 years,
particularly because of the involvement of the -L-Tnited States in a series
of ,L)Teat and long wars where the President, as Commander-in-Chief,
often had to act on the basis of personal eommand usually in situations
of military exigency outside the United States.
This situation of eecuting, governing, or directing by command.
tolerable in mi litary situations abroad, h As unfortunately become a had
habit of life with important segments of the executive branch even in
isle dornestic.civilian n ffairs.
I believe that this preference for command over law is at the root
of the preference for an Executive order--please note the word
-order"?over statute.
This attitudo, of command also accounts, I believe, for the exclusion
o r long lists of Federal agencies and employees allegedly because of
national security or fiscal -egrity considerations. Supposedly, these
somehow represent, a conflict of interest with the rights of labor.
Our union believes in national security; wc believe in fiscal integ-
rity ; but we also believe in the rights of American citizens and of the
rights and duties of Federal civilian employees. And, quite frankly,
we prefer statutes over commands, precisely because we believe there
is a. distinction between a civilian and a military service, between a
government of laws and one, of men.
In short, where we are designing a system of "bilateralism" for la-
q)r-management relations, it seems elementasy under our theory of
government that the authority for the system should stem from the
Congress, through enacted law, rather than 1.),, based upon the exten-
!-ion of limited privileges by one of the parties, which can be altered
or wit hdrawn at its will.
it is our firm view therefore that, in a civilian service, there is no
need whatsoever to exclude any agency as a whole from coverage of a
iabor-managlquent statute solely on the grounds that that agency is in-
volved in national security affairs. The defenso departments certainly
a In not excluded?no other agency should be either.
We hold the, view that the only civilian employees who should be
excluded are those employees who hold positions where the public
interest in national security manifestly conflicts with, and supersedes,
the other public interest that all Federal employees be accorded "par-
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ticipation * * through labor organizations of their own choosing,
in the formulation and implementation of personnel policies and prac-
tices and matters affecting working conditions." his "participation"
is also a matter of "public interest" and should be safeguarded unless it
clearly conflicts with the "public interest" in national security or fiscal
integrity.
And we think that it should not be the agency which decides this
issue for itself but that the central :Federal labor relations au-
thority should render the decision on the basis of standards developed
in an objective manner. The agencies desiring to "exclude" employees
should petition the authority; t'but the authority should have the final
decision on the basis of clearly defined standards applicable to all
situations.
I have raised the subject of "exclusion" of agencies and employees
in this section of my statement because I believe "exclusion" is the
fundamental philosophy of the Executive order system. First of all,
the Executive order system excludes all Federal employees from the
protections of statutory law. Second, within the executive branch,
the provisions of the Executive Order 11491 are drafted in such a
way as to exclude labor unions from the protections of an impartial
administrative body under whose supervision both the actions of
management and labor would be judged. Such a neutral body is
envisioned, in the Federal Labor Relations Authority contained in
both H.R. 13 and 11.11. 10700. How can one expect, such a body of
top management executives as the Federal Labor Relations Council
provided by Executive Order 11491 to want to render, let alone
expedite, judgments finding subordinate managerial levels violating
the rights of labor? Obviously, these decisions would be delayed or
rendered in an equivocal manner.
SUMMARY AND CONCLUSION
Consistent with the civilian character of the Federal civil service,
our union requests the introduction of the rule of law through the
enactment of a labor-management statute to replace the present system
of Executive order, based on command.
We believe that the statements presented to you by the AFL?CIO,
its metal trades department and its Government employees council
and by us clearly show the inadequacy of the present system and the
urgent need for legislation. To achieve this legislation, we pledge
you our fullest cooperation.
In conclusion, I wish to thank you again for the great service this
subcommittee. is rendering the American public and all Federal em-
ployees in holding these public hearings which we know will result
in legislation replacing the rule of command by the rule of law in the
area of labor-management in the Federal service.
Thank you.
Mr. IIENnErtsarc. Thank you very much, Mr. Webber.
Our next witness is Mr. Paul J. Burnsky, president of the metal
trades department of the AFL?CIO. It's my pleasure to welcome you
this morning and you may introduce anyone with you.
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STATEMENT OF PAUL J. BURNSKY, PRESIDENT, METAL TRADES
DEPARTMENT, AFL-CIO ACCOMPANIED :3Y PAUL R. HUTCHINGS,
RESEARCH DIRECTOR
Mr. BrewsKy. Thank you, Mr. Chairman.
Appearing with me for and on behalf of the metal trades depart-
ment, is its research director, Paul R. Hatchings.
Mr. Chairmen and members of the .committee, my name is Paul J.
Iltirnsky, and I am president of the rectal trades department of the.
A.FL-0 0 with offi,os in the AJ L- Building, S15 16th Street
NW., Washington, D.C.
Our department is composed of 23 affiliated national and interna-
tional unions of tin, AFL-CIO representing the workers of their
many trades and ca flings both in private industry and in Federal
establish meIrts.
At the outset may extend to the chairman and members of the com-
mittee our thanks ancl appreciation for their concern with the need
Lo obtain a strong statutory base upon which we can work to build
strong, consistent, and equitable Federal labor-management relations
which will not be subject to the vicissitudes of change with which we
are constantly faced under an Executive order base.
We heartily join in endorsing the testimony being given to the com-
mittee today by the AFL-CTO and by its Government Employees
Council and the American Federation of Gov .rnment Employees. The
four appearances which we are making here this morning reflect the
collective thinking and the endorsement of not only the AFL-CIO
but its major affiliates in the Federal service and who have the re-
sponsibility to effectively represent such membership.
Our metal trades department was chartered in 1908 by the Ameri-
can Federation of Labor at the behest of the metalworking affiliates
(ff. the AFL to provide them with a vehicle through which they could
coordinate their activities at all levels in all areas of their mutual
concern and primarily in their joint organizational, collective bargain-
111,2", and legisative, activities.
Our department from its inception has been concerned with the rep-
resentation of Federal workers, parCcularly in the metalworking
and related crafts and trades. It is interesting to note that in 1908. the
year of our chartering, we chartered our first metal trades council at
the request of the affiliated unions of the craffs and trades with mem-
hens employed at the, Brooklyn Naval Shipyard. This was followed by
the chartering of similar metal trades councils in each, of the other
naval shipyards on both coasts and in Hawaii.
At the, present time, metal trades councils chartered by our depart-
ment hold exclusive bargaining rights for th trades and labor units
in all naval shipyards?except only Boston, lithiCh is presently being
closed down?and in various other naval actiYities, including weapon
centers, public works Centers, supply centers and other naval activi-
ties, as well as in various installations of the -Army, NASA, Coast
tbiard, the Bureau of Standards, the Natior aT Institutes of Health
and other Federal agency establishments. Our Federal employees
metal trades councils presently hold bargaining rights for more than
50 exclusive bargaining units, all of which a7e covered by collective
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241
bargaining agreements which embrace approximately 60,000 blue-
collar workers. -
Presently our metal trades councils represent more than 95 percent
of all eligible blue-collar workers in all naval shipyards. We have a
request pending before the Department of Navy that it grant to our
department a multiple bargaining unit embracing our barouining
units in all naval shipyards and which would allow for unified and
simplified collective bargaining negotiations covering all of the work-
ers we represent in all such yards.
Our department is unique among the chartered departments of the
AFL?CTO in that it is the only department that holds and exercises
collective bargaining rights and responsibilities for collective bargain-
ing units organized by local metal trades councils and their affiliated
local unions both in numerous private industries and in the Federal
sector. Our department and its chartered councils presently are re-
sponsible for upward to 600,000 members of affiliated local unions
employed in establishments or activities where our department or its
chartered metal trades councils hold bargaining rights. We have
always been in the forefront of the long and vigorous effort which our
trade union movement has exerted to help Federal workers gain the
right to organize in unions of their Own choosing and to bargain collec-
tively to the fullest possible extent, as enjoyed by their fellow workers
employed in private industry.
Long prior to the issuance by President Kennedy of his Executive
Order 10988 on January 17, 1962, our department, in conjunction with
numerous AFL?CIO unions interested in gaining true collective bar-
gaining for Federal workers, urged the passage of appropriate legisla-
tion to achieve this end. We also played a major role in the task force
hearings held in major cities throughout the country in 1961 prepara-
tory to the issuance of Executive Order 10988.
During the first 5 years under President Kennedy's order sub-
stantial gains were made. That order constituted a fine first step toward
extendine? to Federal workers their rights to union representation and
collective" bargaining.
Under President Johnson, task force hearings were held in 1967
on changes and improvements needed and desired; and, as we all know,
such recommendations never officially saw the light of day.
Over a year and a half later, President Nixon issued his Executive
Order 11491 on October 29, 1969, replacing Executive Order 10988.
This order appeared to meet some of the major shortcomings of its
predecessor, but it also took away from Federal workers some of the
benefits they enjoyed under the original Kennedy order.
This new Executive order got into gear very slowly. It took many
months for the many required applicable regulations to be drafted
and finalized. As a result, very little in actual experience had been
accumulated under this order when hearings were held in 1970 before
the Federal Labor Relations Council on changes in it. The APL?CIO,
our department and many AFL?CIO affiliates presented testimony
on major problem areas already experienced or reasonably anticipated.
Amendments to this new Executive order were issued on August
26, 1971, almost before the agencies and unions had fully assimilated
the numerous regulations issued to effectuate the original Executive
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Order 11491. While President. Nixon's original order had brought hope
for some overall improvements in Federal labor relations regulations,
the amendments issued in August 1971, rathei7 than providing improve-
ments, reflected substantial losses to Federal workers and their labor
organizations in their efforts to achieve meaningful collective
bargaining.
? Despite .the impressive statistical totals presented by the Civil Serv-
ice Commission Chairman as to the allegedly broadened scope of col-
lective bargaining: under the amended order, the cold fact is that the
amended order and the interpretations made thereto and thereunder
by the various agencies, the Assistant Secretary of Labor and the
Federal Labor Relations Council'. have sharp1:7 restricted collective bar-
gaining areas previously achieved in agreements negotiated since the
inception of the original Kennedy order. Many of these areas are now
ruled nonnegotiable as exclusive management rights.
Another major loss was the right to allow an arbitrator to deter-
mine the arbitrability of an issue before him in grievance arbitration
eases and the requirement that a:rbitrability and grievability questions
must now go for decisions to the Assistant Secretary of Labor before
arbitration can be invoked. This, coupled with the restriction of arbi-
trable issues ITO the interpretation or a.pplica:iion of agreement provi-
sions, represents a real loss of one of the few areas where Federal
workers had under the Kennedy order developed an effective means to
obtain equitable application and interpretation of agency policies and
regulations.
We are pleased to join our AFL?CIO cnlleagues here today in
heartily endorsing not only the principle Of a Federal Labor Relations
Act but spechically endorsing the adoption of H.R. 13, which we be-
lieve is best designed to meet the needs of the Federal employees and
his labor organizations and which we believe will assure the broadest
range of meaningful collective bargaining and the achievement of a
substantial reduction in the restrictions and the frustrations which
have been intrinsic in the Executive order type of operation. More
than a decade of operating experience extending over more than 50
collective bargaining agreements negotiated and renegotiated numer-
ous times during that, period has brought us to a strong advocacy of
the compelling need for a meaning,ful statutory base to be placed under
the whole Federal collective bargaining relationship.
As a current example of the complete lack of comprehension of nor-
mal labor-management relations proprieties even under the present
Executive order. I wish to point out to the committee our experience 6
weeks ago at tie Norfolk Naval Shipyard. The Civil Service Commis-
sion, through a team of its representatives, submitted questionnaires
to our union stewards and to a sample of the workers which we repre-
sent at that yard. Various of the questions asked were clearly of such
a nature as to invade the relationship between the stewards and their
unions and also the relationship between the represented workers and
their unions.
As the munbers of the committee will be interested, I have repro-
duced copies of the letter of protest which I received from our local
council president concerning this matter and which has attached to it
the, letter of notifiontion he received from the shipyard and the full
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text of the questionnaire distributed to union stewards and the ques-
tionnaire distributed to a sample of the work force in our bargaining
unit.
A reading of these questionnaires will quickly disclose to anyone
with a working familiarity with either the National Labor Relations
Act or the provisions of the present Executive order that numerous of
these questions are improper, are loaded, and are designed to supply
the Government's principal personnel agency for its use with the de-
tails of the relationships that may exist between individual stewards
and their unions and between individual represented workers and
their unions.
We understand that most of the shop stewards refused to answer
these questionnaires presented to them by the Commission's represent-
ative. May I also point out that our local leadership at Norfolk was
at no time advised of the nature of the questions that were to be asked.
At the request of our Tidewater Virginia Federal Employees Metal
Trades Council, which holds bargaining rights for this large group of
blue-collar workers and which has struggled to maintain these rights
over a period of several years when raids by a nonaffiliated labor or-
ganization was taking place' we brought this matter to the attention of
the Chairman of the Civil Service Commission. Upon failure to_ ob-
tain a satisfactory solution and guarantee against further invasion Of
the rights protected by section 1of the Executive order, we have now
filed unfair labor practice charges against the Commission charging
it with violating section 19(a) (1), (5), (6) of the Executive order and
have also filed similar charges against the Norfolk Naval Shipyard.
for providing the Commission with the opportunity to come on the
premises and have access to the stewards and workers to whom such
improper questionnaires were submitted.
For the Civil Service Commission, whose Chairman also serves by
Presidential designation as Chairman of the Federal Labor Relations
Council?the agency responsible for the administration of the Execu-
tive order and in making final rulings on cases arising under it?to
engage in such improper questioning of union stewards and repre-
sented workers is yet another persuasive argument in support of the
need for an effective Federal collective bargaining statute.
Our department and its affiliated unions have devoted more than a
decade of effort in striving with its Federal employees metal trades
councils to make collective bargaining a meaningful functioning re-
ality under the various Executive orders and the myriad of regula-
tions issued in connection with the same. We are now fully and com-
pletely convinced that fairness and equity can only be achieved
through the establishment of a strong statutory base under which Fed-
eral workers and their unions can develop meaningful, forward-look-
ing, true collective bargaining which is not subject to the vicissitudes of
Executive orders and administrative fiat in its application. Prompt ac-
tion in providing a Strong statutory base for the benefit of the entire
Federal Establishment, its work force, the unions which the workers
choose to represent them must be achieved without further delay.
We indeed appreciate having this opportunity to appear briefly
and urge the enactment of this comprehensive statutory approach. We
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will be happy to furnish your committee whatever additional informa-
tion or materials it may desire.
Thank you.
Mr. Mulder3on. Thank yon very much, Mr. Burnsky.
IThe letter submitted by Mr. Burnsky regarding the Norfolk Naval
Shipyard follows. The questionnaire referred to is retained in the files
of the subcommittee.]
EDEW ATER VIEGIN IA FEDERAT EMPLOYEES
METAL TRADES COUNCIL,
NORFOLK NAVAL SHIPYARD,
Portsmouth, 17a., April 22, 1974.
MT. PAUL .1. BUR N SKY,
President, Metal Trades Department,
Washington, D.C.
DEAn Papsinervr BURN KY : The Civil Service Commission was in the Shipyard
Inst week as the enclosed letter explains. The CSC met with the Conference Com-
mittee and myself to explain what they would be doing. At no time were we ad-
vised of the nature of the questions to be asked, specifically the union stewards.
I am enclosing copies of the questionnaires used. When I was advised by one
of our stewards of the contents regarding union internal affairs I notified the
I ll'PTE Local Union President and together with Metal Trades Stewards the
111`PTE Stewards advised the CSC representative Um; no steward would partici-
pate by answering the questions.
I believe we were mislead in agreeing to stewards answering questions on
Mb/yr-management relations. I can find no basis .for the CSC asking how many
training sessions the union has conducted nor what per cent the national union
proceeds support. etc. I believe shipyard management and OCNIM were aware of
the questions to 'oe asked and quite frankly it is none of their business.
I urge you to protest to the Chairman of the C unmission this attempt to
gather internal union information for their computer. The results of these in-
vestigations will be to effect 'some change in the ED. and attempting to elhni-
nate the support for legislation on the labor fmanagement relations. -
Sincerely,
S. I. WHITEHEAD,
President.
Mr. S. L. WHITEHEAD,
Chairman, Tidewater Virginia Federal Employees .711(ltal Trades Council, PEPS
Unit Conference Committee, Portsmouth, Va.
DEAR Mn. WHITEHEAD : The United States Civil Service Commission under its
charter contained in Section 25 of Executive Order 11491, as amended, is pres-
ently conducing a research project regarding labor management relations in the
Federal Government. The Department of Navy recorimended two naval activi-
ties for participation in the study, the Norfolk Naval .$1aipyard being one of them.
As part of the project study a CSC ream, composed of Mr. Dan Sobrio of the
Washington office, Mr. Leon Wallace of the Washirgton office, and Mr. John
Kearney of the Philadelphia office, will be on board tie entire week Of April 15,
1974.
Mr. Sobrio, team loader, plans to meet with each union president or confer-
ence committee Chairman at the outset of his visit. During the meeting he will
personally explain to you the nature and purpose of the study.
JO14EPFI E. WILKINSON,
Director of Industrial Relations.
Mr. HENDERSON. Our next and last witness i3 Mr. ,John A. McCart,
the operations director of the Government Employes Council of the
A FL-CIO.
DEPARTMENT OF THE NAVY,
NORFO LK NAVAL SHIPYARD,
Portsmouth, Va., April 9, 1974.
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I'd like to take just a moment to welcome Mr. McCart, even though
that's not necessary because he's been before us so many times in the
past and has always been most helpful to the subcommittee and this
committee. I have waited until this moment to mention for the record
and comment on the earlier remarks with regard to the very effective
work that all of you and the AFL-CIO have done with regard to the
Bolling Committee's recommendation because I know that Mr. McCart
spent a great deal of his time coordinating the position of all of you
in working with me and the other members of the committee; and suf-
fice it to say, Mr. McCart, that I appreciate and recognize the very
important role that you played in this. I believe that speaking not
only for myself but for the overwhelming majority of the members
of the full committee as well as Mr. Dulski, the efforts of all of you
should be as gratifying to you as it is to us. We believe we have ac-
complished a great deal toward saving the Post Office and Civil Serv-
ice jurisdiction for the benefit of the employees and the American
public in the proper role of the House of Representatives.
So it's my pleasure to welcome you this morning.
STATEMENT OF JOHN A. McCART, OPERATIONS DIRECTOR,
GOVERNMENT EMPLOYES COUNCIL
Mr. McCAnr. Thank you, Mr. Chairman, for your very generous
comments. You may be assured that the work of our organization and.
I'm sure the others on this particular matter will continue.
I'd like first, Mr. Chairman, to introduce the gentleman who is
sating with me. Tie is Mr. George Knaly, who is the chairman of our
council and is the director of government operations for the Inter-
national Brotherhood of Electrical Workers. .
Mr. HEicoFiasox. We are glad to have you with us, sir.
Mr. MCCART. As you know, it's customary for me not to read
statements verbatim. Particularly in view of the testimony you have
received thus far it would be appropriate if I refer to some of the
highlights because understandably
Mr. ITENDEnsoN. Your entire statement will be printed in the record
and you may proceed any way that you like, sir.
[The statement follows
STATEMENT OF JOIIN A. MCCART, OPERATIONS DIRECTOR, GOVERNMENT EMPLOYES
COUNCIL, AFL?CIO
Mr. Chairman and members of the subcommittee, the Government Employes
Council and its 30 AFL?CIO unions representing more than 1 million wage grade,
classified, and postal employes desires to endorse as a matter of highest priority
II.R. 13, one of several bills under consideration at this hearing. We support the
views presented by the AFL?CIO. All of the pending measures propose a statutory
base for the present executive order system of collective bargaining in Federal
agencies.
We are grateful to you and your colleagues on the Subcommittee for arranging
this series of hearings on legislative proposals, which are vitally important to
the success of the Federal Government's program of collective bargaining for its
employes.
Other witnesses will describe in detail the deficiencies of the present system
of labor relations and collective bargaining in Federal service. The sum total
of all the testimony will demonstrate clearly that the existing mechanisms for
establishing mutually beneficial labor relations through negotiations fall in non
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246
postal agencies far short of the expectations envialoned when the program was
inaugurated in 1062.
ADM INI8TRA TION
From its inception the system has.. been administttred by high ranking manage-
ment officials.
Ender the present program, three organizations participate in its administrn-
tion?the Federal Labor Relations Council, the Department of Labor, and the
Federal Service Impasses Panel. The very existence of three separate bodies
charged with executing, different functions in the system indicates that the Fed-
eral Government has hi effect a piecemeal, i1Isparate approach to resolving labor
relations problems in the agencies. ?
General mte?sight and policy direction of the .tystem are exercised by the
FLRC. The Chairman cf the Civil Service Commission, the Director of the. Office
of Management, and Budget, and the Secretary of .7,abor constitute the Connell.
Other responsibilities, including representation proceedings and allegations
of unfair labor practices, are executed by the ,Department of Labor.
Clearly, the officials designated to administer.these functions occupy high level
Positions in the Executive Branch.
The third body involved in the administration at the program is the Federal
Service impasses Panel Unlike the other two entities, the mentbers and staff of
the FSIP are recognized mediators and arbitrators. Its function is to resolve
disputes arising from the failure of unions and agencies to achieve agreement
during collective bargaining.
Among these three ot?ganizations, there are cert un overlaps in jurisdiction.
A fourth agency plays an important function in the system. Although not a
part of the formal structure, the General Accounting Office influences the course
of collective bargaining. Its ability to overturn decisions of arbitrators on
grievances, and its responses to agency requests for opinions about issues in col-
lective bargaining and personnel policy matters can affect the functioning of the
negotiation process.
Thus, there are two basic deficiencies in the exisPng structures. The responsi-
bilities of the FLRC and Department of Labor are executed by managerial
officials of the Executive Branch. And the thrett bodies have interlocking
responsibilities.
hi leveling these criticisms, we cast no aspersions on the integrity of the
individual officials involved.
SCOPE OF RARGA 1 NINO
One of the matters addressed consistently by the unions associated with the
GEC is the limitation on subjects available for bar mining. Two examples will
suffice to illustrate the deficiency in the current program.
In 1070. Congress established a job evaluation and pay review task force to
examine the methods of grading jobs under the Classification Act and to report
its findings to the President for transmission to Congress. Two years later, that
group completed its work. Throughout the IS months of its examination, the
GEC in conjunction with the AFL?CIO insisted that any revision or refinement
of the system now in effect include an opportunity for strong employe mirtic-
illation in the plan with some form of negotiations and arbitration of individual
job evaluntion complaints through the bargained gritvance procedure. The only
recommendation of the task force on which the Civil Service Commission decided
to proceed was to test use of the point factor ranking method. Action by the
Commission on that test is the next step in the process. No mention has been
amide of the application of collective bargaining to this classification system.
Adverse action is another subject, which we belifve should be available for
arbitration. Here the Commission has announced to this Subcommittee its com-
mitment to the use of an impartial third party to resolve disciplinary action
issues. But no positive steps have been taken to convert the commitment to
reality.
These two areas of personnel policy alone illustrate the need for expanding
the limitations on collective bargaining which appear now in Executive Order
11401.
UNION SECURITY
One of the fundamental differences between HiT. 10700 and H.R. 13 involves
the subject of union security. The first of these :Nib bars negotiation between
unions and management in Federal agencies on this subject. The second requires
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establishment of a union shop when requested by a union possessing exclusive
recognition or a representation fee.
In the absence of any type of union security in the present system there exists
an innate discouragement of union membership. Moreover, erosion of union
membership in existing units is likely to occur. We make these assertions be-
cause at some point the Federal employee who is not a union member in an
exclusive unit will become conscious that he can continue to accrue the benefits
attained in the negotiated agreement, regardless of whether he continues to
maintain membership. Over a period of years, this process could lead easily to a
petition for decertification of the exclusive recognition status. In such cases, the
stated intent of both H.R. 13 and H.R. 10700 to foster a system of collective
bargaining in Federal service would be imperiled.
The resentment of union members against fellow workers who benefit from a
negotiated agreement, but refuse to support the union in any way is certainly
justified. It is contrary to our tradition to expect enjoyment of benefits without
sharing the cost.
Stability of union membership in the bargaining unit is important to man-
agers, as well as unions, because it promotes a sound labor management rela-
tionship. By dealing with a unified voice of the employees through their elected
union officials, managers can promote understanding of policies and communicate
more effectively with the employees they supervise.
But the concept of union security is more fundamental than these considera-
tions. Those who advocate the "right to work" principle found in Section 7108(c)
of II.R. 10700 insist that each worker has an inviolate right not to be compelled
to join or support a union organization against his will.
There is, however, another side to this issue. In our democratic society, few,
if any, rights are absolute. The "right to work" is no more absolute than the right
to freedom of speech. About that guarantee in our Constitution, Justice Oliver
Wendell Holmes observed that freedom of speech does not permit an individual
to shout "fire !" in a crowded theater in the absence of a conflagration.
Put another way, the rights of one individual must be viewed in relationship
to the rights of others. Workers in bargaining units have a right to desire
security for their union. Other employees who do not share that view have a
social obligation to participate with their fellow workers in the responsibility
of sustaining the organization which produces their benefits.
Where union security arrangements are in force, they become a condition of
employment. The prospective employee should consider this arrangement just
as he would vacations, pensions, promotions, before deciding whether is it de-
sirable to apply for a job with a particular employer.
For these reasons, we believe sound public policy dictates that any legislation
approved by Congress on Federal collective bargaining contain union security
provisions.
COVERAGE
Turning now to employee and agency coverage of the proposed law, there are
several agencies whose present system of union management relations should
not be disturbed. In each instance, unions and employers have established long
standing systems of collective bargaining, which have proved quite satisfactory
to both parties. These activities have established a broad base of understanding
and a cordial atmosphere, which have permitted unions and agencies to develop
bargained agreements meeting the needs of both workers and management while
leaving undisturbed the Government functions. Any bill proposed by the Subcom-
mittee should not impair these operations. Some examples of such relationships
are the Tennessee Valley Authority, Bonneville Power Administration and others.
Where current bargaining practices surpass permissible limits under Executive
Order 11491 or the pending bills, the current relationships should be retained.
This purpose can be accomplished by incorporating in the bill Section 24(1)
of Executive Order 11491. Postal Service labor relations are governed, of course,
by the Postal Reorganization Act of 1970 and should remain so.
With the Panama Canal Zone Company/Government, the situation is quite the
reverse. Employes and their unions in that enterprise do not possess collective
bargaining rights.
Under both Executive Orders 10988 and 11491, heads of agencies are em-
powered to exclude from the system activities located outside the United States.
Consistent with this authority, the Department of Army has decided that collec-
tive bargaining will not be applied in the Zone. Unions there possess "formal
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recognition," and volubtary payroll withholding of dues. This, of course, does not
entitle them to negotiate written agreements as is done in the continental United
States.
No doubt members of the Subcommittee will reed! there has been a history of
labor relations FA the Canal Zone spanning almost i half century. Employes rep-
resented by unions there are quite proud of the contribution they have made to
the construction and operation of this world waterway over many decades. On
the other hand, they feel isolated in labor relaticns matters because they are
viewed as incapable of conducting collective bargaining on the same basis as
their counterparts in the fifty states.
In the past year thet.e have been several instances in which labor unrest has
come to the surface. An overall reassessment of the labor relations program Was
begun last August during the labor dispute with the pilots, and was intensified
in March, 1974-, according to a recent Defense Department communication. At
the moment, though, we see no prospect of introducing collective bargaining into
the personnel system by Department action. Even if that occurs, it is the con-
sidered judgment of the Council that the existing executive order and any
statute enacted on the subject should apply to the Panama Canal Zone Company/
Government.
MANAGEMENT lUGHTS
From the ineeption of organized labor relations in our country, management
rights has been the subject of considerable controversy.
Traditionally, managers have tended to resist any encroachment of their pre-
rogatives by union insistence on making their decisions a part of the bilateral
bargaining process.
Professer Harold W. Davey in "Contemporary Collective Bargaining" (1972)
offered a rather perceptive analysis of the union point of view:
"American unions do not wish the responsibility of running businesses.
Union leadership in most cases lacks the interest and the knowledge to per-
form the full range of managerial functions needed for successful conduct of
a business enterprise. Furthermore, the rank-i rid-file union members have
expressed little interest in having their leadership participating in the man-
agerial function. In short, American unions wart management to continue to
manage. They insist only on bargaining with management over any policies
that, in th,3ir view, directly affect the economic well-being and on-the-job
conditions of the employees whom they represent," (P. 103.)
The problem with the management rights features of the present system is
that they inhibit genuine bargaining. Agency officiah: are tempted to revert to the
language in Sections 11(a) (b) and 12(a) (b) to insist that a proposal offered by
a union for bargaining is not negotiable because :t infringes on management
prerogatives.
Labor relations is a dynamic method of arriving al: agreement on wages, hours,
and working conditions through negotiations. Jt uould be difficult, indeed, to
predict twenty-live years ago, the subjects which are bargainable today.
The fact that current private industry contractE spell out policies and pro-
cedures governing separations, recalls, transfers, pre motions, and discipline does
not indicate an erosion of necessary management authority. Our tendency to
want to negotiate about more and more subjects aa years pass reflects the ex-
panding desires of employes in the social and economic climate in our nation. It
does not connote a union intent to usurp managerial decision making.
In the absence of collective bargaining for many years, Federal workers found
it necessary to look to Congress to enact the statates providing many of the
benefits and working conditions which are found in collective bargaining agree-
ments in the private sphere. By the same token, these laws outline with con-
siderable clarity the rights of Federal agency officals to manage their public
enterprises. This situation supplies a built in series of management rights which
will continue in effect until rescinded by Congress. Thus, there need be no fear
that unions in Federal service will assume management functions to the detri-
Ment of the public interest.
CONCLUSION
Prior to 1962?the year in which President John F. Kennedy issued the first
(lirective on Federal service collective bargaining?one state had enacted a
statute on this right. Today. 30 states have such lows, ranging from the right
of public employees to strike under certain conditicns to a simple requirement
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that state agencies confer with representatives of employe organizations in
developing personnel policies. This total does not include state laws governing
labor relations for teachers, firefighters, and police.
We believe the existence of the original and successor Presidential directives
on labor relations in Federal agencies has contributed to a growing awareness
on the parts of states, counties and municipalities of the need for enacting legis-
lation in this field.
Yet, the Federal Government has no law controlling the course of collective
bargaining for its employes in non postal agencies.
Finally, Mr. Chairman, for more than four decades this Nation has pursued
a policy enunciated in law of recognizing the value of collective bargaining as
a contributing factor to stable economic and social relations in our society. But
there exists no comparable statute applying this fundamental principle to the
millions of workers who labor in Federal agencies.
The vehicle for correcting the situation?H.R. 13?is before you. Its enactment
will have the salutary effect of restoring confidence to Federal employes that
their government has made a solid commitment to the development of sound labor
relations. We recommend that you approve I.R. 13 as the first order of Sub-
committee business.
Mr. HENDERSON. You may continue.
Mr. MCCART. Understandably, some of the material in our state-
ment is repetitive.
If you turn to page 3, Mr. Chairman, on the subjeet of scope of
bargaining, I think it would be well to just embellish what has already
been presented here on that subject with two illustrations.
You will recall that some 4 years ago Congress authorized a 2-year
study of the classification systems in Federal service. Over the course
of 18 months a committee of the AFL?CIO met on numerous occasions.
with the task force that undertook that study. There was one simple
theme that we presented to the task force on many occasions and that
was the necessity for employee and union participation in any system
they finally recommended.
Fortunately or unfortunately, the work of that task force has been
largely lost. The only surviving element of it is a job ranking factor
evaluation program that the Civil Service Commission apparently
intends to put into effect either later this year or early next. To date
we have seen not one reference to the question of collective bargaining
in this very vital area of employee personnel practices.
The other matter you're familiar with as well. That's the question
of adverse actions which was the subject of a hearing earlier this year
by your subcommittee. During recent testimony the Chairman of the
Civil Service Commission made a commitment to third-party impar-
tial decisionmakinff in the adverse action process, but we haven't seen
anything surface to date. You will recall this commitment was made
as long as 9 months ago to this subcommittee.
Here again, we must emphasize the necessity for expansion of the
scope of bargaining so the parties will be able to reach agreements on
matters of vital importance to employees.
On the question of union security, those who espouse the concept of
right-to-work feel that each worker has an inviolate right not to be
compelled to join a union or to pay dues to a union. As you well know,
Mr. Chairman, in our democracy there are few, if any, absolute rights.
You will recall that in a case involving a theater here in Washington,
Justice Oliver Wendell Holmes spoke to this point when he said that
the right of -free speech does not extend to an individual who shouts
"Fire" in a crowded theater, if there is no fire.
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So the rights we enjoy as individual American citizens have to bee-
judged against the rights of other people. On the question of union
security we have the rights of groups of workers who desire to have
their union and their benefits protected through union security ar-
rangements c,gaitist the rights of individual3 who do not. We feel in
this case that the rights of union ;security should prevail.
As a matter of fact, all of us operate daily ,inder conditions that are
imposed upon us by majority action, and there's no better example of
this than the Congress itself.
With respect to coverage, Mr. Chairman, tie council wants to point
to the reverse side of the coin flat has been presented already, which
is the necess-ty for protecting those collective bargaining arrange-
ments that have been traditioml in some agencies even prior to the
issuance of any Executive orders. The reverie side is exemplified by
the Panama Canal Co. Government which, of course, is excluded from
Coverage. under 11.R 10700. There has been a long history of trade
unionism in tne Panama, Canal dating back aHmost to the construction
of the waterway
The succession of Executive orders has permitted heads of agencies
to exclude from coverage individuals who are employed overseas. The
Department of the, Army, with equal consistency, has excluded the
workers in the Panama Canal Co. Government. They have now a
system of formal recognition, a carryover from the original Kennedy
Executive order, and they have voluntary pay roil withholding of dues,
lint, they cannot bargain.
There have been labor difficulties in the Canal Zone, particularly in
the last few years. As a result of that, the Defense Department has
advised our unions that it is addressing itself -:o the necessity for shor-
ing up its labor relations program dating back to August of last year,
and they have, intensified this activity from March of this year on.
We are confident, however, that whatever steps are taken to improve
the, labor relations situation, coverage under the existing Executive
order and coverage under the proposed bills will not be advocated by
the executive branch and the Department of Defense and Department
of Army.
We believe very strongly that the workers in that area of our Fed-
eral Government should be entitled to c,ollecive bargaining and we
recommend to this subcommittee that such a provision be included in
any legislation it proposes.
Zildr.''Chairman, we inove now to the conclusion of our statement. It
is generally recognized that the issuance of Executive Order 10988 by
President Kennedy had a profound effect on the course of labor-man-
agement relations and collective bargaining in the public service gen-
eral ly, partied any at, the State and local levels.
When that order was promulgated there were very, very few States
which had statutes governing collective barotining. Today there are
some 30 States. This does not include the teachers, firefighters, and
police who may have separate statutes. It's ratner ironic that the Fed-
eral Government which stimulated so greatly the whole, collective bar-
gaining process at the State and local level's to-lay finds itself without
a collective bargaining law covering nonpostal Federal workers.
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For more than four decades our country has followed a policy well
engrained in law of espousing the collective bargaining process. Yet
in the executive branch of the Federal Service we have no comparable
statute.
Mr. Chairman, that concludes the thrust of our position. We join our
colleagues, the four organizations at this table, in expressing our ap-
preciation to you for your introduction of legislation, for your deep
interest in this subject, and we very sincerely hope that it will be pos-
sible for you to produce a reasonable bill at a very early date.
Thank you.
Mr. HENDERSON. Thank you very much, Mr. MCCart.
Because of the timeliness, let me comment on your testimony with
regard to the Panama Canal Zone situation. We are aware of the situ-
ation that you commented on. I think it's fair to say that from our
conversations with the Civil Service Commission, they agree that the
problem does need review. I believe the possibility will be afforded us
later this year to take an interest in this matter and in some way to
assist in the resolution of the problems there.
We expect to be working very closelywith the Canal Zone Co. and
the Department of Army and the organizations involved and certainly
very close attention will be given to the question that you pose as to
whether or not they should be included in legislation or otherwise have
the problem resolved. It's certainly one that we are mindful of.
I think it's also fair for me to put on the record at this point,
inasmuch as some may believe that the jurisdiction of our committee
might in some way overlap with that of the House Merchant Marine
and Fishery Committee, who also as you recall was very much under
the gun of the Bolling committee report, to record that the chair-
woman of that committee, Mrs. Sullivan, had conversations with
me with regards to this problem and the members of that committee
are likewise concerned. She has assured me of the fullest cooperation
but has also suggested that in this area the members of our committee
probably have wider experience in the matters of collective bargain-
ing and what kind of statutory provisions or policy decisions ought
to be made. I'm hopeful that we will? be able to tackle that question
promptly.
Before I take the time for questioning, I want to commend all of
you and your organizations for the very excellent presentations that
you made this morning. You have done an excellent job of providing
an over view and supporting the position of what I believe to be the
majority view of the members of the subcommittee on the first point
that legislation is needed and timely. I think once you arrive at that
point, you begin to take off into some very deep waters as to where
you're going from there.
Your statements this morning are clear not only to the need but
the philosophy and the kinds of legislation that you would like to
see Congress enact, and I commend you for that. I think as we begin
to make the major decisions of where we're going that it will be
very helpful and necessary for us to contact you again either by way
of formal appearance or informally through our staffs to get your
views.
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Again, the most difficult thing I see in this legislation is how do
we fit into our attempts to write legislation the best of our philoso-
phies and our objectives in a balanced plan that will give us not only
legislation that will be workable and Manageable and efficient, but
effective for the employees and your organizations that you represent.
I think perhaps one of the most difficult tasks?and it's not one that's
unique to this particular session of Congress, but I found in my 14
years it's always a real issue with regard to legislation, is how do.
we read the political situation and the possiblities of what we can get
enacted into law.
This is the primary responsibility of the members of the committee
and as we go to the House where all cif the other Members will par-
ticipate and take interest in the broad subject.
While I think we're doing a fairly good joo when we come to mak-
ing those political decisions, I also would like to recognize that the
tone and the tenor of your presentation this morning impresses me
that you're going to make our job easier. You're going to recognize
that we have different philosophical views from time to time but as
we demonstrate our determined effort to do a responsible job, we can
compromise, we can work together. As; we really zet into the writing
of the provisions not only do we have to deci de the best kind of lan-
guage, the best kind of legislation, but we also have to back away
and take the more difficult view of how do you put each of these
decisions together in an overall package.
I would hope, however, that as we work on this legislation and
finally report out a bill from the subcommittee and possibly the full
committee, that while the chairman's and the Commission's view
would still be that it's not quite time for it, that the final product
would be such that they would not have to run up red flags to the
point of saying that it's absolutely unworkable, it's not in the interest
of the country and, from what might be interpreted as political action,.
they would feel that they would have to recommend a veto.
I think that this final point of thinking a.iout a veto relates back
to my earlier point of the responsibility that we have in trying to
devise the kir d of legislation in the political situation that we find.
ourselves in. If think this is a part of the goal of the Members of
Congress that have served on this committee.
I think that you have made our job much easier by the presentation
and the testimony you have presented this Morning.
The only other thing I think that cart make the job a little bit easier
would have been for the Chairman of the Civil Service Commission
to announce that they have come to the conclusion that perhaps now
is the time that we all get our heads together.
Let me also say it's been my experience with Chairman Hampton
and, the present Commissioners that, irrespective of their position and.
their position that's now on the record, as we get to making these.
decisions I feel that they will cooperate with rs here on the committee
and I hope that they will?and I have founi my experience in the
past that they will recognize positions that :Tou take and they will,
I'm sure, continue to maintain their position.
Prom the very intense interest and long-tine study that the mem-
bers of the subcommittee have, had in this Subject, we look forward to
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working with all of you in this area to accomplish much for the views
you well expressed this morning with regards to your members, your
organizations, and on behalf of the citizens of our Nation.
With that, I would like to yield to Mr. Clay, who has been with us
this morning and certainly has a very intense interest not only in this
subject but all legislation affecting Federal employees.
Mr. CLAY. Thank you, Mr. Chairman.
I'd like some clarification from Mr. Meiklejohn about some state-
ments that he made in his presentation. On page 3 you say: "The AFL-
CIO and its government employee unions want to see established prin-
ciples and procedures of labor-management relations that will assure
Federal employees basically the same recognition and collective-
bargaining rights that most other employees in the United States
already enjoy."
Then, on page 13, you say: "We believe that the right to strike is
basic to all American workers, public and private alike." But in the
next paragraph you advocate inclusion in agreements of commitments
by the parties to submit issues, including grievances and disputes con-
cerning the interpretation or application of the agreements, to final
and binding arbitration."
And further down you disagree with the provisions of II.R. 9784
extending the right to strike to public employees.
Now just what is the position of the AFL-CIO? Do you believe that
Federal employees should have the right to strike?
Mr. MEIKLEJOIIN. Yes. Our policy position as set forth in the reso-
lution adopted by our 10th constitutional convention last October was
in unequivacable support of the right to strike.
What I tried to indicate here was that we recognize the judgment
of Congress may be different from our judgment in this respect and
that if that turned out to be the case, and I believe this has been con-
sistent with our position in our fields, that a system of voluntary ar-
bitration would not be basically inconsistent with the support of that
right. This is a matter which we feel Congress will have to decide one
way or another.
We would prefer that they decide in favor of the right to strike, but
we recognize that may be a very difficult thing for Congress to accept.
Mr. CLAY. Well, you prefer that we decide on the right to strike,
but you're in disagreement with the strike provision of Congressman
Ford's bill?
Mr. MEIKLEJOIIN. Mostly because we think they won't be very
effective.
Mr. CLAY. How would you recommend that we make them effective?
Mr. MEIKLEJOIIN. We would prefer to see that the right to strike be
dealt with in the same manner it is in the National Labor Relations
Act and that is that the right of the employees through concerted ac-
tion to strike be protected by law.
Mr. CLAY. So, in other words, you would advocate that we take the
strike provision out of Congressman Ford's bill and include it in II.R.
13 with the proviso that there be no limitations on that right to strike?
Mr. MEIKLEJOIIN. I think our position?and I'm speaking for the
AFL-CIO?is that we would prefer to see a right-to-strike provision
basically the same as what we have in the National Labor Relations
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Art. There are qualifications in Congressman Ford's bill on the right
to strike which we think tend to confuse the issue.
Mr. CLAY. Thank you.
Mr. HENDEnsoy. I wonder if the gentleman would yield to me, just
on that point.
CLAv. Be happy to.
Mr. Ilnximusoic. I don't want to take too in iich time, but Mr. Meikle-
john, this is an area that I have some (Him: ty with. If the Congress
provides for binding arbitration, does the ricit, o to strike being written
-
into law but limited to collective bargaining remain a meaningful
rurht?
Mr. Mtn]: LE.T01 i N. 'The right to strike Under those circumstances?
Mr. Il Exiwrisox. Yes.
Mr. Mtmin,roinv. Yes. We think it would still be a meaningful
right.
Mr. hENDERSON. Well, let me follow on this because I envision that
what we did in the postal reorganization was to provide binding arbi-
tration, binding both on the management of ?e postal system and on
the union organizations, and if that's the case, do the workers have a
meaningful night ? You see, we've got a bill bfore our committee that
would give them the right to strike. Ti binding arbitration is in fact
binding and it's effective, will the employee organizations or the em-
ployees have the right to strike?
Mr. MELKLE.TOIIN. I guess what we're praintrily concerned with,
Congressman Henderson, is some procedure which assures equality of
bargaining when the parties get to the bargaining table.
Mr. IlimunisoN. Right.
Mr. MEIKLEJOUN. That is accomplished in the private sector,
basically through the preservation of the right to strike?union recog-
nition and the right to strike. If the equality of the bargaining table
can be achieved in some other fashion, well and good; but it has been
our experience that generally speaking the right is necessary to assure
that equality. As far as the Postal Reorganization Act is concerned,
think that act does not include the right to strike. It does not include,
protection of the right to strike. It does provide another mechanism
which is designed to achieve that equality of bargaining power.
The committee may feel that this is appr opiate in this field and
that it will achieve that equality of bargaining power. That's our
main concern.
Mr. Iinrcimisox. Well, my concern really goes to why the organiza-
tions would so soon come back in the area of the Postal Serviee and say
that they want legislation recognizing the n ght to strike. You have
made the point this morning that Mr. Ford's philosophy has been
clearly enunciated and I know of no one who articualtes better on this
than he does, but as you say, he gives the, right to strike then goes on
in his bill and takes if away.
Where I start from is that there's got to Ix something better in the
public sector than the, right to strike. :If we compare it to the private
sector, the industry sector, we have to recognize that industry and
business always have the right to go out of business. They always have
the right to completely collapse. We have tc start from the premise
with regards to Government service that main gement, ultimately Con-
gress, doesn't have a very good alternative tc providing mail service.
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In other words, it's- a constitutional requirement. So I would think
that from the lono. conversations I've had with Mr. Webber for ex-
ample, he feels as ''I do. We can have meaningful legislation without
getting really hung up at this time over the so-called right to strike.
I flunk lie feels that if we on this committee do a good job of legislat-
ing that he would prefer to see legislation enacted without the mem-
bers of the Committee and Congress getting hung up or fighting over
the right to strike and losing the meaningful legislation that we would
otherwise be able to agree on and devise for the Federal employees.
Now, Mr. Webber, am I fair in so stating?
Mr. WEBBER. I'd say this, that we are very anxious to get legislation
passed which will provide appropriate rights to Federal employees.
We, as a union, subscribe to the principle that the right to strike is an
important part of the overall rights of all workers. However, we be-
lieve that the emotional problems which would come over the right to
strike question has been addressed in: the legislation which was that
endorsed by all the AFL-CIO unions that, represent people in: the
Federal service, and it was a consensus when the bill was introduced
that we would look down the road to first get a solid base for rela-
tions?employee?labor-management relations in the Federal service,
and then let's talk about the right to strike as a single issue.
Mr.111:ExnEnsoN. I thank the gentleman for yielding.
In the political atmosphere that I see at this time, I have to announce
somewhere along the line that you have persuaded me and I thought
wouldn't .vote for a bill that didn't have the right to strike and you'd
be torpedoed and I would be, too.
Mr. CLAY. I'm even more puzzled now as to your position on that,
of the AFL-CIO
Mr. HENBERsox. If the gentleman would yield, let me say when I'm
puzzled I like to keep my colleagues puzzled.
Mr. CLAY. I'm really puzzled now because as I read H.R. 13 you're
talking about involuntary binding arbitration; yet there's no other
feature in this bill for resolving nnpasses, which means that the in-
voluntary binding arbitration then becomes a binding arbitration or
compulsory arbitration.
Now is it the position of the AFL-CIO that you're recommending
to this committee that we impose compulsory binding arbitration on
Federal employees?
Mr. MEJKLEJortN. No. I would say that we're recommending that
the legislation provide that the parties seek voluntarily to include in
their :bargaining agreements agreements which will provide for final
and binding arbitration on matters arising under the agreement.
Mr. CLAY. How do they resolve impasses without submitting to bind-
ing arbitration if they don't have the right to strike?
Mr. 'WEBBER. Negotiation disputes and impasses I believe is title
IX of H.R. 13, and it states that the Federal Mediation and Concilia-
tion Service shall provide services and assistance to agencies and labor
organizations in the resolution of negotiation disputes. When volun-
tary arrangements' including the services of the Federal Mediation
and Conciliation Service fail to resolve a negotiation impasse, either
party may request the Federal Labor Relations Authority to consider
the matter: Provided, that the parties may agree to adopt a procedure
providing for binding arbitration of a negotiation impasse.
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256
I believe, that it's envisioned that there would be fact finding, there
would be all kinds of attempts to achieve resolution of the impasse
through voluntary means before it was referred to the Federal Labor
Relations Authority which would be a three-man committee with no
other job except to supervise and administer this bill to come up with a
solution to this.
Mr. CLAY. I don't quite follow, but accept your explanation.
Mr. WEBBER. Well, there are a number of other paragraphs which go
into the details of it.
The Authority shall promptly investigate and resolve any impasses presented
to it under subsection (b) of this Act. After its services have been invoked, the
Authority or its designee shall assist the parties in arriving at a settlement
through whatever methods and procedures it ma:7 deem to be appropriate. If
the parties do not arrive at settlement through such other means, the Authority
shall, with due dispatch, render its decision in writing on the matters in dispute.
This decision shall be promptly served upon the pirties to the proceedings and
shall be final and binding upon all parties during he term of the agreement.
Mr. PELLERZI. TVs essentially the same as 10700. There are some
technical differences. The impasse resolution procedure is the author-
ity under both bills with the assistance of Federal mediation and
conciliation findings. There are technical differences but the resolution
mechanism is the same as 10700.
Mr. CLAY. On page 10 on Mr. Meiklejohn's testimony you're advo-
cating a separate board for Federal employees. There are two bills
currently pending before the Subcommittee on Education and Labor
of the House that would establish basieally the same rights for public
employees, State, county, and municipal employees, as this bill would
establish for Federal employees. One proposes to place jurisdiction
under NLRA ; the other bill proposes to establish a separate agency
similar to the one advocated in H.R. 13.
What's the. position of the AFL?CIO in regard to those two bills
pending before the Education and Labor Committee?
Mr. Mmiee.rottiv. This problem has been a matter of some disagree-
ment between the several unions in the field Df labor-management re-
lations in State and local government employment. We have not taken
a position on those bills because of that disagreement. We don't ordi-
narily take a position on any matter that our international unions
want to pretty much decide for themselves the position they will take.
Mr. CLAY. Well, in your statement you said----
Mr. MEIKLEJOIIN. We're talking here, of course, about the Federal
Government where, our unions are not in disagreement.
Mr. CLAY. But you say you support the idea of the separate board
for the reasons NLRB is already very broad and the problem of delay
which is already serious in the administration of the present Executive
order program might well be accentuated across the whole scope of the
labor-management field. Do you include State and municipal workers
any differently than you do Federal employee;?
Mr. MEIKLEJOTEN. If we were called upote, Congressman Clay, to
discuss the provisions of legislation relating to local and State gov-
ernment employees, then we would be in a position to decide what
position we would take. Here we are discussing only the matter of
Federal employment. As to this,
there is g. neral agreement among
the unions in. the Federal field that a separate authority or board
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should be established independent of the National Labor Relations
Board.
Mr. CLAY. But that doesn't deal with my question. I think if you
can take the position that a separate board is good for Federal em-
ployees, why is it you cannot take the same position for other public
employees?
Mr. MEIKLE.TOTIN. Because I think we have not discussed this among
ourselves as to whether the organizations in that field wish to take
that position. We try as much as we can to reflect the views of our
membership and our constituent unions; this is our responsibility, as
we see it, as a federation of international unions and if and when we
are advised of a unified position in the State and local field we will
take that position.
Mr. CLAY. Thank you. No further questions? Mr. Chairman.
Mr. HENDERSON. Thank you very much, Mr. Clay.
Mr. Mallary ?
Mr. MALLARY. Thank you very much, Mr. Chairman. I'm sorry that
I was not here for the earlier presentation of testimony. There are two
or three questions that I'm not sure have been fully addressed that I
would like to get into.
The first one is this. Chairman Hampton talked to us about super-
sedure and he expressed concern about the impact of the passage of a
labor-management relations act upon existing statutes that affect cer-
tain present conditions of employment such as classification, veterans
preference, retirement, merit principles and so forth.
Do you have a position with regard to the appropriate termination
or repeal of some of these provisions or could you address yourselves
to the impact of this kind of labor-management relations act upon
some of the present statutory provisions?
Mr. WED13ER. Well, we took a hard look at the bill. I know precisely
what you're speakinc, of; that not all the people in the Federal service,
first, are within units of recognition. Specifically, some of them are ex-
cluded from units of recognition and this goes to the start of the scope
of bargaining. I believe there's a provision in H.R. 13, section 504(C),
which says:
The agency shall not make or apply rules or regulations which restrict the
scope of collective bargaining permitted by this act or which are in conflict with
any agreement negotiated under this act.
Now I know in the discussions that we had when we were working
on this that there was a question as to whether this would repeal other
laws. I think it was the intent of the group that worked on it that the
other laws would not be repealed. The problem is not with the statu-
tory requirements of the law. The problems that we have encountered
in the scope of bargaining are the matters of implementation of laws,
the issuance of extensive regulations which are within the scope of
someone's administrative authority.
Now we took a position in our testimony that the scope of bargain-
ing should not be restricted by these so-called management rights;
that these management rights which are genuine management rights
are rights which are established as a result of legislation passed by
Congress1 and that the artificial or arbitrary management right are
those artificial rights which have been established through regulation
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and T can foresee no problem in negotiating contracts which in the
scope of legislation and statutes which are on the books, and if we are
able at some time in the future if we have a god solid base for labor-
management relations in the future,
service, and Congress chooses to
relinquish action on certain fringe benefits and subject them to nego-
tiation, then it would come within the scope of bargaining.
On the other hand, where there are statutes which provide for such
statements as fringe benefits, such statements as the. number of days
of leave employees will have, such statements as the number of holi-
days that an Employee will receive, such statements as veterans pref-
erence, certainly I believe that we could negotiate appropriate con-
tracts within those parameters.
Coming to things which Mr. McCart talked about earlier, in regard
to the classification problem, we propose a test program in which there
would be union participation and we recommended that they run
a test. under the current legislation, under the Classification Act of
1049.
Now if the acts are the things which we have to work within, I don't
see anything in lIlt. 13 having the intent of simply dispossessing. the
Federal Government of all its personnel laws, but when it comes to
implementing those laws, those matters 'Md.+ are not required by
si :Ante in which administrative discretion is permitted and we hold
recognition at the level in which the discretion can be exercised, we
certainly feel that we should have the opportunity and the right to
bargain on those particular matters.
Mr. MA LI. MIT. But it. would not be unfair lben for me to say that
it- would not be your bitention that there would be bargaining or nego-
tiation on those items which are specifically provided for by
statute--
Mr. AVEniwn. That's correct.
Mr. MALL:ally. And presumably, if it is necessary from a legal point
of view to make it clear, there will be no problem with ',inking that
explicit within the law.
Mr. WI:mut. I would think in the review of this particular section
that we made in the last few days it may have to be redrafted to
precisely express this thought that what we're concerned about is bar-
training on the items which are not prescribed by law.
Mr. Mn 1 KLEJ011 N 'ongressman, 1 think our problem is not so much
the matter of statutes as it is regulations and orders of administrative
officials that have created the, problem as far as the scope of bargain-
ing is concerned. I don't think that we have rcised any questions with
regard to the statutes with respect to veterans rights or other rights
creating preferential status for a particular group, but Chairman
Hampton obviously refers to or relies upon section 1704 of HT. 13
which is a general provision that this act supersedes all previous
sl atutes and executive orders concerning this subject matter. This is a
very general provision and in the face of a specific statute and a
specific area certainly there would be substantial legal question as to
whether a general superseding provision could supersede a provision
establishing specific statutory rights.
Mr. PELLER21. I think you could read that, too, Mr. Midlary, as re-
fitting to the subject matter, which is labor-management relations. So
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there are no existing laws on that subject matter that that provision
would operate against. It would only operate against Executive orders.
I think our position is that we like the scope of negotiations to go up
to the statutes. The statutes are not self-implementing. They have to be
implemented through regulations in almost every instance. Those reg-
ulations have to conform to the statutes and all we're asking by scope
of negotiation in H.R. 13 is to be permitted to sit down with manage-
ment and negotiate the implementing regulations under the statutes.
We're not asking for the repeal of those statutes.
Mr. MEiKLEJOHN. Certainly we are not in favor of any action which
would in any way supersede the provisions of the Civil Rights Act of
1964; for example, as amended by the Civil Rights Enforcement Act;
under his interpretation that could possibly be the case; but we never
envisaged this possibility under this bill.
Mr. '-?MALLARY. Let me pursue one other question. When Chairman
Hampton or other members of the Commission are in here they talk
to us about the so-called neutrality doctrine, which I gather implies
that agency managers theoretically do not; take positions on matters of
labor-management relations. Is my understanding of their under-
standing of the neutrality doctrine correct?
Mr. NicCArtr. It has to be defined, Mr. Mallory. They profess that
management representatives are neutral on the question of employees
making a free choice as to whether they want exclusive recognition or
not. I don't think oven they would accuse their management colleagues
of being neutral beyond that.
Mr. MALLARY. If in fact a labor-management relations act was to be
legislated, would it be your feeling that it would then be appropri-
ate for management spokesmen or managers to have the same rights
of speech as they would under Taft-Hartley?
Mr. WEBBER. Oh, yes.
Mr. MEIKLEJOHN. Yes.
Mr. MALLARY. The answer is yes?
Mr. MEIKLTUOTIN. Yes.
Mr. MALTARY. Thank you, Mr. Chairman.
Mr. ITENDEnsoN, Thank you very much. The staff has prepared sev-
eral questions that I think could improve the record by clarifying some
points that you have made, and I'm going to ask unanimous consent
at this point, because of the time limitation here, that they may submit
those to you for your comments and ask that we may have the right
to include them in the record at the proper point.
Mr. Webber, in your testimony you indicate you feel there's no need
to exclude an agency as a whole from coverage. I'd like to have your
reaction to a procedure that would permit an agency to exclude the
entire agency or any part of the agency being subject to review or
approval by the Federal Labor Relations Authority or, alternately,
have the decision made by the President. This relates to page 18 of
your testimony.
Mr. WEBBER. Did you want us to submit a written reply?
Mr. TIENnnnsoN. Or if you could answer now -
Mr. WEBBER. We have given thought to this and as indicated in the
testimony we propose that procedures be established within the Fed-
eral Labor Relations Authority for addressing questions of exclusion
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260
of an agency or elements of agencies and that these standards be uni-
formly applied on a case-by-case basis. Wo believe that the Federal
Labor Relations Atithority, if it were constituted in a fashion described
in either ILE,. 10700 or in H.R. 13, that the:.:.e would be a neutral body
that it would not be simply a management action or a management
decision; that it's more comfortable and 1es3 of a problem to us to not
have to deal with a. labor union but, rather, there's proper exclusion,
that this proper exclusion be made on the basis of standards that are
uniformly applied within the Federal Government.
Mr. HENnresoN. If we were to agree that an agency should be ex-
cluded, would you like, for the legislation to provide some technique
or device by which part of that excluded agency might be granted
the right to have organizations for their employees? For example, if
the Central Intelligence Agency were exempted, would you like to see
some provision in the legislation where it might be possible for a group
of employees who could be. identified as not being in a sensitive area
that could by any stretch of the imaginatio u affect national security,
that we all know is inherent in that kind of agency, to have the right
to be organized into a unit? Of course, I base this on the premise that
by statute the agency would be excluded.
Mr. WEnime. Well, we, have discussed this, too, at some length, and
this is one thing I would really like to have an opportunity to prepare
a written statement on in regard to such exclusions. We find it very
difficult to---
Mr. Ilniconesoic. I use this brief question to?
Mr. WEnnne. I was going to say, we. have lied some experience with
Executive Order 1106 in which the entire Foreign Service personnel
in the State Department were excluded and an alternate system of
recognition was established with inferior rights for the people in the
State Department with predetermined units of recognition, and a num-
ber of things which are very difficult for us to swallow. If you're going
to have labor-management relationships they should be uniform. We
should have uniform rules. If exclusions are necessary they should be
done on a uniform basis.
Finally, it's very hard for me to feel that labor organizations are
any less patriotic, arty less responsible, any less worldly in considera-
tion of security than some organization which did not happen to be
affiliated with AFG, for example, or does nct happen to be affiliated
with the AFL?CIO ; and this is a, question that we would certainly like
to address ourselves to in writing in responsc to your question.
Mr. HENDERSON. This illustrates the kind of real in-depth considera-
tions that we will all have to pay attention to when we get to the point
of really marking up and deciding on the specifics of the legislation.
I'm glad that you mentioned the State Department and the Foreign
Service employees because, you know, in my bill I did exclude them.
I don't mind stating for the record and for your benefit that the pri-
mary reason I did this was not because I didn't think we could devise
legislation that would be workable in their peculiar constraints under
the, law and their organization, but I simply felt that it would be a
political issue that could bomb AS and maybe we ought to set them
aside and let them go to their own legislative committees and work
this out.
Thank you very much.
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Mr. MEIKLEJOHN. Mr. Chairman, we would want to comment I
think on that question, too, for the AFL?CIO, and we certainly would
be very happy to respond to questions that any of the members of the
committee may have. Also, of course, we would be very happy and
very Flad to work with you in any way that we can be of any assist-
ance in connection with the legislation.
Mr. HENDERSON. Pm sure that all of you not only can be helpful
but that you will be called upon.
At this time the hearing is adjourned.
[Whereupon, at 11:55 a.m., the hearing was adjourned.1
[See p. 497 for additional information furnished by the American
Federation of Government Employees.]
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FEDERAL SERVICE LABOR-MANAGEMENT
LEGISLATION
WEDNESDAY, JUNE 12, 1974
U.S. HOIJSE OF REPRESENTATIVES,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE,
S UBCOMMITTEE ON MANPOWER AND CIVIL SERVICE,
Washington, D .0 .
The subcommittee met at 9 :42 a.m., in room 210, Cannon House
Office Building, Hon. David N. Henderson (chairman of the subcom-
mittee) presiding.
Mr. HENDEnsoN. The subcommittee will come to order.
?The Subcommittee on Manpower and Civil Service is continuing
bearings on legislation to cover labor management relations in the Fed-
eral service.
At the close of 1973, nearly 1.1 million civilian employees of the
executive agencies of the Federal Government were represented by
labor organizations. This has come about during the past 12 years,
largely as a resut of the relationships estabished by Executive orders.
Because of the experience gained by both Federal agency officials and
labor organization representatives during this period and the viability
of those relationships, I now believe it is fitting that legislation be
enacted. In addition, the necessity for these hearings is attested to by
the fact that more than 25 bills on Federal labor relations have been
introduced during the 93d Congress.
Our witnesses today represent two of the larger Federal independ-
ent employee organizations and recently formed coalition of public
employees.
With us are Dr. Nathan Wolkomir, president, National Federation
of Federal Employees Mr. Vincent Connery, president, National
Treasury Employees Union; and Mr. Ralph Flynn, president, Coa-
lition of American Public Employees.
At this time, it is my pleasure to recognize Dr. Wolkomir and his
associate. Dr. Wolkomir, you may introduce your associate and pro-
ceed in your usually fine manner. It is certainly a pleasure to welcome
you before the subcommittee. My span of time as chairman of the
subcommittee is not as lowg as yours as a leader in the employee sec-
tor, but I want the record to show that our working relationship has
been a beneficial one to this committee and Members of Congress and
it is a pleasure to have you with us this morning.
20)
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STATEMENT OF DR. NATHAN IVOLICOMIR, PRESIDENT, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, ACCOMPANIED BY
IRVING GELLER, GENERAL COUNSEL
Dr. Woratomm. Thank you very much, Mr. Chairman, in particular
for the kind words. Maybe I should let my testimony stand as is
based on that introduction. To my right is Irving Geller, NFFE's
general counsel.
We are proud once again to appear before you, Mr. Chairman and
the members of this subcommittee, and once again to share the views
of the National Federation of Federal Employees on management
relations with employee organizations and to review our findings and
recommendations based on day-to-day observation since the promulga-
tion of the. first Executive Order 10988 and based on the many years
of experience prior to and after its issuance in 1962.
On October 3, 1973, Mr. Chairman you introduced H.R. 10700 and
stated that it would provide "a statutory base for labor management
relations covering Federal employees of the executive. branch. It pre-
serves for employees and their labor organizations the rights and bene-
fits now enjoyed." Therein, in actuality, rests the core of the problem.
The NFFE from the outset has favored legislation rather than an
Executive order in this area.. We took this issue to court while other
unions, now joining our stand, proclaimed the first Executive order,
"the Magna Carta for labor management relations." Legislation en-
acted by Congress has the force and prestige of law, not the less
persuasive tactic of hearings before executive branch panels. It is not
subject to whimsical revocation but Call still be amended by holding
fruitful hearings whose various points; of view can be developed.
statutory base provides basic rights and defends the liberties provided.
We sincerely hope that a statutory base will provide, legally a true
Magna Carta for employee management relations in the Federal
sector.
The field of public relations is too complex to be discussed lightly
with a Cursory review that can be slimmed up in a simple proposition.
Permit US the time for a few general remarks. Twelve years of e,xperi-
en ce, in the Federal sector under Executive ,orders and the experience at
the city, county, and state levels has shown that spelling out collective-
bareraining procedures via legislation has tended to lessen the chances
of strikes in the public sector. We are convinced, as mandated by reso-
lutions at, NFFE consecutive National conventions, that a law, backed
up by injunctive power and penalties, will reduce the likelihood of
strikes. Others may argue that the withdrawing of services, individ-
ually or collectively from a public employer is not committing an
illegal act. In truth, we find that a strike in the public sector is in
fact a strike against themselves where public employees are involved.
In addition to the strike issue, the problems of the union or agency
shop, the question of inherent management rights, budget, techno-
logical changes that affect employment conditions, reorganizational
structures, and the selection, promotion, and direction of personnel
mongst others, are further areas of consideration. Wages, hours of
work, fringe benefits, and other conditions of employment are subject
to congressional action in the Federal sector. Thus there exists a
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dichotomy in collective bargaining where the bread and butter issues
are alienated and not really bargainable.
Some meaningful system must be derived to provide the public
employee an opportunity to participate in other areas of concern
involving his daily condition of employment including the adminis-
tration of policy and perhaps policy itself. The gross class distinc-
tions created by Executive orders are other points of consideration.
Is the individual who supervises one other individual, or the super-
visor over a secretarial pool truly management ? We believe that an
inherent conflict of interest, vis-?is the management role, should
be only where there is a true conflict of interest in fact. Elected or
appointed officials, true policymakers, not administrators of policy,
should be considered a part of management. All others should be
members of a unit.
In your opening statement at these hearings made on May 21, 1974,
you stated, Mr. Chairman, that?
Because of the experience gained by both Federal agency officials and labor
organization representatives during this period?that is, 12 years?and the
viability of those relationships, I now believe that it is fitting that legislation
be enacted. This legislation will place the two parties on an equal footing when
dealing with each other both at the negotiating table and when appearing before
third parties envisaged by the bills before us. I believe that it is also of impor-
tance that employees and their representatives have access to the judicial process
when they have exhausted whatever administrative machinery is established.
The rest of your statement is a matter of record. We purposely
extracted that statement because it deals with the heart of the prob-
lem. A statutory base, balanced evenly by the scales of justice for both
management and employees and the right for redress before an impar-
tial third party is desperately needed. You and your staff, as well as
those of the members of the subcommittee, should be commended for
a forthright and objective approach to a very perplexing problem.
The fact that over 25 bills on the subject have been introduced in the
?93d Congress further augments the need for legislation and indicates
widespread interest.
In addition to the summaries of the key legislation proposed, the
subcommittee also provided comparisons of Executive Order 11491 as
amended with key legislation prepared by the Office of Labor Manage-
ment Relations and CSC. These comparisons have provided an excel-
lent source for review and an orderly procedure to pursue an in-depth
coverage of all pertinent issues. It thus becomes obvious that this sub-
committee realized to the fullest degree the complexity of public
employee-management relations, appreciated the self-centered inter-
ests of many involved, and finally provided the forum for expression.
For 2 days, the chairman of the CSC/FLRC eulogized on the his-
tory of labor management relations, the role and authority and need
of a central administrative body, supersedure issues, merit principles,
and other divisionary matters. Our purpose is not to belabor the views
of entrenched management but rest our case on its own merits, using
the comparison pamphlet of May 15, 1974, as our guide. We do compli-
ment the Chairman of CSC for providing much data in his testimony
and enclosures that we intend to use, we hope objectively. Using the
format of the comparison pamphlet of May 15, 1974, by subject as
itemized, we offer the following:
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TITLE
The Good Book teaches us that "a good name is rather to be chosen
than great riches." We thus recommend that the title of the proposed
legislation be changed to Federal Service -Enployee-Management Act
of .1973, with the, proper subchapters noted. With no attempt to be
ludicrous, we have experienced for I yea -s an attempt to emulate
private sector climates in the Federal sector without providing the
eeth, institution, or even the ultimate, weapons so essential to true
collective ba rgaining in the private sector. In the Federal public sector,
Nye deal with approximately 70 departments and agencies, each with
multiple. missions and services to the pub] tc. We are public service
oriented as Federal employees and are presently involved in playing
at the sophistication of the art of collective bargaining by even using
a title synonymous with the National Labor Relations Act as appli-
cable to the private sector.
We thus have, even plagiarized said act by attempting to brine- its
grammatical errors into a public service oriented climate. The pro-
gram even in_ title should imply a truly meaningful program?for/of,'
and by Federal service employees and management. We say this with
due reverence to our sister unions in the private sector.
PR EA NIB tiF,
We heartily concur with the preamble to ILIZ. 10700 (sec. 7101). In
order to be consistent, we, recommend that the. reference in to "labor
organizations" throughout the bill be changed to read "union organ-
izations."
POLICY
We heartily recommend grave consideration be given to suggested
changes to section 7103(b) (2) of H.R. 10700 and related sections of
-MR. 13 and H.R. 9784.
The question of supervisors is of deep concern and has caused grave
problems under a series of executive orders:
The, question of union representation for supervisory or management
officials is one which should, be left to the sole discretion of the union.
There are examples, most notably the Ride and Fitzgerad cases, in
which management officials are, involvtd in disputes with agency man-
Elven tent that have a bearing on the rights of all agency employees. In
these instances, unions should have the option to offer its services to
the employee even though he is not. indeed could not, be a member
of the union because the case may afford an opportunity to take issue
with an agency policy of concern to unit employees.
A recent FLRe decision relating to exclusion of supervisors has
created chaos throughout the Federal Service.. The breadth of the pre-
sent definition is so all-encompassing that agencies are in the process
of forcing large scale exclusions from employees in units all over the
country. Here again the assumption seems to be that union membership
requires fealty to the union and a corresponding disloyalty to the
agency.
The question should be: Is the employee (supervisor) an instru-
ment, of agency policy? Is he in a position where he is required to make
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judgments about the implementation of policy? If not, if he is merely
parceling out assignments, dividing work among employees but is not
in a position to decide how much work or in what manner it will be
performed he should not be excluded from the unit. If he has no
significant role in the labor management relationship, in the collective
bargaining relationship, he should not be excluded.
That a supervisor plays a role in recommending employees for
promotion is no reason for exclusion. In the private sector there are
numerous examples of foremen who play a significant role in hiring.
and firing employees, yet they remain participating members of the
Unless there is a demonstrable conflict of interest, in fact in the two
roles, we believe that all first line supervisors should be permitted to
fully participate in union activity. Such a conflict of interest would
exist if a supervisor found himself in a position to make a judgment
on implementing a, policy of the agency in which he could reasonably
be expected to confront a conflict of divided loyalty because of the
contradictory policies of the union and .management. Only conflict of
interest in fact, where a policymaker is involved, should be considered
as a base for exclusion.
The best example of this is the inherent conflict of interest faced by
the Chairman of the Civil Service Commission in his role as CSC
Chairman. There, independent judgment must be exercised on policy
questions. Thus, because of two institutional responsibilities, divided
loyalty is inevitable.
The key point is that the entire body of law on supervisory exclusion
has created utter chaos. Management has been given a blank check
to declare that a unit member performs supervisory duties and can
therefore be excluded.
Our experience has been that lower level supervisors cling to the
union for support. They do not consider themselves to be management
officials.
Thus, for purposes of legislation, the only time a supervisor should
be excluded is when he has a role that can clearly be defined as mana-
agerial ; that he has a stake in the role performed by the agency, not
if he is merely performing a perfunctory supervisory role such as
keeping attendance records or announcing the lunch hour.
Further, there should not be a presumption that any employee above
a certain grade is a supervisor. The burden should be on the agency
to prove that he is in fact a supervisor either in a unit hearing, or if
the employee is already in an exclusive, through a unit classification
hearing. Pending the outcome of the hearing, the employee should re-
main in the unit.
DEFINITIONS
Agency.?Our recommendation in this area of definition neces-
sitates some explanation.
No document should be written and construed in such a manner as
to raise questions about the Government's willingness to establish a
truly meaningful program. Fundamental changes must be carried out
in order to put the parties on a more equal. footing. Second, a number
of collateral policies, which as presently implemented tend to deni-
grate and undercut the position .of unions, should be altered. Finally,
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our experience indicates certain procedural reforms would be desirable
to increase the effectiveness of the program ind to promote profes-
sional ism.
Section 7103 (a) (3) of H.R. 10700 is entirely to restrictive. The
underlying assumption seems to be that unions are, in some way, a
threat to the security of the. Federal 'Government; or that member-
ship in a union re,quires of the employee a higher degree of loyalty to
It than to the employer. This assumption, we believe, permeates the
present program as a whole, and is the major reason for the failure
of the Executive order to provide a means for employees to be effec-
tively represented.
We do not object to exclusions of certain agencies such as FBI,
TA?alreadv excluded?and possibly DIA. These agencies clearly
perform intelligence work and are concerned with national security.
The problem is with the broad grant of authority to the agency head
to exclude employees who he alone believes should be excluded because
he believes subjectively that it is not consistent with national security
requirements. While there may have been a. time, when for purposes
of a cautionary approach, this grant of arthority was necessary;
nothing has occurred since the implementation of any of the orders to
justify the fear.
Every agency has employees that perform investigative duties and
audits. But in the future the agency should be required to petition the
Authority as proposed in H.R. 110700 if they want to exclude these
employees from participation in union activities, and the agency
should carry the burden of proof in establishing, the reasons for the
exclusion, or carry the burden of proof in unit hearings on the ques-
tion of exclusion. The standard applied should be that only those
employees directly involved in recommending and formulating labor
relations policies should be excluded.
The Authority should assert its function by establishing criteria
which should be applied in these cases?with a strong presumption
that all employees should be permitted to become union members.
The union's purpose is to represent employees on matters relating
to their working conditions. An employee involved in investigative
work has concerns which are no different than those of other Govern-
ment employees; they are concerned about promotion policies, wages,
leave, travel regulations, assignments, and a number of other issues.
To give such employees an opportunity to organize will in no way
threaten the mission of the unit in which they are employed.
The proposed bill should be amended to either eliminate the term
"investigative" or define the term narrowly in an additional sub-
paragraph. Further the, terms "intelligence" and "security work"
should be accurately defined, and the sole judgment of the agency
head should be made reviewable.
In stating this, we do not imply that such exclusions are not justi-
fied in some instances but rather that, as they now read, their applica-
tion can result from a simple desire to avoid having to deal with a
union. As stated, most agencies perform some kind of investigative
work; the question is will such work be compromised by an employee's
membership in a union?
In short, discretion should be taken away from the agency head in
this area. The slipperiness of the term "national security" should be
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obvious to everyone by now. Moreover, we strenuously object to the
implication that unions are somehow disloyal, that is, note the lan-
guage of section 3a (4) of the Executive order and practically retain
in section 7103 of II.R. 10700:
Any bureau . . . which has a primary function of investigation or audit of
the conduct or work of officials or employees of the agency for the purpose of
ensuring the honesty and integrity in ?the discharge of the official duties.
Only national security requirements and considerations should be
of issue. The internal security aspect can be resolved to the Authority.
We heartily recommend the broad definition as recommended in
section 201 of H.R. 13 with the above-mentioned suggestions in mind.
Employee.?Based upon our previous rationale on the definition
of agency, we consider the proposed definitions of 11.R. 13, S.-351,
and H.R. 9784 more appropriate and inclusive.
Supervisor.?As stated under our policy recommendation, we believe
that the definition of a supervisor requires substantial change to
realistically denote significant supervisory responsibilities in the
Federal service. The only instance wherein supervisors should be
excluded from the unit is when supervision is full time ,and includes
significant managerial with the full range of responsibilities which
represent the final authority to affect the conditions of employment
of employees within the supervision of an official. We recommend the
following definition:
Supervisor means an employee spending full time in his position having final
authority or possessing the final recommendatory authority in the interest of
an agency to hire, transfer, suspend, remove, reduce in force, promote, assign,
reward, and discipline employees with responsibility to direct them, make adjust-
ments to their grievances or to be the final recommendatory authority, when in
connection with the foregoing the exercise of authority evidences substantial
supervisory responsibilities and dscretion, thereby excludng first-level super-
visors, unless they possess the full range of supervisory authority.
Guard.?The separation of guards from other employees seems to
be based on the 19th century notion that guards and other employees
are bound to clash. Guards in the Federal sector are not Pinkerton
agents. There is no right to strike which obviously reduces such a
likelihood.
During the entire history of the Executive order, we know of no
incident which has borne out the fears implicit in the separation of
guard organizations from other employees.
The only basis for excluding guards from the larger overall unit
should be the same as those applied to all other unit determinations.
If the history of bargaining is the same and if the community of
interest is the same, they should be included.
Possibly we might permit the guards themselves to elect to be repre-
sented in a separate unit?much as professionals do presently. But our
experience has been that guards wish to be part of the overall unit;
a good example is the case of Tooele.
'..Moreover, the Federal Government has other protective devices, like
the Executive and Federal protective services.
There is no rational basis for setting guards apart from all other
employees. Implicit in the reasoning behind this exclusion is the belief
that unions threaten the security of Government operations. We recog-
nize, though we are not sympathetic, with the complaint of manage-
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nient officials that the unions create headaches; however, this is not
synonymous with a threat to the stru,'tuxe of the. Government.
We lwartily recommend removal of the guard definition and the
removal of guard exclusion in union participation.
Th.ion organizatjon.--We concur with the H.R. 10700 definition of a
union organization as defined in section 7103(a) (4). Dues withhold-
ing, however, should be applicable only to those unions so defined. The
granting of dues withholding to an association of supervisors and man-
agement as provided by sectior 21 ( b) of 1. xecutive Order 11491 is
III the line of facts a clear management bias provision. Unions are re-
quired to go through elaborate and expensive election recognition
procedures, negotiate agreements that are costly and time consutning-,
while on the other hand supervisory and management associations are
handed the "holy grail" based upon an agency subjective whim or
fancy. Unions are subject to the Lobbying Act and appropriate report-
the others are not.
...1gency management.?The conflict of inter est clause as proposed in
the H.R. 13 legislation is more definitive of the management role and
is recommended for use.
Authorify.--We endorse the concept and :wed for a Federal Em-
ployee Relations A iitimrity. One does not have to be expert in the labor-
management scene to appreciate the. implicaCons and need for an in-
stitution that will do something more than just stand by while the
Federal collective-barg,aining program falls n disarray. It is clearly
apparent that the public interest must be protected via the principle of
collective negotiation in areas of pub)ic. Sen ice limited as it is. Al-
though both unions and management render lipservice to true third-
party intervention. Executive, Order 11491 offered the FLRC and the
.FS IP as alternatives but permitted the, reins to be held by the hands of
management. The third party to the holy triumverate offered was
A /SLMR. This falls far short of the authority as defined by practically
all proposed legislation.
On October 1967, at the hearing before the President's Review Com-
inittee on Federal Employee-Management Relations, NFFE proposed
fie establishment of an entirely new boa rd or agency to determine rules
rid regulations and administer the employee-management cooperation
1)4.0gram?composed of three members to be. appointed by the Presi-
dent, confirmed by the Congress, to fISS lint that an independent, 1100-
political. nonpartisan administration wdl resia. Such board or agency
will establish uniform rules and guides for all agencies, which shall be
equally applicable regardless of the mission cf the agency. This will
assure greater uniformity of interpretation and application of rules
and guides. It will assume all of the unit determination and election
functions andreview of violations of the Code af Fair Labor Practices
now vested in the Department of Labor, as well as Dolicymaking and
rulemaking functions to reflect fully thc, spirit and intent of the Gm--
waiment employee-management cooperation Program. In that context
,NFFE endorses sections 7104 and. '7105 of H.R. t0700.
Experience has indicated. however. despite the general assumption
hy the Authority of both the FLRC and A/ SLMR functions, that
itemizing specific definitions of the. terms "grievance," "confidential
employee," "complaint." "supervisor," "professional," et cetera, as pro
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posed by section 7103 of H.R. 10700, may seem explanatory, but could
lead again to the CSC and agency restrictive interpretations.
Despite, Chairman Hampton's success story that the Executive
order program is changing and maturing through an evolutionary
process, we are faced daily with such frustrations as a "lack of feel"
by management bespeaks of interminable delays, inconsequential
agreements, waste of taxpayer money on trivial and negative issues,
unduly restrictive regulations, indiscriminate tagging of employees
.as "supervisors" and/or "professionals," arbitrary conflict-of-interest
,determinations, et cetera.
For the above and many other reasons, NFFE recommends the broad
aspect coverage of definitions as spelled out in IT.R. 13 and S. 351.
'These are more receptive to the rank and file felt needs.
APPLICATION
For reasons previously stated, here again, we recommend the cover-
age aspect as defined by H.R. 13. We do not object to exclusion of
agencies which clearly perform intelligence work concerned with na-
tional security. When an agency's and/or employee's mission is not
national security, but concerns the security, or internal audits, et
cetera of the agency itself, the agency should be required to petition
the Authority for such exclusion and carry the burden of proof in
establishing- the reasons for such exclusion. The standard applied, how-
-ever, should affect only those employees involved and not the popula-
tion. of a complete bureau or division of said agency. The Authority
would thus eventually establish concrete criteria.
ADMINISTRATION
A.,uthority.?We emphasize NFFE's endorsement of sections 7104,
7105, 7117 of H.R. 10700. Although all proposed legislation seems to
agree on the need for such an Authority, grave consideration should be
,given to the arbitrability and grievability questions becoming subject
to the negotiated grievance procedure.
Here again, experience has shown that clarification in the area of
negotiated grievance and arbitration procedures are desperately need-
ed. Just as contract negotiations should include issues covered by
agency regulations, the parties should be permitted to subject disputes
over agency regulations to the. negotiated grievance procedure. The
only exclusion should be statutory appeal rights.
In the initial stages, it would probably be best to give an employee
the right to choose between the agency procedure and the grievance,
procedure. While we believe it is important that the employee even-
tually have a single remedy; for purposes of examining the effective-
ness of the program, a choice should be given, at least until some feed-
back can be _obtained. Numbers as exploited by Chairman Hampton's
report do not provide, a measure of the equity involved.
Subjecting interpretation of agency regulations to decision by arbi-
trators will reduce employee frustration with agency appeals proce-
dure. It would reduce delays, and in general result in more equitable
results. Statistics show that employees win close to 50 percent of cases
handled by arbitrators but the percentage is far lower in cases
handled through the agency grievance procedure. It should be obvious
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that the reason for this is the conflict of interest encountered by the
appeals examiners. The Civil Service Commission recently recognized
the problem in reorganizing the adverse action procedure by providing
for the complete independence of the appeals examiners.
For the reasons stated above' we would. support a proposal to give a
grievant the choice of going to an arbitrator or to the Authority to
determine whether or not a grievance is subject to a negotiated griev-
ance procedure. All present regulations in addition should be incorpo-
rated by reference,? arbitrators within the authority structure can
judge whether they are properly applied---ani then this would require'
negotiations on the charges.
uLp.-With reference to ULI"s, we support a change to present pro-
cedures to provide, for the investigation and prosecution of unfair labor
practices by tine Authority.
In this connection, we would like to call to this committee's attention
the present procedures followed by the DOL area offices in investigating
allegations of unfair labor practices. It is our contention that if the
charging party makes out a prima facie, Case., the charge should go to
hearing. The area offices are conducting 'investigations in a manner
which in effect, requires the charging party to plead and prove its case
before, a hearing is granted. This results in interminable delays which is.
particularly frustrating since the remedies available are prospective
onl V.
The Authority should study the possibiliti,7 of establishing a sum-
mary .proceeding, similar to a temporary: restraining order, when the
charging party makes a substantial showing that an unfair labor prac-
tice has been committed which threatens irreparable injury. Included
in this category would be unilateral cancellation of dues withholding
and failure to accord appropriate recognition.
The issuance of a cease-and-desist order, while useful in the afore-
mentioned summary broceedings, is totally inappropriate in most un-
fair labor practice situations. Prospective application is totally mean-
ingless, particularly when most fact situations differ. While adverse
publicity may have positive effects in some ag,3ncies, others are totally
unconcerned with repeated citations for inclations. The Authority
should be empowered to order remedial action. For instance, in appro-
priate circumstances, reductions in force should be suspended, reassign-
ments canceled and backpay awards granted.
These actions, as well as others not enumerated here, are presently
imposed by other agencies of the Government or by the courts. Since
the Authority will be the court of last resort tp parties covered by the
law, it should be exercising similar powers. The present procedure for
resolving unfair labor practice complaints h totally unsatisfactory.
DOL's only investigation is conducted by correspondence, which is
time consuming. Whether the complaint is considered valid for a bear-
ing most often depends on whether the compliance officer takes the
union's submission as fact over management's :rebuttal, most often, the
decision, comes from 12 to 18 months after tin ULT. And finally, tlie
decision is simply a cease-and-desist order, with no chance of the com-
plainant being "made whole."
Further, the cease-and-desist order most often does not touch the
management official who violated the order., For example, a recent ITLP
ease involving an Air Force colonel was resolved by agreement between.
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DOL and the Air Force activity; yet the cease-and-desist order was not
signed by the colonel who violated the order, nor was he considered to
be a party to the agreement. We might add that the so-called resolution
of the ULP came 1 year after the violation.
It is our considered opinion that the system must be changed to af-
fect procedural reforms in this area by utilizing the following proce-
dures:
(a) On-site investigations immediately upon receipt of a com-
plaint where a substantial showing that an unfair labor practice
has been committed;
(b) A summary proceeding, similar to a temporary restrain-
ing order, where on-site investigation reveals that a ULP may
have been committed which threatens irreparable injury ;
(c) Resolutions of ULP's within a 120-day time frame; and
(d) "Make whole" remedies within a reasonable time.
RECOGNITION
Although NFFE, for mere sake of conformity, generally takes an
acceptance stand with reference to section 7106 of H.R. 10700, we of
necessity must call to the committee's attention the gradual trend
toward private sector recognition procedures within a service-oriented
environment. A review of basic concepts is most essential if a legisla-
tive or statutory base is to be utilized.
The public interest and the preservation of the merit principle are
of paramount importance. Only shared decisionmaking can provide
an equitable forum. "Conditions of employment" defy concrete defini-
tion and become even more restrictive in a collective-bargaining en-
vironment involving public employees where bread and butter issues
are controlled by law. Thus, the "right to be heard" via recognition
procedures bears close scrutiny.
Present guides implementing this subject to Federal departments
and agencies concerning solicitation of membership, et cetera, are
clearly contrary to the public interest. This is reflected in both FPM
and DOL regulations, which establish rules for recognition and or-
ganizational work. It seriously inhibits employee organizations from
conducting organization drives where another employee organization
has gained exclusive recognition. A majority of those voting is not a
vote of a majority in a unit.
We have called attention to the fact that the basic goals and pur-
poses of employee-management cooperation are not achieved by this
ruling. In point of fact, it has had contrary and negative results in
which the Government, the public, the employees, and all unions will
be and are being seriously disadvantaged. In this ruling, we have
mistakenly followed rigid private sector union policy, and Federal
employees have been and are being effectively denied the opportunity
to choose or not to choose the employee organization they want to
represent them, since it does not provide the means for true democratic
orderly change. It tends to establish an iron curtain between the
agency and the unions seeking to gain membership. Historically, or-
ganizing always has been permitted at the installation as contrasted
with the private sector concept where such practice traditionally was
and is for the most part prohibited.
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The NFFE has pointed out that the policy is unsound from the
standpoint of the public, the agency, and unions concerned. Em-
ployee organizations lacking exclusive recognition will be obliged
to conduct solicitation and rallies and meetings outside the gates of
military installations, hospitals, and other public buildings. It will
encourage employee organizations to make inflammatory and exag-
gerated comments regarding the agency,: opt, rating officials, and rival
unions. This in fact already has occurred ani is increasing in volume
and shrillness.
.The present procedure, beyond doubt, has resulted in widespread
misinterpretation, especially in those situations where parts of the
installation are covered by exclusive recogn,tion and other segments
are not. and some having several exclusives.
The net effect has forced employee organizations into harsh or-
...:anizational practices including some of the, dangerous and improper
acts which have for so long disfigured organizing activities in the
private sector.
On the. other hand, the policy previously in effect in the Federal
,-4uvice created an atmosphere, in which employee unions could prop-
erly and decently provide information to employees under reasonable,
open conditions?and this is a policy which should be encouraged
istead of bring, in effect, repealed by the present methods.
.1.t. the risk of haying the Walls of Jericho fall on us, we defy the
,-;elf-centered hue and cry of our sister ifflliatd unions by stating that
though we "represent" a majority of Government employees under
exclusive recognitions, they are not paying members. Thus, a large
voice is not heard, not consulted witli? and is in fact intimidated by
both management and the. unions. They should at least. be represented
by a return to the concept of "Formal. Recognition" as it existed under
Executive Order 10988.
Also, iiresent policy represents a further invasion of the right of
free speech as exemplified by the curious assrrance, given in the guid-
a nee to agencies that employees still have the right to normal person-
to-person con munica tion?a, bureaucratic ref wence which Should win
onie sort of prize for egregious irony.. "We can still talk to one an-
other," the N-FFE has noted wryly in commenting on this policy.
Present guidance also includes an organizational-limiting provi-
,-ion, obviously included for the accommodation of entrenched Gov-
ornment, employee unions and may I say, w,?. are some of them and
ostensibly designed to forestall cutthroat raiding and virulent juris-
dictional disputes. But its practical effect will be to handicap the
'eg-itimate and proper organizing activities of many independent
Federal unions which are not. plagued by such quarrels.
The introduction into the. Federal service of various bare-knuckle
I ype organizing methods, taken from private sector unionism, has had
widespread adverse. effects. One, result n mong -nany has been outbursts
oI' bitter jurisdictional infighting by tl[e unions. Moreover, it has re-
sulted in a flood of literature, some of it seurr: ions, some of it libelous,
as the unions have. engaged in a no-holds-bar-ed contention for mem-
bership and the winning of recognition elections.
Recently, at a meeting of union -officials with some. Department of
Defense inanrimunent people. there were displayed Piles of such litera-
ture with i which various military installations nave been flooded. There
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are those, of course, who hold that if that kind of name-calling is an
accepted fact of life in private sector unionism there is no reason why
Government worker unions should not be allowed to sling mud along.
with them. On the other hand, there are many members of Federal
employee unions who do not regard the situations as being the same;
do not relish the gutter tactics, and ar6 urging their unions to follow
the high rather than the low road. There. is no doubt, also, that those
who take this vieWthat there are or least should be, some important
differences in modes of conduct in the public and private Sectors?run
the risk of being called management stooges, members of company
unions, and other cliches from the shopworn grab bag of smear
phraseology. But it also is evident that the rising crescendo of attacks
is having a progressively more negative effect as scores of thousands of
career employees who should be members of unions are declaring "it
plague on all your houses." The credibility gap for both management
and the unions thus widens!
Legislation should consider that all requests-for unit determinations,
election or violations of the Code of Fair Labor Practices should be
reviewed and decided by the Authority previously proposed to make
appropriate investigations and decisions. Utilization May be made
of outside arbitrators or mediators from the Federal Mediation and
Conciliation Service. However, the full-time employment of media-
tors and arbitrators employed by the Authority would be preferable.
to achieve greater uniformity and understanding.
Methods for training- agency personnel in the principles and proce-
dures of consultation, negotiation and settlement of disputes have been
provided by the agencies. Such training opportunities should be af-
forded equally to all employees. We appreciate:, Mr. Chairman, the ef-
fort in this direction made by you, which resulted in a Comptroller
General's decision which permits the granting of miserly leave to em-
ployees to participate in seminars. An effort was made by the Comp-
troller General to distinguish between matters of mutual interest and
special interest. It is the NFFE's view that all matters pertaining to
the employee-management cooperation program, other than internal.
business of the employee organizations, constitutes matters of mutual
interest. Certainly employee-management cooperation- does not and
should not mean a Government policy of endeavoring to sweat the
greatest volume of work out of its employees at the lowest possible
wage. Nor should it mean, on the other hand, a union policy of the
least work forthe highest possible wages. Such propositions are wholly
self-serving and contrary to the paramonnt national interest.
We, seek an employee management program which avoids those ex-
tremes, so inimical to sound personnel administration and good gov-
ernment. We, ask for equal time. with management for training, not a
restrictive, 8 hours per year, as presently doled out in a "welfare State."
manner. This should be clearly stipulated in the proposed legislation.
We previously stated that?
Th provision for a secret ballot election should be waived only in instances
where two conditions are met. First, when a union submits signatures of over
50 percent of all employees in the unit and second if no other union submits a
10 percent showing of interest to challenge that showing of interest. Unions and
agencies should be permitted to consolidate units only when employees in those
units are given an opportunity to express their views on the matter. If signifi-
cant opposition to consolidation is expressed, an election, monitored by the De-
partment Of Labor should be conducted.
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We add some qualification to our previous statement as follows:
We are concerned about phony signatures in cases where there is no
intervention. Thus, no election should be, rec nired if a greater than 50
percent showing of interest is submitted, and no one intervenes except
in an instance where another party challenges the validity of the
signatures (even if the party does not intervene). In such an instance,
it secret ballot election should be required.
As for consolidations, We should amplify our statement * * * "em-
ployees in those units be given an opportunity to express their views
on the matter * * *"
What we mean here is not an. election hut a posting indicating that
there has been a request to consolidate units and that any unit mem-
bers who obje,ct should do so by a certain dite, including reasons for
opposition. The Authority can then weigh the objections and deter-
mine whether they are sufficient in number and substance to require an
election.
To clarify all of the above, we offer the following as a recommended
SOP under the overall recognition question:
Unit hearing will be conducted at the regional level of the PERS
Authority. The Authority may be petitioned to review a decision of
the regional level but the Authority detelmination is 'final. What
is important here is taking the unit hearings out of DOL. A unit deter-
mination is probal&y the most important :3roce,dure in the field of
Federal labor relations and yet, as presently conducted, these questions
are resolved bv the most inexperienced individuals in the field, the area
officers of DOL.
The, most important aspect of the recognition section concerns the
size of the units.
We provide (1) no recognition will he national in scope, (2) local
units shall be presumed to be the appropriate units, and (3) multiunit
bargaining will be permitted on a regional basis with an additional
provision for supplemental local agreements.
A national or regionwide unit would be permitted if a single union
represented every installation within an agency or region. This is far
'different from permitting a single union with great financial resources
to ask for a national unit and thus wipe out all existing contracts.
Further, the smaller unions would have difficulty in trying to conduct
an effective nationwide campaign.
The only justification for big units is administrative convenience for
management and monolithic power for the union. Such an arrange-
ment neither serves the public interest nor the interests of employees
in a service-oriented environment.
Concerning administrative convenience, 'agency management can
deal with one union which makes them happy but if the, purpose of the
Federal labor relations program was to serve the wishes of adminis-
trators, we would have no -unions at all.
Moreover, we hear a great deal of talk about returning decision-
making power to local governments, and people. Implicit in this is the
feeling that much of the alienation of modern life results from bigness
and an inability to have an impact on decisions that affect our daily
lives. We believe our members know what matters are most important
to them and we think local management, given a free hand, can work
out a mutually beneficial relation with uniors at the local level.
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The other problem with large units is the power of the union itself.
-Large national unions do not serve the interests of individual
,employees but rather become power-political lobbies. While political
'power is important, strong local units do not minimize national politi-
cal power and they also restore democratic vitality to the labor
movement.
The specter of one union representing all employees in the Federal
Government is frightening from two aspects. First it should frighten
the Government itself. Second, it does not bode well for unions because
with the first threat to shut down, may we state, the Government,
.Congress will repeal the law permitting us to organize.
AGREEMENTS
Collectixe bargaining.?It is important to recognize the manner in
which our collective-bargaining provision intermeshes with the con-
cept of strong local units. Collective bargaining at the local level should
permit negotiation on all matters affecting working conditions, includ-
ing contracting out, except for pay, retirement, insurance, leave, and
job classifications. Local bargaining should permit coverage on prac-
tices and procedures used to implement these last five items. The point
-here is that local working conditions are the concern of employees and
management at that level and they should be permitted to negotiate
fully on issues of direct concern to them. The Authority should have
final say on contracting out and the unions a right to be heard on said
issue.
We have excluded the five mentioned items because these issues are
extremely complex and a hundred different agreements on wages,
retirement, and job classifications would create an administrative
nightmare. I add, we again speak of 70 agencies, including independent
agencies, their subdivisions, and area bureaus. We are talking about
-classification and job pay and other factors under a national type of
collective 'bargaining agreement. Congress would never approve
collective bargaining on these matters and the merit system would be
-destroyed.
Pay, insurance, retirement, job classification, and leave.?Congress
retains its sole authority to legislate on these issues. But we believe
-unions are entitled to a more systematic input in these areas. 11.R.
10700 does establish a separate advisory board on each of these issues
modeled after the Federal Prevailing Rate Advisory Committee. These
committees would submit annual reports to the Congress and appro-
priate committees recommending any desirable changes in legislation.
Unions and management would have separate staffs and the unions
would have access to all documents in the possession of the Govern-
ment to be used in preparing recommendations. This will solve a
recurring problem we now face?that is the ability to make detailed
systematic studies of relevant information in these areas so that we can
make informed comprehensive recommendations. For instance, we
might recommend that Congress got rid of Blue Cross.
Board.?Experience on both the Prevailing Rate Advisory Com-
mittee and on the Pay Council behooves me to state that thortab it may
seem to be democratic and participating on the surface, we have found
both to be cumbersome and ineffective for timely reaction. We thus
recommend the provisions of H.R. 13 as more applicable to the prob-
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278
lem. We, however, offer a substitute for the union or agency shop
concept as proposed in section 701(2) of H.E. 13 as follows.
Fair representation fee election.?Since. the NFFE stress for nego-
tiating is at the, local unit level, we, of necessity must state the pro-
cedures as outlined in section 7107 of Mt 10700 will also prove
unwieldy and tend to advocate national or agency type exclusives.
We recommend the creation of a fair representation fee election.
After the certification of an exclusive represe:ltative, the exclusive may
request an election to determine if employees in the unit must pay a
representative fee to the exclusive. This election requires that an
absolute majority of the employees in the unit cast an affirmative vote.
The obligation of unit employees, should this election be successful,
is a, monthly representation fee. However, Ile one need join the union,
pay initiation fees, partake in insurance programs or operate as -union
mem hers.
If the fair representation fee election is unsuccessful, any employee
organization in the unit with 10 percent of the employees is entitled to
have dues withheld as a? labor organization. This establishes the con-
cept of formal recognition. We believe that this insures democratic
process.
'la the event such election is successful, aft,r I year, a petition filed.
by 30 percent of the unit employees can require an election to rescind
the fair representation fee. Thus, a. group with. formal. recognition. can
begin to erode a strong union by taking awa:7 their fee. firSt and chal-
lenging recognition after the group is weakened because of a lack of
-ler vice to its mem hen-;.
What we, are attempting to do here is romp nize the need for unions
( o sustain themselves when they are required. t represent all employees
while at the same time insuring that only a, strong union which is
orovidim.r, effective representation to all emp- oyees will be entitled to
this right.
The formal reeoonition con cent is :Ilse) in portent to foster union
,lemocracv. A minority union. wtili 10 pereen '7, of the employees ti.t. an.
? tistallation, will be able to sustain itself through clues checkoff and
loake, certain that the ins (the, majority union provide effective repre-
:.;entation or -lace a challenge The competition will be good for em-
tiloyees' interests and will prevent. atropliy mid unresponsiveness on the
iart of the unions.
ARration.--Tt is argued that disputants to bargain seriously
and in good faith when an arbitration procedure] 00ms over the deliber-
ations of the parties. Admittedly this can be a problem, but if unions
are denied the right to strike they must have some method to cOMpel
notion by the agencies. The fact is that under 'he present. system there
is, in my opinion, a complete lack of good faith by management, be-
cause, in many cases. they don't care whether they ever complete a
contract.
One of the. reasons we. can live very easily with arbitration is our
belief that unless agency management radical] alters its attitude, dis-
putes which go before the authority are bound to get. objective treat-
ment.
We think it disgraceful that so much time it contract, negotiation is
consumed by the issue of time, on the Clock for negotiations and
the cost of dues withholding. This is alolutel7 preposterous. Accord"-
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ingly we endorse. the concept that all negotiating time will be on the
clock and dues checkoff will cost nothing. The fact that these issues
remain unresolved in 1074 is an indication of the lack of interest the
Federal Government has in a vigorous, effective labor movement. Man-
agement is permitted to use Government time for all purposes at a
terrific cost to the taxpayer and thus use the 40-hour half-time con-
cept as a club to force union negotiators into meaningless agreements.
In many cases, management purposely uses all negotiated time in exer-
cising the prenegotiation agreement itself. In fact some are so trained.
MayI say, I speak from experience. I don't think that anyone spends
more time at training centers for management than the. NFFE does,
because I have seen it in action.
We feel even more strongly about this in instances where an agree-
ment, exists. There the agency should be required to make an over-
whelming showing at a fact finding hearing that there is a clear need
to abrogate the contract provisions.
Actually sections 11 and 12 of the present order invite agency abuse
and underline the basic imbalance in the program.
Federal Labor Relations Board.?Although the proposed Board in
H.R. 10700 does provide a form of summary proceeding, the stress of
day-by-day dealing seems to be left with the hierarchy of either man-
agement or the unions. We wonder if another Edsel is being created
by such a structure. Considering the number of policies and regula-
tions issued by CSC, 70 some odd agencies, and various intermediary
levels, we can visualize full-time task forces debating the proverbial
angels dancing on the head of a pin. This can result in nothing but
time consuming and costly battles with management representatives
and unions on interpretations. For purposes of emphasis, may I say,
both the Pay Council and Wage Fixing Committee have proven this.
A major problem is the inability of local management to bind itself
to a contract. It should be a violation of law to make any unilateral
change in regulation, even where no written agreement exists. There-
after the burden should be on the agency to go to the authority if
questioned and the regulation should not be implemented until the
case is resolved.
Agencies should delegate this authority to the lowest level with all
agreements stating the general prohibitions of sections 7107 ( a) ? (d)
as proposed in H.R. 10700. The authority could set up an internal
structure to handle the matters as proposed for the Federal Labor
Relations Board. Thus only section 7107(i) would become applicable.
NEGOTIATION DISPUTES AND IMPASSES
Mt authorities outline the major difficulties in resolving bargain-
ing disputes in the Federal sector as follows:
Negotiating deadlines normally force the parties to clarify issues;
and, as the deadline approaches, begin to work out an agreement with
give and take on both sides.
In the Federal sector there is no meaningful deadline, primarily be-
cause the unions do not have the weapon of the strike. Consequently,
management is often content to let the negotiations drag on intermi-
nably. There is pressure on the union however, since it is threatened
with the loss of dues withholding or a Challenge. They sometimes capit-
ulate under the. strain, accepting essentially meaningless agreements.
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280
The only pressure on management is the cost of litigation?a weak
reed at best.
We do not contend that agencies uniformly refuse to bargain, many
do. However a deciSnn to do so is more a -matter of their beneficence?
not union pressure. If management wishes to be hardnosed, the union is,
generally hamstrung.
For example, at Keesler Air 'Force Base, Miss., 37 hours was spent
on the ground rules, over 9 months on the contract and even then most
of the key provisions were sent either to impasse or to the council on
negotiability issues.
Even now we are awaiting Air Force Headquarters analysis of the
issues.
In the Federal Highway Administration in. Vancouver, Wash., after
negotiations broke down at the local level, discussions were initiated
in Washington to determine the source of the problem. That agency's
head of labor relations took the position that he was seeking uniform-
ity in all agreenients with activities under his jurisdiction?this was,
the only reason for not accepting a union proposal.
The present wording of sections 11 and 12 encourages management
to avoid meaningful negotiations and consultations on literally every
issue raised by the union.
This comes up most often on the issuance of regulations by higher-
agency authority. In the Sheppard case, the right to consultation on.
personnel practices and procedures and matters affecting working.
conditions was made meaningless.
However, in a very recent A/S decision DCA SR?No. 372 the As--
sistant Secretary said:
I reject the contention made by the activities that certification of Tess than,
region wide unit would limit the scope of negotiations solely to matters within
the delegated discretionary authority of the particular chief of the particular-
subordinate unit.
Citing United Federation of College Teachers and U.S. Merchant
Marine Academy, they stated:
Clearly, the order requires the parties to provide representativs who are Pm- -
powered to negotiate and to enter into agreements of all matters within the scope?
of negotiations in the bargaining unit.
Applying that reasoning he states:
Where certain labor relations and personnel policies are established by the-
DCASR to provide representatives with respect to the units found appropriate-
herein who are so empowered.
We believe this rationale should apply to the issuance of all policy.
to this extent:
If there is a negotiated agreement in the unit and the regulation
conflicts with the provision of the agreement, the agency should have
the burden of negotiating at the local level and if 110 agreement is
reached, the agency must go to the Authority before the regulation.
can go into effect.
If there is no agreement or the regulation is not in direct conflict
with the agreement. consultation must be conclucted at the local lever
before implementation and if the agency refuses to accept union roc-
oimnendation it must say so in writing and provide reasons. The-
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union should then have the opportunity to appeal to the Authority as
proposed in Congressman Henderson's bill H.R. 10700.
Implementation must not be permitted until consultation or nego-
tiations are complete. To repeat our basic philosophy, we feel little
harm is done to the agency and benefits accrue to local unions and ac-
tivities by granting maximum authority to the local level. Agency re--
view should be conducted on a post audit basis, or in the alternative, a.
time limit should be set for agency review, at most 30 days.
Post audit review is preferable. The present system underlines to
both parties at the local level their relative inability to make deci-
sions concerning their relationship. Agencies have been very slow to'
approve contracts. In some cases it has taken as long as 6 months to
reach accord. This is especially frustrating when the new contract con-
tains provisions of vital importance to the local, provisions which are
needed immediately for resolving longstanding problems. To have to,
hold resolution of these issues in abeyance is demoralizing and frus-
trating. One of the most pressing problems for national unions ia
finding local lumbers who have a knowledge of and interest in the
development of the Federal labor relations program. So long as these
employees feel that they lack the power to affect their relationship
with local management without referring most issues to a reviewing
authority, this will continue to be a problem. A first step would be
the elimination of the intermediate level review while permitting
agency headquarters to make only a postaudit review.
Contracts should be effective upon signing by the local parties. Any
objections by higher authority should be argued on appeal to the Au-
thority and that should be the only remedy available to the agency.
Much of the reason for poor labor relations at local levels is the lack of
authority. Why should activity level management, or union officials,
for that matter, develop as much expertise as possible in labor rela-
tions, when both parties know everything is going to be reviewed at a
higher level?
Our response to this question must be read in light of our previous
reply to the question involving negotiability of agency regulations. It
is our view that a more effective labor management relations program
will be achieved as more collective bargaining power, and concur-
rently, more authority and responsibility, is given to the activity level.
We submit the fear that chaos in Government organization will result
is unfounded; any drift in such a direction can be prevented by the
retention of power by agency heads in areas of obvious direct concern
to the mission of the agency and the substance of agency policy. Most
issues of concern to employees regard not substantive policy ques-
tions but the day-to-day difficulties of functioning as an employee in
a large bureaucracy. For this reason, we believe negotiated grievance
procedures should be employed to resolve disputes- of agency
regulations.
'7I'ypically in informing a local union that a provision must be de-
leted the agency will cite FPM or agency regulations which are vague
and clearly open to varying interpretations. The problem is that pres-
ently, unless the union accedes, the agreement remains in limbo,
unexecuted.
Sfiope of bargaining.?A major bar to expanding the scope of nego-
tiations is the agencies' insistence on issuing overly prescriptive regu-
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lotions, if not at deparment level, then at intermediate command, bu-
reau, regional office district, or head office level. Such actions unduly
restrict, the scope of bargaining at activity level, where the vast ma-
jority of negotiations occur.
A good example of this practice concerns the CSC's recent move to
broaden the scope of negotiations (reference FPM letter 250-2). To
date, we have seen no real evidence to indicate that agencies gave
the guidance anything more than a cursory glance. In fact, the vast
majority of our local unions have received no consultation regarding
the policy areas reflected in FPM. We. continue to be. confronted with
the familiar "not negotiable." For example
The social security district, office, manager cannot negotiate on merit
promotion procedures, because the regional office establishes the policy.
The MA School Superintendent cannot negotiate. policies on RIF,
merit promotion, leave, et cetera, because the area office establishes
the policy; and additionally, the Labor Relations Officer at the area
office would like, all imit agreements under the office to be similar.
The above are oily a few of the many examples which coud be
cited. We feel that the crux of the problem centers upon the lack of
meaning given by the Council to the statement:
In prescribing regulations relating to personnel policies and practices and
working conditions, an agency shall have due rega:x1 for the obligation imposed
by paragraph (a) of this section. (Section 11,b), E.O. 11491.)
The now often cited Sheppard Air Force Base ease, cut the very
heart out of the order insofar as any real intent to prevent unduly
restrictive regulations by the agencies ani subordinate levels of
command.
We urged the Council to review its policy in this area, in light of
continuing efforts to unduly restrict negotiatioms.
We might add that the question in the SAFB case was not whether
the agency, and in turn its subordinate commands, had the right to
issue regulations, but was whether in so doing, the intent of the
Executive order was observed. In the SAFB case, Air Force declared
"inoperative" the paragraph of the ATC regulations stating that "it
could not be supplemented by ATC bases" To data this has not
changed. Thus, the Council in its decision Assumed negotiability of
some aspects of the merit promotion procedure, while, in fact, the
ATC base's overprescription of the command regulations left no ne-
gotiability to more than eight large units involving several thousand
employees.
We urgently recomm.ended that members of the FLRC and the staff
of the Council be assigned as observers in cases of negotiation, unfair
labor practice charge impasses, unit determinations and to review the
paper processing and documentation involved in these matters and to
review the time frame required for each oi the processes. It is ap-
parent to us that the Council and its staff are formulating concepts
without benefit of knowledge and experience.
We sincerely hope that the provisions of sections, 7110 through
7117 of MR. 10700 eradicate some of these inequities and endorse,
same.
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CONDUCT OF EMPLOYEE ORGANIZATIONS AND MANAGEMENT
NFFE generally concurs with both the spirit and intent of sections
7109, 7110, and 7115 as prescribed in H.R. 10700. We heartily recom-
mend however that the Authority may order an "agency to discipline
a supervisor or official of an agency upon determination of arbitrary,
capricious, or otherwise knowing violation of act." This was pro-
vided for in section 801 of H.R. 13. Without such a provision, controls
become empty shells with toothless digesting taking place. An apology
posted on a bulletin board is a meaningless device, permitting re-
petitive actions. Unions, however, could be subjected to revocation
of both dues withholding and even recognition itself.
MISCELLANEOUS PROVISIONS
NFFE concurs with most of the provisions under sections 7108,
7113, 7116, and 7117 but strongly opposes certain provisions of sec-
tion 7117 (a) (2) authorizing voluntary dues allotments to associa-
tions of management supervisory employees. We specified our reasons
previously. They should be compelled to go through the union pro-
cedures to obtain same. This is in truth management subsidy to itself.
For similar reasons, we concur with the 11.11. 13 proposal?section
1301?that the Bureau of Labor Statistics or the Authority itself
maintain the files, data, and publish information to interested parties.
CONCLUSION
Mr. Chairman and members of the subcommittee, we extend our
sincerest thanks to you and your capable staff for both the opportunity
to present the NFFE viewpoint, and for the many guidelines and
references provided. You have identified by the proposed legislation
that the efficiency of the Government is not the sole trust of manage-
ment officials and recognized the true purpose of an employee-manage-
ment program. You have recognized that efficient administration of
the Government is enhanced by orderly and constructive relation-
ships between employee organizations and management officials.
We believe that we have made constructive and forward-looking
proposals of the employee-management relations program. They have
been hammered out not in an ivory tower or in academic and theoreti-
cal discussions but rather on the basis of long, hard, and often frus-
trating pragmatic experience of more than 57 years. They are the
result of our day-to-day, face-to-face dealing with the problems aris-
ing out of Executive orders and with too many administrators who
show little competence or initiative in handling personnel problems
in a complex Government structure. We believe we have married the
public interest with merit concepts.
Thus, to our specific proposals presented herein we add a strong and
urgent plea to this committee to take whatever steps are within its
jurisdiction to impress upon Federal administrators in every depart-
ment, and at every level of supervision, that employee-management
cooperation means just that?and that cooperation to be meaningful
must be a two-way street. Unless and until that message takes hold,
throughout the Federal service, conflict and frustration inevitably
will continue to be the order of the day.
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We thus offer as an addendum to our testimony and in rebut to the
Civil Service Commission stand, the _NFFIIIS summary and evaluation
of the status of em oloyee-management rela:ions on a general agency-
by-agency review. 'I 'hank you.
I would like Mr. Geller to highlight twc points in the addendum.
Mr. ITENnErisoN. 1_ would consent to the entire addendum being pub-
lished in the, record.
statmient follows:]
AnnuNnt:IF
Prior to a final evaluation of the various bills, 31.R. 10700, H.R. 13 and H.R.
tr754, we believe it essential to furnish you with cur status report and evalua-
tion of the employee-mana.gement relationship as they now exist under Executive
Order 11.191, f)s amended, You have heard from .0hairman Hampton concern-
ing the euphoric and idyllic conditions resulting from the administration of
he Execntive Order, it is simple to say that the Chairman's facts are slightly
awry and his ,onelusions equally beat. I believe it would really serve the pur-
poses of this Committee to learn of the situation as it really is. It might be
appropriate to begin with the Air Force by way of an illustration.
Kessler Air Force Brse. located in Mississippi, and our Local at that station
have been engaged in negotiations of an agreement for almost two years. A few
months ago, they signed an interim agreement which put aside the really signifi-
cant issues that are still pending, which number about 50. Representative of
our !meal have spent 11.1proximately vir; hours each in negotiations without
reaching an agreement. As I understand it, Secretary of State Kissinger spent
approximately 1,30 hours in negotiations on the Mid-East dispute between Syria
and Israel, a matter. I believe. more complicated than negotiations between the
management of the station and our representatives. In fact, it took 55 hours of
negotiations to arrive at the ground rules. .
i- .dlAir Force Base a similar situatimi exists where negotiations
there ilaVg been in progress for one year and a half. The President of our Local,
as in the ease of Kgt.',1P1' Air Force Base, has exhausted his administrative leave
;rrid is rising his own time in dealing with management which has no incentive
for reaching en agreement. In both of these situations as well as elsewhere in
t he cortntrY, officials of the Locals have been subjemed to recurring harassment
is reflected in poor evaluations and denial of justly-earned promotions. All of
those Locals have utilized the so-called appellate system which Chairman
ilampton praises as usetol mechanisms operating under the present Order.
Conditions at Army aid Navy stations are not mich different. At Fort Mon-
?outli, New jersey, for example, the President of our Local previously received
recurring outstanding /valuations. Accelerating activity in representing the
email organization has resulted not only in the denial of the outstanding rating
bat in a questioning of tho satisfactory nature of his pmformance.
Ta the Department of Navy at Pascagoula. Mississippi, the local command
summarily told our Loehl representatives that they could not receive a promo-
tion unless and until tile7, signed a mobility statement. Our Local representatives
aii,3. others suffeged deniel. of promotion due to this arbitrary and vicious denial
or employe freedom and, while the appellate system worked in this instance, it
took more than a year. There is serious doubt whether the loss of promotion
importunity oven it' applied retroactively will alleyiati the enormous harm caused
by the failure to dispense prompt justiee under an emoloyee-management system.
In the Department of Transportation, and in parteular in the Federal Avia-
tion Administration, our Loc-al at the Naval Aviation Federal Experimental Cen-
ter bas tiled many unfair labor practice charges .again3t its management, 'The De-
partment of Later after nitwit foot-dragging, sustained virtually all of the charges
after abort a year of enosideration. New charges and additional charges have
hen made. The had conditions complained of have :lot been altered. The poor
i'mployep-management relationships persist.
In the Federal Highway Administration in Vancouver. Washington, the man-
agement has arbitrarily withdrawn dues withholding privileges, refused to negoti-
ate on a new agreement and harasses the President m! our Local in the arrange-
went of meeting dates and in insolent and arrogant treatment towards him.
in the Department of ilommeree, the management at the Bureau of Census
bas arbitrarily contracted out work previously palormed by employees in
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Jeffersonville, Indiana, all the while advising the employees that such work would
be performed by the government employees as heretofore. The Department of
Commerce and the Bureau of Census and the local station never bothered to
consult with the Local.
In the Department of Interior, our organization faces an enormous burden in
representing membership, particularly, in the Bureau of Indian Affairs. The
administration has an avowed policy of contracting out virtually all of the
operations now performed by the Bureau. This will be administered by the various
tribes. Our organization has for the past three years made reasonable recom-
mendations to the Bureau and to the Secretary of Interior for the placement
and consideration of those thousands of dedicated employees in the Bureau of
Indian Affairs to be placed in other civil service positions. We brought an unfair
labor practice charge against the Secretary of the Interior, all to no avail.
Although a similar case brought at a lower level in Albuquerque held in our favor.
However, its application resulted in no change. This points up the inherent weak-
ness of the current nominal leadership of the Federal Labor Relations Council
which is headed up by the Chairman of the Civil Service Commission. It is
obvious that an unfair labor practice charge brought against a Cabinet level
member could hardly be sustained by an official at the Assistant Secretary of
Labor rank or by the Chairman of the Civil ServiOe Commission. This illustration,
in particular, demonstrates the necessity for an employee-management authority
head who may not have Cabinet rank, but whose status and importance and
authority would be of such nature as to overrule the decision of the Cabinet
Member or the Director of the Office of Management and Budget with regard
to conditions of employment of Federal employees.
Much has been said in an effort to sidetrack the legislative move concerning
the question as to the employment. It is obvious that both the President and the
Congress and the Cabinet Members and individual Administration officials are
the representatives of the government in the employer-employee relationship.
The Veterans Administration, whose management activities have come under
increasing question, has consistently disregarded recommendations made by our
organization in the national consultation role concerning its promotion policies
and in reassigning employees to other parts of the country in an arbitrary fashion.
The VA employs a nomadic personnel policy system which requires employees
to move about the country in order to receive promotions. This has resulted in
promotion of many less qualified employees, having a resulting deterioration in
efficiency as well as destroying the morale of career employees who aspire to
higher positions. In Austin, Texas, our Local has filed eight unfair labor practice
charges resulting in extended hearings without benefit of reconciliation or
adjustment. Management has repeatedly challenged the charges made by the
Local while at the same time acknowledging deficiencies in its program to process
checks for veterans under the various veterans benefits programs..
In the Department of Agriculture, our organization brought an unfair labor
practice charge against the Secretary based on a failure to consult in connection
with the reorganization of the Forest Service. This was one instance where the
Depart.ment recognized the error of its ways and adopted many of the recom-
mended suggestions of our organization. On the other hand, in a similar instance
involving the failure to consult regarding reductions in force in the Agricultural
Stabilization and Conservation Service Office in Des Moines, Iowa, a reduction
in force was announced eliminating several positions, on which the local activity
failed to consult with the organization. As a result, this matter was handled as
an unfair labor practice charge long pending with the Department of Labor. The
Department of Agriculture blames each higher level of the agricultural hierarchy
for the failure to consult, denying employees the opportunity of knowing why
actions affecting them are kept secret and denying them the opportunity to
challenge the appropriateness of the action.
The Department of Health, Education and Welfare instituted a new systeni
for collecting and distributing dues withholding to unions holding appropriate
recognition under the present Order. This resulted in enormous loss of funds
and members because of an anti-union and unnecessary bureaucratic approach to
a matter which had heretofore worked reasonably well. This failure to remit
funds properly owing to the organization resulted in a communication to the
Secretary of Health, Education and Welfare requesting prompt correction and
including the possibility of a law suit against the Secretary for improper denial
and holding of funds due our organization. This matter continues to be unresolved
even though the Department's Finance Office has made some belated efforts to
resolve the problem.
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Mr. (ELLER. We took, particularly, the. Air Force, for example. As
noted in our appendix, the time required for negotiating a ..prenegotia-
Lion agreement took some 55 hours and tc, negotiate this has con-
sumed about 155 hours.
If my memory serves me right, Secretary Kissinger spent 130 hours
in the rather complex problem involving the Mideast. This, I think,
highlights the difficulty in especially this agency and many of the
other agencies.
The record of frustration is not found me rely in the Air Force. It
occurs in the other .agemcies, the military agencies, the Department of
Transportation and one serious concern we have is that we find the
leaders of our organizations, the presidents, are being subjected to un-
warranted al: use, denied promotion opportunities.
This is underscored, getting back to the Air Force, in at least seven
or eight stations, 'urging from Vandenberg Air Force Base to Keesler
Air Force Base to Plattsburg Air Force Base to Homestead Air Force
Base and you can go around the country and find these oppressive
measures being taken by the Air Force, the Department of Transpor-
tation, and I would like to just point out :.n particular, the station
iipar Atlantic City known mis the National Aviation Federal Experi-
mental Center, where our organization has initiated perhaps 10 un-
fair practice charges and in virtually every L.tistance, the Department
of Labor has substantiated them in its findings.
The activity of that management continues apace. The charges
continue. The system_ just does not work and it does not stop the
inevitable abuse that exists in the Federal serrice.
These are just?one point I want to stresi, apart from the current
problems that we face, is the extreme impo:tance of having as head
of the authority a man or men of substantial authority. In that con-
nection, we commend the chairman, in partindar, for the new dollar-
ceiling type of control imposed on the Department of Defense.
This does not completely solve the awesome problem occurring every
day of the contracting out of governmental activities and we urge
this authority be delegated substantial power to review these contract-
ing out problems, especially to make judgments concerning the ()MB
circular A-76.
In that connection, we are faced immediately with the serious prob-
lem of possible dislocation of 10,000 or 15,00() employees in the. Bureau
of Indian Affairs. The Bureau and Department of Interior have an-
nounced thai; beginning July 1, a very activ3 program to contract out
much of the work being performed by Federal employees to the vari-
ous tribes.
This concerns us very much. Just highlighting that suggestion, Mr.
Chairman, and 1 will close with that, is tha5 this authority the chair-
man or whatever he is called, have with rgard to personnel deter-
mination should be the same standing and authority as the Cabinet
level, the rank now existing in the Cabinet.
Dr. WoLicomut. That concludes our testimony, Mr. Chairman.
Thank you very much.
Mr. HliNnEusoN. Dr. Wolkomir, with r?.spect to the supervisors
under the proposed legislation, referring to the top of page 8 of your
Statement, you speak of supervisors who cmu. reasonably be expected
to confront a conflict. Then, you go on to sair only conflicts of interest,
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in fact. Could you clarify these two thoughts and let us have your
views on how we should treat supervisors who are in a position to give
the appearance of a conflict of interest?
Dr. WOLKOMIR. Under the present concept, of course, and the in-
terpretation by the Federal Labor Relations Council, any man who
performs an evaluation on another individual is a supervisor. The
distinction is between what is supervisor and what is management
and which individual is dealing in labor management on the policy-
making level.
This is at the core of our problem. When we speak of conflict of
interest?I can exemplify?when I was president of my own local
for 15 years, even under the original executive order, my boss never
saw a conflict of interest, even though I was his adviser, in doing my
union work.
He had enough faith in the integrity of the individual. I was merely
rendering advice as a staff representative. I wasn't making policy. He
made the policy. We made recommendations to him as staff members
and there is a large distinction between the man who serves on staff
and has a function of making recommendation to the policymaker
and the man who makes the policy. This is the grave distinction I
believe, in the determination of the distinction between a so-called
management individual and the individual who is merely an adminis-
trator or renders suggestions in the staff function.
Mr. HENDERSON. On page 10, in paragraph (d) of your statement,
you say that agencies should be required to petition the authority if
they want to exclude certain employees. Rather than the petition being
initiated by the union, what would be your views on a procedure which
would permit the agency to exclude by a labor organization?
Dr. WOLKOMIR. Well, we are reversing the procedure. What we are
saying is when we apply for recognition under our petition, we must
include the individuals who will be covered by that particular unit.
The unit has a responsibility to include the definition of the unit. If
the agency disagrees, then they should have the burden of proof as
to why they want to exclude the individuals and let the authority
make a determination. We are reversing the procedure.
Mr. HENDERSON. Would you object strongly if we reversed it the
other way?
Mr. GELLER. We would have no objection. As a practical matter, it
would originate that way, if it would clarify that the question of the
security or investigative work could be subject to determination and
review by authority, the organization the union would petition the
agency and start the process moving. We have no objection.
''Mr. HENDERSON. On page 12 or your statement, you recommend a
definition for supervisor. Using your suggested definition, would a
person who can settle a grievance or could say yes or no to an em-
ployee's requesting 3 or 4 weeks' vacation, be a supervisor ?.
Dr. WonKorvitrt. Not necessarily. This is merely the delegation of
working up a work schedule or a relief schedule. That doesn't make
that individual management. He administers certain paper forms.
Mr. HENDERSON. Do you have problems with your suggestion with
regard to supervisors in the Federal law as it relates to and is com-
pared to the definition of supervisor or the rights of supervisors in
the private sector? Let me put it another way. Admittedly, I have
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tended to feel that the line of drawing supervisors in the Government
sector should be the same as in the private sector. Is that necessarily
? the right pla.2e. to draw the line?
Dr. WOLKOMIR. Unfortunately, I must say no. The demarcation in
the private sector is contingent on the contract they sign. At a series
of Federal Bar Association seminars?I don't know why I inherit
the panel involving supervisors and conflicts of interest?in a. study of
about 28 contracts we see no clear-cut definition of what is a super-
visor or management in the private sector.
Mr. HEN-romsoic. Isn't the lawclear on that, though? Once you deter-
mine who is a supervisor, the law is clear, Isn't it? Part of
my fear with regard to drafting this legislation would be that if the
legislation defined supervisor differently from that?and the effects
thereof?than the National Labor Relations Act, we would get a cry
prom the private sector of this country that we are going back to
the situation before the enactment of section 14?A of the NLRA.
DT. WOLKOMTR. If there is a possibility of a definition from the
private sector' we would prefer that definition to the type of definition
we have now. We would prefer the private sector type of definition to
the present one in existence. Does that answer your question?
Mr. HENDERSON. I think it does, because it is responsive to the con-
cern I have that if we could clearly demonstrate to the private sector
we were not reversing a trend or we were doing something in the
public sector that could read to reverse ar of the present law---
Mr. GIELLER. Mr. Chairman, may I address myself to that. I think
the problem doesn't arise in terms of the definition. The pragmatic
approach to it is who has been included or excluded in the private
sector. We would accept that kind of realtionship. But in the Federal
Government, this structure is much larger, even than the typical pri-
vate industry arrangement and you have supervisor upon supervisor.
in the smaller stations, there are three, four, or five levels of super-
visors. We feel in the situation, the, first level supervisor is properly in-
cludable with in the ii nit.
You find in the private sector, for example, a foreman, perhaps
in the constriction operation. He is a member of the unit and union,
with rather substantial authority to fire, hire, et cetera. Tie is included
in the, unit.
But the definition of a supervisor in the National Labor Relations
Act is a rather strict one. So, it is observed in the breach. And it is
not?and I think if we parallel that definiticn, that is a danger in in-
corporating large chunks of the National Labor Relations Act in the
statutory law. There are those dangers. Within the Federal Govern-
ment. we have found that in any deficit size station, a first line super-
visor just has the most limited authority.
Mr. HENDFRSON. Dr. Wolkomir, you advocate the binding of guards
together. To the extent guards are required to enforce agencies' rules
and regulations with respect to other employees, would we not have
a delicate or difficult relationship when a guard found himself en-
forcing a rule against a Federal employee who belonged to the same
unit or organization?
Dr. WOLKOMIR. We presently handle dozen; of grievances involving
union members against union members. To this day, we have never
found it created any kind of feeling in terms of affecting the security
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of the job they have. In no single instance since we have had exclusion
of guards, have we come to this.
Mr. HENDERSON. I Will defer to Mr. Ford.
Mr. FORD. I want to move along. We have a time problem. At the
beginning of your statement on page 2, you say, "Others may argue
that the withdrawing of services, individually or collectively from a
public employer is not committing an illegal act. In truth, we find
that a strike in the public sector is in fact a strike against themselves
where public employees are involved."
Later on on page 5, in pointing out the problems in dealing with the
National Labor Relations in the Federal sector, you say in the second
paragraph of that section, "With no attempt to be ludicrous, we have
experienced for 12 years an attempt to emulate private sector climates
in the Federal sector without providing the teeth, institution, or even
the ultimate weapons so essential to true collective bargaining in the
private sector."
I assume relevant weapons are strikes?
Dr. WonKomia. Right.
Mr. FoRD. Back on page 34 where you are talking about the negotia-
tions and disputes and impasses, you talk about the problem of setting
a deadline that puts pressure on the respective parties to try to get
a solution to the problem.
Your paragraph b says, "In the Federal sector, there is no meaning-
ful deadline, primarily because the unions do not have the weapon of
the strike."
I seem to find inconsistency with the philosophical statement that
a public employee is striking against himself and I took it to mean you
are against public employees having a right to strike. Later, I see you
rely or accept the proposition that without the right to strike, you are
kidding yourselves if you think you can have meaningful labor rela-
tions. 33 a matter of philosophy, which side are you on?
Dr. WOLKOMTR. It may seem inconsistent but it isn't. We mandated
that we are against the strike in the public sector. In fact, we are the
only union left that does retain the no-strike clause in our constitu-
tion. There is nothing inconsistent in believing a public employee
should not strike against the public. He is part of the public.
Second, in terms of the use of the ultimate weapon
Mr. FORD. I find it inconsistent. What do you mean, nothing incon-
sistent that the public employee is part of the public and, therefore,
doesn't have the right to strike?
Dr. Won:Komi% He is part of the public. He is striking against him-
self. Who is he striking against? Ultimately, it is against the taxpayer,
regardless of the supervisor or agency he is working for. In terms of
relationship of what we are saying, we do not have the ultimate weap-
on ; we don't have it. And until the laws says we do have it, what
we are saying is concessions must be made to the employee in the pub-
lic sector 'because he doesn't have the ultimate weapon and this is the
contention under which we are proclaiming a need for the liberaliza-
tion of collective bargaining aspects of our relations with management
in the public sector. I have made the statement that because we don't
have the right to strike, we should get paid more.
We should be compensated for not having that right.
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Mr. FORD. On the one hand, you say you 'are entitled to special con-
cession because you don't have the right to strike but on the other
hand, you don't want the right to strike. I think it will be hard to sell
the principle to Congress we are not -asking for this right but if you
deprive us of it, we want something special in Terms--
Dr. WOLKOMIR. We need a special instituton to handle labor man-
agement relations in return, not what you have given us in the way of
executive order. That institution should be oriented toward the public
sector concept of organization. I can't yisuali2e any union sitting down
and negotiating classification. I can't see any union sitting down with
the diverse bureaucracy we have and 'collecti,Tely bargaining on every
issue that every agency has.
Mr. Folio. I am sorry to bear you say that because I think we will
have to find a way to make that possible, because the -public employees
are now responsible for the overwhelming majority of time loss. When
you lose it, one way or the other, the taxpayer is involved, whether
or not it is industrial or public operation.
My own feeling, looking at it is it happens because we allow jungle
warfare to continue and there are no rules. There is no way to call a
strike legally and, therefore, there is no legal mechanism to deal with
it. There is no definition of how you go ;bout striking or what is a
proper strike or how you can 'conclude it, because striking is illegal
and it prohibits anybody from officially setting the rules.
As a matter of :fact, when the public strikes contrary to law occur,
everybody gets together fast and fixes a kargaroo court type of ar-
rangement and winks at the law from both 3ides and tries to get to
some agreement.
The vast majority of public strikes in this country are illegal. There
are an infinitesimal number of public strikes in the last 13 years that
were technically legal. There have been an infinitesimal number of
strikes that have, not been successful as a weapon in the hands of the
employee aganist the public and employer, whether it has been the
city rubbish collectors, schoolteachers, postmen or whoever.
I guess the postal strike, is the outstanding example in the Federal
Government.
Dr. WOLKOMTR. May I answer you, Mr. Ford, with reference--
Mr. Form. I am not trying to persuade you to be for the right to
strike. I 'am suggesting you present a dilemma if you draw this kind
of barrier.
Mr. (ELLF,R. Congressman Ford, I think that is the challenge to us
and the committee to find a constructive 'alternative to the strike. The
United Steel Workers proudly proclaim along with the companies,
about the no-strike provision. I think the stri.ce is passe. It may have
and does have its place in the private sector. That is why we are sug-
gesting very special authority and delegation of responsibility to the
authority that is mentioned in virtually all the bills 'presented and
give them special power.
Mr. Foul). I can't agree with you that the industry, as a vehicle, is
going to -have. difficulty as a unit with the indr stria] worker with Only
that industry. T don't know I think that has the national contract. I
belieye, one, that has the national contract. It is a kind of practical
committee for employers. And the entire industry without regard to
any other industry ha; reached the state of where it may ;be working
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toward an alternative. We are a long way from that in any part of
the public sector. And the facts seem to indicate that each year there is
a degree or a geometrical indication of public employees who resort
to strike, or whatever you want to call it, as a way of bringing about
pressure to settle agreements, or to get recognition for their labor
organizations.
Most of the long strikes are, in fact, recognition strikes, labor
recognition strikes. So the fact seems to suggest that public employ-
ees who get a paycheck from the Federal Government are going to
live in the community with public employees at their units who are
being integrated right into the strike in one fashion or another. It
just seems to me naive on the part of either labor or management.
Mr. GELLER. But I think you are oversimplifying this when you are
talking about the proliferation of public strikes in the Federal Gov-
ernment. In the past few years, there have not been any strikes. So
it may be true in counties and municipalities that we are talking about,
but the law for the Federal legislation accordingly does not have it.
Because a public employee is a part of the public, and, therefore, he
strikes against himself. He can be a state taxpayer, or a local taxpayer,
or a common taxpayer, or a school taxpayer, but he is not in the same
relationship to his Government as an employee would be as a Federal
taxpayer.
Mr. HENDERSON. I almost got the impression that you are saying
that it is all right for teachers to begin to strike, but not all right for
the public.
Dr. Wor,nomm. It just so happens that it is that way because they
are very successful in this sort of illegal strike?if I may call it that.
It is akin to the fact that the Secretary of HUD was picked up bodily
and thrown out of his office. And that's how minority groups got what
they wanted. And it is akin to the Indians walking into the BIA to
burn the building down and get what they wanted. That doesn't
make it right.
We could use this sort of tactic and say, "The only way to get any
action today is to burn those damn buildings down."
Mr. HENDERSON. That's why we passed the National Labor Rela-
tions Act, because we didn't want that to happen. And since its been
in effect, we have had very little compared to what the conditions were
in this country in the 1920's and in the very early 1930's. That is the
kind of violence that brought about the National. Labor Relations Act.
Dr. Womcomnt. We have no argument with that, with the ultimate
weapon in the private sector. But let's be realistic. I believe that if you
were to present the right to strike as opposed by both your legislation
and H.R. 13 today in Congress, we would not get anything, absolutely
nothing.
Let's experiment with all institution as recommended by H.R. 10700.
And let's see how we can go on this count.
Mr. FORD. I may say that you just mentioned my bill for the first
time today. And I suppose I am a little bit disappointed.
T)r. WOLICONLIR. My apology.
Mr. FORD. And it is in the very final statement. And you don't give
me. any advice about how I can improve H.R. 9874. I wonder if, after
today, you Could take a few minutes and look it over. -
Dr. Woracomut. We have, Congressman Ford, except that we find
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that TI.R. 13, as a bill, is so akin to the elerr ents that we discussed, even.
to the elements in the definition of which we speak, that on H.R. 13'
we are really speaking about both pieces of ':egislation.
Mr. num. On behalf of Mr. Brasco I will take exception for both
of us. T inn wanted to ask you one quick thing. .
You felt, or your description of what you can perceive as exclusive
bargaining makes this somewhat puzzling to me.
On page 21, you talk about encouraging the bare knuckle activity.
But later you set up a system that seems to me to guarantee that you
are going to have constant conflict between competing unions. I think
it is a fact sometimes that competition between unions sometimes gets
very emotional. And it is rougher than some people would prefer to
have it become. But you suggest that after an organization such as
your own achieved complete collective bargaining exclusive recogni-
tion from the unit, whatever that unit might be, that any other or-
ganization that has 10 percent or more of the employees willing to
ts,
sign up can have the right to have dues checked off. Now, doesn't this
guarantee that you are going to have a min tiplicity of organizations
continuing a fight within a unit to gain recognition?
Now this would destroy the major industries in this country if we
allowed that to happen to the private sector. My God, the automobiles
would go out of business in 1 year if you, let every other organization
that has tried one way or another to get into their bailiwick and come
up with 10 percent and get the dues checked off and so on.
Dr. WOLICOMIR. That's exactly our point. We are not in industry. We
are in the service oriented concept.
Mr. FORD. You have expressed great concern, as I think you should,
and certainly as Congress should, for the staloility in these relation-
ships from the standpoint of our obligation to the public as the formal
employee representing the public as the employer of public employees.
And I am saying to you, that from the standpoint from the employees
to private inierpri se that they would regard the kind of procedure you
have here as a very irresponsible threat to ever having labor peace. And
I cannot understand, on the one band, the great concern you show for
labor strife. That is, one organization against the other, or union strike,
as you prefer to characterize it.
And then, on the other hand, you suggest that there should be com-
pletely imbedded in the legislation, a method to keep this kind of
competition alive.
Dr. WorKomra. Will you buy the idea that after a national election
that if the majority of the Democrats are e:ected to Congress, we
should throw out every Republican and only Democrats speak for the
, Congress?
Mr. FORD. No.. We have another election in :2 years, and let them make
that choice. And under the National Labor Relations Act when union
A gets exclusive bargaining, they have protecCon of that for 1 year.
At the end of that year, you can have anoth?,r election, like we do
for Congress, and maybe the other union will win somehow.
Dr. WOLK0241TR. When the restrictions on that outlined today are so
obvious no one even has an opportunity to inteject themselves when
there is an exclusion of recognition today?none at all. You can't even
get to the membership. You have got to meet them in bars, and in
saloons, and in basements, outside installations, if you are going to pro-
voke any kind of interest.
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yer:1,-nal, and not at the, necessarily, national levels because the people
1,-, we are concerned with are at the local level. And we are concerned
with their immediate needs and condition.
I am not going to sit in Washington, D.C. and negotiate a contract
for the Government employees across the land. I'd be crazy if I tried
it. We are dealing with some different concepts.
We are not an industry producing an end-item. We are dealing with
services, services of all kinds. And that's why we need something
different.
Mr. HENDERSON. Thank you very much, Dr. Wolkomir.
We have some other questions the staff has prepared, and I am sure
Mr. Ford has. We will ask the staff to coordinate them for you to get
into the record. I will ask that the staff may insert those for the record
at this point.
[The following information was furnished
1. We do not subscribe to the notion that an employee should be limited to
one grievance procedure. At present all agencies have a grievance procedure which
permits the filing of a grievance on a wide variety of matters. These matters
may also be the subject of a negotiated grievance procedure. There may, however,
be deficiencies or gaps in either the agency or the negotiated procedure. Because
there may be gaps or deficiencies in the procedures, it is our belief that since
allow him to present his grievance in an orderly fashion. Otherwise, an employee
complaints, the employee should be permitted to use that procedure which will
allow him to present his grievance in an ordrly fashion. Otherwise, an employee
with a legitimate grievance could be prevented from filing a grievance simply
because of a lack of procedure.
2. Language such as mandatory payment or equivalent fees as a condition
of employment are something different than the fair share fee that we advocate.
Our requirement for achieving the fair share fee status is a severe one in that
it requires a majority of the employees in a unit to vote for such fee. We
believe that the result of such an election reflects a democratic determination.
he CSC objection that fee is contrary to merit principles is without merit.
Advancement will continue to be based on the merit system. indeed, we would
suggest our concept will improve the merit system in that it will provide greater
resources thereby allowing us to police the system. Political appointees to career
appointments belie the belief of a pure merit system. We think the system will
be improved.
The CSC's objection also fails to consider the fact that merit principles are
already circumscribed by policies and regulations which prevent the true func-
tioning of the merit principle. For example, many agencies impose a mobility
requirement on their employees as a condition for advancement. All agencies
have certain "goals" or "quotas" superimposed over their employment prac-
tices which are the antithesis of merit.
We would suggest that if "goals" or mobility requirements can be imposed
without damage to the merit system, so too can a fair share fee.
3. We believe that in order for meaningful negotiation to take place all
nutters within the discretion of the head of the agency should be on the table for
negotiation. This would wipe out any broad range of unnecessary regulations
which are issued unilaterally by the various agencies. We do not challenge
the ultimate right of management to hire, fire, promote or the accomplishing
of its programs and missions. However, we believe that the method and policies
adopted to carry out these functions and responsibilities must Include the oppor-
tunity for negotiation on those matters which could affect the conditions of
employment.
Our statement that management rights could not be bargained away was
intended in the context of the preceding statement. That is, certain fundamental
inattors such as the mission of the agency, which is established by the Congress,
cannot be bargained away. The basic charter of the agency is a matter which only
the Congress could alter. Similarly, the manner in which the agency accomplishes
its mission are matters which should not be bargained away.
4. In our suggestion for compulsory arbitration, we would give free rein to
the arbitrator to negotiate or Impose an appropriate determination in a nego-
tiation. It does not necessarily require tie suggestive method for settlement. It
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If there are people who are there who are interested in what they
believe, I say they should have a right just like the Republican has a
right as a minority party to express themselves and have a voice in
Congress. We completely eradicate this right if any union may lose an.
election.
Mr. Foam The largest single union in the country is the Teamsters.
And it would come as a great shock to them if you are to tell them that
it is impossible for an outside organization to go in where somebody
else has exclusive bargaining rights to win im election.
Because that's one of the ways that they have become the largest
single labor organization in the country,
Dr. WOLKOMITIR. But I don't want to take any of your time in dis-
cussing the methods that they have used to come creeping into the
Federal sector. And that's what we want to keep out of the, Federal
sector.
Mr. GETZ,ER. I think it is important to rt)te, Congressman, that this
IS not a novel idea. This is the situation as it existed before the change
in the Executive. order. And your fears: abcut what would happen just
didn't happen when it was in effect.
Dr. WotaKomni. Seven years. It was in effect 7 years and it was
wiped. out. only because of the pressure of whom? The monolithic union.
Mr. Foci). Well, presumably, whatever we ended up with, whether
it was Mr. Henderson's bill, or Mr. Bra sco's or a combination of
!nine and theirs, I have no idea. We are going to have a much more
effective bargaining system than either Executive order provided. And
that's why the question of exclusive targaining rights will be
ill) pOrtant.
You now have exclusive bargaining rights and the meaning of it pro-
vides a situation where you have relative peace.
Ono() the. people with exclusive bargaining rights really have the
ability to act like a labor union representing their employees in all
aspects of their labor management relationships, then you can have
real competition for that privilege. You iria:7 not have had the incentive
in the past.
1/r. WOLKOMTE. But we refuse to recognize the private sector concept
of un ionization. And I think this is 'where we differ, basically, in our
original premise.
.Mr. Foal). I don't suggest that it is an idyllic system. I am simply
suggesting that it doesn't make much sense for us to pretend that the
last 40 years of history in labor management and the National Labor
Relations Act doesn't exist, and hasn't produced for our economy a
stable labor management situation that in absolutely essential to a
country as diverse as this one is. And our Federal Government repre-
ents the national diversity, and we are going to have to find a way to
wrestle with this problem, and with some of the wisdom that was dis-
played by Congress back in 1035.
Dr. Wousomin. Well, we don't, want to go back to the 1.930 labor
movement either. But, ba sed upon our experience under the National
Labor Relations Act as amended. let's not. also inherit their mistakes.
Let's, through, these years, benefit hy the mistakes, not incorporate
them into the public sector. That is all we are saying.
And., I believe that's why there is so much rhetoric in the testimony.
And that's why we want representatives at. the local level, not at the
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does not require that the arbitrator be from outside the Government. As a
matter of fact, we would encourage the establishment of federally employed
arbitrators or the utilization of Administrative Law Judges. The important
Ingredient of settlement of impasses is to provide a speedy resolution within the
Government Labor Management structure. .
5. The simple method for broadening the scope of bargaining is to permit
unions to negotiate on all matters that are discretionary to the agency.
On those matters that are regulated by the Civil Service Commission, a Board
consisting of an equal number of Management and Union officials should sit
regularly to negotiate on the issuance of the Civil Service Commission regula-
tions implementing laws and Executive Orders. This Board would be chaired by a
full time employee agreeable to both management and the employee organization
groups.
6. Agency systems of intra-management communication and consultation with
supervisors or supervisory associations should be eliminated since they appear
to take on the identification of an organized relationship.
Management has ample opportunity to train supervisors in whatever philoso?
phy it wishes.
Mr. HENonusow. We appreciate your appearance today, and I think
that your presentation has been in your usual, very excellent, thought
provoking manner. And I appreciate it very much.
Dr. Womcomuz. And thank you very much.
Mr. TIENDERsoiv. Our next witnesses are Mr. Vincent L. Connery, the
national president of the National Treasury Employees Union and
Mr. Ralph Flynn, president, Coalition of American Public Employees.
It is our pleasure to welcome you gentlemen this morning. You may
introduce your associates and then proceed.
Mr. FLYNN. Thank you very much. Well, first I would like to thank
you for giving us the opportunity to appear before this committee,
and also to commend the committee for taking the effort to consider
such an important issue of national policy.
STATEMENT OF RALPH I. FLYNN, PRESIDENT, COALITION OF
AMERICAN PUBLIC EMPLOYEES
Mr. FLYNN. The Coalition of American Public Employees wishes
to go on record in support of H.R. 9784, introduced by Mr. Ford.
The coalition consists of the National Education Association, the
American Federation of State, County, and Municipal Employees
(AFL?CIO), and the National Treasury Employees Union. These or-
ganizations represent 4 million public employees at the Federal, State,
and local levels of government with a combined membership in excess
of 2 million public employees.
Our interest in sound collective bargaining legislation for Federal
employees is threefold. First, as a matter of equity and sound public
policy, we believe the right of public employees to collective bargain-
ing should be guaranteed in law and not Executive order as adminis-
trative fiat. Second, the unions within our coalition have determined.
that they need collective bargaining legiSlation to meet the needs of
their members in Federal service because what exists under the Exec-
utive order and the patch-up remedies proposed to head off legislation
are inadequate. Third, because of the ripple effect caused by the Fed-
eral Government's treatment and relationship with its own employees
on public employees at the State and local levels.
Among the major nations of the Western World, the United States
stands out as the only one without legislated rights for its public em-
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ployees to bargain collectively with government. Nations and s
far less stable than ours and with only a friction of our resouro
shown that government can bargain collectively with its
without jeopardizing its public trust. If any nation has the maturity
and confidence in its own institutions to deal with its employees as
responsible adults, it should be our Nation. And in our society, collec-
tive bargaining is the mechanism we use to determine employment
relations among adults.
The most depressing quality in Chairman Hampton's extended
statement to this committee was its tone of insecurity. Fear, if you
will, that our Federal structure is a house of cards that could topple
under pressure from its organized employees. I believe that if our sys-
tem can survive Vietnam, the drug culture, and Watergate, we have
nothing to fear from a collective bargaining law. The concerns ex-
pressed in Commissioner Hampton's statemeiit read like a compilation
of all of the hobgoblins which have been raised in State legislatures
across the country in the last 10 yea rs?so
'rereignty, the impact of
collective bargaining agreements on taxation, and the ultimate
-clincher?the need for uninterrupted -public service.
Not one of these terrible concerns has been realized where a State
government has enacted public employee collective bargaining
legislation.
Commissioner Hampton is on more familiar ground when he balks
at the proposed collective bargaining legislation because of:
* * * something we dare not lose sight of. Efficiency, costs, performance, mis-
sion accomplishment, management's capacity to make essential decisions and
to manage?have to be accounted for to the public.
am sure that every manager since time immemorial has uttered
the same plea when faced with the specter of collective bargaining.
But while such a position is predictable, it must be rejected. For al-
though Alfred Sloane and Henry Ford said much the same thing in the
mid-1930's, both G.M. and Ford would now concede that, overall, col-
lective bargaining has been an asset to the indusny.
The coalition is in support of H.R. 9784 because we believe that this
is the best bill under consideration to give full collective-bargaining
rights to Federal employees,, and incidentally, we do believe it is quite
distinct from H.R. .13, as well as H.R. 10700.
Perhaps the most striking feature of the bill is its provisions for
resolving impasse. We believe that public Unions and public marta,ge-
ment have a moral duty to exhaust every mediative remedy in their
efforts to reach a settlement. However, should these good faith efforts
fail, we believe that public employees have the tight to strike and the
privilege to waive that right in favor of binding arbitration, should
they so desire. The impasse procedures in H.R. 9'84 provide for media-
tion, but, should mediation fail, the union would move on into fact-
finding, retaining its right to strike, or opt for binding arbitration
and waive its right to strike in that negotiation. The option for binding
arbitration as contained in H.R. 9784 is an extension of the right, to
strike; the union formally chooses not to exercise its right?strike,
in return, for an acceptable alternative?binding arbitration.
There is nothing bizarre or even untried in this mechanism to try
to aceommodate, the right of public employees to strike with the fact
that public employees would often prefer to go to binding arbitration
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rather than strike. Since 1967, Canada, under its Public Service Staff
Relations Act, has utilized substantially the same procedure for im-
passe resolution.
In April of 1973, the Public Service Staff Relations Board of
Canada, under the direction of its Chairman, Mr. Finkelman, was
ordered by Parliament to conduct a study of the act and to make
recommendations. Between March and May of this year, Mr. Finkel-
man delivered to the Government a three-volume assessment of the
7-year experience under the act with recommended changes to improve
the law. Significantly, there is no recommendation to eliminate the
strike/binding arbitration option.
Any lingering doubt about the need for legal protection of Federal
employees' rights has been dispelled in the recent lawsuit won by the
National Treasury Employees Union to secure backpay for all Federal
employees. Ilad NTEU nothing stronger to lean on than administra-
tive fiat, there would have been no basis for a lawsuit.
The coalition believes that collective-bargaining legislation for Fed-
eral employees is an idea whose time has come. And H.R. 9784 would
best do the job.
Thank you.
Mr. HENDERSON. All right, Mr. Connery, would you like to proceed
at this time?
STATEMENT OF VINCENT L. CONNERY, NATIONAL PRESIDENT,
NATIONAL TREASURY EMPLOYEES UNION
Mr. CONNERY. Mr. Chairman, in addition to my statement, we have
prepared a rather comprehensive position paper, which I would appre-
ciate being introduced into the record in conjunction with my
statement.
Mr. HENDERSON. All right, Mr. Connery, with regard to your posi-
tion paper' it will certainly be received. I would like for the committee
to momentarily reserve the right to decide whether or not it should be
printed in full in the hearings. But it will be very helpful to us.
It is obvious, in just looking at the index, that it would be very
helpful to us.
Is there any other highlight of your position that you would like to
take a moment or two to comment on?
Mr. CONNERY. Well, I would say, Mr. Chairman, that our absolute
support for H.R. 9784 is paramount in my statement. We believe it
constructive in all sectors, and it would cure the wrongs, which cur-
rently exist in the present program.
I also go to great lengths to take issue in my statement with previous
remarks of Chairman Hampton of the Civil Service Commission.
And I would call attention to those areas in my statement.
Mr. HENDERSON. Your prepared statement will appear at this point
in the record.
[The statement referred to follows:]
PREPARED STATEMENT OF VINCENT L. CONNERY, NATIONAL PRESIDENT,
NATIONAL TREASURY EMPLOYEES UNION
My name is Vincent L. Connery. I am President of the National Treasury
Employees Union, formerly the National Association of Internal Revenue Em-
ployees. Our union represents over 6(L000 employees of the Treasury Department,
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including more than 90 percent of those Internal evenue Service employees who
are eligible to be represented by a union.
We appreciate this opportunity to present our views on the current labor rela-
tions program in the Federal government and the need for collective bargaining
legislation. To adequately deal with this vital and complex subject requires a
great deal of time. We do not wish to belabor this Subcommittee, however, with
a lengthy oral presentation. We have prepared an exhaustive analysis of the
present program and detailed recommendations for the future of collective bar-
gaining in the Federal sector which, I would now ask, be inserted into the
hearing record.
Since its inception twelve years ago, the Federal labor relations program has
been governed by Executive Orders; first, ExEcutive Order 10988 and then
Executive Order 11491 as amended in 1.971 by Executive Order 1161.(1. Sonic say
that for more than a decade we have been engaged in a "noble experiment"
which has proven so successful that it should remain as such for years to come.
With the misplaced enthusiasm of a proud parent, these propagators of the
present program proclaim that because the child has flourished it should never
become a man.
We do not believe, as Chairman Robert E. Hampton of the Civil Service Com-
mission attempted to convince the Subcommittee, that the success of a labor
relations program call he measured by contrived statistics extolling the number of
employees represented by unions and the diversity of provisions in existing
collective bargaining agreements. The true test :must be the responsiveness of
the program to its stated goals. We must judge the program on the basis of
whether or not it is fulfilling the promises and expectations that it has set forth
for employees and their union representatives.
To do this for the Federal sector, we need only fook to the preamble of Execu-
tive Order 11401, which states, in part that "the well-being of employees and
efficient administration of the Government are beuefited by providing employees
an opportunity to participate in the formulation and implementation of person-
nel policies and practices affecting the conditions of their employment." When
the state of the present program is compared to his fundamental precept it is
not difficult to discern how little we have progressed over tile past twelve years.
Despite its declarations of high purpose, the lilxecutive Order has failed to
promote or even foster true "bilateralism" in the Federal sector. Faced with he
speetor of legislation, management unilaterally prffiuced Executive Order 11491,
which precludes any effective voice for Federal employees and their union repre-
sentatives despite its verbiage designed to give the impression of bilateralism
trumpeted by its salesman, Mr. Hampton.
By its terms, the Executive Order prevents employees from negotiating in areas
that have a. significant impact on their job. For example, it gives management the
complete right to determine areas of negotiability, to reject the terms of a collec-
tive bargaining contract even though it has been agreed upon by both parties, and
to decide which employees in the same office or shop are to be covered by the
agreement. Such needless roadblocks on 'Federal collective bargaining are but
part of the strangling restrictions being sM.d to ycu by Chairman Hampton as a
model of bilateralism.
Even in the minor and relatively unimportant areas which remain subject to
five Order 11491, whieh states, in part, that "the well-being of employees and
their unions have been so narrowly restricted as to render much of the negotia-
tion process a sham. Unions have been denied the right to effectively negotiate
promotion plans, assignments of work, access to inThrmation necessary to process
grievances, performance evaluations, and many other matters necessary to have
any real impact in a oargaining process. The result, of course, as explained in
detail in our accompanying position paper, is that the rights of management
reign supreme.
Chairman Hampton, in appearing before this Subcommittee, sought to ;give"
the impression of a wide range of negotiations taking place in the .Federal sector
by citing the fact that there are 1,904 agreements in the Federal government and
by presenting a laundry list of subjects contained in the contracts. What Chair-
man Hampton did nor disclose is rhat the substance of these negotiations are
extremely limited and have no real effect on the management-ordained person-
nel regulations previously in existence at the agener or facility.
In essence, then, there is no bilateralism, there is no true employee participa-
tion in the "formulation and implementation of personnel policies and practices"
as envisioned in the beginning some twelve long years ago. Bureaneracy has
triumphed to date. Federal managers have clearly up to now, thwarted the will
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of Congress, as the rest of us have always understood it, and the rights of Federal
employees to negotiate on significant matters "affecting the conditions of their
employment."
This should occasion no surprise; the results flow directly from the built-in
unbalance of the Order relative to the basic rights of the parties. The original
vision of bilateralism and unbiased third-party adjudication lies in tatters, the
management controls every aspect of the elaborate, but meaningless, negotiation
rituals.
The Executive Order provides for a Federal Labor Relations Council com-
posed of the Chairman of the Civil Service Commission who serves as the Chair-
man of the Council and in many respects is the Council, the Director of the Office
of Management and Budget, and the Secretary of Labor. It is the responsibility
of the Council to review decisions of the Assistant Secretary of Labor for Labor
Management Relations and to determine major policy issues concerning the labor
relations program in the Federal sector, including negotiability disputes. In
effects, the Council serves as the equivalent to the National Labor Relations Board
in the private sector.
In his testimony before this Subcommittee, Civil Service Commission Chairman
Hampton described this system as providing "third-party machinery for the res-
olution of disputes." Such a description, however, is not only misleading, it
borders on the absurd. "Third-party machinery" to most of us means that a dis-
interested party reviews an action and makes an independent evaluation and
decision; certainly, no one can claim, the Council members to be disinterested
parties since each is a high-ranking management official accountable directly
to the President.
It is impossible for these men to change their managerial hat with the hat
of an impartial arbitrator in labor-management disputes simply by changing their
title for a few moments a month. To have to rely upon agency heads for un-
biased decision-making in union controversies with other agency officials is as dis-
heartening to the unions as it would be for Federal managers to have their
differences with unions adjudicated by a council of three union presidents.
Even the Assistant Secretary, who is charged with the responsibility for mak-
ing initial determinations in representation cases, unfair labor practice charges,
and grievability and standard of conduct determinations is not an unbiased third-
party. How can he perform his job in an independent manner when lie is ap-
pointed by, and is directly responsible to, one of three men who sit on the
appellate body which reviews all of his actions? In addition, the same situation
exists with the Assistant Secretary of Labor as with the members of the Council:
lie is a manager who must carry out the managerial policies of the Secretary
of Labor and the President. If this is third-party machinery, or objective third-
party adjudication in any sense of the word, we would prefer being left to the
mercy of Mao's Red Guard.
No one is taken aback that Chairman Hampton would forsee no "demonstrated
need" for a major change in the present program. Certainly, Chairman Hamp-
ton, having played a major role in the genesis of Executive Order 11491, has ac-
complished, thus far, the purposes of the present Administration in effectively
throttling the development of real collective bargaining and reasonable labor rela-
tions in the Federal government.
Needless to say, for bilateralism and unbiased third-party decision-making to
ever have any real meaning in the Federal sector, there must be a complete
alteration of the present program. As a minimum, employees must be not only
guaranteed but provided impartial and objective decision-making in their disputes
with management, and even more important, they must be allowed to meaning-
fully participate through a system of collective bargaining in all matters, includ-
ing the negotiation of pay and fringe benefits, which are of vital concern to them.
In explaining the allegedly wide scope of bargaining and "bilateralism" in the
Federal sector, Chairman Hampton described the present discussions for deter-
mining wages for over 2 million General Schedule and military employees as a
"close first cousin to collective bargaining." This is not the case. If it were, such
bargaining would have been abandoned years ago as unfair to both parties.
For example, I have served as one of three union Presidents who are mem-
bers of the Federal Employees Pay Council for three years and, during this time,
neither the President nor his Agent, who happens to be Mr. Hampton together
with the Director of the Office of Management and Budget, have not made any
effort to establish a "bilateral" relationship with the Pay Council. The discus-
sions between the Pay Council and the Agent, rather than a "close first cousin
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to collective bargaining," more Closely resemble Greek theatre, where the fatal
flaws of the system foredoom the result .to predictable failure.
To fully appreciate the widespread unilateralism in the present pay-setting
system, one need only look at the structure of .tht Federal Pay Comparability
Act of 1970 and the parties involved. The President's chief budget and manage-
ment officers serve as the Administration's representatives in discussions with
the Council. Before they begin, the budget for the next fiscal year has already
been determined as has the pay raise which is to be accorded General Schee-ale
and military employees. Because there is no requirement for "true negotiations"
between the Agent and the Council, any recommendation by the Council which
WO Llia increase the pre-determined ligure beyond that already budgeted, has been
automatically rejected by Mr. Hampton and his asscciates.
Once the discussions between the Council and the Agent draw to a close, the
Agent then submits its recommendation for the October adjustment to the Presi-
dent, as does the Council and the President's Adviso7 Committee on Federal Pay.
However, the President is not bound by the recommendations of any of the
parties and since it is his Agents, which are not enly charged with submitting
pay recommendations under the Comparinetity Act but also with determining
he Ee.deral payroll in their capacities as terector of the Office of Management
and Budget and Chairman of the Civil Service Commission, it comes as a surprise
to no one as to which yearly report he has opted to implement.
This system then has been doomed from the beginning. The President has
been in complete and total control .of the pay-setting process. To describe this
almost dictatorial authority of the President and his Agents as a "close first
cousin" to anything but total itarlanism is literary license gone wild.
,When Executive Order 10988 was issued in 1962, it was hailed by many as
the public employee "Magna Carta." At that time, only the State of Wisconsin
had enacted legislation providing collective bargaining rights to public em-
ployees. Today, more than a decade later, thirty-three states have adopted legis-
lation requiring public employers to engage in: collective bargaining with all or
some of its public employees. Thirteen states authorize collective bargaining by
statute, Attorney General opinion, or court decision. Only nine states have failed
to provide any collective bargaining rights for publ.e employees. It is truly ironic
that the alleged "model employer" who spawned so much legislative activity
among the states remain itself, twelve yewrs later, pith no legislation.
Of all the nations in the free world, our government is the only one that has
denied its workers the right to engage in full collective bargaining. Federal em-
ployees have been excluded from virtually all of the benefits of a collective bar-
gaining system that has enabled untold millions of public and private sector
workers in this and other countries to prosper and grow. As things are, Federal
employees are prohibited by statute and Executive Order from negotiating on
pay, classification, workweek, retirement benefits, health and life insurance, and
a liost of other bread-and-butter issues.
They are also statutorily forbidden from exercis.,mg the right to strike or even
to seek third-party binding arbitration in such matters as disciplinary actions.
And, as we stated earlier in our testimony, even within those areas which are
subject to collective bargaining, Federal enibioyees have been precluded by the
Executive Order and the decisions of the 1+ steral Labor Relations Council from
engaging ia full negotiations. To me, the;i inure a specter of a Federal work-
force in chains than the fantasy of bilai era lism painted by Chairman Hampton.
For nearly forty years, private sector workers have enjoyed the protections,
rights, and benefits under a collective bargaining system that has given sub-
stance to the noble principals laid down by our Founding Fathers. Postal em-
ployees, school teachers, policemen, firemer., sanitation workers, and other civil
servants have been granted the right to engage in full collective bargaining.
There is absolutely no justification for denying to Federal employees that which
bas been accorded to all others. What is necessary and beneficial to the workers
in private industry and in the states in similarly so to his Federal counterpart.
We are all too familiar with the preachings of those purveyors of doom and
gloom who assert, among other things, that. colleclive bargaining in the Federal
sector would have a devastating impact on the "merit" system, would jeopardize
a Federal managers ability to manage in the publie interest, and would interfere
with the "need for uninterrupted public service." 'Are deal with these arguments
at length in our position paper and to them, we say at this time that years of
experience in the private sector and in the states have proven that these phan-
toms are more aberrational than real.
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These, and many other arguments against collective bargaining, have been
raised by private and public sector management, as well as in state legislatures
across the country, and not one of their onerous predictions has ever been realized.
In point of fact, collective bargaining has proven as beneficial to industrial and
state management as it has to the worker. There is no evidence whatsoever to
show that the experience gained in the private and public sectors is not applicable
to the Federal government or that the problems in the Federal sector are so
unique as to require further "experimentation" under Executive Orders before
legislation.
Executive Orders may be fine for short-range interim programs, but they are
ill suited to serve as the governing doctrine for a program as long-range and
important as the Federal labor relations program. What is needed is a program
grounded on statute which will provide Federal employees with full collective
bargaining rights, including the right to strike.
The total unilateral arbitrary control of the program may be seen in an
occurrence just yesterday. Based upon Section 22 of the Executive Order, NTEU
negotiated clauses in all its collective bargaining agreements which provides for
advisory arbitration of adverse actions. This clause has been good for the govern-
ment, for its decisions for the first time have been subjected to outside review
rather than review by another arm of management in the form of the Civil Service
Commission. Now the President of the United States, at the insistence of the
CSC has issued a new Executive Order which has the effect of abolishing the
negotiated advisory arbitration clauses covering 70,000 employees which we
represent. Thus, we see when the CSC is even peripherally challenged, the
President of the United States unilaterally comes to its assistance to the detri-
ment of thousands of employees.
Employees must be statutorily guaranteed the right to negotiate on matters
of substance which are vital to their job rights and security; matters no pre-
empted from the bargaining table by law and administrative action. They must
also be assured that their disputes with management will be adjudicated by an
impartial body completely independent of Federal management, and charged with
administering the Federal labor relations program.
None of these are unrealistic goals. Congress now has before it a bill which
would grant Federal employees each of these rights. H.R. 9784 would remove
Federal employees from the cave of unilateral and paternalistic management
decisionmaking and permit them to join their public and private sector counter-
parts in an era of enlightened bilateralism. We fully support H.R. 9784. Cer-
tainly, it Would considerably improve the present labor relations program in the
Federal government.
H.R. 9784 provides for the creation of an independent Federal Employees
Labor Relations Board which is to consist of five members appointed by the
President with the consent of the Senate. Much like the National Labor Relations
Board, the Federal Board would he vested with the responsibility for adminis-
tering the labor relations program in the Federal government and with "pre-
vent (ing) any person from engaging in any conduct in violation of this Act."
In effect, it would combine the present functions of the Assistant Secretary of
Labor for Labor-Management Relations and the Federal Labor Relations Coun-
cil, but, most importantly, it would remove them from the tenacles of manage-
ment domination.
To no one's surprise. Chairman Hampton strenuously objected to the creation
of an independent authority when he testified before this Subcommittee. Since, as
matters stand, he and two other management officials are in total control of the
ma chinery under the present program, his position. while understandable, is far
from fair. Yet, if fairness and eolith- to employees rather than management
domination is to be the criteria, then it is an absolute necessity for the govern-
ing authority in a labor-management relations program to be completely inde-
pendent of both unions and management.
Each of the bills now before Congress call for the creation of an independent
authority to administer a Federal labor relations statute. Not one of them
would retain the present umbilical cord which so closely links the Federal
Labor Relations Council and the Assistant Secretary to Federal management.
We believe that the Federal Employees Labor Relations Board as set forth
in H.R. 9784 is manifestly the most logical and practical method of running
the Federal program in an orderly and constructive fashion without prejudice
to either party.
In addition to establishing an independent governing authority, H.R. 9784
provides for full collective bargaining on all matters of concern to Federal
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employees, including the right to negotiate On Wages and fringe benefits. The
negotiations must take place at the level of exclusix e recognition. In contrast,
H.R. 10700, which is presently being considered by ttis Subcommittee, seriously
limits the scope of bargaining by prohibiting negotiations on wages and fringe
benefits and by maintaining, with one ineffective exception, the management
rights clause contained in Executive Order 11491.
This sole exception concerns the issuance of changes in personnel policies by
agencies other than the Defense Department. H.R. 10700 establishes, in this
regard, an elaborate procedure for discussing charges in personnel policies.
if the agency head seeks to change a person :net policy, then negotiations take
place: however. If the policy issuance is from the Civil Service Commission or
covers more than one agency, it is referred to the Federal Labor Relations Board
composed of five representatives from the unions, five representatives from
management, and a Chairman appointed by the Cha" rman of the Civil Service
'ominission. The Board would then meet to deterndne the merits of the proposal
for change.
We believe that the elaborate procedure contained in H.R. 10700 for consider-
ing changes in personnel policies falls far short of employee participation in
matters which affect them. Employees band together in collective action and
appoint specific individuals to represent their interests. Under the procedure out-
lined in H.R. 10'1'00, their designated representatives may or may not represent
them on the Board. And even if on the Board, their vote may be overruled by
management or other unions. This procedure is totall:t unfair and undemocratic.
Elected represerrntives should be allowed to perform their function of repre-
senting the interests of their constituents.
Tri addition, we cannot support H.R. 10700 for it would simply perpetuate many
of the inequities that undermine the present labor-relations program. Not only
does this bill forbid negotiations on wages and frirge benefits, the expansive
management rights clause would exclude from corlective bargaining almost
every matter of importance to Federal employees. The continuation of such a
clause merely Increases employee frustration over taeir inability to have any
voice in matters which directly affect them.
There is considerable experience in the private sector as well as in the states
which warrants the conclusion that the place for a management rights clause
lies in collective bargaining agreement itself and int in an Inflexible statute.
Certainly. this is so, since subjects which were not 2onsidere0 appropriate for
collective bargaining in 1935 are now common at collective bargaining tables.
Our world is much too complex and fast-changing to limit the subject of col-
lective bargaining by a statutory management right.; clause which could very
well be outdated within the year.
The Congress itself has recognized this in previous legislation. The Postal
Reorganization Act sets forth a specific list of management rights but goes on to
provide that each of these rights are subject to alteration through collective
bargaining. Quite rightly. Congress concluded in this Act that collective bargain-
ing rather than statutorily mandated management rights is the appropriate
method for ensuring problem solving.
In his testimony before this Subcommitteo, Chairman Hampton raised the
serious question of how could the Congress turn over the authority for economic
benefits, classification, and other conditions of employment to 3400 separate
bargaining units. He characterized the alleged problem of having Federal em-
ployees who perform identical functions, but yet *nal receive different pay and
fringe benefits, as an ominous threat to the public and the power of Congress.
However, a close analysis of this issue, as set forth in our position paper reveals
that Chairman Hampton's "problem" is totally illusory and like the tinman in
the Wizard of Oz---has neither substance nor heart.
What irony that Chairman Hampton should be t le man to bring this up!
The Commission, itself, from the very beginning directed Federal agencies not
to recognize large units and, in fact, ordered a policy which would insure small,
fragmented units of recognition. We, and other Federal employee unions, have
attempted to consolidate small units of recognition into larger units so that
we could effectively negotiate with management. However, we were denied this
right by Mr. Hampton who now seeks to use this as,: an issue to preclude full
negotiations in the Federal sector.
lb e that as it may, the proliferation of bargaining units has not deterred unit
negotiations in the states, municipalities, or even in the Federally controlled
Tennessee Valley Authority. As a matter of fact, the State of Michigan. which
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has a very sophisticated labor relations program covering public employees,
presently has 3500 collective bargaining contracts in 1400 units of government.
No state or municipality which engages in unit bargaining has collapsed because
of the existence of numerous collective bargaining units. Nor has any state legis-
lature resisted legislation on the basis that it would be unable to conduct negoti-
ations on the unit level.
H.R. 9784 defines an appropriate bargaining unit in the same terms as the
present Executive Order: community of interests, effective dealings, and effi-
ciency of operations. This definition strikes a reasonable balance between units
which are so large that individuals cannot participate in the bargaining process
and units which are so small that they are impossible to administer. It recog-
nizes that like-situated employees will better understand their own problems and
press their unique need as well as the desire for direct participation which causes
employees to form their own organization rather than become part of a larger
organization in which they may feel themselves strangers.
We do not believe that the Federal government would in any way be harmed
because Federal employees performing essentially the same work chose to receive
,different pay and fringe benefits. After all, the essence of collective bargaining
is participation; and if employees in one unit decide to negotiate working con-
ditions and pay which differ from that of another group of employees, we think
they should be allowed to do so.
For example, employees in Del City, Oklahoma, may be satisfied with a lower
salary and a higher employee contribution to a pension plan than employees in
New York City who wish a higher salary and a lower employer contribution.
Also, employees who must drive their own vehicles on government business may
desire a higher mileage reimbursement rate and a lower salary than employees
who remain strictly in the office. The examples are endless, but the point is
clear: unit bargaining recognizes diversity and the divergent needs of employees;
whereas, employee participation on a government-wide basis may very well fail
to satisfy the needs of any of the employees.
Chairman Hampton also claims that the supersedure of existing laws and
regulations by a collective bargaining statute which permits full negotiations in
all areas of concern to employees would create havoc within the Federal govern-
ment. Once again, he cites no proof of this claim. Da fact, numerous state legis-
latures have faced and resolved this problem as did the Congress itself in the
Postal Reorganization Act. It is apparent that Chairman Hampton is not familiar
with either the provisions or experience of the Postal Reorganization Act which
contains protective provisions for the continuance of compensation and benefits
and other terms and conditions of employment in effect prior to the implemen-
tation date of the law.
The Postal Reorganization Act provides that compensation, benefits, and terms
and conditions of employment will continue to apply unless changed through
collective bargaining, with the proviso that any change in fringe benefits "must
result in a program of fringe benefits which is not less favorable on the whole
than the fringe benefits in effect on the effective date of the law." In addition,
Postal employees continue to be covered under the Federal Employees Compen-
,sation Act and the Civil Service Retirement system.
Thus, the question of supersedure was resolved in the Postal Reorganization
Act by retaining some statutes in total such as the Civil Service Retirement Act
and the Federal workman's compensation law, while other statutes were estab-
lished as the base from which negotiations could begin. We believe that this is a
fair and just procedure and would strongly recommend that it be incorporated
into the Federal labor relations statute.
Included in H.R. 9784 is a provision establishing an agency shop, whereby,
those who elect not to join a union must pay a fee equivalent to the amount of
memilers' dues. The agency shop is a widely accepted doctrine in the private sector
and we know of no good reason why it should not be authorized in the Federal
sector.
As a problem-solving mechanism, collective bargaining assumes that unions
are free to act, and have the wherewithal to act. A union must have the security
and policy making stability that flow from the fact that policy and strategy
decisions affecting all employees in the bargaining unit have been sanctioned
by a union membership that is coextensive with the bargaining unit. And it must
have the financial stability resulting when the costs entailed in exercising its
responsibilities are shared by all employees in that unit.
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Like Chairman Hampton, opponents of the concept of an agency shop have
traditionally charged that it is discriminatory, that it disrupts the "merit
principal," and that it: violates an employee's right to work. These specious
arguments are dealt with at length in our position paper. It is sufficient to say
here that when viewed against court decisions and a realistic appraisal of work-
ing conditions in the Federal sector, they prove to be just as groundless as other
charges which have been levelled against full ,!ollective bargaining in the.
Federal sector.
One of the most nefarious provisions in H.R. 10710 stipulates that although a
union has exchasive recognition in a unit it is merely "entitled to represent and
bargain collectively for employees in the unit." Thii clause has been interpreted
by the sponsor of H.R. 10700 to mean that a union could negotiate a collective
bargaining agreement covering only members. We are convinced that this provi-
sion would lead to great instability and completely undermine the collective
bargaining process. All an agency need do is conduct long and expensive nego-
tiations for the benefit of union members and then grant the same benefits to
non-members through regulation. This portion of H.R. 10700 could have the
effect of discouraging membership in unions and ending all union activity in
the Federal government
Coupled with the expanded right of negotiation must be the right to strike.
For the past several years, the incidence of strik es by public employees has
been very much on the increase. Experience has taught us that the hoary adage
that strikes ;ire intolerable merely because of the ;mblic nature of government
work is no longer acceptable. Strikes by Federal employees are both thinkable
and tolerable. .A.ppeals to a rather amorphous "public interest" can no longer
sustain a blanket prohibition against any strikes, under any circumstances,
by any class of Federal employees. The public interest does not support such a
prohibition; nor does the public itself. This is evinced quite clearly from the
experience of the letter carriers and the air traffi?aintrollers.
To permit Federal employees the right, to strike would not open the floodgates
to wholesale work stoppages. All experience in the states has proven otherwise. In
these states wIrich have granted public employees the right to strike, the in-
(lence of atrikes has greatly diminished. Nor need t Oe right to strike invite dis-
ruption of vita), affairs of state. Even in the priva a, sector the right to strike
is not absolute ; it is subject to regulation. Strikes may lie delayed on an
appropriate showing and enjoined where Ihey threaten a bona fide national
emergency.
The strike provision in H.R. 9784 builds on the experience of the states and,
most particularly, the experience of the Canadian government. H.R. 9784 pro-
vides that either pa rty may declare an impasse to esist and request the Federal:
Mediation and Conciliation Service to appoint a it ediator, If the mediator is
subsequently unable to resolve the outstanding issues within fifteen days. the
parties would select a fact-finder with the power to make findings of fact
and to recommend terms of settlement. Before the fact-finder's report is issued,
the union would decide whether the recommendations are to be landing or only
advisory.
If the recommendations are binding, the unions would be prohibited from
engaging in a. strike. If only advisory, the unions could strike. However, the
employer may obtain an injunction against the strike if it "poses a clear and
present danger to the public health or safety which in all relevant circumstances
it is in the best public interest to prevent." We believe that the right to strike
as provided in H.R. 9754 is fair and equitable to hath employees and manage-
ment while at the same time protecting the public interest.
In describing the Canadian system in a report issued by fl Subcommittee of
the House Post Office and Civil Service Committe, Congressman Charles A.
Wilson stated:
The visit to Canada clearly showed the success of the Canadian law. The
net result: Is more responsive management awl more responsible union
leadership In Canada this system has proven to be a realistic and effective
method of promoting equality between labor aner management while guard-
ing against capricious, lengthy. and debilitating strikes.
The Italian, German. and. French Constitutions guarantee the right of
public employees to strike. Sweden, Norway, and Denmark authorize such
by statute. In Latin America. the right to strike by government employees
is recognized by most countries. Mexico. our cloeest neighbor, has the right
to strike by constitutional amendment. In fact, the only two modern indus-
trialized nations that prohibit their governmens employees from engaging
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in lawful strikes are the United States of America and Russia. In fact, two'
of our own States, IIawaii, and Pennsylvania, have a limited right to strike
for State and local employees.
There are many arguments both for and against the right to strike,
but as Judge Wright said in a district court decision involving postal employ-
ees: 'sit is by no means clear to me that the right to strike is not fundamental.
A union that never strikes, or which can never make a credible threat to,
strike, may wither away to ineffectiveness."
The arguments against granting the right to strike to Federal employees are
grounded in sand. Its antagonists consider that Federal employees owe a special
duty to the sovereign and that a strike is a heretic action against His Majesty.
They also argue that the Federal government, unlike private industry, performs
essential functions that cannot be disrupted; that there is lacking in the govern-
ment a profit motive which forces the public employer into an unequal bargain.
in posture; and that if public employees have the right to strike they can exert
disproportionate pressure in the political arena.
We believe that a careful analysis of these arguments will prove them each
to be specious at best. For example, a truckers strike, which is legal, could have
a far more damaging effect on our economy than a strike among government
printers. Economic and market restraints have the same effect in controlling
public sector strikes as they do in the private sector. In both instances, employees
are faced with the loss of wages and the possibility of their work being contracted
out. And, we all know, that private sector unions are just as active, if not more
so, in the legislative process than are public sector unions.
In sum, H.R. 9784-would grant Federal employees the sante rights and benefits
that have been accorded the overwhelming majority of public and private sector
workers. Federal employees have been discriminated against for far too long.
They are ready and fully prepared for true negotiations on all issues that
affect their interests. Now is the time to bring full collective bargaining and
impartial decision-making in union-management disputes into the Federal sector.
On behalf of the National Treasury Employees Union, I appreciate this
opportunity to share our views with the Congress. If there are any questions,
I will be happy to answer them at this time.
POSITION PAPER
(Submitted in Conjunction With the Statement of Vincent L. Connery. National
President, National Treasury Employees Union, Before the House Committee
on Post Office and Civil Service Subcommittee on Manpower and Civil Service)
I. INTRODUCTION
The 1962 Executive Order system of labor relations in the federal sector
Instituted by President Kennedy was a jerry-built system Initiated to diffuse
the pressure for collective bargaining legislation for federal employees building
In Congress. Executive Order 10988 provided for exclusive representation for
employees and total management control with no review of agency actions by
independent parties. Executive Order 11491 continued the basic policy.
Jerry-built systems are by their nature systems hastily put together to solve
a problem with the intent of later producing a permanent, well designed product.
It has been twelve long years since the present system was put on the road. Tire
system now has lived far beyond its expected temporary life and desperately needs
to he recalled not for modification or alteration but for a final rest.
When Executive Order 10988 came into existence, it was hailed by many
as the public employee "Magna Carta." At that time only Wisconsin had leg-
islation concerning public employees. Subseouent to the 1962 Executive Order,
Connecticut, Delaware, Massachusetts and Michigan passed legislation in 1965.1
Today thirty-three states have legislation covering public employees, which re-
quires public employers to engage in collective bargaining with all or some public
employees. Thirteen states authorized collective bargaining by statute, Attorney
1 Connectient P.A. No. 159 L. 1965: Delaware 11.11, 249. 1965 ? Mass. Arts Ch. 564 and
Ch. 769 No. 2: Michigan: MCLA See. 423.201-216, Mich. Stat. Ann. Sec. 17.455(1)?(16) ;
P.A. 1965 No. 379.
2 Alaska (Teachers, Public Employees) ; California (Local Employees. State Employees,
Teachers. Firefighters) ?. Los Angeles has its own ordinance as do some other California
municipalities; Connecticut (Municipal Employees, Teachers) ; Delaware (Public Employ.
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General Opinion or court decision for some or all public employees.' Only nine
stales have no legislation.4 It is truly ironic that the alleged "model employer"
who spawned go much legislative activity remains itself 12 years later with
no legislation.
It is now even becoming apparent to some government officials that the tune
has come for a system of labor relations based uoon legislation.' Only through
legislation can the multitude of problems resulting from the present system
he resolved. Further patching up of the old sYstom would be a futile act.
TuE RELATIONSHIP OF THE FEDERAL GOVERNMI NT TO ITS EMPLOYES Is NOT
80 CNIQUE AS TO PRECLUDE LEGISLATION
Chairman Hampton stated before this Subcommittee that the federal govern-
ment is so unique as an employer that past collective bargaining experience is
not applicable:
Some critics of the Federal labor-relation: program favor, it seems, a
wholesale accomodation of public employment practices and policies to col-
lective bargaining as it has evolved in the )rivate sector in the last 40
years. 'Phis is an unrealistic approach, as will be recognized from the fol-
lowing discussion.
(hairman Hampton then goes on to point out that the "merit" system, the
size and diversity of the federal government, the right of unions to lobby for
legislative chaages, the right of consultation with the Civil Service Commission,
the fact that federal managers are neutral in ?lection campaigns, the fact
that a government service by definition may not be interrupted, and the obliga-
tion of at federal manager to manage efficiently all how that the federal govern-
ment. is So univrie that legislation cannot work.
A cursory analysis of the factors cited reveals that Chairman Hampton failed
to recognize the lessons of the private sector and totally ignored the experience
of the states.
-Certainly a manager of a private sector concern has no less obligation to the
stockholders to manage as effectively and efficiently as a federal manager. And
every state which has enacted legislation has considered the question of merit,
the question of lobbying as a substitute for coiled:lye bargaining, the question
of strikes by public employees, and the existing neutrality of managers." Yet
only nine states do not have laws.
(!us. Teachers) ; District of Columbia (All District Employees) ; Florida (Firefighters) ;
Georgia (Firefighters in cities over 20,000) ; Hawaii (All Public Employees) ; Idaho (Fire-
lighters, Teachers) ; Illinois (State Employees?by Executive Order) ; Indiana (Teachers) ;
Kansas (Public Employees, Teachers) ; Kentucky (Firefighters, Police) ; Maine (All Public
Employees except State Employees) ; Marylane (Pub! c School Teachers?Baltimore
county ; Public School Teachers--Maryland County; Public Employees?Baltimore
County) ; Massachusetts (All Public Employees) Michigan (All Public Employees except
State Employees) ; Minnesota (All Public Employees) ; Missouri (All Nurses, Teachers,
?Ichooi Prineipals ; Nebraska ( All Public Employees, Teachers) ; Nevada (All Local Govern-
ment Employees) ' ? New Hampshire (State Employees, Ncn-Professional State University
Employees. Police) ; New Jersey (A ll Employees- -Public and Private) ? New York (All
Public Employees) : North Dakota (All Public Employees Teachers) ?, Oklahoma (Police,
Firefighters. municipal Employees, School Employees) ; Oregon (All Public Employees) ;
Pennsylvania (Public Employees, Police, Firelighters) ; Rhode Island (State Employees,
Police, Municipal Employees, Firefighters, Teachers) ; South Dakota (State and Municipal
Emitioyees, Police, Firefighters) ; Vermont (State Emplorees, State Colleges, Municipal,
inclading Police. girefighters, Teachers) ; Washington (Local Government Employees, Pub-
lic School Tenehors, Community College Faculty, State Universities, State Employees) ;
Wisconsin (State Employees, Local Government :Employees) ; and Wyoming (Firefighters).
11,r an excellent historical summary, see: Project: Collective Bargaining and Polities in
Public Employment, 190 UCLA L. Rem 888.
kla hams (Firefighters) Arkansas (State, Local) ; Georria* (Teachers) ; Idaho* (Local
Government) : Illinois* (Local Government) ? Indiana (All Employees) ; Iowa (An Em-
rloYees I ; Kentnelcy? (State, Local) : Missouri* (Teachers) ; New Mexico (State Employ-
ees) : North Dakota* (All but Teachers) ; Utah (State) ; and Virginia (All Employees).
lies indicated ty an asterisk (5) require collective bargaining for some employees. See
ie 2. supra.
Arizona, Colorado, Louisiana (Public employers are rermitted, but not required, to
grant dues eheckoft) ; Mississippi; North Carolina ; Ohio; South Carolina; Tennessee and
West Virginia.
In a speech to the Society For Labor Relations Professioaals the Director of the Federal
mediation and Conciliation Service stated : "I believe that most of the workers who have
toiled in the vineyards of the federal sector since 7L961 deserve the right to have a viable
law." 541 Government Employees Relations Report (GERR) A-11, February 11,1974.
" New York: Governor's Committee (Taylor) on Publil Employee Relations (1966).
Michigan : Report to Governor Romney by Advisory Committee on Public Employee Rela-
tions 51987). Ponnsylvania ? Report and Recommendationa of Governor's Commission to
lie vise the Public Employee 'Law of Pennsylvania (1968). California: Final Report of the
Assembly Advisory Counoil on Public) Employee Relation" (March 15, 1973). Illinois:
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There is no evidence to show that the experience gained in the private and
public sector is not applicable or that the problems in the Federal sector are so
unique as to require further experimentation before legislation.
We have now had more than fourteen years of experience with laws governing
public sector labor relations in various states, and almost twenty years if we
count earlier statements of policy such as the New York City Executive Order.
Similarly, we have had twelve years of experience under an Executive Order
system which has undergone three revisions. It should be recalled that the
Wagner Act was passed after only three years of "experience" with the laissez-
faire approach embodied in the Norris-LaGuardia Act and nine years after the
passage of the Railway Labor Act. In addition, twelve years of experience under
the Wagner Act apparently provided a sufficient basis for a comprehensive over-
haul of national labor policy in the Taft-Hartley Act.
We have enough experience for a basis of action.
III. THE NEED FOR LEGISLATION IS DEMONSTRATED THROUGH AN EXAMINATION OF
THE PRESENT LABOR-MANAGEMENT RELATIONS PROGRAM IN THE FEDERAL SECTOR
A. THERE EXISTS NO CREDIBLE THIRD PARTY REVIEW SYSTEM OF AGENCY, EMPLOYEE,
OR UNION ACTIONS IN THE FEDERAL SECTOR
The present Executive Order system provides for a Federal Labor Relations
Council composed of the Chairman of the Civil [Service Commission who serves
as the Chairman of the Council, the Director of the Office of Management and
Budget, and the 'Secretary of Labor. It is the responsibility of the Council
essentially to review decisions of the Assistant Secretary of Labor and to make
major policy pronouncements concerning the labor relations program in the
federal sector. Thus, the Federal Labor Relations Council serves as the equiva-
lent of the National Labor Relations Board in the private sector.
Chairman Hampton described this system as providing "third-party machinery
for the resolution of disputes and establishes a central authority to set major
policy." However, this system cannot be characterized as third party. "Third
party" review means that someone other than the participants in the fray re-
views the actions and makes an independent evaluation and decision.
Chairman Hampton cannot be characterized as "third party." As Chairman of
the Civil Service Commission he is responsible for the overall management of the
federal workforce; he is the President's chief managerial consultant concerning
the personnel policies to be effectuated in the federal government. He is a super-
manager. The Director of the Office of Management and Budget certainly cannot
be considered an "independent." He is responsible for the financial integrity of
the President's programs. If the decision costs money, the representative of the
Office of Management and Budget can hardly be expected to view the matter
with other than a jaundiced eye. The ,Secretary of Labor might be considered to
be independent or perhaps even prejudiced against the "management philosophy"
because of his position. However, that is pure myth. The Secretary of Labor is
appointed by the President and as such is responsible for carrying out the policies
of the administration. He is not appointed for a set period of years; he is ap-
pointed at the pleasure of the President and, therefore, can be removed at the
pleasure of the President. This type of arrangement does not lend itself to inde-
pendent thinking, evaluation and decision making.
The inherent conflicts of interest are further highlighted by Section 25 of the
Order which requires the Civil ,Service Commission and the Office of Manage-
ment And Budget to establish and maintain programs for policy guidance con-
cerning labor relations matters to agencies. Thus, we have the Chairman of the
CSC and OMB rendering decisions as Council members on one day, and then
issuing directives to managers on how the decision may be implemented most
efficiently; or how the impact of the decision may be minimized.
The Federal Labor Relations Council is composed of managers reviewing the
decisions of other managers. There is no independence, and may not fairly be
characterized as "third party." The impact of such a situation is obvious: the
decisions of the Council lack credibility. There exists no expectation that the
Council decisions will reflect An objective approach toward employees; and no
one is disappointed.
Report and Recommendations: Governor's Advisory Commission on Labor Management
Policy on Public Employees (1967). See, generally, Stieber. Public Employee Unionism?
Structure, Growth, Polley, Brookings Institution (1973) ; Barrett, Governmental Response
to Public Unionism and the Recoa^?tion of Employee Rights, 51 Oregon Law Review 113
(1971).
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In the matter of Federal Employees illetal Tr?ades Council of Charleston,
FLRC No. 73A-7 (5/23/73), the union submitted a proposal which would have
giveli them the right merely to review all standaris used in the formulation of
merit promotion procedures, including certnin qinnification guides issued by the
Civil Service Commission. The agency declared the proposal non-negotiable be-
cause of its confidential nature. The Council then wrote to the Chairman of the
Civil Service Commission concerning access to the information. The CSC re-
sponded that the information was "confidential." The Council, without more,
sustained the position of the agency and refused to even examine the validity
or necessity of maintaining the information as cot fidential. In other words, the
Council allowed information essential to the proper determination of promotion
policies to be withheld from employees.
There exists ample precedent in logic and in law for a different result. The
NLRB long ago established the policy that the fill disclosure of information
aided the conduct of negotiations and increased the acceptability of the nego-
tiating process.' In a ease directly analogous, the Court of Appeals upheld a
decision by the NLRB that the employer had unlawfully refused to bargain
when it refused to furnish information concerning the classification of jobs.
NLRB v. Beverage-Air Co., 402 F.2d 411 ; 69 LRFtM 2369 (1968). The Court
noted that it is a well established rule that the ermloyer is required to supply
information relevant to the bargaining issues, if requested to do so. However,
the Council apparently assumes, without explanation, that forcing the conduct
of collective bargaining where one side has all the information is conducive to
a sound labor relations program. ?
In another interesting case the Council issued a decision which allowed one
level of management to totally preempt a promotion plan from the bargaining
table under the guise of uniformity. The Department of the Air Force issued a
set of regulations covering promotions. The regulations were so inclusive as to
preclude negotation on promotions at a level lowe:7 than the Department level.
When the union sought to negotiate on promotiots, it was declared non-nego-
tiable due to higher level regulations. The Department of the Air Force de-
fended the regulations on the need for "uniformity." The Council merely ac-
cepted the self-serving statement of the Air Force and declared the proposals
non-negotiable. The Council did not examine the actual need for uniformity or
the actual impact of such a decision ; the position o! one management group was
sustained by the second management .group.1
A second inherent conflict of interest in the EYecritive Order system is the
relationship of the Assistant Secretary of Labor ;!or Labor-Management Rela-
tions and the Secretary of Labor. The Assistant secretary of Labor is respon-
sible for making the initial determinations in representation eases, unfair labor
practice charges, grievability determinations, and standard of conduct deter-
minations. The role of the Assistant Secretary is aaalogous to the first level ju-
dicial system with the Council serving as an appellt.te or review body. And since
the Assistant Secretary has rendered decisions in ?1385 eases since 1970, he has
obviously played the principal role in the course of federal labor relations. Thus,
we have the Assistant Secretary of Labor who is appointed by the Secretary
of Labor who in turn sits on the Council. How can the Assistant Secretary per-
form his job in an independent manner if his superior sits on an appellate body
who will be reviewing his actions? In addition, the same problem exists with the
Assstant Secretary as exists with the members of the Council: he is a manager
appointed to carry out the managerial polic;es of tae President. He is not inde-
pendent in any sense of the word.
For example, there exists a long standing policy enunciated by the Civil Serv-
ice Commission that federal employee home addresses may not be released to
individuals outside of the government:. This policy is in direct conflict with the
policy developed in the private sector that employe? home addresses may be re-
leased to the union with exclusive recognition when it is necessary for the union
to eothinunie:it with members nf the barglining unit in order to carry out its
duty of representing the interests of the employees in the unit. The Supreme
Court has stated
'There can be no question of the general obliga:lon of any employer to pro-
vide information that is needed by the bargaining ;.!epresentative for the proper
Performance of its duties. Similarly, the duty to bargain unquestionably extends
NLRB v. Whitin Machine Works, 217 P. 26 593: 35 LR'lltt 2215 (1954).
8 Sheppard Air Force Base. No. 71A-60, Report No. 36 (.978) ; see also Aberdeen Proving
tiroutid, No. 72A--37, Report No. 39 11973).
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beyond the period of contract negotiations and applied to labor management re-
lations during the term of an agreement." 9
Thus, the Court upheld the Board determination that the employer had com-
mitted an unfair labor practice by refusing to provide the information re-
quested by the union. The Court found the refusal to be a violation of the em-
ployees' right to organize and bargain collectively.
We sought to incorporate this well accepted doctrine into the private sector by
requesting a list of home addresses for the employees we represented in Florida.
The emplOyees we represented are located in 19 posts of duty throughout the
entire state of Florida. The unit consisted of approximately 900 employees only
one half of whom were members. The agency denied our request, we filed an
unfair labor practice charge, the CSC intervened seeking to sustain its long
standing policy developed well before collective bargaining existed, a hearing
was held and the Assistant Secretary dismissed the complaint. The decision was
sustained by the FLRC. As may be expected, none of the deciding officials would
even review the CSC policy to determine whether it should be changed in light
of the new labor relations program.
Another example of the failure of the Assistant Secretary to deal with a long
standing CSC policy occurred in the Department of Defense, State of New Jer-
sey, case (A/SLMR No. 323 (1973) ). The union sought evaluative material of
employees other than the grievant in order to resolve a grievance. The Admini-
strative Law Judge ordered the information produced. The Assistant Secretary
reversed and passed the question directly to the Council.
The final example we wish to cite concerns the Assistant Secretary's interpre-
tation of Section 10(3) of the Order. The Assistant Secretary first decided that
an employee was entitled to his union representative at certain meetings with
the employer." The Assistant Secretary articulated no limitation on the right
of the employee to have a union representative at meetings with an agency offi-
cial. This decision spawned much criticism of the Assistant Secretary by the
federal government management famly. In the Texas Air National Guard ease,
A/SLMR No. 336 (1974), the Administrative Law Judge enforced Fort Wain-
wright. However, the Assistant Secretary on his own motion, in a burst of crea-
tive writing which provided no rationale, held that an employee is not entitled
to a representative if the session may be termed as "counselling." This bit of
phrasing can only be compared to the Department of Defenses' justification for
bombing in Vietnam as acts of "protective reaction." The issue in this case was
the basic right of an employee to request and receive representation by his ex-
clusive representative. The phrase "counselling session" has now been picked by
other agencies as a device to always exclude union representatives from par-
ticipation in meetings between employees and supervisory and management offi-
cials.' Federal government managers now have a satisfactory interpretation
of Section 10 ( e) .
The predisposition of the deciding officials and the resulting lack of credibility
generate a real need for an independent group to administer the labor relations
program in the federal sector.
B. THE SCOPE OF BARGAINING IN THE FEDERAL SECTOR IS EXTREMELY LIMITED AND
MAY BE CORRECTED ONLY THROUGH LEGISLATION.
1. The language of the Executive Order as interpreted by the Council leaves few
substantive areas for negotiation.
In typical fashion, the Executive Order first raises expectations by setting
out very broad parameters for negotiations: "An agency and a labor organization
that has been accorded exclusive recognition, through appropriate representa-
tives, shall meet at reasonable times and confer in good faith with respect
to personnel policies and practices and matters affecting working conditions . . ."
However, what in one line is given is then taken away in the next line:
". . . the obligation to meet and confer does not include matters with respect
to the mission of an agency; its budget; its organization; the number of
employees; and the numbers, types, and grades of positions or employees
assigned to an organizational unit, work project or tour of duty; the technology
NLRB v. Acme Industrial Co., 335 U.S. 432, 04 LRRM 2069 (1907) ?, Standard Oil Co. v.
NLRB. 09 LRRM 2014. 399 F. 2d 629 (1965) Prudential Insurance Company v. NLRB, 09
LRRM 1409, 412 F. 2d 77 (1969) ; United Aircraft v. NLRB, 75 LRRM 2692, 434 F. 2d
1198 (1970).
-10 Port Wainwright, A/SLMR No. 273 (1973)?
11 The Assistant Secretary utilized the same reasoning in Internal Revenue Service Plata-
flelphia Service Center, Case No. 22-4056 (CA).
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of performing its work; or its internal security practi This does not preclude
the parties from negotiating agreements providing appropriate arrangements
for employees adversely effected by the impact of realignment of work forces or
technological change."
. . . Each agreement between an agency and a la )or organization is subject
to the following :requirements?(a) in the administration of all matters covered
by the agreement, officials and employees are governed by existing or future
laws and the regulations of appropriate authorities, including policies set forth
in the Federal Personnel Manual; by published agency policies and regulations
in existence at the time the agreement wa.s. approved; and by subsequently
published agency policies and regulations required by law or by the regula-
tions of appropriate autnorities, or authorized by the terms of a controlling
agreement at a higher agency level;
(b) mangement officials of the agency retain the right, in accordance with
aladica ble laws a ad regulations-
1) to direct employees of the agency;
(2) to hire, promote, transfer, assign, and retain employees in positions
within the agency, and to suspend, demote, diE charge, or take other dis-
ciplinary action against employees
(3) to relieve employees from duties because of lack of work or for
other legitimate reasons;
(4) to maintain the efficiency of the Government operations entrusted
to them;
(5) to determine the methods means and persmnel by which such opera-
tions are to be conducted ; and
(6) to take whatever actions may be necessary to carry out the mission
of the agency in situations of emergency ;"
A fair reading of these restrictions prompts the reasonable man to ask what is
left for the collective bargaining table? Are not all personnel policies actually
-methods means and personnel by which such opera dons are to be conducted?"
1)0 not all collective bargaining agreements delimit tie unilateral control of the
manager and thereby impinge on his ability to "direct employees of the
agency?"
This language has been used by the Council, to aeriously restrict the scope
of negotiations under the Order. For example, one of the most significant issues
facing many federal employees at this time is the piestion of contracting out
of jobs and work assignments. In the matter of Tidewater Virginia Federal
Employees A-fetal Trades Council, FLRO No. 71A-56 (6/29/73), the Council
upheld the agency's determination that the union's proposals concerning con-
tracting out and job assignment were not negotiable."
The unquestioned need for employees to negotiate about such issues was con-
firmed for private sector employees by the Supreme Court in the case of Fiber-
board Paper Products Corp. v. NLRB, 379 U.S. 203, 57 LRRM 2609 (1964). The
Court held that subcontracting of bargaining unit work is a mandatory subject
of bargaining. Factors sach as valid economic considerations and the fact that
the subcontract eliminates all the jobs in the unit may influence the decision
making of the Company during negotiations; howe,'er, these considerations do
not force the issue off the table. The Supreme Cou7't recognized that problems
of importance to individuals are not resolved by ignoring them or by issuing
unilateral declarations.
Another example of tvoiding one of the most basic issues touching each
employee in a unit is the Council decision in the matter of Plum. Island
Animal Disease Laboratory, FLRC No. 71A-11 (7/9/71). The Council held
that hours of work and changes in tours of duty were not negotiable. Work
hours and especially changes in work hours ire a trtditional subject of negotia-
tions in the private sector. In the case of DiVineenti Bros., 156 NLRB No. 22, 61
1,11,RM 1004 (1905), the NLRB held that the employer had committed an
unfair labor practice by effecting changes in the employees' hours of work
without prior notice or discussion with tlie union. It is merely a Matter
of sound management to discuss changes of working hours with affected em-
ployees. However, the federal goTernment managers resist even the common
sense aproach. And this is supported by the Council.
Tin' Council mined a similar decision in the matter of Charleston Naval Shipyard,
rtate No. 71A-56 03/29/73).
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In an attempt to minimize the restrictive language in the Order and the
even more narrow decisions by the Council, Chairman Hampton cites a long
list of subjects included in collective bargaining agreements. But it is not
enough to merely cite a long list of items included in collective bargaining agree-
ments to show that collective bargaining is taking place in the federal sector4
What Chairman Hampton fails to cite or show is the substance of the pro-
visions contained in the Agreements. The substance of the clauses is very
limited and reflect in large part the personnel regulations in existence at the
The scope of bargaining must be increased in order to allow employees to
participate through a system of collective bargaining in the matters which are
of vital concern to them.
2. Collective begging in the form of "consultation" is no substitute for a system
of collective bargaining.
Chairman Hampton points with apparent pride to the "bilateral" system in the
federal government which he states transcends the normal recognition unit:
"For example, recent laws have established permanent vehicles for direct union
involvement in white-collar and blue-collar pay setting. . . This is not collective
bargaining per se, but those involved in the process are aware it is a significant
step forward in meaningful consultation . . . Other examples of union involve-
ment are the Health Benefits and Life Insurance Committees." Let us examine
the actual "bilateral" nature of these two examples.
The system of setting pay in the federal government provides that the Federal
Employees Pay Council (FEPC) meets with the President's agents?Chairman
of the Civil Service Commission and Director, Office of Management and Budget?
in an attempt to determine and define comparability of wages between jobs in
the federal government and jobs in the private sector. In addition, the FEPC
meets with the President's agents in an attempt to define surveys conducted by the
Bureau of Labor Statistics in an attempt to refine the material received from the
survey into a comparability determination.
Chairman Robert E. Hampton described the "bilateral mechanism" for deter-
mining wages for classified Federal employees as a "close first cousin to collec-
tive bargaining." This is not the case. If it were, such bargaining would have
been abandoned years ago as unfair to both parties.
Not once, since enactment of the 1970 law, have Federal employees received
a full comparability adjustment. Their pay raises have either been delayed or
significantly reduced. In 1971, the first year the Act became effective, the Presi-
dent, without awaiting the required reports of the Council, his Agent, or the
Advisory Committee, submitted an "alternate plan" to Congress proposing a six-
month delay in the G. percent comparability adjustment scheduled for January 1,
1972. Such action would have decreased the effective annual take home pay of
Federal employees by 3.3 percent.
Initially, Congress failed to overturn the "alternate plan." However, in adapt-
ing amendments to the Economic Stabilization Act later in 1971, Congress legis-
lated a wage increase for Federal employees effective on the first of January,
"that shall not be greater than the guidelines established for the wage and salary
adjustments for the private sector. . . ." 'Ender the regulations to the Economic
Stabilization Act, which were effective at that time, private sector workers were
permitted salary increments of as much as seven percent. But the President deter-
mined that Federal employees were only entitled to a 5.5 percent comparability
adjustment which, thereby, deprived them of 1.1 percent of the pay raise they
should have received.
. In 1972, the President completely ignored the requirements of the Compara-
bility Act and postponed the October 1, 1972, adjustment for three months
without submitting an "alternate plan" to Congress. Even though Federal em-
ployees were expressly excluded from coverage of the Economic Stabilization
Act by the Cost of Living Council, the President took the position that the
Stabilization Act superceded the Comparability Act and necessitated the deferral
without the submission of an "alternate plan." Congress was thus deprived of
even the opportunity to overrule the President through the mechanism provided
in the Comparability Act.
NTEU immediately challenged the President's delay of the comparability
adjustment in an unprecedented lawsuit filed in the United States District
Court for the District of Columbia. Even though we were ultimately successful
in our lawsuit and all employees will receive over $533 million dollars in back
pay, filing lawsuits can hardly be construed as "bilateralism."
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Again, in 1973 the President sought to defer the Oetcber 1 comparability adjust-
ment. Unlike the year before, he did submit an "alternate plan" to Congress which
was overruled by the Senate on September 28, 1973. Despite the Senate's action,
however, Federa'!. employees again received a smaller comparability adjustment
than that to which they were clearly entitled. Through a statistical change in the
method of determining comparability, the October 1, 1973, Federal pay raise was
reduced from 5.47 percent to 4.77 percent.
For three years. I have served as a member of the Council, and, during this
time, neither the Agent nor his representatives have made any effort whatsoever
to establish a true "bilateral" relationship with the Council. The discussions
between the ,Commil and the Agent, rather than a "close first cousin to collective
bargaining", more clearly resemble Greek theater, where the fatal flaws of the
system foredoom the result to predictable failure.
The tedious scene, which takes place at the weekly meetings of the parties,
finds the Pay Council's proposals for improving the pay-setting process for
General Schedule employees generally being -rejected out-of-hand by the Presi-
dent's Agent or his representative, or subject to inordinate delays. For example,
the Bureau of Labor Statistics conducts an annual survey which is a comparison
of salary rates paid the private sector with similar key jobs in the Federal sector.
This job matching process goes to determine "comps rability" of Federal with
private sector salaries which is the goal of the Federal Pay Comparability Act
of 1970. Almost four years ago, we first proposed to the President's Agent that
the present Bureau of Labor Statistics annual sumo' be expanded to include
bonuses as well as to include salaries paid by legal and accounting firms. Bonuses
represent a significant amount of income for private sector workers and, despite
the fact that the Federal government employs thcusands of attorneys and
accountants, the primary and highest-paying employers of such individuals in
private industry have never been included in the sury?y.
Because the inclusion of bonuses and legal and accounting firms in the survey
and in pay rate determination would increase the annual comparability adjust-
ment, the Agent refused, for three years., to even initiote preliminary studies on
these proposals. Only aftei a highly critical report On the present pay-setting sys,
tem was issued by the General Accounting Office last soling did the Agent finally
begin the initial studies necessary to expand the survey to include bonuses and
legal and accounting firm salaries.
liven here, however, the Agent and his representatives have demonstrated a
disingenuous approach. Though they, at long last, conceded the obvious, that hos
nuses are compensation and should be included as a factor in determining salary
comparability, tine President's Agent has insisted that the collection of the neces-
airy bonus data from private industry be so restricted as to have a minimum
iinpact on the Federal pay'ine. Bonuses which are paid in the private sector will
not he reflected in the pay rates for Federal employees and, consequently, Federal
workers will not, receive the full comparability adjustment to which they are
entitled.
On at least two occasions this year, the President's Aegnt has refused to pro-
vale the Council with necessary data in his possession or even to discuss matters
which could have a significant impact on the Fedora paysetting process. Just.
within the past few weeks, the representatives of the Agent have denied the
Council's request, to participate in the development of studies now underway
which could result in a recommendation that area and occupational wage sys-
tems be established for General Schedule employees.
Despite the fact that these studies could signifieantly alter the present mech-
anism for determlning pay for Federal employees, and that they have been openly
discussed in newspaper articles by Commission officials, including the Chairman,
the Agent's representatives have determined that "they are not a proper matter
for Council consideration."
Iii the past four years, the Council has advanced numerous other proposals for
improving the pay-setting process and each of these hasie been given short shrift
by the President's Agent. We have attempted, for example, to gain the Agent's
acceptance of our proposals to change the present system of calculating the Fed-
eral payline so that it more accurately reflects private industry pay, and to pro-
vide for a cost-of-living addition to the annual comparability adjustment to com-
pensate Federal employees for the six-month time lag between the collection of
the pay data and the implementation of the comparability adjustment. These
also met with a veto by the Agent.
In these times of unprecedented inflation, it is of vital importance that Fed-
eral employees receive a wage increase that reflects the rapid escalation in the
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cost of living that has taken place in the past year and not be denied a full coin-
Parability pay raise simply because the data upon which the adjustment is
based is six months old. With living costs increasing at a projected annual rate of
10-12 percent, the delay between the conclusion of the Bureau of Labor Statistics
survey and the implementation of an adjustment, without a cost-of-living add on,
could result in Federal employees being denied as much as 6 percent in their next
pay raise.
Nevertheless, this proposal and many others have been arbitrarily rejected by
the Agent; not because they are unfair or unreasonable, but simply because they
would increase the amount of the October pay raise. Yet, when it comes to an issue
that would have a depressing effect on Federal salaries, the Agent responds with
amazing alacrity to implementation. ?
Last year, the Agent and his representatives insisted that a change be made
in the "reference point" for comparing Federal and private sector salaries,
which resulted in a nearly 1 percent decrease in the October 1973 comparability
adjustment. We sought to convince him that any change in the "reference point"
should not be made without a thorough study of the entire pay-setting system.
We, therefore, proposed that tile "reference point" adjustment be postponed for
one year, pending a joint study of this issue as well as all proposals made by the
Council, and upon completion, the joint recommendation detailing the necessary
changes in tile system be forwarded to the President for his consideration.
Our efforts, however, were to no avail. The change in the "reference point" was
swiftly implemented and Federal employees were again shortchanged in last
October's comparability adjustment. None of the Council's proposals, many of
which would have offset the 1 percent reduction in the Federal pay raise, were
adopted by the Agent. Nor has the Agent been willing to reopen discussions on
the change in "reference point" during this year's meetings with the Council,
despite our continued and well-founded criticism of this mechanism.
Interestingly enough, the Advisory Committee on Federal Pay, which is ap-,
pointed by the President as a neutral body empowered to review the Agent's and
the Pay Council's reports and make its own recommendations to the President
prior to the comparability adjustment, found the Council's proposal much more
palatable than did the Agent. In its report to the President, his Advisory Com-
mittee urged that the "change in the reference point as recommended by the Pay
Agent be adopted, except that the transition period be deferred by one year" and
"that the parties develop the facts relating to other items . . . and negotiate
thereon, prior to the submission of the Pay Agent's report for Fiscal 1975, to
determine the extent, if any, counter-balancing or additional adjustments are
appropriate."
Neither the President, his Agents, nor their representatives--not one of them--
has ever demonstrated any regard for the pay problems of Federal employees
or the recommendations of their representatives on the Federal Employees Pay
Council. To fully appreciate the widespread unilateralism in the present pay-
setting system, one need only look at the structure of the law and the parties
involved.
The President's chief budget and management officers serve as the Adminis,
tration's representatives in discussions with the Council. Before they begin, the
budget for the next fiscal year has already been determined as has the pay raise
which is to be accorded the over 2 million Federal employees under the Gen-
eral Schedule and military pay systems. Because there is no requirement for
"true negotiations" between the Agent and the Council, any recommendation
by the Council which would increase the predetermined figure for the compara-
bility adjustment has been automatically rejected by the Agent.
Once the discussions between the Council and the Agent draw to a close, the
Agent then submits its recommendations for the October adjustment to the
President, as does the Council and the Advisory Committee on Federal Pay.
However, the President is not bound by the recommendations of either the
Council or the Advisory Committee, and since it is his Agents which are not
only charged with submitting pay recommendations under the Comparability
Act but also with determining the Federal payroll in their capacities as Director
of the Office of Management and Budget and Chairman of the Civil Service
Commmission, it comes as a surprise to no one as to which yearly report he has
opted to implement. '
The system is doomed from the beginning. The President controls, through
his Agents, the recommendations which will be forwarded to him by the man-
agement representatives in the pay-setting process. He then is authorized, under
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the law, to either adopt their recommendations and implement an October 1 com-
parability adjustment or, as he has chosen to do ,wery year since the law was
courted, attempt. to delay the pay raise. There is not evidence to indicate that a
concern has ever been ihown for maintaining a fair program in which the views
of the Council and the Advisory Committee are accorded the same consideration
as those of the Agent: the Administration's conc?.rns seem limited to keeping
any pay adjustment within the pre-ordained budget agure.
Much of what we have just said was recognized by the Advisory Committee
on Federal Pay which stated in last year's repon to the President concerning
the implementation of the "dual payline" that:
. . borrowing from our experience in the pris ate sector, it is a well estab-
lished labor rela ties principle that when an inchn trial practice gets out of line
it must be adjusted. If the decision is left only to the financial officer, he would
eliminate the practice forthwith and effectuate immediate savings. However,
the labor relations officer would recognize that an adjustment must be made on
a gradual basis to make it more palatable to the work force and to assure
continued good labor relations. The chief executive officer in industry must
consider both the financial and labor relations factors and he generally opts
for the gradual or transitional approach, recognizing the need for maintaining
morale and continued productivity. From management's point of view, the
savings once achieved cpntinue for infinity.
"In this instance, the Pay Council resents the seeming budgetary emphasis
without an opportunity to determine the possible counterbalancing effect of the
other factors upon the downward impact of the change in the reference point.
Delay would permit the necessary opportunity to develop the facts, negotiate
as to their application prepare employees for the change, and make such fur-
ther upward or downward adjustments as may be appropriate.
"A long-range perspective calls for gradual achievement of the cost saving.
Pressing for 1:he short-range monetary advantag? to cut costa unnecessarily
risks the long-range stability of employee relations and may incur hidden and
even greater costs."
Behind a facade of impartiality and "bilateralism" lies the cruel reality of
naked power; the unilateral authority to implement a pre-determined compara-
bility adjustment and 'o defer Federal pay raises. Under present law, the Fed-
eral Employees Pay Council does not have the right to negotiate with the
President or the President's Agent and their repr(sentatives. It is basic to any
fair conclusions between parties that there be something resembling equal power
at the bargaining table. Under the Comparability Act, however, all of the power
rests with the President and his Agent. There ea ists no "bargaining" and no
"bila teralisan".
The Health Benefits and Life Insurance Advisory Committee is also a charade.
Andrew Rudduck, former director of this progrart for the federal government,
testified for Congressman Waldie's Subcommittee 311 Retirement and Employee
Benefits that the union members of this Commitee were not even consulted,
let alone participate in bargaining, concerning chi nges in benefits or projected
rote increases in the various health benefits plans. This was at a time when one
carrier, Blue Cross/Blue Shield was projecting a 60 million dollar loss; how-
ever as a result of increased premiums and decreased benefits to subscribers they
obtained a 95 million dollar surplus. All of this wis done with the approval of
the CSC withcut even informing the Committee. This cannot even be classified
as consultation and certainly not as bargaining.
The "bilateralism" set forth by Chairman Halmton is merely a mask to
hide the reality of unilateral action taken after "listening" to various view-
points. It is not and cannot be a substitute for actual participation.
.1. Certain Statutes must he changed so as to increase the scope of bargaining
in the federal sector
At present as Chairman Hampton pointed out it has been the practice of Con-
gress to delegate to the Commission the implementation of all statutes concern-
ing federal government personnel. For extrrnple, implementation of the classill-
ea lion system, decisions on Equal Employment Opportunity matters, decisions
on adverse actions. implementation of the Fair Labor Standards Act, and vir-
tually every other matter in Title 5 of the United States Code. These directives
by Congress do in fact limit the scope of negotiation and can only be changed
through legislation.
When these matters were delegated to the Commission, there existed no al-
ternative; the Commission was the logical choic?. to implement the statutes.
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However, that does not mean that this delegation to the Commission must re-
main with the Commission in perpetuity. Federal employees should have the op-
portunity to participate in the matters which affect them by negotiating the
implementation of those statutes which affect them. The Civil Service Commis-
sion should go back to the role for which it was originally conceived: hiring
personnel. Let employees negotiate the implementation of statutes with the indi-
viduals of the agency who are paid to manage that agency; not the Civil Service
Commission. This can only be accomplished through legislation which would
have the effect of allowing negotiation on the implementation of statutes en-
acted by Congress.
I believe it is now clear that the scope of negotiation in the federal sector is
very limited both by the language of the Order itself arid the statutes which dele-
gate implementation authority to the Civil Service Commission. I believe it is
also now clear that the "bilateralism" described by Chairman Hampton is a
cruel hoax. All of this can be changed only through legislation.
C. LEGISLATION IS NEEDED TO REDRESS THE PREDOMINATE MANAGEMENT BIAS IN THE
LABOR MANAGEMENT RELATIONS PROGRAM IN THE FEDERAL GOVERNMENT
Since Executive Order 11491 was drafted by managers to protect managers, it
should not be surprising that the goal has been accomplished. Let us examine
some of these clauses:
1. Section 3 allows an agency head "in his sole judgment" to determine that
an employee, group of employees, or an entire job classification of employees shall
be excluded from coverage of the Order in the interest of "national security".
It does not take a vivid imagination to see the abuse inherent in this section.
2. Section 10 of the Order requires the conduct of an election under all circum-
stances. Thus, even though a union obtains signatures from 100% of the employ-
ees in the unit designating it as the exclusive representative, an election must
be conducted. This Section has the effect of forcing the union to participate in
an election under all circumstances even though the outcome cannot be in doubt.
It has the effect of dissipating a union treasury in organizational activities rather
than negotiating activity. And it is the latter which has the impact on the
manager.
3. Section 11(c) of the Order prohibits the negotiation of an agency shop agree-
ment. Thus, nonmembers are entitled to receive the same benefits as members;
and further, the union is required to represent all nonmembers as though they
were members. This clause encourages nonmembership in the union. It also has
the effect of keeping union treasuries low and unions relatively weak.
4. Section 13 of the Order is the result of the changes implemented by Execu-
tive Order 11616, promulgated in 1971. This Section provides management with an
opportunity to totally frustrate employees seeking to grieve a condition of em-
ployment under the collective bargaining agreement. If an agency does not feel
that an issue is grievable it has the option of referring the question to another
arm of management for determination. An employee is then compelled to go
through a maze of procedures and hearings to then learn if his grievance is even
grievable or arbitrable. This process can take many months. Obviously employees
are discouraged in the filing of grievances when management has this vast
arsenal of weapons at its disposal to destroy the attempt of an employee to
"... participate in the formulation of personnel policies and practices."
5. Section 14 of the Order provides agencies with yet another opportunity to
frustrate employees in their attempt to meaningfully participate in the personnel
policies and practices which affect their working conditions. This Section allows
an agency to totally frustrate and delay the negotiating process. A manager
who is negotiating with a union can accede to union proposals with the full knowl-
edge that the terms agreed at the table will later be rejected. In other words a
manager can mindlessly or maliciously agree to a proposal, and the agency, "uopn
review", can throw out 10 months of negotiations. It is, at minimum, redundant
that the agency action must be reviewed whereas the union negotiator is bound at
the negotiating table. Obviously, true collective bargaining between equals does
not take place when one party has the knowledge that he can agree to provisions
at the bargaining table which he knows are improper. While the union is stuck
with whatever provisions it can win, rnanangement knows that its concessions
are not necessarily binding. Management thus gets two bites of the apple to every
one of the union. This is hardly the bargaining between equals which exists in
the private sector.
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The delay caused by higher level review of contracts is intolerable. Chairman
Hampton's own statement reveals that the review of contracts often takes as
long or longer than their negotiatio:as. Obviously, aollective bargaining is frus-
trated when a contract is held up for months being: reviewed by agency officials
inWashington, it would seem that after 12 years that activities should be able
to negotiate their own contracts without the help of Lig brother.
U. Section 19(d) of the Order provides that issues which can be raised under
an appeals proaedure may not be raised under the unfair labor practice section.
This means that an employee who is fired for what he and/or his union believes
are anti-union reasons is compelled to go to the Civil Service Commission for
relief. The employee can not charge the agency with an unfair labor practice
awi have that charge processed under the normal procedures. The best chance
for justice for an employee who has been removed for his union activities, would
be for the case to go before an Administrative Law Judge who is trained in the
intricacies of labor law. In contrast, the appeal route through the Civil Service
Commission can hardly be considered as a review by anyone other than a manage-
ment official. The regulations of the Assistant Secretary also give priority to
a negations involving discrimination in regard to hiring and conditions of employ-
ment.' The Civil Service regulations provide no such priority and hearings are
often not held for six to nine months, after the employee has been removed.
T. Sec! ion 20 of the Order was clearly designed to frustrate the collective bar-
aaining proeesa. This Section provides that during negotiations of contracts
I hat employees on the anion side of the table are authorized only 40 hours or
half of the time spent at negotiations on administrative time. According to
Mr. Hampton's own statement of May 21st, more than %'s of the negotiations
take three to four itionihs to finalize. Our own experience in negotiating bears
witness to the fact that the time allowed by Section 20 results in a hardship for
employees who sit on the union side of the bargaining table. We recently con-
cluded 27 days of negotiations for a renewal of a contract with IRS District
ntees. In negotiations with ATI' it took 87 days to finalize the initial contract.
Negotiations for the agreement covering the service center employees of IRS
took 30 days.
It becomes painfully obvious to union members of a negotiating team that
management has no pressure whatsoever to conclude the negotiations. It is
readily apparent from the figures cited by Mr. Hampton and from our own
experience that this Section has been concocted to place pressure on the union
while relieving any pressure on management.
O. WITHOUT LEGISLATION THERE CAN EXIST NO JUDICIAL REVIEW OF AGENCY ACTION
At, present the Federal Labor Relations Council is free to render decisions
which are not subject to judicial review. Tho traditLonal tests of judicial review
a re not applicable: therefore, it does not matter ti at the decision is arbitrary,
capricious, fails to be based upon substantial evidence, or is an erroneous con-
clusion of law. The decision of the Council stands.
The only way this can be corrected is thaough legislation. Federal employees
should enjoy the same rights available to any other member of the population
injured by a decision of a federal agency: the right of review in the courts.
E. Pr IS NOT POSSIBLE FOR THE EXECUTIVE ORDER riYSTEM TO REFORM ITSELF
There are many reasons why the Executive Order system cannot reform itself.
One very significant reason is that the Executive Branch does not have the
,ilithority to reform itself. The President may not establish an independent agency
0 I11:1 ke unfair labor practice determinations the President cannot change
Title 5 to remove the responsibility of the CSC to inplement the personnel laws;
and the President cannot create ju:7isdictian in the Courts to review agency
actions. These matters may only be corrected with legislation.
However. even if the authority existed to change, it is unrealistic to expect
meaningful change. First, the federal government in the form of the Civil Service
Commission views itself as a good employer in that "it has no desire to deny
lo Federal employees tile general level of rights and benefits Which employees
are able to seenre through collective bargaining in the private sector." The CSC
argues that it is willing to unilaterally incorporate the general level of benefits
obtained through negotiations in the private sector therefore, there is no need
Section 203.5e) of Title 29 C.F.R.
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for employees to participate through unions in the collective bargaining process
in the federal sector. Unilateral incorporation of benefits to employees suffers
the faults of all paternalistic systems. They do for the child what the parent
thinks is best. Not that this is necessarily bad, but it is not very satisfactory
when the child is an adult with his own ideas of what is good for himself
Paternalism is no substitute for participation.
Second, it is unrealistic to believe that individuals with authority will volun-
tarily relinquish that authority. A simple example of that fact is the fanfare asso-
ciated with the CSC program "to increase the scope of bargaining". The CSC
announced that it was going through the Federal Personnel Manual on a page
by page basis to increase the scope of bargaining by removing the mandatory
nature of the language. After a year of study, the CSC came up with a list of
proposals headed by the right to negotiate the charging of leave in less than
quarter hour segments. We could not have expected more.
F. TILE SUCCESS OF THE ORDER CANNOT BE MEASURED IN TERMS OF THE NUMBER OF
EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION
Chairman Hampton measures the success of the Executive Order program in
terms of the success of unions in obtaining units of recognition: "Unions have
reported gains in membership, in recognition earned, and in agreements
reached. . . . As of November 1973, unions have bargaining rights for more than
a million (50 percent) of the nearly 2 million non-postal employees." This,
measure of success is totally erroneous.
First, when measured against employers in the private sector of equal size,.
the 56% figure falls woefully short. For example, basic steel is 95% unionized,
motor vehicles are 95% unionized, pulp and paper are 94% unionized, etc.
Second, the statistics are very misleading. While it is indeed true that federal
employee unions have grown tremendously in size during the last 12 years, a
true and undistorted look of the growth figures reveals that the majority of the
growth took place in the 1960's and that in the past few years unions have
been growing in smaller and smaller amounts and some have been lighting to
retain their membership and number of employees in units of recognition. The
reason for this fact of low to zero growth was stated by President Lincoln a
hundred years ago. Lincoln is purported to have said to a caller at the White
House that you may fool all the people some of the time; and you can even
fool some of the people all of the time; but that you can't fool all the people all.
the time. Federal employees fortunately fall into the last category, you can't fool
all of them all of the time.
Federal employees have come to learn that the game they are playing has
been fixed. Any gambler can tell you that in a fixed game the sucker always
wins a few of the little hands to keep him on the hook but in the end he winds
up broke. Federal employees are in that kind of game. They get tossed a minor
concession here and there but in actuality they are playing a losing hand. They
can never have a real voice in the implementation of the personnel policies and
practices which effect their conditions of employment under the present system.
The game is fixed because all the marbles are in the hands of management.
Management wrote the rules. Management interprets the rules. And manage-
ment enforces the rules. All unions ever get to do is comment on the rules. If
there is dissatisfaction with the way a rule is being interpreted by one arm of
management, the unions can only appeal to the other arm of management for
relief. And in this situation the left hand does know what the right hand is
doing.
The proper criteria for measuring the success of the Executive Order system
are contained in the Preamble which states that public interest requires pro-
gressive work practices to facilitate employee performance and efficiency. And
further that efficient administration of the government is benefited by providing
employees an opportunity to participate in the formulation and implementation
of personnel policies and practices affecting the conditions of their employment.
These are of course Olympian scale goals and they require super human effort to
obtain, but the system at this point has not even reached the foothills. As we
have seen the past 12 years have not resulted in a system of labor relations
where the principles set forth in the preamble have existed. There have not
been modern and progressive work practices. And there has not been an op-
portunity for employees to really participate in the formulation of personnel
policies and practices affecting their condition of employment..
These goals may be achieved only through legislation.
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IV. THE LEGISLATION NEEDED TO ESTABLISH A LABOR-MANAGEMENT RELATIONS
I'ROGRAM IN THE FEDERAL SECTOR IS CONTJLINED IN H.R. 9784
Chairman Hampton has summarily dismissed the concept of legislation for
federal employees: "In general, we found these bills in conflict with the public
interest and with the unique characteristics of Fede ml employment. We believe
that they are unsound and would be disruptive to an existing, orderly labor-
management relationship." We have already shown :-hat the federal government
is not unique as an employer, that the words 'orderly labor-management relation-
ship" are euphemistic for paternalism; and we will show that H.R. 9784 is legisla-
tion which is in the public interest.
The concept of meaningful collective bargaining is not new to this country.
It is recognized as a method to achieve industrial peace. This fact was recag-
ized as early as 1902 by the Industrial. Commission:
"The chief advantage which comes from the practice of periodically determin-
ing the conditions of labor by collective bargaining directly between employers
and employees is that thereby each side obtains a Defter understanding of the
actual state of the industry, of the conditions which confront the other side, and
the motives which influence it. Most strikes and lock mts would not occur if each
party understood exactly the position of the other." "
it is recognized as a means for achieving industria.. democracy. Employees are
able through their union to participate in the matters Which affect their job
lives. And it is recognized as a needed substitute for individual bargaining. Fair-
ness between employee and employer in salary, hours, and terms and conditions
of employment is ensured where employees are entitled to take collective rather
than individual action. H.R. 9784 is conceived witl these goals in mind.
A. H.R. 0754 PROVIDES FCR A CENTRAL BODY TO ADMINISTER THE LABOR-RELATIONS
PROGRAM
H.R. 9784 provides for the creation, of a Federal Employees Labor Relations
Board. The Board is to consist of five members appcinted by the President with
the consent of the Senate. The Board is vested with the responsibility of "pre-
vent (ing) any person from engaging in conduct in vi )1ation of this Act." In addi-
tion, the Act creates the position of General Counsel whose responsibility it shall
be to investigate and prosecute violations of the Ac;. H.R. 10700 provides for a
three meniber Federal Labor Relations Authority. The authority and responsi-
bility of the Authority is the same as the Board. However, the Authority does not
provide for the creation of a General Counsel position.
Chairman Hampton expressed a great deal of concern over the creation of
"powerful centralized bodies." He goes on to state that "These central bodies
would be virtually 'independent and would supplant the key existing third-party
agencies authorized under the Executive Order program. . . . Careful considera-
tion needs to be given to the range of authority for policy setting by a centralized
body. For example. should such a body, without accountability, have power to
commit elected officials to the major, unappropriated expenditure of funds, or to
matters affecting the mission of agencies?"
Our answer is yes to all of the above questions. We have already shown that the
"key third-party agencies" in the federal government are merely vehicles for
perpetuating the power and authority of federal managers. It is not surprising
that Chairman Hampton would refer to these indi,riduals as "Key ;" they are
responsible for maintaining the policy of the federal managers in the context of
Executive Order 11491.
Contrary to Chairman Hampton's statement, such an authority would have
more "accountanility" than the present Federal Lab .)r Relations Council. Under
either H.R. 9784 or FLR. 10700, either party could appeal a decision to the Courts.
There exists no accountaoility under the present system.
It is also clear that when Congress declares a policy and provides an adminis-
trative procedu::.e for challenging the failure to fellow that policy, it cannot
properly be stated that the administrative decision maker should not be allowed
to redress an injured party. Chairman Hampton implies that the central author-
ity should not be allowed to order back pay to employees who are injured by an
agency action. There can be no central authority without the power to impose
remedies. We do not believe that whe:n Congress setk out policy to the Executive
Branch of government and a federal manager fails tc follow that policy, that it is
vesting too much authority in a central body to review that action and order an
appropriate remedy.
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B. H.R. 9784 PROVIDES FOR BARGAINING ON ALL MATTERS CONCERNING WORKING CONDI-
TIONS AND ENVIRONMENT, PAY PRACTICES, FRINGE BENEFITS, WORK hOURS, AND
SCHEDULES, OVERTIME, WORK PROCEDURES, AUTOMATION, SAFETY, TRANSFERS, JOB
CLASSIFICATIONS, DETAILS, PROMOTION PROCEDURES, SENIORITY, ASSIGNMENTS AND
REASSIGNMENTS, REDUCTION IN FORCE, JOB SECURITY, CONTRACTING OUT, USE OF
MILITARY PERSONNEL, DISCIPLINARY ACTIONS AND APPEALS, TRAINING, METHODS OF
ADJUSTING GRIEVANCES, GRANTING LEAVE, UNION SECURITY, AND TRAVEL AND PER
DIEM
As set forth above, H.R. 9784 provides for negotiation on all matters of concern
to employees. The negotiations must take place at the level where recognition is
granted. In contrast, H.R. 10700 seriously limits the scope of bargaining by
maintaining with one exception, the management rights clause contained in the
Order.
The sole exception concerns the issuance of changes in personnel policies by
agencies other than the Defense Department. An elaborate procedure is set forth
for discussing these changes: if the agency head issues the change, negotiation
takes place and if the policy issuance is from the CSC or covers more than one
agency, it is referred to the Federal Labor Relations Board composed of five
representatives from the unions, five representatives from management and a
Chairman appointed by the Chairman of the Civil Service Commission. This
Board would then meet to determine the efficacy of the management proposal for
change. ?
H.R. 10700 fails to deal with the two important questions under the present
system. First, the expansive management right clause carves out many matters of
importance to the working life of a federal employee. The continuation of such a
clause merely increases the frustration over the inability to participate in the
matters which affect him.
Second, the elaborate procedure for considering changes in personnel policies
falls far short of employee participation in matters which affect them. Employees
band together in collective action and appoint specific individuals to represent
their interests. Under the procedure outlined in H.R. 10700, those individuals
may or may not represent them on the Board. And even if on the Board, their vote
may be overruled by management of other unions. The procedure is totally unfair
and undemocratic. Elected representatives should be allowed to perform their
functions of representing the interests of their constituents.
1. The scope of bargaining mandated in H.R. 9784 should not be restricted because
of the number of emelusive units of recognition in the federal government.
Chairman Hampton in his testimony raised the serious question of how could
the Congress of the United States turn over authority for economic benefits, classi-
fication, and other conditions of employment to 3400 bargaining units without
controls on appropriations, oversight responsibilities and without a way of ex-
plaining to constituents why they are treated differently from employees perform-
ing identical functions. Mr. Hampton has characterized the problem of different
units bargaining on issues of pay and benefits as an ominous threat to the public
and to the power of Congress. Flowever, a close examination of the issue reveals
that Mr. Hampton's problem is like the tin man in the Wizard of Oz, it has no
substance or heart.
The federal government itself seems able to conduct negotiations on pay and
other matters with the employees of the Tennessee Valley Authority where 23
separate units exist. While it is true that TVA conducts negotiations at the
present time on three contracts with councils of the recognized unions, the coun-
cils are not mandated by statute or regulations: TVA has two contracts to cover
its construction workers and another contract for white collar employees. The
salary and benefits are negotiated upon a study made of the prevailing rates paid
by employers in the area.
The various states also conduct full negotiations in less than statewide units.
A number of states use the language of the private sector?"community of in-
terest"?to define units. Montana and South Dakota allow the employee or-
ganization total control over the definition of the unit. The states are divided as
to whether extent of 'organization is a factor in unit determination. The Min-
nesota statute provides that the Board "shall place particular emphasis upon the
history and extent of organization," while Vermont provides that it shall not be
controlling. New York and New York City require that the agency consider the
Impact of unit determination on the public interest, while the Los Angeles
Municipal Code and Minnesota require consideration of existing personnel
classification systems. In Hawaii and in the Wisconsin State Employees Statute,
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the bargaining units are statutory. The Wisconsin Employee Relations Board
has the authority to determine in a limited fashion the size of the unit for
municipal employees. The city of Milwaukee has many bargaining units ranging
in size from 280G employees in the Department of Public Works to 4 employees
in the Election Commission. The City of Cincinnati has multiple bargaining
units which utiliee the coalition system of bargaining as discussed in regard to
the TVA. Michigan, a state with a very sophisticatel labor relations program,
covering public employees, presently has 3500 collective bargaining contracts in
1400 units of government. In other words, states have followed a varied path in
determining units; however, no state or municipal government has collapsed, be-
-cause of the exigence of many units. And states have not resisted legislation,
'because of the existence of many units.
Tt is now truly ironic that Chairman Hampton, the man who had the most to
do with the number and size of the units of recognillon in the federal govern-
ment, would seek to buttress his case against legislation on the size of the units
in the goveriunen..
It was the Civil Service Commission who had the primary responsibility for
drafting and implementing Executive Order 1.0988. The Civil Service Commis-
sion issued a directive discouraging agencies from recognizing large unts of rec-
ognition. The CSC wanted to keep the units small.
In retrospect, the Study Committee Report which f(naned the basis for Execu-
tive Order 11491, recommended the abolishment of the policy against small
units, added the words "efficiency of agency operations" and "effective dealings"
as two new criteria to the traditional "community of interest" definition of ap-
propriate unit, and recommended that the Council ir stitute a study to further
examine and make recommendations on the size of units in the federal govern-
ment. Clearly, the Study Committee recognized the n?ed to increase the size of
units by adding the new criteria and recommending tc the Council further study
of the issue. However, the record of the Council has been abysmal.
First, the Council has never publicly issued a study or given guidance, which
would have the effect of increasing unit size. Second, when the Council was
presented with an opportunity to consolidate 54 ,separe tely recognized bargaining
units into one unit by means of a unit clarification req lest, the Council dismissed
the petition.
In August 1970, we filed three unit clarification petitions with the Department
of Labor seeking to combine 69 separately recognized units into three large units.
These petitions were summarily dismissed by the Regional Administrator and his
decision was ratified by the Assistant Secretary and the Council. The Regional
Administrator conceded in his decision, that the proposed units would result in a
more effective relationship between the parties as reqin red by the Order. Interest-
ingly enough, the employer supported our petitions and joined in the request to
the Assistant ,Secretary to reverse the decision. Here then was a perfect example
of an agency and union seeking to establish the optimum unit for collective
bargaining, yet, they were frustrated by the Assistant Secretary.
Besides the rationale basis, there existed ample precedent for a different
decision. The Board in the matter of PPG Industries, 130 NLRB No. 58, 73 LRRM
10001 (1969), held that petitions seeking the clarification of several units into
one individual unit would not be automatically rejected as raising a question of
representation as did the Assistant Secretary. In the private sector, it is a long
standing principle that petitions for clarification a7e granted when the em-
ployees sought to be clarified have grown together from separate parts into a
single entity. It is Board policy to grant clarification requests when the parties
so desire. Thus, we were faced with a sftuation where we were attempting to im-
prove labor relations for all parties concerned, based upon principles established
by the NLRB in the private sector. logic, and good sense; however. the Assistant
Secretary denied and frustrated these attempts. The Council sustained the de-
cision of the Assistant Secretary.
The Assistant Secretary also failed in a second appi each to unit consolidation.
in the infamous case of Veterans Adntinistratian, ii./SLRM 240 (1/15/73), a
Petition was filed in July 1971 by the Council of AFGE Veterans Administration
locals for a unit encompassing all of the agency's employees. The Assistant Sec-
retary, in a totally unprecedented decision, provided for a two stage hearing,
which would first involve a consideration of the petitioners showing of interest
and then a consideration of the appropriateness of the unit. The Assistant Sec-
retary, after eight months, ruled that the petitioners showing of interest was in-
sufficient, on the grounds that a petitioning mlon ear not utilize, in its showing
of interest for a broad unit, employees presently covered by contracts, even
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though they were AFGE contracts. The Assistant Secretary held that Agree-
ment bars may not be waived unilaterally and that he will not examine units with
contracts to see if changed circumstances exist sufficiently to require a changed
unit. This decision, in effect, was the deathblow to any hopes that a union would
have of filing a petition for nationwide exclusive recognition when it holds rec-
ognitions for smaller units within the agency. Since in an agency of any size,
it would be almost impossible for all contracts to expire at the same time. The
merits of the case, whether the proposed unit met the criteria of the Order, was
never heard by the Assistant Secretary. The only nationwide units which exist
in the federal sector are those units which were organized at one time in very
small agencies. The decision of the Assistant Secretary has been on appeal to the
FLRC since February of 1973, and the Council has still not rendered a decision.
Thus, it has been the desire of the unions to combine small units into larger
units. And it is the very federal management which now complains about the
proliferation of units, who refused to consider and resolve the matter. Therefore,
this problem of "too many units" is obviously a red herring. The problem of
multiplicity of units is a problem created and fostered by management in an
attempt to avoid dealing with large nationwide units of recognition. It cannot
now be used to thwart legislation.
H.R. 9784 defines the appropriate unit in the same terms as does the present
Executive Order: community of interest, effectiveness of dealings, and effi-
ciency of operations. This type of definition strikes a reasonable balance between
units which are so large that individuals cannot participate, and units which
are so small that they are impossible to administer. This definition recognizes
that like situated employees will better understand their own problems and
press their unique needs, and it also recognizes the instinct of exclusiveness
which causes employees to want to form their own organization rather than
become a part of a larger organization in which they may feel themselves
strangers. In addition, if the definition were properly administered, it could
lead to the reformation of old units through consolidation, and encourage multi-
unit bargaining as seen in TVA.
Even if all of this is done; however, there will remain the situation of em-
ployees in the federal government who are performing essentially the same work
receiving different pay and performing under different working conditions.
Chairman Hampton has characterized such a situation as a disaster. We do
not believe it so. The essence of collective bargaining is participation; and if
employees in one unit choose to negotiate working conditions and pay which
are different from another group of employees, they should be allowed to do so.
For example, employees in Del City, Oklahoma may be satisfied with lower
salary and a higher employer contribution to a pension plan; whereas, em-
ployees in New York City may desire a higher salary and lower employer
contribution to a pension plan. Employees who drive their own vehicles a great
deal may want a higher mileage reimbursement and lower salary than employ-
ees who work strictly in an office. The examples are endless. Such a system
recognizes diversity and that uniformity is not Valhalla.
Such a system also recognizes that the validly elected representatives of the
employees have the duty and responsibility to negotiate on behalf of those they
represent. H.R. 10700 ignores this duty and responsibility by allowing non-
elected representatives to dictate their terms and conditions of employment. It
fosters uniformity over diversity and allows federal "managers" the excuse
of "higher level regulations." Diversity forces managers to manage. In the pri-
vate sector and in every state which has legislation, the obligation to bargain
is coextensive with the unit of recognition. It is time for the federal government
to cease Its deification of a centralized personnel system, and recognize that
rather than help managers and employees, the system has served to stifle inno-
vation, imagination, and management responsibilities.
2. The scope of bargaining mandated in H.R. 9784 is not a relinquishment of
Congressional authority or responsibility.
II.R. 9784 defines collective bargaining inter alia as the obligation to meet at
reasonable times and confer In good faith in light of the budget making process.
"Collective bargaining" also includes "the obligation of the agency to submit
such agreement to the appropriate governmental body for action" if legislative
action is necessary to implement an agreement reached.
Thus. H.R. 9784 envisions a collective bargaining process which includes
legislative oversight primarily through approving or disapproving agency budget
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requests which may be based upon collective bargaining agreements. This is a
larger Oongressional role than exists 'under the present system.
H.R. 9784 is not unlike the New York system. Each agreement must contain
the following statement:
"It is agreed by and between the parties that any provision of this agreement
requiring legislative action to permit its implementetion by amendment of law
or by providing the additional funds therefore, shal, not become effective until
the appropriate legislative body has given approval.
Wisconsin takes a slightly different approach. The Wisconsin Revised Em-
ployment Relations Act vests the executive with bargiining authority. Where the
executive and the union reach agreement, it is a tentative agreement which must
be approved by the legislature. The tentative agreement is submitted to a joint
legislative committee after the hearing, which is composed of the speaker of the
Assembly, president pro tem of the Senate, majority and minority leaders and
joint co-chairmen of the (lommittee of Finance. This 313mmittee then holds public
hearings and acts to approve or disapprove the agreement. Once the committee
approves the bill, implementing legislation is introduced into each house of the
state legislature. If the committee does not approve it, it then goes back to the
parties for further negotiation.
The New York and Wisconsin systems have worhed and there is no reason
why the same system cannot work in the federal goverament.
S. The inclusion of a management rights clause is a debilitating burden to
parties that are interested in resolving problems facing managers and
employees.
The inclusion of a management rights clause as proposed?HR. 10700 dis-
courages the resolution of problems and encourage > reliance by managers on
"my statutory management rights." The definition a! "inherent managerial pol-
icy" or "conditions of employment" are usually arrived at only after litigation.
State courts and/or public employee relations boardk are forced to develop case
law to accommodate the statutes, the parties and the realities. Ambiguous pro-
visions actually deter effective bargaining. The proc!ess is time-consuming, ex-
pensive, irritating, and, in the long run, damaging to the public. Traditional
collective bargaining does not hold these built-in detriments. Experience has
shown that public employers are encouraged to test Ihe parameters of statutory
language by refusing to bargain on borderline issues Indeed, it is an easy step,
too often taken, for an employer to claim that ansthing done by the agency
bears on the "mission of the agency" or was done to "maintain the efficiency
of the service."
Bargaining is a therapeutic process. Not everything in bargaining is black
and white, nor an absolute right or wrong, but it is an ongoing process in which
an employer and employees reach agreement and sWve problems. Problem solv-
ing is severely -inhibited when one party can refuse to discuss or attempt to
resolve a wide range of problems.
There is experience in the private sector, which warrants the conclusion that
the place for a management rights clause is in the !ollective bargaining agree-
ment; not the statute. Subjects which in 1935, were not considered problems are
now common at bargaining tables. Our world is much too complex and fast
moving to limit the subject of bargaining by statute. As Justice Harlan wisely
stated in NLRB v. Wooster, Division of Borg Warner, 356 U.S. 342, 358 (1957) :
"the bargaining process should be left fluid, free fram intervention . . . leading
to premature crystallization of labor agreements into any one pattern of contract
provisions so that these agreements can be adapted through collective bargaining
to the changing needs of our society and to the changing concepts of the respon-
sibilities of labor and management."
Who is to know better what the changing concepts end needs are for a particu-
lar agency than the people who understand how thi t agency works?
It is interesting that in April 1972. Robert Hamptan spoke at the Conference
of Directors of Personnel, at the Federal Executive Institute in Charlottesville,
Virginia, and seemed to adopt a flexible approach:
"the objective of the Scope of Bargaining eroject is to remove barriers . . . to
negotiations. not to determine what is negotiable or come up with a longer list
of negotiable items. Instead, the project is designed to (1) pin-point (Civir
Service Commission) policies and regulations that might be undesirably restric-
tive and (2) suggest how they might be changed to broaden or remove un-
certainty about the scope of bargaining in the Federal service."
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This is exactly the point we are making. We are trying to remove uncertainty.
We are trying to open up the process to remove the barriers. However, Chair-
man Hampton seems to have now changed his approach.
There have been a number of States which have moved forward his area.11
However, the most relevant exprience is that seen in the Postal Reorganiza-
tion Act. Section 1011 (e) of Title 39 of the United States Code provides a list-
ing of management rights but provides that these rights are subject to altera-
tion through collective bargaining. Quite rightly, Congress concluded that collec-
tive bargaining rather than "management rights" is the appropriate method
for ensuring problem solving.
4. H.R. 9784 would supersede all existing regulations while leaving all statutes
in affect without change.
The issue of the supersedure of laws presently existing in Title 5 is of para-
mount interest to all parties concerned. The Postal Reorganization Act provides
a good example of how this issue has been confronted in regard to collective
bargaining for public employees.
The Act contains protective provisions for the continuance of compensation
and benefits and other terms and conditions of employment in effect prior to the
effective date of the law. Section 1005(f) provides that compensation, benefits
and terms and conditions of employment will continue to apply unless changed
through collective bargaining with the proviso that no variation, addition, or
substitution with respect to fringe benefits can be made except by collective
bargaining and further any variation, addition, or substitution with respect
to fringe benefits must result in a program of fringe benefits which is not less
favorable on the whole than the fringe benefits in effect on the effective date
of the law. Thus, existing compensation, benefits and conditions of employment
constituted the floor from which collective bargaining was to begin.
Among the benefits which were to be continued but which were subject to
variation through the collective bargaining process were unemployment com-
pensation under Subchapter T. of Chapter 85, of Title 5 U.S.C., and life insurance
and health insurance benefits tinder Chapter 87 and 89 of Title 5. The Act con-
tinues sick and annual leave although they are subject to collective bargaining
which does not result in benefits less favorablq. to employees.
The Act also continues the provisions of Subchapter I, of Chapter 81, of Title
5, relating to compensation for work injuries.
In addition to the foregoing, postal employees continue to be covered by the
Civil Service Retirement System provided for in Chapter 83, Title 5, U.S.C.
Thus, the question of supercedure was handled in the Postal Act by retaining
some statutes in total, such as the Civil Service retirement system and com-
pensation for work Injuries, but other statutes were established as the base
upon which negotiations would be held.
As noted previously, 33 states have laws providing for collective bargaining
for public employees. The question of supercedure of laws has been handled in
various ways. In Hawaii, the law excludes from negotiations matters con-
cerning classification and reclassification, retirement benefits and salary ranges.
However, the wage to be paid within each range and the length of service for
incremental and longevity steps is negotiable.
Other matters, such as the principle of equal pay for equal work or merit
principles can be negotiated upon as long as they are not inconsistent with
certain sections of the Hawaii code of laws.
The Michigan Public Employment Relations Act provides that the employer
is to bargain in respect to wages, hours, and other terms and conditions of em-
ployment regardless of pre-existing laws or regulations.
The Wisconsin State statute deals with the vexatious problems of preexisting
regulations by stating that all civil service and other applicable statutes con-
cerning wages, hours nnd conditions of employment shall apply to employees
not included in certified bargaining units. Thus, the law specifically provides for
supercedure of civil service laws when an employer and exclusive representa-
tive are negotiating.
What we have in the federal sector under the Executive Order system and
would have under H.R. 10700 is language which prohibits the negotiation between
the parties on any matter covered by a higher level regulation. What we see
Hawaii Rev. stat. Section 89-1 to -20 (Supp. 1971) ; Conn. Gen. Stat. Ann, Section
7-467 to -477 (1972)?
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is regulations issued by the Civil Service Commission implementing a statute;
the Department issuing regulations implementing the CSC regulations; the
Agency issuing regulations implementing the Department implementation; the
Region within the Agency implementing the Agenc3 implementation; etc. Nothing
is left for negotiation at the recognition level. The manager is able to escape
negotiations in the statement that "I really would like to negotiate with you
on that matter; however, the higher level regulations prohibit me from doing it."
This is not problem solving; this is not management by decision making; this
is management by excuse. Removal of the inhibit ng regulation would increase
the efficiency of government.
N'.17ETT believes that the Postal Reorganization Act and particularly the Wis-
consin Statute provide a clear example of how the issue of supersedure should
be handled. We also would adopt the provision in the Postal Act retaining the
laws providing for Veterans preference in regard to hiring. These procedures
have worked tor the Postal Service and they can work for all other federal.
employees.
C. H.R. 9784 PROTECTS EMPLOYEES IN PlIETR RIGHT TO JOIN OR NOT JOIN UNIONS BUT
DOES PROVIDE THAT THOSE WHO REFUSE TO JOIN MIST PAY TO THE UNION WHICH
HOLDS EXCLUSIVE RECOGNITION AN AMOUNT EQUAL T) A MEMBER'S DUES
The protection of employees to join or not join a union coupled with the re-
quirement that those who elect not to join must ply a fee equal to the amount
of members' dues is called an agency shop. The uniform payment of dues or their
equivalent becomes a valid condition of employment. The agency shop is a
well-accepted doctrine in the private sector. In addition, the negotiation of
agency shop clauses is specifically permitted by law in at least seven states." In
contrast to these statutory provisions which perimt the parties to voluntarily
agree upon an agency shop clause, the Hawaii pnblic sector law requires an
employer, wholly independent of nogotiationS, to deduct from the pay of all
employees in the appropriate unit service fees. and remit same to the exclusive
representative. Similarly, the Minnesota statute provides that "the employer
upon notificattm by the exclusive representative. . shall he obligated to check
off from non-members "a fair share fee for the r?wrvices rendered by the ex-
clusive representative." Ma.ssachn?etts has analogous statutory provisions ap-
plicable to the City of Boston and Suffolk County. Thus, we see that the agency
shop is not a grand experiment; it is a viable doctrine which is working in the
states.
An agency shop arrangement is in fact in the public interest. Collective bar-
gaining assumes that unions are free to act, and have the wherewithal to act,
with a full measure of responsibility. A union Must have the security and policy
making stability that flow from the fact that pplicy and strategy decisions.
affecting all employees in the bargaining unit have been sanctioned by a union
membership that is eoextensive with the bargaining uni.t. And it must have the
financial stability that flows from the fact that the costs entailed in exercising
its responsibilities as the bargaining representative for all employees In the
bargaining unit are being shared by all employees in that unit.
The opponents to the concept an agency shop marshall arguments in opposi-
tion. Jet us examine them.
1. "Allowing an agency shop constitutes discrimination by the employer and
has the effect of encouraging union membership." The Michigan Public Em-
ployment Relations Commission considered this argument in the Oakland County'
Sheriffs Departm ent 17 case. The Board distinguish between membership and
payment of fees and recognized the agency shop for what it is: a method to
insure stability in the labor relations program, and not a method to encourage
membership :
"A requirement that employees pay their share of the cost of negotiating and
administering a collective bargaining agreement neither discourages nor en-
courages membership in the labor organization selected by a majority of em-
ployees in the bargaining unit to represent them. It is not discriminatory, as
1f, Alas, SOU. eh. 40. St,etion 23.40.110(h) (2) (sunup. 1972) : Michigan. Mich. Comp.
Laws Ann. Section 422.210(1)(c), as amended by Act 25, L. 1973: Montana. Mont. Rev.
Ona,-,R Ann. eh. 441. Section 5(11(c), L. 1973. GERR Ref. Fie 51: 3512: Orezon. Ore. Laws
536, Section 4(1) (c), L 1975. all:RR Ref. File 51 :4612 : Rhode Island, R.I. Gen. Laws,
Ann. tit. 26. eh. 11. Section 2/-11-2 (1972) : Vermont, Vt. Stat. Ann. tit. 21, Section
1726(3) (Stipp. 1973) ; and Wisconsin (municipal employees), Wis. Stat. Ann. Section
111.70(1) (Supp. 1972).
'1227 Graft F-1 (January 15. 1968).
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the requirement that each employee pay his pro rate share of the cost applies
alike to all employees in the bargaining unit, whether they are, or are not,
members of the union."
It is clear that an agency shop standing alone does not encourage membership
and since the requirement is uniformly applied it does not constitute
discrimination.
2. Another argument used is that "an agency shop violates merit principles."'
Governor Knowles in vetoing a Wisconsin State Act containing an agency shop,
clause in 1965 stated:
". . . a requirement that public employees involuntarily contribute to unions:
'detracts from the merit procedure and places an additional impediment on ob-
taining and retaining qualified employees.' "?
This same theme?the notion that union security clauses are inconsistent.
with the merit system, which is a basic characteristic of public employment?
is at the heart of most of the early court and state attorney general opinions
which ruled (usually in the absence of any state legislation authorizing collec-
tive bargaining for public employees) that union security clauses were invalid.
'Thus, for example, in Petrucci v. Hogan, 27 N.Y.S. 2 d 718 (1941), a New York
Court, in issuing an injunction against picketing by the Transport Workers
Union for union security, said:
"Obviously appointments and promotions. in the civil service must be deter-
mined upon merit and fitness. The right to appointment depends upon merit and
fitness, not upon membership in a labor organization . . ."
Chairman Hampton echoed this theme in this tastimony when he contended
that the provision in II.R. 9784 providing for agency shop would violate the
merit principles which are the cornerstone of Civil Service Commission policy.
As a labor organization involved in representing thousands of employees through-
out the nation we can only say that from our vast experience that the corner-
stone is crumbling in the real world of employee relations merit is not always
the yardstick used to measure an individual for a job.
Our experience reveals that frequently an agency is able to manipulate the
Civil Service registers in order to select a predetermined individual. An agency
does this by submitting to the CSC a selective certification request which is
specifically tailored to fit the background and qualifications of the individual
they desire. if Civil Service then submits to the agency a register containing
more names than the individual desired, and if the individual is not among the
top three on the list, the agency can massage the list in order to eliminate
enough peeple to bring their man up to the top three. Once the desired individual
becomes one of the top three people on the list, the agency is free to select
him without worrying about any sort of challenge from CSC on their post audit
of the register. If the individual is being considered for a high level pob, in the
GS-12 and up category, a high official in the agency will contact the Commission
in order to insure special consideration in the development of the register. The
higher the agency official the more special the attention given. Of course a
veteran or disabled veteran who happens to fit the qualifications would go to the
head of the register and have to be picked if a selection was made, but the
agency could avoid this by sending the whole register back and not filling the
job until a later date.
The second prong of the merit principle is the concept of "promotion based on
merit." However, the 'CSO itself knows that promotions are not necessarily based
on merit. The procedures are sufficiently flexible that in stating initial qualifica-
tion, talking to the ranking panel, and influencing the selecting official the pre-
selected individual is chosen. There exists little "merit" in the federal sector.
However, even if the merit principle were viable, it does not conflict with the
concept of an agency shop. There are several state court decisions on the sub-
8 11. at F-14.
19 GERM No. 122. B04 (January 10, 1966). While the bill in question was pending before
the Wisconsin legislature. an opinion issued by the Wisconsin Attorney General sustained
the constitutionality and legality of the proposal. The opinion stated. in part:
"If the question were to be decided solely on the concept that government employment is a
privilege rather than the 'right to earn a livelihood by following the ordinary occupations
of life' (11 Am. Jur. 1147). which is protected by the constitution, public employees would
have no greater basis for challenging a governmental authorization of a union shop than
the railroad employees involved in Ey. Employees Dept. v. Hanson, supra . . . the validity
of the proposed requirement would be supported by the above cited decisions of the United
States Supreme Court and by the decisions of the Wisconsin Supreme Court upholding the
validity of a requirement for membership in the state bar associations as a condition of
engaging in the practice of law . . ." GERR No. 100, D-12-13. (August 9, 1965).
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ject. In 1968, in Tremblay v. Berlin, Police Union," the New Hampshire Supreme
Conti: had before it a declaratory judgment. action testing the validity of cer-
tain provisions in a collective bargaining agreement covering police department
employees. The New Hampshire statute authorizing public employee bargaining
is silent on the issue of union security. The agreement in question contained a
'17aft-Hartley type union shop clause. No employee could be discharged for non-
membership except for failure to meet his financial obligation to the union. The
Court ruled that the clause was valid as a reasonable concomitant of collective
nargaining for employees which the state had declared to be proper public policy.
'1'he concept of merit inhibiting an agency shop clause was more directly con-
sidered by the third Michigan Circuit Court?in Smi9el v. Southgate Community
School District 'fl---where the Court likewise austaimal the validity of an agency
shop covering a bargaining unit of teachers. In its decision the Court observed
that the agency shop ". . . has been a bargainable iseue in the collective bargain-
ing process for many years and has received reeognition as having a stabilizing
influence upon employer-employee relations." "Such provision," said the Court,
. . serves the purpose of allocating indiscriminate:y the cost of representation
for collective bargaining among all those parlieipatng in the benefits received.
Such a provision eliminates the 'free riders'." And As to the contention that the
agency shop agreement conflicts with the Teachers ..renure Act the Court said:
"Such a contention presupposes a' contradiction in the terms of purposes of
P.E.R.A. and the Teachers Tenure Act . . . The latter promotes good order and
welfare of the srate and school system by preventing removal of capable and ex-
perienced teachers at personal whims of changing affice holders . . . The pur-
pose of P.E.R.A., under which agency shop provisicns may be negotiated is to
benefit employees with a sound, secure, unified approach to employee representa-
tion. Thus we see a common unified goal precluding an interpretation of the
tenure act urging a conflict with P.E.R.A."
If we really examine the concept of "merit", it is actually nothing more than a
basic personnel policy which allegedly substitutes a different test for employment,
advancement and discharge than political patronage. "Merit" is merely a condi-
tion of employment similar to several hundred other conditions of employment
Lacing a federal employee. For example Internal itevenue employees are re-
quired to be familar with a vast array of rules cot cerning their personal and
official activities. Violatioa of these rules, written in the vaguest possible language,
ellt result in disciplinary action against the employee. Two of these rules are:
"(2) No emplayee shall participate in any transaction concerning the pur-
chase or sale of corporate stocks or bonds or of commodities for speculation pur-
tolaes as distinguished from the bona fide investment p nooses." Section 222.4.
"Employees must be courteous, businesslike, diplomatic and tactful. They must
not only perform their duties in a wholly impartial manner, but avoid any ap-
nearance of acting otherwise. They must be groomed in a manner fitting to the
41irroutialings into which their assignments take them. Any lack of these qualities
Aily be basis for disciplinary or other corrective actions." Section 228.2.
No one argues that "the merit principle" is violated if a Federal employee is
not promoted or is discharged if he fails to pay lawful debts; no one argues that
"the merit principle" is violated if a confessed thief is not hired; and no one
argues that "the merit principle" is violated if under present law a Federal em-
ployee strikes. In each case a policy determination has been made. and the merit
system is totally irrelevant. Similarly, a policy decisicn that payment of fees to a
union constitutes a lawful condition of employment, and the failure to pay con-
stitutes a basis for discharge, has nothing to do :with merit. It is merely a con-
(Idiot] of employment.
a. The final argument used is that 1:he existence of an agency shop "violates
an employee's right to work." Individuals who articulate this argument are
really saying they want an individual to be free to work for longer hours and
,0 Tremblay v. Bedin Police Union, 237 A. 2d 668, f;8 LRILlit 2070 (1968).
70 IRRM 2042 (1968).
" 70 LRRM at 2044. On appeal the Michigan Supreme Court reversed this decision on
ether grounds. Foll3wing that Supreme Court decision in Sarlgei the Michigan Public Em-
ployment Relations Act was amended to specifically authorize the negotiation of an agency
stop clause requiring "as a condition of employment that all employees in the bargaining
unit pay to the exclusive bargaining representative a service fee equal to the amount of
Cues uniformly required of members of the exclusive bargaining representative . . ."
Mich. Comp. Laws Ann. Section 423.210(1) (c), as amended by Act 25, L. 1973.
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lower pay with the employer determining terms and conditions of employment
in a unilateral manner. Professor Seligmen summed up this argument 95 years
ago:
"The right of the individual to work, is indeed. . . a sacred and imprescriptible
right; but the conditions under which this right is to be exercised are by no means
a matter of mere individual discretion and of social unconcern. We are beginning
to see that the securest guarantee of liberty is the social sanction?that true
and permanent freedom is at bottom an outgrowth of the social forces, and that
individual bargaining results in a mere empty husk of freedom."
The provision in H.R. 10700 is totally unique. It provides that although a
union has exclusive recognition in a unit it is merely "entitled to represent and
bargain collectively for employees in the unit." There exists no provision man-
dating the union to represent the employees in the unit. This has been interpreted
to mean, by tile sponsors of the legislation, that a union could negotiate a collec-
tive bargaining agreement covering only members. Such an arrangement in-
creases instability and would perhaps fail in its intended effect.
Neither the National Labor Relations Act nor the Railway Labor Act contains
a mandatory requirement that the exclusive representative perform a representa-
tion function for the non-member. However, the Supreme Court in Steele v
Lonis-
ci N.R. Co.' and Tram v Sipes established the principle that the exclu-
sive representative has the obligation and duty to represent nonmembers to the
same extent as members, Therefore, it is certainly not clear that a union could
negotiate only for the benefit of its members.
However, even if this were true, it would lead to great instability. The union
would negotiate a contract and employees could join and quit their membership.
on a daily or weekly or monthly basis as they "needed" the agreement.
In addition, the language has the effect of forcing Federal employee unions
from the Federal sector through bankruptcy. All an agency need do is conduct
long, expensive negotiations for the benefit of union members and then grant the
same benefits to non-members through regulation. H.R. 10700 would have the
effect of discouraging membership in unions and ending all union activity in the.
federal sector.
D. H.R. 97 84 GUARANTEES A REALISTIC LABOR RELATIONS PROGRAM BY PROVIDING FOR
THE RIGHT TO STRIKE
Historically, strikes by public employees have been prohibited by statute
Or by court decision.' The Supreme Court by denying review in two cases re-
fused to overturn two cases which held that public employees do not have a con-
stitutional right to strike.' The question of "right" to strike is actually irrelevant
when considering that public employees can and do strike. The nationwide record
of strikes is as follows:
1958-15
1963-29
1968-254
1959-26
1064-41
1969-411
1960-36
1965-42
1970-412
1961-28
1966-142
1971-329
1962-27
1967-181
1972-375
23 E. R. A. Seligman, Social Aspects of Economic Law, Proceedings, American Economic
Association, 1903, Part I, pp. 57-58.
2, 323 U.S. 192 (1944).
24. 386 U.S. 171 (1967).
"Delaware, Florida, Georgia, Hawaii, Massachusetts, Michigan, Minnesota, Nebraska,
Nevada, New York, Ohio, South Dakota, Texas, Vermont, Virginia and Wisconsin. Duff,
Labor Law: Right of Public Employees to Strike or Employees in Work Stoppage, 37 ALR 3d
1147. See, generally, Howlett, Labor Relations Problems in the Public Sector: The Right to
Strike 53 Chicago Bar Record 108 (December, 1971), reprinted in International Society of
Barristers, Vol. 7, No. 4, pp. 36-44 (October, 1972), and in 1971 Labor Relations Yearbook,
98 (BNA).
See Illinois: Board of Education of Community Unit School District v. Redding, 32 Ill.
2d 567, 207 NE 23 427, 59 LRRM 2406 (1965) ; (but see City of Pana v. Harold Crowe and
AFSCME Local 726, 13 Ill. App. 3d 90, 299 NE 28 770, 83 LRRM 3060 (Ill. App. Ct., 1973)
which held the Illinois Anti-Injunction Act applied to public sector strikes) ; Florida;?
Pinellas County Classroom Teachers Association, Inc. v. Board of Public Instruction,
Pinellas County, Florida, 214 So. 2d 34, 69 LRRM 2466 (Florida Sup. Ct. 1968) Indiana:
Teachers, Local 519 v. School City of Anderson, 252 Ind. 558, 254 NE 2d 329, .3'7 ALR 3d
1131, 73 LRRM 2601 (1970) ; Kentucky: Jefferson County Teachers Association v. Board
of Education, Jefferson County, 463 SW 28 627, 75 LRRM 2486 (Kentucky Ct. of App.,
1970) ' ? Maryland: Board of Education, Montgomery County v. Montgomery County Educa-
tion Association, 67 LltRM 2745 (Md. Cir. Ct., 1968) ; North Dakota: City of Minot v.
Teamsters No. 74, 142 NW 211 612, 62 LRRM 2283 (N.D. Sup. Ct., 1966).
7, Teachers Local 519 v. School City of Anderson' 252 Ind. 558, 254 NE 2d 329, 73 LIMM
2601 (1970), cert. denied, 399 US 928, 74 LRRM 2552 ; Postal Clerks v. Blount, 325 F. Supp.
879, 76 LRRM 2932 (DDC, 1971), cert. denied, 404 US 802, 92 S. Ct. 80, 30 L. Ed. 2d 38,
78 LRRM 2463 (1971).
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As a result of the reality of the strike, seven states have enacted legislation
which allows strikes under certain circumstances." Generally these statutes
divide employees into two or three categories, determined by the essentiality of
the service they perform. If a strike, or the continuance of a strike beyond a
specified period, will endanger the public health or safety an injunction will
issue.
In addition, two states have Supreme Court decision which have the same
effect. in School, District of the City of Holland v Holland Education Associa-
tion, 380 Mich 3-14, 157 NW 2d 206, 67 LRRM 2916 (1)68), the Michigan Supreme
Court reaffirmed the constitutionality of the, statutory strike prohibition but
held that an injunction, as an extraordinary legal remedy, does not automatically
issue because the strike prohibition law has been viWated. An injunction may be
issued only after evidence has persuaded the court that the public employer seek-
ing the injunction has come to court with "clean hands" by compliance with its
statutory duty to bargain, and that an injunction is necessary to prevent "ir-
reparable damage" a phrase whieh the circuit court judges have interpreted to
mean damage to the public health ar.d. safety. Recently the Supreme Court of
Rhode Island adopted the same rationale."
In spite of the prediction of hankriTtey and despair attending state statutes
granting the right to strike the opposite has been the fact. In 1970, Pennsylvania
legislated a right to strike for public employees. Subsequently in 1973 a joint
House-Senate Committee of the Pennsylvania, legisltaure held hearings concern-
ing the experience after the first three years of the legislation. During the hear-
ings the right to strike portion of the legislation received relatively little atten-
tion. Harry foyer, President of the Pennsylvania AFL?CIO testified that the
incidence of strikes diminished after the right to strle was granted. And there
was little pressure concerning the removal of the strike right.
H.R. 9784 builds on the experience of the states and most particularly the ex-
perience of the Canadian government. In 1967 the Canadian government passed
the Public Service Staff Relations Act. This act set up a system of collective
bargaining between civil service employees and the government. A feature of
the act was the right, of the civil service employees to strike. After an extensive
survey of the Canadian experience Congressman Wilson in a report to Congress-
man Dillski concluded :
"The visit, to Canada clearly showed the success of the Canadian law. The
net result is more responsive management and more responsible union leader-
ship. In Canada this system has prove:a to be a realiEtic and effective method of
promoting equality between labor and management while guarding against capri-
cious, lengthy, and debilitating strikes.
"The Italian, German, and French Constitutions guarantee the right of public
employees to strike. Sweden, Norway, and Denmark authorize such by statute.
In Dation Amerin, the right to strike by government employees is recognized
by most countries. Mexico, our closest neighbor, has the right to strike by con-
stitutional amendment. In fact, the only two modern industrialized nations that
prohibit their government employees from engaging in lawful strikes are the
United States of American and Russia. In fact, two of our own States, Hawaii,
and Pennsylvania, have a limited right to strike for State and local employees.
"There are many arguments both for and against the right to strike, but as
Judge Wright said in a district court decision involving postal employees: 'It is
by no means clear to me that the right to strike is not fundamental. A union
that never strikes, or which can never make a credible throat to strike, may
wither away to ineffectiveness.' "1"
717he impasse nrocedure in H.R. 9784 which culminates in the right to strike
is modeled on the successful Canadian system. Either party may declare that an
impasse exists and request the Federal Mediation frid Conciliation Service to
appoint a mediator. The mediator must be appointed within five days. If the
mediator is unable to resolve the outstanding matters within 15 days, the issues
are submitted to factfinding. At this point the union must decide whether the
report of the factfinder will be advisory or binding. If it. is to be binding, the
union must accept the report and if the report is rot binding, the union has
the right to strike. The work of the faetfinder must be completed within 30 days.
If the report is net binding and the employees strike, the employer may obtain an
'5 Alaska, Hawaii Minnesota, Montane, Oregon, Pennsylvania and Vermont.
School CommiVec of the Town of Westerly v. Westerly Teachers' Association. --
R.T. 299 A, 21 441, 82 LIMM 2567, at 2370 (1973).
10532 CIE11.12. 17-2 (December 10, 1973).
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injunction against the strike if it "poses a clear and present danger to the public
health or safety which in light of all relevant circumstances it is in the best public
interest to prevent." This system is fair and equitable to the parties while at
the same time protecting the interest of the public.
The arguments against granting this right to strike to public employees is
solidly grounded in a bed of emotionalism. Its antagonists consider that Federal
employees owe a special duty to the sovereign and that a strike is a heretic action
against His Majesty. In addition, it is argued (1) that the government performs
essential functions; (2) there is lacking in the government a profit motive which
forces the public employer into an unequal bargaining posture because the public
employers main concern is with maintaining a functioning government; and (3)
if public employees have the right to strike they can exert disproportionate pres-
sure in the political arena.
We fail to understand why public employees by definition have a "higher
calling" to the "sovereign." Public employees must feed their families and educate
their children, and they have the same desires and goals as all other working
people. Public employees are no different from their counterparts in the private
sector:
"Government employees like their counterparts in private enterprise are sub-
ject to the same vicissitudes of insecurity of employment, rising prices, accident,
illness and old age. Everywhere, from the remotest corners of the earth to the
most sophisticated, people seek to assert a measure of control over the conditions
under which they live. The public employee, no less than his private counterpart,
labors under the same apprehensions and frustrations and seeks the same measure
of fulfillment from his daily chores."
The argument that all government employees perform essential services is
-specious. Many industries and service performing enterprises in the private sector
have a greater impact on the economy and on the lives of people than do public
,employees. For example, a railroad strike which is legal could cause greater
-damage to the economy than a strike of city bus drivers. Moreover, some work at
ASAN flight centers is contracted out to private industry. In that case, for no'
logical reason, the carpenter working for the private employer can strike, whereas
the carpenter working for the Federal government performing the exact same
function cannot strike. However, a strike by the private sector carpenter has the
same effect as if the carpenter were employed by the Federal government: work
stops on the rocket.
Furthermore, according to the Bureau of Labor statistics, there were 25 local
government strikes by the Teamsters union truck drivers between 1965-1909.
These strikes were presumably illegal. However, in 1908 there was a legal
Teamster's strike involving oil truck drivers in New York City which is attributed
with the death of several people.
It is clear that the distinction between disputes in which a strike is authorized
and those in which it is forbidden must not be based on public versus private'
dichotomy, but on the true essentiality of the service rendered or product
manufactured.
The profit motive argument is also lacking in substance. The fact that govern-
ment is "non-profit" does not mean that no economic parameters for decision
making exist. First, there is the impact of the loss of pay. The public employee
has the same requirements for the necessities of life for himself and family as
does the private employee. Another economic constraint is the public's concern
over increased taxes. Thus, if a strike of public employees were to result in an
increased tax rate, the political decision makers would be faced with the possible
loss of public support. When taxpayers threaten non-support, politicians can and
do listen. A third economic restraint exists where the resultant effect of the
strike is direct increased cost to the public. This usually arises for such services as
water, sewage and sanitation. Another economic restraint on public sector bar-
gaining is the threat of subcontracting to private sector companies. The City of
Warren. Michigan, successfully ended an impasse by subcontracting its sanitation
service. The threat of doing the same ended a strike in Santa Monica, California.
Weisenfeld. Public Employees?First or Second Class Citkvens, 10 Lab. L.J. OSS,
655 (1905). As early as 1955. the Committee on Labor Relations of the American Bar
Association said : "A government which imposes upon private employers certain obligations
In dealing with their employees may not in good faith refuse to deal with its own public
servants on a reasonably similar basis modified, of course, to meet the exigencies of public
service." 1955 Proceedings, Labor Relations Law Section, American Bar Association 125.
See. also, Smith & McLaughlin. Public Employment: A Neglected Area of Research and
Training in Labor RelatIons, 16 hid. Lab. Rel.Rev. (1969) 30.
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An economic fact which gives the public employer even more leverage than his
private sector .2ounterpart is the public employer shows a profit after a strike.
In the public sector income, (in the form of taxes:, does not increase during a
strike. Therefore, when no costs are incurred in the form of salaries, the profits
increase. Governments budgeting a deficit may not be the least concerned with a
strike because their budget as a result of the strike will be balanced.
In sum, economic restraints have the same effect in controlling public strikes
as market restraints have in controlling private sector collective bargaining.
Thus, if public employees were granted the right to strike, the free play of
economies would act as a check and balance.
Political pressure is another major argument in toe arsenal of the antagonist.
It is argued that the exertion of political pressure is a proper avenue of
influencing decision making in the public sector. In .,the Taylor Act in New York,
the committee stated:
"Careful thought about the matter shows conclusively, we believe, that while
the right to strike normally performs a useful function in the private enterprise
sector (where relative economic power is the final determinant in the making
of private agreements), it is not compatible with the orderly functioning of our
democratie form of representative government (in which relative political power
is the final determinant)."
Public employees are, therefore, to bargain only with the legislature and not
with their employer.
Such a position ignores reality. Private sector unions negotiate collective
bargaining agreements and then go to a legislature to make them better. Minimum
wage legislation, pension reform, occupational health and safety, overtime, equal
employment opportunity programs, eta., all ambrace the private sector collective
bargaining relationship. There are no critics who condemn that activity or
;?4>ek to pass legislation prohibiting that activity; it is lauded and said that the
membership is being properly represented.
A corollary of the same argument is that the pubic employee should not have
two bites at the legislative process ? first, by bargaining with the manager who
makes a budget recommendation to the legislature based on the collective bargain-
ing agreement and second through a "bargaining" .orocess with the legislators
over increasing the terms of the agreement yet more. Public employees and their
unions should be restricted solely to the legislative process.
In answer, as previously pointed out, 33 states have some form of legislation
emu-coming public employees. And there is no state;which has revoked its collec-
tive bargaining legislation because the system has not worked.
I would also like to point out what the critics are really saying; public employ-
ees and their unions should engage only in lobbying activities. However, if
political pressure is to be a viable alternative, then public employees must he
given the full range of political tools. In addition to the well accepted technique
of lobbying, this would include the use of campaign contributions and the
removal of all limitations on political activities of the public employee through
"'Hatch Acts." The hazards inherent in such program are apparent, and make
it Clear that political pressure is not necessarily mere desirable than economic
pressure.
Another hazard of the use of political pressure is that it may make public
sector employees succumb to the political administration in office since this
would be the source of the employees' political power and benefits.
And at this junture in this Country's history, we certainly do not need a
highly politieized Federal employee workforce. In the "Watergate era" the
career Federal employee is unsmirehed by the crud covering this city. I do not
want to do anything or advocate any position which would undermine this
record.
another affect of the use of political pressure is that certain groups of
employees would be left out. Those employees represented by unions who are part
of the patronage system will receive greater benefits than those who are not.
Moreover, those unions who could afford large lobbying budgets would be die-
feting to unions who could not afford such efforts. Keeping in mind the
prineinle of survival of the fittest, it could cause unions to reallocate their income
to provide for lobbying, it is very likely that thin money would come from
fonds set nside for on-the-inh representation of emplovePS. Such a concentration of
money into political pressure mild result in an inahhity of a union to represent.
It ,ould destroy he eonilibrium of collective bargaining.
In order to aehieve a proper balance, the political and economic means must
coexist. Both avenues must be opened to the public sector unions as they are in
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the private sector. It is only in the public section that a dichotomy exists.
Private sector unions are free to engage in economic strikes and to simultaneously
engage in the political process of lobbying.
V. CONCLUSION
The issue of whether legislation is needed in the Federal sector has been amply
demonstrated. The need for independent? third party review, a recognition
that negotiations may realistically be expanded only through legislation, the
need to redress the patently prejudical management bias in the present program,
the need to create judicial review, and a recognition of the failure of the
present system to achieve the goals of the Order itself or the legitimate goals of
Federal employees reveals conclusively that legislation is the only answer.
H.R. 9784 is a Bill which solves the problems inherent in the present system
based upon the experience in the private and non-Federal public sector. The
experience is vast, and reveals that a system which provides for meaningful
negotiations in the context of relatively equal bargaining strength is necessary
for the development of a labor relations program which is fair to Federal
managers, Federal employees and to the public at large.
Mr. HENDERSON. I would like to ask a couple of questions. Either
of you may respond, or both of you many want to comment on it.
But as you mention, the right to strike, plus the right to collective
bargaining?if we could assume just a moment that in the area of
collective bargaining, if we don't have any problems about what is
negotiable, and the union would elect to take collective bargaining, or
arbitration, are we talking about binding arbitration? Or do I under-
stand you to say that once that right has been agreed upon the union
would be bound by the decision and the members would not strike?
Mr. CONNERY. That is correct.
Mr. EIENDERSON. Another bit of confusion, it seems to me, is in the
form of the philosophy in regard to this. It has been my feeling that
binding arbitration is what management should get in return for an
agreement that it would be binding upon the employees. How would
you deal with a strike if it did occur after binding arbitration?
Mr. CONNERY. I would like to refer that question to our general coun-
sel, who is an expert in this area.
Mr. TOMAS. The courts, State legislatures and executive departments
have not had a great deal of difficulty, certainly in the recent past, in
dealing with people who are striking illegally in violation of various
statutes.
What we provide in H.R. 9784 is based upon the Canadian system,
which has worked imminently well. It provides for fact finding, which
is either advisory, or binding, at the option of the union.
And the reason that it is important, that it be at the option of the
union is because of the little neglected fact that public employees
acually receive a benefit from a strike through increased income in the
form of taxes, and no outgo in the form of salary.
Now, we often hear the arguments against the right to strike, that
there are no economic restrictions on decisionmaking on the public
employer. However, when he is faced with an unbalanced budget, we
have also seen some public employer managers, who are very content
to let the strike go on while they were taking in all of that money
and aiding their budget.
34-619-74 22
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Mr. HENDERSON. One, other question that .is a follow-on. You have
mentioned that the Canadian system s working so well. If we were
to determine that this system is not working so well, would you change
your basic philosophy in support of Mr,. Ford's bill ?
Mr. CONNERY. No. As a matter of fact, I would respond to that in
this fashion.
Congressman Charles A. 'Wilson, is doing a very comprehensive
significant study of that matter.
Mr. HENDERSON. I notice that in your statement. I am also familiar
with it, but I was just, for a moment, assuming that the findings that
he made at that time were not true, and at this, or at some future time,
would you change your position on it?
I get some evidence that things are not going so well in Canada.
Mr. CONNERY. I wouldn't change my position on that. As we pointed
out. in our statement several times, this is an evolutionary process. We
think that H.R. 9784 adequately deals with this in that it provides
flexibility. And if things change., the situation can be altered.
Mr. HENDERSON. Now, one more question. Am I correct in assuming
that basically in your position on this legislation you are saying
that for full collective bargaining, just as we do in the Wage Board
sector, we should move away from the same, pay for the same job
classification in the GS sector?
Mr. CONNERY. Yes, as I understand your question, that's precisely
what I am saying.
Mr. HENDERSON. And you are specifically saying that if the Treasury
Department, where you work, has persons performing at the same re-
sponsibility in one area of the country and that persons should receive
pay differently from that same work, same responsibility, in another
area of the country.
Mr. CONNERY. I want to answer that in several ways, Mr. Chair-
man.
I cart assure you that right now in the Treasury Department em-
ployees are being paid differently for the same work in different parts
of the country because of the present classification system and the
grade levels assigned.
For example, in the Internal Revenue Service, we have revenue
officers that are being paid in the Soutlhastern part of this country at
different levels than employees performing Lie same work in other
sections of the country. The grades are higher. As a matter of fact,
our mernbersh in has continuously complained about this.
This is a result of the Civil Service Commission's classification and
pay system. And not being able to deal With it adequately, as H.R.
9784 advocates, they have created these injustices.
In New Orleans, or in Atlanta, there are persons who are carrying
on the same responsibilities as Internal Revenue agents in New York
City and they don't get the same pay right now.
What we are pointing out in this statement is that if a group of
people acting in a legitimate community of interest--
Mr. HENDERSON. On the first part, may I stop you just a minute?
You related that agents in other parts of the country, New Orleans, get
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less money than agents in New York. By your testimony, you are sug-
gesting that these things are proper.
Mr. CONNERY. Absolutely not. I am suggesting that it was
Mr. HENDERSON. And that the relation of the management of the
Ford bill at full collective bargaining would bring it about; woulAn't
that be the result?
Mr. CONNERY. Not necessarily. What you are pointing out here is
this, I think. If I am in Atlanta, and myself and my fellow em-
ployees wish to negotiate matters relative to our working conditions
and pay, then we can and should be allowed to.
Now, if for whatever reason some other group said, "We will have
nothing to do with this," then under this concept they could stay
where they were. If that's what their wishes were, we are not seeking
to,
as a previous witness indicates, bludgeon anyone.
Mr. HENDERSON. I think you responded.
Mr. Ford?
Mr. FORD. Well, I don't think there is a question of any difference
in whether that result is obtained. The question is, the process by which
you would arrive at the result. The bill that I have introduced, as
distinguished from the unilateral process, provides for a procedure
which enables employees involved to participate in the collective bar-
gaining process.
Mr. CONNERY. That is correct, Mr. Ford.
Mr. FORD. Mr. Hampton testified at some length. Unfortunately,
I could only be with him the first day. He attempted to demonstrate
to me, and that there is no need for collective bargaining in legislation,
because the present system using Executive orders is adequate.
Why do you think it is not possible to carry out a true collective
bargaining under the present system?
Mr. CONNERY. Well, I think it is impossible under the present
system because there exists no credible third-party review. And the
scope of bargaining is extremely limited at the present time primarily
due to an ail-inclusive management's rights clause, -which prohibits
anything that could be remotely termed "collective bargaining." Cer-
tainly, we have the experience of the pay counsel.
That has been a very bad one. And the Federal Labor Relations
Council, which Mr. Hampton chairs, is certainly not third-party ma-
chinery, as he called it, in any sense. He is, in fact, h supermanager
with supervisory rights over other management in the Federal
Government.
Mr. FORD. In, deference in what I perceived to be rather severe re-
action, my recognition is that Mr. Hampton acknowledged that some-
times it is difficult to know whether he is management, or the
arbitrator.
Mr. CONNERY. That is particularly ironic to me.
Mr. FORD. And that he has personally found it uncomfortable to
try to occupy both of these roles as they bounce back and forth.
Mr. CONNERY. Yes. He was indicating, as I recall, that he could
not support the legislation which we are calling for because of some
3,400 bargaining units in the Federal sector.
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Now, as I indicated a moment ago, that's .Darticularly ironic to me,
because it was Mr. Hampton, himself, who created these 3,400 units.
Mr. Hampton and the Commission, in the late 1960's, insured that
there would be proliferation cd small units. As a matter of fact,
they interjected themselves into a bargaining situation between our,
union and the Internal Revenue Service.
The Internal Revenue Service wished, for reasons of their own,
to accede to our requests to compress into th..e,e units what heretofore
had been 69 separate bargaining units.
Mr. Hampton opposed that and told the Internal Revenue Service
he wished the multiplicity of units to continue. And then he comes up
here a couple of weeks ago, and tells you that one of the reasons your
bill would be, problematic, is because, "f have so many units to contend
with."
Tre,, himself, set the policy.
Mr. FORD. We have already been into the right to strike.
Especially in light of the testimony that preceded you, why do you
feel that the agency shop provision should be included in the Federal
collective, bargaining legislation
Mr. CONNERY. Well, I feel very strongly about this, Mr. Congress-
man, for this reason.
Basically, the agency shop provision is traditional in the private
sector. It has worked well. It has created, a great deal of the stability
which you spoke of before. The duly elected representative of a unit
must negotiate certain rights and benefits for all the members of
that unit. It is only fair to provide that everyone within that unit
contribute on a pro rata basis.
Secondly, an agency shop creates the stability that is so necessary
in a labor relations program in this big Government.
It eliminates free riders, those people who are very willing to take
advantage of the .benefits that has been obtained for them by others.
And it does stabilize a labor relations program by giving a union the
-wherewithal to procede on the behalf of all those it represents.
And T migit mention this. We recently obtained the largest judg-
ment in Federal judicial history, $533 million, for all Federal em-
ployees in our precedent setting law suit against President Nixon.
Interestingly .enough, a columnist for the Washington Post Sug-
gested in an article that the employees of the Department of Labor,
who have received their back pay award, might care to send the union
a dollar out of their retroactive cIteck.
Well, I would be, glad to give you an account right now a how many
dollars we got.
Mr. Form Well, unfortunately, whether we are dealing with private
or public, sectors, the Agency shop concept is not well understood, and
it gets all mixed up in the rhetoric of talking about people's individual
right to work, and other code phrases. It's -become intermixed in the
concept of compulsory unionism, and for this reason we will have to
educate people with regard to this, because w?. are dealing with many
people who have not been confronted face-to. face with any collective
bargaining legislation?either private or public.
Which brings us again to the basic proposAion that Mr. Hampton
insisted on: that there is no legitimate relevance between the experi-
ence in the private sector of collective bargaining.
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It is my impression as a member of another committee that has con-
sidered this issue with respect to other public employees, that the
pattern being established across the country at the State and local level
of government is to favor exclusive bargaining rights, and in some
cases, union shop, and through other cases and agency arrangements.
Is that consistent with your observations about the evolutions taking
place now?
Mr. CONNERY. Yes, absolutely.
Mr. FORD. And have they not, as a matter of fact, in developing
labor-management relations patterns in other levels of the Govern-
ment, followed as closely as possible the experience of the private
sector in the National Labor Relations Act?
ME. CONNERY. Yes.
Mr. FLYNN. Mr. Congressman, if I may, I have gone through five
legislatures getting State collective bargaining laws through. The
arguments have been very similar in every one of them. However, there
isn't one of them that would ever want to go back to anything less
than exclusive representation. That is just an invitation to chaos, and
the worst kind of elemental warfare in the union.
One of the real benefits of a bargaining law is the whole business of
getting a few significant representatives, or responsible agents, with
whom to do business.
Mr. FORD. I would like to make an observation.
I noticed in your statement you made reference, Mr. Connery, to the
fact that we are the only nation in the free world without statutory
bargaining rights for our public employees. Moreover, the only one
in the free world with an absolute prohibition across-the-board with
the right to strike?I have used that same statement?but I would like
to state it in a way that has been referred to me.
There have been only two major industrialized nations in the entire
world, the United States and the U.S.S.R., which absolutely prohibit
the right to strike from public employees.
I don't think that the Congress is going to be very impressed with the
knowledge that we are the last two remaining holdouts, and that the
pattern accepted by Russia is one that necessarily we want to adopt
for this country.
Mr. CONNERY. Well, as you know, that report impressed me also.
And, likewise, I was very impressed with the conclusions of Judge
Wright that are quoted in that report. Without the right to strike, in
Judge Wright's view, or a union that never strikes, or which can never
make a creditable threat to strike, would wither away to ineffective-
ness. And I believe that 100 percent.
Mr. FORD. Thank you very much.
Mr. HENDERSON. I want the record to be clear?perhaps it was not
as clear as it could be in my earlier comments with regard to collective
bargaining for pay.
You are also suggesting that collective bargaining in the scope of
the Ford bill would go to all fringe benefits as well?
Mr. CONNERY. Yes.
Mr. HENDERSON. Retirement benefits and so on?
ME. CONNERY. Yes absolutely.
Mr. HENDERSON. bo you have a feeling that the majority of the
Federal employees are ready for that?
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Mr. CONNERY. Well, if they aren't, they are far more obtuse than
think they are, Mr. Chairman.
For example, there is a committee called the Federal Advisory Com-
mittee on Health and Life Insurance Benefits. Now the record is very,
very clear, because we were the ones that were, for the most part, help-
ing to assist Congressman 'Witldie in a problem with Blue Cross. The
record clearly shows that the Civil Service Commission never even
consulted the unions that had representatives on that board relative
to the benefits and the rights that were given to the carrier. And they
permitted a $95 million ripoff to be given to the Blue Cross-Blue
Shield. And that's because the unions weren't represented.
Mr. HENDErisox. Let me interrupt for a moment.
That was a ripolf, but everybody was ripped off to some extent
weren't they?
Mr. CONNERY. Well, just because I share a pro rata part of gettiRg.
the shaft, doesn't make it right.
Mr. HENDERSON. But couldn't I argue on the other side of that under
'the Ford bid, those unions that are able to get a better deal have
shafted the other employees whose UD iODS are not so effective?
Mr. CoNNERv. Not at all, because the Ford bill creates no compulsion
on anyone. 1 submit to you that if I ani doing a job for a certain group
of employees, and .1 can point to my record as having done a job for
them, there is nothing in the Ford bill that will stop them from join-
ing me in throwing the other rascals OW.
Mr. HENDERSON. Well, are you talking about the ultimate that we
would have one union in the Federal Government
Mr. CONN:TRY. Absolutely not. As a matter of fact, even under the,
present conditions we have successfully nmpaigned against the
largest unions. I have been president of this union since 1966 and.
never once have we lost a contested election.
For example, against AFGE, or NITE?and they are considerably
larger than we are--we have never lost an election. So certainly I
am not advocating this. As a matter of fact, we, have testified precisely
against this point. AFL-CIO president Geo:?ge Meany, has suggested
a certain type of bargaining arrangement that would have, absolutely
frozen out of the bargaining any union such as ours.
We don't believe in the concept of just one union having the right to
speak for everyone. We don't believe in that at all.
Mr. HENDERSON. Well, should our legislation provide that there.
could not be any bargaining with more than one agency of a
Government
Mr. CONNERY. We advocate as a union bargaining at the agency
level or the departmental level.
Mr. HENnimsoi.r. How would you treat that in the Defense Depart-
ment ? Would you break that down to the services?
Mr. CoNNERv. Well., I am not that familiar with the Defense.
Department.
Perhaps counsel is more famiFar with their structure..
Mr. TOBIAS. 'rile way we Ii ive defined units in H.R. 91-84 is consistent.
with the language under the Executive order. And that language
allows for larger units. And what the Federal Labor Relations Council
has done is to interpret that language in the narrowest possible sense.
It is doing nothing to encourage multiunit bargaining, or consolida-
tion of units.
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We recognize that four or five or six employees are not nearly
enough for conducting bargaining. But that doesn't mean that those
people don't have rights, and that they aren't entitled to be repre-
sented.
Mr. HENDERSON. I was trying to get the other side of the picture.
And that is how high up you would go with unit recognition?
Mr. TOBIAS. Unit recognition is a definition which r cannot be con-
fined to any particular level.
The definition that is contained in II.R. 9784 says that bargaining
should be coextensive with the unit of recognition.
Now, if the unit of recognition is at level A, that's where bargaining
is; full collective bargaining. It is at that level that an Authority or
Board has stated clearly that there is a community of interest among
the employees and that it is efficient for the Government operations.
And it is at that level that full collective bargaining would take place,
whatever the level is.
Mr. HENDERSON. As I understand it, Mr. Connery, you represent the
IRS.
Mr. CONNERY. No,
sir. We also have units in the Customs Service
and the Bureau of Alcohol, Tobacco and Firearms. Actually, IRS
makes up 80 percent of the entire Department.
Mr. HENDERSON. Then do you have an agency on all of the units?
Mr. CONNER-Y. We have nationwide bargaining with IRS covering
all of the units that we represent under exclusive recognition. We have
negotiated agreements covering all of the employees.
Mr. HENDERSON. Yes, they do have uniformity; but uniformity even
under the present system, is not uniformity.
Mr. CONNERY. Well, uniformity, I believe, Mr. Chairman, in and of
itself is not necessarily good. You see, we are terribly restricted in
our negotiations.
Mr. FORD. I think we are back to the original question: the example
of lack of uniformity in units to pay scales, or the establishment of
rights. That's not a matter that is covered by youre collective bargain-
ing process; is it?
MT. CONNERY. No, sir.
Mr. FORD. So what you are talking about, unfortunately, about the
uniformity, whether considered only on those items that IRS bargains
with you on.
Mr. CONNERY. That's correct.
Mr. FORD. And the outstanding example of people that was cited a
few months ago about the language of uniformity was outside the
process?
Mr. CONNERY. That's correct.
Mr. HENDERSON. Mr. Connery, one further question:
Under the provision of the Ford bill, would you envision that your
negotiations for pay and benefits would be for the IRS standard con-
tract, standard pay? Or would your negotiations with regard to pay
and benefits be conducted at lower levels which, obviously, would then:
fall into geographic areas?
Mr. CONNERY. We have our chief contract negotiator, which I
mentioned, Mr. Chairman, with us. And I would ask Mr. Tobias to
respond to that.
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Mr. Mums. We would conduct negotiations wherever we have
exclusive recognition.
If we, together, with the IRS were to determine that the most effi-
cient way to conduct negotiations was at the national level, then the
contract would be negotiated at the national level. It would still allow
us to negotiate regional or local variations in the contract. Instead of
negotiating for each separate unit throughout the country, we could
negotiate one agreement which would still reoognize the diverse needs
of various groups of employees in different areas of the country.
Mr. filminprisoly. Dr. Wolkomir was very -positive in his opinion.
wonder if you would like to express yourself with regard to the possi-
bility of enactment of legislation with the right to strike at this time?
-Mr. CONNERY. Well. Dr. Wolkomir was ve7 positive in his opinion
when he told, people in other parts of the country he was going to.
defeat me in an election. He never has; but I don't agree with
Dr. Wolkomir. I wouldn't say I am in total disagreement, but the gulf
in his philosophy and mine? is so wide that I couldn't possibly attempt
o bring it together. I don't agree with Dr. Wolkomir's testimony in
the main at all. I don't agree with the thrust of it.
Mr. HENDERSON. How do you feel about H.R. 13 as a legislative
vehicle?
Mr. CONNERY. Well, I know Mr. Tobias has made quite a study of
this, and I would ask him to respond to that.
Mr. TomAs. H.R. 9784, first of all, is better drafted than H.R. 13.
H.R. 13 is a lawyer's dream. It is a lawyer's right to work act. It would
require litigation over a period of time on issues which would be
clearly legislated. For the most part the difference between H.R. 9784
and H.R. 13 is the fact that H.R. 9784 provides for a limited right to
strike, after exhausting the collective bargaining, mediating, and fact-
(in ding processes.
Mr. ThavoncsoN. Let me agree with your statement with regard to
H.R. 13. I just don't find any read strong support that it is a workable
piece of legislation. What would we do with Mr. Ford's bill if we took
the right-to-strike out and left the main, or all the rest of the bill
intact? Would you consider it a workable piece of legislation?
Mr. TOBTA S. It is imperative to true negotiations that the parties
I a the col le.cti vu bargaining process sit at the table as equals. When one
person can dictate to another, as in the present system, you don't have
bargaining; you have dictation.
Yon -must have the collective bargaining process be an efficient
problem-solving mechanism. You have to make the parties equal. One
method that we have in the collective bargaiaing process for making
ihe parties equal would be to permit employees to withhould their
services.
Mr. ITENTwitsoN. Let me ask the question the other way:
If we were to take the bill H.P. 10700 and 'you used that and it pro-
vided the right to strike, after all the other administrative procedures
were a tforded.? would that be workable?
Mr. Thanks. T. don't think that would be workable at all, Congress-
man, because of the numerous problems in H.R. 10700.
For examp]'e, the problem of the management's rights clause, the
problem of allowing the. President to exclude large numbers of people
From bargaining units on his own volition, the question of negotiating
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regulations in a nonworkable system, because under that system you
don't negotiate directly with those who are responsible for represent-
ing employees in units.
H.R. 10700 allows for statutory appeal procedures, rather than
negotiated procedures. Adverse classification actions, EEO matters
and many other matters would be carved out of the collective bargain-
ing process.
So tacking the right to strike on H.R. 10700 would not solve the
problems in the Federal sector.
Mr. HENDERSON. If the Congress decided that it was not going to
enact the Ford bill, would you prefer that it take no action rather
than enacting H.R. 10700 at this time ?
Mr. CONNERY. No. I think most everyone that I know of that works
under the present systems agrees that it is a disaster.
The Ford bill contains a number of beneficial provisions, but just
not having a right to strike certainly wouldn't withdraw our support
from the Ford bill. But we would hope to have it because, as I men-
tioned before in my testimony, I was very impressed with the realis-
tic thinking that was offered by Judge Wright when he said that if
you don't have a right to strike?
Mr. HENDERSON. What I was trying to elicit from you is whether
H.R. 10700 is better than the present system.
Mr. CONNERY. I think H.R 10700 is as close to the present system as
any of the bills.
Mr. HENDERSON. Very decidedly so.
R.
Mr. TOBIAS. The only real difference between H. 10700 and the
i
Executive order system s that it is legislation. And it would presum-
ably, although not clearly, allow for judicial review of actions by a
board. It is really not solving the present problems; it is merely re-
placing the Executive order with legislation rather than meeting and
dealing with the problems which have been apparent for 12 years. It is
not as though we are coming here and saying, "Look, legislation is
needed and we don't have any experience."
The experience is there. And I think that it is really not fair to
just put legislation in effect without dealing with the problems which
are so apparent.
Mr. HENDERSON. I think your testimony has been very helpful.
Mr. Ford, do you have any questions?
Mr. FoRn. Well, one might be restrained on the basis of almost
universal testimony, as far as the present system having to be im-
proved by making whatever system we have statutory, that some-
thing is better than nothing.
From my own point of view, if we are talking about reportingthe
bill this year, I would say we k now that. But if we are talking ;bout
reporting it next Tear, I might be willing to take a chance that we
might study my bill on the floor.
Mr. CONNERY. We would agree with that.
Mr. FORD. But I also wound ike to say that I don't agree with it
fully, with the blanket criticism of H.R. 13, because I think that
philosophically H.R. 13 is striving in the same direction as my bill.
And while we have differences?and some of my friends and neigh-
bors have been quite outspoken on the differences of my bill?those are
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340
the kind of differenees that are not differences in the philosophy, but
in the specifies of how you achieve that. philosophy.
With regard to trying to make a bill palatable by removing the
right to strike and being left with the very basic concept of it, what's
the alternative?
The question is, if you are not going to have the right to strike,
there has to be some alternative to it, to force the parties to a crisis.
And when that crisis occurs, then we will bargain with a good deal of
pressure on them. That's the only way you're going to get collective
bargaining.
The alternative, as generally suggested, is compulsory arbitration.
How would you describe compulsory aibitration ?
Mr. TOBIAS. -Well, there has been a great deal of experience with
compulsory arbitration and those criticisms are all well documented.
And the criticisms are that with compulsory arbitration you are not
really bargaining. You are always saving something for the arbi-
trators. You can't put your last position on the ta,riel because the
arbitrator is going to shave from it. You are always holding .some-
thing back. And if von belie,ve in the eollerlive barn-airline; process
then the decision is clear. This is my last offer, and it is either that, or
it is something else. And if you believe in the process of parties re-
solving their own problems, then compulsory arbitration is inconsist-
ent with that philosophy. And that's the problems we see, with com-
pulsory arbitration.
Mr. FORD. A year or so ago I heard of a study indicating that when
you consider public employees across the boaxl, that compulsory arbi-
tration is a very efficient way to deal with collective bargaining be-
cause it is not economically sound from management's point, of view.
In order to get your members to support your hard position, as
described by those with whom you bargain in a strike situation, they
have, to recognize it and lose their paychec: in the exercise of that
right.
Tinder compulsory arbitration generally what happens is a pattern
develops of an annual set of demands by the employees' disagreement
with the employer. And then the whole process is triggered off and
.everybody collects their paycheck while this process takes place.
Tn the private sector, where the strike is the ultimate weapon, there
has been developed an almost universal pattern. In those areas where
compulsory arbitration and some form of automatic arbitration plays,
there is some pubic, experienee, with it. The generation of a set of de-
mands for economic motions of the package is annual.
So what, you actually do is dictate that there will be an annual
question, or pay increases, fringe benefits increases, and so on. And
you view from the conservative point, of viaw that that is likely to
hold the frinze benefits in a reasonable line with what the rest of the
mon only places as a value.
Mr. ToniAs. We, would agree with that.
Mr. Fonn. T think T would find myself in vny interesting company.
And we find that the, characteristic of prolabor and common char-
acteristic of--I don't want to say antilabor haeanse T don't know any
antilabor Congressmen?but a characteristic of such Congressmen
whose philosophy differs from the prolabor approach is that in sus-
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picion of the process we find ourselves voting together against com-
pulsory arbitration.
Mr. HENDERSON. We sometimes call it a right to work.
Mr. FORD. No, I am not referring to it in that regard.
Mr. HENDERSON. We have clearly put on the record the various
views that I am sure will be most helpful to us. We have got the
record even though we have kept you beyond 12 o'clock.
I appreciate your very informative answers and responses. Thank
you very much.
[Whereupon, at 12 :35 p.m. the bearing was concluded.]
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FEDERAL SERVICE LABOR-MANAGEMENT
LEGISLATION
THURSDAY, JUNE 13, 1974
U.S. HOtTSE OF REPRESENTATIVES,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE,
SUBCOMMITTEE ON MANPOWER AND CIVIL SERVICE,
W ashington,D.C.
The subCommittee met at 9 :40 a.m., in room 210, Cannon House
Office Building, Hon. David N. Henderson, chairman of the subcom-
mittee' presiding.
Mr. HENDERSON. The subcommittee will come to order.
The Subcommittee on Manpower and Civil Service is continuing
hearings this morning on 25 bills that have been introduced on Federal
labor-management relations. Some of the other members of the sub-
committee have indicated to us that they will be here in just a few
minutes but I think that under the constraint of the time we have this
morning we will go ahead and burin to receive the testimony. I'm
sure that all the members when they arrive will have ample oppor-
tunity to ask questions of the witnesses that they wish.
It's my pleasure to yield to one of the new members of our full com-
mittee and while not a member of this subcommittee, Mr. Moakley
has indicated in the short time that he has been a member of our full
committee intense interest in the welfare of the civil service employees
and certainly has taken an interest in the legislation that is before us
this morning. I'm just delighted that he took the time to come down
and introduce the first witness this morning. I hope that if he's not
able to stay he will certainly look at your testimony as presented. It's
my pleasure to yield to Mr. Moakley.
Mr. MOAKLEY. Thank you very much, Mr. Chairman.
It's my pleasure to introduce to the subcommittee and the staff a
gentleman that I have had the pleasure of knowing for many years on
the Massachusetts scene. He's been closely identified to various civic
drives and I have had the pleasure to work with him and I'm very
happy to welcome him here this morning to give his testimony as
president of the National Association of Government Employees, and
I refer to Mr. Ken Lyons.
It's very nice to have you here this morning to testify before the
subcommittee. Also with Ken are two gentlemen' the executive direc-
tor, Allan Whitney, and also legislative, counsel, James L. O'Dea.
As I say, Mr. Chairman, I have had the pleasure of knowing Mr.
Lyons many years and not only in his capacity as president of the
National Association of Government Employees but also as he's been
interested in things going on in Massachusetts.
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344
The latest. thing, Mr. Chairman, and yorl and I have talked about
it, is the Boston Naval Shipyard where he coordinated the efforts of
many Congressmen in trying to keep the yard open, and, of course, the
ttlininistration had a different idea over which we had no control,
but nevertheless, we go forward with what we have and. we are very
happy to welcome you and your organization this morning, Mr. Lyons..
Mr. IlawnEnsox. Mr. Lyons, it's certainly my pleasure to add my
fV011d of welcome. I certainly know that we. have had you before lig
in past times and we are delighted to have you this morning. I think
it's fair to say that we have perhaps seen from time to time more of
Mr. Whitney who's worked with us, but he's always represented you
and been vary helpful to ns and the staff. We are just delighted that
you're hare this morning and from your long experience as president
of NAGE I know of no one whose testimony would be of more impor-
tance to us on the legislation we have be.forE us. It's my pleasure.
STATEMENT OF KENNETH LYONS, PRESID.ENT, NATIONAL ASSOCI-
ATION OF GOVERNMENT EMPLOYEES, ACCOMPANIED BY ALLAN
WHITNEY, EXECUTIVE DIRECTOR? AND JAMES L. O'DEA, LEGIS-
LATIVE COUNSEL
LYoNs. Thank you, Mr. Chairman, and of course, thank you
very much, Congressman Moakley.
We appreciate being granted the opportunity to testify on this im-
portant legislation. The review of executive branch experience in labor
relations being conducted by this subcommittee is of particular sig-
nificance to our organization, in that the National Association of
Government Employees was formed at the time that President Ken-
nedy issued Executive Order 10988 in I 962, giving Federal employees
their first opportunity to have a voice in the establishment of working
conditions and personnel policies.
Since the advent of Executive. Order 10988, and the birth of the
Federal Government's labor relations program, there have been more
administrative revisions to this program than to any of the systems
based on statute, even the 30-year-old National Labor Relations Act.
Admittedly, during this last decade, many positive results have been
achieved. All the statistics presented by the Civil Service Commission
regarding the advances in union recognition and in collective bargain-
ing, and all the comments made by Mr. Hampton in his 2 days of
estimony, show clearly that the unionizaticn of Federal employees
has been in the best interest of the Government.
For this reason alone, the Federal Government should act to guar-
:.t.ntee, this right by law for all Federal employees. Acting under an
Executive order, as we have, is tenuous at test. There is no specific
legal safeguard to prevent its elimination or even unilateral
modification.
Working under these conditions is an exercise in frustration?no one
ean know how far down the road they can depend on a stable struc-
ture within which to operate. The stAility of law is necessary to an
effective labor-management relationship and :his can come only from
the, Congress.
A.s was pointed out by the Civil S?rvice Commission, numerous.
statutory systems and bodies have been established, such as the Federal
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Employees Pay Council, and the Advisory Committee on Federal
Pay, both created by the Congress in the Pay Comparability Act of
1970. Most recently, we have seen the recommendations of both these
bodies overruled by the President's agents, necessitating Senate action
to assure minimal equity.
The Congress, in Public Law 92-392, also created the Federal
Prevailing Rate Advisory Committee, of which the NAGE is a mem-
ber. This statutorily created body is permitted to recommend action.
regarding wage grade employees to the three Civil Service Com-
missioners who, of course, are Presidential appointees. ?
The laws, then, allowing for union involvement in white collar and
blue collar pay and working conditions are advisory only and our
advice is often not followed. The union side of the table in the Federal
sector is disproportionally limited in its role and in its impact. There
would be greater fairness to both sides if there existed a statutorily
created authority, with established rules and regulations, to provide
a framework within which unions and agencies might have an equal
voice as to conditions affecting employment.
The presently existing organizational elements of the Commission
and the Labor Department could, in some instances be incorporated
into this Federal Labor Relations Act. There obviously is a great
weight on an organization that must function as both the personnel
arm of management and the administrative appeal body. The Civil
Service Commission writes the Federal Personnel Manual, reviews
' various agencies' personnel policies, runs training programs for,. and
gives advice to, management officials on personnel. policies, provides a
nationwide appeal apparatus, and .sets\ job standards by which em-
ployees are graded and paid.
Creating a Federal Labor Relations Authority and/or Board, as
do all the bills under discussion here today, is a logical step in assuring-
fair and effective labor-management relations. This would not elimi-
nate, the legitimate role of the Civil Service Commission, serving as the
personnel authority for the Government. The Department of Labor's
responsibility is exercised by the Office of the Assistant Secretary
for Labor-Management Relations and it would be quite reasonable to.
transfer this responsibility to the new Board. In fact, the, present
Assistant Secretary could even serve as one of the Board members to
provide continuity.
The Federal Service Impasse Panel could, in like manner, be, incor-
porated into the Board structure. This ono-board concept would elimi-
nate the present 'piecemeal authority exercised by different unrelated
bodies. In fact, the final appeals body, the Futc, is by definition a
court of last resort from management actions made up of managers:
The Chairman of the Civil Service Commission wearing one of his
many hats, the Director of the Office of Management and Budget,
and the Secretary of Labor. We do not question the integrity of these
gentlemen, but rather question their ability to be both party and judge
in Federal cases.
As a labor union, even though operating only in the public sector,
we feel strongly about the question of negotiability with regard to
personnel policies and conditions of employment in executive, as well
as the legislative and judicial branches of government.
There is no reason to deny coverage to Federal employees by some
blanket exclusion, like "national security" or some other catch phrase.
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There are clearly employees whose positions are so sensitive that they
need to be excluded, but the Board and/or the courts should decide this
question based on some specific statutory language or even specific
exclusions within an agency. Definitive standards should be applicable
to any conceivable situation.
In the same manner, less generic "catchalls" than the "agency's
mission, organization, internal security, ? assignment of personnel by
number, type and grade, and the technology of performing work,
as well as all the broad managerial powers defined as outside the scope
of negptiation?to direct, hire, promote, transfer, assign, retain, sus-
pend, demote, et cetera?must Ise established so that unions may have
a meaningful voice in the personnel policies and working conditions
of Federal employees.. The limitation on the use of official time and
the adverse action appeal system should, be opened to negotiation. The
system as presently constituted handcuffs the unions and gives man-
agement such control as to negate any collective bargaining principles.
To change lids we must establish, by law, collective bargaining rights
so that both sides have a true neutral to turn to and a statute to go
by, This policy would go hand in glove with some form of union
security. So long as we represent all the employees in a unit some form
of compensation must go to the union. It is reasonable to require us
to represent all employees only so long: as we are financially com-
pensated for such representation. There would be obvious problems if
we were on ly to represent members and nonmembers were to receive
different ben le fits.
A modified agency shop provision, where all are not required to join
the union but are required to pay for the services they receive, is not
in derogation of merit employment principles. It is simply a required
expenditure for a necessary service, akin to the compulsory withholding
of tax dollars, retirement costs, and health benefits costs. These all
provide a benefit for both the employee and he organization making
use of the money. The employee receives benefits from the union
which are, in fact, commensurate with the benefits he receives from
the other organizational elements whose costs are deducted from his
paycheck. For $1.25--in the case of a NAGE member?a week he
receives insurance, legal protection, contract negotiation and imple-
mentation and, of course, my services?this Should be corrected?Jim
O'Dea's services which are invaluable. -Onion security is not strictly a
means of promoting unions, but rather a fair method of allowing
the unions the financial wherewithal to be en a comparable footing
with the executive branch, which seems to view unions as adversaries
and spends a great deal of time and money and manpower in that
role.
This position and the others we have described are all aimed at
establishing a strong, but fair, position for unions in a labor-manage-
ment program established by law. Clearly, the Federal sector is unique
as a setting for labor-management relations. This is not to say that
there are not similarities between the public and private sectors; how-
-ever, in the private sector, management is working to make a profit;
labor to get its fair share thereof.
In addition, they produce a product. In the public sector there is a
job to be performed and it is the purpose of all parties to get it done.
Labor's role is to insure that the employee has a voice in the organiza-
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tion so that we can help to maintain and improve it, especially as to
its personnel policies and all working conditions that affect the unit
employees.
Because we believe there is a distinct difference between the public
and the private sector, we strongly opposed the recommendation of the
House Select Committee On Committees to abolish the Post Office and
Civil Service Committee and merge it into a new labor committee. It is
our belief that the labor relations program in the Federal Government
has matured to such an extent that it is now time to enact it into law
using as a vehicle the bills presently before this subcommittee. Such
action will enable a greater majority of the Federal work force to
organize and so, hopefully, begin to compare with a large number of
the private sector industries which are up to 95 percent unionized?not
to disparage Chairman Hampton's claims regarding the percentage of
unionization in the Federal Government.
At the same time, the management officials of the various agencies
will continue to have the controls granted to them by Congress in its
many statutory enactments regulating union activity and prescribing
areas of management prerogative in both the 'public and private sec-
tors. Union management itself is well regulated under title IV of the
Labor Management Reporting and Disclosure Act (Landrum-Griffin),
and section 18 of Executive Order 11491. This 'and other legislation
covering both sectors will insure uniformity and equality of rights on
both sides of the 'bargaining table.
The three bills before the committee all have a great deal to com-
mend them. It :would appear that the subcommittee would like to use
H.R. 10700 and its vehicle and we agree, with some input from H.R.
13, H.R. 9784, and these hearings.
In the initial sections dealing with the general intent and scope of
the legislation, H.R. 9784 seems to be more in line with our previous
statements regarding union security. Therefore, we would suggest that
this statement of policy be used in 'place of those policy sections of
H.R. 10700. The last sentence of title I, section 101(2) of H.R. 13
should be appended to section 7101 as subsection (3) of H.R. 10700, to
read, "therefore, labor organizations and collective bargaining in the
Federal service are in the public interest."
Based on the rationale expressed in that sentence, all 'agencies should
be covered. There should be specific guidelines, such as those in H.R.
10700 regarding supervisors; however, the qualification in H.R. 9784
regarding supervisory personnel should apply throughout. In fact, the
definition of agency" in H.R. 9784 should also be adopted.
Both H.R. 13 and 9784 include guards as well. This is a very reason-
able decision and a necessary one. The rationale for excluding guards
comes from the private sector where they 'are an arm of management
with a responsibility to 'protect their employer's premises during
strikes and other forms of labor strife.
In the Federal sector, their responsibility is to 'protect the build-
ings and the personnel within. There is no rational reason for ex-
eluding Federal guards from representation by unions that also repre-
sent other Federal employees, thus denying them the 'expertise of the
Federal unions in their own employment 'problems.
That guards are 'an appropriate unit, separate because of community
of interest, but part of the same national union or an affiliate thereof,
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leads to the, Question of unit determinations, The present system in
the Federal Government is overly cautious, time consuming, and ex-
pensive. For example, there is no reason for conducting an election
between "no union" 'and 'a union where the union has a majority of the
unit as members with signed dues deduction forms-applications. H.R.
9781 provides for the use of the present private sector method with
regard to a "card count."
method. of selecting an exclusive representation by authenti-
cating credible evidence of majority support ias been effective in the
private sector for years in situations where the petitioning union is
Ui pposed.
The determination of an appropriate unit, however, does not neces-
sarily have to be changed. There is a great deal of case, law from the
Assistant Secretary of Labor for Labor-Management Relations. The
present criteria of "community of interest" and the "promotion of
effective, dealings and efficiency of agency operations," combined with
the broad bargaining authority given in I}LR. 9784, seem quite
adequate.
The unit question leads naturally into a .discussion of the sanctity
of 1.1 n on recognition where the union has negotiated an agreement. The
sanctity of a ,ynitraet, between parties is a cprnerstone of our legal
system. The history of labor law in both the private and public sectors
is replete with examples of the need for a, contract bar to insure effec-
tive relations between unions with exchtsive recognition and manage-
ment. The sections of H.R. 13 and 9784 which provicle for higher level.
contracts or recognitions to supersede all lower level 'agreements are
in direct contravention of these principles.
Tinder such a framework, the choices would Eventually be eliminated
by the union with the largest bankroll, but not necessarily the best
hand. Employees who identified with their fellow workers 'at their
own activity would conceivably be irrevocably bound by a decision
made at some higher level. This would be even more, unfair where
they had engaged in good-faith bargaining . and achieved a worth-
while contract which spoke to their particular problems. Such a de-
velopment, we submit, would not serve the needs and rights of Federal
employees.
These needs and rights would, however, be well served by the, strong
central authority created in 'all the bills. This authority could and
should easily incorporate all the functions of the present adjudicatory
policyrnaking boards established under both statute and Exeelitire
order. Of course,, we are speaking only of bodies whose functions were
part of the labor relations program, not those created for other related
reasons?Occupational Safety and Health Administration, Equal
-Employment. Opportunity 'Commission?but those like the Federal
1-4alior Relations Connell and Federal Service impasse Panel.
As for the Assistant, Secretary for Labor-INTa,nagement Relations,
a provision a H.R. 9784 is more applicable tc his functions. Looking
again to the private sector. the National Lalor Relations Board is
the only Government agency with, a strong, separate, General Counsel.
TER. 9784 establishes such an office. (See 'sec. 4(d).) H.R. 9781 also
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provides for greater and more efficacious punitive measures against
parties who engage in unlawful acts (sec. II).
The question again arises as to what rights management would have
in light of the sanctions imposed on the above. The two theories are
that management has those rights specifically granted by law or all
those rights not specifically included for labor. The listing of manage-
ment rights is not necessary and this phrase has sadly been the watch-
word for agencies' refusal to bargain. Thus, it was omitted by both
H.R. 13 and 9784. I would be happy to hear some reasonable guide-
lines if management had some, but not their all-encompassing catch
phrases which they would continue to hide behind, due apparently to
some strange fear of the effectiveness of union' bargaining teams
against the large number of management specialists even with the
narrow limits on negotiability under Executive Order 11491.
The need for a broader scope of negotiability is clear. In the Fed-
eral sector, unlike the private, sector, there is no adversary relationship
between union and management. The essence of all these bills is coop-
eration. Therefore, a union representative should be at almost all pol-
icy meetings for consultation purposes to insure input from the em-
ployees. This must become true at all levels. The Office of Management
and Budget did not ask for union input by mail or phone, much less
by consultation, when it revised Circular A-76, which has great im-
pact on Federal job security.
This document and the recent Commission on Government Procure-
ment Policy had little or no union input. Yet, these two groups have
established policies in regard to contracting out of work which are
having a serious and continuing effect on Government employees. The
Procurement Commission asked for some minimal comment from some
of the Federal unions. None of us were involved in any consultation
with this Commission, yet it has developed policies which greatly
affect working conditions.
The question of what is a condition affecting employment, and at
what level negotiations will occur, is one which must be addressed
more strongly than in H.R. 10700. In the blend of the three, the
stronger provisions from II.R. 13 and H.R. 9781 are necessary to
convince Federal management that they are not working in the private
sector and cooperating with the unions is in everyone's best interest.
In conjunction with this, unfair labor practices should receive the
strong penalties proposed for unlawful acts in H.R. 9784 because they
are potentially more damaging in the Federal sector than in the pri-
vate sector. All aspects of the bargaining process should be more open.
Impasse procedures should be specifically laid out and generally
faster. And final review of appeals in all of these areas should be
within the purview of the Federal labor relations authority.
The time has come for this legislation. Over 30 States have enacted
legislation ranging from the right to confer to the right to strike. This
has all taken effect in the last decade, since the inception of Executive
Order 10988 in 1962.
The Federal sector has gone through a long enough incubation
period. A labor relations law for nonpostal unions in the Federal
Government must be enacted to provide the same rights to Federal
employees that are enjoyed by millions of other Americans, both in
the private and public areas of employment.
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The law must be one that enunciates the importance of labor rela-
tions and collective bargaining and provid(s for a strong Federal
labor relations authority with broad powers over a broader spectrum
of negotiable areas.
H.R. 10700 is a good bill but it is not strong enough. It relies on the
present Executive order and limited National Labor Relations Act
provisions for precedent more than do H.R. 13 and H.R. 9784. We are
not in full agreement with those bills in that their denial of contract
bar and their denial of any need for some definition of management
rights is not appropriate for Federal public employment. What man-
agement rights should be is a good question?the best answer is
limited. So long as 'management and employes are working toward
the same goals and objectives, management's rights should center
a round the collective bargaining agreement.
All in all, the stronger rights granted to unions and to employees
in H.R. 13 and MR. 9784 are necessary to insure equality in the
Federal sector for all as to the conditions affo.cting employment.
Therefore, we recommend that H.R. 10700, with the addition of a
majority of the substantive and procedural elements of H.R. 13 and
9784 as discussed herein, be adopted by this subcommittee. as
soon as possib,e..
Thank you for your courtesy and attention.
Arr. Ifyymasox. Thank you very Mlle hi, Mr. Lyons. T think you have
it very excellent statement. Your views Certainly will be carefully
considered.
Before I 0-et into some of the technical questions, I'm delighted to
yield to Mr. Moakley.'
Mr. MoAKLEy. I will yield back to you since you're the expert in this
field. ru be glad to listen. I think the statemmt is a {Treat statement
and I think that the problem that this committe, has under the Bolling
report, that this committee may no longer :tinction, and I'm glad
you're in favor of retaining this committee to deal with the problems
a I' the Federal civil service.
Mr. HENnwasoN. Mr. Lyons. I think the most significant point that
von make is the one that I have arrived at, and that's the need for the
legislation. I think we could have much greater success in the kind of
leHslation we enacted if everyone recognize the need, but I'm most
pprei?iative of the. points that you have, made with regards to not only
both the need but getting possible clarificatior, , and from time to time
as we work on the legislation I feel sure we will be calling on you
tad your people to give us your further advice with regards to some
o f the specifics.
On page 5 of your statement in discussing coverage of the proposed
legislation,on say that "there are clearly employees whose positions
a re so sensitive that they need to be excluded. Definitive standards
lould be applicable to any conceivable situaton."
What standards would you suggest he incorporated either in the
hill or established by the Federal Labor Relations Authority to assist
ill determining these exclusions? We have found great difficulty in the
defiiitive standards and if you would like to touch on it or if you'd
Ike to submit your views to us later, in either event, they could be most
ielpful to us.
Mr. O'DEA. We believe that although there are Federal agencies
that are involved in national security, they have employees who could
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clearly be involved in union relations and should have some voice
in collective bargaining. However, the people involved in the most sen-
sitive file areas and the agents themselves we feel would be excluded.
That, of course, would cover the foreign agents of the CIA, the field
agents of the FBI, and possibly those Secret Service agents involved in
Presidential production.
Mr. HENDERSON. Do you think this could be resolved by a request of
the employees or their proposed organizations to the Authority for
specific recognition of the unit rather than to continue the full exclu-
sion of the agency?
Mr. O'DEA. Clearly, I don't think the agency should be the party
making this decision. I think the Authority must make the decision
because the agency is involved in its own management. We don't be-
lieve the agency head should have the unchallenged right to unilater-
ally determine who should be exempt.
Mr. LyoNs. Let me give you an example of this. We had a unit we
petitioned for in Virginia of National Guard technicians. There was
some question as to the people that we had petitioned for as related
to some of their duties, in that from time to time they used guard
dogs and did guard duty, once or twice a month. That the agency felt
they should be excluded from the unit. Their jobs were allegedly sen-
sitive .and they were considered as security guards.
By the time they got through with the unit, I think we lost 60 per-
cent of the people we had petitioned for and I thought that the deci-
sion that was rendered was rather ridiculous' that they were in a sen-
sitive position. Certainly, for the once or twice a month that they
walked around with an attack dog, I don't believe they should have
been placed outside of the unit.
But these are some of the things that we are faced with and many
times there are different decisions involving the same grades and types
of personnel throughout the country. I remember one time when the
head of the FAA thought that every person who worked for the FAA
was in a sensitive position, even including the janitors who worked in
their building, but he was overruled, fortunately.
Mr. HENDERSON. Also on page 5, you advocate some form of union
security. Yesterday in their testimony, the National Federation of
Federal Employees proposed a fair representation fee which would
serve that purpose but contingent upon an election by employees in
the unit represented to determine whether they supported the fee.
What would be your views on this alternative?
Mr. LYONS. Certainly I would go along with the?well, right now,
for instance, some of the States have an agency fee proviso, and the
way our organization handles it, we allow the unit or the local to make
that determination as to whether or not the nonmembers will pay an
agency fee, and if they vote in favor we notify the town, the city or
the State that we request participation in the agency fee program.
And I have found in every case where we have requested the member-
ship to vote as to whether or not they want the nonunion members to
participate in an agency fee, that it was a favorable reaction.
I feel, as we pointed out, that here we are forced to represent both
the members and nonmembers and we have to have quite a staff to rep-
resent these people. Then the nonmembers, who certainly request rep-
resentation from time to time, should also participate by paying at
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least an agency fee. But I would not certainly object to the NEFE
,proposal and I think it's a fair proposal.
Mr. HENDERSON. very glad to have your response because I
think we're getting very close with that kind of a proposal, also
coupled with some of the positions that I think the Education and
Labor Committee and the Blouse of Representatives took recently in
the extension of the NLRA to private hospitals, as that legislation
permitted employees with very strong religious convictions to be ex-
cluded, and what we possibly could do in this type of voting situation
is to insure that no one is forced to belong, to join or to pay a fee
to work for the Government, and that's been the very strong position
of some of m who have felt that that ;should not be the case.
Mr, Lyows. Could I just respond, Mr. Chairman, with a story I
heard from Congressman Moakley. A fellow appeared before a judge
also, and talked about the religious aspect, bet I know that quite a few
of those. with very strong religious beliefs come to us and ask that we
represent them any time that, they get in trouble, and they, because of
liu'r religious beliefs, may not belong to the union, but they certainly
I lice to have our attorneys.
It was like the story of the fell ow?l[ hope I'm saying it right, Con-
gressman Moakley?who went before the judge and the judge said,
"Who's your attorney?" And he said, "The Lord is my representative."
The judge said, "Yes, I know that, but who is it locally?"
So our union locally will take care of them. I hope I didn't kill
Hint one.
Mr. MOAKLEY. I was going to say you mule a better presentation
than you tell a story.
Mr. HENDERSON. You propose that qualifications in H.R. 9784
regarding suhervisor personnel should. apply throughout. This is on
page 8 of your statement. That bill would permit supervisors of fire-
fighters or educational employees or public sifety officers to be in the
same unit of recognition as the people they supervise.
What would be your position on that proposal and why should
these supervisors be treated separately from all other supervisors?
\I,. DE A I don't feel that bill provides that all supervisors would
be a part of the units in those, three arias. It provides that a majority
of the supervisory criteria must be fulfilled before an employee is
considered a supervisor and thus excluded under the firefighting,
educational and public safety areas. In the irefighting area, I think
this has been a distinct problem because they have created ranks to
provide a broader pay structure that don't entail true supervisory
capabilities. The same thing is true of first level supervisors in public
education.
I feel that hiring and firing, direct control over promotion, and so
forth, are valid criteria, demotion and reassignment; but the first level
supervisors in those three areas, for the most part, make recommenda-
tions that are only advisory.
in the firefigfiting area?and we do have a number of firefighting
units in the Federal sector and the State and county areas?most of
those units include up to captains and in a majority of our police units
we include up to sergeants, who would conceivably be considered
supervisory personnel under the criteria of 'hiring or firing or pro-
moting or demoting or assigning." If you 77equire the definition of
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supervisors as II.R. 9784 does, that a majority of these, or a number
of these, criteria must be met before a person is regarded as a super-
visor and therefore excluded, then I think you will end up with a
fairer unit.
First level supervisors in those three areas are work leaders. But
under existing criteria they have been excluded and therefore they are
denied representation:Management uses them, I feel, as whipping boys
and they identify most closely, at least in the educational and public
safety areas, with the rank and file.
Mr. HENDERSON. Thank you very much, Mr. Lyons. The staff has
more questions they have prepared that we would like to work with
you on in getting entered into the record at this point without taking
more time.
Let me commend all of you for the obvious amount of attention you
have given to this legislation and I assure you that your presentation
this morning has been most helpful to us.
Mr. LYONS. Thank you.
[The letter which follows was received in response to additional
questions:]
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
Washington, D.C., June 27, 1974.
Mr. ROY D. MESKER,
Staff Director, Subcommittee on Manpower and Civil Service, Committee on
Post Office and Civil Service, U.S. House of Representatives, Washington,
D.C.
DEAR Ma. MEsKaa : This is in response to your letter of June 20, 1974, to Mr.
Lyons setting forth some additional questions in connection with the Subcom-
mittee hearings on June 13.
I will address your questions in the order they were posed.
1. It is our belief that the government's labor-management relations program
should make provision for the recognition of locals consisting of supervisory
employees; further, that there should be no prohibition again representation
by and recognition of supervisory units by organizations that also represent
non-supervisory employees. We concede that, to permit recognition of units that
encompass both supervisory and non-supervisory employees, would pose conflict-
of-interest problems. However, so long as both categories of workers are confined
to units of their peers, we see no problem or potential conflict. Supervisory locals
granted recognition under the same procedures as apply presently ?to locals of
non-supervisory employees would elect officers from their own ranks, and should
be entitled to negotiate agreements covering their working conditions and per-
sonnel policies.
2. Current policy under Executive Order 11491 permissively allows union and
management negotiating teams to "request" an exception to an agency policy
or regulation if both parties agree to a procedure that departs from such policy
or regulation. It is our experience that this provision is meaningless and empty
of any real substance. For example, both in 1972 and 1974 the N.A.G.E. has
sought an exception to a Department of Commerce policy to allow negotiation
In a nation-wide agreement with the National Weather Service of language
permitting the union to designate a non-participating observer on promotion
panels. Not only has the request been denied by the Department, but the agency
negotiating team has been 'directed by the Department to not join with the union
in a request for an exception to the policy. Even if the N.W.S. were to demon-
strate a measure of courage and join with us in such a request, the Department
has made it clear that it would deny it.
The N.A.G.E. contends that, particularly where nation-wide agreements are
involved, all agency regulations and policies should be negotiable, except inso-
far as they are required by statute. Similarly, there presently exists no procedure
or process by which unions can have impact or effect on the substance of the
Fedenal Personnel Manual. We suggest the development of a framework by
which the major organizations representing Federal workers designate members
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of a multi-union negotiating team, which would be authorized to negotiate the
provisions of the F.P.M. with the Civil Service Commission to the extent that its
provisions are not dictated by law. In like fashion, the same multi-union negoti-
ating team should be empowered to negotiate with the Office of Management and
Budget on matters directly affecting the Federal workforce, i.e., policies gov-
erning contracting-out procedures, programs to contr31 average grade, etc,
3. The N.A.G.E. supports the concept of compulscry and binding arbitration
in the resolution of bargaining impasses, in lieu of the right to strike. However,
such a mechanism must be coupled with a significait broadening of the scope
of negotiability. Binding arbitration over minutiae is neither satisfying nor
significant. We would be willing to test the proCeda,!e of "last best offer" arbi-
tration, in which the arbitrator selects between the list positions or offers made
by the union and management bargaining teams. Thi ii technique is now in use in
the States of Michigan, Wisconsin, and Iowa.
4. With regard to our testimony on national recognition and national bargain-
ing units, our position is that the two basic concerns must be protected: (1) that
viable bargaining relationships enjoyed by unions at the local or regional levels
should not be over-ridden by an effort of another union which, through sheer
numbers, seeks to "lock-up" an entire agency in a single bargaining unit, and
(2) That some agencies lend themselves to national units, while others do not.
In short, we are arguing against the adoption of unit criteria which would per-
mit the establishment hr larger bargaining units which would cancel out or
supersede existing units and/or existing contracts Leld by organizations other
than the one seeking a nation-wide unit.
I trust that these comments are respcnsive ti your q iestions.
Sincerely,
ALAN J. WHITNEY.
:4xceutive Vice President.
Afr. HENDEasox. Our next witness this morning is Mr. John Leyden,.
who is preside at of the Professional Air Traffic Controllers Organiza-
tion. Mr. Leye.en, it's my pleasure to welcome you before the subcom-
mittee here this morning and I understand you have the general coun-
sel and the legislative research director with izou. You may introduce
them and proceed with your statement.
STATEMENT OF JOHN F. LE,YDEN, PRESIDEICT, PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION, A.CCOMPANIED BY WIL-
LIAM B. PEER, GENERAL COUNSEL; ALLAN MOSKOWITZ, LEGIS-
LATIVE RESEARCH DIRECTOR; AND JOHN MAHER, DIRECTOR OF
LABOR-MANAGEMENT RELATIONS
Mr. LEYDEN. Thank you, Mr. Chairman.
I have one other gentleman who is with us this morning I'd like to
introduce also. On my left is Mr. John Mahe, our director of labor-
management relations. On his left is Mr. Allaa Moskowitz, legislative
research director; and on my right is our genelul counsel, Mr. William
Peer.
Mr. HENmaisoN. It's my pleasure to welcome you gentlemen this,
m.orning.
Mr. LEYDEN. Mr. Chairman and members of the subcommittee. the
Professional Air Traffic Controllers Organization greatly appreciates,
the opportunity you have given us today to present our views on legis-
lation to place the Federal labor-management relations program on a
statutory basis, a change that we strongly feel s long overdue.
Of the three main bills before the committee?H.R. 10700, intro-
duced by Subcommittee Chairman Henderson for himself and for
Committee Chairman Dulski ; H.R. 9784, introduced by Congressman
William D. Ford; and H.R. 13, introduced '!v Congressman Frank
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Brasco, only the last, MR. 13, presents a system of Federal labor-
management relations that PATCO can support. We do have reserva-
tions about H.R. 13's omission of a clause supporting the right to
,strike, which we feel is a very important right, one that labor must
have if it is to deal with management as a true equal ratherthan as
an enfeebled inferior, as we exist at present. I will return to the bills
more specifically later in my presentation.
At present, I would like to direct my comments toward the purpose
of these hearings. It is a purpose that all but one of the organizations
and individuals who have testified before you agree upon, namely to
free Federal labor-management relations from its imprisonment by
the Executive order system and place it on a firm statutory foundation
where labor will at least be able to present its views from the same posi-
tion as management has had for years. From a merely cursory glance
at the numerous bills introduced on this subject, we must conclude
that many Members of Congress, and especially this subcommittee, are
agreeable to this dire need for change. All, but one, would agree with
us. That one is Mr. Hampton.
Both Mr. Hampton, the Chairman of the Civil Service Commis-
sion, and Mr. Hampton, the Chairman of the Federal Labor Rela-
tions Council, sat before this subcommittee and characterized the "Ex-
ecutive order experience" as a "success," as "satisfactory" and com-
placently concluded that "there has been no demonstrated need for
legislation." Can Mr. Hampton, high atop the vast Federal bureauc-
racy, controlling the lives of over 1 million Federal workers, sincerely
desire change ? I think not. Though we recognize that the doctrine of
divine right has been out of fashion these past few centuries, we also
recognize the fact that an impervious autocrat will not voluntarily re-
linquish his authority merely because he is asked politely to do so.
When Mr. Hampton testified that there is a stable labor-manage-
ment relations program in the Federal Government, he misinformed
the subcommittee. The present system is stable only in the sense that
labor is almost literally bound and gagged in the pursuit of its rights
itt the negotiating table, hi the appeals processes, and in the principal
forums open to us.
Last week, Mr. Webber of the American Federation of Government
Employees, testified as to the lack of the alleged "bilate,ralisms" in
the present Excutive order. Any one possessing the least amount of
knowledge concerning the present system and an unbiased viewpoint
would be forced to agree to this point. But this is exactly what is
missing from Mr. Hampton's testimony, an unbiased viewpoint. This
lack of objectivity permeates the entire program beginning with the
,settlement of the smallest grievance, where binding arbitration is a
fantasy because the arbitrator's decision is, as a matter of course,
appealed to the management-dominated Council, to the Executive
order review process, where the very same Council, composed solely
of management representatives, consider themselves able to objec-
tively review the abuses they have steadfastly refused to consider in
the past.
For the record, Mr. Chairman, our esteemed colleague, Mr. Meickle-
john, legislative representative of the AFL?CIO, asserted last week
in his testimony that the AFL?CIO and all its affiliates participated
in this latest so-called review. This is not entirely correct. PATCO and
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one other AFL--CTO affiliate formally boycotted this general review
because we realized in advance that Mr. Meicklejohn and those that
did participate discovered in the process of those proceedings, namely
that it would be an exercise, in futility? a cha:mde. From the drift of
Mr. Meicklejohn's remarks concerning that review, it would seem that
our prognosis was justified and that he too is sadder but wi.ser.
would also like to point out that it was .no coincidence that the
announcement of the recent review came at a paint when Congress was
beginning serious efforts to correct the injustic3s in the present Execu-
tive order or that, the Council began to release decisions in cases that
had been backed up for years just at the time when management's
treatment of labor was about to be exposed.
1-Tow much progress has there been? Mr, Hampton, in his remarks,
stressed the progress which has been made -under the Executive orders
since President Kennedy issued Executive Order 10988 in 1962. We
will agree that labor's relationship with management has improved a
great deal since than in many ways, but in some ways only the form of
our relationship has changed, not the substance. A little retrospection
may be of assistance ln illustrating this point. In February of 1970,
after a good deal of frustration over the issue of involuntary transfers,
the Secretary of Transportation, John N. Volpe, agreed to a meeting
between representatives of the Federal Aviation Administration, the
Department of Transportation and PATCO, together with a mediator
from the Federal Mediation and Conciliation Service. After he con-
sidere,d various alternatives, the mediator 'mile three specific recom-
mendations, any one of which would have defused the situation and
resolved the, dispute. These recommendations were forwarded to the
Seeretary of Transportation for his approval a:ad were totally rejected.
His total disregard of the mediator's reccmmendations not only
inflamed the situation but actually precipitated the controllers' "sick-
out" the following month. This unnecessary, nritually disastrous affair
could have been averted if the Federal Medi. ation and Conciliation
Service had the authority to firmly bind the parties at the table.
PATCO is firmly convinced that absent Department of Transporta-
tion intervention, the Federal Aviation Administration, who had- a
clearer understanding of the situation, might have responded in a
manner that would have precluded the unfort mate aftermath.
Has this situation improved or changed at all ? Let's examine the
controllers' and PA.TCO's experience, in seeking to change the system
by which controllers are classified in their job and which also deter-
mines their salaries. Beginning in 1969, coniirollers throughout the
country began petitioning the FAA. and the Civil Service Commis-
sion to change the classification system, Under which they are paid,
and which assigns primary and controlling weight to the volume of
traffic handled by the facility in which the controller works. The con-
troller's job itself, his duties, the complexities of his responsibilities,
and his own job performance is submerged under this predominate
criteria of volume of traffic.
Til January 1970 When relations between c,cntrollers and the FAA
were deteriorating at an accelerating rate daily, PATCO itself asked
the FAA to abolish this "ill-conceived and discriminating formula."
Later that month the agency replied that it would make every effort
to "determine ways in which the standard Can be revised * * *." The
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agency also said that when a "better system" can be developed, it would
either change the agency's own guidelines or ask the CSC to revise
the standards.
In a word, after this, nothing happened, and PATCO was com-
pelled to file suit against the FAA and the Civil Service Commission.
The suit is still pending in Federal court, with the FAA and the Civil
Service Commission attorneys using every legal device to get the
Federal judge out of the case. However, just last week, the judge
indicated that he will not remove himself from the case because to
do so would remove the one compelling reason for the agencies to deal
with us, namely, the threat of an injunction.
During the 1973 negotiations, PATCO and the FAA agreed to
establish a classification review committee as a bilateral committee
to study the present system with the goal in mind of making whatever
revisions were deemed necessary. However, because of the several
bureaucratic layers through which any classification change has to
go, the work of the committee may turn out to be to no avail. The
committee's report which is expected later this year, will be submitted
to the Administrator of FAA. The Administrator in turn must submit
his recommendations to the Secretary of Transportation. The Secre-
tary of Transportation then must submit his recommendations to the
Civil Service Commission. The Civil Service Commission may then
do with the recommendation whatever they wish, which may include
starting a study of its own, outright refusal, outright approval, or
some modification. Whatever the result, it will be years in coming
and these will be years precious to the controllers who are working
today under an unfair and, we believe, illegal classification system
which denies them what Congress says they are entitled to: Equal
pay for equal work.
Last December PATCO, in order to bring this issue to a more rapid
conclusion, requested a meeting of responsible Civil Service Com-
mission officials. At that meeting PATCO requested that the Civil
Service Commission join with FAA and PATCO now in the study
going on so that time could be saved to all concerned. PATCO also
requested an early decision from the Civil Service Commission on
whether the FAA had improperly refused to upgrade and promote
certain controllers who were entitled to it. In a second meeting in
January, the CSC assured us that PATCO would be supplied with
a letter on the matters at an early date. Not until last week did
PATCO find out what the Civil Service Commission intended to do
and was doing, and the information PATCO obtained was obtained
from a third-party source and not from the Civil Service Commission.
At the meeting in January, the Civil Service Commission informed
PATCO that it had invited the DOT to participate in the meeting
so that all interests in the classification matter could be represented.
PATCO believed that this was a useful and worthwhile invitation.
The Department of Transportation refused to attend the meeting on
the grounds that it does not recognize PATCO and that PATCO
has no status with DOT. The result of all of this is that on the classifi-
cation issue, the FAA has little or no authority to deal with PATCO
because of its subordinate role.
The Civil Service Commission says that it is blocked from playing
a more effective role because it can deal only with the Department of
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Transportation and not with PATCO or FAA. The Department of
Transportation refuses to deal with PATCO because it says that
PATCO's recognition and status is for and with FAA. PATCO is
loft eliasing its proverbial tail in a never-ending circle, with no one
agency either willing or prepared to deal with us. Is this the same
-Executive orMer system which Mr. Hampton points to with pride for
"its effectiveness, and its responsiveness to tie interests and needs of
all parties concerned?"
His own Civil Service Commission is one of the primary reasons
why the system is not working; his own l agency is expert in the use
of delay and dilatory tactics; his own agency continues to assert the
proposition that the employees and their unions have no role to play
and what will come, for the benefit of the employees will be at the
largess of Mr.. Hampton and his servants, whm claim to know what is
better for the employees than the employees themselves or their or-
ganizations. This paternalism must end.
ln a. true collective bargaining relationship, the parties bargaining
are the same parties who have the authority to make the final decision
ort the outcome of that bargaining. What in the point of spending
weeks, months, even years, exhausting time., patience, and financial
and physical resources to negotiate a workable agreement if that
agreement is subject to the whim of a higher agency authority who
took no part in the slow, arduous development of that agreement and
who cannot possibly perceive the efforts inyclved or the understand-
ings reached.
it is clear that the confusion and ineffectiveness in the present Fed-
eral labor-management relationship Tinder the Executive orders is
expensive, time consuming, and aggravating for all concerned. We
hope that, in the process of legislation, the important problem of
identifying the real employer will be solved.
Management rights Are an Obstacle to professional input to the
system. This is anotherint of contention bel ween Federal employees
and management. While I agree that there. do exist certain areas of
i w en q ilevee- management relationship that belong exclusively to man-
agement, the agencies have for too long Managed to bide behind their
all-inclusive shield of management rights even concerning technical
matters where the expertise and experience of the men employed in
dies(' fields should welcomed arid not disregarded.
When labor organizations, such as PATCO, are told by their em-
ployer that the employer does not have to deal with the, labor organi-
mtion on matters which the employees and the union know affect
them substantially, additional frustrations and undercurrents of dis-
sent, arc' created. TVor PATCO, which has pressed hard in many new
a rens for rpeognition, the situation is becoming rapidly acute. This
should be of particular concern to the Cong7ess because the matters
which we wish to address ourselves to in dealing with the agency
affect the lives and safety of millions of air travelers each year.
PAT( '0 has, throughout the years, sought in vain, recognition by
VA A of its proper role in what the FAN calls technology and operat-
nig matters.
PATCO sees these matters in quite a different light. The aviation
industry is, like many other industries, undergoing a rapid chancre
in technology and approaches to aviation transportation and safety.
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Who, more than the controllers who work the equipment and their
representative, is better situated to give input on how that equipment
and how the new systems affect air traffic control, transportation
safety, and the employees. Yet, the agency refuses to deal with
PATCO, refuses even to recognize PATCO as having an important
role to play and shuts the door in our face.
One example of this is the introduction of a new "microwave land-
ing system." The system is presently undergoing a study in the early
stages of its development. Every other aviation interest, the airlines,
the pilots, FAA, and other users, have been assigned a role to play in
studying this system, its uses, its faults, its capabilities, and its in-
adequacies. PATCO and the controllers who will be using the micro-
wave landing system have not been assigned any such role.
PATCO challenged this decision by FAA through its contract pro-
cedures and the agency refused to participate in any grievance or
arbitration procedure involving it. PATCO then sought relief under
the Executive order by appealing to the Assistant Secretary of Labor
for Labor-Management Relations. and PATCO was turned down
cold in a decision which said that the Executive order does not compel
an agency to deal with an employee organization in such matters.
This is sheer nonsense, and ignores the practical day-to-day realities
of the controller and his job and also the productive role that PATCO,
or any other employee organization, can play in the advancement of
technology and in the improvement of the system.
While our efforts to this end have been constantly impeded by
management, I assure you that these same efforts will not cease.
H.R. 13 and H. R. 9784 alleviate this problem by effectively narrow-
ing management rights.
What can labor do about it? This is possibly the most frustrating
and infuriating dilemma that labor faces in the present Executive
order. There is nothing in the institution of Federal employee-manage-
ment rel i.itions today that forces management, to act.
In the present collective-bargaining arrangement, labor is -under a
great pressure, first from its membership, to conclude negotiations
on the entire range of issues affecting them, and second, from the
financial pressures which control the very survival of the organization,
specifically to obtain dues checkoff. Management has no such pres-
sures at all. They can allow months to go by deadlocked over ground-
rules such as the supposedly unimportant issue of official time, while
in reality they are diluting the strength and security of the labor
organization.
Mr. Hampton realizes this fact and points out in his statement that
bargaining is prolonged in the great majority of cases where a dues
checkoff agreement exists. The correct interpretation of this fact is
that once the financial security of the union is secured, some of the
pressure is off the organization and they are then able to effectively
bargain for a more equitable contract.
How many of the more than 2,500 agreements that Mr. Hampton
cites as being negotiated under Executive Order 11491 are really satis-
factory to the unions who negotiated them? How many unions were
forced to sign contracts because they could no longer afford the time,
money, or manpower to sit and wait while management, who loses
nothing and can only gain by the passage of time, merely delays and
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retards the negotiations by their obstinacy. Mr. William Usery, Di-
rector of the Federal Mediation and Gencilifltion Service, in his recent
testimony before a congressional appropriations subcommittee, is also
Owe u ie problem. He cited as one of the principal reasons for his
request or more positions in his organization, the lack of bona fide
deadlines for settlement which accompani s pressures such as the
strike awl kackout in the private sector. This often causes Federal
bargaining to extend for months, even years beyond the expiration
date of the prior agreement.
Our own bargaining predicament is ind'cative of the "Executive
order experience." PATCO is presently at impasse with the FAA on
67 of 73 articles under negotiation for the new agreement. Our first
cent ract, negotiated last year, had an expiration date of April 1974.
We began negotiations for a new contract in February 1974. After
several weeks of negotiations, the parties reached tentative agree-
ment, on five or six minor items. The big, issues are among the 67 which
taanain at issue.
We are without any offeetive way of dealing with these impasse
items, except to offer to FAA one compromising concession after
another in this process which many call "collective begging." Agree-
ment, is difficult, if not impossible, to reach when the party on the other
side of the table. FA A. can always duck belind its parent agency, the
Department of Transportation to negotiate on the particular item at
issue. During our last negotiations, management officials from the
Department of Transportation second-guessed the bargain reached
by PATCO and FAA to the point where the agreement almost be-
eame unglued. And this was at a time when PATCO had the sigmt-
re of FAA officials on the agreement and PATCO had informed its
members that an agreement had been concluded. We foresee the same
prospect this year, with the same Department of Transportation of-
ficials looking over the shoulder of FAA tared dictating both bargain-
ing strategy on a day-to-day basis for FAA and the terms of the final
agreement.
There is also the, matter of the Department of Transportation regu-
lations and rules which FAA is adroit at pulling out of their brief-
Cases and throwing onto the table, as their answer to why a PATCO
proposal is either unacceptable or illegal. 1Ve have tried to force the
Department of Transportation to the bargaining table, without suc-
cess. Mr. Hampton's agency, the Federal Labor Relations Council,
was .importuned by PATCO to determine whether these DOT prae-
flees were Droper. The Council declined even to accept PATCO's
petition, leaving the parties for the 1974 negotiations in exactly the
same place they were in during the 1973 negotiations.
The patience of the controllers in the field is wearing thin, with the
slow pace of negotiations and with there being apparently no way out
of the present impasse situation. PATCO has, during the last several
years conducted its business in a responsible and high-esteemed fash-
ion. 'However, there is only so much that an organization may do to
1,TM) the lid on frustration in the field of some of the employees in-
voiced. Any system of relations between labor and management which
tlees not, provide for an effective means of dealing with the frustra-
tions o f the employees at the bargaining table is doomed to failure. We
feel that the wider scope of bargaining and the more complete final
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and binding arbitration afforded by II.R. 13 and H.R. 9784 will miti-
gate this crucial problem.
Who is the court of last resort? It would be reasonable to assume
that since the Executive order denies labor the power to pressure
management into a more reasonable and responsible position, a means
would be provided within the system for a strong, neutral third party
who could and would furnish assistance in this regard. But you will
search the present Federal labor-management program in vain for
such an institution. What has been PATCO's experience with fmal
and binding arbitration under the Executive order? In its dealings
with FAA during the last year, PATCO has participated in five
arbitration cases against the agency. Of those five, PATCO has been
successful in three and unsuccessful in the other two.
Of the three where PATCO was the winner, FAA has exercised
its right under the Executive order to file an appeal against the award
in two of those cases. In other words, FAA, having lost three cases,
has appealed 67 percent of its losses. The fruits of PATCO's victory
for the controllers in those cases are still being denied the controllers.
Mr. Hampton's Federal Labor Relations Council has granted the
Agency's appeal in one of those cases in a case in which the Agency
i
is flagrantly violating the language of its agreement with PATCO on
overtime hours. The Agency has claimed that the Comptroller General
has rendered a decision at some time or some where which makes the
PATCO?FAA agreement illegal and which makes the arbitrator's
award unenforcible. Here are the cards that an agency plays with on
such important matters as overtime.
The _Agency does not have to negotiate with PATCO on such mat-
ters; the Agency does not have to enter into an agreement with
PATCO on such matters; once having entered into the agreement, the
Agency may violate the agreement with impunity; the Agency does
not have to participate in the grievance or arbitration proceeding if it
doesn't want to, and may decide to challenge the grievability of the
issue; when an arbitration award (roes against the Agency, it does not
have to comply with the award; when an appeal is taken to the Fed-
eral Labor Relations Council the Agency may dredge up some obscure
Comptroller General's decision and claim that that decision supersedes
all others. Binding arbitration? It seems more akin to unbinding
arbitration.
Each separate appeals system leads, in the end result, to the Federal
Labor Relations Council, or to the civil service, to administrators such
as Mr. Hampton, whose partiality is hardly in question. Their position
necessarily supports the management position. When the men who have
the authority are the very same men who hear your complaint, decide
the issue, decide your appeal, and then review the system under which
you have already complained and appealed, impartiality becomes a
farce and justice a myth.
Moreover, the Council, labor's own supreme court, is so unaccount-
able that the mechanisms of its internal operations are unknown. Does
the staff decide the issues or do the three members themselves actually
deliberate on the case, decide the rules of law, and issue the decisions?
No one outside the Council knows, and this in itself contributes to an
undemocratic, unaccountable, and unacceptable system.
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The only impartial agency within this rotting, stagnant structure is
the Federal Services Impasse Par.el. Their decision is final and bind-
ing. Yet they have only had 105 cases in the fast 4 years. Surely the
need for their services must be greater than this low number implies.
The reason for the lack of activity, I propose, 13 that the Panel, rather
than hearing an impasse containing many disputed articles, will instead
send the parties back to the negotiating table. Again time works only
on the side of management, for they may agree tc; nothing and so
prevent real and expeditious bargaining that would result in an agree-
ment. It is also significant to note that exeept fcr five joint request''s, all
the other 100 actions had been initiated by labor organizations. Thus,
even Mr. Hampton's statistics cry out for neutral intervention.
Again, the scheme of truly impartial, final, and binding arbitration
offered by legislation before the subcommittee should do away with
these constant abuses.
I would now like to turn my full attention toward the bills pres-
ently before this subcommittee. PAM) supports H.R. 13. The Pro-
fessional Air Traffic Controllers Organization believes that any legis-
lated plan of Federal labor-manageme,nt relations must, at least, deal
with the problems of management rights, mist create a system of
impartial, binding arbitration, and must grant labor a means by which
it can propel management from its intractable, and unyielding com-
placency, if that plan is to be both equitable and workable. Among the
three major bills before this subcommittee, we feel that H.R. 13, intro-
duced by ( longressman Brasco, will best alleviate the present inequities
in the Exec-lit-lye order and produce a -viable, strong, and intelligent
bargaining system.
Our sole dissatisfaction with RR. 13 is that it omits a clause sup-
porting the right to strike. The right of a citizen to withhold his serv-
ices is the best protection for meaningful, productive collective
bargaining. That right should not be denied a citizen simply because
he is a Federal employee. If Congress finds that a total right to strike
cannot be achieved in the proposed legislation, that PATCO would
support the limited right to strike as embodied in H.R. 9784, intro-
duced by Congressman William D. Ford.
If Congress decides, in the, enactment of this legislation, that the
right to strike, no matter how limited, is not compatible with the con-
cept of a Federal employee-management relationship, PATCO be-
lieves that the sole suitable alternative for this right is a pervasive
system of impartial, binding, and final arbitration for the resolution
of issues that come to an impasse tn the course of negotiations or bar-
gaining. The system that would have our endcrsement would have to
include a method by which grievances and questions concerning the
application or interpretation of an agreement are settled by a neutral
party who has the ability to make a final decision by which the parties
are bound. In fl.R. 10700, the decisions of the arbitrator concerning
grievances are appealable to the authority. While we hope the members
of that agency will be evenhanded in their deliberations, we would
rather not be forced to depend on it. For these reasons, we support
the method pro posed in H.R. 13.
All three bills provide for a strong, central, neutral authority which
is assigned the duty of the admin5stration of the substantive portions
of the act, and we are gratified that this need has been so widely
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recognized by the sponsors of these bills. However, we would suggest
that any final bill contain a guarantee that labor is equally represented
with management on the membership of that authority. H.R. 10700
provides an additional agency, the Federal Labor Relations Board, a
bipartisan mechanism to consider policies and regulations, or amend-
ments to existing policies or regulations, involving matters subject to
negotiation relative to personnel policies and practices and matters
affecting working conditions which the Civil Service Commission or
any other agency, exceptinc, the Department of Defense, proposes to
issue. We strongly support the concept but believe that the, mechanics
of the selection of the Board's members be made more impartial by
granting the power of appointment to some individual other than the
Chairman of the Civil Service Commission.
H.R. 10700 is a definite improvement over the Executive order in
many areas. It provides for dues checkoff at no cost to the union, thus
insuring the security of the labor organization even while negotiating
a new agreement. We are pleased to see that it abolishes the time-con-
suming mandatory election as the sole method of choosing the exclusive
representative and additionally provides for certification of that status
if the organization represents a maiority of employees in that unit
and there is no other opposition. But H.R. 10700 contains very little to
separate it from Executive Order 11401, as amended, in the area of
management rights.
H.R. 10700 protects that wide and ambiguous delineation of manage-
ment rights that Federal employees have leen forced to labor under in
the past. The scope of bargaining would remain rather restricted, while
questions of negotiability would be decided by the agency head, sub-
ject to appeal to the Federal Labor Relations authority. For this rea-
son, we prefer H.R. 13 and H.R. 9784 which contain no such limitations,
producing a truer collective bargaining system which we feel is the
most productive goal.
H.R. 10700 does not require employees to pay their fair share to the
union for the obligation of the union to defend and represent them in
contract negotiations, grievances, or appeals. It thus expressly pro-
hibits the agency shop. While H.R. 10700 tries to ameliorate this
union hardship by decreasing our obligation to represent all employees
in negotiations and grievances, it is our considered opinion that recent
Supreme Court decisions clearly require the union to represent all
employees in the unit and that it would be illegal to determine our obli-
gation on the basis of union membership. Because H.R. 13 and H.R.
9781 provide this measure of union security and this idea of equal
support for equal representation, we endorse these bills.
Another important factor that has been hindering our effectiveness
in resolving differences with management is that of official time. We
are not financially equipped to wade through the laborious and time-
consuming negotiations that we must pursue in the defense of our
rights while management's representatives are totally recompensed
for their participation in these same matters.
H.R. 10700 recognizes this problem by providing for mandatory
official time for representatives of an "exclusively recognized or certi-
fied labor organization in the negotiation of an agreement, * *
including attendance at impasse settlement proceedings * * * during
regular hours." If the use of official time is requested for any other
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representational function:, such as grievances the determination is at
the dise,retioll of the Authority. Clearly, the fact that the union repre-
sentative must relinquish his financial security for any representational
Function wh.le the, management representafve does not is unfair and
the distinction between the use of that. time :for negotiations of agree-
ments and the, use. of that time, for grievances is, at best, illusory.
Moreover, H.R. 10700 creates the Federal Labor Relations Board,
proposed bilateral representation on that Beard, but at the same time
undercuts the effectiveness of labor's part it_ that tribunal by way of
forbidding the award of official time to thos?, members who represent
labor organizations. This partial solution of the problem is unsatisfac-
tory.
In contrast, H.R. 13 mandates full official time for employees called
upon by either party to participate in any phase of the proceedings
under the bill, "including elections, in veStgations, hearings, negotia-
tions, including ,groundrules, and grievance and impasse proceedings
*." We wed l this approach to be the best one.; the only approach
which can st-remrthen Federal labor-manage:nent relations.
In conclusion, Mr. Chairman, we again wish to thank you for ena-
bling us to speak to these issues and to these bills. We, would be pleased
to offer any assistance to the committee in the way of counsel or in-
formation concerning the proposed legislation, for we believe that both
the committe,..e and the Professioltal Air Traffic Controllers Organiza-
tion are working for the, same, goal, a legislated change to provide a
workable system, one insuring equal rights and responsibilities for
both sides of the, baronining table and assuring a common respect for
the presently abused Federal employee-management relationship.
Mr. HENDERSON. Thank you very much.
On page 1.8, with regards to official time, you state H.R. 10700 creates
the Federal Lalx)r Relations Board and does not provide for the award
of official time.
Isn't it true, that as envisioned under that bill the union officials who
would be before that Board are not employees of the Government?
Mr. LEynetv. No, sir. T believe, that, as in our particular case and I
elm speak only to that, all of our employees who represent us at, the
bargaining table are in fact full-time, employees of the agency who
For that, period of time are assigned the project of working for the
negotiating process.
Mr. HENDERSON. That may be the explanatim as to why the question
hasn't been raised by the Other witneses. We certainly eould recog-
nize that you may have a peculiar situation and it could be that we
would find your position worthy of amending the bill to provide that
f they are employees they may be, awarded the official time.
Mr. LEYDEN. If I understand the, gist of the question, I would sup-
port your position that if general counsel Were at the bargaining table
with us we, in fact, would pay that particular portion, yes.
Mr. HENDERSON. Mr. Hampton testified that only 16 percent of bar-
gaining situations require third-party involvement, most of them in-
volving only mediations. With all othet third-party involvement, such
is the Federal Labor Relations Council, the Federal Services Impasse
Panel, the Assistant Secretary of Labor, SO bareitinintr, situations.
How would you respond to this defense of '-the Executive order
system?
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Mr. LEYDEN. I would cite as a specific example the futility that I did
in my testimony, sir, that it is, as far as my experience as chairman of
the negotiating team for the past 2 years, an exercise in futility, and I
think maybe general counsel might want to address himself to that.
Mr. PEER. Mr. Chairman, the statistics which are offered are often
offered by a partisan. We suggested in this instance, as a perfect ex-
ample of how you can turn statistics around and use them for your
own parochial interest?and as Mr. Leyden has indicated, the low
percentage here is subject to varying interpretations, and we inter-
pret the low percentages because unions see this as a total, complete
exercise in futility.
Mr. HENDERSON. I believe the staff has prepared other questions
and I would ask that they submit them to you and your staff for re-
sponse and inclusion in the record, but I certainly would like to just
take a minute to ask if you would comment on your experience with
Public Law 92-297 which this committee, as you know, reported and
became law in the last Congress. Do you have any problems with that
legislation
Mr. LEYDEN. I'd like to just preface my remarks by complimenting
you, as part of that committee, and the Congress in its entirety for
passing that legislation. It was the most monumental piece of legisla-
tion that the people I'm associated with have been beneficiaries of in
my time. And because of the diligence of the staff people who are
overlooking and overseeing the problems that we are encountering be-
cause it is new legislation, we have been able to resolve most of the
problems that came up during the first 2 years.
But it has been one of the few rewarding experiences with our re-
lationship with FAA and I think it's specifically because of Congress'
overriding concern and influence in this area. That legislation has
worked out very well.
Mr. HENDERSON. I certainly think you and your organization should
be commended for the efforts that you made and I would hope that
from time to time you would feel free to pass along to the committee if
you do see problems arising. I think that any statement that you would
make with regards to the effectiveness of the legislation, any comments
that you might want to make with regards to the benefits that are actu-
ally accrued as related to the costs would be appreciated. I have some
small inkling that the costs are perhaps higher than we anticipated and
that unless we took case-by-case studies to show what did actually
happen under the bill we might have some difficulty making a full
judgment.
But obviously, this does not in any way affect by basic support
of that legislation and I thought that it was good and I'm glad to
have your response on this. I just hope that in the administration
of the, bill the benefits will be such both to FAA and to the controllers
that there will be no questions raised as to its full effectiveness and
certainly if the legislation is not working well we would want you
to be in touch with us.
Let me thank you and your associates very much for your appear-
ance here this morning and as we proceed in our deliberation and
consideration not only will we pay close attention to your statement
presented this morning, but certainly I anticipate we will be calling
on you from time to time for assistance.
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Mr. LE yomc. Thank you, Mr. Chairman.
Mr. HENDEnsoN. The subcommittee will stand adjourned.
[ Whereupon, at 10 :50 a.m., the hearing WLS adjourned.]
The following information was furnished in response to questions
from the subcommittee:]
Q. Executive Order 11491. provides for an agency 13ystem of intra-management
eonununication and consultation with its supervisors or supervisory associa-
tions H.R. 18, H.R. 9784, and H.R. 10700 are silent on such relationships. What
are your views on the inclusion of this matter in labor-management relations
legislation? How should the subject be handled?
Reply
PATCO is opposed to supervisory associations, per se, and to intra-management
communication between management and supervisors on an organized basis.
Supervisory associations, because of their close jes to management, have
always received favored treatment from managemert. These associations have
been allowed involvement in areas precluded to employee unions by the
Executive Order by denying the fact that they are a labor union while per-
forming a role identical to that played by a labor union. This chameleon-like
quality affords these supervisory associations the rights of a union without the
restraints that a bona-fide union must conform to. For these reasons, we are
strongly opposec to allowing intra-management .supervisory consultation in the
form of associations.
We also reel that there is no need for a provision in the proposed legislation
for this purpose and support the silence of H.R. 13, H.R. 9784, and H.R. 10700
on this matter. It is difficult to imagine a situation where a supervisor, who
lea member of management in many respects, would flat consult and communicate
with the rest of management in the course of his regular employment duties.
Extra consultation 011 an organized basis would only prejudice and subvert the
relationship between management and authentic employee unions.
Q. You endorse the concept of some form of union security on page 17 of
your statement. The NWEE proposed a "fair representation fee" which would
serve the same purpose, but would be contingent upon an election by emplyees
in the unit represented. May we have your views (fl this alternative?
Reply
P.ATCO opposes the proposal that union security be made contingent upon
an election by the employees in the unit represented. This proposal begs the
question of union security because the union is obligated to represent all
members of the unit and cannot elect to represent some and not all. Since
our representation cannot be contingent on election, it does not seem fair to
allow a "representation fee" to he contingent on any election.
We do support the Canadian system of union security. There the union repre-
sents every controller in Canada and each controPer pays the full rate of
representation, even if ho does not own a membership card.
Q. In lieu of the right to strike, there appeaes to be a general concensus that a.
viable alternative is necessary, both to move negotialons forward on a timely
basis and to settle negotiating impasses. An alternative suggested has been
compulsory arbitration vath the arbitrator free to determine the settlement
or to select from the last position or offer of the parties without modification. May
we have your view on the above and, additionally any other alternatives you
may care to offer?
Reply
In lien of the general right to strike. 1. feel that, the next best alternative is a
limited right to strike for Federal employees, This type of right to strike for
would be limited by judicial action, i.e.. a restraining order or injunction, if the
court decides thwt the commencement or continuance of the strike poses a clear
and present danger to the public health and safety. This right to strike could be
utilized after the exclusive representative has exhausted all attempts at arbitra-
tion and there has been no satisfactory results.
If this limited right to strike is not considered a viable alternative by
Coegress, then we would support compulsory, binding arbitration with the
arbitrator free to determine a settlement from the lest possible proposals on
the entire gamut of negotiations of both sides. This gives the arbitrator the
freedom and flexibility he needs for determination.
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We are opposed to the "last best offer" method because it binds the arbitrator
to accept the total, absolute package of proposals last made by both parties.
As stated previously, we feel the arbitrator should have the flexibility to
select specific proposals without regard to when that proposal was made.
Q. H.R. 13, H.R. 9784, and H.R. 10700 take varying approaches to broaden
the matters and issues that are subject to negotiations between agency manage-
ment and labor organizations representing Federal employees. What approaches
would you suggest to broaden the scope of bargaining or labor organization
participation to include regulations at the agency and Civil Service Commission
levels, but not to include matters of law?
Reply
PATOO believes that subjects that are presently excluded from bargaining be-
cause they are matters of law, such as wages, should be subject to negotiations.
This could be realized by specifically amending these laws in the 'proposed legisla-
t ion and opening up the scope of bargaining to its fullest extent. The importance
of this question can best be summed up by a quote from William J. Usery, Jr.,
Special Assistant to the President and Director of the Federal Mediation and
Conciliation [Service, in a recent address to Federal executives?
"The reason there is little true collective bargaining in the Federal sector is
because there is so little that can be bargained for.
"Congress pre-empts the economic issues. Wages, pensions, medical care, vaca-
tions and holidays and insurance?all vital issues in the rest of the collective bar-
gaining world?are determined by law.
"'The result, all too frequently, is a labor contract that simply restates what
management will do, providing only the right to grieve should management
violate its own rules:"
If the Committee, or Congress as a whole, considers this an impossible Or un-
suitable proposal, our position would be that negotiations should be allowed on
all items that are not covered by statute and on those regulations implementing a
statute where any question exists as to the meaning of that statute. There are
numerous areas where the implementation of the statute by the agency has taken
a direction substantially different from the one implied by the statute itself.
Pre-implementation negotiation of the regulations would provide labor a greater
sense of participation in the making of the rules governing their employment and,
in the long run, would facilitate cooperation between labor and management in
living under these regulations.
In addition, the restraining influence of the "higher agency authority" must
be abolished. There can be no faith in even a limited scope of 'bargaining if a
parent agency, or another agency, can negate previously negotiated items by fiat.
Merely widening the scope of negotiations without dealing with this problem of
a "higher authority" does not assure the parties negotiating that what they have
negotiated will not be overruled at a later date. Any legislation which hopes to
widen the scope of bargaining must contain guidelines approximating the Agency-
Principal relationship that is found in the Common Law if final responsibility
is to be present at the bargaining table.
The best mechanism for the negotiation of agency rulings or regulations, in-
cluding those of the Civil Service Commission, which affect the employees of more
than one agency, is the type of institution suggested by H.R. 10700, the Federal
Labor Relations Board. We feel that the Board would be more impartial if the
members were to be appointed by an individual other than the 'Chairman of the
Civil Service Commission and that the representation of labor and management
be simplified by 'having a rotational representation system. A rotational system
would allow only one member from any agency or union to sit on the Board for
the specified time period alloted, thus giving smaller agencies and unions a
chance to participate.
Q. Your statement, beginning on page 8, says "management rights are an ob-
stacle to professional input to the system." As I understand your position, you
feel that unions should participate with management in technological decisions.
Would you please elaborate on your views and position on this matter?
Reply
Our position is that employees have as much expertise and knowledge in the
technical areas of their employment as management has. Employee experience
should be a valuable source of input to management in these areas. Contrary to
this common sense verity, management takes the position that employee or-
ganizations, the representatives of the employees and reservoirs of employee
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368
technical expertise, have no right to contribute their views in these matters: these
matters are the responsibility of management and their sole prerogative. This
position forestalls the productive role that employee organizations can play in
improving the system. For a specific example of this problem, please refer to pp.
0 of John F. Leyden's statement before the lVlan)ower Subcommittee of the
House Post Office and Civil Service Committee regareing H.R. 13, H.R. 9784, and
FIR. 10700 on June 13, 1974.
In addition, some types of federal employment, particularly air traffic con-
trol, contain a special relationship between man and machine, one in which both
indispensable parts must be in perfect working order. In these cases, the employee
has a much greater interest and involvement with die technical equipment with
which he carries out his work. The employee Ls fully responsible for the service-
ability of the equipment before use. The Federal Aviation Administration recog-
nizes this situation and places the responsibility for the use of equipment squarely
on the shoulders of the controller. To quote the FAA Handbooks for both en route
and terminal air traffic control, FAA 7110-9C, Enrout e Air Traffic Control Chap-
ter 4, Section 1, Para. 610, and FAA 7110-8C, Terminal Air Traffic Control, Chap-
ter 5, Section 1, Para. 1156:
"PRESENTA'TION AND EQUIPMENT PERFORMANCE
"(Provide radar service only if you are personalty :satisfied that the radar
presentation and equipment performance is adequate for the service being per-
formed.)"
It is this responsibility which necessitates an unusual amount of knowledge
and understanding concerning technical matters on the part of the controller and
any other employee faced with this situation.
The present implementation of Radar Data Proeeming equipment is a case in
point. The FAA, having spent a few hundred million dollars on developing the
system, is now forced to rush the system into operation because of past political
and budgetary commitments. Not only is the system still imperfect, but the em-
ployees, who must first judge the adequacy of the equipment and then utilize it,
the controllers, do not fully understand how this complex, computerized system
works. When do working conditions become technical matters? At present, the
answer lies with the discretion of management.
For management to exclude employee input from technical matters while forc-
ing the employee to be responsible for the implement tion of that piece of equip-
ment is contradictory at best and dangerous to the public and the employee at
worst.
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FEDERAL SERVICE LABOR-MANAGEMENT
LEGISLATION
TUESDAY, JULY 16, 1974
U.S. HOUSE OF REPRESENTATIVES,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE,
SUBCOMMIFUEE ON MANPOWER AND CIVIL SERVICE,
Washington, D .0 .
The subcommittee met at 9 :30 a.m., in room 210 of the Cannon House
Office Building, Hon. David N. Henderson (chairman of the sub-
committee) presiding.
Mr. HENonnsoN. This morning we are continuing our hearings on
pending legislation regarding labor management relations in the Fed-
eral service. The testimony we have heard thus far from the adminis-
tration and labor organizations has sharpened our focus on the critical
issues facing us as we consider this significant legislation. Our hearings
today and those scheduled for July 25 will provide the subcommittee
with testimony on some remaining important issues that must be faced
as we shape the legislation before us.
With us this morning we have Mr. Frederick Walker with the Ply-
mouth Brethren No. 4 of New York City, Mr. James Hill, represent-
ing the National Federation of Professional Organizations, Mr. Reed
Larson of the National Right to Work Committee, and Mr. William
Kraham of the National Association of Air Traffic Specialists.
Before our witnesses begin this morning, I would like to ask unani-
mous consent that the statements received by the subcommittee from
organizations representing vital interests in this legislation be in-
serted at an appropriate point in the record of these hearings.
At the outset of these hearings, I indicated that the record would be
open to include statements from organizations that would not be able
to testify.
Before each member this morning are statements received from the
National Association of Agricultural Stabilization and Conservation
Service County Employees, the National Labor Management Founda-
tion, and the Joint Council of Unions at the Government Printing
Office.
Also, in conjunction with the testimony of the National Treasury
Employees Union, Mr. Vincent Connery, the national president, sub-
mitted a position paper on labor management relations which should
appear in the record following their testimony.
Without objection, the statements will appear as part of the record
at the appropriate point.
(369)
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Our first, witness this morning is Fredrick Walker, Plymouth
Brethren No, 4, New York.
Mr. Walker, if you would take the witness chair, and your associates
with you may be seated at the table.
STATEMENT OF FREDERICK N. WALKER, PLYMOUTH BRETHREN
NO. 4, ACCOMPANIED BY ROBERT A. SMITH AND JACK WALLEY
Mr. WALK=Elt Thank you, Mr. Henderson.
We do appreciate the fact that we have this opportunity to present
testimony to our Government. I have on my right, Bob Smith with
the TVA in Knoxville, Tenn., and Jack Watley with Social Security
in Baltimore.
It seems wise to have. at least two inembe:7s of our church who are
working currently for the Federal Government present, because I
think they can; in their own simple language?we are not profes-
sionals---gear witness to the fact that We are believers in the Lord
.Jesus Christ, the Son of God. He, having died for each of us, has laid
claim to us in our lives. We desire to be regdated in our lives practi-
cally by the word of God.
Is Bob and Jack will bring out in their short testimony, scripture
is a governing factor in our lives. They Will refer to certain scriptures
specifically. We, as a group known as Plymouth Brethren No. 4 in
Government records, have meeting places in about 40 different cities
across the country.
Actually, Mr. Henderson, our petition this morning is simplified by
action that has been taken this month by both the House of Representa-
tives and the Senate. We are departing somewhat from what we were
going to say. I will rake the liberty, if I may, of reading a couple of
excerpts from documents, first of all, Mn Perkin's conference report,
kited July 3, 1974, Coverage of Nonprofit Hospitals under the Na-
tional Labor Relations Act. It is very much in accord with our concern.
There was included in the hospital legislation as you would well
know, a conscience clause as a result of the conference between the
House and the Senate. It says in section 19 of the National Labor Rela-
tions Act as amended:
Any employee of a health care institution who is a member of and adheres to
established and traditional tenets or teachings of a bona fide religion, body, or
sect which has historically held conscientious objections to joining or financially
4ilpporting labor organizations shall not be required to join or financially sup-
port any labor organization as a condition of employment; except that such
omployee may be required, in lieu of periodic due and initiation fees, to pay
sulits equal to such dues and initiaton fees to a on-religious charitable fund
4,xempt from taxation under Section 501(c) (3) of the Internal Revenue Code
chosen by such employee from a list of at mast three such funds, designated in
a contract between such institution and a labor organization, or if the contract
rails to designate such funds, then to any such fund chosen by the employee.
It is interesting that the wording of that amendment is similar to
the - conscious amendment passed by the full Senate Committee on
,abor on August 19, 1965, that is attached to our statement which is
before you.
Because history has jumped right into the present month of 1974 we
will refrain from going into a lot of historical background. I would
ike to leave with the committee a small documentary for your perusal.
!-rives excerpts from the, Congressional Record of 1965 and letters?
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for instance, from Senator Williams and from Vice President
Humphrey?which indicate strong sympathy with our plea.
I note that this conference report was signed by Mr. Perkins, Mr.
Thompson, Mr. William D. Ford of this committee, Mr. Clay of this
committee, Mr. Quie and Mr. Ashbrook, as well as 12 Senators includ-
ing ? Senator Williams, Senator Randolph, and Senator Javits.
It was Senator Javits who carried forward that conscience amend-
ment of August 1965 from the Senate Labor Committee and introduced
it as his own bill, S. 3203, on April 6, 1966.
One more excerpt, if I may, from the Congressional Record of
July 11, 1974. Mr. Frank Thompson, Jr., says:
This bill, S. 3203, was passed by the House six weeks ago by a vote of 240 to
58. The Conference Report is supported by the Administration, Labor Organiza-
tions, several State Hospital Associations?Republicans and Democrats alike.
The only differences between the House and Senate Bills are two House amend-
meats: the Religious Convictions Amendment; and the Cooling-Off Amendment.
In the case of both amendments, Mr. Speaker, the Senate receded to the House,
with an amendment. In each instance the intent of the House amendment was
not only retained, but perfected and made more workable.
The Religious Convictions Amendment would exempt from union security
agreements those health-care industry employees who belong to a religion with
historically-held convictions against joining or financially supporting a union.
- In other words, Mr. Speaker, such an employee would not have to join a union, or
pay dues or initiation fees in order to work.
The conferees on the part of the House insisted on this amendment.
The Senate receded with a proviso that such employees may be required to
pay an amount equivalent to dues and initiation fees to a non-religious charity.
It is safe to say that virtually everyone connected with S. 3203 is pleased with
the action of the conferees.
Finally, Mr. Thompson says later:
The Conference Report before us, as well as the bill S. 3203, represents honest
compromise. As Secretary of Labor Peter Brennan said in his letter of July 8,
1974, expressing the Administration's support for the Conference Report: "al--
though reasonable minds may disagree as to particular provisions of the Confer-
ence Report, we feel that the Conferees have resolved the differences between
the House of Representatives and Senate in a reasonable way."
That Conference Report was adopted by the Senate yesterday by a vote of
64 to 29.
We understand the House did pass the revised amendment and the
bill went yesterday to the President for signature.
I would say before these two gentlemen render their testimony that
as far as we can see and we didn't see this conference report until
this morning?that this amendment for conscience in the hospital leg-
islation is perfectly suited to our requirement in the Federal service
legislation before this committee. In fact, we would like to see it
extended to any employee' regardless of type of occupation, in the
National Labor Relations Act.
This is Bob Smith from Knoxville.
Mr. SMITH. Mr. Henderson other members of the committee I am
Robert Smith of Knoxville, Tenn., employed by the Tennessee Valley
Authority. I believe in the Lord Jesus Christ and desire to be governed
by the Bible, the word of God, without compromise. We desire that
good conscience before God, spoken of in Acts 23, verse 1, should be
fully recognized and protected.
I have worked 5 years for the Tennessee Valley Authority in Knox-
ville. Employees who are not union members are passed over when
promotions come up. We cannot belong to or pay into associations,
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trade unions, and so forth. The Bible says: "Be ye not unequally yoked
together with unbelievers." Second Corinthians 6, verse 14.
T. am prepared to have the equivalent of Inion dues and initiation
fees deducted from my pay to be given to a suitable charitable
organization.
George Washington wrote in his coeybock: "Labour to keep alive
in your breast that little spark of celestial fire?conscience."
T served in the, Army for 2 years, was glad that my conscience was
recognized there. Many of us served in this way, and some were turned
away when applying for civilian jobs because of their consciences.
Why can't there be provisions for faithful employees with genuine
conecien ee ?
We fully respect Government and laws and authority. "Let every
son] be subject unto the, higher powers. For there is no power but of
God: the powers that be. are, ordained of God." Romans 13, verse 1.
Tn addition to the Military Training and Service Act, we are glad
for previous provisions for genuine. conscience in the legislation deal-
ing with social security, naturalization, education, and so forth.
H.R. 10700, section 710R seems to provide protection for our con-
science, although we would prefer to see specific provision for the pro-
tection of conscience along the lines of the S. 3203 conscience amend-
mert_ This relates to nonprofit hospitals under the National Labor
'Relations Aot, this bill has been passed and is on the President's desk
For eignature.
Our appeal'. is based simply on genuine conscience before God and is
not. political ,ryr in opposition to unionism. We say, "We ought to obey
God rather than men," Acts 5, verse 29.
Mr. ThetenralsoN. Thank you very much.
Mr, WAtoonn. Shall we. .go on to the next witness?
1.1r. HyNamasox. Yes, please.
Mr. Weeery. Mr. Chairman and members of the subcommittee: I am
John G. Walley, known by my brethren as 'Tack. T am also a believer
in the Lord Jesus Christ. Being a believer, I must abide by His word,
is the Holy Bible, in its totality-
" would like to speak of two scriptures to begin with. The first is
A its 5, verse 9,9. The. Apostle Peter in speaking to the Highh. Priest said,
God meet heoheved rather than men.
The second scripture, whieh, has already leen spoken of by Bob,
xculd. like to emnha size: Second Corinthians. chapter (1, verse 14. It
uire "Be ve not, immunity yoked together with. unbelievers: For what
rellowshin hath righteousness with. unrighteonsness?" Therefore, we
ee
come to anneal to von that. provision be made for the, conscience
of I. sincere believer in the Lord Jesus Christ.
wonld like to stress the nersonal disadvantages of a union short.
ere are menv nereons with whom T walk in fellowship who would
be a ffeeted f union shops were introduced. into the Federal Govern-
i' with 110 provision for conscience,.
On the basis of having a. mire, conscience before. God, we, would not
able to joie) or financially snpport the union. Many of the persons
1):1?? been -workinrr for the Government. for many years and would
hare to suffer the loss of their jobs. Quite ft 10t of our brethren. not
in *he Federal Government., have, lost their iohs or been put to some
other type of disadvantage, because. they would not join the union.
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I, myself, work for the Social Security Administration, and I have
tried to do my job as best I can. I have worked there for 6 years. Many
times I was asked to join the union, but I have refused on the basis
of the divine principle of an unequal, or diverse, yoke.
Whereas I appreciate what trade unions have done in employee-
management relationships, I cannot forget what is said in Second
Timothy, chapter 2, verse 19: "The foundation of God standeth sure,
haying this seal. The Lord knoweth them that are His. And, let every-
one that nameth the name of Christ depart from iniquity."
I hope this Government under God which passed the Equal Em-
ployment Act of 1972, making it unlawful to discriminate against any
employees because of religion, will provide for the conscience of my
fellow believers; for without this provision, as I said before, we will
lose our jobs.
Provision was made for Daniel in the old Testament Scriptures by
King Nebuchadnezzar. Daniel and his friends w' ould not eat of the
king's food or bow to his image of gold. The king said, "Blessed be the
God of Shadrach, Meshitch and AUdnego, who hath sent his angel,
and delivered his servants that trusted in him, and have changed the
king's word, and yielded their bodies, that they might not serve nor
worship any god, except. their own god." Daniel 3 :28.
Provision l'sias been made in other countries such as Australia, New
Zealand and Manitoba, Canada. We have references to these provi-
sions in our little package which we present to you.
In conclusion, we believe that section 7108 of H.R. 10700 provides
protection that we need, although we prefer specific protection for
conscience as in the S. 3203 amendment to National Labor Relations
Act that was passed by the Senate and the House and is on the Presi-
dent's desk for signature.
I would like to add that in my stand in not belonging to unions, or
contributing to their funds, we would be willing that some like amount
of money be contributed to a nonunion charitable organization.
Thank you, gentlemen.
Mr. WALKER. Thank you.
Mr. Henderson, just one or two more comments and we will be
through.
As we all know, the Pilgrim Fathers and others that came to this
country in the early days were seeking religious freedom. We do pray,
as our brethren here have said, that this Government under God may
protect that religious freedom so vital to not only ourselves but for
? other believers as well.
As a personal touch, my son is up in Camp Drum on 2 weeks' Re-
serve training. He was in the Army, like Bob here., like myself, and
very thankful to have his conscience respected in military duty.
Many of our brethren were in the front lines of Europe and over in
the Far East during World War IT, helping save the lives of others
as medics. Some were injured. We do not want to shirk our duty. We
would like to have this simple matter of our conscience protected.
It seems that the Taft-Hartley law as it now stands is really
putting an employer, potentially, in conflict with the Equal Employ-
ment Opportunity Act. It appears to us that an employer with a
union shop agreement may be forced to discriminate against an
employee on ground of religion because of this conscience matter.
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One more thing as to Manitoba., Canada, that jack referred to.
It was 2 years ago that a strong labor government listened to the
testimony of our brethren in Winnipeg. They put through legislation
which provides expressly for exemption from membership and paying
dues provided the equivalent of union dues h paid to a mutually agree-
able cliaritahle organization.
TI tan k you. very in
Mr. IIENtmarsoN. Well, can you give us an estimate of how many of
your members are federally employed ? .
M r. WAnictiR. There, are not too many. To be fair, in answering the
question, if we Iviu.c to include postal employees?I think your com-
mittee is not directly concerned with that, but it would have a bearing
on it, perhaps. I would say three or four dmen across the country.
Mr. ITENrinarsox. Including postal ?
Ain WALKER. Right.
Mr. ITENonirsoic. Do you have any questions, Mr. Taylor?
Mr. TAYLOR. I believe not.
Thank you, sir.
Mr. HENDERSON. On behalf of the subcommittee, I want to thank
you and your colleagues for your appearanee this morning. I think
your testimony is clear and concise. We understand what you would
like to see in the legislation. I feel sure we will make every effort to
protect the right that you have referred to.
Thank you very much.
Mr. WALKER. We appreciate that.
May God bless the members of this subcommittee. :
Mr. ITENnEirsoN. Our next witness is Mr. Reed Larson.
STATEMENT OF REED LARSON, NATIONAL RIGHT TO WORK
COMMITTEE, ACCOMPANIED BY RAYMOND LOSORNIG
Mr. HENDERSON. It is a pleasure to -welcome you here this morning,
Mr. Larson.
Mr. LAlisoN. Mr. Henderson, I am very glad to be here. We appreci-
ate the opportunity to present our views on this question involving the
rights of Federal employees versus the privileges of union organizers.
Mr. Raymond Losornio is with me. Mr. Losornio is chairman of our
board of directors. I have a brief inductory statement and will give
you a chance to hear from Mr. Losornio then_
Mr. ITENnERsorsr. I welcome both of yea.
Mr. Lmrsory, Thank you.
Mr. Chairman, members of the subcommittee, T am Reed Larson,
executive vice president of the National Right to Work Committee.
Ours is a. single-purpose citizens organization dedicated solely to
the, idea that no individual should be, required to buy his right to earn
a living from any private, organization.
Two of the three bills before this committee. TLR.. 1:1 and H.R. 9784
fl re based on the concept that the public interest is best served through
Government, policies which foster and promote coercive and militant
trade .uni on ism among Federal. employees.'
This irntipublic, antiemployee, bias is revealed in the provision, which
would authorize or even mandate the compulsory payment of fees by
public employees to union organizations Whose services they do not
want and whose policies they feed to be inimical to the public interest.
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These two bills propose that the Government abdicate its responsi-
bility to employees and to the taxpaying public by relinquishing
sovereign governmental power, notably the power to tax, to a private
organization. By embracing compulsory unionism, these bills are
designed expressly to further enhance the special privileges of union
organizations at the expense of 'rights and freedoms of Federal employ-
ees and to the detriment of the taxpaying public. ?
(ertainly, the Federal Government has an overriding responsi-
bility to treat its employees fairly. It is commendable?and indeed
essential?in our opinion, that this committee should be devoting
careful consideration to the subject of employee-employer relations.
However, establishing independent private organizations and giving
them the power to levy taxes on Federal Government employees is not
a responsible basis on which to deal with this matter. Rather, the
problems of employee relations should be met head on through en-
lightened public policy in which the rights of each Government
employee and the taxpaying public are paramount.
We commend you, Congressman Henderson, for including in your
proposal, H.R. 10700, language which will preserve for all Federal
employees their full freedom to choose whether or not to support any
employee association. In preserving the employee's freedom of choice,
the Federal Government is following a? sound and unassailable course.
That example is now emulated by a substantial majority of the 50
States.
To date, 33 States have adopted prohibitions against compulsory
unionism in their public sectors. These include 1.6 States which have
not yet enacted right to work laws applicable to private sector
employees.
I would like to comment on the statement of the previous witness,
who has put in very clear perspective one of the vital questions of
employee rights. In connection with his mention of the Postal Service,
I would like to remind him and the record, that postal employees are
protected in their right to work without being compelled to support
a union because of the amendment to the postal reorganization bill,
which was spearheaded by the chairman of this subcommittee.
I think that is a very, very important victory for the rights of in-
dividuals and one we need to keep in mind, keep before us, as this
continuing subject of Federal employee rights is being considered.
Each one in the parade of union professionals before this committee
who has demanded compulsory dues payments from Federal workers
has based his plea on a totally spurious complaint.
Union spokesmen deceptively claim that nondues paying employees
are "free riders," asking you to compel hundreds of thousands of Fed-
eral employees to pay money to unions whose representation they do
not want.
What these professional unionists do not tell you is that the "free
rider" complaint is a red herring of their own creation. They dreamed
it up strictly to line their own pockets with the hard-earned dollars
of Federal employees who believe that union action is doing them
more harm than good.
The logical solution to this union-contrived "free rider" argument
is not at all difficult?and it will enhance rather than erode, the con-
stitutional rights of Federal workers. All Congress needs to do is
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376
simply to provide that union officials will represent only those employ-
ees who want to be, represented by the union. Our committee has long
been on record in support of this solution to the "free rider" use. The
deafening silence of union officials in response to this proposal or this
offer of ours is convincing evidence of their insincerity when they com-
plain about "free riders."
Again I want to commend Congressman ffenderson for taking
significant inkiative toward solving the "free rider" problem by in-
cluding in your bill a provision that would relieve union .officials of
what they contend is the "burden" of processing grievances for non-
dues paying employees. The reaction of professional unionists to this
eminently fair proposal again discloses their duplicity. They want
the monopoly status of exclusive representation. With this extraor-
dinary privilege, they then attempt to justify their demands for taxing
employees who do not believe that their interests are served by the
union.
I want to go on record at this time renewing our willingness to
support any union offi-tial who sincerely wants to solve the "free rider"
problem by assisting him in obtaining legislation which will eliminate
the requirement of exclusive representation.
It is now my privilege to introc:Ince Ramon 1 Losornio, chairman of
the board of the National Right to Work Committee.
STATEMENT OF RAYMOND LOSORNIO, CHAIRMAN OF THE BOARD
OF THE NATIONAL RIGHT TO WORK COMMITTEE
Mr. LOSORNIO. Chairman Henderson and members of the subcom-
mittee, thank you for the opportunity to appear here today to present
our views on the subject of employee-manavement relations in the
Federal service.
am Raymond Losornio, chairman of. the board of directors of the
National Right to Work Committee. I have ',teen a public employee
for 33 years, a voluntary union member for 2 of those. years and I
am a former president of my local.
We believe that every working man and woman, in both the public
and private sectors, siiord d have a guaranteed right to form, join or
assist an employee association if they choose, to do so. We believe just
as firmly, however, that every employee should be guaranteed his riglit
to refrain from joining or assisting such a group?that every employee
should be protected against being compelled to pay dues to any private
organization as a condition of earning a, living. Former Supreme Court
Justice Louis Brandeis once observed that "the ideal condition for a
un ion is to be strong and stable. and yet have in .he trade outside its own
ranks an appreciable number of men who are nonunionists. Such a
nucleus of unorganized labor will cheek opp:7ession by the union as
the union cheeks oppression by the employer." We subscribe to Justice
Brandeis' wisdom. We heartily endorse the right to work protections
provided by seetion 7108(c) and 7109 of H.R. 1)700.
Compulsory unionism in private ern ploymnit is had enough, and
its -harmful effects are widely recognized. But compulsory unionism
i it Government is unthinkable. When an American decides to follow
a career in the Federal Government, for example, his career should
not depend upon whether or not he joins a labor union. Merit is the
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fundamental concept behind our civil service system. That merit
system would be compromised and ultimately destroyed if compulsory
unionism were ever permitted to become a part of our civil service.
The freedom of choice for Federal employees to support or not to
support unions has been defended throughout our national history
by many of our most respected leaders of Government, from President
Theodore Roosevelt to the current incumbent. President Kennedy
made freedom of choice a matter of clear-cut national policy when
he said, in his own famous statement of principle as a part of Execu-
tive Order 10988, "Employees of the Federal Government shall have,
and shall be protected in the exercise of, the right, freely and without
fear of penalty or reprisal to form, join and assist any employee
organization or to refrain from such activity." This principle has
been reaffirmed by President Johnson and President Nixon, and is now
embodied in Executive Order 11491 as amended.
President Kennedy's Secretary of Labor in 1962, Mr. Arthur Gold-
berg, said: "I know you will agree with me that the union shop and
the closed shop are inappropriate to the Federal Government. And
because of this,
there is a larger responsibility for enlightenment on
the part of the Government union. In your own organization you have
to win acceptance by your own conduct, your own action, your own
wisdom and your own responsibility and your own achievements. And
let me say to you from my experience representing the trade union
movement that this is not a handicap necessarily * * *. Very often
the union that has won the union shop will frankly admit that people
who come in through that route do not always participate in the same
knowing way as do people who come in through the method of educa-
tion and voluntarism. So you have an opportunity to bring into your
organization people who come in because they want to come in and
who will participate, therefore, in the full activity of your
organization."
Justice Charles Evans Hughes declared the right to work to be
a plain and self-evident principle of American constitutional law
when he said nearly 60 years ago, "It requires no argument to show
that the right to work for a living in the common occupations of the
community is of the very essence of the personal freedom and oppor-
tunity that it was the purpose of the amendment to secure." The
amendment of which he spoke, as you know, was the 14th amendment
to the Constitution.
Now under consideration are two proposals for legislative action
which would scrap freedom of choice in favor of a revolutionary,
radical, and highly controversial policy of compulsion.
Both TT.R. 13 and 11.11. 9784 are seriously defective in that they pro-
pose a fundamental departure from longstanding Federal policy by
opening the door to compulsory agency shops in the Federal service.
Compulsory unionism?compelling employees to pay money to a un-
ion or be fired?is based on the false premise that union representation
is always beneficial to all employees. In truth, the agency shop. which
is nothing more than an arrangement in which employees are required
within a certain time limit to 'pay up or get out," is a startling con-
fession by union bosses that the union is so unattractive it requires
coercion in order to get and keep members.
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We know of no demand from Federal employees themselves to do
away with the guarantee of their freedom to -work at their jobs without
being compelled to join or support in any way a labor union. We
do know that a handful of union officials avidly seek new special
privileges to help them impose their will oh Federal employees and
on the public.
In any legislation dealing with labor-management relations in the
Government service, priority consideration has got to be given to
protecting the interests of the responsible, dedicated employee, the
taxpaying public which provides and pays fcr the jobs, and all citizens
in general. The compulsory unionism which would be mandated by
I [R. 13 and H.B. 9784 could benefit no one except salaried union offi-
cials and those "union favored" candidates for public office who receive
campaign support from union treasuries. Approval of this kind of
proposal for compulsory unionism would serve only the narrow in-
terests of union officials and entrench them further at the expense
of the rights and freedoms of millions of Federal employees, tax-
payers, and citizens. . i
Mr. Chairman, there is clear proof that this is plainly contrary to
the convictions of an overwhelming majority of the American people.
A nationwide survey of public attitudes in. this regard, completed
just 2 months ago by Opinion Research Corp., shows that 70
percent of the total U.S. public think that there is already too much
!lower concentrated in the hands of officials of unions in this country.
Furthermore, two out of three American voters favor a working
arrangement wherein a person can hold a job whether or not he belongs
to a union. I have prepared a summary of the survey findings which
I ask to be included in the written record.
'Ile wishes of a majority of Americans have been expressed also by
many of our country's outstanding leaders and reflectors of public
opinion. Because of time limitations, I have not included examples of
these expressions in my statement, but I will Oe happy to provide them
for t he record if you wish.
Previous witnesses have urged you to place the power of the Federal
Government on the side of union organizers and against the Govern-
ient employee, as an individual.
Mr. Clyde Webber in his statement to this subcommittee on June 5,
(la imed for :himself and for his union, the American Federation of
Government Employees?a private organization?a stature and status
equal to that of the U.S. House of Representatives. Under no circum-
stances in our system of government can any private organization, such
as a labor union, be granted responsibilities and obligations reserved
for soverign governments alone. Mr. Webber's equating his or any
other private organization to any agency of any sovereign government
cannot go unchallenged.
The spokesman for the AFL?CIO, in his e! une 5 testimony, tried to
justify the union shop, or "agency shop" as "basically a means through
vhich the union can bring about in the mind_3 of the employees it rep-
resents a recognition that the gains they achieve through collective bar-
!ui ining are the result of the union's work o:h their behalf."
This ridiculous statement infers that an employee lacks the intelli-
!,ence and foresight to determine for himself -whether or not the activi-
ties of the union are beneficial. The truth of the matter is that the
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average employee in the private sector and possibly even more so, those
in the public sector, have the intelligence and reasoning ability to decide
whether or not a union is truly beneficial to them. The choice for
membership or nonmembership should be predicated on the voluntary
desires of the employee based on his personal assessment of the union's
worthiness.
This really is the same argument which was written to the editor of
the Chicago Daily News by a union professional in 1963. He
wrote: ". . . = why then do many wage-earners hesitate about joining
a union? Because they hear a lot about unions being 'communistic' and
because the average wage earner (alas) is often like a child, a child
who does not know where its best interests lie. Just as a mother often
forces her child to swallow the medicine it needs to make it strong,
so a good labor leader must often force laborers to join a union for their
own good. If the average man looking for a job lacks the education, or
intelligence, to join a union, he must be forced, if necessary, to do so."
The truth is that Federal employees do have "education or intelli-
gence" in sufficient degree to permit them to decide voluntarily that a
union may be (1) useless, ineffective, or even detrimental in represent-
ing their interests; (2) promoting causes and ideologies with which
they disagree; or (3) supporting politicians whom they oppose. Conse-
quently, they do not wish to join or support such an organization.
What these proponents of compulsion argue, in effect, is that the
agency shop is a compromise between full freedom of choice and com-
pelled membership in their private organizations. This argument has
been discredited by supreme courts of several States. The North Da-
kota court, for example, has just ruled that an "agency shop" provision
"imposes the equivalent of compulsory membership in such labor or-
ganizations as a condition of continued employment. "
Insulation of the public employee from partisan political activities
is one of the cardinal principles of sound personnel management re-
lations in government. Sacrificing this principle would result in Fed-
eral employees being bludgeoned into supporting political candidates
whom they would not otherwise support. This is precisely what hap-
pens when they are told they must pay money to a union boss or be
fired.
Such compulsory union shop contracts covering Federal employees
can become the most reprehensible form of "sweetheart agreements."
This is, as you know, the term which describes private sector union
contracts written for the benefit of the union boss and the management
boss at the expense of the employee. With Federal employee unions,
this easily becomes a deal in which the incumbent officeholders obtain
union campaign support in exchange for forcing all employees to fork
over dues to union treasuries.
The record of political involvement by labor unions over the years is
clear and unchallenged. I have some examples of this involvement
covering several years to illustrate this point. Again, because it would
entail too much time to read them, I ask that they be included also in
the written report of these hearings.
The need for ironclad protection against compulsory unionism is
further underscored by the fact that, under present policy, civil service
protection against political pressure on Federal employees has already
been seriously eroded. The unique privilege of exclusive representation
34-019 0-74 25
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has already been granted to certain labor organizations which engage
actively in politics. This arrangement, as you know, is sometimes called
exclusive bargaining rights, and provides that if 50 percent plus one
of the employees in a unit designate a particular union as their bar-
gaining agent, all the remaining employees--as many as 50 percent
minus one--lose their sight to bargain for themselves or through an-
other agent 07: their choice. They are compelled, in fact, to accept as
their agent a private, organization they do not want.
In this regard, the Executive order is defective. In granting this
extraordinary privilege of monopoly bargaining power, the Execu-
tive order has forced responsible associations of public employees to be-
4tome militant trade unions in order to survive. A case in point involves
r y own union, the National Federation of 7ederal Employees. Dr.
Nathan T. Wolkomir, president of NFFE, told the Republican Plat-
form Committee in 1968 : " * * we do very sTongly affirm that those
who seek to deny Federal employees freedom .)f choice by a hardfrted
game of freezeout should be given no encouragement." But the fact re-
mains, unless Dr. Wolkomir and NFFE are designated exclusive repre-
sentatives in a given bargaining unit, they atnnot repreent the 59
percent minus one who are NFFE members. The NFFE reaction is
predictable?:.t has become a militant proponent of compulsory union-
ism. Dr. Wolkomir, in a tragic about-face, endorsed the agency shop
concept proposed by legislation you are now considering.
vigorously protested this shift in policy in a letter to Dr. Wolko-
mir. I would like to read a brief excerpt from that letter, and ask that
the full text be made a part of the written record of this proceeding.
wrote:I. "The forcible collection of 'agency shop' blackmail from Fed-
eral workers on the basis of the `representaticn fee elections' you pro-
pose would be a perversion of the majority rule principle. Granting
absolute power to a majority of employees inevitably leads to tyran-
nical acts by their leaders." Thank goodness I am free to resign, if I so
choose, from my union because of this policy- with which I disagree,
without any fear of intimidation or discrimination. If the Brasco
on Ford bills become the Federal standard for Federal employee-
management relations, however, I could resign and refuse to support
this policy only if I were prepared to give up the job I have held for
33 years.
A Federal Government employee loses a vital part of his political
independence when he is forced, in order to deal with his employer, to
be represented by a political organim tion posing as a labor union.
A. Jerry Wur f of AFSCME recently bragged to Time magazine, "We
were afraid to politicize the union, and we .;4:it nowhere, so now,
we
are political as hell." To have any part at all in formulating the policy
for that exclusive representative?which may be political as hell?
which has been forced on him, he is compelled to join and pay dues
on the union's own terms. In many Government employee unions, those
terms include the organization's endorsement of candidates; the use
of union staff personnel, publications, and other resources in political
campaigns; and promotion of a wide range of ideological objectives
with which the Government employee may disagree.
Even casual research will disclose dozens ar examples of this sort
of union activity. According to the July 1 edition of the Washington
Star-News, for one recent example. The National Education As-
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sociation is planning a 84 million political offensive this year to sup-
port its friends and defeat its enemies in Congress and state offices."
Section 3, clause II of the Civil Service Act reads as follows: "Fifth,
that no person in the public service is for that reason under any
obligations to contribute to any political fund or to render any politi-
cal service, and that he will not be removed or otherwise prejudiced
for doing so."
That protection would be wiped out by enactment of H.R. 13 and
H.R. 9784 as presently written. Forcing a Government employee to
kick funds into union treasuries which would be used for political
and ideological causes is an outright repudiation of the very founda-
tion of the civil service system.
Mr. Chairmnn. r,crobers of the (mbcommittee, we urge you to reject
H.R. 13 and H.R. 9784 and any other bills which destroy or erode
in any manner the present policy banning all forms of compulsory
unionism in the Federal service.
We urge you to include in any bill approved by this subcommittee
the language now provided in section 7108(c) of H.R. 10700:
"Nothing in any agreement under this subchapter shall require an
employee to become or to remain a member of a labor organization, or
to pay money to the organization, except pursuant to a voluntary,
written authorization by a member."
Mr. Chairman, subcommittee members, this concludes my state-
ment. I thank you.
Mr. HENDERSON. The items which you mentioned in your statement
will be placed in the record at this point.
[The material referred to follows:]
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1974 OPINION RESEARCH CORPORATION "CARAVAN SURVEY"
Summari of Rntlings
Question: Do you think there is or is not too much power concentrated it the hands of labor leaders of the big
unions in this countryi
Total
U.S. Public
Union
Members
Union
Households
Men
Women
Clerical
Sales
Craftsmen
Foremen
Other Manual
Service
Prole/-
stone!
Yes, There Is
700/,,
60%
61%
71%
70%
78%
700/,,
64%
76%
No, Is Not
19%
34%
31%
21%
16%
15%
22%
25%
17%
No Opinion
11%
6%
8%
8%
14%
7%
8%
11%
7%
Question: In some places in order to hold a job you have to belong to t))e union and pay dues. Do you think
union officials should be permitted to use this dues money to campaign for political candidates, or should this
be forbidden?
Should Be Permitted
12%
17%
15%
14%
10%
13%
11%
14%
17%
Should Be Forbidden
79%
78%
79%
79%
. 79%
83%
85%
74%
79%
No Opinion
9%
5%
6%
7%
11%
4%
4%
12%
4%
Question: Which of these arrangements do you favor for workers in industry: 1) A man can hold a job whether
or not he belongs to a union; 2) A man can get a job if he doesn't alrez dy belong, but has to join after he is
hired; 3) A man can get a job only if he already belongs to a union; 4) No Opinion.
1,
68%
43%
49%
67%
69%
68%
69%
61%
76%
2,
24%
48%
42%
26%
22%
25%
25%
31%
19%
3.
30/ .
6%
6%
4%
3%
1%
3%
4%
3%
5%
3%
3%
3%
6%
6%
3%
4%
2%
Question: Some stater have passed Right to Work laws which provide thit a worker cannot be discharged from
his job for either joining or not joining a union. If you were asked to vote on ,such a law, would you vote for or
against it?
Would Vote For ,
69%
60%
61%
68%
70%
76%
67%
63%
85%
Would Vote Against
20%
31%
30%
23%
18%
17%
26%
23%
10%
No Opinion
11%
9%
9%
9%
12%
7%
7%
14%
5%
Question: The Right to Work laws we have been talking about are perniitted under Section 14(b) of thie Taft-
Hartley Act, If Congress keeps Section 14(b) of the Talt-Hartley a,CI it mear s that states can continue to have Right
In Work laws if they want. If Congress repeals Section 14(b) of the Taft-Hartley Act, it means that states cannot
have Right to Work laws Which do you think the Congress should do?
Keep Section 14(b) ?
74%
69%
74%
73%
75%
84%
78%
71%
83%
Repeal Section 14(b)
11%
21%
15% ?
14%
8%
8%
11%
11%
10%
No Opinion
15%
10%
11%
13%
17%
8%
11%
18%
7%
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POLITICAL INVOLVEMENT BY LABOR UNIONS
1. An attorney representing the UAW told the U.S. Supreme Court
in 1956: "The only funds available to the union are those that come from dues,
for the purpose of buying radio time, television time, and newspaper advertising.
The small amount that has been collected as voluntary dollars has all gone as
very small contributions to the candidates . . . . When he (a union member)
pays his dues, he has paid for his political action."
2. After a thorough examination of the compulsory union shop as it
already operates in private industry under sanction of an Act of Congress,
Justice Hugo Black wrote in 1961: "The stark fact is that this Act of Congress
(giving federal sanction to compulsory unionism) is being used as a means to
exact money from these employees to help get votes to win elections for Parties
and candidates and to support doctrines which they are against."
3. On October 2, 1968, the Wall Street Journal described the AFL-CIO's
use of hundreds of paid union staffers to aid Mr. Humphrey's campaign as "a
move that is, at best, in the gray area of legality."
4. Authoritative labor columnist Victor Riesel reported on November 11,
1968: "America's labor leaders poured out well over $60 million for Hubert H.
Humphrey."
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384
5. Unions undertake voter registration functi3ns on a highly partisan
basis. In many respects they have entirely taken ovtr this function for one
the two major political parties. Al Barkan, Director of AFL-CIO COPE,
in describing organized labor's role in the 1968 elections, stated, "In many
tates labor did the registration job for Humphrey single handedly; the
Democratic party had abandoned the field." (Barkan, Issues in Industrial
society, Vol. 1, No. 2, Cornell University School of Industrial Relations).
A total of 72, 225 union staff personnel were involved in unions'
get-out-the-vote effort in 1968, according to Mr. Barkan. As he states, "In
many states, a house-to-house canvass was conducted as part of our get-out-
the-vote drive."
6. The following opinion was issued in 1970 by the U.S. Court of
Appeals for the Ninth Circuit:
"The diversion of the employees' money from use for the purposes
for which it was exacted damages them doubly. Its utilization to
support candidates and causes the plaintiffs oppose renders them
captive to the ideas, associations and causes espoused by others.
At the same time it depletes their own funds and resources to the
extent of the expropriation and renders them linable by these amounts
to express their own convictions, their own iceas and support their
own causes." (Sea_y et al v. McDonnell-Douglas et al, 427 F. 2d 990)
7. The following statement was made in April 1971 by Local 558's
Recording Secretary, Bernard McNamara, who joined other union members in a
lawsuit against UAW officials: "The members of (UAW) Local 558 are sick
and tired of seeing their dues money spent on political candidates and various
leftwing causes which we oppose ... in the canoe of our local, it has been done
contrary to an express resolution adopted by an overwhelming majority of the
membership. "
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8. The formation of a "committee on political education" to support
"candidates favorable to the union" was approved by the United Federation
of Teachers (AFL-CIO) in New York in May 1971. It resolved "to raise %million
both through voluntary contributions and dues, according to a New York Daily
News article.
9. Delegates attending the 19 71 Teamsters Union convention in Miami
Beach last Silly authorized the union's general president "to make expenditures
from the general fund in amounts to be determined by him in his sole discretion
for lobbying and other political purposes, including contributions to candidates
for state, provincial and local office."
10. AFL-CIO Secretary-Treasurer Lane Kirkland, while addressing
the Amalgamated Transit Union convention in Las Vegas, Nevada, on
September 28, 1971, exploded the myth that union political activities are merely
"aimed at union members and their families." While vigorously attacking
President Nixon, he said: "Over the next 13 months labor and its political
arm -- COPE -- has a great deal of work to do. We have to carry our message
to every American eligible to vote, and we have to make sure that they
understand what America's choices really are. And we have to make sure that
every voter we can reach is registered, and that they go to the polls.
11. In the March 10, 19 72 newsletter, "The Local Line, " published by
the New York Public Library Guild, Local 1930, had this to say: "Agency
shop is a necessary element in this bargaining. But unions need funds for more
than mere job bargaining; they need them to further the needs of the working
man in general and for political power."
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12. In the October 30, 1972 issue of "Industry Week, "it was estimated
that COPE's total payroll was approximately 125 full-time employees. According
to "Industry Week," "COPE's operating expenses are funded directly from
union treasuries, which are sustained by members' dues. Union treasury
money also finances COPE's educational activities such as registration drives,
get-out-the-vote campaigns, and printing of voting records of legislators. "
13. Catherine Barrett, president of the National Education Association,
campaigned on a promise to get a day's pay from ever, teacher in the nation
for "political action." Her goal: "With upwards of $5) million in a campaign
war chest, teachers will be the most effective politica power brokers in this
nation."
14. United Auto Workers Administrative Letter, Vol. 24, No. 9,
August 2, 1972 announced that the union will rebate, on request, union dues
spent for partisan political purposes. The rebate amo int will be $3. 68 per
member per year. That amounts to roughly $5, 000, 000 in dues money for
one union, as compared with less than $900,000 in "vo untary expenditures
reported by that same union to the Clerk of the House in 1972.
15. In its Report to the Tenth Convention, October 18, 1973, the AFL-CIO
Executive Council boasts: "By any standard of rneasur ament, the COPE
program in 1972 exceeded any previous year -- more vplunteer manpower and
womanpower and more full--time staff assigned by international unions; increased
funding; more effective and better organized registration and get-out-the-vote
campaigns; im_proved_precinct-level oryonization."
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A COALITION OF EMPLOYEES AND EMPLOYERS
NATIONAL RIGHT TO WORK COMMITTEE
1990 N STREET, N. W.
June 25, 1974
WASHINGTON, D. C. 20036 ? TELEPHONE, 296-0720?AREA CODE 202
Dr. Nathan Wolkomir, President
National Federation of Federal Employees
1737 H Street, N.W.
Washington, D. C. 20006
Dear Dr. Wolkomir:
lam, as you know, a voluntary, dues-paying member of the National
Federation of Federal Employees and a former president of NFFE Local 386.
For the past 20 years, while other unions worshipped at the altar of compulsion,
I have proudly identified myself as a member of a union which has consistently
supported full freedom of choice for all federal workers.
It is my understanding that NFFE policy opposes all forms of compulsory
unionism, including any arrangement which compels non-members to remit
"agency shop" fees to a collective bargaining agent.
I was stunned to learn that you, while testifying earlier this month on our
union's behalf to a congressional subcommittee, recommended a new law which
would obligate non-union federal employees to pay monthly fees to certified
unions whether or not they feel the unions are doing a good job. Presumably,
employees refusing to submit to this denial of their freedom of choice would be
discharged.
No other interpretation can be made of the remarks on Pages 30 and 31 of your
June 12 statement to the Subcommittee on Manpower and Civil Service of the
House Committee on Post Office and Civil Service.
My files contain a copy of your report to our federation's 1968 convention,
which I attended as a delegate. You stated on that occasion:
"The NFFE, above all else, now provides the career federal
employees with that precious and priceless commodity,
freedom of choice."
. . . . continued
-Americans Must Hare Om Biala But Not Be Compelled a loin Sober Unions"
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7
Dr. Nathan Wolkomir
June 25, 1974
Page 2
You also warned that the AFL-CIO was determined "ti establish a monolithic
and pervasive union in the Federal service -- a union that would be dominated
by outsiders and would have a vise-like grip on the whole employee body at
virtually every level and in every department and age icy. "
You continued. " . . . without the NEFE there literal :y would be no practical,
viable alternative to that monolith whose anncunced ard unvarnished purpose
is to tribute from eve2a.career Federal empk_iyee."
Dr. Wolkomir, has our federation abandoned its historic opposition to wringing
tribute from career federal employees? If not, by what authority did you
embrace the indefenrible "agency shop" ruse'
Your 1968 denunciation of the apostles of compulsion i 3 as valid today as it
was six years ago. I fear the NFFE's days are numbered if it follows the
tragic exaruple of those union officials who are bent or destroying the federal
employee's freedom of choice.
The forcible collection of "agency shop" blackmail from federal workers on
the basis cC the "representation fee elections" you prouosed would be a
perversion of the ma ority rule principle. Granting absolute power to a
majority of employees inevitably leads to tyrannical acts by their leaders.
The U.S. Supreme Court observed 30 years ago that the purpose of our Bill
of Rights in to place rherished individual rights "beyond the reach of majorities."
The Court ruled that 'fundamental rights may not be submitted to vote; they
depend on tue outcome of no election."
Dr. Wolkomir. I appeal to you to withdraw your endornement of the "agency
shop" concept. It is a tool of avaricious union officialn whose primary
concern is gaining personal political power.
Sincerely,
Raymond C. Losornio
Chairman of the Board
RC Lica
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Mr. HENDERSON. Mr. Larson, is the National Right to Work Com-
mittee, a nonreligious, charitable organization, exempt from taxation
under section 501 (c) 3 of the Internal Revenue Code?
Mr. LARSON. Chairman Henderson, the Right to Work Committee
is exempt under 501(c) 4 of the Internal Revenue Code.
It is the category, I believe, referred to as social welfare organiza-
tions or action organizations by Internal Revenue.
Mr. HENDERSON. Well, would a provision such as has been adopted
in the hospital bill referred to earlier, that sums equal to such dues or
initiation fees be paid to nonreligious, charitable organizations,
exempt from taxation under section 501 (c) without designating sub-
section 3, do you imagine that there would be any possibility of your
committee being designated as one to receive those in lieu of dues?
Mr. LARSON. I think it is a safe assumption that the union negotiator
would never agree to put us on the approved list.
The thing they want most is compulsory unionism. That is the,
thing we are against. We are just at an impasse.
Mr. HENDERSON. IS it fair to say that you believe that a Federal
employee ought to have a right to do what he wants to do with his
money, he ought to be able to pay it to the Right to Work Committee
if he chooses to join and support it?
Mr. LARSON. I certainly think that is correct. Many Federal em-
ployees do believe strongly, just as our chairman does, in the principle
of freedom of choice and they support the committee for that reason
Mr. HENDERSON. Thank you both for your statements this morning?
I think they were very succinct and they put the issue well in focus.
The gentleman from Missouri?
Mr. TAYLOR. Thank you.
Mr. Larson, would you please give us a little more background and
information about the National Right to Work Committee? Who
does it include and approximately how many members do you have?
Mr. LARSON. Well, the National Right to Work Committee is a non-
profit organization, incorporated in the District of Columbia and
exempt, as a social welfare organization, under 501(c) 4.
It is governed by a board of directors made up of a cross section of
citizens. A number of members of our board, like our chairman, are
union members or former union members. We have several employers,
housewives, professional people. The governing body is a represenative
cross section of the American scene. Our support comes in the form of
voluntary contributions from a broad base of small contributors rep..
resenting all kinds of interests, small businessmen, individual citizens,
professional people, some union members, and many rank and file
working people.
Mr. TAYLOR. How many States have a right-to-work law, Mr. Lar-
son, at the present time?
11,ir. LARSON. There are 19 States which have laws that prohibit
compulsory unionism in private employment.
There are, I believe I indicated, 33 States that have State laws or
constitutional provisions prohibiting compulsory unionism in State and
local government.
That number, I might point out, was increased just in the last couple
of months when Louisiana adopted a new State constitution that in-
cluded a right-to-work provision for its public employees, except
schoolteachers.
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39
For some reason that did not include schoolteachers. The legislature
is in the process right now of passing legislation?it has passed one
house and has nearly passed the second house?which will protect
freedom of choice for schoolteachers in Louisiana.
Mr. TAYLOR. Thank you.
Mr. Larson, are you in agreement with the concept that an em-
ployee in lieu of joining a union would make i contribution to a non-
charitable, or nonreligious charity?
Do you feel that this is in keeping with freecbm of choice?
It seems to me that it is almost as arbitrary as maybe making them
pay the union dues.
It is the carrot and the stick approach, it would appear to me.
Are you in agreement with this particular concept ?
Mr. LARSON. We have never taken an active role
Mr. TAYLOR. It is a denial of freedom, too, is it not?
Mr. LARSON. It is. We have never had occasion to go on public
record on this question. We do not quarrel with it on the basis of those
who found it was an adequate avenue of relief for the problem of
religious conscience, but I could say that I agree with you and I do
completely, that it is an unjustifiable infringement on freedom of
choice, and also the agreement to anything like this, by a union official,
is again a repudiation of the "free rider" concept.
They justify this compulsory dues payment on the basis that workers
are supposed to be paying the union for some services, services that
those people do not want, admittedly.
If the "free rider" is such a problem for these union officials, then
they have not solved their free rider problem by compelling an in-
dividual to pay money to some other private organization. It is, in
effect, a penalty for his refusal to support a union that he does not
want, a union that has been imposed on him and whose principles are
in violation of his own conscience.
We certainly do not consider it a satisfactory solution to the problem
of compulsory unionism, but we respect the people who have worked
this out and who feel that it is, an adequate solaion to their particular
problem of conscience.
As far as we are concerned, it is not an ,adequate solution. It is an
admission by union officials that they will penalize an employee be-
cause he will not pay money to a union that is nnt acting in his interest.
Mr. TAYLOR. Thank you.
Thank you, Mr. Chairman.
Mr. HENDERSON. Mr. Larson, I obtained consent for insertion into
the record of the 1974 res-airch opinion survey to be inserted into the
record as per your reouest. I beliPVB Olaf; you recently had an announce-
ment of this survey and I rant to request that you provide the staff
of the committee, for possible inclusion into the record, more back-
ground infermatio-e on fbe Opinion Research Corp., when the survey
was conducted., and as much of the methodology and so on, in support
of the. summary findinu-s.
Do you recall that flee survey,, or this same information, was widely
publicized in newspaper advertisements by your committee?
Mr. LARSON. Yes. Mr. Chairman, the summary was publicized. In
answer to your question, we are del i 9:htedt to have the opportunity, and
we will provide all the members of the subcommittee with a complete
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copy of the entire study, including the explanation of the statistical
basis on which the samples were selected and how the interviews were
conducted.
This is all included in a comprehensive report which we will be
more than pleased to provide to the committee.
Mr. HENDERSON. I think, without objection, I would ask that our
staff have the authority not only to receive that information from you
but to select and prepare it for insertion into the record. The summary
findings that you have presented are quite comprehensive, and I think
it should be supported by such information as you might supply us.
Mr. LARSON. We appreciate the opportunity to do that.
Mr. HENDERSON. May I thank both of you for a fine presentation
this morning.
I appreciate the cooperation that you have rendered to our staff in
the preparation of your appearance this morning. It has been quite
helpful.
Mr. LARSON. Thank you very much, Mr. Chairman, and Congress-
man Taylor.
[See p. 501 for the document referred to.]
Mr. HENDERSON. Thank you sir.
Our next witness is James D. Hill, executive director of the National
Federation of Professional Organizations.
Mr. Mil has with him a large number of witnesses. Mr. Hill, you and
all of the witnesses may come forward to the witness table.
Mr. HILL. Mr. Chairman, Mr. Kraham tells me he has quite a short
statement. I would be happy to yield to him.
Mr. HENDERSON. We are delighted to arrange that, Mr. Kraham.
STATEMENT OF WILLIAM KRAHAM, NATIONAL ASSOCIATION OF
AIR TRAFFIC SPECIALISTS, ACCOMPANIED BY JOHN ENLOW,
UNION PRESIDENT, AND LAWRENCE CUSHING, VICE PRESIDENT
Mr. KRAHAM. Mr. Chairman, I am William Kraham. I serve as
counsel for the National Association of Air Traffic Specialists. I have
with me on my right our union president, Mr. John Enlow, from Min-
neapolis, and on my left, Lawrence Cushing, vice president, from
Augusta, Maine.
Mr. HENDERSON. Welcome, gentlemen.
Mr. KRAHAM. For a moment, I might mention, Mr. Chairman, that
our association represents over 4,000 employees who operate about
330 flight service stations throughout the Continental United States
and at overseas installations, including a number in Alaska and the
Pacific regions.
The flight service stations, if you will permit me, serve as the opera-
tions offices, if you will, for general aviation. They, in effect, are the
lifeline of general aviation to the extent that perhaps the operations
offices of airlines are for airlines are for airlines throughout the
country.
We appreciate, Mr. Chairman, this opportunity to present our views
on proposed legislation to improve labor management relations in the
Federal service.
The present management of the system in the Federal sector by
executive orders, memoranda, directives, and other administrative fiat
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must give way immediately to laws providing for equitable and effec-
tive labor-management relations. Thee hearings on H.R. 13, H.R. 9784,
and H.R. 10700 represent a major first step toward the ultimate goal
of greater equity in labor-management relations in the Federal sector.
it is unfortunate that there has been an inordinate delay in the estab-
I ishment and implementation, by law, of uniform rules and regulations
for the conduct of labor-management relations. in the Federal sector.
Meaning ml relations and collective bargaining has made in the private
sector.
Additionally, these gains have produced more than an equitable
climate between labor and management. Reasonable approaches in
collective bargaining serve to strengthen our economic system. Collec-
tive bargaining has helped Americans achieve the highest standard of
living in the world. Collective bargaining is democracy at work in the
economic system. Now, without delay, it is time to set forth on a course
leading to a sound and equitable labor-management relations program
in the Federal sector.
Under the present system of labor-management relations by fiat,
Executive Order 11491 provides that the triple entente comprising the
Federal Labor Relations Council, the Departn lent of Labor, and the
Federal Service Impasses Panel shall ride herd over labor-management
relations in the Federal sector. That the Federal Government permits
three separate bodies to issue directives, memorandums, orders, and
rules and regulations governing labor-management relations accounts
largely, we believe, for the current state of alto irs giving rise to these
hearings.
The policy direction and much control of the existing system is
exercised by the Federal Labor Relations Coupcil. The Chairman of
the Civil Service Commission, the Director of the Office of Manage-
ment and Budget, and the Secretary of Labor constitute the council.
All of these gentlemen are competent ir their fields, but it does not
necessarily follow that their membership in FLRC creates an impartial
council.
Executive Order 11491 grants the FLRC extraordinary prerogatives
in wielding its power over labor-management relations. Its members
should be serving on a full-time basis.
I want to make it clear that no individuals are being singled out for
criticism, but we believe and are of the opinion that, perhaps without
intending such at the time of its origin, Executive Order 11491 has, in
fact, created conflicts of interest in the very selection and continuance
in office of current members of the FLRC.
For example. the Director of the Office of Management and Budget
holds the keys to the treasury, and pulls the strings tied to operating
needs of agencies, and he exercises extraordinary control over the hir-
ing of thousands of Federal employees.
is it really possible for him to be impartial ip his role as a member
of the Federal Labor Relations Council ?
The Federal Service Impasses Panel is an impartial body; however,
in 4 years it has considered only a hundred or more cases. Its members,
serve on a part-time basis; although they apparently have met on al-
most a monthly basis. In a recimtly moorted history of the panel
is set forth, in part. the following statement on page 1.
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Acutely aware that the institution of collective bargaining is undergoing
evolutionary development in the federal establishment, the Panel has attempted
to avoid actions which might inhibit the growth of the bargaining process. It
constantly seeks to prevent its services from being used as a substitute for the
parties' own efforts.
The foregoing statement is commendable; however, through no fault
of the panel, meaningful collective bargaining in the Federal sector
is really an illusion. There is no real quid pro quo in labor-management
relations in the Federal Establishment. A review of the record cover-
ing our own contract negotiations and those of other unions demon-
strate clearly that labor relations are managed in all respects by man-
agement of the Federal Government.
In fact, it has been our experience in one situation where we made a
significant win via the grievance route, the contract provision covering
the matter was summarily withdrawn as non-negotiable by FAA/DOT
actually during the course of contract negotiations.
That is like holding a gun at labor's head. It became a matter of
great concern to the union.
I will touch on this deficiency a little later.
? The only "evolutionary development" of labor-management rela-
tions in the Federal establishment referred to above by the impasses
panel is, in our opinion, some limited progress made under Executive
Order 10988 and its successor, Executive Order 11491. These have
indeed been useful to a better understanding of the problems extant
in the labor relations system. However, Executive Order 11491, as
amended, and the very anomalies created by it in the course of recent
experience offer ample evidence of its serious deficiencies.
We want to state at this time that all of the bills under review by
this subcommittee appear to clearly delineate the salient points for our
most serious consideraion, with one exception. With all due respect
to the chairman, we believe it mandatory that the civil service chairman
should neither be a member of any newly created board or authority,
nor cloaked with power of appointment thereto.
Such involvement raises too many questions concerning total, un-
equivocal impartiality, the heart of equitable labor-management re-
lations. Otherwise we support, in principle, most of the major proposals
set forth in all three bills. Therefore, it is our purpose at this time to
set forth a few basic tenents, without support of which, we believe, any
legislation in this area might run the risk of merely attaching a new
label to Executive Order 11491. ?
Our recommendations, therefore, are as follows:
1. Any newly created board or authority must be impartial; un-
equivocally so.
2. The limited right to strike as set forth in H.R. 9784 appears to
afford sufficient safeguards against its abuse. What really amounts to
an "assertion" or "right to call" is appropriate for consideration at
this time.
There appears to be a lot of support for this. We think it is time to
address ourselves to this problem and stop fighting otherwise. We be-
lieve such language should be in the bill considered by the committee.
3. Provision for immediate binding arbitration during contract
negotiations and related proceedings is essential in all cases.
This, of course, done appropriately, would eliminate any threat of
strike.
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1. Management rights must be redefined. Agencies must not be
allowed to deny negotiations and hide under the management rights
cover every time a union wants to discuss basic working conditions,
schedules, overtime, and related in otters.
5. Labor should be equally represented on any newly created board
or authority, and likewise should be equally represented with manage-
ment in any and all matters where the parties are met.
6. In view of the effect of recent decisions requiring unions to repre-
sent all employees in the unit?I might say we have experienced that.
We have no objection to that.
However, the concept proposed for some financial security and sup-
port from all of the members seems to merit ,onsideration. We fully
understand it is a difficult problem. Certainly, when we were chartered
as a union and won exclusive national recognition under the Executive
order, I might say, the first in the United States, we did so with the
clear understanding that this would be the case.
If it is the committee's judgment that it should continue, we will
abide by that. On the other hand, if the committee feels that some
provisions should perhaps be made? and I won't discuss them at
length, there has been a lot of testimony?we would naturally go along
with any such recommendation.
7. During any elections, investigaf ons, :iegotiations, hearings,
grievances, and in related matters, provision should be made for total
official time status for involved union officials and members. Clearly,
this will never exceed the official time used ha management. Unions
ask for as much time as, not more than.
8. In addition to the reference contained in paragraph 4 above, the
subject of matters appropriate for negotiation requires serious study.
It seems to us that the matters considered "conditions of employment"
should be at least as complete as those in both H.R. 9784 and H.R. 13.
9: There must, of course, be language and intent clearly defining
collective bargaining accompanied by language as required to insure
appropriate enforcement. For example, as set forth in H.R. 9784.
In conclusion, we express our thanks tor being permitted to submit
our views concerning the proposed legislation. We are confident that
out of these hearings will come a much broader understanding of the
problem areas now before us. To avoid redundancy following several
other witnesses, we have attempted to set forth only those items we
believe to be of greatest importance, and. additionally, where in some
instances other witnesses may not have given sufficient attention.
Thank you very much. We are ready to answer questions you may
submit.
Mr. HENDERSON. Thank you, sir.
On page 5, in your item 7, relating to officio time, the word griev-
ances used there refers to grievances of the .aegotiating agreement
rather than individual employee grievances, does it not?
Mr. KRATTA7VE Yes, that would be the case. There is provision already
for official time for individual grievances. That might be expanded,
however, in the course of your hearings.
Mr. HENDERSON. Mr. Kraham, would you explain your organiza-
tion's relationship within the FAA organization? We had testimony
from the Professional Air Traffic Controllers Organization. Is there
any overlapping in membership?
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Mr. KRAHAM. I am delighted you asked that question. There is no
overlapping, sir. To this extent there might be considered to be
overlapping.
The air traffic system of the Federal Government, Federal Aviation
Agency, is comprised of GS-2152 series employees comprising con-
trollers in towers, centers, and flight service stations. They are all
equal in that respect.
Over the years, there has been some separation thereby, and the
community of interest among controllers, in centers and towers, obvi-
ously has been such that they sort of separated themselves, as have
flight service, from each other.
The flight service stations operate--personnel, rather, operate all
flight service stations. One of the marked differences, I might point
out right now that the chairman is probably aware of, although we are
subject to the same medical examinations and the same provisions of
the system and the same entrance requirements, our people thus far--
and I don't want to get into another committee?we have been? our
people have been denied, for example, second career training and early
retirement.
However, we are finding as we testified before your committee. I
think, the principal committee, a couple of years ago, the incidence of
medical retirement is higher. 117'e operate for the same employer; but
there's no overlapping, really, of the job in day to day duties.
In fact, when we entered labor hearings 21/2 years ago, I was able,
to win for the flight service personnel, in effect, a separate community
of interest showing we should in fact be a separate unit as opposed to
centers and towers. They likewise have their own union.
So we really, through the use of the facilities of labor at our dis-
posal now, have in fact widened that gap so that we are a separate
entity, a separate union.
They would probably, in other words?there would never be the
chance to merge the three if that serves to explain the difference. I
wouldn't see a chance at this time unless we arrived up the road some-
where and get equal rights and time,
such as second career for our
employees which we are working diligently on right now.
Mr. HENDERSON. Has your organization experienced the same prob-
lem in negotiations with FAA vis-a-vis DOT that PATCO testified
to?
Mr. KRAHAM. Precisely. In other words, riding herd over the orga-
nizations, the Department of Transportation is calling the shots. In
fact, when we run into an impasse, there are urgent phone calls made
to the Department of Transportation. Usually in 10 or 15 minutes,
a department man is on the scene. There is no question about that.
To that extent, we are quite similar to PATCO, let's say.
Mr. HENDERSON. The gentleman from Missouri?
Mr. TAYLOR. Thank you, Mr. Chairman.
Mr. Kraham, there has been some effort made, I believe, to close
some flight service stations around the country. On one of our appro-
priation debates on the floor 2 weeks ago, there was a move to close
30, I believe, next year.
Mr. KRAHAM. Yes, sir.
Mr. TAYLOR. This was precluded by an amendment which I sup-
ported. I wondered if you had any comment relative to the movement
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3916
toward closing or combining flight service stations as, in your opinion,
this may be off the, subject?
Do you think this will seriously impair the service the flight serv-
ice stations offer?
KRAILAM. Yes, I do, sir. If I may address myself for a moment
to that.
I am familiar with the Shoup amendment which was introduced
and which, for about live pages in the Congressional Record, many
members expressed their concern. In fact, last year our group was in-
strumental in generating a similar interest which prevented this very
thing, last year, from happening.
might add in view of the House amendment, the matter is now be-
fore the Senate. I have been privileged to work closely with Members
of the Senate; and we already have 52 Senators signed in a joint letter
to the chairman, Mr. Byrd, which effectively prohibits the FAA from
again attempting to close those stations. I might say for any of the
members of the committee, we are good for another year.
Mr. TAYLOR. Mr. Kraham, do you recomrner d binding arbitration
during contract negotiations and related proceedings as being essen-
tial. I would be interested in knowing, would you give us your views
on how you would fit binding arbitration into t,17 e negotiating process?
Mr. KRATIAM. Well, a case immediately comes to point. There are two
factors involved, really.
One, for example, last year when I gave the incident where during
the bargain process, a provision was withdrawn effectively as being
nonnegotiable, merely because we won the case from the arbitrator
during the proceding -2 or 3 months before W3 started negotiations.
We in fact won a major victory from an arbitraor. The FAA and the
DOT panicked because it involved the rewriting of all parking regula-
tions. They immediately filed an appeal.
During the negotiations, with John Enlow r resent, they said, 'We
can't give you that provision anymore."
Here is why A is Important. At that point ih time, I think we should
have been able to?rather than go to an impasse panel, and holding
lip the effectiveness of our contract, and in fact our dues?we should
have been able to go immediately to binding arbtration and say, "Well,
now, is this negotiable, or isn't it?" and express the experiences on hav-
ing won the case.
In other words, why was it in fact negotiable a year ago? There is
only one way we won that grievance. It had to be a provision in the
con tract.
It seems to me, and I so indicated to FAA and DOT at the time,
that it?if it will be a case of every time a union demonstrates equity
to the outside arbitrator in a grievance and wins the case, and then
that provision in the contract is going to be 3arved out of the con-
tract, we are going to negotiate ourselves down to less than nothing.
So binding arbitration at any stage of the negotiations, when we are
drawing up the very contract provisions is the lifeblood of what we
are, here for.
Mr. TAYLOR. Thank you.
Thank you very much.
Mr. HENDERSON. You recommended management rights needed to
I redefined.
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With regards to the closure of the flight service stations that the
gentleman from Missouri raised?and I am very appreciative that he
did. It is a matter the Congress has had before it; and we have had
great interest in it.
Would you question the right of management to make that, decision
within the authority granted by the Congress? In other words, what
we actually experienced here is that the Congress has clearly indicated
they do not want those flight service stations closed; but that would
not be a negotiable matter for contract?
Mr. KRAIIAM. No. I agree. That is why I said this area is really a
touchy area. We would be the first to admit it.
We do not interfere, necessarily, with the right of the agency to
accomplish its given mission. On the other hand?and we think we
have now persuaded the Congress and the U.S. Senate that where we
feel the implementation of a certain edict or directive is wrong, we can
effectively now, without being under contract, correct it. This is ex-
cellent proof, I think. I wouldn't say that we would have to be that
unyielding insofar as the contract.
What we had reference to mainly in connection with the manage-
ment rights, now for example, management rights, really, in some of
our recent cases, have said, "Well, no you cannot pay?we do not have
to pay overtime because a guy is sick, because it is our first duty to see
that there is coverage there."
Really, in effect, we lost a recent decision where management is in-
jecting management rights into every facet, nook, and cranny of the
contract every time they want to back out.
Mr. HENDERSON. The effect of what happened in the incidents that,
you related of winning your arbitration and then having the Depart-
ment of Transportation draw that back and say it is not negotiable,
they redefined management rights by that action, didn't they?
Mr. KIIAII AM. Yes, that's correct.
That precisely is what happened in that case.
In other words, management rights is sort of like the floating in-
terest rule. In other words, whatever applies at a given time, man-
agement wants to apply.
Mr. HENDERSON. So the point you are making is that those things
that are management rights, to the extent that they can be, we would
agree that it should be defined; and those things that are negotiable
should remain negotiable?
Mr. KRAHAM. Right. I think, Mr. Chairman, if I may, a good rule
of thumb would be what comes out of the wash as negotiable, applying
this test of binding arbitration in the event there is a dispute as to
whether a matter should be negotiable will ultimately, I think, create
an equitable situation.
With the advice and counsel of outside binding arbitration, in a
Question where a matter should be within management's rights or not,
I think equity will wash those out and refine management rights so that
everybody will be satisfied.
Mr. HENDERSON. Tell me a little bit more about your negotiating
experience for and on behalf of the flight service station employees.
You have a national exclusive?
MT. KRAHAM. That's correct.
Mr. HENDERSON. Your negotiations are at the Federal Aviation
Agency?
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Mr. KRAHAIVI National level, yes, sir. We have one contract. We ne-
gotiate in Washington, D.C.
Mr. HENDERSON. You find that your negotiations are subject to the
)epartment of Transportation direction?
Mr. KRAHAM. No question about it. Let me c ite one other real sore
example.
it may not be of notice to the committee, but one of the points we are
fighting really hard for this year is what they call the SF-160 program.
That is, as space permits on airlines, an air traffic control specialist,
center, tower, or station, and the part 224, I think, of the CFR provides
this same right to the air traffic specialist in the flight service station.
The agency over the years has refused to negotiate that point with
us. Yet over the same period of years, they: have relieved their struc-
ture of management rights to include center and tower personnel in
that, but have excluded us. This is yet another Example of how they?
you know, they stretch these rights to suit themselves.
Now it is not costing the Federal Government anything. The airlines
tell us they would be pleased to have us ride in the jump seat.
Our people, as a matter of -fact, Mr. Chairman, our people are the
people who are actually more concerned with the weather and we are
advising general aviation pilots, who are less eAperienced, sometimes,
and that it is much more essential, if the Taus be known that our
people have a greater need to see what the inside of a cumulus cloud
looks like, or any other front forming, or weather generally, and so
forth. This can best be .ii,ecomplished by access to aircraft flown by air-
lines under the SF-160 program.
Here is yet another example of where the FAA and DOT say no, we
will not extend or even talk about in a contract, the same privilege
for you people.
So it is more than just against unions generally. They sometimes
particularize and treat one a little better than a nother. We think that
ought to be wiped out, too.
Mr. HENDERSO-N. Have you looked at the provisions of the bill that
Chairman Dulski and I introduced with rega?cds to negotiations on
the agency regulations ? If you have, my questicn would be how would
you envision the operation of that bill pertaining first to FAA regula-
tions? Would you still think that if you were negotiating under the
bill on FAA regulations, that you still would have the override
of the Department of Transportation when we are talking about regu-
lations of the agency, that is, the Federal Aviat on Agency, within the
department? Or are you going to have to negotiate their subject to the
override of the department?
Mr. KRAHAM.? I see your point, Mr. Chairman. I see what you are
trying to get at. It seems to me, under the present structure, although
there may be some relief granted in the our bill?that you are
still going to have the DOT riding herd on whatever interpretation
is made in the process of certain legislation. ?
Mr. HENDERSON. Let me ask you perhaps a more elementary ques-
tion. How do you view negotiations of agency regulations prior to
their promulgation as opposed to negotiations m the?as you do now,
after the regulations have been promulgated?
This is a very essential and important element of the bill that we
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provided, and One that is quite controversial from management's
viewpoint.
They don't support the bill in that regard.
Mr. KRAHAM. Well, I appreciate what the provision in your bill is
trying to do; and I really would like an opportunity to study it again
and send commitments to the committee.
MT. HENDERSON. I would like you to take a look at it. It is ?possible
that both your experience and that of PATCO here, as you testified
with regards to the problems of the agency within the department
could be helpful to us as we consider that.
Mr. KRAHAM. I certainly will address myself to that.. I think I can
give you a more thoughtful response if you will give me a couple of
days.
Mr. HENDERSON. You might wish to confer with the staff on it. I will
ask the staff to make themselves available to you.
Mr. KRAILAM. Fine.
Mr. HENDERSON. Available for this and any supplemental statement
you might want to supply us on this point. That would be helpful.
Thank you, gentlemen, very much for your appearance this
morning.
Mr. ENLOW. Thank you.
Mr. KRAHAM. Thank you very much.
Mr. HENDERSON. It was a pleasure.
Mr. Hill, if you and the others accompanying you would come for-
ward as witnesses.
STATEMENT OF JAMES D. HILL, EXECUTIVE DIRECTOR, NATIONAL
FEDERATION OF PROFESSIONAL ORGANIZATIONS, ACCOMPANIED
BY LARRY FISHER, SECRETARY-TREASURER; ROY OLSON, PRES-
IDENT ; HARTLEY BOWEN, NAVAL CIVILIAN ADMINISTRATORS
ASSOCIATION; GEORGE BRADLEY, EXECUTIVE DIRECTOR, ORGA-
NIZATION OF PROFESSIONAL EMPLOYEES OF THE DEPARTMENT
OF AGRICULTURE; PAUL ROBBINS, EXECUTIVE DIRECTOR, NA-
TIONAL SOCIETY OF PROFESSIONAL ENGINEERS; WILLIAM
HUGHES, GENERAL COUNSEL, NATIONAL ASSOCIATION OF FED-
ERAL VETERINARIANS; DR. CLARENCE PALS, EXECUTIVE VICE
PRESIDENT, NATIONAL ASSOCIATION OF FEDERAL VETERI-
NARIANS; ROBERT CALOGERO, PRESIDENT, ASSOCIATION OF
SENIOR ENGINEERS; DEAN FRAVEL, NATIONAL ASSOCIATION OF
GOVERNMENT ENGINEERS; AND JOHN KING, EXECUTIVE DIREC-
TOR, AIR TRAFFIC CONTROL ASSOCIATION
Mr. HENDERSON. It is a pleasure to welcome you, MT. Hill.
Mr. HILL. Mr. Chairman, as our prepared statement states, we are
an association that this morning represents 14 professional societies.
We have quite a few of our people with us this morning.
We have, at the other end of the table, Mr. Larry Fisher, the Sec-
retary and Treasurer of our Association; then Mr. Hartley Bowen
from the Naval Civilian Administrators Association; Mr. Roy Olson,
the President of our Association; Mr. George Bradley, the Executive
Director of OPEDA ; Mr. Paul Robbins, the Executive Director o
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the National Society of Professional EngineerE; Mr. William Hughes,
general counsel of the National Association of Federal Veterinarians;
.Dr. Clarence Pals, Executive Vice President of the National Associa-
tion of Federal Veterinarians; Mr. Robert Calogero, President of the
Association of Senior Engineers; Mr. Dean Fravel from the National
Association of Government Engineers; and Mr. John King, Executive
Director of the Air Traffic Control Association.
We have other members in the audience.
The present Executive order presumes to regulate three different
kinds Of associations: Unions, associations of supervisors, and other
Federal employee groups.
You have heard from the unions. I think this is the only occasion
on which you will hear from the other two. We may, therefore, take
a little longer tintn the other speakers.
We join with the unions in thinking that a law is necessary on this
subject. We are also Federal employees We also have our problems
with management as professional associations and associations of su-
pervisors. Sometimes our problems are different, but we do have our
disputes. We have not been able to get them resolved under the pres-
ent administrative system.
So, we also think a law is necessary. We like H.R. 10700 and, as
other organizations, we want to suggest some amendments to it to
take care of our problems.
While I was routing around in some of rrr7 old papers the other
day looking for something in connection with my testimony, I ran
across a letter from 1968 we got from one of the Presidential candi-
dates that year Mr. Nixon. You may remember he had what was
called a Great Issues Committee headed by Senator Tower. They put
out position papers on various subjects. One of them was Federal
personnel policy.
In September 1968, he wrote us and said:
Dear Mr. Hill:
'Because of the interest of your organization in federal personnel policies, I
thought you might like to have a copy of a statement I have issued on this
subject. There is much that has to be accomplished lu the new administration.
I know I will be able to count on your cooperation with me and responsible
federal officials to see our mutual goals are achieved.
,Sincerely, Richard Nixon.
Attached was his white paper on Federal personnel policy, only one
paragraph of which is pertinent to this morning's hearings. He said:
intend flu:the:L. to propose legislation Which will bsure the participation of
federal employees ? In the formulation of personnel policies directly related to
their employment. This legislation should further ::ecognize the right of a
federal employee to join an employee organization (as unions were then known)
if he chooses to do so and should provide for meaninzful consultation between
employee organizations and those in positions of management. The legislation
should spell out procedures to insure that charges of unfair labor practices can
be heard expeditiously by an independent forum.
After 6 years, when the. committee chairman and others introduced
legislation on this subject we were somewhat sorry to see the admin-
istration send up a representative to oppose enactment of the bills.
We, think that what was said in 1968 was correct and that there
thould be legislation, and that it should be supported by the
tdministration.
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Mr. HENDERSON. I guess what you are saying is that the legislation
referred to there has not been recommended to the Congress ?
Mr. HILL. As far as I know, it has not been recommended, and in
fact has been opposed. Perhaps Mr. Hampton wasn't on the 1968 mail-
ing list.
You have heard from the unions; they do have their legitimate
complaints. For the most part, we support them wholeheartedly. They
have told you about their inability to get their problems resolved
under the present Executive order. We professional societies and
associations of supervisors have suffered the same inability.
First, in 1966, the Johnson administration held hearings for a week
on methods to improve Executive Order 10988. We then raised some
of the problems that professional societies had. We mentioned that
most of our officers were supervisors and we couldn't qualify as unions
without disqualifying all of our officers. We objected that supervisors
couldn't be included in units represented by unions, and so forth.
Nothing was done 'about it. The President took no 'action on it. The
Secretary of Labor wrote a report that waS never issued until the
end of the administration.
In 1970, the Federal Labor Relations Council held further hear-
ings. We again testified. So did the unions.
Nothing was clone about our objections. We objected at that time
that we were losing our dues withholding privileges, that supervisors
couldn't be included within units; that we had no enforceable rights
to deal with 'agencies; and that once a professional got into a unit,
there was no way he could vote to get out of it.
Nothing was done about that, except that after the end of the hear-
ings, the Council issued a statement that they had considered al number
of matters but hadn't taken action on them. Nos. 2, 3, and 4 were pro-
vided a separate executive order covering agency relationships with
professional organizations; (3) authorize professional organizations
rights similar to those provided for associations of supervisors; (4)
establish a policy concerning the severance of professional employees
for decertification purposes.
New hearings were again held in 1973, and we thought these would
be the first items on the agenda. We wrote to the Council and suggested
it. They weren't put on the agenda at all. Furthermore, no professional
societies or associations of supervisors were even invited to testify.
We just have received no consideration whatever.
The Federal Bar Association appointed a task force 2 years ago to
study Executive Order 11491. It concluded that a law was needed to
make the system work. It said that the Federal Labor Relations Coun-
cil serves as an agent of an employer who is interested in maintaining
the status quo. Last, it said the program seems grounded on reaction
rather than action.
I thought that was unduly complimentary. We haven't been able
to get any reaction from the Council at any time on any subject.
So we are very happy to be here. We would like to tell you our
problems?which we have raised repeatedly before the executive
branch with no relief.
First, in our prepared statement, we discuss the subject of dues
withholding. The Congress, in 1961, enacted a law?that emanated
from this committee?that Federal employees could make allotments
from their salary for various purposes.
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902
The Congress didn't define the purposes. It said for whatever pur-
poses the head of the Department may deem appropriate.
That became law. The President then issued an Executive order
delegating to the Civil Service Commission the administration of this
new law; and it immediately took away from the Department heads
their authority that the law gave them to define the purposes for
which allotments of salary might be made. :
The Civil Service Commission issued regulations saying for what
purposes allotments could be made; and they were for such things as
the purchase of U.S. savings bonds, contributicns to combined charity
drives, payment of state income taxes, overseas employees giving
allotments from their salary to their families back home, allotments
to banks for savings, for premiums on life insurance, and so forth.
Also, the CSC regulations said that an employee may make an allot-
ment from his salary for his dues to any employee organization which
had received formal or exclusive recognition under Executive Order
10988. The CSC used the law as a tool for a union checkoff, but no
other employee organizations could have the same privilege.
The then Administrator of the Federal Aviation Administration
wanted to provide for dues allotment privileges to two of the agency's
professional societies, the Air Traffic Control Association and the
Airways Engineering Society.
ITe asked the chairman of the Civil Service Commission for per-
mission, and the chairman denied it. He said, no, this is just for
union checkoff, no other purpose.
So the two associations, and the FAA, came to see the committee
staff director, Mr. Charles Johnson, and he said, why, that isn't true.
We passed this law before there was a Federal Labor Relations pro-
gram. That wasn't created until 1962.
He said, I worked on that bill and I personally know it wasn't in-
tended for any such purpose.
Then Mr. Beckworth, then chairman of one of the subcommittees
of this body, and Senator Monroney, chairman of the 'Senate commit-
tee, wrote letters to Chairman Macy of the Civil Service Commission.
They said, in effect, you are using this law erroneously. We didn't
intend that there be discrimination between various kinds of organiza-
tions of Federal employees.
Finally, Chairman Macy backed ,down, and (hanged his regulations
to say that professional societies could also have dues withholding. He
did it in a odd way. The regulations had permitted dues withholding
for dues to any employee organization that had qualified for exclusive
or formal recognition.
He just added a phrase that said, "or could qualify."
Well, all an organization had to do to qualify was to have a 'demo-
cratic constitution and promise not to strike and represent at least 10
percent of the employees in its specialty. Then an association could
qualify, at least for formal recognition. Various Federal professional
societies in various departments had dues ithholding under this
regulation, until 1971 when the new Executive order became effective,
and canceled the dues withholding for professional societies.
We appeared before the Council and protested. They bucked us off
to the Civil Service, Commission. The Civil Service Commission didn't
do anything about it.
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So we haven't had dues withholding since. We think that is wrong.
We think that the law is being misused. It was never so intended.
We certainly don't object to dues withholding for labor unions. We
think it is very important, necessary and just that they have it. The
amount of time and money that an organization has to spend on mem-
bership purposes just to stay even, to compensate for the 5 or 10 per-
cent that don't renew every year, all of which can be avoided by due
withholding, makes it very important.
We would like to have the 1961 law administered and applied the
way the Congress intended it. There is a provision in H.R. 10700 to
provide for dues withholding to unions. We have suggested an amend-
ment which would include other lawful employee associations. It is
attached as an attachment to our prepared testimony.
As a matter of fact, the present provision applies to the union
dues of employees in a unit. That means it would only apply to those
cases where a union has won an exclusive. We see no reason why every
member of a union shouldn't have dues withholding: The agencies tell
us that they do their payrolls now by computer, and they can deduct
for as many organizations as a man wants to make allotments to, and
it doesn't cost anything. I think the unions are paying 2 cents per
deduction no-w. We understand that it doesn't cost the agency any-
thing. That is what the agencies tell us.
That is our first complaint.
Second, relations between agencies and professional societies. I have
mentioned that under the present Executive order there are three
kinds of organizations covered.
First of all, there are the unions, called labor organizations; then
section 7(d)3 says in effect, that recognition?exclusive recognition of
a unit does not preclude a department from having dealings with vet-
erans organizations, religious, social, professional or other organiza-
tions not qualified as a labor union. That was also in the predecessor
Executive Order 10988. It has been there since the beginning, in 1962.
Then section 7(e) says an agency shall establish a system for intra-
management communication and consultation with its supervisors or
associations of supervisors.
So, there are these three categories covered by the Executive order.
The trouble that we professional associations have is that section
7(d) 3 is not mandatory. It doesn't say, as section 7(e) does, that an
agency shall establish a system for dealing with professional societies;
it says exclusive recognition of a union shall not preclude it.
Some agencies don't communicate with professional societies of their
employees any more. Agencies that used to do it don't do it now. They
will sometimes say to us privately, that they are getting terrific pres-
sure from their unions not to have any dealings with anybody else.
Some agencies simply don't like to have dealings with employee groups
so they take advantage of the permissive nature of section 7 (d) 3 not
to have any dealings with us.
H.R. 10700 repeats verbatim, I think, the language from the Execu-
tive order in section 7106(L) (3) on page 18 of the committee print of
October 3, 1973. It repeats that recognition of a union shall not pre-
clude an agency from having discussions with professional or other
associations.
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404
We respectfully urge the committee to alter the language to require
agencies to set up ssytems for :informal discussions with employee
associations. That, like section 7(e) ,would be a requirement and would
not be permissive. We have suggested language to .acoomplish that
purpose in attachment B to our prepared statement.
Professional societtes have need to discuss matters with manage-
ment. We don't have need to engage in col1ectiv3 bargaining. We should
qualify as a labor union if we wish to do that. That is appropriately
their field.
Mr. HENDERSON. I noticed you had that in your statement. It leads
me to ask this question: Inasmuch as the bill by its nature primarily
deals with labor management relations, would you object to a separate
piece of legislation that could deal simply with the subject of agencies
consulting with nonunion organizations and the provisions with regard
o checkoff for those organizations?
What I am suggesting is that if we did not deal with that in this bill,
would you object to separate legislation covering that particular
problem?
Mr. Him,. No. Obviously we favor such legislation. However, of
the two alternatives, we would hope that it all gets passed in one
bill. I think that there is a great deal of support for this legislation
which should not be fragmented.
We have in our prepared statement, referred to the fact that back
in 1961 President Kennedy first appointed a task force headed by
Secretary of Labor Goldberg, to look into the question of whether a
labor-management system for Federal employees should be estab-
lished. Secretary Goldberg's report recommended the recognition of
labor organizations, I hen called employee organizations, but he also
said that this recognition should not affect special relationships that
already existed between the. Government and veterans' organizations
and religious, professional, and social organizations. His report said:
The task force feels that there should be no objection to management officials
dealing with such associations on matters involving individual members, or on
matters involving individual members, or on policies having particular applica-
iion to their group, such as work schedules on a retzious holiday, even though
exclusive recognition has been granted to another enployee organization.
That is a direct quote from Secretary of Labor Goldberg's report.
Obviously that report is not from somebody who was ignorant of the
,;tbor relations field. He thought it was perfectly proper for the Gov-
ernment to have a labor relations program, but still to have informal
dealings with professional societies and veterans' organizations and
similar groups.
The trouble is it has not worked, because of the permissive nature
of the language. We ask that that be amendcd to make it a require-
ment that agencies create systems for dealing with these groups.
Just to give you an example of what can happen under the present
ystem, I wilt refer to the Federal Aviation Administration again.
In the late 1960's, the then administration was strongly in support
of professional societies. The present management of the agency is
not; and as a matter of fact, it has issued an internal policy order,
and a statement to all of the professional societies of its employees
that they may not talk to the agency about any matter that could have
anyhing to do with personnel policies or practices or working condi-
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tions. You know, when you think about it, it is hard to think of any sub-
ject of mutual interest to an agency and its employees that could not
affect employee working conditions.
The FAA has a merit promotion plan as all agencies do. It is a
decentralized agency, so its regional offices have their regional orders
implementing the merit promotion plan. These give points for various
things such as for a sustained superior performance award; for having
an engineering degree; for years of experience. One of the regional
plans has a provision in it giving so many points for an employee's
activity in his professional society. Well, one of the FAA unions found
out about this recently, and just raised Cain. It is now in national
negotiations with the agency.
We have heard that one of the demands made by this union is that
this provision be stricken from the merit promotion plan. Two of the
professional societies that belong to our group and that have FAA
employees, wrote to the agency, a mild letter, saying we hope you will
stick by your guns and keep this in your merit promotion plan. They
got very nasty letters back saying, you may not talk to us about this,
this is a matter affecting employee working conditions. We will refuse
to continue to recognize you as a professional society if you write us
letters like this.
Here is a matter that affects all of the members of these two profes-
sionals unless a majority of the professionals vote to do so. That is
and engage in collective bargaining about it; but the professional
societies can't even talk to the agency about this matter, that primarily
affects their own members.
Now that is what is happening to Federal professional societies to-
day, because of section (d) 3 of the Executive order. There is a similar
provision in your bill, sir, and we would like it strengthened.
Now to go on to another one of our complaints; the definition of a
"professional." "Under the present Executive Order, and under H.R.
10700, a professional may not be in a unit together with nonprofes-
sionals unless a majority of the professionals vote to do so. That is
also a provision of Executive Order 11491. A unit may not be created
if it includes both professional and nonprofessional employees unless
a majority of the professional employees vote for inclusion in the unit.
The Executive order does not define who is a professional. That has
been added by a decision of the Assistant Secretary of Labor, which
took verbatim the definition from the National Labor Relations Act
which says that you have to have a college degree and more than a
college degree, a postgraduate degree, to be a professional. It is an old-
fashioned definition that largely limits the term to the areas of law,
medicine, and engineering. This just is not realistic for the Federal
service today.
This decision was added by the Assistant Secretary in a case called
the Department of Interior Riverside case, involving some employees
of the Bureau of Land Management. The parties stipulated that range
conservationists and wildlife management specialists were profession-
als. This was for an election requested to be held by NV-FR These
persons had to have a college degree, 30 hours major in biology, and
on-the-lob training after that, and the union had agreed they were
.orofessionals. The case then came up on appeal on other matters before
the Assistant Secretary. He held they were not professionals. He
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4
adopted the definition from the Nation& Labor Relations Act, that a
general academic education is not sufficient.
The Department of Interior filed a petition for review with the
Federal Labor Relations Council, saying there had been no oppor-
tunity to prepare in advance, no opportunity to prepare exhibits or
testimony or at-ailments, no opportunity to call witnesses, there was no
prior knowledge this qi, estion was even at issue.
The FLRC refused to hear the appeat They have a certiorari type
of appellate jurisdiction, and declined to hear it.
Since than the FLRC has applied the same definition in other cases
to historians, librarians, operations research analysts, and all kinds
of people who have a general academic degree with a major in a par-
ticular subject or its equivalency.
As the chairman knows, several years ago, there was a group known
as the job evaluation and pay review task force. I am sure that the
chairman is more familiar with that than anybody here. It recom-
mended a new :job evaluation systems, broken dawn into six categories.
One of them was professionals.
The task force presented a position paper on. professionals. It said
there are over 600,000 of them in the Government today. Technology
that used to take centuries to develop into professions are doing so
today in a decade. The task force quoted Fredick C. Mosher, who says
that 36 percent of all professional, and technological workers are
employed by governments, and that one-third of all Government
employees are engaged in professional and technical pursuits. This is
more than three times the comparable portion in the private sector.
Mr. Mosher added:
For better or worse, for better and worse, much of our Government is now in
the hands of professionals, including scientists?it .,s unlikely that the trend
toward professionalism in or outside of Government will soon be reversed, or
even slowed.
So, here is a group of 600,000 people in the Government who have
their special interests. For one thing, they are entitled to a separate
-vote on whether they want their own collective bargaining unit to
consider their own problems, or be in a uni t with other kinds of
employees. But, because of a definition dragged out of the 18th century,
I any of them are being denied this right. Their interests are not being
taken care of.
We respectfully suggest to the committee that it do not utilize the
definition contained in H.R. 10700, but that it utilize instead, the more
liberal definition which is in Rh 9784. section 3(g). We quote it on
page 26 of our testimony. It does not require a postgraduate degree,
for one to be classed as a professional. It does not require a college
degree. It requires knowledge in a field of learing customarily acquired
by specialized study in an instiution of higher education, or its
equivalent. The NLRB definition only includes persons educated in an
institution of higher learning, or a hospital. This means there is one
class of people, and one class only., that can qualify as a professional by
on-the-job training, nurses. We think there ara many others who learn
their specialty in on-the-job training, and who are equally entitled to
be classed as professionals. We think air traffic controllers should be;
and others, because they have the equivalent of 120 academic hours in
on-the-job and correspondence schooling.
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Mr. HENDERSON. Mr. Hill, may I refer back to page 17 of your pre-
pared statement, on your recommended language for the bill. You ask
that the language of H.R. 9784, section 6 ( f )3, be included; and as I
understand?well, let me read it:
(3) a unit including both professionals and nonprofessionals shall not be
appropriate unless a majority of the employees in each category indicate by vote
or other credible evidence that they desire to be included in such unit.
What other credible evidence would you suggest? Let me ask this
question first:
If you drop those words "or other credible evidence" and indicate
that you had to have a vote of both, the language is somewhat different
than that in the bill 10700. Would that be sufficient?
Mr. HILL. Oh, yes yes. I don't know what was in the mind of the
drafter of H.R. 9784, but as a guess, I assume he is referring to
authorization cards.
Mr. HENDERSON. Well, I was, too.
But it would seem to me that we ought to spell that out if we do
intend that.
Mr. HILL. I have no special interest in those wards at all.
Mr. HENDERSON. It would be sufficient if you require a vote?a
separate vote of the two categories?
Mr. HILL. Yes, sir.
Mr. ROBBINS. If I may insert, I think the engineers would prefer
the secret vote and not the cards.
Mr. HILL. That language on page 17 of my prepared statement refers
to a matter that I skipped over, in my oral remarks. The present lan-
guage of Executive Order 11491 states that a professional gets to vote
on whether he wants to be in a combined unit, but the other people in
the unit don't get such a vote. This would cure that.
Then on the next page of my prepared statement is the other objec-
tion we would like to be corrected in the legislation. That is, under the
present Executive order, once a professional is in a combined unit
under the present administrative system, he can't vote to get out of it,
Frequently he gets in through ignorance. He doesn't know at the begin-
ning that he had a right to a separate vote on whether his professional
group should be included or not.
At recent hearings held by the Federal Labor Relations Council,
they didn't take any testimony from professionals. However, there was
one bit of testimony on this subject that leaked in by accident, from
the American Nurses Association, testifying as a union. It is also a
professional society. It complained that many of their nurses got
blanketed into a combined unit because they didn't know they had a
right to a separate vote. Then when they later wanted to organize a
separate unit as nurses' they found they could never get out. The lady
who testified for the American Nurses Association said that nurses
weren't sophisticated about labor law. I think that is true of almost
every professional. We are sophisticated about our own profession, but
we don't know when a vote is held that we have a right to a separate
vote. We then, sometimes almost by default, find ourselves combined
in a unit with other types of employees.
Under the present Executive order, that is a one-way street. There
is no way you can ever get out. When the American Nurses Associa-
tion later comes around to organize the nurses at that hospital, they
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find they are al ready represented by some clerical union and they don't
know how they got there. They can't ever get out.
Professionals have r.,omplained about this for years to the Federal
Labor Relations Council and its predecessor under the prior Executive
order, to no avail. And so we now ask that an amendment be made to
the bill on this subject. It appears on page of our memorandum;
and as attachment C, which would permit a decertification election
for professionals in a unit.
Now, on the status of supervisors.
The present Executive order states that a unit cannot be created if
there are any supervisors in it.
There is another section that says that supervisors cannot be active
in their labor Anion. The unions have always complained about this.
They have complained about it before this committee. I have read Dr.
Wolkimer's testimony. He complains at great length about this. We
agree with him. We think this is unrealistic in the Federal service.
I read Chairman Hampton's testimony. He said the Federal service
is unique, and that is why we need an Executive order. He said that
we shouldn't have a law which molds everything into concrete. You
know, really the fact is the other way around. On the subject of super-
visors, the present Executive order uses verbatm, word for word, the
definition, out of the National Labor Relations Act, just as it does on
professionals, although neither definition is proper for the unique situa-
tion that exists in the Government. The present administrative system
is the one that hasn't taken any regard for the uniqueness of situations
in the Federal service. That is why employees are wanting a law.
So our second alternative that we recommend is that supervisors be
permitted to organize as unions, but in separate units from non-
supervisors.
There isn't even the equivalent of section 7(e) in your bill, sir. We
think there should not only be that equivalent, but that it should be
stronger than section 7(e) of the Executive order. It shouldn't provide
just for management consultation. It should give these people the status
of a regular separate labor union.
Our third recommendation is to give supervisors a choice, as pro-
fessionals have, on whether they want to be in a unit with non-
supervisors, or in their own unit. We recommend that one of those
three proposals be added to the bill.
There are several other matters on pages 32, 33, and 34 of our pre-
pared statement that. are. of lesser importance. Because. we have three
other people that want to be heard, I would like to pass over them at
this time.
[Jet me say again that the Executive order is supposed to cover three
diverse groups Unions, supervisors, and professional societies. On
the latter two, the Council has always taken the position that it has
no right, or that it is not going, to regulate them or to force agencies
to obey their obligations. They regard section 7 (d) 3 and section 7(e)
just as language addressed solely to agencies.
But the section of the Executive order that grants to the Council
the right to administer the order doesn't say you shall administer
all of this order but section 7 (d) 3 and section (e). It says you shall
administer all of it.
But the Council says to us, no, you go talk to the Civil Service Com-
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mission or to your agency about your problems. We are not going to
do anything about section 7(d) (3) or 7 (e) .
We have quoted extensively in our prepared testimony from various
authorities who say that the average supervisor in the Government
really isn't a part of management. We agree that it is all right for man-
agement officials to be excluded from activity in the union and union-
ization and from inclusion in a unit, but lower level supervisors who
don't meet the definition of a management official shouldn't be ex-
cluded.
We, like the unions, urge that something be done about this. We
think there are three possibilities. We set them out on page 30 of our
testimony.
One would be just to permit supervisors, who are not truly manage-
ment officials, to be included in units together with nonsuperyisors.
A second would be to permit supervisors to organize as unions, but
in separate unions, as some State laws now permit, like the law of the
State of New York, for example. I think that is what Executive order
11491 intended to accomplish in section 7(e) , but it just hasn't worked.
It especially hasn't worked since the recent decision of the Council
in the so-called Social Security Administration case that said that the
refusal of a department to obey section 7(e) was not an unfair labor
practice which the Council would take any cognizance of. That -lust
reads the section right out of the Executive order. It is a complete
dead letter now.
We hope this committee will be more attentive to our interests.
[The prepared statement submitted by Mr. Hill follows:]
STATEMENT OF JAMES D. HILL, EXECUTIVE DIRECTOR, NATIONAL FEDERATION OF
PROFESSIONAL ORGANIZATIONS
Mr. Chairman and members of the committee, we are a federation of pro-
fessional societies of Federal employees, composed of the following organizations
Air Traffic Control Association, Inc.
Airways Engineering Society
Association of Senior Engineers of the Naval Ship Systems Command
Federal Plant Quarantine Inspectors' National Association
National Association of Federal-State Employees
National Association of Federal Veterinarians
National Association of Government Engineers
National Labor Relations Board Professional Association
National Society of Professional Engineers
Naval Civilian Administrators Association
Navy Field Safety Association
Organization of Professional Employees of the U.S. Department of Agricul-
ture
Patent Office Professional Association
In addition, the American Society of Civil Engineers has also asked us to repre-
sent their views before this Committee. Together, these groups are composed of
approximately 60,000 professionals employed by the government.
Bills on the present subject have been introduced, and these hearings are being
held because of the dissatisfaction with the present labor-management system in
the Federal service as it now exists pursuant to Executive Order 11491. You
have heard the objections of unions; for the most part we think they are valid
and meritorious.
We are here to inform the Committee that there are other groups of Federal
employees?Federal professional societies and associations of supervisors?that
are also dissatisfied with the present system. Our complaints are different than
those of the unions, but we think they are equally meritorious, and are equally
deserving of this Committee's consideration. We join with the unions in urging
the enactment of legislation on this subject, which will meet the legitimate needs
of all groups for relief.
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As the unions are quite capable of presentirg their own complaints, and have
done so very ably, we will not comment on those sections of the proposed bills
which concern only the unions, but will limit ourselves to those which affect
Federal professionals, professional societies, and supervisors.
I. DUES WITITITOLDING
Public Law No. 87-304 of September 21, 1961, authorized the head of each
department to permit employees to make allotments from their compensation "for
such purposes as the department head deems appropriate". This Act repealed
various laws which permitted employees of some departments or bureaus to
make allotments for various purposes, and substituted one comprehensive law
covering all Federal employees of all departments, authorizing allotments for
any purpose which the department head might approve.
When presenting the bill to the House, then-Chairman Murray of the House
Committee on Post Office and Civil Service said:
"The legislation also consolidates the several eyisting laws relating to the
allotment and assignment of compensation for Federal civilian employees,
with their differing conditions and limitations, into one uniform and co-
ordinated standard legislative provision which will govern procedures for
such allotment and assignments to pay in the cases of all Federal civilian
employees in or under the departments and ageacies covered by the bill."
(107 Cong. Rec. 12715, July 17, 1961
And when presenting the bill to the Senate, Senator Mansfield said:
". . . the legislation consolidates several existing laws and provides one
standard provision applicable to all employees A the Government." (11Y7
Cong. Rec. 19593, September 15, 1961)
Unfortunately, the "one uniform and coordinated standard" which the Congress
intended has not ensued. By Section 6 of the Act, the Congress authorized the
I.'resident to issue regulations to carry out the purposes of the Act. By E.O. 10982
the President delegated this authority to the Civil Service Commission, and the
Commission issued reglations on the subject which may be found in 5 Code of
Federal Regulations, Section 550.305. The regulations of the Civil Service Com-
mission authorized department heads to permit employees to make allotments
for specified purposes, including the payment of dues. to labor organizations to
which the department had accorded recognition under E.O. 10988, and forbade
the department head to authorize allotments for dues to other employee organiza-
tions. In effect. the Civil Service Commission partially repealed the Act of Con-
gress by taking away from the department head the au :hority which the Congress
gave to him and intended him to have. It restricted the benefits of the law to
one class of Federal employees, and has denied it to all others.
At least one agency head, the Administrator of the Federal Aviation Admin-
istration, wanted to extend dues withholding privileges to several professional
societies of FAA employees, but the Chairman of the Civil Service Commission
refused to give permission. In 1965 Chairman Lindley Beckworth of the House
Subcommittee on Manpower, and Senator Monroney, Chairman of the Senate
Committee on Post Office and Civil Service wrote to :he Chairman of the Civil
Service Commission, objecting to his arbitrary and discriminatory administra-
tion of Public Law 87-304, and after several exchanges of correspondence and
telephone conversations were able to get him to mead the Civil Service Com-
mission's regulations so that it also permitted payroll allotments for dues of
professional societies. A number of our member Associations, in several depart-
ments, then availed themselves of the privilege of having payments of dues by
payroll deduction.
'Phis situation continued until June 30, 1971, when the Commission again re-
versed itself and amended its regulations to again provide for dues withholding
in favor of Federal labor unions, but not in favor of Federal professional societies
or other employee organizations. That situation has continued to the present
time. Section 21 of Executive Order 11491 authorizem the allot ment of dues in
favor of a labor organization or an association of supervisors, but not in favor
of Federal professional societies. While some of our organizations have some
dues withholding privileges because of their status with their agency as an
association of supervisors, the agency will deduct dues only for those members of
the employee association whom it regards as supervisors, and not for other
professionals who belong to the association.
The present regulations of the Civil Service Commission with respect to payroll
allotment authorize its use for the purchase of United States savings bonds,
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contributions to charity drives, the payment of state income taxes, allotments to
the families of overseas employees, allotments for bank savings, for premiums
on commercial or government life or health insurance and so forth. These are
all worthy purposes.
The present provision of the Commission's regulations authorizing an allotment
for dues to government labor unions is equally worthy. We fully support Section
7108 of 11.11. 10700 which would continue the payroll allotment privileges of
labor union members. The government unions perform a useful service for their
members which is aided by the convenience of a dues check-off. We complain only
of the refusal of the Civil Service Commission to permit the same benefit to other
associations of government employees, which also perform a useful service to
their members, and also to their respective agencies.
Our attempts to get the Civil Service Commission to continue dues withholding
privileges for Federal professional societies have been completely unavailing,
and is one of the principal reasons why we urge that Executive Order 11491 be
replaced by legislation. To that end, we propose an amendment to Section 7108
which would also authorize allotments for dues to other associations of Federal
employees. It is attached to this statement, as Attachment "A" and we solicit the
Committee's favorable and sympathetic consideration of it.
In our opinion the Civil Service Commission and the Federal Labor Relations
Council are deliberately flouting the intent of Congress as expressed in Public
Law 87-304. It did not intend any such discrimination between groups of Federal
employees or any special preferences to the members of Federal labor unions.
Indeed, Public Law 87-304 was enacted before President Kennedy originally is-
sued Executive Order 10988 and so could not have intended that the privilege of
Payroll allotment for dues to employee associations to be extended to some em-
ployees, but not to others for the same purpose.
II. RELATIONS BETWEEN AGENCY AND PROFESSIONAL SOCIETIES.
Section 7100(1) (3) of H.R. 10700 (p. 18 of the print of October 3, 1973) pro-
vides that exclusive recognition of a labor organization shall not:
"(3) preclude or restrict discussions with religious, social, fraternal, pro-
fessional, or other lawful associations not qualified as labor organizations,
with respect to matters or policies that are of particular applicability to
them or their members, but such discussions shall be so limited that they do
not assume the character of formal consultation on matters appropriate for
collective bargaining or extend to areas where recognition of the interests of
one employee group may result in discrimination against or injury to the in-
terests of other employees."
Ever since the original promulgation of Executive Order 10988 in 1902, it has
been a part of the Federal government's labor-relations philosophy to preserve
the informal discussion rights of veterans' organizations, and organizations of
religious, social, fraternal and professional employees, not qualified as a labor
union. While they may not engage in formal collective bargaining with respect to
personnel policies and practices, and working conditions?as this function is
properly reserved to the union having exclusive bargaining rights?they were in-
tended to continue to have the right to engage in informal discussions on these
subjects, insofar as they are applicable to their members.
To refer to the historical background of this governmental policy. President
Kennedy first appointed a Task Force on employee-management relations in the
Federal service in June 1961. The chairman of the Task Force was Secretary of
Labor Goldberg, and other members were Chairman Macy of the Civil Service
Commission, Director Bell of the Bureau of the Budget, Postmaster General
Day, Secretary of Defense McNamara, and Mr. Sorenson, Special Counsel to the
President. Subcommittees of the Task Force engaged in research, and submitted
reports, on a wide variety of matters relevant to a Federal employee-manage-
ment program, including an examination of the composition of the then-existing
organizations of Federal employees. At that time Federal agencies engaged in
dealings, in an informal manner, with the large general labor unions, and with a
variety of smaller organizations, frequently organized on craft lines, and which
existed for social, professional, or other reasons, in addition to their function of
representing their members in dealings with their agency.
The Task Force proposed to President Kennedy that the Federal govern-
ment's employee-management program be structured more on the lines of private
industry; that recognition be granted to labor organizations in which manage-
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ment does not participate, but that this not interfere with the traditional and
valuable relationships which the Federal government had enjoyed with em-
ployee organizations not qualified as a labor union. On November 30, 1901 tile
Task Force wrote to President Kennedy outlining it. proposals for the establish-
ment of a Federal employee-management program, in the course of which the
Task Force said:
"C. VETERANS ORGANIZATIC NS
"The recognition of employee organizations s!iould not affect the special
relationship of veterans organizations with govi-nment agencies.
"For many years, veterans organizations have enjoyed a special relation-
ship with government agencies. Congress has granted special rights and
privileges to government employees who are vet erans. Over tile years, vet-
erans organizations have been active on behalf of their members in exercis-
ing these rights and privileges. The Task Force feels that there is no conflict
between such activities of veterans organizations on behalf of their mem-
bers and the work of regular employee organizttions. The development of
more formal employee-management relations should not be permitted to in-
hibit, restrict or impair these valuable services ef veterans organizations.
"D. RELIGIOUS AND SOCIAL ORGANIZATIONS
"The recognition of employee organizations should not preclude limited
dealings with employee groups formed for religions or social purposes.
"Some notice must be taken of the existence Emong Federal employees of
a considerable variety of associations which are formed primarily for pur-
poses other than the improvement of wt,rking conditions. The Task Force
feels that there should be no objection to management officials dealing with
such association on matters involving individual members, or on policies
having particular application to their group te.. work schedules on a reli-
gious holiday I even though exclusive recognition has been granted to another
employee organization. As 't normal practice, a representative or an em-
ployee organization with exclusive recognition has the right to be present
on such occasions.
"It is to be understood, however, that such dealings shall not asume the
character of formal consultation or negotiation on matters of general I'M-
ployee-management policy, nor shall the furtherance of the interest of one
group of employees be permitted to diseriminate against or injure the in-
terests of other employees. This would plainly be contrary, e.g., to the gov-
ernment policy of withholding recognition from any employee organization
which adheres to or practices discrimination based on race, color, creed, or
national origin."
On December 5, 1901, the President issued a public statement in which he said
"The Task Force has done an excellent job in a. difficult and complicated
. . . I have directed that an Executive Order giving effect to the Task Force
recommendations be prepared for issuance by the end of the year."
Executive Order 10988 was signed by President Kennedy on January 17, 1062.
Section 3(c )43) of the Executive Order provided:
"(e) Recognition, in whatever form accorded, shall not. . . .
"(3) preclude an agency from consulting or dealing with any religious,
social, fraternal or other lawful association, not qualified as an employee
organization, with respect to matters or policies which involve individual
members of the association or are of particular applicability to it or its mem-
bers, when such consultations or dealings are duly limited so as not to assume
the character of formal consultation on matters of general employee-manage-
ment policy or to extend to areas where recognition of the interests of one
employee group may result in discrimination aga.nst or injury to the interests
of other employees."
Section 12 of Executive Order 10988 delegated to the Civil Service Commission
responsibility for administration of the Order, for tie development of a program
for the guidance of agencies under the Order,, for the providing of technical
advice to agencies, and the training of agency personnel and management officials
in the discharge of their responsibilities under the Order. On April 24. 1962, the
Commission issued PPM Letter No. 700-1 entitled "Executive Order 10988. A
Sectional Analysis with Suggested Guidelines to Assist Agency Implementation of
the Order". In describing Section 3 the Commission said:
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"The introduction of the employee-management cooperation program should
in no sense he viewed as an effort to deemphasize the importance of the
individual or to dilute existing programs designed to meet his needs and
Protect his rights. This would not be desirable in any event in view of the
Government's traditional concern for effective personnel management, the
requirements of the merit system, and the policy of strict neutrality with
respect to the decision of employees to join or not join an organization. For
example, even where there is exclusive recognition, any individual employee
has the right to choose his own representative in a grievance action.
"Congress has granted special rights and privileges to Government em-
ployees who are veterans, and, over the years, veterans organizations have
been active on behalf of their members in exercising these rights and
privileges. The development of more formal employee-management relations
should not be permitted to inhibit, restrict, or impair these services of
veterans organizations with respect to matters of particular concern to
their membership.
"Similarly the program for employee-management cooperation does not
affect the right of employees to form or join other lawful groups such as
religious, social, and fraternal organizations which do not meet the condi-
tions for recognition or to present the views of these groups to management.
Although these groups may not be given recognition under the Order, man-
agement is free to deal with them in areas in which they have particular
interests. However, such dealings may not cover matters outside the special
concerns of these groups. Such dealings also are not appropriate if they result
in discrimination against or injury to the interests of other employees." (Em-
phasis added).
In August 1962, the Commission issued a publication entitled "Employee-
Management Cooperation in the Federal Service?Basic Training Material"
which was described as "material intended for management training . . ." In
this publication the Commission instructed agency management :
"C. Relationship with other organizations and special groups.
"The program for employee-management cooperation does not affect the
right of employees to form or join lawful groups which do not meet the
conditions for recognition or to present the views of these groups to manage-
ment. There are many social, religious, and other groups with Federal chap-
ters and management is free to deal with these groups in areas of interest
to them, but such dealings may not extend to matters outside the special
concerns of these groups. They may not be given recognition under Executive
Order 10988."
Tins section of the Executive Order, and the foregoing interpretations of it,
continued until Executive Order 10988 was replaced by Executive Order 11491,
effective January 1, 1970. Section 3(e) (3) was carried over into Executive Order
11491, as Section 7(d) (3) in substantially verbatim form. There has been no
change in it, except that, by Executive Order No. 11616. August 26, 1971, the
section was amended by addition of the word "professional". At that time the
Federal Labor Relations Council issued a "Report and Recommendations",
explaining the changes which had been made, in which it said:
"The Council conducted an intensive study and held 18 executive sessions
to discuss major policy issues directly related to the Order. There were
several of these issued on which, after due consideration, the Council earl-
eluded that revision of the Order is necessary at this time. Our recommenda-
tions on these matters are discussed below. . .
"A. REPRESENTATION
(1) Section 7(d) (3) should be amended by adding "professional" to the
types. of lawful association, not qualified as labor organizations, with which
an agency may have limited dealings not inconsistent with the .righti of
recognized labor organizations. . . .
"In some instances, agencies may be overly fearful of violating the rights
of recognized labor organizations and unnecessarily refrain from proper
dealings with professional associations on purely professional matters. To
maintain such communications and to avoid further misunderstandings.
we recommend that 'professional' be explicitly included among the types of
associations listed in section 7(d) (3) with which an agency may have
limited dealings not inconsistent with the rights of recognized labor orga-
nizations. . . ."
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TI1118, the Government's philosophy in this field has been uniform since the
incept ion of the Government's labor relations program in 1962. Veterans organi-
zations, professional societies, and similar employee groups not organized as
labor unions, perform useful services for thcir members?and in many instances
for their agency?and their existence and right to communicate with their agen-
cies should be preserved. The difficulsy has been that the formulation of the gov-
ernmental philosophy expressed in the Executive Orders has been so weak that
its purpose has been frustrated. H.R. 10700 continues this ineffective formulation
of words, almost in haec verba.
Our difficulties on this subject are two-fold
1. The language does not require agencies to deal with non-union employee
groups; it merely provides that they may. In some agencies management has
taken advantage of this by flatly refusing to talk to professional societies of their
employees. It certainly will not come as news to this Committee to hear that some
agencies are natl.-employee, and refuse, frustrate and delay all attempts at union
recognition and collective bargaining. If this attitude did not exist, the present
demand for an effective labor relations law would not exist. In such agencies
management uses the permissive language of the present Section 7(d) (3) of Ex-
ecutive Order 1,1491 as an excuse to have no dealings with professional societies
and other employee gm oups. Other agencies claim that they are under union
pressure to refuse to talk to anyone other than the exclusive bargaining repre-
sentative, even though it is obviously the intention of the Executive Order to ex-
pressly permit this. In still other instances, agency managers deliberately mis-
understand the language of the section and claim ';hat it forbids even informal
discussions on any subject that could be the subject of collective bargaining.
2. The second probleta in the language piTsent13. used in Section 7(d) (3) of
Executive Order 11491, and which is repeated 'almost verbatim in Section 7106
(1) (3) of H.R. 10700, is alluded to above. Both provisions provide that dis-
cussions with agencies "shall be so limited that the 3 do not assume the character
of formal consultation rn matters" appropriate for collective bargaining. This is
the language which is used by recalcitrant agency management to refuse to have
any informal discussiors of any kind, with professional societies or their employ-
ees. We cannot conceive of any subject of discussior between an agency and any
member of the public, or group of members of the public, which could not in
some manner affect the working conditions of employees, and thus be an appro-
priate matter for collective bargaining. This is even more true with discussions
between an agency and lawful associations of its emi loyees.
If a religious organization wished to discrss the agency's practice with respect
to religious holidays, or a veterans organization wished to discuss the agency's
veterans preference hiring practices, or the Federal Bar Association wished to
discuss the treatment of attorneys and hen ring examiners, this could obviously
affect the working conditions of some employees. This is what the government's
labor relations program has always intended, but this is not the way many
agencies construe the present Executive Ordor. The limitation which was intended
to be imposed .rn such discussions is not with respect to the subject matter of the
discussions, but with respect to the type of er:scussio n.
Associations not qualified as a union are intended to be able to discuss matters
affecting their members, but they may not engage in formal collective bargaining
about it. This is reserved for unions. If a Federal professional society wishes to
engage in collective bargaining about matters of personnel policy or practice, or
working conditions, it should qualify as a union. Three of the professional associ-
ations that are members of our federation have done so. The rest of our members
prefer to pursue the aims and goals of professional societies, and to limit their
discussions with agencies to consultation falling short of collective bargaining.
To meet this problem we suggest that the words "formal consultation" on
line 11 of page 18 of the bill be changed to "n egotiati ons". Our experience has been
that agency managers either do not know what "formal consultation" means, or
use it as an excuse not to have any consultation at all. The word "negotiations"
has a clear meaning in the bill: it is what a labor organization having exclusive
recognition is entitled to engage in, under Section 7107. The same term should
be used to define what other associations should not lo.
We have presented u proposed redraft of Section 71(1), which will meet the
above problems, and we attach it to this statement as Attachment "B".
Other bills before the. Committee are even less favorable to. employee associa-
tions that are not unions. H.R. 13 provides that they may not speak to anyone at
all, even informally, about matters appropriate for collective bargaining. In H.R.
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9784 we cannot find any provision permitting agencies to continue to have any
discussions of any kind with employee groups that are not unions, on any subject.
III. THE INCLUSION OF PROFESSIONALS IN COLLECTIVE BARGAINING UNITS
Executive Order 11491 provides that a unit shall not be recognized for collec-
tive bargaining purposes, if it includes "(4) both professional and non-profes-
sional employees, unless a majority of the professional employees vote for inclu-
sion of a unit." Section 10(b) (4). There are no provisions for the consent of non-
professional employees to such a combined unit, nor is there any provision for the
later decombining, or exclusion of professionals, if they should later determine
that they do not wish to be in the unit. Section 7106(h) (6) of H.R. 10700 is to
the same effect, and has the same defects.
Professionals have their disputes with management, just as non-professionals
do, but they are frequently different disputes. Their purposes would often be
better served if they were in a separate bargaining unit of their own, rather than
combined in one unit with clerks, blue-collar workers, and other non-profession-
als. The present Executive Order permits the establishment of a unit on a "plant
or installation" basis, which would include everyone in a plant or installation,
even though the different classes and crafts of employees may have no com-
munity of interest in their disputes with management. H.R. 10700 repeats these
words in Section 7106(g).
Unfortunately, the average Federal employee is not sophisticated concerning
labor law. We have heard many complaints that a notice of election of a col-
lective bargaining representative was posted, but professiona empoyees did not
realize that they had a right to separately elect to be included or excluded. Once
they are included, sometimes almost by default, they may never vote to be ex-
cluded. The present Executive Order is a one-way street. We have heard pro-
fessional groups complain to the Federal Labor Relations Council about this re-
peatedly, but the Council has. done nothing about it.
This Committee should act on this long-standing complaint. For this purpose we
suggest two changes: First, that Section 7106(h) (6) of H.R. 10700 which now
provides that a unit shall not be established if it includes '(6) both professional
and non-professional employees, unless a majority of the professional employees
vote for inclusion in the unit", be deleted and there be substituted for it the lan-
guage contained in H.R. 9784, Section 6 (f ) (3) (p. 24) which reads as follows:
"(3) a unit including both professional and non-professionals shall not
be appropriate unless a majority of the employees in each category indicate
by vote or other credible evidence that they desire to be included in such
unit ; and"
Second, that Section 7106(c), on pages 13-14 of the print of October 3, 1973
which states the circumstances in which an election may be held to determine a
collective bargaining representative, or the termination of representation, be
changed by adding to it a provision that such an election may be held when a
majority of professional employees in a combined unit no longer wish to be
included in the unit. We attach a proposed amendment to Section 7106(c) to
give effect to this change. It is attached hereto as Attachment "C", and we solicit
the Committee's favorable consideration.
IV. THE DEFINITION OF A PROFESSIONAL
The present Executive Order 11491, as stated above, provides that professional
employees may vote not to be in a unit together with non-professionals. Section
7106(h) (6) of H.R. 10700 repeats tins language. Executive Order 11491 does
not define who is a "professional", but this was added by a decision of the
Assistant Secretary of Labor, dated June 26, 1972, known as the Department of
Interior, Riverside case, decision No. 1.70. In that case the National Federation of
Federal Employees (NFFE) sought an election of all non-professional employees
in the Riverside District and Land Office, Bureau of Land Management.
The parties stipulated that Range Conservationists and Wildlife Management
Specialists were professionals, as they were expected to have a college degree
with at least 30 hours of major study in biology, plus additional on-the-job train-
ing. The parties were in dispute whether Realty Specialists, Outdoor Recrea-
tion Planners and Appraisers were professional because, although the activity
lured only those with an academic degree, this was not required by Civil Service
Commission standards. The Assistant Secretary held that an five categories
were not professionals. He adopted verbatim the very restrictive definition con-
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fabled in the National Labor Relations At whiei requires a post-graduate
college degree, as distinguished from "a general academic education".
The Department of Interior attempted to appeal the decision to the Federal
Labor Relations Council, but its appellate jurisdiction is of the permissive,
certiorari, type, and the Council denied the Department's Petition for Review.
Lu its Petition for Review, the interior Department pointed out that the NLRA
definition will exclude all government professionals except a "small portion . . .
dominated by law, medicine and engineering", and th it there had been no hearing
whatever as to Range Conservationists and Wildlife Management Specialists. On
I his subject, the Department's Petition for Review said :
"There was no opportunity to present a prehearing brief, no opportunity
for reasonable preparation in advance, no opportunity to develop exhibits or
prepare testimony- or arguments, no opportunit7 to call or offer witnesses,
there was no prior knowledge that the question was even at issue. See Ex-
hibit 2. This does not constitute Inc prwess in our view. This is disservice
to the prin2iples of impartiality, order. Clue process, full and fair day in
court."
The Federal Labor Relations Council was unmoved by this. In effect it en-
gaged in a rulemaking proceeding of major importance, affecting hundreds of
I housands Of Federal employees who have always regarded themselves as pro-
fessionals. with nit giving affected persons a right to comment, as provided by
I lie Administrative Procedure Act. It decided this important issue in a single
isolated case, uaknown to the affected public, and then refused to review the
decision, or to remand it so that a hearing might be I. ad. The Assistant Secretary
has Sillee applied the same definition to hold that Historians, Librarians, and
Operations Research Analysts are not professionals. U.S. Army, Safeguard Sys-
I PHIS Command, Assistant Secretary's decision No. 24, December 4, 1972.
Unfortunately, H.R. 10700, in Section 71113(a) (13) adopts the identical de-
finition, taken verbatim from the National Labor Rentions Act. There are many
specialties in today's society that have marked intellectual content, and are
manned by persons who have a specialized education acquired in an institution
if higher learning, or its equivalent, a diploma or certificate based on examina-
tions, who adhere to a code of ethics, and that are nrmed into learned societies
that utilize some form of accreditation for its members. But, under the present
definition taken from the private sector, they are not professionals.
Several years ago the Job Evaluation and Pay Review Task Force?known as
the Oliver Task Force?recommended to Congress a revised job-evaluation
grouping for Federal employees, broken down into six classifications, one of
which was professional employees. The Task Force estimated that there were
approximately 600,000 non-supervisory employees in the Federal government in
such positions. In the course of this, in July 1970, the Task Force prepared a
position paper defining professionals and their unique role in the Federal service,
We quote pertinent portions of it:
"PROFESSIONS IN THE FEDERAL GOVERNMENT
"This paper describes the professions and their place in American society
today ; it points out some of the changes professions are now undergoing; it
describes how they are becoming increasingly important in governmental
processes; and it suggests a course of action for the Federal Government
with respect to the classification and pay of its professionals.
"'PROFESSIONS TODAY
"The professions have always been recognized as being the bridges between
knowledge and power: the occupations through which knowledge and learn-
ing are mit to service in society. The role of the 'profession is a central one in
all industrail societies; and this role becomes increasingly important as
industrialization advances. As William .1. Goode has put it, 'an industrializ-
ing society is a professionalizing society.' An increasing complex division of
labor and specialization of occupational functicn is not only induced by in-
dustrialization, it also appears to be required by it. (Howard M. Vollmer and
Donald L. Mills. Professionalism, (New York: Prentice Hall, 1966), p. 46.)
"Thus, in 1900 the largest single group of the American people was rural
and made a. living on the farm. By 1940, the largest single group by far was
that of the industrial worker, typified by the machine operator. In 1960,
the largest single group was composed of professional, managerial and tech-
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nical people, that is, knowledge workers: people who work with ideas, con-
cepts and information rather than manual skill or muscle. Yet a century ago
an educated man could make a living through knowledge only in a few pro-
fessions?there were no other knowledge occupations. By 1980 at the latest,
Peter Drucker predicts, this group of knowledge workers will embrace the
majority of Americans at work in the civilian labor force. Where the pro-
fessions were once the only full-time knowledge occupations, they are now
the elite group of a vast and growing number of knowledge occupations.
(Peter F. Drucker, The Age of Discontinuity, (New York: Harper & Row,
1969), p. 264.)
"Now, Everett C. Hughes states 'Professions are more numerous than ever
before. Professional people are a larger proportion of the labor force. The
professional attitude, or mood, is likewise more widespread; professional
status, more sought after. These are components of the professional trend, a
phenomenon of all the highly industrial and urban societies; a trend that
apparently accompanies industrialization and urbanization irrespective of
political ideologies and systems." (Everett C. Hughes, 'Professions,'
Daedalus, Fall 1963, p. 655.)
"And Kenneth S. Lynn says: 'Everywhere in American life, the professions
are triumphant. As Clark Kerr has pointed out, we already devote an impressive
percentage of the gross national product to the training of professionals, and
he predicts that the day is coming when the knowledge industry will occupy
the same key role in the American economy that the railroad industry did a
hundred years ago.' Lynn points out that during the 'fifteen year period (1955-
1970) in which we are attempting to double the number of our high school
teachers and triple the number of college professors?an awesome task which is
made even more difficult by the simultaneous and equally grandiose expansion
plans of all the other traditional professions, the spectacular proliferation of new
professions and the increasing professionalization of business life?America has
become more cognizant of the professions, and more dependent upon their
services, than at any previous time in our history. Thorstein Veblen's sixty-year-
old dream of a professionally-run society has never been closer to realization.'
(Kenneth S. Lynn, 'Introduction,' Daedalus, Fall 1963, p. 549.
"WHAT ARE PROFESSIONS?
"The term professions may be used to mean two things: a particular category
of occupations or the people who practice in that particular category of occupa-
tions. Professional may similarly mean the attributes of such occupations or of
the people performing that kind of work; professionalization may be taken to
mean the process by which an occupation becomes a profession or its members
become more professional.
"The sets of criteria by which professions are to be distinguished from
other occupations are almost as numerous as writers on the subject." (Quot-
ing a variety of definitions.)
"To summarize: A profession is a full-time occupational specialization
having a marked intellectual content and requiring prolonged education for
its practice; it requires of its members a personal commitment to a career
and way of life and a commitment (formalized in a code of ethics) both to
the client whose needs are served, and to the society of which it is a part;
it employs some kinds of tests to determine its membership and utilizes some
forms of accreditation for those members; it exercises occupational self-
control recognized by the public and by its clients; it utilizes formal occu-
pational associations to further its aims ; it is dedicated to occupational
advancement through research and the dissemination of knowledge about
and within the occupation through occupational publications-.
"This description of a profession might serve as one extreme of a con-
tinuum of occupations ranging from laboring to crafts and technical trades,
into the knowledge occupations and on to the professions, and culminating
in the most fully professionalized occupations. Each individual profession
falls into place somewhere along the continuum between the lowest
knowledge occupation, whose only -professional characteristic is that it
applies information gained through education, to such fully developed pro-
fessions as medicine and law. The lowest limit for major professions along
the continuum might be a recognized occupation requiring the equivalent
of a bachelor's degree and offering a lifetime career to its members. Minor
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and auxiliary professions, requiring less than a bachelor's degree, would
fall just below them. These two groupings would include not only established
professions but many emerging :professions which are still moving toward
full professional status.
"CHANGIISG PROFESSIONS
"Harold L. Wilensky ('The Professionalizaton of Everyone', American
Journal of figcciology, LXX ( September 1949), 1,13( as noted there are seven
key milestones in the process of profssionalization of an occupation. The
first milestone is reached when the occupation becomes a full-time one: the
second milestone is the establishment of the hrst training school for the
occupation; the third is marked by the establishment of the first university
school for the occupation; the fourth is the establishment of the first local
professiona.. association; the fifth is marked hy the establishment of the
first national professional association; the sixth is reached when the occu-
pation obtains its first state licensing law ; and the final milestone is
reached with the establishment of a formal cole of ethics. For the tradi-
tional professions to traverse the seven milestones took centuries in the past.
Now, new professions emerge from nonprofessional occupations and as
specializations from the traditional professiors in decades or less. The
rapid change of pace in our society reflects itself in the rapidity with which
new professions now emerge.
"The nature of a profession has always reflected and reacted to the struc-
ture and needs of the society in which it practiced. As western societies have
evolved from preindustrial or lightly industrial societies to predominantly
industrial ones and thence to the post-industrial, knowledge-centered, service-
centered society characteristic of the United States today, the structure and
work relationships of the professions have always changed accordingly.
Although some professions have always operated in an organizational matrix,
for example, .the clergy and the civil service, ti e predominant relationship
in the past was that of an independent professional and an individual client.
In the industrial and knowledge-centered society of the 1960s and 1970s, the
dominant pattern has become that of operation within an organizational envi-
ronment. In increasing proportions, professionals find themselves working as
salaried employees in Government, industry, research centers and founda-
tions as the key, and sometimes major, group within the organizations.
"PI:OFESSIONS IN THE PUBLIC SERVICE
"Frederick C. Mosher points out that American governments (Federal,
state and kcal) are the principal employers of professionals. According to
the 1960 census, 36% of all the 'professionals, technical, and kindred' workers
in the United States were employed by governments. 'Looked at another
way, about one-third of all government employees were engaged in profes-
sional and technical pursuits. This was More than three times the com-
parable proportion in the private sector.' (Democracy and the Public Serv-
ice (New York: Oxford University Press, 1968). p. 103). He states that in
most of the professionalized agencies of government (and this includes the
most important ones) the managers are professionals in the specialized
occupational fields of their agencies; most of ti ose designated as staff are
also professionals but typically in fields of specialism different from the man-
agement; many of the workers?and most of those in middle management
Positions?are also professional, usually in the same professions as manage-
ment. A result. ays Mosher, is that the professional composition of public
agencies has substantially revolutionized the precepts and practices of
public employment. Most importantly, What has happened is 'a delegation
of real personnel authority, formal and/or informal, from a central
personnel office or Civil Service Commission to the professions and the pro-
fessionals themselves. A basic drive of every profession, established or emerg-
ing, is self-government in deciding policies, criteria, and standards for em-
ployment and advancement, and in deciding individual personnel matters.
The underlying argument for such professional hegemony is that no one
outside--no amateur?is equipped to judge Or even to understand the true
content of the profession or the ingredients of melt in its practice. The argu-
ment is difficult to challenge, particularly in -highly developed, specialized,
and scientised fields with which an amateurs?or a professional in personnel
administration?can have only a passing acquaintance.'
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"Mosher concludes 'For better or worse?or better and worse--much of
our government is now in the hands of professionals (including scientists).
The choice of these professionals, the determination of their skills, and the
content of their work are now principally determined, not by general govera-
mental agencies, but by their own professional elites, professional orga-
nizations, and the institutions and faculties of higher education. It is un-
likely that the trend toward professionalism in or outside of government will
soon be reversed or even slowed.'"
The conclusions to be drawn from this are, that at the present there are 600,040
or more professionals in the Federal work force, the Federal government utilizes
professionals in many specialties unknown to private industry, already they have
revolutionized public employment, as our society becomes increasingly techno-
logical and scientific they will have increasing importance to society and to the
government. As employees of the government they too have their disputes with
management. A labor-management system that attempts to deny their existence
or importance, or to reject their legitimate needs, by artificial and restrictive
definitions drawn from the 18th Century, as the present administraitve system
under Executive Order 11491 does, is simply divorced from reality. A definition
of the term "professional" that is more attuned to the present facts of life in
the government is needed. To that end we recommend that H.R. 10700 strike the
definition taken from the National Labor Relations Act and now contained in
Section 7103(a) (13) of the bill and adopt, instead, the more liberal definition
utilized in H.R. 9784, Section 3(g) which reads:
"(g) The term 'professional' includes any employee whose work?
"(1) is predominantly intelectual and varied in character;
"(2) requires the consistent exercise of independent judgment;
"(3) requires knowledge of an advanced nature in a field of learning
customarily acquired by specialized study in an institution of higher educa-
tion or its equivalent; and
"(4) is of such character that the output or result accomplished cannot
be standardized in relation to a given period of time."
V. THE STATUS OF SUPERVISORS
Executive Order 11491 does not permit management officials or supervisors,
down to the lowest possible level, to be represented by labor unions, or to be
active in unions. They may not be in a unit recognized for collective bargaining
purposes. Section 10 (b ) (1). The definition of a supervisor contained in the
Executive Order is taken verbatim from the National Labor Relations Act. It is
repeated, verbatim, in Section 7103(a) (8) of H.R. 10700. We think that the
definition is much too severe for the Federal service. In the Federal service most
supervisors are not truly a part of management. They da not have realtistic
authority to hire or fire, or take other management action. They are employees,
who have disputes with management just as non-supervisory employees do. When
President Kennedy first issued Executive Order 10988 in 1962, the Department
of Labor retained Professor Sterling Spero of New York University as a con-
sultant on the Department's labor relations under the new Order. On the subject
of the exclusion of supervisors from collective bargaining units, Professor Spero
said:
"The government white collar services are sui generis when it comes to
distinguishing between supervisor and staff . . . The fact is that demarca-
tion between rank and file (and) supervisor is blurred by the very nature
of the civil service classification system. Titles or grades tell little . . .
Those in the higher classifications need more assistance and therefore have
larger staffs, but the top man is not necessarily a 'supervisor' in the sense
that be is a part of 'management' . . . It is true that higher ranking
personnel recommend the rating of their assistants. but they do not make
final ratings. Nor do they realistically hire or fire. Unless they do this they
are not in my opinion supervisors in the managerial sense or under the
terms of the Executive Order.
"The test of the managerial employee is authority to determine admin-
istrative policy, realistic power to rate, hire and fire employees. Personnel
officers and their staffs privy to policy and, perhaps, administrative and fiscal
officers are also organs of management. Answers to your questions also
attempt to distinguish between the roles of true managerial officials and
supervisory employees who do not really exercise managerial authority.
Your consultant finds that such employees by long membership in Lodge 12
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have demonstrated a common interest with the rest of the membership
and should on this ground continue to be included in the bargaining unit."
The 1963 Ar nual Report of the Section on Labor Relations Law, American
Bar Association, reported on Executive Order 10988 and in the course of it
said:
"A. definition of conflict of interest which excludes all supervisors confers
upon many levels of supervision an aura of managerial responsibility which
simply does not exist in the Federal scheme of things."
We therefore suggest; to the Committee that tie proposed plan of the bill
which would exclude all supervisors, down to the lawest level, from activity in
a union or from representation in a unit, is too severe and should be modified.
The bill now excludes management; officials from collective bargaining units
(Section 710fl(b) (1)), and from participation in the management of a labor
organization (Section 7103(b) (2) ). This should be sufficient. if a supervisor's
duties do not rise to the definition of a management official, he should not be
barred from the benefits of unionization.
As stated above, supervisors have disputes .with management just as non-
supervisory employees do, and have need to engage in collective bargaining
on matters of personnel policies and practices ,ind working conditions. In
order to provide swime relief for supervisors, who are completely barred from
membership in collective bargaining units under Executive Order 11491. the
Executive Order provides a substitute, contained hi Section 7(e) of the Order
reading as follows :
"(e) An agency shall establish a system of intramanagement communica-
ca don and consultation with its supervisors or associations of supervisors.
These communications and consultations shall have as their purposes the
improvement of agency operations, the improvement of working conditions
of supervisors, the exchange of information, the improvement of managerial
effectiveness, and the establishment of policies that best serve the public
interest in accomplishing the mission of the agency."
Firfortunately, this has not worked. The system so ,:stablished does not provide
for the right te engage in ecillective bargaining, nor to reach negotiated agree-
ments resolving problems, as units of non-supervisory employees have. Further,
in a recent decision known as the Social Security Administration ease, FLRC
No. 78A-17, the Federal Labor Relations Council beld that the refusal of an
agency to comply with the limited obligations placed on it by Section 7(e) of the
Executive Order :is not an unfair labor practice, and that the Council will take
to action on a complaint filed by an association of supervisors. Before that:
decision, Section 7(e) was a poor substitute for collective bargaining; now it is
a dead letter.
}Wen before this decision some agencies contended that a professional society
might not qualify under Section 7(e) if it had any non-supervisory members,
or that if recognized under Section 7(e) rhe assolciation could discuss only
such personnel problems as are applicable exclusively to supervisory employees,
or that only the supervisory members of an association might have dues with-
al diiig
'We respectfialy represent to the Committee that any Federal employee who
is not truly it part of management ought not to be excluded from the benefits
union representation. At recent hearings which were held by the Federal Labor
Relations Council to consider requests for improvements in Executive Order
11491 almost every union that testified, and also some department personnel
representatives urged that the present rule against the inclusion of supervisors
in units be either abolished or modified. There has been similar testimony
before this Committee. We suggest that there are three ways of accomplishing
this worthwhile purpose.
"la) Eliminate all reference to supiirvisors in the bill. Eliminate the
definition of a supervisor in Section 7103(a) ) ; the provision of Section
7193(b) (2) that a supervisor may not participate in the management of a
labor organization, and the provision of Section 7106(h) (1) that a unit
may not be established if it includes supervisors. Thus would bar only
persons who are truly management officials, and would permit supervisors
to be included within collective bargaining units together with non-super-
visors and to be aciive in their union. This may create some conflicts of
interests be:;ween supervisors and non-supervisors in the same units, as their
interests on collective bargaining issues may differ on some points, and
might cause them to be swallowed up by the interests of non-supervisors who
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Labor Relations Council this was the solution that the unions seemed to
want.
"(b) Amend the bill so as to enable supervisors to organize as unions, but
in separate units from non-supervisors, represented by different unions, as
some state laws now provide.
'(c) Give supervisors a separate vote, as professionals now have, on
whether they want to be included in a unit with non-supervisors, or in units
of their own."
We have no preference between these two solutions, but we strongly urge the
Committee to amend II.R. 10700 to include one of them.
VI. ANTI-PROFESSIONAL PROVISIONS IN THE BILL
There are two sections in the bill which do not appear to have any purpose
except to disqualify professional associations and small craft guilds from obtain-
ing union recognition. We respectfully urge that any language having such effect
should be corrected.
First, we believe that Section 7103(a) (4) (A), page 5, lines 10-13, should be
striken from the bill. This subsection in effect would prohibit any professional or
fraternal society from ever becoming a labor union. Many such societies have
become labor unions in the past, not only in the private sector, but in the govern-
ment as well. This Committee has already heard from the National Treasury
Employees Union and the Professional Air Traffic Controllers Organization, and
this morning will hear from the National Association of Air Traffic Specialists.
All three of these organizations are very good labor unions, that commenced their
careers as Federal professional societies. Additional examples are the NLRB
Professional Association, the Federal Plant Quarantine Inspectors' National As-
sociation, the Patent Office Professional Association and the American Foreign
Service Association. We think that any association of Federal employees should
be permitted to convert into a labor union if it wishes to do so.
Also we suggest that Section 7100(g) (page 15-16) be amended by adding the
word "craft". This section provides that a unit may be established "on an agency,
plant, installation, functional, or other basis . . ." This language is taken almost
verbatim from Section 10(b) of Executive Order 11491, except that it eliminates
the word "craft". The only purpOse of this appears to be to eliminate the small
craft guild from qualification as a labor union, thus giving a monopoly to the
presently existing large, overall multi-purpose unions. Many employees prefer to
be represented by a small union composed only of members of their own particular
craft or profession, and which devotes all of its time and energies to representing
this one group. This is also true in the private sector. Section 9(b) of the Labor-
Management Relations Act of 1947 provides that an appropriate unit may be "the
employer unit, craft unit, plant unit, or subdivision thereof. . . ."
We see no reason why Federal employees should not continue to have the
same right which they had under Executive Order 11491, and which employees in
the private sector have, to be represented by a small union of their own class
or craft or profession. In the private sector there are many examples of such
small unions, that do an excellent job of representing their members, such as
the air line pilots, marine engineers, musicians, firefighters, teachers, carpenters.
plasterers, the various railroad craft brotherhoods, etc.
Indeed, in the private sector most unions are craft unions. It is also true of
many Federal unions, such as the Professional Air Traffic Controllers Organiza-
tion, the National Association of Flight Service Specialists and the American
Foreign Service Association. It has been our experience that many Federal em-
ployees prefer to be represented by a small craft guild that devoted all of its
time and attention to the problem of their one class or craft, than by a large union
which attempts to represent all different craft, but has expertise in the prob-
lems of none. We respectfully urge that the word "craft" be reinserted in Section
7100(g).
VIT. JUDICIAL REVIEW.
We suggest that decisions of the proposed Federal Labor Relations Authority,
with respect to the certification of majority unions, decisions on unfair labor
practice charges, grievance appeals and so forth should be sUbjeCt to judicial
review in a Federal court, preferably by petition for review to a U.S. Court of
Appeals, as is now provided by Section 10 (1 ) of the Labor-Management Rela-
tions Act of 1947. Administrative agencies that are not subject to judicial review
can easily become arrogant and oppressive.
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One of the difficulties with the present system of Federal labor-management
relations by Executive Order is that the United States Court of Appeals for the
District of Columbia Circuit has held that it is ;simply a formulation of Presiden-
tial policy for the guidance of Federal agencies, having no foundation in Con-
gressional action, and is therefore not subject to judicial review. Manhattan-
Bronx Postal Union v. Uronouski, 350 F.2nd 451, :121 App. D.C. 321 (1905). As
a result, Federal employees who believe themselves aggrieved by decisions of the
Assistant Secretary of Labor, or the Federal Labor Relations Council, have
no avenue of judicial review. This should be provided by the proposed legislation.
We greatly appreciate the opportunity to exPress our views on this important
subject.
ATTACHMENT A
"? 7108. Allotments to representatives
"(n) Where, pursuant to an agreement negotia-;ed [in accordance with the
provisions of this subchapter] between an agency and a labor organization or
association of employees, an agency has received from an employee in a unit
or association a written assignment which authorizes the agency to deduct from
the wages of such employee money in the payment of regular and periodic dues
of a labor organiztion having exclusive recognition in such unit, or of an employee
association such assignment shall be honored. The allotments shall be made at
no cost to the labor organization or to the employee. Except as required under
subsection (lb) of this section, any such assignment shall be irrevocable for a
period of 1 year.
"(b) An allotment for the deduction of [labor organization] dues terminates
when?
" (1) the agreement between the agency and the labor organization or
employee association is terminated or ceases to be applicable to the em-
ployee; Or
" (2) the employee has been suspended or e:tpelled from the labor orga-
nization or association.
"(c) Nothing in any agreement negotiated under this subchapter shall require
an employee to become or to remain a member of a labor organization, or to pay
money to the organization., except pursuant to a voluntary, written authorization
by a member for the payment of dues through payroll deductions."
ATTAI :1-IME1V'r 13
"Section 7196
"(1) Despite exclusive recognition of a labor organization, in whatever form
accorded pursuant to the provisions of this section. [shall not]
"(1) [preclude] any employee, regardless of his membership or non-
membership in any labor organization. [from bringing] may bring a griev-
ance to the attention of appropriate agency officials, or [choosing] choose
his own representative in a grievance or appeal action;
"(2) [preclude or restrict discussions] agenci?s shall establish and publish
procedures for communication and con natation between [an] the agency
and a veterans' organization with respect to natters of particular interest
to employees with veterans' preference; or
"(3) [preclude or restrict discussions] agemies shall establish and pub-
lish proceaures for communication and consuVation with religious, social,
fraternal, nrofessional, or other lawful associations not; qualified as labor
organizations, with respect to matters or policies that are of particular
applicability to them or their members, but such discussions shall be so
limited that they do not assume the character or [formal consultations]
negotiations on matters [appropriate for] subject to collective bargaining
under this Act or extend to areas where recognition of the interests of one
employee group mar result in discrimination against or injury to the inter-
ests of other employees."
ATTACHMENT C
"Section 7100 (c )
'(c) Whenever a petition has been filed with the Authority?
"(1) by any person alleging that 30 per centum of the employees in an
appropriate unit (A) wish to be represented for collective bargaining by
an exelusive representative, or (B) allege that the exclusive representative
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423
is no longer the representative of the majority of employees in the unit or
allege that a majority of the professional employees no longer wish to be
included in the unit;
"(2) by any person seeking clarification of, or an amendment to, an
existing certification;
the Authority shall investigate such petition, and if it has reasonable cause
to believe that a question of representation exists, it shall provide for an appro-
priate hearing upon due notice. Except as provided under subsection (f) of
thi?m section, if the Authority finds upon the record of such hearing that such
a question of representation exists, it shall conduct an election by secret ballot
and shall certify the results thereof. An election shall not be conducted in any
bargaining unit or in any subdivision thereof within which, in the preceding 12-
month period, a valid election has been held."
Mr. Him,. Now if the Chairman please, I would like to refer to the
other three members of our group who have independent statements
to make. I believe the first one was Mr. Hughes.
STATEMENT OF WILLIAM G. HUGHES, GENERAL COUNSEL,
NATIONAL ASSOCIATION OF FEDERAL VETERINARIANS
Mr. IItronEs. I am William G. Hughes. I represent the National
Association of Federal Veterinarians as its general counsel.
The National Association of Federal Veterinarians was organized
in 1918 and since then has been the spokesman for the federally-
employed veterinarian.
Membership now approaches 1,700, and includes over two-thirds of
the federally-employed civilian veterinarians. We believe that we
have much in common with other Federal employees, particularly
professionals and those classified as supervisors.
It is with this point we wish to supplement the testimony given by
Mr. Hill.
Under the current definition, the overwhelming percentage of our
members are considered to be supervisors, largely because of their
professional positions.
So while NAFV is frequently thought of as being a professional
association, it is currently operating under paragraph 7(e) of the
Executive order as an association of supervisors and managers.
The primary purpose of the assocation is the betterment of the
conditions of employment for veterinarians and other matters affect-
ing their relations as Federal employees.
We now have an official consultative relationship with both the Food
and Drug Administration and the United States Department of Agri-
culture. Dealing with agents of employing agencies under this consul-
tative relationship, however, has proven inadequate and we strongly
advocate legislation which will give Federal veterinarians and other
supervisors in similar situations the rights to deal more effectively with
the matters of greatest concern to all employees. The NAFV believe
that the means by which it can most effectively represent Federal
veterinarians is through collective bargaining.
Consultation is governed by paragraph (e) of the Executive order
which has been held to be unenforceable. Consultation, therefore,
exists at whim of the agency management and on their terms.
Usually this means that by associations such as ours are merely
informed after the decisions are made with no real opportmiity for
meaningful interchange or true consultation.
We wish to see legislation which would not preclude supervisors
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from forming collective bargaining units. This is important because
the supervisor in the multitiered Federal sector is for the most part
isolated from effectively dealing with matt?rs affecting that super-
visor's own employment.
Tire average Federal veterinarian as a Federal supervisor is not now
a part of the labor-management dichotomy around which relations
are based. Unions cannot now represent supervisors and management
does not because it speaks for the agency aid not for supervisors as
employees.
Supervisors, therefore, should not be grouped with management. The
average supervisor in the Government has far more in common with
the rank-and-tile employee than with management.
However, neither side speaks for these employees who are largely
responsible for maintaining morale, making the system work effec-
tively, and because of the nature of the Federal employment sector,
actually perform a great deal of the work output.
To omit such a large segment. from equitable representation is an
injustice and is contrary to the policy of the Government which
acknowledges the benefits to each side when collective bargaining is
possible.
We do not believe that permitting supervisors to be represented by
collective bargaining units will cause any st?.vere problems.
We can foresee the creation of no conflicts of interest by permitting
supervisors to so organize. There is no agency policy made by super-
visors, per se,
With agents of the employer, that is, management on one side and
employees on the ?trier, a clear-cut dichotomy can be made.
The mere rating, evaluating, and assigning, within narrow limits,
of other employees should not preclude participation in collective
bargaining. If the delineation is made between management and
employee, there will be no conflict and the result will mean that a large
number of employees will be effectively represented with the benefits
flowing to each side.
We do not wish to have eligibility for collective bargaining deter-
mined by the number of persons supervised. Such arbitrary numbers
games caused confusion and may allow individuals in comparable
positions to be classified differently and do not truly reflect respon-
sibility.
We wish to remove all restrictions on supervisors when they are
not truly agents of the. employer, from bei=ig eligible for collective-
bar,(mining, units. This may be accomplished with a definition of
management official which would include all those who do make policy
and who do speak for the employing agency.
Therefore, we urge this committee to report out a bill which will
not eontbrue to keep us ineffective in (healing with employee matters
or one which will sound our death knell by removing what few rights
we do have.
l'Ve urge you to include in any proposed legislation the right of
supervisors, who are not management officials, to organize into cob..
lecti ye-bargaining units to better sarve their members and their
employing agency.
Thank you for tire opportunity to present testimony on this point.
Mr. 1IENDEIIS0N. Thank you, Mr. Hughes.
Mr. HILL. Mr. Bradley?
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STATEMENT OF 'GEORGE E. BRADLEY, EXECUTIVE DIRECTOR,
ORGANIZATION OF PROFESSIONAL EMPLOYEES OF THE U.S.
DEPARTMENT OF AGRICULTURE
Mr. BRADLEY. Mr. Chairman and members of the subcommittee, I
am George E. Bradley, executive director for the Organization of
Professional Employees for the U.S. Department of Agriculture, com-
monly known and referred to as OPEDA. For the past 45 years, we
have worked for and represented the interests of the professional em-
ployees in USDA and in agencies transferred out of USDA, such as
the Weather Bureau, Fish and Wildlife Service, Food and Drug Ad-
ministration, and the Environmental Protection Agency.
We are pleased to have the opportunity to appear before this com-
mittee and to present our views on both the need for and the type of
employee-management legislation we believe is needed in the Federal
sector. At the outset, let us go on record as fully endorsing the enact-
ment of employee-management legislation at this time. Twelve years of
experimentation on employee-management issues under Executive?
orders have demonstrated that we need a law now which will establish
basic rights of both employees and management and winch will pro-
vide a statutory base to defend these rights.
We are also convinced that the legislation dealing with employee-
management relations should be a comprehensive document which
deals with the needs of all Federal employees. In the Federal sector
everyone is responsible to the legislative process and will therefore be
affected by employee-management ? legislation that establishes sound
and firm national policy for Federal employees. Depending on the
definition used, the Federal work force is composed of laborers, non-
professionals, skilled employees, professionals, supervisors and man-
agers. Each has a specific set of problems and needs and each should
have the right to be recognized and to take the actions each deems ap-
propriate in establishing and defending these rights.
Under present Federal procedures involving employee (labor) man-
agement relations, the place of professionals as a major component of
the Federal work force has been largely ignored. This is noteworthy
particularly since about 50 percent of the total classified Federal work
force is made up of professionals. Depending on. the definition selected,
there are between 500,000 and 650,000 professionals now employed in
the Federal work force. As we move forward with advanced tech-
nology and into more complex issues demanding public attention, the
Federal work force of the future will require a larger percentage
of professionals.
OPEDA has represented a wide spectrum of professionals, largely
in one Department of Government, including, but not limited to
agronomists,, economists, foresters, ecologists, conservationists, agri-
cultural production, and marketing specialists, lawyers, doctors, food
and nutrition specialists, veterinarians, bankers, loan and insurance
specialists, scientists and researchers from all disciplines and many.
many others.
Prior to the Executive order which established employee-manage-
ment relations for the Federal system, our organization enjoyed ex-
tremely good and effective relationships with the Department of
Agriculture and with other appropriate agencies of the executive
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branch. This two-way relationship resulted largely from our organiza-
tional objectives which were to improve the quality of professional
services and program delivery in the public interest. As professional
who are proud of their profession and their accomplishments, we keep
striving to make Federal professional services above comparison. We
are dedicated to loyal, courteous, faithful, effeitive and a full measure
of impartial and efficient service to our Government and to the public
and to our associates; we seek fairness, freedom of expression, op-
portunity and recognition. The Executive order process has diluted
(air performance.
Let's now look at the problem OPE DA has encountered over the
past 12 years in our attempts to be constructive in representing the
professional needs of our members.
When Executive Order 10988 was issued, fcr the first time we were
confronted with a conflict of interest. For 33 years we operated effec-
tively without being :tware that a conflict of interest could exist be-
ween professional employees and management. In our organization,
both management and workers subscribed to our objectives and code of
ethics. Generally, our officers were top level administrative or Super-
visory professionals who had worked their way up to or near the top
of the career ladder. Our first officers were agency administrators, their
first line deputies or their top assistants. e have always enjoyed
membership from all ranks of professional workers in the Depart-
ment. Under the original executive order, W-13 were forced to either
change our leaders drop our aspirations to obtain recognition under
the orders. Under Executive Order 10988, we obtained formal recogni-
tion but were forced to cancel, due to an alleged supervisor conflict of
interest issue. At our next general election, we were very selective in.
nominating and electinc, nonsupervisors as offcers in order that some
of our chapters could obtain some degree of recognition. Under Execu-
tive Order 10988, the national organization did not seek any other
type ofrecognition after our first formal recognition was cancelled.
We did, however, obtain formal recognition for two of our field
chapters?one in the south and one in the Far West.
Under Executive Order 11491, we were finally forced to seek recogni-
tion as an association of supervisors and managers. There were several
features which justified this course. Fortunately 80 to 85 percent of our
members could qualify as a supervisor under the definition in the Exec-
ittive order. Without official recognition? we found it increasingly diffi-
cult to meet and collaborate with appropriat?, USDA officials. Some
units with exclusive recognition in USDA included professionals.
Therefore we could not develop a meaningful agreement strictly as a
professional organization. Our use of bulletin boards, rental of the
auditorium, use of conference rooms, use of chain mail and other
privileges which we have, over the years, enjoyed in USDA were
threatened. Also by Executive order edict our voluntary payroll allot-
ment agreement would be canceled.
Section of Executive Order 11491 coni ains authority to recog-
nize supervisors and associations of supervisors and managers art%
provides that a system of communication and consultation with as-
sociations of supervisors "shall have as their purpose the improvement
of agency operations, the improvement of working conditions of
super,Asors, the exchange of information, the improvement of man-
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agerial effectiveness, and the establishment of policies that best serve
the public interest in accomplishing the mission of the Agency." These
are worthwhile statements of purpose and fit exactly the role OPEDA
has tried to achieve during its entire existence. IIowever in recent
years we have found it increasingly difficult to meet these purposes.
As a professional organization, compliance with the Executive order
has presented us with many serious problems. (1) We have in our
membership many top quality professionals, generally scientists and
specialists who rely entirely on their own capabilities to accomplish
their assigned mission. They are not nor do they aspire to be .super-
visors. They feel that their professional organization which is now
recognized as: an association of supervisors or managers cannot or
does not properly represent their professional interests. (2) There
are no enforcement provisions in the order to resolve any differences
that may be encountered between management and associations of
supervisors and/or managers. The Federal Labor Relations Council
has refused to consider supervisor or management issues, and, as a
result, the high sounding statement of purpose in section 7(e) of the
order is meaningless without enforcement. Neither the Council nor
the Civil Service Commission has been willing to cope with the basic
issue. (3) Adequate and effective communication and consultation, as
prescribed by the order, have been very hard to establish. In each
instance where we initiated consultation we were restricted to those
issues determined to be exclusively supervisor or manager. Any issue
which could involve both employees and survivors or managers, such
as reorganization or a reduction in force, was determined by USDA
management as a nonnegotiable item. Issues referred to us by USDA
for review or comment were for the most part on relatively insignifi-
cant topics, such as revision of forms, endorsement of amendments
to operating procedures, etc. (4) Many employees requesting to have
their dues paid through the voluntary payroll allotment plan have
been either delayed or denied. Each agency definition of a supervisor
varies. Such operations hinder our membership recruitment efforts.
We believe our experiences under the two orders demonstrate the
need now for comprehensive legislation that will recognize and estab-
lish rights for all Federal employees. We therefore submit the follow-
ing recommendations for consideration by the committee:
1. We support, basically, the general policies prescribed under H.R.
10700 as opposed to H.R. 13, II.R. 9784 and other introduced bills.
We do, however, recommend many changes in H.R. 10700 which will
make this legislation a comprehensive law that satisfies the employee-
management relations needs for all Federal employees.
2. We suggest the title of the bill be revised to read, "To provide
for improved employee (labor) management relations in the Federal
service and for other purposes", and that the word "employee" be
inserted for "labor" where applicable throughout the proposed bill
II.R. 10700.
3. We recommend that top management officials such as Secretaries,
Under and Assistant Secretaries, Agency Administrators, and Associ-
ate or Deputy Administrators be identified as the only positions where
supervisory conflict of interest applies.
4: We suggest that professionals and supervisors be permitted to
be included in a unit which has or is seeking exclusive recognition
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only when either a majority of the professionals or a majority of the
supervisors vote to be included. This Majority is to be determined
on the number of professionals or super-Viso cs in the unit at the time
exclusive recognition is requested. The a-i.clusion of either professionals
or supervisors in the unit should be determined on the basis of the
expressed desire of the majority. All should not be drawn in because
some did not -vote.
5. We agree with the definition of a supervisor as is included in
H.R. 10700. In the Federal service a large proportion of the employees
have some degree of supervisory responsibilities. Janitors supervise
the work of other janitors, helpers, and aides. The same applies to
mail clerks and on up the line. There are, al 1 degrees of supervisory
responsibilities because generally in the Federal service there is a
sense of loyalty to the service and to the functions they perform.
However, in each case they do not make toe ultimate decisions on
policy, establish priorities or approve the n amber and grade of em-
ployees. Even though many exercise variable degrees of leadership
their work and employee interests are generally the same as the
1lonsuperviso7 employees or professionals. :En some cases, nonsuper-
visory professionals provide the true leadership in promoting top
quality- professional understanding and performance by others in the
unit, including the supervisors. The only supervisors that should be
excluded from belonging to an exclusively recognized unit are those
clearly defined as managerial and are the persons who exercise the
final decision and authority to enforce any and all personnel actions.
G. The definition of a professional should not be as restrictive as
is included in H.R. 10700. Professionals in the Federal service cover
a large spectrum of professional services. Due to the wide variations
of knowledge, training, and skills required for each of the professional
disciplines' the definition should be broad enough to permit all profes-
sionals to be recognized as such. We suggest that a professional be
defined as, "A person possessing administrative, scientific, and/or
technical skills as a result of formal education, training, and/or ex-
perience and who is assigned to a job that requires consistently high
quality individual judgment in the use of these skills."
Professionals like supervisors should be given the freedom to select
the type and kind of employee recognition they wish to support.
7. We concur in the proposal in ILL. 10700 to establish a Federal
employee relations authority. This authority should be an independent,
nonpolitical, and nonpartisan body responsible for the establishment
of uniform rules and regulations and in the interpretation and appli-
cation of these rules and regulations. It should replace the FLIIC
established under Executive Order 11191' and assume all the respon-
sibilities assigned under the Order to the Assistant Secretary for
Labor.
S. We agree that collective bargaining in good faith between man-
agement officials and authorized employee Organization representatives
is appropriate for units granted exclusive recognition. Inasmuch as
Federal employee rights, privileges, salaries, and fringe benefits are
established by Congress and since employee organizations have been
consulted and have participated in the legislative process that estab-
lished these laws, collective bargaining as app'ied in the Federal sector
should not assume the same management relations tool as collective
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bargaining in the private sector. Federal managers do not have profits
to share and Federal employees do not have the bargaining strength
to make collective bargaining the important tool it is in the private
sector. In the Federal sector employees and management can collec-
tively develop operating procedure and policies that are beneficial
to both which will respect the rights of the employee and promote
accomplishing the mission of the. unit or agency.
9. We recommend that professionals or supervisors be permitted to
select a separate organization to represent their interests. Their orga-
nization should be permitted to seek and, under applicable regulations,
obtain exclusive recognition in the unit or agency. As such, the orga-
nization would be entitled to represent and collectively bargain for
professionals or supervisors.
-10. We suggest that professional associations and/or associations
of supervisors in a unit where the majority do not wish to obtain
exclusive recognition be permitted to establish formal consultation
rights with respect to matters or policies that are, specifically applicable
to them provided such discussions to not include matters approved
for collective bargaining and where such recognition does not result
in discrimination or injury to the interest of other employees in the
unit. The rights of individuals should be protected.
11. Under Executive Order 11491 professionals who were included
in a unit granted exclusive recognition, find it impossible to withdraw
from such a unit. We recommend that employee-management legisla-
tion protect the rights of all individuals so that any special group, by
majority vote of that group, can withdraw from an established unit.
Many professionals who were not familiar with the labor-management
procedure and who were not interested in any election for exclusive
recognition find that they, by failing to vote, have been included in a
unit when only a few professionals voted for inclusion. Many profes-
sionals are not interested in labor union functions and therefore do
not want to be involved and wish to avoid participating or voting in
elections promoted by the union.
12. 11.11. 10700 provides for the exclusion of supervisors, confiden-
tial employees, employees engaged in personnel work, guards, employ-
ees responsible for administration of exclusive recognition provisions,
and professionals. We recommend that the number of employees ex-
cluded from a recognizable unit by statutory regulations be the ab-
solute minimum. Employee management law should provide all em-
ployees with the right to join the union, organization or association
of their choice. Groups of employees and/or agencies desiring that
specific groups be excluded from a unit should be required to fully
justify and to specifically identify the employees or groups of employ-
ees that should be excluded from that unit. The responsibility to jus-
tify exclusion should rest with the agency and should only be appli-
cable when specific conflicts of interest are evident or where national
security is ft primary issue.
13. We agree with section 7108 (c) of H.R. 10700 that provides the
right for employees to join or not join an association, organization
or union. This is an individual right that must be protected. Freedom.
of choice is inherent in our constitutional form of Government, and
we strongly support that concept. Organizations or unions with ex-
elusive recognition should be required to represent only members of
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their organization. The services and representation the organization
provides should be adequate to induce an employee to join. Employ-
ees who do no; join or pay dues should forfeit all right to use the serv-
ices of or enjoy the benefits of the organization. Participation should
w, entirely voluntary.
14. We recommend that all employees be granted the right to par-
tioipate in a voluntary payroll allotment plan. The President, through
Executive edict, has ruled that volmitary payroll deduction may only
he appro.-yea for units which have obtained exclusive recognition or
for associations of supervisors and managers. We cannot see the logic
or reason for such. limitation. The employee has earned the salary and
should therefore be permitted to allocate, it as desired. The employee
may, and :in many instances is strongly encou7aged to, use payroll al-
lotment to (1 .1 purchase Government savings bonds, (2,) meet his or
her proportional share in a United Givers Fund, or (3) designate an
allotment, to a, credit union or other savings institution. We would
recommend that any Organization that executes an agreement with an
agency of the executive branch, by meeting the requirement of a valid
organization, :is an organization that does no; advocate action detri-
inental to the operation or function of the U.S. Government and agrees
to a fee necessiry to cover extra expense to th3 Federal Agency proc-
essing such allotments should be given the right to participate in the
voluntary payroll allotment plan.
hi. With respect to obtaining and enforcing effective collective bar-
gaining, we favor compulsory arbitration with specific limits estab-
lished on the t.me permissible to arbitrate an issue. Federal employees
are a part of the public they serve and therefore should not be involved
in any action winch would withhold their services to compel. decisions
On issues under dispute. Public services provided by the Federal Gov-
ernment are essential to the health and livelihood of the Nation and
in. many ways affect, the day-to-day living of each individual. Nothing
in the employee-management relations bargaining process should in-
terfere or disrupt the rendering of these services. Reasonable and sin-
cere consultation with compulsory arbitration can be used to resolve
differences existing between management and .:he employee. The Con-
!ryess and the judicial branch of the Government can intervene to en-
force equity and fair treatment for all concerned. Our organization
is opposed to strikes in the public sector as we believe they have no
place in judicious resolution of Federal employee problems.
In summary : With appropriate additions we, support. the general
proposals tolltained in H.R. 10700.
We strongly advise statutory employee-management relations at
this time.
We believe the law should be comprehensive to protect the interests
of all Federal employees and recognize the rights and needs of the
large block of professional employees in the Federal work force.
'We, support the right for both supervisors and professionals to be-
long to a unit or to belong to their own organization. However, the
inclusion of either professionals and/or superisors in a unit may be
authorized only when a majority of the professionals and/or super-
visors in the unit vote for inclusion.
We suggest that bargaining or consultation rights be granted si-
multaneously to more than one employee organ zation, that is, a union,
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a professional organization or an association of supervisors in the
same unit.
We recommend that top level managers be defined as the only group
where a specific supervisory conflict of interest exists.
We recommend a broadened definition of a professional.
We support the establishment of an employee relations authority.
We support collective bargaining adapted to meet the requirements
of the Federal sector.
We recommend separate units of recognition for supervisors and/or
professionals.
We support the concept of consultation rights for associations of
supervisors and/or professional organizations that do not wish to seek
collective bargaining rights.
We seek the right for professionals and/or supervisors to withdraw
from units with exclusive recognition.
we believe that the exclusion of employees from a unit should be
held to an absolute minimum.
The exclusion of any individual or group from a unit must be fully
justified and subject to the approval of the Employee Relations Au-
thority.
We strongly support the right of individuals to join or refrain from
joining an organization.
We are opposed to compulsory payment of dues or special fees to
an organization.
We propose representation only for dues-paying members.
We support voluntary payroll allotment agreements for all orga-
nizations or societies.
We are opposed to withholding public service.
We favor compulsory arbitration on a timely basis to resolve dif-
ferences.
We thank the committee for the opportunity to present our views on
this extremely important issue. What happens in this committee and
in the Congress will materially affect the kind and type of future pro-
fessional service that will be provided by the Federal Government.
We believe professional service is an issue that must be included and
recognized as a part of the total Federal service.
Mr. HENDERSON. Thank you very much, Mr. Bradley.
Do you recommend that top-level management be identified as the
only supervisory positions where a conflict exists?
In order to understand your view, could you tell us who you see as
responsible for carrying out the contents of a negotiated agreement
or enforcing agency rules among the rank-and- file employees?
Mr. BRADLEY. I don't believe it should go below the administrative
level of an agency or people at his level that are assigned that respon-
sibility. T. put in 41 years with the Department of Agriculture. I fin-
ished as a chief of special programs. I was responsible for 21 programs.
I could recommend to the administrator things that should be done,,
and by and large, he would listen to me.
But still my interest was more with the employees, von know, in.
other words, I don't, believe that as chief of programs I was the one
that should make the final decision with respect, to number of em-
ployees we would have, with respect to allocation of funds, with
respect to top-level authority, with respect to the final operation of
the agency.
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432
In the Federal Government, you have such a layer of supervisors,
just layer upon layer. To deny all those supervisors the right to belong
to an organization, I think detracts fr:nn employer relations
legislation.
They should have a right to belong or not to belong. They should
have the right to make that decision. We should not exclude them.
We are pulling into management too many people that do as they are
told, rather than making an effective decision with respect to policy.
Mr. HENDEasoN. Do you feel that the persons who are responsible
for negotiating contracts and carrying out the negotiated contracts
should be permitted to belong to those orgat izations which they are
negotiating with ?
11/Ir. BRADLry. No. I am talking about the administrator who should
be the one wko can negotiate the contracts, Lot down in the level of
supervision.
Mr. IIENDF,LSON. Thank you very much, Mr. Bradley.
Mr. BRADLEY. Thank you, sir.
Mr. Iftnn. Mr. Paid Robbins is next.
STATEN:ENT OF PAUL ROBBINS, EXECUTIVE DIRECTOR,
NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS
Mr. Romuic.s. The National Society of Piofessional Engineers, a
nonprofit group headquartered in Washington, D.C., consisting of
nearly 70,000 individual members who ire engaged in virtually every
phase and aspect of engineering practice, ani organized throughout
he country on a State and chapter affiliated basis, welcomes this op-
portunity to present views in connection with his committee's hearing
n H. R. I 0700 and related proposed legislation
My moue is Paul H. Robbins.. am a professional engineer, and
serve as the Executive Director of the National Society of Professional
Engineers. I speak today not only for the National Society of Pro-
fessional Engineers, but also on behalf of the American Institute of
Industrial Engineers, a 23,t)00-member organization, the American
Society of Mechanical Engineers with 65,000 members, and the Insti-
tute of Electrical and Electronics Engineers, a 140,000-member orga-
nization.
Representing an aggregate of nearly 300,0(0 individual engineers,
we wish lo make it. clear at the outset that ix( are not opposed to the
concept of collective bargaining. It is neither a desirable nor effective
mechanism, in our judgment, for achieving the employment objectives
of engineers oc most other groups of professional employees. We have
taken the position that employees, inoluding professionals, should
have the right to decide this issue for themselves through democratic
procedures. We have been in agreement with the basic intent of Ex-
ecutive Order 11491 to give employees and their organizations a
greater voice in the development of policies affecting their employ-
ment conditions. Because of the direct interest of our members in this
area., we have followed very closely develmimeirts in collective bargain-
ing legislation both in ,crovernme.rit end the iH vote sector. There are
a number of features which we believe, should be included in such
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SEPARATE VOTE FOR PROFESSIONALS
The most important feature of any collective bargaining law or
regulation from the viewpoint of professionals is the provision in-
cluded in both EO 11491 and the Federal Labor Relations, Act which
guarantees professionals the right to a separate count of their ballots
in union elections to determine whether or not they wish to be included
in the same collective bargaining unit with nonprofessional employees,
or to be represented at all. The vital nature of professionals' interest
in such provision stems from two facts: professionals are nearly al-
ways outnumbered by nonprofessionals; and professionals' interests,
as a result of their duties, training and education, are so significantly
different that their needs can seldom be adequately served by labor
organizations which attempt to represent both categories.
We are pleased to note that all three bills currently before this
committee (H.R. 13, H.R. 9784, and H.R. 10700) include adequate
provision in this respect. Only H.R. 9784 and II.R. 10700 include any
definition of "professional employee," however, a feature which is
most important in this connection. We prefer the definition in H.R.
10700 as being somewhat more complete than that in H.R. 9784. It is
approximately the same as that included in the Federal Labor Rela-
tions Act, and has generally proved quite satisfactory in the private
sector.
INDIVIDUAL RIOIITS
Executive Order 11491 guarantees employees the right to join or not
to join labor organizations. Any legislation displacing it should include
such a provision. Unfortunately, of the three. mentioned above, only
MR. 10700 would guarantee the right to refrain from participation in
the activities of labor organizations. The obvious intent of the other
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contract provisions which could require, as a condition of continued
employment, membership in, or payment of fees to, labor organizations.
.
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observed, moreover, that agency management behavior patterns, when
faced with union problems, emphasize the desire to "avoid waves"
rather than to assure employee rights. To assure that all parties conduct
themselves in good faith, we believe that secret ballot elections should
be required in all representation proceedings.
RIO liTS OF' PROFESSIONAL ORGANIZATIONS
Most professional organizations have chose :a to avoid collective bar-
gaining as a means of improving the welfare of their members. There
appear to be two basic reasons for this. First, and perhaps most
important, is that most professional employee believe the individuality
and judgement required in the performance of their duties are incom-
patible with the standardization process inherent in Collective bar-
gaining. Second, for very practical reasons, collective bargaining has
not proven particularly effective as a mechanism for achieving the
goals of professionals.
While collective bargaining can permit the pursuit of limited eco-
nomic goals, and while it can provide a measure of protection against
arbitrary personnel management actions, it cannot assure continued
professional development of the individual. Tais is particularly true in
the close, mutual trust relationship between professionals and their
superiors--a relationship which is vital for professional growth and
upward mobility. Collective bargaining, quite the contrary, may seri-
ously damage such relationships and thus hair per professional growth.
Professional employees have been particularly rankled, therefore,
by efforts to force them into labor-management programs--programs
which are premised en the needs of other than professional employees.
Current'. labor-management philosophy, unfoAunately, was developed
early this century, long before the emergenc a of the professions as a
major factor in industrial and government employment. As a result,
the dead hand of "precedent" has prevented the development of any
effective means for accommodating the needs of the professionals in
the realm of employee-management relations.
At the same time, professionals employed in large organizations
with remote and sometimes inadequate management structures, have
a need for a degree. of representation beyond that available to the
i ndividual. On.e person simply does not have much impact on the
policies of a Federal agency.
What professional engineers want and need is a means to meet and
eonsult with management on an individual or group basis without the
necessity for engaging in full-scale collective bargaining. In many eases
they would also like to be able to use their existing professional societies
and organizations for this purpose, rather than joining existing labor
organizations or creating new ones. With this in mind, we would urge
the inclusion of language to effectuate the following principles.
As provided in section 71)(3) of Executiva Order 11491, organiza-
tions not qualified as labor organizations, and specifically including
professional organizations, should have the right to meet and consult
with ma nte,:errient on matters Of interest to members without regard
to whether or not, any labor organization has exclusive recognition.
As indicated above, we endorse. section (a) of H.R. 9784 in this respect,
mit believe that addlional language should 'oe added to indicate that
iniintiaeiii el it has a positive obligation to Meet and confer in this regard,
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435
and to make it clear that such consultation is not limited to "com-
plaints" or "grievances" in the formal sense. We further believe that
failure of management to meet such an obligation in good faith should
be considered and defined as an unfair labor practice, subject to third-
party adjudication. Obviously, in cases where a labor organization
holds exclusive recognition for the employees involved, no change in
agency policy developed as a result of such contacts should contravene
any provision of an existing labor-management contract, and a repre-
sentative of the exclusive representative should be permitted to be
present and make his views known. In addition, such consultations
should be limited to the extent that any resolution resulting therefrom
should not be in the form of a binding agreement.
Professional organizations which indicate a desire not to qualify as
labor organizations or to seek exclusive recognition should not be
restrained from distributing literature, including membership litera-
ture, on Government property, or from otherwise utilizing Govern-
ment facilities, as a result of any labor-management contract.
Individual employees, groups of employees, or organizations of em-
ployees should have the specific right to take part in hearings or other
proceedings, the outcome of which will affect them. Under Executive
Order 11491, and the three bills currently before this committee, only
"parties" to the proceedings; that is, labor organizations and manage-
ment, have this right. In one case, where the Assistant Secretary of
Labor had specifically directed a hearing examiner to develop Govern-
ment-wide, polic.y on the appropriate relationship between professional
organizations and agencies, NSPE was denied the right to directly
participate on the grounds that it did not have a "direct interest" in
the narrow labor-management dispute which was to be used as the
vehicle to determine such policy.
An alternative to the above provisions, which has been seriously
considered by both NSPE and NEP?, is a separate law or Executive
order tailored especially for professionals and similiar in principle
to those established for Foreign Service officers and postal supervisors.
While we recognize that this would present an additional burden upon
agency labor-management machinery, the Foreign Service example in-
dicates that Such a separate mechanism is possible. The professional
provisions described above, however, included in an overall labor-
management system, should be easier to administer, and should be
satisfactory.
In summary, we believe that any legislation approved by this com-
mittee. should take, into consideration .the interest and needs of all
categories of employees, including professionals, not just those who
desire union representation in the traditional mold. Recognizing that
such legislation is by, its nature, extremely complex and technical, we
would be more than happy to discuss specific language in connection
with any of the above points with members of the committee or staff.
In addition, we would be pleased to answer any questions or provide
any further information which might be necessary to further explain
our position.
We again thank the committee for the opportunity to present these
engineering views.
Mr. HENDERSON. Thank you very much.
I guess one question I would like, to ask: Could you give 11S?per-
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136
haps for the record later?some examples of where you do have the
kind of agency consultations or negotiations that you would like to
see not only permitted, but required?
I just understand there must be some agenc.'.es where this does work
It) your satisfaction.
Mr. ROBBINS. Where it works to our satisfaction; yes.
Mr. HENDEllsoN. If you might call some o-i those to our attention,
it could be helpful.
Mr. Room:vs. I would be glad to.
Mr. HT:Nola:sox. Thank yo.
1>0 you have another witness ?
Mr. HILL. No, sir. That is all we have this morning, sir.
Mr. IIENDEusoN. Well, the. bells h.aven't rung. I think we did quite
well.
I do appreciate your yielding to the earlier witness. I think you have
made some very valid points that will be considered by our committee
inembers.
I guess some of the problems we think we Are faced with here sort
of overwhelm the. so-called nuts and bolts of ;he legislation, or to put
it in another way, if I knew where we were going, I could be more
responsive, to you.
Stair may have other questions we would want to get your opinions
tin: and It do appreciate the attendance of all of you, even the ones
that have not had an opportunity to participEte in the statements and
colloquy this morning.
Thank you very much.
Mr. 114 ILL. Than k :you.
Mr. liENDEnsoic. The subcommittee :stands adjourned.
I Whereupon at 12 :10 p.m., the subcommittee meeting was adjourned,
o reconvene subject to the call of the Chair.]
I The letter which blows was received subsequent to the hearing:]
NATIONAL SOCIETY OF' CROFESKONAL ENGINEERS,
OFFICE OF THE EXECUTIVE DIRECTOR,
-Washington, D.C., July 30, 1974.
HOD. DAVID N. HENDERSON,
Chairman, Manpower and Civil Service Subcommile, Committee on Post Of-
fice and Civil Service, U.S. .1101G4e of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN : The National Society of Professional Engineers, sup-
ported by several other engineering societies, pres,?mted testimony on July 16
to the Manpower and Civil Service Subcommittee onil.R. 10700 and related meas-
ures. At the conclusion we were asked to supply the Committee with examples of
relationships between our organization and Government agencies. It is my under-
standing that you desired illustrations of effective :!elationships under the kind
of employee-management cooperation we espoused ir our testimony.
A number of agencies have evidenced their satisfaction with their relation-
ships with NSPE and its policies by being most generous in encouraging their
employees to share in our programs, objectives and meetings. The following are
more specific examples where we feel our approach to the problem of employee
management relationships has produced mutually satisfying results.
Dcyartment of Agriculture, U.S. Forest Se-vice?The Professional En-
gineers in Government in the Oregon region were disturbed about problems re-
sulting from a failure to distinguish between engineers and engineering tech-
nicians. NSPE recommended that a plan to eliminate the distinction between pro-
fessional engineers and engineering technicians be dropped. Following the ap-
pointment of a task force, which included representatives of NSPE, the plan
which NSPE believes would contravene Civil Service regulations was dropped.
flepartment of Health, Education and Welfare, Office of the Secretary Merit
Promotion Plan?NSPE was permitted to suggest changes and inclusions concern-
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ing the definition of professionals, qualifications of those who would review the
work of professionals, career-lattice as well as career-ladder provisions, registra-
tion as a selective placement factor, and related subjects. Although the agency
has not published its revised procedures, we are aware that our suggestions are
being given careful consideration.
11.S. Department of Labor Occupational Safety and Health Administration?
This agency was sympathetic to concern expressed by the Society over the delay
in filling a high level vacancy which in our judgment required a professional
engineering background, and recognized our fears that the delay might start
rumors that the position was being downgraded. Following contacts with the
agency, it was reaffirmed that the position would be filled by an engineer with
professional credentials.
General Services Administration, Public Building Service?GSA's new archi-
tect-engineer selection procedures require some revisions to the duties of in-house
engineers. Contacts between NSPE and the agency clarified the agency's intent
to extensively review the duties and prepare and upgrade qualification of in-
house engineering personnel to adequately meet the requirements of the new
program.
U.S. Department of Labor, Occupational Safety and Health Administration?
When it was announced that OSHA would strengthen its Office of Standards
Develpoment by adding more professional staff, NSPE contacted OSHA to offer
assistance. NSPE obtained further information to alert Federal engineers to pos-
sible opportunities for career advancement. Helpful followup of the agency
reorganization is being maintained and disseminated.
As a matter of general interest, many of our Federal engineers are finding the
attached Guidelines to Professional Employment of Engineers and Scientists"
a useful vehicle for establishing mutually satisfying relationships with their agen-
cies. These Guidelines have been endorsed by 27 engineering societies. The Society
also annually recognizes a Government agency whose policies improve professional
employment in line with these Guidelines. This is done on a rotating basis among
local, state, and Federal government units and results in considerable publicity
and the presentation of the highly prized Government Professional Development
Award.
If we can supply additional information or be of assistance in any way, please
don't hestitate to let us-know.
Very truly yours,
PATJI. II. ROBBINS, P.E.,
Executive Director.
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FEDERAL SERVICE LABOR-MANAGEMENT
LEGISLATION
THURSDAY, JULY 25, 1974
U.S. I-TOITSE OF REPRESENTATIVES,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE,
SITBCOMMITTEE ON MANPOWER AND CIVIL SERVICE,
Washington, D .0 .
The subcommittee met at 9 :40 a.m., in room 210 of the Cannon House
Office Building, Hon. David N. Henderson (chairman of the subcom-
mittee) presiding.
Mr. IIENDERsoN. The subcommittee will come to order.
This subcommittee is continuing hearings on labor-management
relations legislation. We will be able to complete the record of testi-
mony and proceed to consider the issues raised in appearances thus
far, today. Since our meeting of last Tuesday, we have received two
additional statements for the record, which will be inserted at the ap-
propriate point.
Our first witness is Mr. Harmon Elder, Washington representative
of the United States Industrial Council. He is accompanied by James
-Metcal fe of the Yellow Cab Co. of Nashville, Tenn.
Mr. Elder and Mr. Metcalfe, it is a pleasure to welcome you. Please
come to the witness table and proceed any way you like.
STATEMENT OF HARMON ELDER, WASHINGTON REPRESENTATIVE,
U.S. INDUSTRIAL COUNCIL, ACCOMPANIED BY JAMES S. MET-
CALFE, PRESIDENT, YELLOW CAB CO., NASHVILLE, TENN.
Mr. ELDER. I am Harmon Elder and I serve as the Washington rep-
resentative of the United States Industrial Council. The council mem-
bership includes over 3,000 companies, employing some 3 million
people. Our members are located in all of the 50 Stares, with the chair-
man's own State of North Carolina leading the number of States in
USIC members.
Our administrative office is in Nashville, Tenn. We appreciate the
opportunity to appear today and offer the council's views on legisla-
tion under consideration. We also appreciate your concern over main-
taining high standards in the Federal service and protecting the rights
of individual Federal employees. I have with me, Mr. James S. Met-
calfe, who will present the council's statement.
Mr. MurcALFE. Thank you very much. Mr. Chairman, if I may, in
reading this statement, I shall depart from the text, primarily in the
interest of brevity, because the actual reading of the entire text would
totally utilize the time allocated to us.
(439)
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might say parenthetically that in addition to my membership with
the Yellow Cab Co., I have for many years been active in Federal labor
relations from the management side of the table, both as director of
industrial relations for what was then the CI osley Division of AVCO
and also at one time in the Industrial Relations Department of Mon-
santo Chemical Co. and shortly after World War II, with Southern
Coach Lines nNashville.
So, through die years, I have laid rather intimate contact in the field
of labor relations and contract negotiations.
My name is James S. Metcalfe and I am president of the Yellow
Cab Co. of Nashville, Tenn. I am appearing before you as spokesman
for the U.S. Industrial Council.
Mr. Chairman and members of the subcommittee: I would like to
begin by stating that the U.S. Industrial Council is opposed to enact-
ment of any legislation that would facilitate and encourage unioniza-
tion of public. employees.
We recognize, of course, that collective bargaining with Federal
einployee unions already has been mandated by Executive order. We
think this was a mistake. To .go further and cDmpel collective bargain-
ing between Public administrators and labor unions in a statute that
would remove such restraints as are included in the existing Executive
order would compound the error.
There are extremely important difference; between the three bills
under consideration by the subcommittee. The chairman's bill, H.R.
10700, is greatly to be preferred to either H.R. 9784 by Mr. Ford or
H.R. 13 by Mr. 13rasco, because it includes prwisions for protection of
employee rights that are not found in the other two. We wish to ex-
press to Chairman Henderson our commendation for inclusion of these
safeguards of Federal employee rights. H.R. 10700 also prohibits Fed-
eral employee strikes, and we strongly favor that provision.
As I have stated, however, the Council does not favor enactment of
any of the three bills, and we will outli.rie our general opposition to the
legislation, then comment more specifically cn some of the provisions
of each bill.
hi the first place, we have found no substantiation for the conclu-
sion in the introductory portion of all three bills that collective bar-
gaining with public employee labor unions is "in the public interest."
Nor do we lin.d that it contributes to the effective or efficient conduct of
public business, as the bills assert. This comlusion, according to the
)eplaration. of Purpose and Policy in H.R. 9784, is indicated by "ex-
perience in both private. and public employment."
For 40 years our national labor laws covering the private sector
have resulted in continuous industrial strife, strikes, and discord. These
laws have conferred such special privileges on union organizers and
union officials as to give them excessive power and create a serious im-
balance iii labor-management relations,.
They have permitted and condoned :feathe.,..bedding and make-work
practices. The construction trades, railroad and maritime unions are
notorious for 1:hese practices but they permeate all highly unionized
industries.
Under our one-sided labor laws, unions have accumulated so much
power that they can bring the largest indir>tries to a complete stop
and severely cripple the economy. American industry has lost its corn-
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petitive position in world markets as wage increases have outraced
efficiency and productivity.
In public employment, the rapid growth of unions of State and
local public employees has been matched by the growth of public
employee strikes. We have seen cities like San Francisco and New
York brought to their knees by militant public employee unions.
This is the experience which is supposed to show the benefits that
would ensue from conferring more organizing and bargaining priv-
ileges on officials of Federal employee unions.
If I may depart from the text, also as an individual citizen Whose
interest I am sure, in the field of Government, is as sincere as that of
any other good citizen, I do not know what crying need generates the
type of legislation that is represented in these bills.
There seems to be a premise now that people in public employment
are somehow or other neglected citizens and they have used the expres-
sion on occasion, "second-class citizens."
But I have seen no honest comparison, benefit-by-benefit, wage
structure-by-wage structure, working condition-by-working condition,
which would substantiate the assertion they were neglected.
I think one of the criteria by which the need for legislation should
be judged, is what conditions must be corrected, what injustices
ameliorated or abated or what will it contribute to the efficiency of the
business, the profession or the institution.
- There has been, I submit, no conclusive evidence in any tribunal
before any body which I am aware of, to show that people in the public
sector, Federal, State, county or municipality, are in any way imposed
upon by adverse conditions of compensation, employment or related
benefits.
If that were so, if these evils existed, then one of the most evident
results thereof would be unconscionable turnover. I don't know what
the turnover figures are of public employment in any sector of the
public employment, but I submit wherever I have seen a preponder-
ance of Federal agencies in a community and a State capitol with its
public employees, there is certainly very little flow of discontented
employees from those working environments into that of the private
sector.
But on the contrary, the trend seems to be the other way. When we
talk about employee unions and permitting employees to join estab-
lished labor organizations and I assume by that, any accepted labor
organization, AFL-CIO, Teamsters or any other, when those employ-
ees are in the public sector, I think there is an interesting question?
who is the employer of these people?
Is it the union organizer, the union business agent, president of
an international union? No. I submit the employer has not changed
at all. The employee is working for, ostensibly, your average American
taxpaying citizen, in such free enterprise as we still have.
Now, how do you establish the rightness or the wrongness of contract
provisions for a public service employee? There is, of course, some
reference to denying such a union the right to strike. I submit that
no matter what your contract exclusion may be or your legal prohibi-
tion against the right to strike, there is no assurance that such a strike
will not occur; wildcat, authorized or otherwise.
What punitive measures are available are generally ineffective. It
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seems to me not too long ago there was a strike of postal workers in
New York. ii don't know what was the restlt of that work stoppage
in the way of discharges, punishment, or other disciplinary measures.
If there were any, they were not publicized.
There was a rather strong prohibition against strikes in that public
sector union. We are reaching a situation in this country where some
dividing line. I suppose, is going to have to be determined. Are we
going to have a situation where a child is bused to a school by a union-
ized bus driver, taught by a unionized: school teacher, protected at
the crossing by a unionized member of the se nool mother's patrol or of
the local police department, rescued by a unionized fireman and then go
home to a house constructed by unionized labor to be admonished for
some childish misconduct by a unionized father ?
Who is leftt 1 submit that in the area of public service, all of the
safeguards that you seek to put in by legislitive action against work
stoppages are somewhat meaningless.
Now if we were to take the public sector and actually look at the
goodies that are present, there is the civil service protection. I don't
know what tie layoff situation is but in private employment, when the
vagaries of the economy become felt, there are layoffs. I have not seen
a great many- people in any public sector laid off as a result of economic
adversit y.
I think, too, that we must be utterly readistic about the technique
of union relations with management. It has to be not only an adversary
relationship, but one most often engendered w ith hostility.
If there is an enlightened management ani that managemmt takes
adequate care of Hie personnel with good working conditions, the usual
fringe benefits, adeouate pay structure, why would a union be neces-
sary? For a moment, to compare or contrast the factors that are present
in the private enterorise and union relation 3, a company that manu-
factures a product and is faced with substantial pay increases and
other economic outlays brought about by the union, can usually re-
cover some of the costs through operational efficiency, technological
innovation and upward revision of his prices, remain solvent and
continue to pay dividends.
Sometimes the opt ions are not too attractive. It has been remarked
the two ways to go broke in running a bus: ness are to take a strike
and the other is to grant what the union. asks for.
There are no cute tricks or negotiating techniques that can salvage
a had situation. There are some companies. I think, that should go
out of business, if their employment practices are such or if their
efforts to evade the provisions of the Fair Labor Standard Act are
such that they are of dubious morality. Let them go and those com-
panies do go.
In the public sector, how do you determihe what is the fair wage
rate if some business arrangement or some bargaining committee
names a figure that is totally inconsistent with the economic realities
and totally out of line also with any survey of that area for commen-
surate work?
It can't be done, gentlemen. There is no way that you can establish
these things unless you can price the product.
When it conies to pricing human service, I think there are certainly
denominators which, lend themselves to: apolication. Ceretainly, we
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have in the Federal Government, as I understand it, the virtues of civil
service. Civil service confers a high degree of job security upon the
Federal employee; more so, I think, than can be found in the private
sector.
If you have a segment of your Federal work force unionized and it
decides and is permitted to strike and picket, who then, from other
Federal unions, will cross that picket line?
One militant group, one striking against this Government and
the citizens thereof, theoretically and actually would set up picket
lines legally, which would not have to be crossed by fellow employees
who are totally divorced from the dispute at hand.
There is, I think, something inherent in this whole thing, akin to
Pandora's box. No contract ever negotiated ever remains a static
agreement. Obviously, wage increases become a major issue on each
anniversary date, but not only the wage increases, the other benefits,
too.
I don't know how many paid holidays are customarily granted in the
Federal sector now. I believe it was Columbus Day we had no mail
delivery, but we were trying to run our business. We have postal
boxes. But we saw the private enterprise people not taking a holiday
on Columbus Day but going about their normal work. I don't know
about sick leave. I understand there are provisions for sick leave in
the Federal sector. Not too many private employment fields provide
automatic sick leave. They have benefits, group insurance, health
and welfare programs, but not sick leave, as such.
There are many other factors on an item-by-item comparison that
should be scrutinized before legislation, almost compelling legislation,
is explored.
We do commend the bill that allows certain options with regard
to employees' desires to join or not join. I think anything that ap-
proaches a union shop or an agency shop in which a free-born citizen
of this country, working for this Government, supported in part by
the taxes of all citizens, must pay tribute to work for his country, is
an anomaly and an affront. Sometimes people say yes, but we can instill
the legal safeguards against the things you predict. How many times
have unions been fined ostensibly for violating an agreement or an
injunction, striking in the face of a no-strike clause.? And then what
happens?
When that union contract comes up and the matter has not been
adjudicated in court with regard to the fine having been affirmed, the
matter of the fine, itself, and the damages for the company, become
a barouinable issue. And then what is the next step? The union says,
in effect, we want a dollar an hour. Management knows it doesn't
expect any dollar an hour. However, in the course of arguing, you are
told if the company will withdraw its damage suit or waive its right
thereof, perhaps a wage settlement can be arrived at that would be a
little more acceptable.
You cannot start out with a contract with meaningful safeguards
when the right to strike, in the public sector particularly, is present.
?The right to strike against whom?
In San Francisco, some of the members of the subcommittee perhaps
recall the story of raw sewage being pumped into the San Francisco
Harbor?the pollution, the jeopardy to health. At that time, there was
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a teacher strike going on. There were strikers in some of the medical
facilities there. It does no good to say tilos( strikes are not?Federal
employees. an sure those people are just as conscientious. I am sure
they are just as honorable in their concept of citizenship as any Federal
employee or anybody else. But there becomes a, strange and twisted
rationale which seems to induce people, sometimes to take action
against, what amounts to the peace and dignity of the State and the
health and welfare of the citizens thereof.
The taxpayer today is already beginning t be strained by the bur-
den placed itpon him by all echelons of government. Perhaps he expects
to() many services or whether he, wants them c,r not, he is getting them.
If ever there was a time when economy in tie government., just as in
the private sector, demanded some close attention, that time is now.
No one is going to recommend that public employees be deprived of
any benefits, any rights or any of those. things to winch employees
should be entitled in any sector. But certainly there must be some other
mechanism by which those things can be brought about other than
joining a. labor organization.
You don't. have a labor party in this inuntr7. This sort of legislation
would make it almost an anomaly bemuse you will have, in effect, a la-
bor economy. The degree today to NvIlch Government has penetrated
the lives of ad of us, is something that concerns people enough to re-
member when there was less of it, when it rtde in under the aegis of
-union organizers and international unions. I submit we are reaching
a point of rather critical proportions. We want Government workers
to be the best. We want them to be efficient and justly treated. We also
want them to know that the American citizen who is footing the bill,
is expecting uninterrupted service.
Tf there aro grievances to be adjudicated, tnere are ways to do that.
lfr. Chairman, again, if one is automatically compelled to choose from
the least. of several evils and he has no options. I suppose it is somewhat
akin to being swallowed by a whale or being nibbled to death by min-
nows. The end result is not particularly gratifying.
The Tr. S. Industrial Council is categorically opposed to unionization
of the public sector employees, but recognizing that the precedent has
been established and we are confronted with a fait accompli, we re-
spectfully request, that every effort be made, No. 1, to preclude any form
of compulsory unionization under the union Saop or agency shop idea ;
(2) strikes should be prohibited with Punitive provisions provided:
(3) all representation elections be by secret ballot and not by card
count, with osi=ensibly represents the will of a majority.
The card count is a sham and delusion as a matter of determining
employee. attitudes. We hope. sincereh that. the position of the IT. S.
Indust vial ( ortncil will not be equated with just an outmoded reaction-
ary concept.
'lint I think that what I object to here, as an individual, and what the
Council objects to, actually, is fighting the battle as much for every
tin ion i zetI embloyee in the public sector as any international president.
would tight for the interests of his union, with no regard for?the
homeowner. the man who will have to pay more taxes, the man to be
confronted with greater expenses, union or nonunion, because of the
burareoning costs of government .and there is no bill here that will pre-
clude the costs going up and up and up.
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You never See reduced costs resulting, from a union contract. I know
the sentiments we express are not always well-received. Closer to home,
I find it is also evident. But we think we would be remiss as people wh6
have as much at stake in this Government as any other, not to voice
our objection. Our official position is summarized in the statement that.
has been submitted and as I understand, will beCome part of the record..
Thank you for your kindness.
M. itliExpritsoN. Your statement will be included in the record, Mr:.
Meteal To.
[The complete statement follows:]
PREPARED STATEMENT OF JAMES S. METCALFE, ON BEIIALF OF THE
US'. INDUSTRIAL COUNCIL
My name is James S. Metcalfe and I am President of the yellow Cab Company
of Nashville, Tennessee. I am appearing before you as.spokesman for the United
States Industrial Council.
Mr. Chairman and members of the Subcommittee, I would like to begin by
stating that the United States Industrial Council is opposed to enactment of any
legislation that would facilitate and encourage unionization of public employees.
We recognize, of course, that collective bargaining with federal employee unions
already has been mandated by Executive Order. We think this was a mistake.
To go further and compel collective bargaining between public administrators and
labor'unions in a statute that would remove such restraints as are included in the
eXisting Executive Order would compound the error.
There are extremely important differences between the three, hills under con-
sideration by the Subcommittee. The Chairman's bill, H. R. 10700, is greatly to
be preferrcd to either H.R. 9784 by Mr. Ford or H.R. 13 by Mr. Brasco, because
it inclaks.provisions for protection of employees rights that are not found in
the. other two. We wish to express to Chairman Henderson our commendation
ferliiilifsion of these safeguards Of federal employee rigid& 11.11. 10700 also pro-
hibits federal employee strikes, and we strongly favor that provision.
have stated, however, the Council does not favor enactment of any of the
three' Mils, and we Will outline our general opposition to the legislation, then
comment more specifically on some of the provisions of each bill.
In the first place, we have found no substantiation for the conclusion in the
introductory portion of all three bills that collective bargaining with public
employee labor unions is "in the public interest". Nor do we find that it contributes
to the effective or efficient conduct of public business, as the bills assert. This
conclusion, according to the Declaration of Purpose and Policy in Ii. It. 9784,
IS indicated by "experience in both private and public employment". -
For 40 years our national- labor laws covering the private sector have resulted
in continuous industrial strife, strikes and discord. These laws have conferred
such special privileges on union organizers and union officials as to give them
excessive power and create a serious imbalance in labor-managenient relations
They have permitted and condoned featherbedding and make-work practices. The
censtruction trades, railroad and maritime unions are notorious for these prac-
tices but they permeate all highly unionized industries. Under our one-sided labor
laws, unions have accumulated so much power that they can bring the largest
industries to a complete stop and severely cripple the economy. American industry
has lost in competitive position in world, markets as wage increases have outraced
efficiency and productivity.
In public employment, the rapid growth of unions of state and local public
employees has been matched by the growth of public employee strikes. We have
seen cities like San Francisco and New York brought to their knees by militant
public employee unions.
This is the experience which is supposed to show the benefits that would
et-PAM from conferring more organizing and bargaining privileges on officials of
federal employee unions.
In the light of this experience With labor unions in the private and public
sectors, how could enactment of the proposed legislation encouraging unionization
of federal employees possibly serve the public interest? By reducing strife anti
strikes? Experience with basically similar laws in both. the public and private
sectors clearly indicates the opposite. By bringing about increased efficiency
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and productivity? Again we have only to look at union work rules and make-
work practices in private industry to know that will not occur. By reducing
the cost of government services and easing the public's tax burden? Hardly. I'm
sure that none of the sponsors of the bills would maintain that facilitating
collective bargaining will bring about any reduction in the salaries of public
employees or reduce the number of jobs. With powerful federal employee unions
exerting pressure for higher and higher wages, and with no evidence to sub-
stantiate the claim of increased efficiency, the inevitable result would be mounting
costs of providing government services. And of course the taxpayers will have to
foot the bill.
The United States Industrial Council is convinced that enactment of any of
the three bills under consideration would only serve the interests of union
officials. That it would surely do, by making it easier for them to unionize
thousands more federal employees and to substantially increase their income
from dues and fees.
Public employees have a Constitutional right to join a labor union and act
in concert through that union. But that does not man bargaining with unions
should he compulsory or the public employer. For compulsory bargaining,
coupled with the extraordinary privilege given to unions of "exclusive repre-
sentation", violates Constitutional rights of public ern?loyees.
Exclusive representation, which is .authorized: in the bills before the subcom-
mittee, is one of the most indefensible tools given to union officials. It is a
. privilege given to no other private organization in our society, and can more
accurately- be termed monopoly bargaining power. In this perversion of the
democratic process, workers who. have declared their desire to deal directly
with their employers on wages and conditions of emp..oyment are forced to accept
union representation they do not want. Union officials demanded this extra-
ordinary power and Congress gave it to them, albeit with considerable reluc-
tance as legislative history shows "Exclusive representation" is a direct denial
of the freedom and common law rights of employees and places an overwhelming
organizing advantage in the hands of union officials. The employee is denied
direct access to his employer in the determination of his wages and working
conditions and is forced to deal through a third party?a union official. In the
411se of the public employee, it places the union o.5cial in a sovereign status
equivalent to the sovereign status of government, which also is the employer.
Furthermore, monopoly bargaining power is used by unions as a specious
rationale for their argument that employees should be forced to pay dues or fees
to a union for representing them. Union officials ignote the fact that all employees
410 not look upon union representation as an unmixed blessing and some would,
in fact, prefer to deal directly with their employers in all matters affecting their
employment. Monopoly bargaining represents tyranny of the majority over the
minority.
One of the arguments advanced by proponents of public employee legislation
is that it is not fair to deny to public employees the same organizing and bargain-
ing privileges as those given to employees in the private sector by our national
labor laws. This is based on the premise that public and private employment is
the same, when in fact they are radically different. In the first place, government
services are handled by government because it is felt that they are too essential
to the proper functioning of society to leave them to the vagaries of the market
Place. Secondly, government services are monopolies or virtual monopolies and
-hence peculiarly in need of reliabilbEy and continuity. Strikes and disruptions
of service by public employees leave the puble vulnerable in a way that strikes
in plants producing automobiles or electrical appliances can never do. Thirdly, the
cheeks placed on union demands and employer acquiescence by the exigencies
of the market place in the private sector do not exist in the public sector. In order
to show a profit and survive, the private employer whl strongly resist extortionate
union demands. But the public administrator, face with the fear of disruption
of government services and political pressures from powerful unions, will put
up only weak resistance to excessive union demand;. Fourth. the taxpayer, who
has no say in the signing of an extortionate contract, is forced to pay for its
costs through higher taxes. He has no option to buy or not buy the product. as he
does in the private sector.
Fifth, an individual who enters public employment becomes by choice a public
servant. Ile gives up certain prerogatives that he has in private employment. On
the other hand, be receives some benefits in the form of annual leave, paid holi-
days, retirement, secnritv of employment and other rewards frequently superior
to those in private employment. If the pay and bmefits in federal service are
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not sufficiently attractive, the federal employee is free to leave and seek private
employment. This insures that Congress will make the pay and working condi-
tions in federal service sufficiently attractive to attract the needed employees?
and it does not require collective bludgeoning by labor unions to achieve this
result.
The civil service system was developed in this country to keep public employees
from having to be concerned with politics and enable them to work under fair
and uniform conditions. That system is being undermined and perhaps will in
time be completely destroyed by federal public employee unions. The question
arises: Shall federal employees continue to receive the benefits provided under
civil service plus everything else they can extract under pressure of collective
bargaining? An even more important consideration is the re-involvement of civil?
servants in political activities.
Legislation which facilitates unionization of federal employees would provide'
additional resources for the already extensive political activities of federal em-
ployee unions. These unions, by providing substantial political campaign help
for candidates promising more economic benefits for their members, would gain
increasing power over the Congress. Federal agency and administrative heads,
fearful of the unions' political clout, would be reluctant to oppose their demands
in collective bargaining. And the end could well be that private organizations?
labor unions?would exercise more power than the federal government itself.
This threat would be substantially increased if legislation were to be enacted
authorizing the compulsory union shop or agency shop, as provided by two of the
bills under consideration. Federal employees would be compelled through the
payment of dues and fees to provide funds for political activities in behalf of
candidates many of them oppose. 'rhe resources for union political activities
would be greatly enlarged. Discussing this threat, Professor Kurt L. Hanslowe
of Cornell University, former assistant general counsel of the United Auto
Workers, said:
"The union shop in public employment has the potential of becoming a neat
mutual back-scratching mechanism, whereby public employee representatives and
politicians reinforce each others' interest and domain, with the individual public
employee and the individual citizen left to look on, while his employment con-
ditions and his tax rate and public policies generally are being decided by
entrenched and mutually supportive government officials and collective bargain-
ing representatives over whom the public has diminishing control."
Our remarks thus far have been in general opposition to enactment of any of
the bills before the subcommittee. We would now like to discuss some of the
particular features of the bills.
H.R. 10700, like the existing EXecutive Order, provides that federal employees
cannot be forced to join a union or pay agency fees. We commend the Chairman
for including this vital protection of basic employee rights in his bill. It places
a significant restraint on federal employee union monopoly power and thus makes
the Chairman's bill much to be preferred over H.R. 9784 or HR. 13, which contain
no such restraint.
All three bills make the government the dues collector for unions at no cost
to the unions, which means the taxpayers have to pay the cost of collecting union
dues. Although authorization for dues deduction is voluntary in the case of H.R.
10700, whereas, deduction is required in the other two bills, all three bills make
the deduction authorization irrevocable for one year. H.R. 10700 would go further
in the direction of voluntarism if it permitted a. federal employee to revoke the
deduction authorization at any time.
ILR. 10700 makes a small breach in the "exclusive representation" privilege
in that it permits an employee to either represent himself, or name someone
other than the designated union bargaining agent to represent him, in the han-
dling of grievances with his employer. We feel it is too bad that H.R. 10700 does
not go further and eliminate "exclusive representation" entirely. Since it forces
some employees to accept union representation they do not want in bargaining
for wages and working conditions, "exclusive representation" is in effect a form
of compulsory unionism, and as we have stated earlier, we strongly oppose it.
All three bills would set up an NLRB-type body to carry out provisions of
the acts. In the Henderson bill and Brasco bills it would be known as the Federal
Labor Relations Authority and in the Ford bill it would be known as the Federal
Employee Relations Board. Like the NLRB, it would be composed of political
appointees, and, also like the NLRB, its ?bias and the nature of its decisions
would change with Administrations and with appointees. This is one of the
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major flaws of the National Labor Relations Act Ind it would carry over into
all of the bills being considered.
H.R. 10700 prohibits federal employee strikes by excluding from its definition
if a labor organization one which assists or participates in a strike against the
United States Government. Neither li.R. 13 or H.R. 9784 contains such an Or-
elusion. H.R. 1.3 provides that in an impasse the decision of the Federal Labor
Relations Authority shall be binding, but is silent in what happens if employees
strike anyway. H.R. 9784 specifically permits strikes.
While we agree with H.R. 10700 that ferler.al employee strikes would be illegal,
experience bits shown that making strikes illegal in either the private or public
sector does not necessarily prevent or stop them. Strikes are C011111101t among state
and local public employee unions in states where s!lch strikes are prohibited by
law. It is deplorable, but a fact which must be corsidered that the courts have
frequently failed to enforce the law or to inipose fines and jail sentences of
enough severity to deter public employee strikes.
One of the most serious deficiencies in the bills under consideration is the per-
mission given no the Federal Labor Relations Authority fin the Henderson and
'Brasil) bills) mind the Federal Employee Relations Board (in the Ford bill) to
grant recognitian to a union as exclusive bargaining agent without a secret ballot
election. Forcing union representation upon an employee without even giving him
a chance to vote on it flouts the fundamental right of an individual to make his
own decisions. .The practice has led to misleading and coercive practices by union
organizers in the private sector and is a prime source of disputes between unions
and onployers.
H.R. 10700 differs significantly from the other twe bills in the scope of bargain-
ing with federal employee unions that would be authorized. Like the Executive
Order, it does not include in the scope of bargaining such management rights as
the mission, budget or organization of an agency, number of employees, or types
and grades of positions. It reserves the right of management to hire, fire, promoto,
transfer and assign employees as needed. The other bills make the scope .of bar-
gaining practically unlimited. They make it possibt) for union officials to deter-
mine how agencies would lie set up and operated, with the agency head having
virtually no voice in the matter.
Union officials have made it clear that they intend to put up a strong fight
to eliminate the protection of management rights in the Henderson bill. In the
testimony of Andrew J. Biemiller of the AFL?CIO before this subcommittee he
stated that it was particularly Important "to eliminate the unnecessary and
provocative safeguards of management rights". He said that they "need not be
specifically spelled out". Of course he insists that all rights and special privileges
for unions rind union officials be written into the law.
It has also .tieen made clear by union officials nhat they are not willing to
accept the Henderson bill's protection of the right of federal employees to join
and support or refrain from joining and supporting a labor union. They have
served notice they will be satisfied with nothing less than the union shop or the
agency shop in which employees would have to pry in order to lie allowed to
woiik for the federal government.
There are numerous features of the federal employee bills other than those
we have mentioned that we find strongly objectionable. We do recognize the good
features contained in MR. 10700 owl if any federa employee legislation should
be reported out of the Subcommittee we urge thilt it contain the Henderson
hilFa provision for federal employee freedmen of elnice, protection of the govern-
ment's; managonent Hints. and prohibition of federal employee strikes.. In
closing, however, we reiterate the opposition of the United States Industrial
Connell to apnroval of any legislation that would facilitate and encourage the
'unionization of public employees.
Mr. TIENortisoN. I will limit my questions to the prepared statement
as rendered to us because this hs afforded me the opportunity in see
what you did prepare for the record.
Ott page 3, von indicate, "Public employees have a constitutional
right to join a labor union and act in concert, through that union." Can
you explain what you mean by act in concert?
Mr. MnTentyr. That means that, in effect, the union will establish
policy and they become part of that policy. The whole effectiveness of
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the union provision is concerted action; that is, a certain degree of
nontatal unity but close to it.
Mr. HENDERSON. Once that right has been -exercised and a union has
been formed, what concert or what action do you think is proper? Are
those actions spelled out in the present Executive order?
. Mr. ELDER. Mr. Chairman, if I might answer that question, we object
to compulsory collective bargaining in the private or public sector.
Mr. HENDERSON. What do you mean by compulsory?
Mr. ELDER. Mandated bargaining. Both the bills would require that
the Federal administrator engage in collective bargaining with the
union.
Mr. FIENDEasorT. I assume you are saying we should repeal the
Executive order. But if that is your position?I am trying to get back
to the basic point of constitutional . right to join a union and act in
concert. What rights would they have to join a labor union to take
action. What action could they take absent the Executive order? Are
you saying they have a right to join a union and that is all the con-
stitutional right gives them.
Mr. ELDER. Pretty much, yes, sir. Any individual, as a constitutional
right, can belong to any organization which is not subversive or illegal.
What we are saying is we don't think you could forbid anybody to join
any organization.
Mr. HENDERSON. What I want to get at is the words, "act in concert."
What acts in Concert would you permit?
.Mr. ELDER. What we are saying is that if this man wants to join the
union and have the union say it represents him, that is his right. -
Mr. HENDERSON. Represent him where?
Mr. ELDER. In any respect.
Mr. HENDERSON. Acts in concert. What are you talking about, acting
in concert?
Mr. ELDER. In this context, we are talking about collective bargain-
ing, if he wants to give the organization the right to bargain for him.
Mr. HENDERSON. Once the union is formed and there are members,
does the union leadership have a right to collectively bargain, if given
the power by the union members?
Mr. ELDER. They have the right to ask for it and we don't think the
Federal administrator should be mandated that he has to engage in
collective bargaining.
Mr. HENnEnsoN. Who are the public employees, employers?
Mr. ELDER. The taxpayers.
Mr. HENnEnsoN. If the taxpayers, through the elected representa-
tives, give the President the right to collective bargain, is that unlaw-
ful or unreasonable ?
Mr. ELDER. Apparently, it is not unlawful because it has been done.
As our statement says, we don't think it should have been done.
Mr. HENDERSON. I understand you are saying they can form a union
and the union officials .then have a right to collective bargaining, but
there are no requirements on the part of management to bargain with
them on any matters?
Mr. ELDER. That is our position. It should not he mandatory.
Mr. HENDERSON. Who would make that decision as to whether or not
they would bargain? Would you have it done at each agency or instal-
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450
lation subdivision? Who makes the decision of the scope of collective
bargaining?
Mr. METCALFE. Mr. Ch-airman, if I may join in. I don7t know if it is
proper procedure.
Mr. IIEN-maisoN. I don't quite understand.
Mr. METCALFE. As I say, we recognize the fact that we are con-
fronted with already an 'accomplished fact under the Executive order.
We recognize they will have these things, although we want to be on
record as being thoroughly opposed to unionization, as such.
Mr. HENDERSON: When you say public employees have a constitu-
tional right to join a labor union and .act in concert through that
union, T am trying to find out how far you would go?
Mr. METCALFE. A -very short distance. To this extent, it would vitiate
the effectiveness of the union. Namely? if 'what they need is a Voice to
express their somewhat consolidated opinions and attitudes and pref-
erences and the -union can act as that consolidating agency, all right.
But when you enter into the compulsory !asp & of management-union
relationship and inject those into the Government sphere, then we
think we are getting into a dangerous, dangerous situation. We have
seen it.
Mr. ITENnEnsoic. They have a constitutional right. Is that right
meaningful or what does it mean?
Mr. METCALFE. It confers a right but not an unrestricted right, in
my opinion.
Mr. HENDERSON. In your statement, what do you mean?you are talk-
ing about public employees because we must, at least in my opinion,
separate the private sector from the public sector. We attempt to do
that in all the legislation and I think the Executive order basically
recognizes the difference. If you are saying that they have a right to
belong to a union but you go on to say to act in concert, what I was
trying to find out is, what action would you permit and who would you
have making the 'decision as to what tlie management side in the Fed-
eral sector?low do they respond. to the union leaders?
Mr. METCALFE. First of all, assuming that the composition of the
bargaining unit has been established, I don't know your gradations of
management versus the exempt people, in the Federal. employment.
Assuming you have m bargaining unit constituted, then the bargaining
unit members, through their committee men or whatever their infra-
structure up to their business agent say, these are the things we want.
These are the things we would like to have. Now, it becomes a clear-
inghouse of information which is relayed to un 'appropriate agency or
echelon in Government, whatever it may be.
Now, I think it, is 'informative. Factors that are contributing to low
morale and things of that sort can be !brought forward under such a
system. But when it comes to a matter Of a segment of the Govern-
ment employee force determining it wants so and so, when they have
a right to strike and that sort of thing if it doesn't get them, I think
it goes 'beyond the bounds of what collective bargaining should pro-
vide in the public sector, regardless of echelon.
Mr. HENDERSON. I see. I don't agree with you now. T can't 'agree with
you in my own philosophy. I agree with you that constitutional rights
are circumscribed or should be by the Congress or by the President,
under authority granted to him by Congress, or inherent in this office.
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If we circumscribe this constitutional right and say you can join a
union, but you can't strike, if we say you have the right to join or not
to join and the question of agency shop, don't you think it is just as
incumbent for the Congress and President to spell out what areas
there shall be bargaining over, what they may be permitted to talk
about? Don't you think it is incumbent to make that constitutional
right a meaningful one, to prescribe what negotiations shall go on?
Mr. METCALFE. Well, I certainly do, sir. I think this. If enactment
of this type of legislation is inevitable?yes, I do.
Mr. IIENDERSON. Let me show you what I think the difference is.
You have great experience in the private sector but at the present time
in the public sector, under the Executive order, the right to unionize
is granted and I think the acts in concert are pretty well spelled out.
No agency shop, no right to strike, are among them. The Federal
manager is not permitted to negotiate with regard to the mission of
the agency, the pay of the employees, the benefits and I am speaking
generally now. In the postal service, we made an exception. But do you
believe that all the things that are not specifically prohibited by way
of Executive order or by legislation, ought to be left to the negotiation
table between management and unions?
Mr. ELDER. If I might answer. To summarize this thing, I believe,
we are flatly opposed to unionization in the public sector. We don't
think it has any place.
Mr. HENDERSON. Isn't that inconsistent with your statement that
public employees have a constitutional right?
Mr. ELDER. We don't think so. The reason we put that in, 'although
we are opposed to unionization in the public sector, we don't think
we can say a public employee cannot join a union. There is a consti-
tutional right to join any organization. We are saying the Government
doesn't have to bargain with that union.
Mr. IIENDERSONllaving gotten that answer, I think you pretty well
explained your testimony to me. There is another subject here which
you both are perhaps more expert on.
What do you think of the right to unionize in the private sector of
this 'country?
Mr. METCALFE. I realize that time of putting your finger in the
dike is 30 or 40 years behind us. The right to unionize in the private
sector is such an established concept now that we can accept it as a
permanent part of our national philosophy. However, I will say this,
that the right to unionize in the private sector has introduced some
of the greatest inequities, more industrial chaos, than anybody ever
envisioned. I think there should be certain activities circumscribed,
prohibited and meaningfully so.
Mr. IIENDERSON. Let me ask one further question. Your response is
a fair one, irrespective of what basic philosophy you may have about
the right under the Constitution, but do you believe that in the private
sector, that employees through their unions, ought to have a right to,
strike?
Mr. METCALFE. Yes, I do. I do, sir. I certainly do. But I think the
right to strike should be automatically accompanied by a limitation
with regard to the activities allowed during a strike, for example.
Mr. 14_ ENDERSON. We have laws on the books that are examples of
that , too, don't we? For example: the National Labor Relations Act/
Mr. METCALFE. Laws that prohibit misconduct, fear, coercion.
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Mr. HENDERSON. Specifically the right to strike or other union
activities.
Mr. METCALFE. Yes, we do.
Mr. I IEND:ERSON. How do you feel about union shop or agency shop
in the private sector?
Mr. NIETCALFE. Bitterly opposed to them.
Mr. II ExornsoN. just as you would in the Riblie sector?
Mr. MorcAtxli. Yes, sir.
Mr. HENDERSON. DO you distinguish a difference between that right,
as related to the private sector and the public sector, if you had to
choose between one or the other?
Mr. -METCALFE. If it had to exist in the private or public, it ought
to be in the private. It .shouldnit, be anywhere but if it has to exist at
all, let it be in the private.
Mr. HENDERSON. What do you think of the provisions in the Na-
tional Labor Relations Act that leaves this .decision to the legislatures
of the several States
Mr. METCALFE. I think- there is a virtue, in it. The, climate sometimes
changes as States change from an agrarian to the industrial type of
basic economy. But, for example, with the right to work law as it is
generally .called, I don't know that it is a total blessing but psychologi-
cally it has genuine. value. Furthermore, it does impose on unions some
sense of having to exercise a little bit more selling of the benefits of
their endea.vors. But frankly, I think this. I am talking now as an
employer and negotiator. One of the great evils in the whole union
structure is the lawlessness, the coercion, the fear.
It is there, gentlemen. I don't care what pecple, tell you. These things
don't always 'sfind their resolution in the dignified marble halls of a
stately building. T have had too many Calls from people who have
been threatened in my time.
Mr. IIENoFnsox. You are speaking more tcward the private sector?
Mr. M ETCALFE. Yes, sir, I am. But those things inevitably creep
up. Certainly, when we, saw the striking schoolteachers and saw the
verbal exchanges, I was shocked at this. I don't believe there is any
way 'a legislative restriction or anything cite can keep these things
from creeping into the area of management-labor relations.
It has to be a hostile relationship.
Mr. HExnEasoic. Well, let me 'conclude by saying that I think in your
response to my questions, you have pointed out that as it relates to
the private sector?you have arrived at the point that the right to
organize themselves into unions is the right of your employees. The
right of collective bargaining within the ret trictions of proper laws
and so on are correct. As I understand your basic position, it is that
this right to no extent should be extended to Federal employees. I
use Federal employees because that isi what, is before us, not with
regard to what the States do with their employees, public employees.
I presume from your testimony you take the same position there?
Mr. METCALFE. Precisely so, sir.
Mr. Il timmEnsox. I think .the President, with the Executive order.,
and Congress, with its action, has acted an I is moving to act and
simply disagrees with you to the point we 'aelieve it is time for us
to circumscribe anti prescribe, the right of the employees and to pro-
tect the rights of management and the taxpayers by way of legisla-
tion. That is the primary purpose of these hearings. We very much
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appreciate your written statement and your testimOny before us this
morning. .
Mr. ELDER. Thank you. I have enjoyed the oportunity to be here.
Mr. METCALFE. Thank you. . .
MI'. HENDERSON. Our next witn.ess. is Mr. Vincent Paterno, accom-
panied by John Chapman.
Mr. PATEBNo. It is a pleasure to be here.
Mr. HENDERSON. You may proceed with your statement.
STATEMENT OF W. VINCENT L PATERNO, PRESIDENT, ASSOCIA-
TION OF CIVILIAN TECHNICIANS; ACCOMPANIED BY JOHN
CHAPMAN
Mr. PATERNO. I find myself in an interesting position vis-a-vis the
last witness, because my particular statements will be in a different
tone, and different viewpoint. I would like to say that I have 25 Years
of Federal service, as a Federal employee and in the military, and I
can't quite find myself as an irresistible monster or large-scale threat
to the Government. I think at this point I would like to read my state-
ment. It was written with a number of appendices attached for the
committee and I think it represents pretty well, my position on the.
legislation that has been proposed.
It is not specifically 'Monday morning quarterbacking" because
these are positions I have had for quite awhile.
There are mixed feelings of reservation and guarded optimism as I
testify before this respected subcommittee on the matter of Federal
employee labor relations legislation. Caution that the legislation might
anchor into bedrock of law requirements that could hamper reasonable
efforts to represent thousands of employees properly. Optimism that -
having a well-founded law could enhance the collective purposes and.
provide new avenues to achievement. I must admit that none of the
proposed legislation is, as written, the total answer, in my opinion.
Collective bargaining, the real issue at hand, must be generated into
an issue of equals or Sere can be no such machinery except in words.
We can make statements about binding arbitration and third-party
dispute settlement but, in my view, we are proposing end products .
most commonly effective at crisis times. An agreement betwem parties
to use binding arbitration differs essentially from the. initial require-
ment that it is the only path. A legislated "cooling off" period in the
face of a work stoppage. would give time limits and emphasis to the
need for agreement. An injunctive stay through the courts might pro-
vide the climate for effective mediation. How,- in any lesser circum-
stance, can we identify the critical points in the, bargaining process.
The coloration of all issues, when there is a standard device of third7
party decision, is gray. The identity of crisis, or of fundaMental issues
of conflict, will not otherwise appear until, as in the other public sec-
tors, illegal strikes and stoppages occur. Will we -then make. the criti?
cal area a new public corporation as we did with the Postal Service?
rfle answer, of course, is "No."
We must provide in this legislation ultimate means such as pickets
and work stoppages to surface as facts or probabilities to establish
where the problems are and mitigate them through mediation efforts,
third-Party entries where needed, and cooling off periods. This, in
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fact, is not so much an argument for the right to strike as it is for the
methodology to recognize and alleviate critical bargaining areas. It is,
too, a necessary means to create equality at the table and to wipe the
smugness from the faces of management as they bargain with no fear
of resulting crisis.
I submit that the right to strike issue is one of obfuscation and is
used as a concealment of the major issue?that of increasing the scope
of bargaining and of providing the bargaining table with the need for
agreement by equal parties. I can presently conceive of no issue that
would initiate a strike among Federal employees on general terms nor
of any union that would call for one. None of the unions in the Federal
area have the strike funds nor desire to initiate this approach. I can,
however, conceive of some isolated bargaining units, where manage-
ment is so ban, that crisis prevails. If it did, fne national union would
be as anxious as Government to provide settlement and with the con-
ccaling cover thrown off could probably achieve it.
Despite the numerous statistics quoted by Chairman Hampton in
his presentation to prove the effectiveness of bargaining, I can state,
without any fear of meaningful contradictic:n, that contracts so far
achieved are without real substance and result :nost commonly from the
riist rati on of time and nonnegotiability determinations. The scope of
atr,iraining is limited by agency regulations, time elements in the pro-
cedural systems and the adamant positions tali en by management, who
'stand to lose nothing by delays or frustrations. The nice sounding
words of "cooperation or "bilateralism" are not interpreted into
policy.
How, then, can we enhance bargaining, if it is really desired? What
is the "hammer" we can give to the employees seeking contractual se-
curity? Where do we. let surface the real "crisis" issues, which may dif-
fer agency to agency and in work site ilocation? And how and under
what timetable do we bring the needed sophistication about?
These questons are hard to answer simply. do not think that H.R.
10700 goes far enough despite its improvements on the Executive order.
I further believe that H.R. 13 and H.R. 9781 tend to provide an im-
mediate requirement to negotiate on terms such as wages and fringe
benefits that could lead to a breakdown of the whole area of collective
bargaining and result in confusion, friction, and improper representa-
tion on both the management and union sides.
The answer seems to be in the establishment of mandatory items of
bargaining in a progressive time frame that will allow the sophistica-
tion and experience to develop. Congress, in its responsibility to law,
must become a continuing party, by annual review to supersede its
statutory requirements with a view toward la mate negotiations on all
items affecting working conditions. The law should establish full ne-
gotiable rights over regulations unless they are specific in reference
to statute and even then subject to immediue review upon request.
With this starting point, and with the provision of equivalent status
bargaining, the sophistication of real negotiations could be developed.
Federal employee unions have been hampered by their lack of
1,ar,raining clout in achieving dues structures to support the essential
staffing for full range economic bargaining. More effective negotia-
tions, in ft growing concept, will allow this to develop as would a
realization that dues or equivalent charges from all members of a
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bargaining unit is appropriate. Full representation with only volun-
tary dues is like running a Government on voluntary taxes.
I can conceive of a smaller "NLRB," Federal Labor Authority,
call it what you will, as an independent body but have , reservations
on the extent of its decisionmaking powers and would reserve ultimate
judgments to the courts. Regardless of its method of selection it would
have to suffer political appointment. Inherent in its charter should
be a dual reporting relationship with the Congress and the executive
since both would be concerned in the statutory and administrative
processes. I would find it consistent with good procedure that a joint
Senate and House committee be in constant standing for the overview_
The executive must, without question, deal with the labor-manage-
ment area and the Congress should. The problem of superseding laws
and budget projections require their continuing attention in an or.-
ga,nized fashion. It would not be easy?but no other equitable way
offers.
The concept of bargaining is with the public sector in full strength
and will not be effectively met until it is fully recognized. I cannot
agree with Chairman Hampton when he indicates that contractual
agreements will violate merit standards. If anything, they will im-
prove them to a greater degree by insuring a uniformity of treatment
and negotiated standards that will effectuate systems of selection and
promotion based upon known and published measurements. It is cer-
tain that seniority would be a large proportion of rating but that
stands more firmly than the present selection system which is cumber-
some and regularly capable of personal bias and choice. The two sides
to the table are insurance, or should be, that equity and reasonable
public service would prevail. It is not now so.
The recent criticism by the Comptroller General indicate,s the
methodologies used by management in reduction-in-force programs
are less than adequate for public protection. I submit that properly
negotiated procedures without undue regulation of management pre,
rogative would better serve performance, justice, and equity. The.
human factor in a negotiated contract is one of universal treatment as,
a union standard, as against management's common choice of the hu-
man they happen to like or find useful.
The same rationale pertains in work scheduling, disciplinary treat-
ment, adverse actions, wearing of uniforms, grooming standards,
safety procedures, hazard and dirty pay, overtime scheduling, bar-
gaining unit work performed by supervisors, manning and work
measurements, job classification, specific designated supervisory and
management personnel, sick and personal leave usage, job retraining?
and the identification of work and, travel time. Management should no
longer say, "You do because I say you do." They must manage in mod-
ern times, with modern terms and under common circumstances.
Chairman Hampton in his long and detailed presentation carefully
identifies each problem and then casts new treatment aside by the
simple and paternalistic position that they are doing it as well as it
can be done so why change. He quotes the huge success of the program
and indicates that there are no "horror stories" or real reason to change
from executive prerogative to law. I do find horror stories and many
specific reasons for change.
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It should be noted here that Mr. W. J. Usery, Chief Federal Media-
tor and the former Assistant Secretary ol Labor for the Federal
'Service, has recently been publicly noted as agreeing with the identity
have given .labor contracts in the Federal ar a as basically too limited
to be meaningful ard further identifying the right to job action as
not simply replaceable by any known. machinery. Ifis position only
.gradually pronounced, as the dialog has increased, marks vast dif-
ferences from Chairman Hampton's statements. I most submit that
it may be a semantic difference in the identity of "horror" that pre-
vails. I would expect that Chairman Hampton, sitting in defense of
what is and has been, is self-protective and totally managerial in his
position?and shortsighted.
In many instances the courts, despite their reluctance to determine
Executive order questions, have become the rvenue of last resort for
our union. A man hurt in 19, by demotion in his civilian job in
Pennsylvania, for union activities, had to be made whole by the Third
Circuit in "Tg,Rher V. Shaffer et al" in 1973. A man fired for grieving
his unlawful military usage in Delaware had to be made whole by
the Court of Appeals- after 3 years of administrative and legal appeals
in "Chandoi'n v. Atkhmon" in 1974, again the Third Circuit Court of
Appeals.
A case in Montana now appealed to the an Francisco Court of
Appeals on the uniform. A man fired for grcoming now in the Pitts-
burgh District Court. Three men fired for not wearing military uni-
forms now in the District Court in. Detroit. A man fired by refusal
to reenlist about to reenter the District Court in Brooklyn after court
ordered administrative appeals failed of justice. Two other cases pend-
ing presently and a complete dissatisfaction with justice as adminis-
tered under the Executive order.
Unfair labor charges filed early in 1971 not yet finally adjudicated
despite hearings in the summer of 1973 in Ncw York. Contract nego-
tiations started in 1971 in the same State nct yet completed. A con-
tract signed in 1971 not yet in effect in Peoria, Ill., despite filing of
LP charges. not yet heard, in 1973; ULP's rampant in Pennsylvania
as they use every method to delay negotintiohs possible. Obviously in
no fear of any charges. A real circus of frustration arid meaningless
labor relations.
The National Guard Bureau with full approval of the DOT), De-
partment of Army and Air Force, promulgating regulations and set-
ting with no fear of recrimination a debacle of purposes not in any
Avn v to be called "bilateralism" or "cooperation."
have faith in no halfway answers to collective bargaining Nit do
recognize that a timeable must be established for those items in the
large economic area to prevent utter Chaos. The failure of real bar-
gaining in good faith to take place has kept the burden in the Con-
res and this must be substitnted. for in a fashion that can be achieved
realistically. However, the collective bargaining, area can be increased
dramatically at once. To do this the following areas need complete
negotiable range:
(a) Jobs classifications need an applicability to wage levels rather
than arbitrary and non-negotiable descriptions and archaic standards.
(b) Shift assignments and work to be performed by appropriate
personnel must be fully negotiable.
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(c) Grievances and adverse actions for all employees, including
new hires, and here I am specific because probationaries are treated
poorly in this country, must be negotiable together with appropriate
disciplinary standards and binding arbitration over the full range.
(d) Reduction-in-force procedures must be fully negotiable includ-
ing retraining and reassignment.
(e) Overtime pay and assignment must be fully negotiable beyond
the Fair Labor Standards Act and without reference to other laws
and regulations.
(f) Safety standards and emergency medical support must stand
the full range of bargaining.
(g) Merit promotion standards need rational negotiated proce-
dures to protect the public and the members of the bargaining unit
from inappropriate appointments.
(h) Performance evaluation and job-related requirements for con-
tinuing employment must be negotiable.
(i) 1-lazard and dirty pay premiums must meet the challenge of
collective bargaining.
(j) Leave assignments, sick standards, and such new items as sab-
batical leaves with pay must be discussed and negotiated.
(k) Health insurance plans must be negotiated, including em-
ployer's share of cost, because in this particular area, I don't think
the civil service has negotiated very well.
(1) Early out retirement must be negotiable for employee and
managerial options with a view toward possible achievement of law
enforcement standards for appropriate jobs that are physically or
mentally taxing. This shouldn't be something coming back to the
Congress. It should be capable of being negotiated and recognized at
the place and at the worksite. It seems we are overutilizing the legis-
lative process in this particular area.
(in) Grooming standards and wearing of uniforms must be estab-
lished by negotiations and not the arbitrary standards of managers
who want to see themselves surrounded by workers who dress and look
like their (the managers) children won't.
(n) Travel time and work time should be negotiated in relation to
actual worksite performance and requirements, not by universal regu-
lations and laws that are not functional concepts of the time taken
away from an employee's personal life and family.
(o) Productivity, the new key work in the administration vocabu-
lary, will never meet the negotiable range without incidental security
and rewards for increased performance. We should not anticipate
negotiations or actual performance that will do away with jobs as an
end product. Just Tuesday of this week we had a consultation with
the productivity group up in General :Accounting. They have been
doing work, but they haven't gotten to where the work is done. They
are up at the agency level.
(p) Contracting out should be completely negotiable and not left
to the discretion of policymakers who would appear to have vested
interests not so significant as a worker's career.
(q) Supervisors should be limited by negotiations from performing
bargaining unit work. They should, if they are to be excluded from
unions, by managerial only.
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I am certain that many more items could be mentioned but these
few signify the extent to which bargaining can become real and ulti-
mately lead to full range economic negotiations. These items are all
proscribed to the largest degree by law and regulation. Let the bar-
gaining begin.
To better the climate we need appeals machinery that can take an
issue from impasse to resolution in weeks?not years. We need unfair
labor practice procedures that punish transgressors from manage-
ment?not lust unions. We need investigations performed by the third
party rapidly before issues become moot. We need effective and im-
mediate, mediation. We need definitions of supervisors that allow no
management determinations of arbitrary oxclusion standards. We
need financially sound unions, capable of democratically achieving
dues or charges from all employees served by the bargaining unit.
We need a Government philosophy of "will do" with dispatch if it is.
to work.
And as this proposes to be done the bargaining unit must be
democratically achieved with a full range of acceptance by work site,
base, or grouping that serves representation, We do not need Section
'(1) on pages 24 and 25 of H.R. 9784, nor section (i) of pages 13 and
14 of H.R. 13, that will legislate national ba-gaining units. These are
achievable by multhinit bargaining, as in the private sector, or in the
language of ET.R. 10700. This particular approach in H.R. 9784 and
H.R. 13, invites "sweetheart" deals by agencies and unions to the
possible, thwarting of legitimate employee deEires.
Bigness can be had or good but the evidence in the, private sector
is that the, rank and file must be heard and that this is a significant
problem in today's labor area. Keep what is and let unions approach
their own responsibilities in arriving at accumulative bargaining.
This area of public labor-management relations is one of the most
dynamic before the Congress today. I request this committee to act
wisely and with needed dispatch to provide the preventive solutions
before the current, trend of insecurity finds us healing outbreaks that
have rapidly generated. I am certain that this will happen.
[The appendix material submitted by Mr. Paterno was retained in
the files of the subcommittee. The material is identified as follows:]
(A) Lasher, v. Shaffer, at al.
(B) Chaudoin v. Atkinson.
(C) Montana Chapter A.C.T. v. Brg. Gem Roger G. Young.
(D) Alvin J. ,Syrek, at al v. Penna. Air National Guard, et al.
(E) David E. Bruton, et al v. C. C.1Schnipke, et al.
(F) Robert G. Duo v. Capt. Frank Pons, et al.
( (1) N.Y. Sttue Council, A.C.T. (complainant): & N.Y. Army and Air National
Guard (respondent).
(II) Illinois Air Chapter, A.C.T. (complainant) & illinois Air National Guard
(respondent).
(I) Disposition of agency charges?Re: Work Stoppage?N.Y.
(J) 3 items--Re: Federal Labor Relations Council review?dated Oct. 24,
11173, Feb. 8, 1974 and Apr. 24, 1974.
Mr. HuNorasoN. You say in your testimcny, "We must provide
means such as pickets and work stoppages to service problems and
mitigate them through_ third_ party means."
YOU indicate a need to speed up impasse resolutions. Could you give
us your suggestion as to the methods you propose to settle impasses
and speed them up?
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Mr. PATERNO. I am trying to say?I am not wise enough to find a;
decision other than the one they have in the private sector, to let a
crisis develop, to provide a climate under which the third party system
can be invoked.
If we establish the third party system at the entering point, then all:
issues will end up in the third party system and the number of tooth-
picks they have on a table in a cafeteria will be of the same value as.
a valid genuine dissatisfaction with work.
Under the present system, we can't identify which is the crisis issuc,.
and which is a ridiculous issue. We are talking about things going
to impasse panel on parking spaces. We haven't had a real serious
situation yet, which has been solved by third party procedures.
Mr. HENDERSON. On page 8 of your testimony, paragraphs (a) and'
(b) refer to job classification of work to be determined. You indicate
they are in a complete and negotiable range. What do you feel these
items cover and do they intend to cover work to be done by employees?
Mr. PATERNO. We are discussing here and I am primarily thinking of
aircraft mechanics, for instance, being paid on an area wage scale
when, in effect, the industry itself is paid on a national: wage scale with.
little separation. The aircraft mechanic in the private sector is paid
basically on private contract. This is what I mean; they need to be
applicable to wage level. It is not enough to classify something?
someone in a white collar and tie sitting in the Civil Service Commis-
sion and saying somebody has these skills and this is what we will pay.
If the pay is out of line with the job in that area, then you have'
an area of dissatisfaction. Under the present accountability circum-
stances?we are a year or more behind. But the standards, themselves,
find almost as difficult. As I go into the field of job classification and
description, it is almost impossible to rely on this in a measuring
sense. I think if we did this at the bargaining table on a site location
where jobs differ because of the different application of skills pro-
vided, we would tend to go into industry in this area and we would
tend to make a more broad range circumstance and we would tend to
apply the actual fact of what the man does rather than what they
want him to do.
Now, in the National Guard Bureau, the job descriptions for 45,000:
people are written centrally, not on site.
Mr. HENDERSON. You are talking about the classification and not
work assignment?
Mr. PATERNO. Work assignment, I have treated in another place.
Mr. HENnEnsoN. Let me ask you this. You mentioned the aircraft
mechanics in the private sector are paid on a nationwide scale?
Mr. PATERNO. Basically, yes' sir.
Mr. HENDERSON. You think aircraft mechanics working for the'
Government should be paid on a nationwide scale?
Mr. PATERNO. Here I can comment on the wage legislation. I think
when you have an item like this, with commonly identifiable wage'
circumstances on the nationwide basis, then I can't see why the wages
can't be based on the national rather than regional basis. We have
aircraft mechanics working in large numbers in Great Falls, Mont.,
but there are no aircraft mechanics for the airlines in Great
Falls. The closest correlated job is in Denver or Seattle. These people,
nevertheless, deserve to be paid under the skill for their profession,
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not under the skill that puts this at a WG? or 10 and then pays them
.what people in other skills in WG-10 get. in that area, with no cor-
relation in that area of aircraft mechanics.
Mr. HENDEnsoN. They should be paid a national wage.
Mr. PATERNO. Under the present legislation, this would be achieved
hy declaring certain skills.
Mr. IIENDEnsox. What about activity in the Federal Government
hitt is so widespread as the postal service, for example? Do you think
t hey ought to be paid on a nationwide scale?
Mr. PATERNO. This is one of the toughest po nts you have as a union
president. You take a geographic bonus or cost of living position. I
would have to say yes. Yes, because functionally, what the Govern-
t tent does?
Mr. ffExtuafsox. You confuse me a little bit. Do you believe we ought
to start with nationwide scales and then pay bonuses?
Mr. PATERNO. I am talking about the diffe7ence between the wage
grouping atilt the more integrated as against the national pay scale as
we have in the GS's, basically.
Mr. HENDERSON. In the first instance, you say aircraft mechanics
ought to be paid nationwide. What about automotive mechanics in the
postal service doing the same job in New York City and one in Atlanta,
Ga.? Should they be paid the same?
Mr. PATERNO. No; 1: believe the present ,system of blue collar struc-
ture is equitable in this sense, in the sense that it does compare the job
with those jobs in his area and this is not a nationally determined
scale. What I am saying in the one area, American Airlines, United,
are making national contracts. The effect in that industry is that par-
ticular grouping and skill of people are paid on a national basis.
Mr. HENDERSON. Let me put my question another way. If Congress
were to legislate that management could Set pay nationwide or on a
locality basis, but they should use that which was cheaper, what would
you think of that as a national policy?
Mr. PATERN O. I think you proscribe the effect of collective bargain-
ing. I am not interested in having a Federal employee in a nonunion
area suffer because somebody doesn't happen like unions or private
sector unions haven't been successful in that area. I want to ne-
gotiate with some degree of range.
Mr. HENDEasoN. Perhaps I missed your basic premise. You feel in
the Federal sector that pay ought to be subject to collective bar-
gaining?
Mr. Pivrianvo. No ; a job classification only?methodology right now.
Ultimately, yes, but I don't think we have a sophisticated enough time
in the union-management relationship in the Federal service to go into
the larffe-scale economic range. I think we should experiment the full
range of bargaining effectively first, in certain other areas, and grad-
ually develop it.
Mr. HENDERsofq. Let me take a minute in that regard on technicians.
Would you think that in that particular area you're ready for full
collective bargaining?
Mr. PATERNO. To the degree that I have established, Yes.
Mr. ITENDEasox. Would you feel that that ought to be a nationwide
collective bargaining?
Mr. PivrEallo. No ; in this particular area the basic statute of initia-
tion of these employee categories places the adjutant general as the
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managing agent, so to speak, and I believe this is the point at which
the bargaining has to take place. I think the statute already requires
this. If you set the statute 'aside, could we do it nationally? Probably.
Mr. HENDERso_w. Would you recommend that it be done nationally
.or would you negotiate from site to site or other geographical areas?
Mr. PATERNO. I would suggest that it be done on the State level in
this particular function. It's close enough and small enough to be
responsive to its people. Naturally, if you're in my position you
would like to have it fall into your hands, but I'm not sure that you
would become responsive enough to the people that you represent. I
would like to see them have the power to collective bragainmg that I
enumerated in here.
Mr. HENDERSON. Very well. Thank you very much for your testi-
mony this morning and your appearance.
Our next witness is Mr. John White, director, legislation and public
relations, National Alliance of Postal and Federal Employees. You
may have others with you that you'd like to introduce.
STATEMENT OF JOHN WHITE, DIRECTOR, LEGISLATION AND PUB-
LIC RELATIONS, NATIONAL ALLIANCE OF POSTAL & FEDERAL
EMPLOYEES, ACCOMPANIED BY VOTIE D. DIXON, NATIONAL
SECRETARY, AND WESLEY YOUNG, NATIONAL VICE PRESIDENT
Mr. WHITE. Chairman Henderson and distinguished members of
the committee, the opportunity to testify before you this morning is
deeply appreciated. There is an awareness on our part of the very high
degree of public interest which has been created because of the several
bills which are now pending before your august committee. The issues
involved in enacting legislation designed to improve labor-manage-
ment relations in the Federal service convince this union that some
worthy citizens and organizations were not selected to appear person-
ally before you because of the committee's urgent task to reconcile their
appearance with the need for prompt action and the reality of the
shortage of time in the waning hours of the 93d Congress. Members
and officials of this predominantly black independent industrial labor
union publicly applaud the sensitivity and perception of you, the
committee, and your excellent staff. Because you possess these fine
qualities, an organization such as the National Alliance of Postal and
Federal Employees is permitted to appear and testify before you today.
Mr. Chairman, with your indulgence, a brief resume of this union's
origin, history and goals is now presented. Perhaps such a recital will
aid the committee in better comprehending some of the agonies and re-
actions of an independent minority union, composed primarily of
individuals from minority groups. As our plight is contemplated, this
union's position appears similar to the embattled mythological king
who cried out, "The barbarians drive me into the sea and the sea
drives me back into the arms of the barbarians." On one hand, our
continued existence is imperiled by the high bureaucracy which repre-
sents the executive branch of the Government and on the other we
are threatened by the large Federal unions who seek a monopoly which
would deprive individuals of their constitutional and human rights.
Second, reference is made to the story of Scylla and Charybdis,
which further highlights our dilemma. These two monsters existed in
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the fable of the "Voyage of -Ulysses." Scy:la was once a beautiful
maiden who had been turned into a snaky mouster. She dwelt in a cave
high on a cliff from whence she was ?acctstoned to thrusting out her
long necks ar.d in each of her mouths, seizing one of the crew of every
vessel passing within reach. Charybdis Was a gulf nearby on a level
with the water. Thrice each day the water rushed into a frightful
chasm and thrice was disgorged. Any vessel coming near the whirlpool
when the tide was rushing in was inevitably engulfed. Neptune himself
could not save it.
Third, in 1974, three boys, following their death, approached the
pearly gates seeking admission to Heaven. One was Italian, another
was English, and the third was a black American. St. Peter asked the
first youth how to spell God. It was easily spelled G-o-d, and he passed
in. The second youth was asked how to spell God and be too passed the
test. The black youth stepped up and St. Peter said to him, "Boy, I
can let you into Heaven if you can spell chrysanthemum." This narra-
tive of the three boys suggests the kind of problems which confront
blacks and females. and organizations which represent them.
In 1913, 61 years ago, a small group of b:ack male postal railway
clerks met at the foot of Lookout Mountain in Tennessee and orga-
nized to resist a conspiracy between Postmaster General Burleson and a
craft union to eliminate black employees from the Postal Railway.
Service.. This group soon learned that black employees in other areas of
the postal service faced the same job jeopardy as they themselves, and
needed help. Thus, was formed the National Alliance of Postal Em-
ployees, the first industrial union in ,the Federal Government, where
all crafts and. segments of the work force functioned under the demo-
cratic banner of unity. It was recognized by our Founding Fathers that
the differences among craft employees in lab ?3r-management relations
were basically as superficial as the work perfprmance variance falsely
attributed because of race, color, religion, age, and sex. The concept
was embraced. 61 years ago, by this union, that all Federal employees?
worked for rhe same employer and all employee- and employer-
related problems should be resolved on a basis of fairness, uniformly
applied, without regarding to craft or job title.
During the years prior to 1965, thousands of pleas for help came to
this union from employees and citizens who worked for Federal agen-
cies other than the Postal Service, or who had unsuccessfully applied
for employment. Those employed charged existing Federal unions with
failure to represent blacks and females. They further claimed that the
unions themselves practice discrimination because of color and sex.
Many applicEnts for employment alleged, with must justification, that
numerous bureaucrats empowered with the authority to hire were in-
sensitive to human values and hostile to blacks and women.
In our nafonai convention which was held in Los Angeles, Calif..
in 1965, we amended our national charter and became the National
Alliance of Postal and Federal Employees. This gave us the constitu-
tional and leTal authority to represent and organize all Federal em-
ployees. During the intervening years, great Emphasis has been placed
on providing Federal employes with vigorous representation in griev-
ances, adverse actions, and equal employment opportunity complaints.
Now it is recognized that the climate in which small Federal unions
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have recently functioned, with diminishing freedom and recognition,
is further threatened by a corollary pollutant which would deprive
.an employee of the right to choose a representative as well as the
right to hold a job. This means that this union must and will more
actively work for the passage of legislation which will provide a sound
statutory base for labor-management relations affecting employees in
the executive branch of the U.S. Government.
The pamphlet, "A Comparison of Executive Order 11491, as
Amended, to II.R. 10700 (Mr. Henderson), H.R. 13 (Mr. Brasco) and
H.R. 9784 (Mr. Ford)" which was prepared by the Office of Labor-
Management Relations, U.S. Civil Service Commission, under the
auspices of the Subcommittee on Manpower and Civil Service has
been very helpful in denoting some of the differences between the
Executive order and proposed legislation. The "Summary of Key
Features of the Federal Service Labor-Management Act of 1973" as
proposed by Mr. Henderson's bill, H.R. 10700, which was prepared by
the Subcommittee on Manpower and Civil Service, has also been valu-
able to one attempting to make an analysis of pending legislation.
The committee and its staff are highly commended because of the
very excellent way in which it has prepared for these hearincts and
you, Mr. Chairman have conducted the hearings in the finest'lradi-
tion of patience and wisdom.
Based on this union's understanding, an Executive order is an edict
issued by the Nation's Chief Executive, which governs all citizens
and agencies covered by its provisions. It is an unilateral order and
relies solely on the discretion of the executive branch of Government
for its issuance and enforcement. There is no input by the other two
branches of our Government. An Executive order may be issued today
and it is law; and, it may be rescinded tomorrow. A succeeding Chief
Executive is not bound by the Executive orders of his predecessor.
Consequently, he may rescind, amend, or retain an order issued by the
former. It is the danger inherent in the unilateral concept of the Exec-
utive order which demands that this union take the position that labor-
management relations should rely on sound legislative action, in lieu
of the whim of a Chief Executive.
The Executive order has, on occasions, served a very valuable public
purpose, in the infrequent instances when the deliberative processes
of Congress have failed to keep pace with the needs of some of the
people, which were consistent with the best interests of all of the
people. In such cases, a bold and enlightened President may take
action which removes the completeness of a void which then existed.
It was an excellent tool in the repertoire of representative Government.
But it is no permanent substitute for timely legislative action.
President John F. Kennedy took a momentous step in 1962 when he
issued Executive Order 10988, which established the formal labor-
management relations systems in the Federal Government. Either
he was ahead of the sentiment which prevailed in Congress and parts
of the country, or he administered one of the most artful placebos in
the history of labor-management relations. Executive Order 10988, as
-amended, in part would strengthen any legislation which may be
enacted.
Because of many crucial, controversial, and even delicate issues in-
volved in the pending bills, the challenge and requirement to draft
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precise and clear language is vital if years of -..onfasion and ligitation
are to be avoided.
One of the most painful episodes in congressional history is the
sage of Public Law 91-375, enacted in August of 1970 and known as
the Postal Reorganization Act.. The conflicting claims which have been
made concerning the intent of Congress are perplexing. Perhaps, one
must conclude that much language in I r.R. 17070 was actually devoid
of clarity, or view with skepticism some irdividuals? officials, and
others who seemingly champion odd interpretations of congressional
intent.
Over 700,000 postal employees were removed from the coverage of
an Executive order in the area of employee-labor-management rela-
tions to inclusion under the provisions of 'Public Law 91-375. It.
therefore, seems desirable to explore the relati onship of language. and
its impact on the conveyance of intent, so as to minimize the dialog on
intent.
Representatives of this union have attended all the previous hear-
iiprs which have been conducted on the question of replacing the-
Executive order with legislation. They lave talked with many officials.
rank and file employees, and citizens who are not Federal employees ;.
and the unvarying conclusion has been reached that the time has now.
come when legislation should be enacted to provide. Pair and reason-
able labor-management relations in all Federal agencies.
Perhaps I should amend this ?last paragraph. I said at the time it
was written that the sole voice which has been raised before this
committee in opposition to such legislation has been by the. spokesmen
for the TT.S. Civil Service Co.mmission. Their testimony gave evidence
that they had done a thorough job of preparing their statement, but
this union has not been dissuaded from its firm belief in the need for
legislation to replace the Executive order.
An overwhelming consensus exists. The time for action is now.
EMDERAL LABOR RELATIONS AUTHORITY
H.R. 10700, 11.11. 13, and H.R. 9784 seemingly are in agreement on
the need to create an authority to carry out the, provisions of the
proposed legis.laton. The bills differ in some., areas, which may be
fundamental, in defining the scope of the authority's function, while'
the Chairman of the Civil Service Commission opposes the formation
a a new authority. and urges the retention of the Federal Labor Re-
lations Council, which was established under the Executive order.
This union ardently embraces the concept of a Federal labor rela-
tions authority, staffed with qualified members. and clothed with
suffieient independence, to guarantee its integrity. The following is
sitggested:
1. The authority would consist. of nine members, who would be ap-
pointed with the advice and consent of the Senate. One would be a
black person, one a female and one a memt:er of another minority'
gronin. One would be independent politically and no more than iive
could come from one political party.
2. A member would only be removed for just cause and would have
an opportunity to answer any charges bronglri against_ him (her) pre-
ced ine. any adverse action. Appeal to a Federal court would be ap-
propriate, at the, option of the member.
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3. A member would work solely for the authority and avoid all con-
flict of interest situations.
An authority (board) which is visibly made up of all segments of
the American people would be a positive psychological force. It would
enable working people, blacks, whites, females Democrats Republi-
cans, Independents and others to identify with the board. It could
give hope to many Federal workers who have been disillusioned
because of a cumbersome, seemingly unresponsive bureaucrary and
the autocratic insensitivity displayed by some big unions.
Women, blacks, and other minorities could provide a vital addi-
tional dimension to the board, while developing expertise in its
routine functions.
Board members must be insulated against the dread sycophantic
syndrome of the Potomac, which deadens morality and stifles imagina-
tion. Their integrity and judgment must not be impaired. They must
be independent, but they also must be accountable for carrying out
the intent of Congress.
RECOGNITION
We find ourselves in opposition to the provisions of H.R. 10700,-
H.R. 13 and H.R. 9781 which would allow the authority to certify a
union as the exclusive bargaining representatinge for a designated
unit, in the absence of secret ballot elections. It is believed that the
best interest of the Federal service, the employees, and the healthy
democratic role of unionism require a secret ballot election.
For the purpose of recognition, units should be established solely on
the basis of a community of interest among the employees involved.
The size of the unit should not be a -factor. Identity of common bonds,
clear goals, experiences, skills and inteerst far outweigh the superficial
notion that large units, per se, promote efficiency. Equally unaccept-
able, is the Civil Service Commission's espousal of large .units because
oft he alleged burden which smaller units place on the managerial
bureaucracy. The Commission calls the development of smalled units
a proliferation of fragments. We claim their positions reflects an
inability or unwillingness to utilize or develop the necessary tools
required to do the job. The Commission's position if allowed to pre-.
vail, would diminish or destroy the equity of many employees with
bona fide rights, which are deeply rooted in smaller units.
We,
respectfully, disagree with the section of H.R. 13 which pro-
vides that th.e rights of a union which gains national exclusive rec-
ognition in an., agency would supersede all prevailing contracts at
lower levels of the agency. There seems to exist no sound ,basis for
enacting legislation which could cause the cancellation of contracts
which were freely and legally entered into by the appropriate parties.
at lower levels.
Experience gained under Executive Order 10988 shows that rec-
ognition may simultaneously exist at the national, regional, and local
levels, and in three forms, exclusive, formal, and informal. Executive.
Order 11491 which replaced Executive Order 10988 was amended by
Executive Order 11616 which also provides for different levels of
recognition. Seemingly, the desire of some big unions to increase
their size is coupled with a monopolistic zeal to eliminate their com-
petitors and to take a stranglehold on the workplace. Their influence.
contributed to the erosion of small unions and employee rights under
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Executive Order 10988 as replaced,.and amen led. Now their cry is for
more.
We strongly support section 504(A) of H.R. 13, which provides in
Part that "A labor organizatiion which has been granted exclusive
recognition at the local level may be granted national consultation
rights," except the word "may" would be repla ced by "will".
It could be very valuable for the national level of an agency to have
input from a local exclusive which may not be an affiliate of the na-
tional exclusive union.
A careful analysis of section /106 T of H.R.. 10700 compels us to
oppose its inclusion in legislative form. It is believed that the authority
.should not be empowered to combine two or more work units into a
larger unit, regardless of agreement expressed by the unions and the
agency involved. Units are established inhially by the authority
on a basis of acceptable and valid criteria, including its function as an
efficient cog in achieving the agency's mission. A merger of smaller
units into a larger one, when all locals are bart of the same union,
would be a step toward monopoly. It would make it more difficult
for a smaller union to issue a challenge at election time and deprive
employees of a meaningful right to chose a representative.
A change from several smaller units to one larger unit should not
be allowed except under unusual circumstances. It should only be
approved then if the employees involved have the right to vote "No."
Here one is reminded of one of our introductory tales about the
three boys talking to St. Peter at the pearly gates. Only the little black
boy had to spell the big word to enter heaven.
IT.R. 9784 section (B) (11 provides that labor organizations shall
have access at reasonable times to areas in which employees work,
the right to use the employer's bulletin boards, mailboxes, and other
communication media subject to reasonable regulation and the right to
use the employer's facilities at reasonable times for the purpose of
holding meetings, et ceteria. These courtesies would be extended to all
unions until such time that an exclusive union lad been recognized. The
section appears excellent with the exception of the cut off provision.
Such an arrangement would improve communications among employ-
ees, unions, and management and should continue beyond the point
of exelusive recognition. It, would not derail the agency's mission and
would provide democratic participation in employee-management
related affairs.
REPRESENTATION-UNION SEC 7TRITY
The tactics of some. of our big unions are sometimes beguiling. They
-call members of smaller unions brothers to their faces, and proceed
to eliminate th cm, as competitors, if possible. They publicly denounce
managers and employers because of alleped unfair and inhumane
treatment which is imposed on subordinates and simultaneously ask
managers to join them in establishing unior security. They seek a
monopoly on the right to represent Federal eraployees and would bar
-employment to qualified individuals who fail to -pay dues or the
-eoivalent. They tell blacks, females, and other minorities we deal
with bread and butter issues, "Go to the NAA OP, the NAPFE- or the
Equal Opportunity people, if you have a complaint about discrimi-
nation."
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Those who have failed to represent all of the Federal workers now
ask you to legislate a monopoly?a union shop which could enslave
all of the working people.
Employees who refuse to pay dues to an exclusive union are not
free loaders and deadbeats. Some pay due to this union and we are
anxious to perform the service for which they have paid. Others are
those people who choose not to join because that is their right, to
which they owe no one an explanation for such action.
In the several small units where this union has negotiated con-
tracts, we have not resisted the right of an employee to choose a i
representative. We believe it is healthy and that it s a recognized basic
human right.
Mr. Chairman, the occasional reference which has been made to
blacks, females, and other minorities during this testimony has not
been designed to inflame the passions. Neitraer has it been a special
pleading for one group at the expense of other Federal employees, who,
are, for the most part, all Americans. We are convinced that what this
union espouses will aid in building a stronger America if this concept
is more fully embraced.
It appears vital that any bill which emanates from this committee
will include language which guarantees the right to employees to,
Join or refrain from joining a union. This should be coupled with the
unimpaired right to choose an individual representative in grievance
and adverse action cases.
THE RIGHT TO STRIKE
The question of giving legal sanction to the right of Federal em-
ployees to withhold their services, because of a labor dispute with their
employer, has long been a matter of controversy. It is a subject which
continues to inflame passions and to stir deep misgivings among many
individuals, who are normally inexcitable in their daily functions.
Notwithstanding these factors, it is our duty to take a stand and we,
do.
Absence of the legal right to strike places a union negotiator at
the bargaining table in the position of a toothless and clawless tiger
in a jungle filled with vicious wild beasts. Its survival must depend
on factors other than its ability to trade bite for bite and claw for claw.
Thus, the Federal union negotiator has in the past come to the bar-
gaining table as a collective beggar and not as a collective bargainer.
Federal managers know that he cannot stop the works, and they have
treated him and his followers accordingly.
It appears that the procedure outlined in section 9 of H.R. 9781
presents a modest but workable plan which would give a union the
right to exercise its strike option after prescribed administrative
channels have been used. This means that the dispute would go
through the Federal Mediation and Conciliation Service, then to f act-
finding for advisory recommendations before a strike could be called.
The union could agree to binding recommendations by the factfinders
which would nullify its right to strike.
Responsible unions, such as the Alliance, will act responsibly, but
they must be allowed to come to the bargaining table as equals, if
good faith bargaining is to take place.
We believe that enactment of a proposal such as this one would sound'
public policy.
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SL1'aISEDU I:E
Mr. Chairman, this part of our statement is being prepared after
sitting through the committee's hearing on Tuesday, July 16, after
which the .impact of your committee's huge task was reassessed. The
flow of words, in wrVen and oral form, in your direction has been
monumental. The thought of what you have done and what you need
to do has been sobering.
Perhaps, at this moment, a. current popular song reflects part of our
thoughts and several words from a reknowned playwright depict the
oilier:
1. In the. song, the localist sings, "You can't be a beacon if your light
don't shine." The scenario in your hearings causes some doubt as to the
visibility of a mere beacon and is conducive (::1 modesty. At best, we
may hope to .)ecome a mere ray of light in this highly illuminated
setting.
E. In Ifamlet, the melancholy Dane, while contemplating suicide,
raised the question as to whether it was better to suffer the slings and
arrows of outrageous fortune or to fly to a land which we know not of.
lie said, "Conscience does make cowards of us all." The course which
you pursue in the proposed legislation is not entirely uncharted, but
It requires thoughtful action.
It. is a matter of grave concern to this union as to the possibility of
the enactment of language which would give too much shared power
Ii) agencies and unions. Such authority could seriously damage em-
ployee rights and work counter to sound public purpose.
Certain policies, regulations, and laws must be continued until
changed by an act of Congress, perhaps as a later amendment to the
pending legislation. Experiences of this union under the Postal Re-
organization Act of-J970 leave no illusion as to the capacity of big
unions and an agency to conspire against small unions and the very
in di vi duals wl tom they profess to represent.
In the areas of pay and benefits, a floor must be set to guarantee
that employee:3 will not sink below the level which exists on the effec-
tive date of the legislation.
As an example, under the Postal Reorganization Act of 1970, the
provisions covering health benefits remained the same., the Postal
Service continued to pay approximately 40 7)ercent of the package,
while the employee paid the remaining 60 percent. except the union
and the Postal. Service could agree that the, employer's payment would
increase and time employee's decrease.
It also seems that some means must be found to retain certain poli-
cies which have been established by the Civil Service Commission,
whieli rest on a solid base.
As an examole, the Commission years ago p:-omulgated a reffulation
-which multi res an einolo,,er to give a VPderal emolovee. who is a vet-
eran, ?)LI- hours' prior notice in cases of a proposed emergency suspen-
s4o. The veteran ml at also be given an opportunity to show cause
why the aetion should not be taken.
Xw the 1?.S. Postd Service.. in collusion with the craft minions, is
causing the Commision to seriously consider chancdng .this policy
which protects veterans. The right of other postal employees to answer
I efore adverse action is imposed has already been bargained away
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- for a mess of pottage. Now a demand is being strongly pushed to down-
grade the rights of our veterans. -
If the Civil Service Commission changes this regulation, unions in
the Postal Service and all Federal agencies would be able to contract
-away a veteran's right to reply.
This union will never become a party to any action which would
-dilute the already inadequate rights of our veterans in the areas of
,employment, education, housing, health, et cetera.
It becomes a Matter of cynical concern when it is, noted that as more
blacks are going into the Armed Forces than ever before, the backlash
,of white majority antagonism becomes increasingly .evident. t seemed
all right for blacks to -(Fe on foreign soil for our country, out of pro-
portion to their percentage of the population;: but, those who lived to
become veterans painfully recognized that they had a problem, even
in the Federal Government, when they came back home. Such veter-
ans, particularly, blacks, women, and other minorities, cannot place
their reliance on representation by unions who, apparently have been
and are bedmates of the discriminators.
GRIEVANCE
The definition of a grievance, -from our view, is any dissatisfaction
which an employee experiences as a part of the employee's working
conditions or job related situation, which the employer possesses the
capacity to correct, jointly with the participation of the employee or
on a unilateral basis by management. This would include any proposed
disciplinary action against the employee.
Any grievance procedure which is negotiated by a union and the
employer should be available for use by any employee, regardless of
his nonaffiliation with the exclusive union. The employee should be
able to represent himself or herself or choose an individual representa-
tive to assist him. The employee should possess the specific right to
work out any problem with the employer because of his rights as an
individual. It is not desirable that the negotiated procedure should
be, the only process available to an employee in attempting to resolve
a job related problem.
A union monopoly will not serve a positive public purpose and
would not promote governmental efficiency and tranquility.
CONFLICT OF INTEREST
The question of so-called managerial, professional and such em-
ployees' eligibility to become members and to actively participate in a
rank and file union is perhaps a difficult one to resolve. Many pros and
cons have -already been placed in the record of these hearings, and it
may be impossible to add a new opinion at this point. Therefore, no
further persuasion is now attempted.
It is believed that in gray areas, employers should not have the
right to unilaterally and capriciously decide_ that certain employees
are ineligible to become union members because of their alleged func-
tion in the management hierarchy. In such situations union members
and the employees of controversy should be allowed, by separate secret
ballot, vote to decide the issue, as to conflict of interest and membership.
Mr. Chairman, this concludes our written testimony, With the can-
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did admission that all highly important aspects of the pending bills
have not received written comment. ATE issues involved have received
thorough study and we do have opinions on most. In several instances -
we realize that our position has not been engraved in marble. Our ?
instincts, judgment and experience tell us what is best, but we recog-
nize that we are not infallible.
The courtesy which you have extended to ts is deeply appreciated.
We will be glad to attempt to answer any questions.
Mr. HENDERSON. Thank you very much, Mr. White. On the final'
page of your testimony you state that employers should not have the
right to unilaterally and capriciously decide' that certain employees.
are ineligible to become union members.
Are you talking about decisions such as who are supervisors and
who are not supervisors?
Mr. WHITE. Yes, Mr. Chairman. In sitting through your hearings
prior to today this question has been discusses. quite a bit and we have
reason to know from experience and the reading and listening to
others discuss it that there are times we believe that management
makes a unilateral decision that this is a. member of management ;-
he's on the management team; and therefore he or she may not
become a member of the rank and file union, when the unit has exclu-
si ve recognition.
We believe that this is a subterfuge. We believe or share the views
which have been expressed by others who have appeared at this table
on this question that many people who are called a part of the manage-
ment team are merely messenger carriers. They merely carry out
orders which have been given by higher-ups at the decisionmaking.
level and passed down through channels of supervision to them. They
are the unprotected people. They need SOITle assistance in opposing
some of the present, tactics of the actual polyicymakers and the man-
agers who really make the decisions and set the policies.
We believe that individuals who feel that they have interests that
are akin to the. rank and file employee in a union should have the
right to vote by secret ballot as to whether they should be included in
the union and that the union members would vote by secret ballot
whether or not they wish to accept them or reject them. I don't know
whether I have been clear or not.
Mr. HENDERSON. Now you also advocate the unimpaired right of
the employee to choose a representative in a grievance and you state.
that you have not resisted this in your negotiating agreements.
Could you oroyide us an insight into why you adopt this view?
Mr. WHITE. Mr. Chairman, in our testimony we referred to the
Executive order which exists and, the first one which was promulgated'
by President Kennedy. At that time, under the Executive order,
although we negotiated contracts and I had the pleasure and experi-
ence of negotiating several in Baltimore, the overriding picture under
the very grievance procedure that was negotiated by the -postal unions
at the national level----;crave the employee and the exclusive union the
right to choose a representative using the griev ance procedure, whether
he was a member of the union or not, but it gave the union representa-
tive a right to be present and to make a statement under certain con-
ditions. But he could use the same procedure that they negotiated and
that's why we feel that this will not impair management's right to,
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manage. Mr. Chairman, on the question of race and sex, which we have
commented on quite a bit, we believe that the plight of black employees
is synonymous with the rights of all employees. They may be nonunion
members but they are American citizens and they are employees who
perform well on the job. When a union becomes buddies with the
managers, and they impose a monopoly which deprives an employee
of the right to choose 'a representative to best protect his job rights
and interests it is not conducive to efficient operations.
We feel that this is not conducive to the best interests of Federal
employees.
Mr. HENDERSON. Thank you very much, Mr. White. Your statement
has been well presented and will be very helpful to us in our
deliberations.
Mr. Wiliam Thank you very much, Mr. Chairman.
Mr. HENDERSON. Our next witness is Mr. Arthur McLoughlin, execu-
tive secretary of the Overseas Education Association. It's our pleasure
to welcome you this morning, Mr. McLoughlin, and I will ask
unanimous consent that your entire statement be entered in the record
after your presentation.
STATEMENT OF ARTHUR McLOUGHLIN, EXECUTIVE SECRETARY,
OVERSEAS EDUCATION ASSOCIATION
Mr. MCLOUGHLIN Mr. Chairman, with me this morning is Mr. Don-
ald Walker, who is the manager of negotiation research for the Na-
tional Education Association.
Mr. HENDERSON. We welcome you, sir.
Mr. MCLOUGHLIN. I do concur with putting into the record the state-
ment in its entirety and this morning I would prefer not to read
directly from that statement except for some isolated paragraphs that
I will indicate.
MT. HENDERSON. Very well, sir.
Mr. MCLOUGHLIN. The question may come up why this testimony
aims only at H.R. 9784 and does not mention the other two bills. The
reason is simple. From our point of view, we feel that 9784 goes the
farthest from the system as it is presently administered under the Ex-
ecutive order and we would like to see a bill in this regard.
Unlike some of our fellow compatriots who have given testimony
here, we feel that we are totally ready to fully enter the arena of col-
lective bargaining. Not unlike the gladiators of ancient Rome, we, too,
realize the full implications of entering that arena. However, we are
prepared to sacrifice an absolute lower limit of benefits and protections
now accorded Federal employees in order that to become an equal
partner in process of determination of our terms and conditions of
employment.
Earlier this spring I appeared before another subcommittee of the
Post Office and Civil Service Committee speaking on legislation de-
signed to force the Department of Defense to comply with public law
previously passed. That, coupled with many, many instances of limits
imposed on our ability to fully represent the teachers in the overseas
schools, leads us to the position that we do need a new and stronger
collective bargaining process with an opportunity for determination of
our terms of conditions on more equal basis.
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l'd like to concentrate on four areas here this morning, three of
which are fully set out beginning on page 6 of our text. The areas and
scope of negotiation, resolvitt,e, bargainirtT impa sses and -union securitY.
',Int before discussing hose issues, there is an additional point not ref-
erenced in the written statement that I would like to offer some cont-
inents on.
That issue is the detinition?and other grottos including our im-
teediate prodepessors have spoken on this?of supervisor. We are?
directly and adversely affected by the interpretation of supervisor
as presently put forth in the order. This takes place in two forms. We-
leve one group of employees that perform pseudo supervisorY duties.
They work in the dormitories attached to a nunber of high schools in
Europe where students must come from far-out locations and live.
There is a person in charge of this dormitory aid is titled a dormitory
supervisor. Th !s person has the responsibility in assignment of duties,
making out schedules and for the overall gaieral duties to effect a
msmooth operation. However. the person does not have the full authority
to promote, discharge, hire, fire or to effectively evaluate the employees'
tinder their inrisdiction. That is reserved to the building principal : the
principal of that complex, who is a definite management team member.
We need a change in the definition of supervisor. There is provision
in 9784 to deal with this issue in that there is a section dealing with
the exclusion of firefighters and people in education. We greatly sun-
port that feature of the bill because of the recent rulings of the FLRC-,
in both the China Lalie, and the Mare. Island cases dealing with inclu-
sion of fire. captains in the unit.
will now move back to the text.: directly to rhe scope of bargaininur,.
but looking at it from the point of view of limits imposed by the
order. Section 11 (B) right now eliminates a number of things from
the process of negotiation.
In October of 1970 the Council conducted a 7eview of the Executive
order and its published report there were some 14 items that were
not appropriate for action as pa rt of that review after
careful study and consideration was given to them. Three items stand
out as far as we are concerned in this regard: item 6 which called for
a further restricting of agency regulatory authority as it affects the
scope of negotiations; item 7 which provided .for redefining the scope
of negotiation with respect to assignment of personnel ; and item 10
which dealt with processing negotiability issues as a. refusal to bar-
gain under unfair labor practice procedu res.
The problems were there. They were- brought .out in a previous re-
view. They have been brought out again in tie present review of the
Executive order late last year and early this year. And yet previous
testimony by the Chairman of the Federal Tabor Relations Council
indicates things are going smoothly and we don't need to expand upon
I hose issues.
We feel we do need to expand upon them and as we point, out in the
secon(l paragraph on )age 6 of -the written testimony under H.R. 0784
an agency and, organization would be obligat?..d to bargain in regard
to "the terms and conditions of employment aid other matters of mu-
tual concern relating thereto." We believe this scope would be more
effective, iii dealing with the concerns of the employees. Collective bar-
gaining in the public sector has been marked by a high degree of in-
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volvement of-salaried professionals who view such bargaining as a ve-
hicle for securing professional standards, goals, aneaspirations. A
teacher, for example, having committed himself or herself to a career of
socially valuable service and having invested years in preparation and
perhaps postgraduate study wink teaching, has a special identification
with the standards of the practice and the quality of the setvice, pro-
vided to the "clientele." Thus, teachers seek to participate in decision-
making with respect to teaching methods, curriculum content,
educational facilities, and other matters designed to change the nature
or improve the quality of the educational service being given to the
children.
The answer that we have faced in previous sessions f bargaining re-
lations has been that this falls within the excludable realm of section
11 (B) insofar as these activities describe the mission of the agency or
the activity of the agency, and therefore are nonnegotiable.
In the area of impasse resolution Many comments have been made
and we certainly support those comments. We feel the right to strike
should be included in any legislation passed. And, again, we talk about
about the right to strike as a lever to provide equality at the bargain-
ing .table.
The comment has been made that many unions don't have the re-
sources to sustain a strike. Perhaps this is true. But at any rate, very
few unions or members of unions that I'm aware of wish to go on
strike. Usually, that's the last thing in the mind of teachers and other
public employees. But without the lever we have seen no substitute
that can provide equality at the bargaining table.
There are people that say that this is against the public interest.
Well, that's true to a certain extent if it obstructs the public in its
ability to go about its everyday business. We heard testimony earlier
this morning where a right to strike was acknowledged as far as private
employment was concerned but that public employees should be, denied
this right because they can tie up the hands of the Government.. In
giving that testimony Mr. Metcalf did recognize the right of private..
employees.
Let's take a look for a moment, if I may, at the area in which Mr.
Metcalf has his business relationships and without making too much.
of a pun of it, I would say that a strike by taxi drivers in the District.
of Columbia would do more to impede the business Of this Govern-
ment than the strike by teachers in Nashville, Tenn. or Heidelberg,
Germany.. Our written testimony refers to many types of situa-
tions where a strike by private employees does more to impede the.
processes of government than a particular strike by a group of em-
ployees within the Government.
Another cry that we have heard and has been given in testimony.
by some of our colleagues in the representation business here is perhaps
we're not ready to assume. the full responsibility. I have heard. that cry
many times and as a history teacher I have experienced that cry
in the classroom textbooks as emanating from those who sought to op-.
press, and it was the particular cry of the colonial period in the history
of our civilization. I do recall that under the policy of manifest
destiny we did extend our borders out into the Pacific., to a group of
islands and impose upon those islands a different type, of government
than they previously had. Those islands today make up the State. of
Hawaii.
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474
Tia.waii has just recently, as a State, passed a very modern and pro-
ressive collective bargaining law which, amonc, other things gives
their employees under certain conditions the right to strike. NOw if
1 Eawaii could go from a colonial power to a State passing such pro-
gressive legislation in the period of time that it has, I cannot be con-
vinced that public employees who have been serving the Federal Gov-
ernment in the United States for a longer period of time are not yet
in a position to a,sstune full responsibilities under a wide range of
.collective bargaining activities.
The last comment or last topic I'd like to comment on is the union
security provision. It is extremely difficult under a condition where
there is an imposition to represent every member of a given bargaining
unit on an equal basis to be precluded from establishing some obliga-
tion on the part of the member of that bargaining unit to at least
:support the activities of the representative agent in a financial way.
I'm not, and the people I represent are not in favor of mandatory
irtiionization insofar as every person of a unit that is eligible be forced
to join an organization. That certainly a contradiction of their con-
stitutional rights.
I do not view it to be a denial of their constitutional rights, however,
to expect that every person who is receiving a benefit partake in the
support of activities leading to the receipt Of that benefit.
In conclusion I would prevail upon you in your deliberations in
looking at the aspects that we and other groups have mentioned here,
that you do al; one group has suggested earlier last month, that is to
consider excluding the Department of Defense employees from con-
sideration under any collective bargaining law,
Thank you.
Mr. HENDERSON. Thank you very much.
What percentage of our overseas teachers belong to unions?
Mr. MoLousimiN. About two-thirds. One-third of the teachers are
wives of military personnel stationed overseas and as such they have
not seen to this point a particular need for membership within an
organiza tion.
Mr. HENDERSON. The effect of H.R. 9784 would permit supervisors
and nonsupervisors to be in the same unit of recognition. In order to
o nderstand your support of that bill, could you tell who you see as
resposible, for carrying out the contents of the negotiating agreement
or enforcing an agency rule among the rank-and-file employee?
Mr. MoLorroutiN. As far as teachers wouli be concerned, I would
say that that's a responsibility of a building principal or anyone in
a higher position. I do Apt see that in relationship to other people who
perform pseudo functions.
Let me, if I may, for a moment expand on this point. We did make
an extensive submission to the FLRC in regard to the possible devel-
opment within the DOD structure of a cadre of "master teachers."
T cannot give you the complete definition because that concept has
not yet been developed fully.
But basically, it would be a situation in which a teacher would be
ti:iving some sort of instruction and direction to either fellow teachers
or to perhaps paraprofessionals or combinations thereof. Under the
decisions that I quoted before of the Fedelal Labor Relations Council
f. a person performs one of the functions as specified in the order now,
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then that person is a supervisor; and certainly there would be some
conflicts here as these people would be performing at least one or more
of those types of functions and yet they are not supervisors. It's the
same way with a department chairman within a high school or a grade
level chairman at the elementary level.
Mr. HENDERSON. In discussing the resolution on impasses that com-
pulsory binding arbitration is likely to retard a give-and-take inherent
in the bargaining process, you stated your support of H.R. 9784 which
has a binding fact finding of recommendations as one means of settl-
ing impasses. How do you reconcile those views and can you elaborate
on your position?
Mr. MCLOUGHLIN. What we are saying is that we should have an
option to choose if we desire a binding commitment, but that it not
be enforced in its entirety so that if we know when we come to the table
that no matter what we do a third party is going to come in and make
the decision for us, then there's no necessity to bargain in good faith.
Holding something for the factfinding or the arbitrator becomes more
of a reality under that situation. Most often I would assume that we
would choose in a real knock-down, drag-out situation the binding
arbitration option at the point that we have gone to the factfinding
as opposed to wanting to exercise the option to strike.
Mr. HENDERSON. Very good. We thank you for your testimony and
your appearance this morning, Mr. McLoughlin.
[The prepared statement submitted by Mr. McLoughlin follows:]
PREPARED STATEMENT OF ARTHUR MCLOUGHLIN, EXECUTIVE SECRETARY, OVERSEAS
EDUCATION AssomATioN
Mr. Chairman and members of the subcommittee, I am Arthur McLoughlin,
Executive Secretary of the Overseas Education Association, an affiliate of the
National Education Association.
The National Education Association, along with its State and local affiliates,
represents the interests of nearly two milliion teachers throuhgout the United
States and on overseas military bases aroun dthe world. The Overseas Educa-
tion Association represents the interests of nearly 6,000 teachers in both collective
bargaining relationships and in national consultations with the Department of
Defense. Through OEA and the National Council of Bureau of Indian Affairs
Educators, the NEA represents more than 7,000 teachers employed by the federal
government.
Because of NEA's experience as a representative of teachers under various
state statutes and under federal Executive Order 11491, we believe the NEA is
in a position to provide the type of input which will assist this Committee in
its deliberations.
At the outset, we would refer the Committee to the testimony of Mr. Ralph
Flynn, Executive Director of the Coalition of American Public Employees, which
was presented to this Committee on June 12. As a member of the Coalition, the
NEA endorses the positions taken by Mr. Flynn. Further, we refer the Committee
to the testimony and position paper of Mr. Vincent Connery, President of the
National Treasury Employees Union, another member organization of the Coali-
tion. We believe that the information supplied by Mr. Connery provides this
Committee with ample evidence of the disastrous results of the current Executive
Order and the need for the adoption of a statute?more specifically, the need
for the adoption of H.R. 9784. However, rather than reiterate the points made
by Mr. Flynn and Mr. Connery, we will speak specifically on behalf of teachers
and why we, as teachers, support H.R. 9784.
I. NEED FOR FEDERAL STATUTE
During the past five years, as NEA and its affiliated associations have sought
both initial and improved legislation to require collective bargaining between
state and local governments and their employees, not once have we considered an
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appropriate alternative to such legislation to be an administrative order issued by
the chief executive officer. Similarly, the NEA believer that a federal executive
order signed by the President is an inadequate proces: for the establishment of
the rights of federal employees.
This approach is, by its very nature, inconsistent with the normal process of
the federal government, in which primary responsibility for the creation of
federal agencies, the enactment of federal programs, and the appropriation of
federal monies rests with the Congress. Congress shoal' then also be responsible
for the adoption of statutory guidelines under which federal employees and agen-
des negotiate. To leave this important matter to administrative fiat is, we believe,
an abdication of Congressional responsibility.
Second, the Executive Order?even after a numbe of reviews and amend-
ments?still contains so many deficiencies that further revisions of the Order
would not produce the needed results. Indeed, Chairman Hampton's comments
before this Committee clearly indicate that little if anything will be done to ex-
pand the opportunities for true collective bargaining rights for federal employees
under the order. Specifically, we would list the following areas which need legisla-
tive remedies.
1. Unlike the National Labor Relations Act which established an impartial
Board for administration of the Act and the review of unfair labor practice, the
administration of the Executive Order is placed under the control of the Federal
Labor Relations Council. This Council consists of the Chairman of the Civil Serv-
ice Commission, tee Director of the Off.ce of Manager lent and Budget, and the
Secretary of Labor. It cannot he said that the individuals holding these positions
are impartial regarding the administration of the Order. Rather, they are
representatives of management, the federal government, who are responsible to
the Executive Office itself.
2. Also unlike the National Labor Relations Act which authorized judicial re-
view of Board decisions, the Executive Order does not provide any review. Al-
though allegations that the Council had exceeded its scope of authority could be
presented to a court, no review could be had in a case where the Council had made
its decision in an arbitrary or capricious maneer or had made a decision which
was not based on substantial evidence.
Fp to this point I have dealt with the need for a statutory approach to the
collective bargaining rights of federal employers. The :text question is, what pro-
visions should be contained in this statute? It is not possible in the time allotted
to discuss all of the matters which warrant consideration. Accordingly, I will
focus upon the following three areas, the handling of which will determine the
effectiveness of tire system:
(1) scope of negotiation; (2) resolution of negotiatim impasse; and (3) union
security.
I. SCOPE OF NEGOTIATION
Under the Executive Order, an agency and a Labor organization are required to
meet at reasonable times and confer in good faith with respect to personnel
policies and practices and matters affecting working conditions. lloweiTr, pre-
cluded from the negotiable subjects are "matters with .7espect to the mission of an
agency; its budget; its organization; the number of employees; the numbers,
types, and grades of positions or employees assigned to an organizational unit,
work project or tour of duty; the technology of perform ng its work; or its internal
security practices." There have been numerous cases, too many to mention, where
this management rights clause has been used to prevmt discussions of working
conditions which are of vital importance to the employees.
Under H.R. 9784 an agency and organization would be obligated to bargain in
regard to "the terms and conditions of employment and other matters of mutual
concern relating thereto." We believe this scope would be more effective in deal-
ing with the concerns of the employees. Collective bargaining in the public sector
has been marked by a high degree of involvement of salaried professionals who
view such bargaining as a vehicle for securing professional standards, goals, and
aspirations. A teacher, for example, having committed himself or herself to a
career of socially valuable service and having investel years hI preparation and
perhaps post-graduate study while teaching, has a special identification with
the standards of the practice and the quality of the service provided to the
"clientele". Thus, teachers seek to participate in decision-making with respect to
teaching methods, curriculum content, educational facilities, and other matters
designed to change the nature or improve the qualit3 of the educational service
being given to the children.
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Proposals of the foregoing type frequently are resisted by agencies who contend
that they exceed the scope of legitimate employee concern and intrude into the
area of "management policy". We believe, however, that it is in regard to precisely
these types of matters that teachers?with their special knowledge and compe-
tence?can make their most valuable contributions.
Furthermore, the procedure under the Executive Order is complicated and
lends itself to unreasonable types of resistance by the agencies. Let me give you
one example of this type of resistance. In June, 1b73, the ODA unit in Europe
negotiated a contract with USDESEA, the educational activity of the Depart-
ment of Army in Europe. The teachers sought negotiation of preparation periods
for elementary teachers. The activity refused to negotiate regarding this issue,
claiming it was not within the scope of bargaining set forth in Section lib of the
Order. The remaining issues were agreed upon and the issue of preparation pe-
riods was submitted to the Department of the Army for a determination as to
its negotiability. The Army held that the issue was indeed a proper subject of
bargaining but the activity appealed that decision to the Department of Defense.
Now, more than one year later, the activity has appealed the Department of
Defense's positive ruling and the matter ?has still not even reached the final
arbiter, the Federal Labor Relations Council.
We believe this type of resistance through delay tactics would be cured through
the procedures set forth in H.R. 9784.
II. RESOLVING BARGAINING IMPASSES
Next, I would like to comment on the question of bargaining impasses because
we believe that the manner in which this is handled will largely determine the
effectiveness of any system of collective bargaining.
One alternative which has been suggested is to provide for compulsory binding
arbitration of all bargaining impasses. We are opposed to this approach since we
feel that, among other things, compulsory binding arbitration is likely to retard
the give and take inherent in the bargaining process. Why should the parties
make a sincere effort to compromise during bargaining when by doing so they may
prejudice their respective positions if and when they find themselves before an
arbitrator?
Another alternative is to legalize the strike. We support this approach and
believe that it provides the most effective basis for dealing with the question of
bargaining impasses. The problem, as we see it, is to achieve an appropriate
balance?to develop a system that provides for the equitable resolution of
employer-employee disputes; that minimizes the need for strikes; and that pro-
tects the public interest if and when strikes do occur. Rhetoric, opinion, and
emotion add very little. There have now been several years of experience and we
should begin by looking at what we have learned. Certain facts emerge:
(a) The strikes that do occur are often the fault of the employer; sometimes
the fault of both the employer and the employee organization; and I must confess
that on occasion they are solely the fault of the employee organization.
(b) Penalties and prohibitions do not deter public employee strikes. When
employees feel sufficiently aggrieved and have no alternative avenue of redress
they will strike regardless of the penalties.
(c) Agencies have frequently demonstrated a lack of any real desire to engage
in good faith bargaining. They often refuse to make concessions because the fear
of the strike has been removed.
(d) Not all strikes by public employees create an emergency or result in chaos.
Some public services can be discontinued for considerable periods of time without
seriously disrupting the community. School teachers, for example, do not perform
functions directly affecting the public health or safety. As a result, a disruption
of their services for a temporary time probably would not have a serious effect
on the public.
(e) The assumption that the harm to the community is necessarily greater in
public employee strikes than it is in private employee strikes simply is not true.
This is evident from the fact that certain public employees are prohibited from
withholding their services while employees of private concerns performing pre-
cisely the same functions are entitled to do so.
Employees of private industry and business especially in the areas of com-
munications, construction and data processing, to name a few, are free to strike
their employer even though the employer is performing a function for the federal
government on a sub-contract basis. It is inconceivable that employees of the
federal government doing the same or similar work would more gravely affect
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478
the public interest by striking than would their counterparts working for private
interests under government contracts.
The same would hold true for teachers. A strike by teachers in the overseas
schools would not have a more deleterious effect than a strike by teachers
serving children of federal employees in a district W thin the state of Hawaii,
where a strike by teachers is legal under certain circumstances.
Not only are certain permitted private sector strikes at least as damaging as
certain public sector strikes, but many private sector strikes, such as those in the
fuel oil, coal, or milk processing industries, would have a significantly greater
adverse effect on the public health or safety than would strikes by many public
employees.
(f) Judges are in the best position to assess the impact of any particular strike
on the public interest and to fashion an appropriate remedy to deal with the
situation. We are aware of several instances in which a judge has indicated that
he considered an injunction unnecessary and undesirable but felt legally com-
pelled to issue one.
These facts suggest that an a priori ban on all fede7a1 or nonfederal employee
ii rikes regardless of circumstances and regardless of impact is not only inequi-
table and arguably unconstitutional but is, in addition, empirically unsound. They
point to a need for ftexibil ty--for a system which provAes a motive for good faith
collective bargaining; which allows for the assessment of relative fault if bar-
gaining breaks down and a strike occurs; and which permits .the development of
a remedy that is appropriate to the facts in each case.
We believe that the procedure provided in H.R. 9784 would produce these
results. To begin with, it would eliminate the basic difficulty inherent in a system
of compulsory binding arbitration of all bargaining 'inpasses. Since the parties
would not be committed in advance to binding ar)itration, the incentive to
bargain in good faith would remain, and the parties would be encouraged to avoid
impasse. Moreover, if an Impasse should occur the availability of binding arbitra-
tion option would be a strong inducement to the emptoyee organization to waive
its right to strike. Even if the employee organization chose not to have binding
arbitration, both parties would be under severe pressure to accept the advisory
recommendations?the employee organization because of the possible loss of
wages to its members and the risk that the strike still might be enjoined.; the
agency because of the element of doubt. as to whether and/or when an injunction
might ultimately issue if the employees struck, Finally, if a strike were to take
place the public interest would nbt be ignored. Acts during the strike would be
Prohibited if they presented a clear and present danger to the public health or
safety.
III. UNION SECURITY
Finally, we would note that under both the Executive Order and H.R. 9784
the organization which has gained the support of .tha majority of the employees
becomes the exclusive representative of the employees
We might note in this connection that with excluiive status, an organization
obtains not only rights but certain obligations as well?principally, the obliga-
tion to represent all members of the negotiating unit equally without regard
to organizational membership. It is for this reason that we support H.R. 9784's
requirement that those members of the negotiating unit who are not members
the recognized organization to pay to such organization an amount equal to
the dues and assessments...
CONCLUSION
,-onclusion. I would like to emphasize a point that I made earlier. Although
I have directed my comments essentially to, collective bargaining between
teachers and agencies, this has been done for illustrative purposes only. We loin
with the other members of the Coalition of American Public Employees in seeking
a federal statute which will establish an equitable working relationship between
the federal government and its employees and which will be consistent with
the effective operation of government. The NEA believes that H.R. 9784 would
do this and it has our wholehearted support.
Mr. ITENoFtzso-x. Our last witness is Carl Meg-el, legislative director,
American Federation of Teachers, AFL-070. We are delighted to
welcome you this morning.
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STATEMENT OF CARL J. MEGEL, DIRECTOR, DEPARTMENT OF
LEGISLATION, AMERICAN FEDERATION OF TEACHERS, AFL?CIO
Mr. MEGEL. Mr. Chairman, in the interest of time I will ask that
the presentation which I have prepared be inserted in the record
together with the supplementary statement which I just gave to you
to be included as an addition to my prepared statement.
In addition to that, Mr. Chairman, I wish to present to you and
the committee, but not for inclusion in the record because of its
voluminous content, the booklet containing the collective bargaining
laws for public employees in the various States of the United States
which I have compiled. This is the third compilation, and is complete
through 1972. We are in the process of compiling a fourth edition
which will be available about September 15, and will be complete to
date. I will be glad to supply the committee with a full set of the
revised edition at that time. There are many items in State collective
bargaining laws that could be helpful to the committee.
Mr. HENDERSON. The committee would be very glad to receive
them and we thank you for the presentation here and I will ask
unanimous consent that your statement may be entered in the record
along with your supplemental statement.
STATEMENT OF CARL J. MEGEL, DIRECTOR, DEPARTMENT OF LEGISLATION,
AMERICAN FEDERATION OF TEACHERS, AFL?CIO
Mr. Chairman and members of the committee, my name is Carl J. Megel.
I am the Director of Legislation for the American Federation of Teachers,
AFL?CIO, a National Teachers Union of more than 400,000 classroom teachers.
Our organization embraces more than 2,000 teacher locals including the
Department of Defense Overseas Dependent Schools. There are before this
committee three bills. Each of these bills is designed to establish a form of
labor-management relations in the federal service based upon recognition and
collective bargaining which already exists in the private economic sector under
the National Labor Relations Act.
Our particular concern at this time is in reference to the American Federation
of Teachers members in our overseas dependent schools. There are at the
present time in excess of 6,000 overseas teachers of which approximately 2,00()
are members of the AFT.
In the late 1950's and early 1960's, many teachers in overseas schools wrote
to me indicating their desire to affiliate with the American Federation of
Teachers. It was my privilege at that time to be serving as President of the
American Federation of Teachers, a position which I held for 12 years.
In all communications at that time to these overseas teacher leaders, I indi-
cated that in my opinion it would not be to their advantage to affiliate with
the American Federation of Teachers since we would not be able to provide
the kind of services or assistance which would satisfactorily compensate for
their payment of dues. I made these statements in the knowledge that at that
time, there existed no procedures for legalized collective bargaining and
negotiations.
However, in 1962, when President John F. Kennedy issued Executive Order
10988, this entire picture changed tremendously. The Executive Order allowed
federal employees to organize into unions of their choice and to enter into
negotiations with their employer, the various agenices of the United States
Government.
Following the issuance of this Executive Order, I wrote to our contacts in
Europe and Asia and advised them that it would now be possible to grant
charters to the various school jurisdictions in the event they cared to so petition
The numerous charters which we granted since that time have operated
even though somewhat ineffectually under the terminology of Executive Order
10988 and later under Executive Order 11491. There now are being considered
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oy this committee the bills to place labor-management relations upon a statutory
foundation. We appreciate very much the opportunity to present our views
on this matter.
The American Federation of Teachers was a pioneer in establishing collec-
tive bargaining for teachers. In our proposals we maintained that the col-
lective bargaining process requires an election officially approved by the em-
ployers to determine democratically the bargaining agent to represent the
employees. The bargaining agent so determined shall then enter into negotiations
with their employer for good faith bargaining to arrive at a written contract
mutually agreed to.
The first written teachers contract was negotiated la 1938 when the Maywood,
Illinois Proviso Council of the West Suburban Peache-s Union Local 571 entered
into a functioning collective bargaining agreement with its Board of Education.
This contract, obtained without an election to determine the collective bargain-
ing agent, has been renewed, improved and eontinues to be in effect to this
date.
Early in 1953 as the newly elected ]oresident of the American Federation of
Teachers, I stated: "Only through establishment of successful collective bar-
gaining practices can America's teachers attain the salary, states and stature
necessary to teach effectively for living in a space a ze society." To my knowl-
edge, this was the first official call by any national teacher leader for collective
bargaining between teachers and their employers, the various boards of
education.
Even though collective bargaining had now become an established American
Federation of Teachers' goal, it was not until 1957 that another local of the
American Federation of Teachers was able to attain tl is objective. It was during
this year that the East St. Louis. Illinois Federation of Teachers, was able
to win an election and negotiate a written contract. To my knowledge, this was
the first time that a board of education authorized an election to determine a bar-
gaining agent and agreed to negotiate a contract with the winner of the election.
The East St. Louis Federation election was followed In 1960 and 1961 by the
United Federation of Teachers of New York, AFT Lam' No. 2, which embarked
upon a successful collection bargaining campaign resulting in a written contract.
This contract contained the most far reaching provitions that have ever been
written into a single teacher pact. The event electrified the education and labor
community beyond our fondest expectations. Teachers everywhere were in-
spired with new hope and new vision.
Collective bargaining is a process which can be at'. great value to teachers,
to students and to the general public. A bargaining agent dedicated to reform
teaching and working conditions can use the process to good advantage.
in spite of some efforts at maintaining the status quo, our overseas teacher
representatives without the benefits of a labor-management law have made cer-
tain gains in their negotiations which relate ro salary, security and grievance
procedures.
However, the American Federation of Teachers is e'psirons of obtaining basic
principles and procedures of labor-management relations that will assure our
federally employed teachers the same recognition and collective bargaining rights
that are now enjoyed In the private economic sector under the National Labor
Relations Act, as amended. 'Such a system based on union recognition and col-
lective bargaining already exists for the United States Postal Service employees
as a result of the Postal Reorganization Act of 1970.
A. reluctance to advocate this course has been the fear that such legislation
might involve the loss of the right to withhold services. We concede that the
government has the right ?to intervene when strikes constitute a direct and
present danger to public safety. We hold that employees, teachers included.
should work only under terms and conditions agreed to through negotiations with
the employer.
We firmly believe in the premise of "no contract, eo work". We have strong
support in this position announced recently by Mr. 'Ussery, Assistant to Presi-
dent Nixon, who 'states that he favors "full collecLve bargaining rights for
federal employees, including the right to strike." He further states that there
is "precious little real collective 'bargaining Ia the federal arena and far too
much collective begging". Certainly, teachers ere prune examples of employees
who qualify under the terminology of "collective begging".
The injustice can be rectified by inclusion under the Provisions of the National
Labor Relations Act. We respectfully ask your serious consideration for such
inclusion.
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We thank the Committee for the privilege of making known our point of
view.
SUPPLEMENTAL STATEMENT SUBMTTED BY MR. CARL J. MEGEL
As stated previously, the American Federation of Teachers pioneered collec-
tive bargaining for teachers. We maintained that teachers had the right to orga-
nize into unions of their choice without coercion or intimidation; that they had
the right to democratically designate a bargaining agent; and that the bargain-
ing agent had the right to enter into good faith bargaining with their employer.
the Board? of Education, or in the case of overseas teachers, their education
directors.
In support of these premises, either of the bills before this Committee would
be preferable rather than the status quo. Our major concern is to establish for
teachers the same rights and privileges now afforded to the economic sector under
the National Labor Relations Act.
To do so would rule out the invidious injunction by which a judge in a court
of law, instead of insisting upon negotiations to settle grievances, has ordered
jail sentences and fines for teachers.
Within the past several years New York teachers including its President,
Albert Shanker, have served jail sentences and a fine of more than $200,000. In
Newark, New Jersey, 193 teachers were required to serve a 10-day jail sentence,
and the President of the American Federation of Teachers, David Selden, was
incarcerated ?for more than 90 days. Additionally, the teachers were fined
$193,000. In Joliet and Cicero, Illinois, in Kansas City, Missouri and in other
areas of our country, teachers have been jailed or fined or both for advocating
what should be their democratic right. Either of the bills before us would
eliminate these discriminatory injunctions and fines. However, of the bills before
you, we would prefer support of H.R. 13 because, in our opinion, it is the most
complete collective bargaining bill.
Mr. MEGEL. Thank you very much. And that concludes my presen-
tation unless you have questions you would like to ask.
Mr. HENDERSON. Thank you very much, sir, and I wouldn't have
believed we could have finished by 12 o'clock.
Mr. MEGEL. I appreciate this opportunity.
MT. HENDERSON. Thank you.
The subcommittee will stand adjourned.
[Whereupon, at 12 o'clock noon, the hearing was adjourned.]
[The statements and letters which follow were received for inclu-
sion in the record subsequent to the hearings:]
STATEMENT BY THE NATIONAL ASSOCIATION OF AGRICULTURAL STABILIZATION AND
CONSERVATION SERVICE COUNTY EMPLOYEES
Our organization, consisting of 98 percent of its potential membership, supports
the provisions of H.R. 10700 providing it makes explicitly clear any organization
consisting of supervisors and employees with the same interests and objectives
and which has historically represented these persons be permitted to continue to
represent them.
We appreciate the opportunity to present this statement and will appreciate
your consideration.
Presented in absentia by Brad Rowland, president, 1314 S. Commercial Ave-
nue, Anson, Texas ; F. H. Scarborough, Jr., vice president, P.O. Box 459, Valdosta,
Georgia; and Clyde R. Payne, secretary-treasurer, P.O. Box 392, Jasper, Florida.
STATEMENT OF S. RAYBURN WATKINS, PRESIDENT, NATIONAL LABOR-MANAGEMENT
FOUNDATION
Mr. Chairman, members of the subcommittee, my name is S. Rayburn Watkins
and I represent the National Labor-Management Foundation. I appreciate the
opportunity to offer our views to YOH on H.R. 13. H.R. 9784 and H.R. 10700.
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The National Labor-Management Foundation has offices in Washington, D.C.
and Louisville, Kentucky It was chartered in 1947 as a non-partisan, non-profit
organization to provide research, education and information to develop a clearer
understanding and better communication among employees, employers and the
general public in labor-management matters. 'lihe Foundation studies and sup-
ports legislation that it believes will tend to bring about improved labor-manage-
ment relations and better working conditions and opposes legislation which has
the opposite effect.
The National Labor-Management Foundation's statement pertains only to
the overall effect of H.R. 13, H.R. 9784 and H.R. 10700 would have on the public
if passed by Congress.
To begin with, the National Labor-Management Fonndation is opposed to the
philosophy that federal employee unions or any public employee unions for
that matter should be given the same special privileges and extraordinary powers
as now held by unions in the private sector. The bcycott, the picket line, the
slowdown, the strike, and the featherbed do not b Aong in the operation of
government.
Reduced to essentials, H.R. 13, H.R. 9784 and H.R. 10700 encourage unioniza-
tion among federal employees?such as the original Wagner act of 1936 encour-
aged unionization among private sector employees?by establishing the frame-
work through which compulsory bargaining arrangements shall be effectuated.
Since 1963 it has become politically fashionable with the leaders of both
political parties to encourage the unionization of employees of the federal govern-
ment?even against the will of the American public. The National Labor-Man-
agement Foundation sees this current proposed legislation as the first formal
legal step toward creating a labor government in the U.S.
Unions in private industry are already obese with political power. Yet, legis-
lators persist in encouraging the growth of the unicn shop and industry-wide
bargaining which produce more union political power The proposals before this
subcommittee would provide the dues money for even greater union political
activity directed toward the goal of a labor government,
Representative William J. Scherle (R-Iowa) recogr ized the impending danger
from union power, declaring: "Having granted fa.vored legislative status to the
unions through the 1935 National Labor Relations Act, the nation now finds
itself facing an octopus of political and economic domination. The balance of
power in the private sector needs to be re-weighted by recognizing the legitimate
claims of a third interested party?the American taxpayer. The interests of the
public have never really been eloquently or even a iequately defended in the
Long series of battles between management and labor. Yet the public is directly
affected by crippling strikes and the inflation which results from exorbitant
wage hikes in the business community."
What is decided by this Subcommittee and this Congress could be extremely
oostly to the public in terms of tax dollars and services.
At issue is whether the Congress should establish--by law?a labor-manage-
ment relations program for the government's more tiff n 2.6 million federal work-
ers. Of the 1,082,507 federal employees now represented by unions, some 595,269
are dues-paying members. Thus, studies show that a compulsory union membership
where-by federal employees would be forced to pay dues or fees to a union or
not be able to work for their own government would not union officials a windfall
of approximately 829.239,080?which could be used to pursue their pet economic,
social and political schemes.
If the unions have their way, thousands of federal workers who now don't be-
long to unions will be forced to do so.
The basic issues are these:
1. Should federal sector union officials have an "eKclusive" voice for federal
employees in dealing with federal agencies in behalf of these employees?
2. Should federal workers be compelled to pay money to unions in order to
work for their own government?
The Braseo and Ford bills offer a cornucopia of go )(lies for union officialdom.
Mr. Henderson's bill addresses itself to the needs of federal employees in the
sense that it would strengthen the grievance proced ore through which federal
employees deal with their employees and flesh out tie administrative structure
for dealing with the question of collective bargaining.
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One of the worst features of each of these bills is the creation of a powerful new'
bureaucracy?the Federal Labor Relations Authority, funded by tax dollars
whose function it would be to administer the act in an "even-handed manner.
Any one who has dealt with a similar organization, the National Labor Bela
-
tions Board, will verify that the only even-handedness would be the dividing
up of public sector employees among union officials. Passage of any of these bills
would serve only to encourage unionism at the federal level, and through estab-
lishment of precedent, at the state, county and local levels.
Passage of the bills under consideration would put into motion political forces
that would ultimately find Americans facing the same question that former
British Prime Minister Edward Heath asked during the last elections in his
country, "Who rules Britain?the unions or the government?" Americans will be
faced with this same question some day if we continue to pursue the course of
giving more special privileges to the officials of federal employee unions.
While some Congressmen worry about the effect of labor power upon the
public, the legislation now being considered would greatly increase that power
and thus would strike directly at the public interest.
The British miners' strike created unimaginable chaos. There 280,000 coal
miners working for a government corporation almost paralyzed all industry and
home life. International repercussions resulted and other Europeans referred to
British public strikes as? "The British disease." This is the contagion that could
spread to America if Congress enacts any bill which encourages the further
unionization of federal employees and allows them to possess the same power as
unions in the private sector.
It is the view of the Foundation, however, that if compulsory collective bar
gaining should be imposed upon the Federal Government by the Congress, any
legislation adopted should forbid strikes, the union or agency shop, the doctrine
of exclusive representation, the compulsory check-off of union dues money, and
political activity by public employee unions. If collective bargaining is directed,
it should be voluntary and limited to settling of grievances. Public employment
has its own merits and privileges and should not be considered the same as
private employment.
Civil service laws already define and establish equitable and realistic policies
and procedures encompassing promotion, discipline, discharge, grievances, job
classifications and definitions, job security and other appropriate matters involv-
ing the employer-employee relationship. This should be preserved.
One final point to consider in view of events in recent years: some government
sector unions, most notably at the state and local levels, have evidenced utter ir-
responsibility, have displayed complete defiance of the law and have demonstrated
a callous contempt for the public welfare. These unions have rejected our consi-
tutional process, taken the law into their own hands and created severe hardship
for the public at large in their attempts to advance their own special interests, at
the expense of the taxpayers.
It is essential that strict financial penalties be incorporated in any legislation
dealing with government employees for violation of provisions thereof. Jailing ir-
responsible union leaders, or even union rank and file members, is not the answer,
particularly if the period of confinement is relatively short.
A better solution to ending, or at least minimizing, the occurence of strikes,
damage to government property, and other illegal activities occuring during a
labor dispute of federal employees, is fines of such a magnitude as to provide the
necessary deterrant to further violations.Such fines should be mandatory, thereby
obviating the danger of weak and expedient public officials refusing or neglecting
to carry out their official duty to uphold the law and impose penalties. Amnesty
for unions, their leaders and members who violate the law should be prohibited.
When striking unions violate the law and cause damage to the public at large,
the injured party?the public?should, as in other areas of the law, e.g., anti-
trust matters?be provided a remedy to recover loss. It appears that only through
such a mechanism can the American public be protected against the illegal, ir-
responsible and defiant acts of certain government unions and their leaders.
STATEMENT OF THE JOINT COUNCIL OF UNIONS, GOVERNMENT PRINTING OFFICE
Mr. Chairman and members of the committee, my name is Cornelius V. Mc-
Intyre, and I am president of the Washington Printing Pressmen and Assistants'
Union, Local No. 1, an affiliate of the International Printing and Graphics Com-
munication Union, AFL?CIO.
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I am also chairman of the Joint Council of Unions a the Government Printing
Office. This Joint Council represents twenty-one union 5 and approximately eight
thousand employees.
We want to endorse the principle of a Federal Labor Relations Act and the adop-
that of H.R. 13. which we believe will meet the needs of the employees of the Gov-
renment Printing Office whom we represent. In your Bill H.R. 10700, we find that
the Government Printing Office and its personnel, all of whom are Legislative
employees, are excluded.
The unions in the Government Printing Office have been in existence for over
100 years, and have been in the forefront of Labor-Management relations through-
out its existence.
As you probably know, the employees in the Government Printing Office have
been governed since 1924 under the Riess Act, which se:s the procedure for yearly
wage conferences with the Public Printer and we have no desire to infringe on or
to abolish this law under a Labor-Management }Relations Act.
Even though fle employees at the Government Printing Office do not come
under Executive Order 11491, by the implementation of most of this and the in-
clusion of an Umpire to decide issues similar to those designated to the Assistant
Secretary of Labor for Labor-Management Relations, (Section 6, Executive
Order 11491), we not only find the same shortcomings of the Executive employees
in the implemented Order but are confronted with many more.
Many times we are confronted with the management theory that we are em-
ployees of the Legislative Branch and issues are non negotiable because of this
and then we are told that the Civil Service and Federal Personnel policy pre-
vails, depending on which seems most appropriate tc their way of thinking at
the time.
Even after these obstacles are passed, we are often confronted with the abso-
lute power to negate all of this by the Public Printer's authority as the head of
the Agency.
We believe that the employees of the Government Printing Office must be in-
cluded in any Labor-Management Relations Act and furthermore, we feel that
the Members of your committee will agree that the employees of the Government
Printing Office should have the same privileges and enjoy the same benefits that
the rest of the government employees would by the enactment of such a law.
We sincerely appreciate the privilege of having the opportunity to present
these comments and we do urge your support in ha ring the employees of the
Government Printing Office included under this act.
STATEMENT OF EWAN CLAQUE, PRESIDENT, THE FEDERAL PROFESSIONAL ASSOCIATION
As President of The Federal Professional Association, a voluntary organization
of Federal employees engaged in the various professional disciplines, founded
in 1962 and chartered in the District of Columbia, I invite your attention to the
implications of the provisions affecting professional employees in H.R. 10700,
11.R. 13 and H.R. 9784, bills dealing with labor-management in the Federal
service.
These bills call for enactment into law of such pr wisions rather than their
implementation by presidential regulations under executive orders, which has
been the practice since 1962. The bills would supp ant the prevailing labor-
management regulations in Executive Order 11491, as amended by E.O. 11616.
The position of The Federal Professional Associaiion on these bills can be
summarized in three points:
First, we believe that it is preferable to continue to implement labor-manage-
ment relations in the Federal service through executive orders rather than
shifting at this time to legislation. There are still many unresolved problems in
this field which can be better handled by the flexibility of executive orders
rather than by the rigidity which is introduced by enactment into law. The
framework of those relationships as they apply to professionals has not yet
been firmed up sufficiently to warrant legislation.
Second, we in The Federal Professional Association believe that professionals
should he left free to join or not to join an employee organization. That is the
situation which exists now. We are opposed to any legislative provision which
would require them to pay dues to an employee organization.
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Third, we believe that professionals as a class should be excluded from the
bargaining units. Professionals should be treated as a separate category of
employees.
PROFESSIONALS IN THE CAREER SERVICE
The backbone of the Federal Government is the Federal Career Civil Service.
The Government is as good as the Career Service makes it and the Career Service
is as good as its leaders and advisors. The leaders and advisors of the Career
Service are mostly professionals. The thrust of this statement is that the Federal
employee-relations structure and the proposed bills fail to provide adequately
for this most important element of the Government, namely, the career pro-
fessionals who develop the information, help set the policies and direct the
activities of other employees.
The most widely used definition of a professional is that of the Taft-Hartley
Act. It mentions such items as: knowledge of an advanced type, consistent exer-
cise of discretion and judgement, predominantly intellectual activities, and the
impossibility of standardizing the accomplishments. These features of profession-
alism are, of course, matters of degree rather than matters of kind. Therefore,
it is often helpful to invoke other characteristics, such as the need for continu-
ing education, in order to distinguish the some 300,000 professionals from the
other employees.
The motivation of the professional is different from that of other employees
In the sense that it is dominated by intellectual challenges. Typically, he achieves
solutions to problems or generates plans, rather than producing supportive memo-
randa, fine hardware or prompt messenger services. Creative achievement consti-
tutes the basis for recognition and advancement. The professional prefers work
involving flexibility in its manner of execution rather than adherence to well-
established procedures. And he often gets more satisfaction from recognition
of his achievements by his peers than by his supervisors.
Summarizing, the tool of the professional is very special knowledge, and his
skill is in making judgements. He seeks a reasonable balance among several
goals?his own career, the well-being of his particular profession and his dedi-
cation to the government service. He needs an intelligent voice for his special
problems, but he usually shies away from the rigidities of a union.
ROLE OF THE PROFESSIONAL IN GOVERNMENT
The professional is typically either a part of management or closely associ-
ated with management. Either he exercises delegated authority or he influences
policy through the strength of his ideas. Right down to the most junior level, the
professional is generating the advancement of knowledge, improvements in
services, and sound bases for decisions at higher levels of authority.
The relation between the professional employee and management is compli-
cated by the fact that he is either a part of management or, if not, he is re-
sponsible for generating the information which will be used for policy decision-
making somewhere in the management heirarchy. He is held responsible not only
for the validity of information, but also for the pertinence, importance and time-
liness of his proposals. He must assume an intellectually honest view of his
responsibilities and loyalties to the United States, to his profession, and to his
agency and its policies. He is ethically bound to express his convictions.
The impact of the man on the job governs the functions to be performed. For
example, the Civil Service Commission has long recognized that the contribution
of a research scientist depends significantly on the manner in which his achieve-
ments and development enhance the functions of his position. This principle per-
vades all professional employment situations. It has given rise to rank-in-the-man
proposals, such as have been used in the armed forces. It has made the employee
relations of the professionals different from those of other employees. And these
differences exist in all aspects of managing professionals, e.g., selection, classi-
fication, career development, supervisory practices, and performance evaluation.
EMPLOYEE RELATIONS INVOLVING PROFESSIONALS
Professionals do not fit neatly into a two-fold classification of labor and man-
agement. In many ways they constitute A "third estate," which is often neither
management nor labor, or which is sometimes part one and sometimes part the
other. Many, if not most, professional employees begin as research workers or
practitioners, but end up by becoming supervisors, managers or directors. Mid-
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486
way through his eareer the average professional is conducting studies, making
surveys and supervising subordinates in a management role, even though he or
she retains close professional ties with his or her professional peers.
This problem of relating to management can become acute for a professional
who advances in the Federal service. He gradually moves across the line from
being an employee under the direction of others to becoming a supervisor of
junior professionals and others, and perhaps eventua ly a director of a division
or agency. He can do all this now without weakening in any way his association
with his profession.
The professional who wishes to advance his profession or advance in his pro-
fession must maintain close relationshf,ps with the associations which represent
his professional interest. He owe his allegiance to his agency, but he also estab-
lishes ties with his professional associations. These two loyalties may occasionally
conflict in the normal course of events, as in eases of dissent, but he should not
be forced by legislation into an additional source of conflict.
It is for those reasons that we in The Federal Professional Association believe
that professionals should be left free to join or rot to join other employee
organizations.
BARGAINING UN ITS
The adversary posture of bargaining with management is inconsistent with
the natural role and, in fact, the duty of prafessior,als to advise and support
management and usually to aspire to management End executive positions. In
most situations a non-adversary means of spokesnianship will be more consistent
with the relations of professionals to management; and such means should be
developed.
The important problems currently impacting on the professional group are
salary ceiling, contracting-out and ethical practices. The biggest problem, how-
ever, is the threat of losing the professional voice by submerging half of it in
minorities within the bargaining unit and muffling the other half as management.
As part of a bargaining unit the professional voice would be lost, because it
would be a minority in a group with different goals and aspirations. The pro-
fessionals' major problems are national rattier than local, so their time and
resources are better applied to employee-relations systems other than local
bargaining.
Of the three bills receiving consideration we favor H.R. 10700 (Mr. Hender-
son), because it allows the freedom of choice essential to career employees of
the Federal Government. However, we would want to have added to the bill a
provision that professionals be excluded from the bargaining units.
ST kTEMENT OF THE AMERICAN NURSES' Assocunrow
Mr. Chairman and members of the committee, the American Nurses' Associa-
tion (ANA) is the professional organization of registered nurses and has a
present membership of approximately 200,000 RNs. The ANA has constituent
associations in all the fifty states, the District of Columbia, Guam and Virgin
Islands.
The purposes of the ANA are to foster high standards of nursing practice,
promote the professional and educational advancement of nurses, and promote
the welfare of nurses to the end that all people may have better nursing care.
There are approximately 27,000 RNs presently in the employment of the
Federal government, with the Veterans' Administration being the largest em-
ployer of RNs it. the Federal sector. The ANA welcomes the opportunity to sub-
mit statements expressing views on the proposed bills dealing with employee
relations in the Federal sector, viz. H.R. 10700, H.R. 13, and 11.R. 9784.
FEDERAL EMPLOYEES SHOULD HAVE THE SAME RIGHT TO BARGAIN COLLECTIVELY AS
THE EMPLOYEES or THE PRIVATE SECTOR
The ANA strongly believes that the employees' right to bargain collectively
with their employer(s), on matters of salaries, fringe benefits, working hours
and other conditions of employment is an essential ingredient of American
democracy. A clear and unequivocal recognition of the right to bargain collec-
tively has been the declared policy of the United States and has been the main
basis of the National Labor Relations Act. This policy is equally valid and ap-
plicable in the case of Federal employees. The ANA advocates a policy which
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would grant the Federal employees the same right to bargain collectively with
employers as the counterparts in the private sector have enjoyed for the past
four decades. The ANA is aware of the unique nature of the public services pro-
vided by Federal employees, and that considerations of compelling public in-
terest may well dictate deviations of departures from established principles and
procedures of collective bargaining available to private sector employees. Such
deviations, however, should be minimized.
EXECUTIVE ORDERS 10988 AND 11491 HAVE LAID THE PROPER FOUNDATION FOR LABOR
MANAGEMENT RELATIONS IN THE PUBLIC SECTOR
Executive Order 11491, and its predecessor, Executive Order No. 10988, have
established the necessary foundation for developing a more comprehensive legal
framework for employee relations in the Federal sector. The ANA believes that
any Congressional action in providing a legislation for Federal employee relations
must be directed toward building on the foundations established by the Execu-
tive Orders. The attempt should be directed toward improving the present system
by correcting known inadequacies rather than by completely abandoning it.
With this end in view, the ANA's comments in the following paragraphs are
designed to increase the effectiveness of present arrangements.
SCOPE OF BARGAINING
The American Nurses' Association advocates the retention of the present
authority of Congress to legislatively determine salaries, hours of work and
fringe benefits of Federal employees. These subject issues should be excluded
from the scope of bargaining. However, with a view toward providing effective
and meaningful participation by Federal employees in establishing an equitable
system of compensation, present arrangements for obtaining input from employee
organiaztions representing Federal employees should be further strengthened.
The appropriate congressional committees should treat the submissions of
employee organizations on the same basis that an employer in the private sector
would treat the same submissions emanating from a union representing
employees.
The Congress to date has given thoughtful consideration to nurses' needs in
the area of salary and fringe benefits in the Veterans Administration system.
Organized nursing has appreciated the standards set by legislation.
The ANA is aware of the serious limitations that would be placed on the
Federal employee's right to bargain collectively with their employers by the
exclusion of matters such as compensation, fringe benefits, and working hours
from the scope of bargaining. The past experience, however, justifies the posi-
tion taken by the ANA.
The American Nurses' Association would not recognize any other abridge-
ment of the scope of bargaining by Federal employees. We recommend the aboli-
tion of additional restrictions on the scope of bargaining on the grounds of the
Federal manager's unrestricted right to "manage the mission of his agency, its
budget, its organization, the number of employees, etc., etc." By keeping the
substantive matters of employment such as compensation, fringe benefits, work-
ing hours, outside the arena of collective bargaining, Federal employees have
already subjected themselves to severe restraints on their rights.
There is no reason to further diminish this right by granting to Federal man-
agers additional rights under the guise of "inherent authority" necessary to
manage the "mission of the agency". The past two or three decades have wit-
nessed considerable inroads into the inherent rights of private sector manage-
ments without any appreciable decline either in the efficiency or the profitability
of the firm. There is no reason to believe that Federal managers would be
severely handicapped in their exercise of prudent and efficient management of
their agencies by conceding to their employees rights in those areas. In actual
practice, the present right vested in the heads of Federal agencies to veto al-
ready negotiated collective bargaining agreements has been a source of frustra-
tion. Undue delay has been experienced in obtaining ratification which is one
cause of avoidable employee dissatisfaction.
RIGHT TO STRIKE
It is well recognized by professional practitioners of collective bargaining that
the phenominal success achieved by the institution of collective bargaining could
be legitimately attributed to the employees' right to strike. In fact, collective
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bargaining and the right to strike are inseparable; they are the two sides of the
same coin.
The ANA is not oblivious of the fact that a strike, ,wen of a very short dura-
tion, by some groups of Federal employees handling jobs critical to the smooth
and normal functioning of the society can severely upset the normal operations of
society.
The American Nurses' Association does not believc in resorting to "quickie"
wild strikes. Registered nurses do not resort to strikes for capricious or frivolous
reasons. Professional nurses strike only when they r?ceive a rebuff from their
employers in (i.e. RN's) efforts to deal with their professional concerns such as
unmanageable workloads. These often result from too many budgeted positions
remaining vacant because of low salaries that have long since ceased to be com-
petitive enough to attract qualified personnel. An American Journal of Nursing
article in reporting on happenings around the country by nurses stated, "How-
ever, tired as nurses were of subsidizing an affluent society's health care at the
cost of something less than affluent living for themselves and their families, the
ferment was not about salaries alone. In most ins:ances, what finally made
nurses act was their inability to care for patients".1 Often have the nurses been
made to realize, to their own dismay, that refraining from rendering substandard
patient care, in circumstances that might amount to strike, is the only way of
ultimately improving patient care.
RIGHT TO STRIKE SUBJECT TO FIRST EXHAUSTING IMPASSE PROCEDURES
While the ANA believes that the Federal emplo3ees should have a limited
right to strike, the ANA is not "strike-happy". It s the ANA's position that
while the right to strike is essential, safegua rds must be built into law to pre-
vent its frivolous or elusive use. Incorporating well spelled out impasse resolv-
ing procedures into the law relating to collective oargaining by the Federal
employees is essential to smooth and peaceful working process. The ANA recom-
mends that resorting to a strike without participating in procedures devised to
resolve impasses in negot iations must be made an illegal conduct. Such conduct
should carry punishments commensurate with the gravity or grossness of the
violation of the ban on strikes before completing impasse procedures.
JUDICIAL REVIEW MUST BE THE TERMINAL STEP IN TICE GRIEVANCE PROCEDURE
The prompt resolution of grievance arising out oi the interpretation and/or
application of the negotiated contracts are prerequisites for achievement and
maintenance of good labor-management relations. Some inadequacies are present
in the existent provisions for contract administration. These inadequacies need
immediate attention. The procedure needs strengthening in the following ways:
The terminal step in the grievance procedure must be the judicial review. In
any system of government that is based on the principle of government by laws
rather than that of government by men, our suggestion needs no further
justification.
Time spent by representatives of employee unions in representing fellow em-
ployees in the processing of grievances should be stE tutorily recognized as "offi-
cial time". It is common practice in the priva be sector to provide union stewards
sufficient time to investigate and process gr vances. It is believed that the es-
ablishment of this practice in the Federal sector wolf d contribute to maintenance
of good labor-management relations.
NEED FOR STRENGTHENING PROVISIONS RELATING TO UNION SECURITY
In all industrial and democratic societies employee organizations are now
generally regarded as useful social institutions. An employee organization, that
is freed from the compeiling need to worry over its .-!ontinued existence tends to
behave in a more responsible and mature manner. Benefits accruing from an
employee organization that feels secure cannot be overstated. The ANA strongly
recommends that Federal employee relations law oontain adequate provisions
guaranteeing the security of the employee organization.
The ANA accepts the philosophy that every Federal employee should have the
right to decide, in accordance with his own conscience, whether it is in his in-
1 Martha Belote : "Nurses Are Making It Happen," Ameri ;an Journal of Nursing, 67 :785,
Feb., 1967.
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terest to join or not to join a particular employee organization. At the same time,
every Federal employee that receives the collective bargaining services from an
employee organization operating in his facility must contribute his fair share in
financially supporting the employee organization whose services he is availing,
directly or indirectly. In short, the ANA supports an employee organization's
right to levy agency service fees from nonmembers. It is only fair that as the
employee organization has a responsibility to represent all employees, all em-
ployees should have a responsibility to support that organization.
Another measure of equal importance is the need to recognize an employee or-
ganization's right to have the facility of payroll deductions for membership dues
from members and for agency shop or service fee levies from non-member em-
ployees of the facility. An employee organization of public employees, who have
given up their jurisdiction over substantive matters of employment such as
compensation, working hours, holidays, vacation, etc. and who have subjected
their valuable right to strike to certain statutory limitations, does not ask for
too much when it asks for statutory recognition of its right to payroll deductions
free of any charge or costs, of membership dues or agency shop fees.
SPECIFIC CONCERNS OF REGISTERED NURSES
Having stated its views on several broad issues that are relevant to Federal
employee relations law, the ANA considers it pertinent to state concerns that are
specific of RNs.
MANDATING A SEPARATE BARGAINING UNIT FOR ENS
The community of interest prevailing among RNs has been proven. In order
that RNs can effectively handle concerns on patient care and about paramount
need for obtaining a proper voice in promoting working conditions that are con-
ducive to quality health care, it is essential that a separate bargaining unit for
RNs 'becomes statutorily mandated. We have been hearing these days concerns
expressed by the Federal managers about the need for reducing the number of
bargaining units. We have an apprehension that the esteemed members of this
committee may yield to the pressures generated by the Federal agency adminis-
trators. The ANA strongly urges this committee not to succumb to such pres-
sures and to statutorily mandate a separate bargaining unit for all RNs in a given
facility. Precedents for such statutorily mandated exclusive bargaining units
for RNs are now gradually growing under state employee relations laws. For
instance, Hawaii State Public Employee Relations Law mandates a separate
bargaining unit for RNs.
ISSUE OF SUPERVISORY EXCLUSION
It is quite understandable that employees employed in executive supervisory
positions not be included in the bargaining unit, As professional nurses, most of
the 'RNs employed as "Head" Nurses, "Charge" Nurses, etc. are not supervisors
in the traditional or business parlance of the term "supervisor". Even though
such RNs are merely coordinating the activities of nurses aides, LPNs and other
sub-professionals in the interest of better patient care, they are presently ex-
cluded from the 'bargaining unit. In short, the professional authority, inherent
in the need that registered nurses should coordinate the activities of other aides,
and orderlies so that the patients get appropriate nursing care is misunderstood
as the nurse's authority to supervise the activities in the interest of the employer.
Time and again the ANA and its constituent units have tried to explain to dis-
tinguish the professional authority of a nurse to direct the activities of other
employees in the interest of better patient care from the supervisory authority
of a professional nurse. It is ANA's suggestion that this Honorable Committee
recognize the proper distinction between the professional authority of a registered
nurse as different from the real authority of supervision in the interest of the
agency and amend the definition of the supervisory employees in the following
manner:
"Supervisor" means an employee having authority in the interest of an agency,
to hire, transfer, suspend, lay-off, recall, promote, discharge, assign, reward or
discipline other employees or responsibility to direct them, or to evaluate their
performance or to adjust their grievances, or effectively to recommend such
action if in connection with the foregoing the exercise of authority is not of a
merely routine or clerical nature, but requires the use of independent judgment,
provided, however, that a health-care professional employee shall not be deemed
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or found to be a supervisor if the authority or actil ity which would otherwise
be the basis for finding him to be a supervisor inheres in professional judgment
or responsibility or involves any exercise of professional as distinct from merely
administrative or managerial, responsibility."
THE CONFLICT OF INTEREST ISSUE
As already stated earlier, the ANA and its constituents have a history of repre-
senting professional registered nurses employed by the VA system. The ANA is a
multipurpose professional organization, and as such its membership is also
available and open to all registered nurses employei in administrative, super-
visory or managerial positions in nursing in the VA. system. It has been the
unfortunate experience of the ANA, that in adminisi ering the provisions of the
Executive Orders 10988 and 11491, the Veterans Administration has placed an
unduly strict interpretation on the conflict of interest provisions. Such strict
interpretations have resulted in issuance of administrative instructions dis-
qualifying or prohibiting ANA members employed (aei ministrative or supervisory
or managerial positions) in the VA system from holding positions of office in the
ANA and its state and district constituents. Time ard again we have explained
to the VA that no real conflict of interest is involved in allowing administrative,
supervisory and managerial nurses to hold positions of office in a multi-purpose
professional organization like ours. We have, so far, not met with any success.
VA's ban on RN particination in the professional a ctivities of the ANA, have
deprived the ANA of valuable input from a large segment of VA nurses. This input
is invaluable to the formulation of nursing care principles and policies.: We
earnestly urge your committee to recognize the needs of a multi-purpose pro-
fessional organization like the ANA and to make appropriate provisions for
resolving the dilemma resulting from such a strong and adamant position of
the Veterans Administration on the so-called conflict of interest issues. The ANA
would certainly appreciate a strong and positive endorsement from this Commit-
tee on the need to exempt a larger number of nurses from those deemed to have
a conflict of interest.
THE ABILITY OF A MULTI-PURPOSE PROFESSIONAL, ORGAIN IZATION TO CONDUCT EDUCA-
TIONAL PROGRA MS MUST NOT BE IMPAIRED JUST BE( AUSE THE ORGANIZATION IS
ALSO REGISTERED AS A LABOR ORGANIZATION
The ANA would like to share with this Committee a peculiar case that has
developed under the Executive Order No. 11491. The North Carolina State
Nurses Associaiton, an ANA constituent arranged an educational workshop in
May, 1973 with the object of providing professional improvement of all Psychi-
atric-Mental Health Nurses. In accordance with the long established policy of
the VA, the Veterans Hospital in Salisbury, North Carolina, displayed the flyers
relating to this seminar on the staff bulletin boards announcing that admin-
istrative leave would be available to the RNs interested in attending the seminar.
Several RNs availed of the administrative leave ar d attended the conference.
The American Federation of Government Employees, Local 1738 filed an unfair
labor practice charge against the VA Hospital in Salisbury alleging that in
granting administrative leave to VA nurses for att( nding the above workshop,
the VA Hospital was guilty of violating the provisions of Sections 19(a) (1)
and (3) of the Executive Order 11491. The gravamen of the charge was that
inasmuch as both the ANA and its affiliate NCSNA were labor organizations
as defined under the Executive Order 11491. the VA Hospital authorities were
guilty of violations of the provisions of Sections 19(a) (1) and (3). The charge
was numbered as the Case No. 40-4953 (CA). The Administrative Judge, after
conducting a hearing in Salisbury, North Carolina, on December 4-5, 1973, has
recommended that the complaint of the AFGE, Local 1738 be dismissed. The
AFGE, Local 1738 has Med objections with the Seer( tary of Labor to confirming
the recommendations of the Administrative Judge. The Secretary's decision is
awaited. Since the matter is still sub-judice, the ANA would refrain from ex-
pressing any opinion as to the merits of the case of either party.
The facts leading to this case, however, do emphasize the limitations that
could be placed on a multi-purpose professional organization who is also registered
as a labor organization under the Executive Order 11491, in carrying out its
professional objectives of providing opportunities to its members in terms of
educational seminars and conferences for the professional and continuing edu-
cation of its members. The dilemma posed by the Salisbury, North Carolina case
is a real one and calls for early resolution.
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It is in the public interest that members of a professional organization receive
all the encouragement that they need in improving their professional competence.
The VA policy in granting administrative leave to its professional employees
for attending the educational conferences arranged by their professional orga-
nizations certainly serves and promotes public interest. It is imperative that
such a progressive policy should not be allowed to be defeated on the legalistic
ground that such a policy amounts to an unfair labor practice. What is the
solution? The solution lies in deleting from Section 7(d) (3) of the Executive
Order the words, "not qualified as a labor organization" occurring after the
word "lawful association" and before the words, "with ." Such a deletion
would render the whole matter free from any doubts about a Federal agency's
authority to grant administrative leave to its professional employees for the
purpose of attending educational seminars arranged by a multi-purpose pro-
fessionatorganization.
Since We have spoken of our concerns in terms of issues rather than on
specific provisions of the three proposed bills H.R. 10,700, H.R. 13 and H.R.
9784, we have refrained from endorsing any of these specific bill or bills.
SUMMARY
In conclusion, the ANA believes that a time for enacting a comprehensive
law regulating collective bargaining rights of Federal employees is now at hand.
Such a legislation must be built upon the system of collective bargaining now
established under Executive Orders 10988 and 11491. The ANA believes that
Federal employees should have many of the same rights as their counterparts
in the private sector. However, at this stage, the ANA recommends that matters
directly relating to compensation, working hours, leave, vacation etc. be excluded
from the scope of bargaining. Our recommendation is based on our experience
that the Congress has responded sympathetically to our concerns and appeals
about the need for upgrading RN salaries and other conditions of service to
ensure the needed supply of RNs. The Federal employees should have a limited
right to strike. However, any exercise of the right to strike must be subject
to the limitation that it can be exercised only after all procedures prescribed
for resolving impasses in negotiations have been tried and failed, and should be
permitted only in those circumstances in which public health and safety are not
jeopardized.
The ANA further believes that the terminal step in grievance procedure under
the Federal employee relations law must be that of judicial review. Time spent
by a union representative in representing fellow employees, in resolution of
their grievances must be charged to official time. An important element of the
proposed Federal employee relations law must be to provide adequate security
to employee organizations. Such organizations must be given the facility of
agency shop arrangements and the facility of payroll deductions of its member-
ship dues and/or agency shop service dues free of charge.
The ANA strongly urges the Committee to recognize the strong community
of interest felt by RNs and the need for statutorily mandating an exclusive
bargaining unit for RNs. The ANA advocates that the term supervisory em-
ployees should not be used to exclude from bargaining units, RNs having only
professional authority over the activities of other employees for delivering
proper nursing care.
The ANA also requests the committee to recognize the problem resulting from
a narrow interpretation placed by the VA on the conflict of interest issue. Sim-
ilarly ANA earnestly urges the committee to resolve the dilemma arising out
of the unfair labor practice charges, case No. 40-4953 (CA) filed by the American
Federation of Government Employees, Local 1738 against the Veterans Hospital
in Salisbury, North Carolina.
The ANA trust its submissions would receive careful consideration from the
members of this Committee.
STATEMENT OF W. A. NAGEL, LEGISLATIVE CHAIRMAN, ASSOCIATION OF SENIOR
ENGINEERS
The Association of Senior Engineers, ASE, is an independent, non-profit or-
ganization chartered to uphold the rights and interests of the civilian engineer,
and its other members (members who are technically associated with the en-
gineer) who are employees, including retirees of the Naval Sea System Command,
(formerly known as Naval Ship Systems Command). This association is guar-
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lored in the Metropolitan Washington, D.C. area and has a membership of ap-
proximately 700 members. We welcome this opportunity to present our views,
in conjunction with other member organizations of the National Federation of
Professional Organizations at this Committee's hearing on proposed legislation,
tIR 13, HR 9784 and HR 10700.
As duly appointed representatives of ASE, we must in the best interest of the
membership of ASE oppose any legislation that encroaches upon the rights and
independence of our members.
'Although it might be in the interest of the professional societies, such as ASE,
to have laws or statutes that will assure its members lip the right of freedom of
choice and action as when, how, and to whom dues as a requirement of member-
ship shall be paid, it is not in the best interest of the ASE membership to have
its members required by law, to pay dues to n labor organization whose beliefs
n rid purposes differ from those philosophies of our society and which denies the
professional his freedom of choice and independence, such as being proposed in
bills HR 13, HR 9784, and somewhat modified in HR 10"00.
The ASE also recognizes the fact that laws or statutes are needed to protect
the rights and interests of the Federal employee ir, the professional fields?
engineers, chemists, doctors, lawyers, a ccounts nts, dentists and the many other
professional disciplines that require considerable tecInical and academic train-
ing, plus years of experience to obtain an expertise 7o be acceptable as a pro-
fessional?when -involved in labor-management dispu :es. Such laws or statutes
should then be written by the legislators with the help of members of these
various professions, the neople that lincrw what leg- slation is needed to best
serve the needs of the "professional", and should be independent of any laws or
statutes that are designed to serve all Federal employees (both professional and
non-professional)
Past experience in the field of labor-management relationships has proved that
most employees in the non-professional fields outside cf the Federal Services are
being best served by a labor organization when dealing in disputes between labor
and management, and similar laws are iong overdue which will provide the same
serviees for the Federal employee.
if it is the intent of the sponsors of such bills is HR 12, HR 9784, and
BR 10700 to foster improved labor-management relations between the Federal
employee and the Federal agencies, then the language in such bills should clearly
state separately the needs of the professional and how best to serve him from
that of the non-professional employee. Although hills HR 9784 and HR 10700
include a definition of a "professional employee," neither of the three bills in
question provides the professional with adequate protection as to his right to
join or not to join a labor organization or to pay dues, as a condition of employ-
ment, to a labor organization when the unit or agency _n which he is employed is
organized.
The professional employee in most agencies is in the minority, therefore, if he
is to be given the right of choice under an improved labor-management relation-
ship, then he must be guaranteed by law or statute complete independence of
having any responsibilities or participation in such labor-management negotia-
tions that does not directly/or exclusively involve the professional employee,
unless by choice he wishes to paricipate in such negotiations and be bound by
resulting actions. The professional einployee should also be given the right to
choose the labor organization or a duly registered professional society he wishes
to be his exclusive bargaining agent in dealing with management in any labor-
management negotiations conducted in his behalf.
Any legislation which deals exclusively in hchalf of the professional must he
written so that it's binding on bath parties involved ind strong enough in lan-
guage to have meaning anct protective enough to assure the professional his right
to a free vote and guaranteed consultation rights Without fear of coercion or
reprisal by his agency including the independent right of choice in matters of
dues collection or ileductions.
Certain definitions must be delineated to avoid an' conflicts of interests or
rights of all Federal employees as to their freedom of choice involving member-
ship in a unit of a labor organization or professional iociety when eligible.
We urge you in the best interest of the ASE membership to include in any
Tabor-management bill that might be approved by this subcommittee language
that separates the professional employee from the non-professional employee and
to delete any language or implications that deny the nrofessional employee his
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Independent rights or freedom of choice or that requires the professional em-
ployee to pay dues to any organization, except voluntarily and by written au-
thorization.
NAVAL CIVILIAN ADMINISTRATORS ASSOCIATION,
OFFICE OF THE EXECUTIVE SECRETARY,
Haddonfield, N.J., July 24, 1974.
The Honorable DAVID N. HENDERSON,
Chairman, Subcommittee on Manpower and Civil Service, Committee on Post
Office and Civil Service, House Office Building, Washington, D.C.
MY DEAR MR. HENDERSON : The Naval Civilian Administrators Association is
an organization of approximately 500 professional and administrative civilians
in high level positions of responsibility in Naval Shipyards, Naval Aviation activi-
ties, Naval Supply Centers, and Naval District Headquarters. Our Association
has been in continuous existence for 27 years and we have 14 Chapters. Our
National President is Mr. Joseph Derwiecki of the Portsmouth Naval Shipyard,
Portsmouth, N.H. ; and the National Vice President is Mr. Thomas R. Walsh of
the Mare Island Naval Shipyard, Vallejo, California.
We are affiliated presently with ?the National Federation of Professional Or-
ganizations, and attended the session of your sub-committee on July 16 at which
time Mr. Hill presented the NEP? statement. We are in general support of the
NEPO position; however we respectfully request that the following specific
points representing the views of our Association be entered into the record of the
sub-committee hearings:
1. We are opposed to any legislation which would permit the right to strike
against any unit of the United States Government by a labor organization. We
view with considerable alarm the prospect of a naval shipyard, a naval air sta-
tion, or any military base being shut down by a strike.
2. We are opposed to legislation which would permit as a condition of employ-
ment the authority of a labor organization to require membership or the forced
payment of dues by nonmembers. We believe in the right of free choice as in
H.R. 10700 or E.O. 11491 and E.O. 11616.
The NCAA is not anti-union; however, we believe that the Civil Service does
differ from private employment. The extension of any form of strike rights and
compulsory unionism to the people who are concerned with the defense, the oper-
ation, or the welfare of the United States of America is inimical to our country.
Very respectfully,
J. HARTLEY BOWEN, Jr.,
Emecutive Secretary.
U.S. CIVIL SERVICE COMMISSION,
Washington, D.C., July 29, 1974.
Mr. ROY C. MESKER,
Staff Director, Subcommittee on Manpower and Civil Service of the Committee
on Post Office and Civil Service, Rayburn House Office Building, Wash-
ington, D.C.
DEAR MR. MESKER : Thank you for the opportunity to provide additional in-
formation on legislative issues relating to the Federal labor-management rela-
tions program. My comments on the six questions contained in your letter of
June 20, 1974 are attached.
If I can be of further assistance, please advise me.
Sincerely yours,
ROBERT E. HAMPTON,
Chairman.
Enclosures.
1. Executive Order 11491 provides for an agency system of intramanagement
communication and consultation with its supervisors or supervisory associations.
H.R. 13, H.R. 9784, and H.R. 10700 are silent on such relationships. What are
your views on the inclusion of this matter in labor-management relations legis-
lation? How should the subject be handled?
Response
While we fully support systems for intra-management communication and con-
sultation we do not believe this matter appropriate for legislation seeking to
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regulate union-management relations. Agency systems for intra-management
communication and consultation with supervisors aid supervisory associations
are more appropriately left to management structures.
2. Under H.R. 13, H.R. 9784, and H.R. 10700, employees of the central bodies
that would administer the law could be represented by labor organizations,
thereby becoming a party-at-interest in matters corn ng before the central body.
as well as becoming involved in union management dealings with the central
body. This would appear to contain the seeds of conflict of interest. A. Should
these employees be removed from coverage under these bills? Why? B. If not
excluded, what alternatives would you suggest?
Response
As noted in the question, without such exclusion en ployees of the central body
could be represented by a labor organization and thereby become a party-at-
interest in matters coming before the central body as well as becoming involved
in union-management dealings with the central body. Therefore, in recognition
of the conflict-of-interest considerations resulting from the very special relation-
ship that would exist between a central body as the central policy and appellate
body of the program and its employees, these employees should be specifically
excluded from coverage. (While they would have a right to join a labor organiza-
tion, if they so choose, they would not be eligible for recognition under the provi-
sions of the program.) This would be consistent with the existing practice for
certain groups oe other employees where conflict of interest is also a problem,
such as employees engaged in Federal personnel work in other than a purely
clerical capacity. Although excluded from coverage for the purpose of the labor-
management relations law, the employees would othe7wise be covered by appro-
priate administrative and statutory procedures for res olution of their grievances
and complaints.
3. As a priority issue you identify the need to determine who the "employer"
will be. What problems, if any, can you delineate in determining the "employer"
under the systems established by H.R. 10700? What suggestions would you make
to resolve this matter?
Response
Under the systems established by H.R. 10700, problems such as the following
are involved regarding the "employer";
As we understand the Federal Labor Relations Board (FLRB) arrangement in
section 7107(g), it appears that the Chairma:a of the FLRB would ultimately
function as the employer concerning personnel management policies and regula-
tions affecting more than one agency. We see no need for and have great problems
with the total FLRB arrangement as described in our report on H.R. 10700 and
Statement for the Record submitted on May 21, 1974, including (a) that to
delegate to the Chairman of the FLRB ultimate authwity over such a vast range
of Government-wide policy without any responsibilit:7 to any authority usurps
essential authorities historically delegated by the Congress to Federal agencies
and officials for fulfilling their responsibilities and serious cripples management's
capability to manage and function as employer; and (b) that it would be
impracticable to administer such anl,arrangement.
Agency authorities above the level of recognition would act as the "employer"
according to our understanding of the mechanisms in section 7107(e) (3) and (4).
As we also discussed this concept in our report on H.R. 10700, "although it is
desirable to bring more closely together the level of recognition and the focus of
agency authority so as to make possible more meaningful negotiations, the
arrangements proposed for dealing with this matter are not satisfactory. First,
they would result in bargaining rights where there is no appropriate bargaining
unit and the employees affected have had no opportunity to express their views.
in addition, as we understand the concepts involved, it would be extremely
impracticable for agencies to implement and administer the provision. . . .".
if the Congress, however; deems it necessary to have statutory provisions
dealing with matters of government-wide and agency-wide applicability, we would
recommend that more workable alternatives be sought, such as the following:
A requirement for consultation with employee org inizations in the develop-
inent of Government-wide personnel policies.
Give the central authority for the program oversight responsibility to assure
that agency regulatory requirements do not unnecessarily restrict the scope of
rgaining.
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At the recognition level, the "employer" is agency management at that level.
This could be continued, however, to achieve a broader range of negotiations,
broader units should be established. The present provisions for national consulta-
tion rights, as reflected in H.R. 10700, should be continued.
4. In your remarks you stated that you could not accept legislation that in-
cludes negotiation of pay rates and economic fringes on a fragmented bargaining
unit basis. As the result of legislation now in effect, labor organizations partic-
ipate through a variety of mechanisms as members of various bodies. In the area
of pay for white collar and blue collar employees, health benefits and life insur-
ance, H.R. 10700 would give labor organiz,aaions bargaining rights with respect
to a number of matters referred to as personnel policies and practices and mat-
ters affecting working conditions at the Civil Service Commission and comparable
levels. The latter, generally, are circumscribed by matters covered by law. an.
9784, however, would extend negotiations to matters of statute.
What are your views on possible consolidation of all labor management matters,
including pay and fringe benefits, affecting Federal employees Into one bill so
that the entire subject would be covered by one process involving labor and
management?
If you do not favor consolidation as implicated by the previous question, what
alternatives would you suggest that would overcome fragmentation of bargain-
ing at the national and local levels?
Response
We recognize the problems that have resulted from the recognition of numer-
ous, fragmented units at field activity levels where the full delegation of per-
sonnel authority is impractical, inefficient, and perhaps damaging to the morale
of employees similarly situated throughout an agency. This is an issue currently
before the Federal Labor Relations Council.
It is desirable, of course, to bring more closely together the level of recognition
and the locus of agency authority so as to make possible more meaningful negotia-
tions. To deal with the objective of expanding the scope of negotiations and the
problems connected with the fragmentation of bargaining units, and assuming
basic economic and other government-wide policies were not included, we would
recommend consideration of more workable alternatives such as the following:
As in section 7100(i) of H.R. 10700, make it easier to consolidate units, up to
and including agency-wide exclusive recognition.
Assign to the central body authority to determine the appropriate units accord-
ing to legislated criteria favoring non-fragmentation.
The third possibility, also mentioned in response to the previous question?
but one that would have to be approached with extreme care?would be to give
the central authority oversight i'sponsibility on agency regulatory requirements
that improperly and unnecessarily restrict the scope of bargaining.
Finally, and as expressed in more detail in testimony before the Committee,
any system of so-called "full collective bargaining" with strong impasse-revolving
machinery would have to cover all appropriate aspects of personnel policies, in-
cluding economic matters, to permit viable negotiations. However, to accom-
plish this with fairness to all concerned and with paramount concern for the
public interest is not an easy task given the size and complexity of government,
the existing labor relations structure, and the existing framework of laws cov-
ering many aspects of personnel management. This, ultimately is for the Con-
gress to decide and the process would entail difficult decisions affecting unions,
whose continued right to represent some employees would be affected, as well
as Executive Branch officials. Fundamental to this decision is the degree to
which Congress itself is willing to relinquish overall control of basic personnel
policies contained in title 5. At a minimum, legislation should clearly identify
which laws continue and which will be overriden. This is the "supersedure"
issue we stressed in our testimony and the reason we urged the Committee to
give full consideration to this problem and to avoid hasty decisions. There are
no easy solutions acceptable to all concerned. In determining this issue, the Con-
gress should consider where it would place authority, what would be the struc-
ture and responsibilities of a central authority, the unit structure for collective
bargaining, the exemption of appropriate matters such as merit principles and
management rights from the scope of bargaining, and the extent of congressional
oversight in the public interest.
5. H.R. 13. FIR. 9784, and Ha. 10700 take varying approaches to broaden the
matters and issues that are subject to negotiations between agency manage-
ment and labor organizations representing Federal employees.
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496
What approaches would you suggest to broaden the scope of bargaining or
labor organization participation to include regulation 3 at the agency and Civil
Service Commission levels, but not to include matters of law?
Resp ease
To broaden the matters not covered by law, we would have no objection to
the following approaches which were mentioned above in response to the third
question:
A requirement for employee organizations in the development of personnel
policies or regulations that affect employees in more than one agency. (This
currently is Civil Service Commission practice on matters within its authority.)
Assign to the central authority for the program oversight responsibility on
agency regulatory requirements that unnecessarily iestrict the scope of bar-
gaining.
Continuation of the present provisions for national consultation rights, as
reflected in H.R. 10700.
6. In lieu of the right to strike, there appears to be a general concensus that
a viable alternative is necessary, both to move negotiations forward on a timely
basis and to set-le negotiating impasses. An alternative suggested has been
compulsory arbitration with the arbitrator free to determine the settlement or
to select from the last position or offer of the par:ies without modification.
May we have your view on the above and additiona:ly any other alternatives
you may care to offer?
Response
While arbitration under some circumstances as one of the alternatives avail-
able has value, we do not favor compulsory arbitration as "the" means for
resolving interest disputes. Rather, we believe in the value of an "arsenal of
weapons" such as exists under Federal program. i.e., mediation, fact-finding
with recommends lions awl arbitration with no, advane certainty of the utiliza-
tion of these mechanisms in any given case. For mole effective involvement in
the resolution of negotiating impasses, a third party needs considerable flexi-
bility in dealing with a particular impassse matter. Such flexibility has been
used successfully by the Federal Service Impasses Panel under the Executive
order program. The Panel utilizes preliminary meeti igs with the parties, fact-
finding, use of staff, and recommendations te the parties for the resolution of
the impasse or the use of the Panel settle an in:passe by any appropriate
action necessary. These flexibilities are needed to deal in the manner most ap-
propriate to the circumstances and labor relations environment of an instant
ea se.
By way of contrast, if there is quick recourse to binding arbitration it can
stifle efforts of the parties to resolve their own differences and encourage "hold-
ing something back" for the arbitrator. Mayimum opportunity for voluntary
settlement of disputes after mediation or an intermediate step for fact-finding
with recommendations for settlement in advance of binding arbitration should
be present in any legislated procedures.
Experience at other levels of public employment with "last offer" arbitration
has been mixed, at best, On the other hand, a co:nbination of concentrated
mediation and arbitration, "raed-arb"--which essent ally amounts to mediated
fact-finding with awards tailored to what the parties are known to be able to
accept and live with?has been quite successful.
En addition, less arbitration set conditions of settlement which are unwork-
able there needs to be specific limits on authority and established criteria for
arbitration awards. For program integrity and effectiveness, a decision con-
cerning major policy issues by an impasses panel or arbitrator should be subject
to review by the central body for the program.
There could also well be provisions for checks and balances on actions and
decisions of the central body when major policy matters requiring the over-
sight of the Congress and the highest levels of the executive branch are con-
cerned. The extent of oversight, if any, would depend on the scope of bargain-
ing as finally enacted.
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AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
Washington, D.C., July 8, 1974.
ROY MESKER,
Stab' Director, Subcommittee on, Manpower and Civil Service, Committee on
Post Office and Civil Service, U.S. House of Representatives, Rayburn House
Office Building, -Washington, D.C.
DEAR MR. MESKER : Thank you for your letter of June 20, 1974 and the op-
portunity to furnish a written statement with regard to the exclusion of em-
ployees or agencies from Federal labor-management relations legislation. This
statement is attached (Attachment A).
I am also replying to the three specific questions included with your June 20
letter. (Attachments B, C, and D).
We look forward to working closely with you on the development of what we
are confident will be an outstanding piece of legislation.
Sincerely yours,
CLYDE M. WEBBER,
National President.
Attachments (4).
[Attachment A]
EXCLUSION OF EMPLOYEES OR AGENCIES
The Strange Stance of the Administration
In the "Statement of Clyde M. Webber, National President, American Federa-
tion of Government Employees, to the House Subcommittee on Manpower and
Civil Service, on H.R. 13, H.R. 10700 and H.R. 9784 (and others), bills on labor-
management relations in the Federal service," dated June 5, 1974, an attempt was
made to understand the underlying reason why this Administration is so anx-
ious to exclude so many entire Federal agencies and so many entire categories of
Federal personnel from collective bargaining.
Clearly, the reason is not "national security". Clearly, it is not "fiscal in-
tegrity". Clearly, it is not "conflict of interest". And, clearly, it is not "good
government".
Certainly some of these particular reasons can and do apply to a sizeable
number of the positions we are discussing, but these still make up only a minor-
ity of the vast number of exclusions the Administration seeks.
The AFGE believes in national security just as strongly as anyone in the
Federal government; and it believes ia fiscal integrity just as strongly as any-
one in government It also believes in the avoidance of conflicts-of-interest be-
tween the public duties and the private interests of public servants. Our members
are public servants, citizens, and taxpayers and insist on good government.
The Administration knows all this, and also knows that the AFGE is reason-
able and responsible on these points, whether legislative or administrative policy
is involved.
Then, what does account for the desire of the Administration to put whole,
tremendous sectors of civilian government out of the reach of democratic col-
lective bargaining on conditions of employment? And out of the reach of the
"bilateralism" they praise so highly?
The answer suggested in Mr. Webber's statement is simply that the Adminis-
tration still prefers unilateral "command" authority to statutory collective bar-
gaining procedures in making determinations on certain personnel policies and
practices?and simply cannot resist the temptation to expand and distort out
of all reason the valid concepts of "national security", "fiscal integrity", and
"conflicts of interest".
In short, the Administrtaion's vaunted support of "bilateralism" is a sham,
trotted out for speeches but put back in the barn when practical matters are in-
volved. The Administration wants simple "unilateralism" wherever it can get it.
And?perhaps even more important, every time Congress submits to this tech-
nique it too debates the essential concepts of "national security", "fiscal integ-
rity", and "conflicts-of-interest" so as to threaten the integrity, meaningfulnewat
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and usefulness o! these concepts in legitimate conte:rts. These important con-
cepts should not be used to serve opportunistio purposes. The Executive Branch
must act within a framework of law and ethical responsibility, of public pur-
pose and a sense of history. Congress should not, therefore, indulge the misuse
of "National security" to thwart collective bargaining.
Ttw Position of the American Federation of Government Employees
What is the AFGE position on this issue?
Mr. 'Webber's statement, referred to above, makes our position very clear:
"It is our firm view therefore that, in a civilian serv ce, there is no need what-
soever to exclude any agency as a whole from coverage of a labor-management
statute solely on the grounds that that agency is involved in national security
affairs. The defense departments certainly are not excluded?no other agency
should be, either.
"We hold the view that the only civilian employees who should be excluded are
those employees who hold positions where the public ir terest in national security
manifestly conflicts with, and supersedes, the othe:7 public interest that all
Federal employee a be accorded 'participation . . . through labor organizations of
their own choosing, in the formulation and implementation of personnel policies
and practices and matters affecting working conditions'. This 'participation' is
also a matter of 'public interest and should be safeguarded unless it clearly
conflicts with the public interest' in national security or fiscal integrity.
"And we think that it should not be the agency wl ich decides this issue for
itself but that the central Federal Labor Relations Authority should render the
decision on the basis of standards developed in an objective manner. The agencies
desiring to 'exclude' employees should petition the Authority; but the Authority
should have the final decision on the basis of clearly defined standards applicable
to all situations".
Tlw Proposal of the Amt rican Federation of Government Employees
The AFGE proposes that employees in the Panama Canal Zone be included in
the coverage of the Federal labor relations statute. We propose that personnel
in the Foreign Service cif the United States be included. We propose that "com-
petitive service" employees outside the Executive branch be included. We say
flatly that there is no valid reason for the exclusion of any of these citizens.
We propose that (1) uniformed military personnel and (2) non-U.S. citizen
personnel in foreign countries be excluded from coverage by a Federal labor-
ma nagement relations statute. (In the latter case, of course, non-U.S. citizen
employees of a 11.5. government agency in a foreign country have collective
bargaining rights in accordance with the laws of their own country and the
terms of the operative treaty or executive agreement between the host country
and the United States.)
We propose that employees of the Postal Service and of the TVA be excluded
t this time because they are now covered by adequate labor-management rela-
t i 011 s systems.
Finally, the AFGE proposes that waitutory authority be given to the pro-
posed Federal Labor Relations Authority to determine any additional exclusions
of the kind involved here, upon petition and adequate justification by an agency
head and after a finding by the Authority that the special national security,
fiscal integrity, or other public interests involved are substantial and both (1)
outweigh the countervailing public interest in democratic collective 'bargaining;
and (2) cannot be accomniodated within the flexible statutory labor-management
relations framework in the Federal service.
The AFGE will be happy to submit proposed statute ry language to effect these
proposals.
Attachment B
Question.--In lieu of the right to strike, there appears to be a general con-
sensus that a viable alternative is necessary, both to move negotiations forward
on a timely basis and to settle negotiating impasses. An alternative suggested
bas been compulsory arbitration with the arbitratn- free to determine the
settlement or to select from the position or offer of the parties without
modification. May we have your views on the above aud, additionally, any other
alternatives you may care to offer?
Answer.?The AFGE position is consistent with ?liat of the AFL?CIO, as
set forth on page 13 of Mr. Biemiller's statement before your subcommittee on
u ne 5, 1974.
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We recognize that the Congress may decide that an alternative to the right to
strike is needed in the public sector. Mr. Biemiller suggested: "Voluntary in-
clusion in agreements of commitments by the parties to submit issues . . . to
final and binding arbitration when the parties are not able to resolve them
through negotiation or collective bargaining" (including, of course, mediation
and conciliation services).
This is the general method proposed in H.R. 13.
We must also state that such arbitration is only part of the answer to the
inequalities and imbalances caused by the denial to employees of the Federal
government of the right to strike; another essential part of the answer is statu-
tory provision for union security through an agency shop or the payment of
representation fees by non-union members whose interests are represented by
the union.
Attachment C
Question..?Under H.R. 13, H.R. 9784, and H.R. 10700, employees of the
central bodies that would administer the law could be represented by labor
organizations, thereby becoming a party-at-interest in matters coming before
the central body as well as becoming involved in union-management dealings
with the central body. This would appear to contain the seeds of conflict of
interest.
A. Should these employees be removed from coverage under these bills? Why?
B. If not excluded, what alternatives would you suggest?
Answer.?A. No.
B. Those who see these apparent seeds of conflict of interest should describe
exactly what they think these seeds might grow into, i.e., what possible actual
conflicts of interest do they foresee? These "actualities", as distinct from
"phantoms", can then be either prohibited by the statute itself; or the Authority
can be authorized to prohibit them specifically by regulation, in accordance with
general conflict-of-interest requirements of the statute; or the central bodies
concerned and the unions representing their employees can agree to prohibit
such actual conflicts-of-interest in the collective bargaining agreements?depend-
ing upon when such actual conflicts are identified and what seems to be the most
sensible way of eliminating or minimizing them. (Where the public confidence
is involved, such prohibitions might extend beyond actual conflicts to those that
the general public would surely regard as "conflicts" even if they were not.)
In the conflict-of-interest area, expeirence has taught us that one must be
clear as to what one is talking about, because in one case the requirement of
public disclosure of the possible conflict is an appropriate safeguard, where in
another case, at the other extreme, the imposition of a prison sentence and a
heavy fine may ?be needed to protect the public interest against violations.
In any event, we believe that Federal management sees all too many vague,
hypothetical, tangential, and far-fetched reasons for excluding people, agencies,
"management rights", elements of personnel management, ad infinitum, from
collective bargaining. Upon careful examination, most of these reasons, when not
simply cynical or opportunistic, turn out to be either products of over-heated
imaginations or matters which can be negotiated by reasonable and intelligent
men.
It is time, we think, for Federal management to become less soft headed
and faint-hearted about matters which are really not all that horrifying. At
the other end of the scale, of course, we would like to see Federal managers
exchange dead cynicism for lively skepticism?and let us all move into the
environment of modern management.
[Attachment D]
Question.?Executive Order 11491 provides for an agency system of intra-
management communictaion and consultation with its supervisors or supervisory
associations. H.R. 13, H.R. 9784, and H.R. 10700 are silent on such relation-
ships. What are your views on the inclusion of this matter in labor-management
relations legislation? How should the subject be handled?
Answer.?Associations of supervisors should have no status under either an
Executive order or a public statute dealing with labor management relations.
The inclusion of such associations for such purpose contradicts the conflict-of-
interest basis for their original exclusion from recognition. This is not to say
that such associations cannot exist or that they may not have a role to play and
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500
some rights; it is merely to say that such status as thy may have should neither
be established nor confirmed by a public labor relations statute, i.e. a labor-
management relations statute should deal with relaiiions between management
and labor unions only.
In addition, it is important to point out that "supirvisors" should be defined
along the lines proposed in H.R. 13. This would not only be fairer to the indi-
vidual employees affected by the redefinition and more consistent with the real
world of white-collar employment in the Federal government, but it would
minimize the serious management problem to which your question is addressed.
That is, real management: personnel would be able to communicate among them-
selves through the many channels now available to managers; and manage-
ment would be able to communicate with non-mans gement personnel through
their employee organizations. The problem now, of course, is that Federal
management has no such effective ways to communicate with the tens of thou-
sands of rank-and-file employees whom they arbitrariii categorize as "managers"
("supervisors") simply to exclude them from collective bargaining and for no
her purpose.
[EXTRACT]
NATIONAL UNION OF COMPLIA NCE OFI ICERS, INDEPENDENT,
July 13, 1974.
HOD. DAVID N. IIENDEsson,
U.S. House of Represent atives,
Rayburn House Office Building,
Washington D.C.
DEAR CONGRESSMAN HENDERSON : The Executive Board of NUCO would like
to take this opportunity to submit a paper regarding the topic of Federal Labor
Manageemnt Relations legislation.
National Union of Compliance Officers lladeper dent represents the em-
ployees of Labor Management Services Administration, U.S. Dept. of Labor,
who are charged with the administration of EO 11411. Our independent orga-
nization was recognized in 1971 and has gained a variety of experiences from
EO 11491 both as a union and as individuals involved in administration of
Order. We have been asked by Mr. Paul Newton, Associate Staff Assistant to
respond to the question of whether employees of the Federal Labor Relations
Authority should be allowed to organize. Our response to this question is
emphatically in the affirmative, and we hope to be able, to offer some convincing
arguments to support our position. NUCO Ind. believes the stated purpose of
all labor relations laws in the U.S. is to encourage collective bargaining, to
reduce problem areas between labor and management, and to create a suitable
vehicle for grievance resolution via the labor organization.
In addition, policy has been stated, so as to leave the question of representation
to the employees. The question of unionism has been and should continue to be
one that is left as a matter of choice to the individual employee. With this as
our main position we can say that FLRA employees should have the right to
chose?just as any other federal employee?whether they are engaged, in police
work, diplomatic work or the administration of a labor management relations
law.
There has already been considerable experience garnered by the National Labor
Relations Board and LMSA, both of which have administrative responsibility for
a labor law and have labor unions representing their employees. It is our experi-
ence and we know that of the National Labor Relations Board Union, that one
can be organized yet remain impartial while investigating someone else's dispute.
We believe that it is illogical to assume that an individuals union membership
would necessarily prejudicially affect impartial performance of his duties.
On the contrary, if there is any correlation between an employees union mem-
bership and his administration of a labor relations law, we feel that the quality
of such administration is directly and positively enhanced by this experience of
the administrator. (Thus we argue that a person who has gained knowledge
through his own labor experience can best a dminisrer a labor relations law.)
We encourage the fullest participation by all federal employees in any federal
labor management relations law. If there is to be an exclusion of FLRA em-
ployees we hope that at the most, such employees would only be excluded from
Icing represented by unions representing other empl )yees. Departing now from
the question of unionization by the employees of the FLRA or FLRB, we would
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like to express our views on the EO 11491 as we know it and upon the bills being
considered by your committee.
NUCO Ind. supports the legislation introduced by Congressman Brasco and
Senator McGee. We feel that this is the legislation that would most nearly give
the federal employees parity with his counterpart in the private sector. At this
time, we also wish to point out that several states have stolen the march on the
federal government by passage of strong labor management statutes.
We do not wish to deteail our support of FIR 13, section by section instead
we will only point out areas where we disagree with the provisions of that bill:
Sec. 201 (b) : Should, we feel, allow the FLRA employees to organize but only
on a independent basis.
Sec. 201 (b) : May be read in its present form to include supervisors and man-
agers under the Act. We do not feel that a labor-relations law should cover super-
visors and managers.
Sec. 201 (j) : We do not agree with such a mechanistic approach to the defini-
tion of supervisor?instead we feel that the LMRA of 1947 should be tracked in
this area.
Sec. 201: Does not speak to the problem of guards and a possible conflict of
interest. We recommend guards form in their own organizations.
Sec. 1401: We feel that if federal labor organizations are to have the advan-
tageS confered by a labor law that they must also meet the standards of Landrum
Griffin as do unions in the private sector.
We wish to thank you for giving us the opportunity to address ourselves to this
vital area of concern to all federal employees. If you desire further amplification
or discussion concerning our position in this matter, please contact me at (502)
582-5160 or (502) .636-1266.
Sincerely,
RICHARD J. Ross, President.
PORTIONS OF A RESEARCH PAPER PREPARED FOR THE NATIONAL RIGHT TO WORK
COMMITTEE BY THE OPINION RESEARCH CORP., REGARDING THE PUBLIC ATTITUDES
TOWARD RIGHT TO WORK LAWS-APRIL 1974
FOREWORD
This report presents the findings of a personal interview research survey con-
ducted among 2,173 men and women, 18 years of age or over, living in private
households in the continental United States.
Interviewing for this Caravan survey was completed during the period March
22 through April 10, 1974, by members of the Opinion Research Corporation
national interviewing staff. All interviews were conducted in the homes of
respondents.
The most advanced probability sampling techniques were used in the design
and execution of the sample plan; therefore, the results may be projected to the
total U.S. population of men and women 18 years of age or over.
Only one interview was taken per household, regardless of the number of peo-
ple 18 years of age or over in the household. Weights were introduced into the
tabulations to ensure proper representation in the sample.
The Technical Appendix at the end of the report describes in detail the sam-
pling methods and other procedures employed in the survey. Also described are
characteristics of the sample and sampling tolerances of survey results.
As required by the Code of Ethics of the American Association for Public
Opinion Research, we will maintain the anonymity of our respondents. No infor-
mation can be released that in any way will reveal the identity of a respondent.
Also, our authorization is required for any publication of the research findings
or their implications.
Caravan Surveys, a division of Opinion Research Corporation, is a syndicated,
share-cost data collection vehicle. Caravan reports, such as this one, are pre-
sented in tabular form. Interpretive analysis is provided by Caravan only if
specifically contracted for by the client.
INTRODUCTION TO DETAILED FINDINGS
The tables read across. Except for the first two columns, all figures in the body
of the tables are percentages. The unweighted number of interviews appears in
the column headed "ENWTD" and the weighted numbers?tabulation units re-
sulting from the weighting process?appear in the column headed "WTD."
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Some of the percentage distributions are based on small numbers of inter-
views. The reader is urged to interpret them with caution.
The weighted numbers for sex and city size may not add to the total because
i hey are subject, to the limitation of the computer to round weighted numbers.
in all demographic groups--other than sex, city size Lad region?the unweighted
numbers may not add to the total number or resporLdents because they are de-
pendent upon a respondent's answer and, therefore, do not include the "Not
iteporteds."
Technical note
The computer program provides for forcing percentage distributions to 100%
only under certain circumstances: When the questio 1 is a single response ques-
tion and the question is asked of the total sample.
In all other cases, the ,2ornputed percentage distributions are not forced to add
I o 100%, or the percent of respondents who were asked the question. (For exam-
ple, see table for Question L5.)
The following definitions are provided for some of the sidebreaks by which
the data are analyzed. Other sidebreaks are self-explanatory.
Occupation refers to the occupation of the chief wage earner in the household.
lay size:
T. Non-Metro?
Rural: under 2,500 population, not in a mettopolita:i area.
Urban: places with 2,500-50,000 population, not in a metropolitan area.
II. Metro-
50,00O-999,99: places in a standard metropolitan statistical area of 50,000-
999,999 population.
1,000,0000 or over: places in a standard met ropolita n statistical area of 1,000.-
000 or more population.
Population figures are from the 1970 Bureau of the Census. Note that for all
places in a metropolitan area the criterion of size is the population of the
Dietropolitan area.
Georgraphic regions include:
Northeast: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island,
Connecticut, New York. New Jersey, Pennsylvania.
North Central : Ohio, Indiana, Illinois, Michigan, Wisconsin, Minnesota, Iowa,
Missouri, North *Dakota, South Dakota, Nebraska, Kansas.
South: Delaware, Maryland, District of Columbia, Virginia, West Virginia,
North Carolina, South Carolina, Georgia. Florida, :Kentucky, Tennessee, Ala-
bama, Mississippi, Arkansas, Louisiana, Oklahoma, Texas.
West: Montana, Idaho, Wyoming,. Colorado, New Mexico, Arizona, Utah,
Nevada, Washington, Oregon, California.
Income is total family income in 1973, before taxes.
Right to Work Public includes respondents who say they have heard of Right
to Work laws.
Thought Leader Scale
The thought leader scale defines a respondent in terms of his intake and out-
put of information. A respondent's initiative is id,mtified through scoring a
special question series (see Questions Z1 through Z.3, Interviewing Materials)
that have to do with free-time activities, subjects talked about, and participa-
tion in organizations. The scoring method uses specially developed weights, based
on Opinion Research Corporation research.
"Thought Leaders" (those respondents who score highest on the thought leader
scale) are much more likely than the public in general to be involved in such
free-time activities as rending newspapers, books, magazines and journals, or to
discuss subjects of worldwide scope. Also, more of the "Thought Leaders" are
active in various organizational activities than is the case among the public as a
whole.
As such, "Thought Leaders" can be viewed as an early warning device: they
are faster to change than are other people, they are more sensitive than others
to the effects of public events, and their attitudes generally reflect what is begin-
ning to develop among the public at large.
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TECHNICAL APPENDIX
Opinion, Research, Corporation's Master Sample
Opinion Research Corporation's master sample is based on a new probability
sample design, prepared in consultation with J. .Stevens Stock of Marketmath,
Inc., and modified and updated by ORC.
The essential characteristic of probability sampling is that, for each person
in the population under study, the probability that he will be included in the
sample can be specified. This means that the degree or reliability of any finding
from a study based on a probability sample can be estimated mathematically.
This new sample design is a major improvement over standard area probability
designs now in common use. These areal methods depend upon the use of maps
showing geographic segments for which rough population estimates can he made.
These maps are often out of date and otherwise inaccurate, and population
estimates are frequently unreliable for small geographic areas, particularly
as time passes from one census to 'another. The new sampling method eliminates
these important problems of traditional probability sampling by using current
address directories as the basis for a system of defining interviewing starting
points?a system which, of course, includes in the sample households not in the
directory as well. The new method is both statistically and administratively as
efficient as possible, providing the most reliable data for any given expenditure.
The ORC master sample consists of 360 counties in the contiguous United
States. This master sample of 360 counties comprises, in fact, six subsamples of
60 counties each. Each of these subsamples is itself a national probability sample.
Depending on the needs of any particular study, the master sample can be used
as a whole, or any combination of the six subsamples can be used.
To construct the sample, the counties within each state were arranged in
order of descending population size; and all the states were grouped in geo-
graphical order from Maine to California. Sixty counties were then chosen by
statistical procedures that insure representative geographical distribution. This
process was repeated to obtain the six subsamples that make up the master
sample of 360 counties.
The next step in the sampling design was to select an area from each of the
360 counties in the master sample. Again, a probability sampling method was
used to select, within each county, a minor civil division (MCD) as defined
by the Bureau of the Census. A minor civil division may be a town, township,
city, or part of a city. The probability that any particular minor civil division
was selected in a county was proportional to the population of that minor civil
division. Thus, the larger a minor 'civil division, the greater the likelihood that
it be selected. The minor civil division, then, is the primary sampling unit.
Once the MCD has been selected, the next step is the determination of those
households where interviewing is to take place. Under the ORC National Proba-
bility Sample procedure, any current listing of household locations, even if in-
complete, constitutes the first stage of the sampling plan. From this list of house-
holds one or more addresses are chosen at random. Each of these addresses de-
fines the place that the interviewer begins following the interviewing site selec-
tion process. The interviews in a cluster or "neighborhood" do not begin at the
household selected from the list, but at the adjacent household, which may or may
? not be on the original list. Thus, the list does not define the universe of house-
holds in an MCD, but ratheer the list of households adjacent to possible starting
points. Depending on the number of households contacted from each starting
point, the number of starting points chosen, and the criteria for being included
on the original list, every household in the MCD has a known, or knowable,
probability of being included in the ORC sample.
Because they are the most up-to-date and the most complete listing of addresses
available, telephone books are the sources of locations next to interviewing start-
ing points when general public surveys are being done.
The specific persons to be interviewed are selected as follows:
(1) A certain number of starting points are selected from the telephone books
covering the minor civil divisions, or communities, selected. The starting points
are chosen in a manner that each household, within the minor civil division,
listed in the phone book has an equal chance of being selected.
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(2) Each starting point selected determines a group of households, called
a "cluster," in which interviews are conducted. This cluster of households in-
eludes both with and wif hoist listed telephones. The first household in which an
interview is conducted is the household immediately to the left of the household
selected from the telephone book as the starting point. Thus, the first household
can be one either with or without a telephone.
(3) The interviewer conducts an interview in the first household and then
works through the group of households following a prescribed rule. The inter-
viewer continues working through the cluster until interviews have been com-
pleted in a preassigned number of households.
(4) A respondent-selection procedure determines for the interviewer which
person to interview in any gi.ven household. Every eligible respondent in. the house-
hold has the same chance to be interviewed as any otaer eligible respondent. The
interviewer is not allowed to make any substitutions.
Once all interviews have been completed, weighting procedures are employed
to insure that the sample properly represents the population from which it was
drawn.
This sampling procedure is rigorous in concept and practice and allows for the
exact determination of the statistical precision of 'ary finding. -
anzple Characteristics, April 1974 Caravan
The data in the table below compare the characteriE ties of the weighted Cara-
van sample with those of the total population, 18 years of age or. over. The table
shows that the distribution of the total sample pal-1110.s that of the population
under study.
[In percent!
Years of age:
Total
Population I
Caravan
sample
Mon
Women
Papulation 1
Caravan
sample
Population I
Caravan
sample
18 to 29
29
28
30
29
28
28
30 to 39
17
17
17
16
17
17
40 to 49
16
16
17
16
16
16
50 to 59
16
16
16
16
16
15
60 or over
22
23
20
23
23
24
Race:
White
89
88
89
87
89
88
Nonwhite
11
12
11
13
11
12
City size: 2
Nonmetro
27
27
Metro
73
73
Geographic region:
Northeast
24
24
24
25
24
24
North-central
27
27
28
27
27
28
South
31
31
30
31
31
30
West
18
18
18
17
18
18
I Source: Latest data from the U.S. Bureau of the Census, regular and interim reports.
2 Data are not currentl} available from the U.S. Bureau of the Census for city :ize by sex.
Reliability of Survey Percentages
Results of any sample are subject to sampling variation. The magnitude
of the Variation is measurable and is affected by the number of interviews and
the level of the percentages expressing the results.
The table below shows the possible sample variation that applies to percentage
results reported from the Opinion Research Corporation sample. The chances
are 95 in 100 the:: a Caravan survey result does not Vf ry, plus or minus, by more
than the indicated number of percentage points from the result that would be
obtained if interviews had been conducted with all persons in the universe
represented by the sample.
Weights were introduced into the tabulations to ensure proper representation
of the interviews in the sample.
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APPROXIMATE SAMPLING TOLERANCES APPLICABLE TO PERCENTAGES AT OR NEAR THESE LEVELS
[In percent'
Size of sample on which caravan survey result 10 percent or 30 percent or
is based (number of interviews) 90 percent 70 percent 50 percent
2,000
1,000
500
250
100
2
2
3
5
7
3
4
5
7
11
3
4
5
8
12
Sampling Tolerances When Comparing Two Samples
Tolerances are also involved in the comparison of results from different parts of
any one Opinion Research Corporation sample and in the comparison of results
between two different ORC samples. A difference, in other words, must be of at
least a certain size to be considered statistically significant. The table below is a
guide to the sampling tolerances applicable to such comparisons.
Differences required for significance at or flea
these percentage levels
Size of samples compared
10 or 90
percent
30 or 70
percent
50
percent
2,000 and 2,000
2,000 and 1,000
1,000 and 1,000
1,000 and 500
500 and 500
500 and 200
200 and 200
200 and 100
100 and 100
2
3
3
4
5
6
7
9
10
4
4
5
6
7
9
11
14
16
4
5
6
7
8
10
12
15
17
I Based on 95 chances in 100.
Quality Control Measures
Quality control measures are applied in every phase of the Caravan survey.
Specialists in many fields are available for consultation with the Caravan
survey director in the development of the questionnaire.
Interviewers are hired and trained, in person, to staff the probability sample,
and their work is regularly checked for accuracy and validity.
Questionnaires are prepared for data processing by experienced coders, under
the supervision of the survey director.
The processing of data is subject to rigorous internal checks designed to
detect both machine and human error.
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0(56
NTERVIEWING MATERIALS
ASK EVERYONE [ SECTION L
Now to change tha subject --
SHOW EXHIBIT L-1
Cl. Which of these arrangements do you favor for worker; in industry?
1 A MAN CAN HOLD A JOB WHETHER OR NO HE BELONGS TO A UNION
2 A MAN CAN GET A JOB IF HE DOESN'T ALREADY BELONG, BUT HAS TO
JOIN AFTER HE IS HIRED
3 A MAN CAN GET A JOB ONLY IF HE ALREADY BELONGS TO A UNION
4 NO OPINION
L2. Do you think there is or is not too much power
concentrated in the hands of labor leaders of the
big unions in this country?
L3. In some places in order to hold a job you have to
belong to the union and pay dues. Do you tusk
union offic-als should be permitted to use this
dues money to campaign for politice candidates,
or should this be forbidden?
L4. Have you heard of state laws ca/led "Right to
Work" laws?
IF "HAVE HEARD OF" ON q.
LS. Are you in favor of Right toWork laws
in states like this one, or are you
opposed to Right to Work laws?
ASK EVERYONE
L6. Some states have passed Right to Work laws which
provide that a worker cannot be discharged from
his job for either joining or not joining a union.
If you were asked to vote on such a law, woJld
you vote for or against it?
1 YES, THERE IS
2 NO, IS NOT
3 NO OPINION
I SHOULD BE PERMITTED
2 SHOULD BE FORBIDDEN
3 NO OPINION
1 HAVE HEARD OF
2 HAVE NOT HEARD OF
3 DON'T KNOW
1 IN FAVOR OF
2 OPPOSED TO
3 NO OPINION
1 WOULD VOTE FOR
2 WOULD VOTE AGAINST
3 NO OPINION
L7. Whether you are personally for Right. to Work laws I SHOULD ALLOW
or not, do you think the federal government should 2 SHOULD NOT ALLOW
or should nct allow eacn state to decide whether it 3 NO OPINION
wants to pass such a law?
L3. The Right to Work laws we have been talking about are permitted under Section 14(b)
of the Taft-Hartley Act.
SHOW RESPOJEENT EXHIBIT L-8
if Congress keeps Section 14(b) of the Taft-Hartley
Act, it means that states can continue to have
Right to Work laws if they want. If Congress repeals
Section 14(b) of the [aft-Hartley Act, it means that
states cannot have Right to Work laws. Which do you
think Congress should do?
I KEEP SECTION 14(b)
2 REPEAL SECTION 14(b)
3 NO OPINION
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SECTION Z
(DRAW A CIRCLE AROUND THE NUMBERS TO SHOW YOUR ANSWERS.)
Zl. Please circle the numbers of all of the following that you do quite a bit of in your
free time.
1 TRAVEL 11 WATCH TELEVISION
2 VISIT OR ENTERTAIN FRIENDS OR 12 WORK IN THE YARD OR GARDEN
RELATIVES 13 GO TO THE MOVIES
3 READ DAILY NEWSPAPERS 14 LISTEN TO MUSIC
4 PARTICIPATE IN SPORTS 15 ATTEND PLAYS, OPERA OR BALLET
5 WATCH SPORTS EVENTS 16 READ BOOKS
6 READ WEEKLY NEWS MAGAZINES 17 OTHERS
7 READ MAGAZINES LIKE READER'S DIGEST,
McCALL'S, SEVENTEEN, ETC.
8 HOBBIES LIKE WOODWORKING, (Explain)
PHOTOGRAPHY, ETC.
9 LISTEN TO THE RADIO
10 READ BUSINESS OR PROFESSIONAL JOURNALS
Z2. When you get together with other people, which several of the following things are
you likely to talk about?
1 YOUR WORK
2 RELIGION
3 POLITICAL AFFAIRS
4 WORLD AFFAIRS
5 YOUR FAMILY
6 BUSINESS CONDITIONS
7 CONSUMER AFFAIRS/PROBLEMS
8 ENVIRONMENT, ECOLOGY, POLLUTION
9 NATIONAL PROBLEMS
10 SPORTS
11 MUSIC, ART, ETC.
12 COMMUNITY PROBLEMS
13 GOVERNMENT POLICIES
14 LABOR UNION MATTERS
15 OTHERS
(Explain)
Z3. Are you very active in any of the following types of organizations? Circle all those
in which you are very active.
1 PROFESSIONAL ASSOCIATION 11 ENVIRONMENT-ORIENTED GROUP OR
2 CHURCH OR RELIGIOUS GROUP OR CLUB ORGANIZATION
3 POLITICAL ORGANIZATION 12 CONSUMER AFFAIRS/PROBLEMS GROUP
4 SERVICE CLUB SUCH AS ROTARY, LIONS,. 13 OTHERS
JUNIOR LEAGUE
5 SPORTS CLUB LIKE A COUNTRY CLUB, GOLF
CLUB, SWIMMING CLUB, ETC. (Explain)
6 LABOR UNION OR ORGANIZATION 14 NONE OF THESE
7 FRATERNAL OR VETERAN'S ORGANIZATION
SUCH AS ELKS, LEGION, ETC.
8 CIVIC OR LOCAL ASSOCIATION SUCH AS
SCHOOL BOARD, COMMUNITY ASSOCIATION,
ETC,
9 DRAMA, ARTS, OR CULTURAL GROUP, ETC.
10 BUSINESS ASSOCIATION
THANK YOU
PLEASE RETURN QUESTIONNAIRE TO INTERVIEWER
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508
UNITED STATES CIVIL SERVICE COMMISSION
WASHINGTON, WI 20415
May 17, 1974
Honorable Thaddeus J. Dulski
Chairman, Committee on Post Office
and Civil Service
U.S. House of Representatives
207 Cannon House Office Building
Washington, D.C. 20515
Dear Mr. Chairman:
This is in reply to your request for the Commissial's views on H.R.
10700, a bill "To provide for improved labor-managenent relations in
the Federal service, and for other purposes."
As we have previously reported, we do not believe There is a demonstrated
need for a legislated system for labor-management relations at this time.
While we do not object in principle to a statutory program, we prefer
and support the present laber-managenent system ba3ed upon Executive
Order. This system has proven to be sound, viable, and amenable to
necessary change based on pertinent experience.
In proposing a statutory base for Federal labor.emalagement relations,
H.R. 10700 would replace the existing system originally provided under
Executive Order 10988 in 1962 and updated by Executive Order 1149/ in
1969 with Amendments in 1971. As discussed in our letter of May 23,1973,
commenting on H.R. 13, the present labor-management relations systemhas
been sound and of benefit to both the efficient administration of govern-
ment operations and the well-being of Federal employees. Third-party
machinery for the resolution of union-management disputes has facilitated
the orderly and constructive relationships between the parties. And
through consultation and negotiation processes and agreements, employees
have the opportunity to participate in the formulation and implementation
of personnel policies and practices affecting conditions of their employ-
ment. On the whole, this system has produced increasingly effective
union-management understandings that have accommodated employee needs and
improved the operation of Federal agencies.
An important and major strength of the present system is that it is based
upon administrative direction by Executive order. This has permitted the
making of necessary, periodic adjustments to problems evidenced through
operating experience. Further changes are expected as a result of the
Federal Labor Relations Council's current general review of the program.
Unions, agencies and other interested parties have provided position
papers and testimony on various identified program issues.
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In our review, we noted that H.R. 10700 incorporates many of the ap-
proaches and mechanisms already embodied in Executive Order 11491. Thus,
it presents a substantially more reasonable approach and balance to the
issue of labor relations legislation, and particularly to the rights and
interests of the general public, employees, unions and management than
other bills introduced in the 93rd Congress. Nevertheless, it contains
a number of provisions not consistent with the existing, orderly, success-
ful system.
The provision in the bill, to which we object most strentously, and which
we consider poses the most serious problems both in structuring a balanced,
effective labor-management relations program and in maintaining effective
and responsible operations of Federal agencies is section 7107(g). This
establishes a "Federal Labor Relations Board" to make determinations on
personnel management policies and regulations that relate to employees in
more than one agency. This provision alone would gravely weaken--if not
effectively usurp--essential authorities historically delegated by the
Congress to Federal agencies and officials for fulfilling their responsi-
bilities. Empowering the Board, as proposed and structured, to determine
Government-wide policies that affect Federal employees would seriously
cripple management's capability to manage. The decisions would not even
be made bilaterally by management representatives authorized to, and
accountable for, making them and employee representatives specifically
elected to participate in their determination. Instead, these decisions
would be made by majority vote of the eleven members of the Board, with
the Chairman of the Board resolving ties. This would mean that one per-
son--answerable to himself alone--would have the power to determine a
vast range of Government-wide policy without responsibility to any author-
ity including the President, the Congress, the Civil Service Commission,
or the heads of departments and agencies. Such a concept plainly is not
in the public interest.
Moreover, the Board arrangement would be impracticable to administer. The
wide range and volume of subjects and material that the various agencies
of the Government would be required to submit for policy determination,
the very real prospect of extended quasi-negotiations on many issues, the
provision for introduction of issues by labor organizations and the need
to operate within the specified timeframe in section 7107(g)(6) for the
consideration of proposals, all would contribute to nearly continuous and
piecemeal bargaining, periodically interrupted by time constraints un-
related to priority issues, workload or status of negotiations. This
process and environment would seriously jeopardize deliberation, decision
making, and implementation of Government-wide policies. This proposal
would permanently damage the capability of the Civil Service Commission
to function and to manage as the central personnel agency of the Govern-
ment, and to administer the inherent Civil Service merit system principles.
More important--though just as inescapable--it would disrupt, frustrate
and.perhaps on some occagions even paralyze the functioning of Government
generally, since vital operating regulations of virtually all agencies
would be affected directly.
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In addition, there are other significant issues and problems stemming
from this provision of the bill. For example, wouLd the Board have
authority to determine personnel policies and pracl:ices for all employ-
ees, including (1) non-represented 'employees and (2) emplbyees excluded
from coverage? If so, wnat would be the justifical:ion for this?
All of this is not to say that employees, through 1:heir representatives,
should not have input in policies of Government-wide application. To the
contrary, the Commission long has acknowledged this need and regularly
and extensively has, on its own initiative, consuled employee organiza-
tions in the development of Government-wide personnel policies.
The Commission also deals with employees through formalized, structured
arrangements for labor organization input in the areas of pay and fringe
benefits. This includes the Prevailing Rate Advisory Committee under the
Federal Wage System, the Federal Employees Pay Council, and the Health
Benefits and Life Insurance Advisory Committees.
As with the provision for dealing with matters of (kivernment-wide appli-
cation, we also are opposed to the mechanisms in section 7107(e)(3) and
(4) for negotiations on agency regulations issued ey authorities above
the level of recognition. Although it is desirable to bring more closely
together the level of recognition and the locus of agency authority so as
to make possible more meaningful negotiations, the arrangements proposed
for dealing with this matter are not satisfactory. First, they would re-
sult in bargaining rights where there is no appropriate bargaining unit and
the employees affected have had no opportunity to express their views. In
addition, as we understand the concepts involved, it would be extremely
impracticable for agencies to implement and administer the provisions.
Piecemeal and continuous negotiations could result. This would be unwork-
able in terms of the capability of management to effectuate central poli-
cies where there is a need for uniformity throughout the agency or in major
organizational segments. Furthermore, it appears that to administer the
provisions of the section in regards to a given personnel issue, an agency
would be required to complete a series of calculations and proportional
determinations to conclude how many employees would be affected, respec-
tive representation by unions, and if a maj'ority is involved. In a
given instance it appears that an agency would be required to conduct
negotiations or consultation with different labor organizations on the
same issues. This would be chaotic and impracticable from the vantage
points of meaningful and constructive negotiations, labor-management
stability in general and sound personnel management practices needed for
mission accomplishment in the public service.
We also note that certain other provisions of H.R. 10700 serve to unnec-
essarily constrain the scope of bargaining: Section 7108(a) mandates
that agencies withhold dues allotments at no cost to the labor organiza-
tion or employee involved; section 7113(a) requircs that employees repre-
senting labor organizations in negotiations be on official time with little
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apparent limitation; section 7113(c) provides that the Federal Labor
Relations Authority shall determine if official time will be granted
to employees participating on behalf of a labor organization in any
proceedings before, the Authority, section 7112(a)(4) requires that ar-
bitrators be selected from lists furnished by the Federal Mediation and
Conciliation Service; and sections 7112(a)(3) and 7112(b) re-luire that
negotiated grievance procedures provide for final and binding arbitra-
tion. As a practical matter, such issues should be left to the parties
for bargaining arrangements that best accommodate to their particular
situations.
Problems also are presented by the establishment of a Federal Labor Rela-
tions Authority "to administer the functions proposed by H.R. 10700 (sec-
tions 7104 and 7105)". Obviously, if a legislated program is enacted,
there will be a need for a central authority. However, its makeup, struc-
ture, responsibilities and authorities would have to be considered care-
fully. Furthermore, to abandon the substantial body of precedents and
procedures that have evolved under E.O. 11491 would be unreasonable and
disruptive. Equally important is the range of authority granted for
policy setting, as it affects an agency head's responsibility to manage
in the accomplishment of assigned mission. Concern for the public inter-
est should not be divorced from those officials held accountable by the
electorate.
To assist the parties in settling impasses, section 7111(b) provides that
at the request of either party, the Authority is required to establish a
three-person panel. In our opinion, this mandating of a panel would serve
to limit the flexibility needed in consideration of a particular impasse
matter. This flexibility, which has proved successful under the Executive
order program, includes preliminary meetings with the parties, factfinding,
use of staff, and recommendations to the parties for the resolution of the
impasse or the use of a panel to settle the impasse by appropriate action.
Such flexibilities are needed to deal in the manner most appropriate to
the circumstances and labor relations environment of an instant case.
In addition, as we interpret section 7111(d) the action of an ad hoc panel
is final and not subject to further review. Except for negotiability ques-
tions it appears that the Authority could not review a panel's decision on
an impasse concerning major policy issues. We believe that the absence in
the bill of a provision for such review by the central body responsible
for administration of the program could adversely affect the integrity and
effectiveness of the program. In addition, the bill lacks provisions for
checks and balances on actions and decisions of the Authority when major
policy matters requiring the oversight of the Congress and the highest
levels of the executive branch are concerned.
The extent of necessary oversight, if any, would depend on the scope of
bargaining as finally enacted. It is precisely because of the member-
ship on the Federal Labor Relations Council, as constituted under Executive
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Order 11491--that is, the Chairman of the Civil Service Commission, the
Secretary of Labor and the Director of the Office! of Management and Bud-
get--that such unlimited authority is granted under the order's dispute-
resolution machinery to take whatever actions arc necessary to achieve
resolution.
Regarding other provisions of the bill, there arc a number that are sub-
stantially similar to those in the present progrem based on Executive
order, and thus do not require elaboration in this report. For example:
the right of employees to join or not join a :Latour organization; to or-
ganize and be represented through collective bargaining; to assist and
represent labor organizations, with exceptions arplying to supervisory
and managerial employees as well as other employees where there would be
conflict or apparent conflict of interest; while reserving to Federal
agencies the authority that management must retain to effectively.admin-
ister Federal programs and services and accomplish mission in the public
interest. Such provisions form the very foundations of E.O. 11491 and
of predecessor orders, and are essential in the context of the unique
characteristics of the Federal service.
In sum, while there are a number of similarities in some provisions of
the billto the existing program, the bill contains features which are,
in our view, unsatisfactory and unacceptable, and not consistent with a
sound and viable program of labor-management relations in the Federal
service. In addition, there has been no demonstrated need for the sub-
stitution of a statutory base for the existing program.
The Office of Management and Budget advises that there is no objection
to the submission of this report and that enactmeat of H.R. 10700. would
not be in accord with the program of the Presiden:.
By direction of the Commission:
.1;jeerely our3,
(21JL
1A1
Robert L. Hampozon
Chairman
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
MP'( 2 1 1?74
Honorable Thaddeus J. Dulski
Chairman, Committee on Post
Office and Civil Service
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairmans
This is in response to the Committee's request for the views
of this Office on H.R. 10700, "To provide for improved labor-
management relations in the Federal Service, and for other
purposes."
H.R. 10700 would establish by statute a system, administered
by a three-member Federal Labor Relations Authority, to
govern the conduct of Federal sector labor-management relations.
The bill 'would promulgate a statement of congressional policy
with respect to employee rights and the responsibilities of
the Federal Government as employer. It would create a Federal
Labor Relations Board to review all agency personnel policy
regulations which have Government-wide application. It would
provide special third-party machinery for resolving disputes
arising from the collective bargaining process. H.R. 10700
would entirely displace the existing system of Federal labor-
management relations.
As indicated in our earlier report on H.R. 13, we are opposed
to a statutory labor-management system for the Federal service
as inappropriate because it in premature.
We endorse the right of Federal employees to participate in
the formulation of personnel policies and procedures Affecting
the conditions of their work, consistent with the public in-
terest. We, nonetheless, continue in the strong belief that
a statutory system would be unresponsive to the present environ-
ment of development and expansion which characterises collective
bargaining in the Federal system.
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514
It is clear that unions have benefited under the current
Executive order system which governs collective bargaining
in the Federal government. In part, this atoms from the
government's strict adherence to self-impoeed neutrality as
an employer in elections and organizing activities. Such
management neetralite creates an inherent imbalance in the
Federal system which in not imposed in private sector labor
relations. In addition, we believe that the system has
worked well because of its flexibility -- the ease with which
it can respond to the dynamics of Federal Hector union-
management relations. This is illustrated by the history of
the program and the growth of union participation.
The initial policy, formalized by Executive Order NO. 10988
of January 19(2, assigned ultimate responsibility to the heads
of agencies. Later, with experience, both management and the
unions recognized a need to revise governing policies. In
October 1969, accordingly, Executive Order No. 11491 moved the
program closer to the prevailing private sector concept of
labor-management relations by establishing the Federal Labor
Relations Council to provide a third-party mechanism for program
administration and policy guidance. The new order reflected
the unique character of public service by establishing
procedure for resolving bargaining disputer, in lieu of strikes
by Federal employees. It also recognised the paramount obliga-
tion of the government, as employer, to Serve the public interest.
Thus, it reserved for management those rigkts which are essential
to carrying out the missions of Federal agencies.
The characteristic responsiveness of the present system is
demonstrated by the Council's ongoing review and evaluation of
the program, which has been under way for several months. The
periodic review of the program is mandated by the order. An
earlier review produced changes in the program in 1971, when
the order was amended to expand the permissible area of nego-
tiation and to refine the applicability .of grievance procedures.
The current effort is certain to result in additional improve-
ments which will be incorporated in the Executive order charter.
This continual process of evaluation and modification has
helped Federal labor-management relations remain responsive to
changing conditions. The Federal labor relations program is
making the transition from growth to stability, but the evolution
is not yet complete. Notwithstanding the enormous increase in
employee representation -- from 180,000 in 1963 to more than
1,086,300 by 1973 -- Federal labor relations are still in the
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formative stage. Stabilised patterns of labor-management
relationships have not yet developed in the Federal sector
to the degree necessary for either managers or employees to
operate effectively within the rigid framework of a
statutory system, and certainly not under a system as pro-
posed in H.R. 10700.
Apart from this fundamental concern, H.R. 10700 contains some
extremely undesirable features which have been noted in
reports of the Civil Service Commission, the Department of
Defense, and the Department of the Treasury, with which this
Office concurs.
While H.R. 10700 is less objectionable in some respects than
other proposals pending in your Committee (and indeed some
of its provisions duplicate those under Executive Order
No. 11491), the bill nonetheless includes certain features
which are not acceptable elements of a Federal labor manage-
ment program.
We are strongly opposed to the provisions of H.R. 10700 which
would impose unwarranted restrictions on agency operations by
establishing a Federal Labor Relations Authority and a Federal
Labor Relations Board. The proposed Authority would perform
functions now carried out by the Federal Labor Relations
Council, the Assistant Secretary of Labor for Labor-Management
Relations, and the Federal Service Impasses Panel. It would
supplant these organisations, which are designed to reflect
the government's paramount role in protecting the public in-
terest in labor management relations. This would be highly
undesirable. The proposed Authority would disrupt the present
system at just the stage where it has evolved into useful
third-party machinery.
Even more objectionable is the proposed Board, which would be
required to approve, modify or reject those agencylations,
involving negotiable matters, which have Government=
application. The Board could effectively nullify the authority
of such agencies as the Civil Service Commission, Office of
Management and Budget, General Services Administration, Depart-
ment of Labor, and others, to determine Government-wide matters
for which they aro responsible under law. The Board's function
would directly undermine the Civil Service Commission's role
as the government's central personnel agency and guardian of
the merit system. Moreover, the Board would grant unions quasi-
bargaining rights on Government-wide policies. The result
would be that unions could seriously obstruct the development
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of eovernment policies by protracted dieenasion which would
assume the character of open-end negotiations.
Thus, the Board, with no responsibility for operation or
implementation of government programs, would have sweeping
authority to make final decisions which would determine the
agency policies to be issued, revised or revoked. We believe
such a provieion is es unwise ea it is irresponeible. It
imposes unjustified and unworkable restrictions on the basic
managerial authority of Federal agencies.
Accordingly for the reasons stated, we ,strongly oppose these
provisions of the bill. Rnactment of RA. 10700 would not be
in accord with the program of the President.
Sincerely,
(sigata)WF.tr N Rommel
Wilfred H. Rommel
Assistant Director for
Legislative Reference
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COMPTROLLERGENERALOPTHEUNI1MDSTATES
WASHINGTON. D.C. 2054S
B-40342 February 4, 1974
The Honorable Thaddeus J. Dulski, Chairman
Committee on Post Office and Civil Service
House of Representatives
Dear Mr. Chairman:
Your letter of October 5, 1973, requested our report on H.R. 10700,
93d Congress, a bill to provide improved labor-management relations in
the Federal service.
The bill would establish a statutory base for labor-management
relations affecting employees of the executive branch of the Government.
Currently, labor-management relations in the Federal Government is the
subject of little substantive legislation although the area has been
covered by a series of Executive orders. Executive Order No. 11491,
October 29, 1969, as amended by Executive Order No. 11616, August 26,
1971, is now in force with respect to this subject.
Whether it is desirable at this time to establish a statutory basis
for labor-management relations in the Federal Government is a matter
primarily for consideration of the Congress. However, as we pointed
out in our report on H.R. 13, 93d Congress, B-40342, June 22, 1973,
we believe that a thorough review of the desirability of congressional
action is appropriate in light of the growth of Federal employee unions,
the fact that labor-management relations in the Federal Government is
an evolving program, and because many provisions of controlling laws
and regulations were enacted or promulgated without recognition of the
potential for using the labor-management negotiation process in
determining employee rights and benefits.
While we favor greater union input into the formulation of policies
and regulations governing Federal employees, we have some concern that
the provisions of H.R. 10700 which establish a Federal Lator Relations
Board to consider certain policies and regulations before they are
issued would not effectively or efficiently serve that purpose.
Under subsection 7107(g) of the bill a Federal Labor Relations
Board is established to consider policies and regulations, or amend-
ments to existing policies or regulations, proposed to be issued by
the Civil Service Commission or any other agency, with the exception
of the Department of Defense, relating to employees of more than one
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agency. The meM3ers of the Board, designated by the Chairman of the
Civil Service Commission, would. include a chairman and ten others, con-
sisting of five members from among managemett officials of the agencies
covered under tlus bill and five members from labor organizations holding
exclusive recognition in those agencies., The Boara, in considering
policies and regulations which relate to employees of more than one
agency, would have the ultimate authority to adopt, modify or reject
a proposed regulation. The Board would also have authority to initiate
changes in existing regulations over which it is given jurisdiction.
The Board's action with respect to any regulation Cr policy would be
binding on the issuing agency. Thus, while the bill does not clearly
delineate the regulations which would come within the jurisdiction of
the Board, it would appear that the Federal Labor Relations Board would,
in effect, have final authority with respect to tho form and content
of any regulation pertaining to Federal employees in general. Some
of the regulations to which this authority apparently would extend
include regulations concerning life and health insurance, retirement,
compensation for injuries, pay and allowances, leave, travel and
transportation, per diem, and mileage.
We question whether the Board as provided for in the bill would
have the necessary time, personnel and expertise to enable it to ad-
equately exercise regulatory authority over the broad range of subjects
which apparently would fall within the scope of ito responsibility.
Also we question the proposal since, in effect, it would superimpose
board authority over the individual regulatory authority of particular
agencies which under existing law have statutory responsibility for
administering specified programs. Removal of final regulatory authority
presently vested in such agencies would preclude hclding those agencies
responsible for the proper administration of such laws.
In that connection we note that the method of selecting the Board,
i.e., designation by the Chairman of the Civil Service Commission, does
not appear to be in keeping with its broad authority. Also the latitude
the Chairman of the Civil Service Commission would have with respect
to the appointment of the Chairman of the Board an. his tenure in
office, as well as the provision that he would serve only part-time in
that position would seem to be inconsistent with the duties and
responsibilities of the Board.
In light of the foregoing, we believe that ths provisions in
H.R. 10700 concerning the Federal Labor Relations Loard deserve the
closest scrutiny of Congress.
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Also, we have the following comment on the roles of the courts
and GAO in the context of the changes that this measure would bring
about. Under section 7107(i)(4) a labor organization may appeal to
the Federal Labor Relations Authority for a decision in stated cir-
cumstances. As we understand this section it would not limit or
restrict the jurisdiction of the General 'Accounting Office or the
courts in construing existing laws or limit the binding effect of such
construction on all executive agencies of the Government. In the ab-
sence of-an express provision in the bill modifying or limiting the
statutory authority presently vested in the Comptroller General and
the courts, all actions by the Authority would be subject to the
controlling decisions of the Comptroller General and the courts. If
a different construction is intended by the Congress we suggest that
Such intent be expressly incorporated in the language of the bill.
Our comments pertaining to this section apply as well to section 7112(b)
and we suggest the addition of the words "if consistent with existing
law" after the word "binding" on line 22, page 38.
With regard to other specific provisions of H.R. 10700, we have
the following comments:
Section 7103(a)(7). Under this section complaints involving
matters subject to appeals procedures prescribed by, or pursuant to,
existing or future specific provisions of law are excluded from the
definition of the term "grievance." Since under section 7112 of the
bill grievances are subject to final settlement by the Federal Labor
Relations Authority, we would suggest that the words "or claims
cognizable by the General Accounting Office" be added at the end of
section 7103(a)(7) in recognition of the statutory responsibility
placed on this Office to settle all claims against the United States.
Section 7103(a)(10). The definition of the term "collective
bargaining" would appear to preclude the use of authorized represen-
tatives of management officials having management responsibility for
the appropriate unit. Since some of the larger agencies may wish to
be represented by negotiation specialists at the bargaining table the
Committee may wish to clarify the definition to provide for bargaining
with authorized representatives of management officials as well as the
management officials themselves.
Section 7106(g)(4). Since the authority for personnel policy
matters is generally held only at the upper headquarters level within
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520
an agency and those policies govern employees throughout the agency,
the Committee may wish to consider changing the wording of subsection
7106(g)(4) to read "is consistent with the centralization or de-
centralization of authority to carry out agency personnel policies"
in order to more clearly provide for the establishatent of units on
less than an agency-wide basis.
Section 7107(a). This subsection provides that a labor organization
is "entitled" to represent and bargain collectively for employees in
the unit. Thus it would appear that the organization is not obligated
to represent the interests of all the employees in the unit. We note
that this provision differs from the provisions of section 10(e) of
Executive Order No,, 11491 which requires a union to negotiate agreements
covering all employees in the unit.
Section 7107(d). Since Executive orders may contain provisions
relating to Federal employees in the sane manner as laws or regulations,
it would appear that collective bargaining relationships and the rights
of employees established under H.R. 10700 should be governed by Ex-
ecutive orders when applicable as well as by laws and regulations. This
could be accomplished by placing the words "or Executive Orders" at the
end of section 7107(d)(1) or by creating a new subsection (2) reading
"existing or future Executive Orders" and redesignating the current
subsections (2) and (3) of section 7107(d) as (3) and (4) respectively.
Section 7107(e)(1). We understand that the ex:lusionoof the
Department of Defense from provisions of the bill relating to the
jurisdiction of the Federal Labor Relations Board is to prevent con-
sideration by the Federal Labor Relations Board of nolicies or
regulations, or amendments to existing policies or regulations, issued
by the Department of Defense and relating only to employees of the
Department of Defense and the military departments. These policies
or regulations would apparently be subject to the vocedures outlined
under sections 7117(e)(2), (3) and (4). However, the wording of
subsection 7107(e)(1) would preclude consideration by the Federal Labor
Relations Board of regulations issued by the Department of Defense
which apply to emoloyees of agencies other than the Department of
Defense and the military departments. An example e such a regulation
is that issued by the Department of Defense under the authority of
subsection 1(o) ol Executive Order No. 10621, July 1955, as amended
by Executive Order No. 11294, August 4, 1966, 31 Fed. Reg. 10601, to
establish maximum rates of per diem allowances for civilian officers
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and employees of the Government to the extent that such authority
pertains to travel status in localities in Alaska, Hawaii, the
Commonwealth of Puerto Rico, the Canal Zone, and possessions of the
United States. The Committee may wish to provide that a policy or
regulation of this type issued by the Department of Defense would be
subject to the same procedure as would be generally applicable to regu-
lations promulgated by other agencies. This could be done by replacing
the words "other than the Department of Defense" within the parenthesis
in section 7107(e)(1) with the words "other than the Department of
Defense when it regulates only for itself and/or the military departments."
Sections 7107(e)(3) and (4). These subsections provide for
multi-labor organization negotiation. A question could arise as to
whether the negotiations are to be conducted collectively or on an
individual basis with the labor organizations involved.
Section 7107(f)(3). If it is intended not to allow labor organ-.7.zation
representatives travel costs or per diem for participating in meetings
concerning the issuance or amendment of policies or regulations, it
would appear that subsection(e)(2) should be enumerated in section
7107(f)(3) along with subsections(e)(3) and (e)(4).
Section 7107(g)(1). The parenthetical in this section may be
omitted as unnecessary if the description of the matters subject to
negotiation in section 7107(e)(1) is changed in accordance with our
comments on section 7107(e)(1), supra.
Section 7107(g)(3). Under the provisions of this subsection the
choice of the members of the Federal Labor Relations Board from among
management officials would be based at least in part on the number of
employees in a particular agency who are under exclusive recognition.
However the Board would consider regulations governing all Federal
employees, regardless of whether or not they are in bargaining units.
The Committee may wish to consider whether it would be preferable to
base management representation on the Board on the basis cf the total
number of employees in an agency rather than on the basis of the total
number under exclusive recognition.
Section 7107(g)(7). It would appear that the reference to subsection
(d)(2) herein is not necessary and may be confusing. The provisions of
subsection 7107(g)(7) are apparently directed towards policies or
regulations which relate to the employees of more than one agency.
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524
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
WASHINGTON, D. C. 20301
May 28, 1974
Honorable Thaddeus J. Dulski
Chairman, Committee on Post Office
and Civil Service
House of Representatives
Washington, D. C. 20515
Dear Mr. Chairman:
Reference is made to your request for the views of the Department
of Defense with respect to H. R. 10700, a bill "To provide for
improved labor-management relations in the Federal service, and
for other purposes."
The primary purpose of H. R. 10700 is to provide a statutory base
for labor-management relations affecting agencies of the Executive
branch of the Government and their employees. The bill would
establish policies and procedures dealing with ex:lusive recognition
of labor organizations, negotiation between agencies and labor organ-
izations concerning personnel policies and erriplaree working condi-
tions, and various other aspects of Federal labor-management
relationships. It would establish administrative machinery for the
protection of employee and management rights and the resolution
of labor-management disputes. The bill would supplant the existing
Federal labor-management relations program established by Execu-
tive Order 11491, as amended.
As we pointed out in our letter of May 22, 1973, zommenting on
another bill dealing with Federal labor-management relations
(H. R. 13), we cto not believe that legislation in this area is necessary
or desirable at the present time. Collective bargaining in the Federal
service is still relatively young, dating primarily from the issuance of
Executive Order 10988 in 1962. As experience ill gained by agencies
and labor organizations representing their employees, needed adjust-
ments in program policies and procedures can best be affected through
administrative action. Such adjustments were made by the President
in 1969 and 1971, and the Federal Labor R.elatior s Council is currently
undertaking a major review of the program which is expected to result
in further evolutionary change cons:stent with the public interest.
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H. R. 10700 is, however, significantly less objectionable in many respects
than other proposed Federal labor-management relations legislation intro-
duced in the 93d Congress. A number of its provisions incorporate similar
provisions contained in E. 0. 11491, i. e. , those which delineate the scope
of bargainable matters; prohibit conflicts of interest and exclude super-
visors and managers from bargaining units; provide for the exemption of
agencies and organizational entities which perform security, intelligence
or investigative functions; and specify criteria for appropriate bargain-
ing units and procedures for resolving negotiability disputes.
In certain other respects, however, H. R. 10700 contains provisions which
are in conflict with the basic elements of managerial authority which Fed-
eral managers must retain if they are to administer Federal programs
in the public interest. Sections 7104 and 7105 of H. R. 10700 would signi-
ficantly change the administrative structure of the Federal labor-manage-
ment relations program by establishing a Federal Labor Relations Autho-
rity, which would assume functions currently being performed by the
Federal Labor Relations Council, the Federal Service Impasses Panel,
and the Assistant Secretary of Labor for Labor-Management Relations. We
feel the present administrative machinery of the program is just now com-
pleting its initial period of policy and procedural development and is
reaching a stage where it is working reasonably well. It would be disrup-
tive to overturn at this point the body of precedents and procedures that
have been so painstakingly evolved over the period since Executive Order
11491 was issued.
The Department of Defense is opposed to certain other concepts incorpor-
ated in H. R. 10700, particularly the proposed Federal Labor Relations
Board, described in section 7107(g). As we understand it, the establish-
ment of this Board would have the effect of withdrawing from the Civil
Service Commission, the Department of Labor, the Office of Management
and Budget, and other agencies their authority to determine policies of
Government-wide application affecting Federal employees; such policies
would be decided upon only by majority vote of the eleven-member Board.
For practical purposes, this means that the Chairman will decide all
disputed issues. The Chairman, under the statute, would not be responsible
to the President, the Civil Service Commission, the Congress, the
department heads appointed pursuant to law or to any other authority.
We seriously question the wisdom of placing such a responsibility for
Government-wide personnel management in the hands of any single individual,
however well intentioned, who has no responsibility for assuring that laws
are faithfully executed.
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526
In addition, the practicality of this proposed arrangement is subject to
serious question. Experience to date with the National Wage Policy
Committee and its successor, the Prevailing Rate Advisory Committee
established by Public Law 92-392, whose composition is similar to
that proposed for the Board, leads us to believe that most Board
decisions would be reached only after extended discussion and debate.
In view of the wide variety of matters which would be channeled to the
Board from all agencies of government, we anticipate that the Board
would be in nearly continuous session and that it would prove very
difficult to obtain timely and responsive .resolution of vital policy issues.
We are concerned, also, about the lack of protection for basic Civil
Service merit system principles inherent in the proposal.
The Civil Service Commission now follows the practice of consulting
with the major Federal employee unions before i3 suing new or re-
vised regulations. In our opinion, this provides organizatiorsre-
presenting substantial numbers of Federal employees with adequate
opportunities to make their views known and have them carefully con-
sidered in the formulation of Government-wide policies. We do not
believe that the quasi-bargaining rights on Government-wide policies
which would be extended to Federal employee unions under the Board
concept incorporated in the bill are reasonable or workable. The bill
establishes a system under which unions could seriously obstruct the
development of Government-wide policies by sukecting them to pro-
tracted discussions assuming the character of negotiations. It would
place in the hands of a single individual, the Chairman, who has no
responsibility for the successful execution of government programs,
sweeping authority to determine what policies will be issued, revoked
or changed.
We are also opposed, as impractical and undesirable, to the provisions
of H. R. 10700 which would require bargaining on agency personnel pol-
icies when unions have not attained sufficient employee support to gain
national exclusive recognition and the resultant r,ght to bargain on agency
regulations. These provisions, found in section '1107(0(3) and (4),
would depart radically from a basic principle observed almost univer-
sally to date in private sector and Federal labor relations by extending bar-
gaining rights to unions even though no appropriate unit has been established
and the employees affected have been given no opportunity to express
themselves. In our view, the present machinery for establishing bargain-
ing rights, with the possible addition of the fourtt unit criterion proposed
in the bill will be entirely adequate to ensure that bargaining will take place
at appropriate organizational levels -- i. e. , at whatever level a union has
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obtained exclusive recognition and at any subordinate levels where the
parties see fit to provide for supplementary negotiations.
The Department of Defense, with nearly 2,000 separate bargaining
units, must retain the capability to establish department-wide programs
where they are needed as, for example, in establishing department-
wide career and placement programs. The capability to establish such
policies and programs would be so seriously proscribed by sections
7107(e)(3) and (4) that the Office of the Secretary of Defense and the
military departments, for practical purposes, would be unable to provide
central policy coordination and direction. These sections set up a pro-
cedure for continuous negotiations on a wide variety of personnel
policy matters with final authority for all such decisions resting with
a series of ad hoc impasse panels.
Not only would the procedures required by sections 7107(e)(3) and (4)
produce the undesirable result of paralyzing action by responsible
department heads, but they establish requirements that would be
extremely difficult to administer. As we interpret these sections,
it would, for example, be necessary to make several calculations,
calling for data not now available, to determine whether bargaining
was required with regard to a particular subject: how many employees
it would affect, how many of these were represented by unions holding
national consultation rights, and whether these constituted a majority.
Agencies would be required to bargain on some matters and consult
on others, and to bargain with one or more unions while consulting
with others on the same subject. It would apparently be necessary
to bargain with different unions, in combination or separately, on
different subjects. In some instances, presumably, it would be nec-
essary to bargain with two unions having diametrically opposed views--
a practical impossibility. The result could well be paralysis in agency
personnel management and serious interference with agencies' ability
to carry out their assigned functions in a manner responsive to Gov-
ernmental needs and the public interest.
We believe that the objectionable provisions of H. R. 10700 are based on
groundless fears that agency authority to regulate in the personnel policy
area would be exercised in a way that would reduce opportunities for
negotiation on a meaningful range of subjects. In our opinion, such fears
are not based on fact. An assessment of the labor relations climate at
Federal activities furnished to agency personnel directors by the Civil
Service Commission in July 1973, for example, based on a survey of
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99 representatLve activities, concluded that agency regulations did not
have as inhibiLng effect on local negotiations as might have been sus-
pected. It should also be noted that the Civil Service Commission and the
various agencies, including this Department, aro currently engaged in
a major effort to identify and eliminate regulatoiy requirements that
unnecessarily restrict the scope of bargaining. We do not believe the
unworkable procedures specified in sections 7101e)(3) and (4) offer
reasonable or practical approaches in light of this policy.
H. R. 10700 contains a number of provisions?sections 7113(a) and
7113(c), conce:ming official time; sections 7112(a)(3) and 7112(a)(4)
concerning arbitration; and section 7108(a, relating to dues checkoff--
which are matters which, in our opinion, coUld and should be left for
bilateral determination by the parties; it seems inconsistent to prescribe
such matters by law or regulation while at the same time seeking ways
to broaden the scope of negotiations.
Sections 7109(a)(6) and (b)(6) would make failure to cooperate in impasse
procedures or decisions an unfair labor practice. while sections 7109(a)(7)
and (b)(8) treat similarly failure to comply with the proposed Act. Treat-
ment of such matters as unfair labor praciices could be counterproductive
by requiring unnecessary adversary proceedings and providing a possible
harassment des-ice. Section 7111(b) by requiring establishment of a
three-person ad hoc_ panel to consider each negotiation impasse, lacks
sufficient flexibility of approach in dealing with impasses. It would tend
to induce premature referral of impasses to the Authority. Finally,
we note that the bill fails to assign necessary functions to the Civil Ser-
vice Commission similar to those set forth in se,:tion 25(a) of Executive
Order 11491, as amended, particularly in regard to the furnishing of
policy guidance and technical advice and information to the various
executive branch agencies and the training of agency management per-
sonnel in labor-management relations.
The Office of Management and Budget advises that, there is no objection
to the submission of this report for the consideration of your Committee,
and that enactment of H. R. 10700 would not be in accord with the program
of the President.
Sincerely,
2tuaF- 2 6
/Martin R Hoffma
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THE GENERAL COUNSEL OF THE TREASURY
WASHINGTON. D.C. 20220
MAY 2 0 1974
Dear Mr. Chairman:
Reference is made to your request for the views of this
Department on H.R. 10700, "To provide for improved labor-
management relations in the Federal service, and for other
purposes."
The proposed legislation would amend title 5, U.S. Code,
to establish a framework for the conduct of collective bargain-
ing between the labor organizations representing Federal employees
and their employing agencies. It would replace the existing
Federal labor-management program created by Executive Order 11491,
as amended.
The Department is opposed to the enactment of legislation
establishing procedures for conducting labor-management negotiations
in the Federal service since it would result in the loss of thE.
flexibility needed to deal with the fluid and evolutionary nature
of public sector labor-management relations. Accordingly, we
are opposed to the enactment of H.R. 10700.
The following are our comments on Some provisions of the bill.
New Section 7103 of title 5, U.S. Code, contains definitions.
Subsection (a)(3) would exclude certain named agencies as well as
any office, bureau, or entity within an agency, which has as a
primary function intelligence, investigative, or security work, when
the President determines that the provisions of the bill cannot be
applied with respect to that office, bureau, or entity in a manner
consistent with national security requirements. Subsection (a)(2)(vi)
would exclude an employee regularly assigned to work in locations
where intelligence, investigative, or security work is performed,
when the President determines that the provisions of the bill can-
not be applied with respect to that employee in a manner consistent
with national security requirements and considerations. This latter
subsection would appear to be unnecessary in view of the former
subsection. Furthermore, it would be: impractical to require the
President personally to make exclusions of individual employees.
If it is necessary to exclude specific employees in addition to
organizational entities, we believe the authority to make the deter-
mination should rest with the agency head.
In addition, we believe that the U.S. Secret Service should be
specifically excluded from the provisions of the bill since its
functions are similar to those of the F.B.I., which is excluded by
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name. We question whether the General Accounting Office should be excluded
from the provisions of the bill. The bill fails make clear whether the
President's determinations under section 7103 are specifically. excepted
from any review. Such review could cause an exposure of crucial security
information.
New section 7103(a)(13) defines the term pmfessional employee. it is
clear that attorneys would be included within the definition. New section
7106(h)(6) would provide that a labor union "unit" may include both, profession-
al and nonprofessional employees, if a majority e the professional employees
vote for inclusion in the unit. The Department in opposed to units of employees
which include both attorneys and others. This objection is based on the
proposition that attorneys who become members of a unit or a union may be in
-violation of the ethical standards of the American Bar Association and certain
State bar associations.
New section 7104 would establish a Federal Labor Relations Authority
comprised of a Chairman and two additional members. Subsection (e) would
provide that "a vacancy in the Authority shall not impair the right of the
remaining members to exercise all the powers of the Authority." We question
whether this provision would be workable since there would be only two members
available to make determinations and this could result in a tie vote on a
given issue.
New section 7106 relates to exclusive recognition of labor organizations.
We believe that exclusive recognition should be granted only after a secret
ballot election except for situations provided for in section 7106(f)(1.),
where a free and untrammeled election cannot be established. An election
greatly reduces chances for coercion of employees and its results are the
best evidence to both management and unions of the employees' desires.
New section 7107 would establish a Federal Labor Relations Board,
whose members would be a Chairman, and five management officials of Federal
agencies covered by the bill and five members from labor organizations
holding exclusive recognition under the bill chosen by the Chairman, Civil
Service Commission.
The Board would be authorized to consider policies and regulations
Involving matters subject to negotiation proposed by the Civil Service
Commission or any other agency other than the Department of Defense. We
are opposed to this provision because (1) it appears to subordinate the
Civil Service Commission to the Board and could seriously damage the
Commission as the Government's central personnel agency and protector of
merit promotions; (2) it would make open-end negotiations possible; C3) it
would require other agencies having Presidentially-delegated responsibilities
Eor issuing Government-wide regulations to submit their proposed regulations
to the Board with Civil Service Commission appointees controlling the Board
DO such matters; (4) it could result in serious delays in issuance of
regulations; and (5) four union members of the Board could propose agency
regulations which could be acted upon by the Board without sufficient input
or study by the agencies which would have to implement them.
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Furthermore, subsection (e)(3) of new section 7107 apparently would
permit unions to consolidate on an ad hoc basis for negotiations with a
Federal agency. As a result, these uniomcould combine to negotiate on
different issues and small unions holding "swing votes" would achieve in-
ordinate power under such arrangement.
Subsection (g)(2) which sets forth the membership of the Board is
ambiguous. It is not clear from a reading of the subsection whether the
Chairman of the Board is the Chairman of the Civil Service Commission, or
an individual designated by the Chairman of the Civil Service Commission.
If the latter is the case, there is nothing to indicate the criteria for
selecting the Chairman and nothing relating to tenure and pay of the Chairman.
Subsection (g)(6) of new section 7107 would provide that the Board may
adopt, reject, or modify any proposal before it by majority vote. It is not
clear from the language of the subsection whether all eleven members of the
Board must meet in order to take a vote on a proposal. If this is the case,
it would seem to create administrative problems since it is difficult to
arrange for a convenient meeting date for eleven participants. If it is
intended that the Board may act without the presence of all its members, then
the subsection should be amended to include a requirement for a quorum.
New section 7113 would provide that employees representing a labor
organization in negotiations be given official time for such purposes during
regular hours. The section fails to specifically prohibit the payment of
travel and per diem for such negotiators. The decision to select negotiators
from locations away from the negotiating site is the union's and it should
bear the cost.
The Department has been advised by the Office of Management and Budget
that there is no objection to the submission of this report to your Committee,
and that enactment of H.R. 10700 would not be in accord with the program of
the President.
e elY yours,
\\\
General Counsel
The Honorable
Thaddeus J. Dulski, Chairman
Committee on Post Office
and Civil Service
House of Representatives
Washington, D.C. 20515
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532
DEPARTMENT OF AGRICULTURE
OFFICE OF THE SECRETARY
WASHINGTON. O. C.20250
Yay 23. 1974
Honorable Thaddeus J. Dulski
Chairman, Connittee on Post Office and Civil Service
House of Representatives
Dear Mr. Chairman:
This is in reply to your request of January 3, 974, for a report on
H.R. 10700, a bill "To provide for improved labor-management relations
in the Federal service, and for other purposes",
This Department recommends that the bill not be passed.
The bill provides for participation of employee of the Executive
branch, through labor organizations of their awn choosing, in the
formulation and implementation of personnel policies and practices
and matters affecting working conditions, and collective bargaining
rights for labor organizations representing employees.
Executive Order 11491, as amended, is doing an dequate job to meet the
needs of the employees and management and yet allow agencies to meet
the requirements of good public service. Hence, we believe legislation
is not required at this time.
We are opposed specifically to the provisions of H. R. 10700 which would
establish a Federal Labor Relations Board with tuthority to approve,
modify or reject agency regulations and other Lisuances.
The Office of Management and Budget advises that there is no objection
to the presentation of this report and that enactment of H.R. 10700
would not be in accord with the program of the President.
Sincerely,
J. Phil Campbell
Acting Secretary
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NATIONAL LABOR RELATIONS BOARD
Washington, D.C. 20570
May 29, 1974
Honorable Thaddeus J. Dulski
House of Representatives
Washington, D.C. 20515
Dear Congressman Dulski:
This is in response to your request of May 9, 1974, for a report
from this Agency on H.R. 10700, "To Provide for Improved Labor-Management
Relations in the Federal Service, and for Other Purposes."
An examination of H.R. 10700 discloses that it proposes a funda-
mental change in labor management relations for Federal employees and
that it would displace the present labor-management system now operating
under Executive Order 11491. Because of its impact on Federal employees
generally, we believe it would be appropriate to defer to the views of the
Civil Service Commission which is in a better position to evaluate such
proposal and its effect. Consequently, we will not submit any specific
views on such bill at this time.
It is our belief, however, that it would be somewhat premature to
displace the existing labor-management program at a time it is under-
going a period of evolutionary development and before such programs
have an opportunity to reach full maturity.
In that regard, I would note, that our Agency has had a satisfactory
experience with our present labor-management program under Executive
Order 11491. Fur your information, I am enclosing a copy of comments
submitted by the Agency to the Federal Labor Relations Council in response
to the Council's request concerning its recent general review of the
labor management relations program in the Federal sector.
The Office of Management and Budget advises that there is no
objection to the submission of this report and that enactment of H.R. 10700
'would not be in accord with the program of the President.
Sinperely,
?C.
Edward B. Miller
Chairman
vir
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534
FEDERAL POWER COMMISSION
WASHINGTON, D.C. 20426
H.R. 10700 - 93d Congress
MAY 21 1974
Honorable Thaddeus J. Dulski
Chairman ?
Committee on Post Office and Civil Service
House of Representatives
207 Cannon House Office Building
Washington, D. C. 20515
Dear Mr. Chairman:
Submitted herewith in response to your request of
January 3, 1974, and further letter of May 9 are three
copies of the report of the Federal Power Commission on
H.R. 10700, a bill "To provide for improved labor-manage-
ment relations in the Federal service, and for other pur-
poses."
The Office of Management and Budget has advised that
there is no objection to the presentation of this report
and that enactment of H.R. 10700 would not be in accord
with the program of the President.
Sincerely,
44414=
John N. Nassikas
Chairman
Enclosure:
Report on H.R. 10700
in triplicate.
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FEDERAL POWER COMMISSION
REPORT ON H.R. 10700 - 931) CONGRESS
A BILL "To provide for improved labor-management relations
in the Federal service, and for other purposes."
H.R. 10700 proposes additions to chapter 71 of Title 5
of the United States Code providing for the creation of a
Federal Labor Relations Authority to govern labor-management
relations within the Federal service. The Authority would
have three members appointed by the President subject to
Senate confirmation (Sec. 7104), and would be authorized to
grant exclusive recognition to a labor organization which
has been selected by a majority of employees in an appropri-
ate unit who participate in an election held in conformity
with the requirements of the proposal (Sec. 7106).
The characteristics of an appropriate unit would be de-
termined by the Authority in each case to ensure employees
the fullest freedom in exercising the rights guaranteed by
the proposed legislation. Such unit may be agency-wide or
limited to plant, installation, function or determined on
some other basis. The Authority's guidelines in this re-
spect are (1) to ensure n clear and identifiable community
interest among the employees, (2) to promote effective labor-
management dealings, (3) to permit efficient agency operations,
and (4) to provide consistency with the centralization or de-
centralization of authority for personnel policy matters within
the agency.
The stated Congressional policy (Sec. 7101) is that par-
ticipation of employees of the Executive branch, through labor
organizations of their own choosing, in the formation and im-
plementation of personnel policies and practices and matters
affecting working conditions is in the public interest, and
that collective bargaining rights which are consistent with
the public service and the efficient administration of Execu-
tive agencies shall be enjoyed by labor organizations repre-
senting employees.
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Application for exclusive recognition would be made to
the Authority by petition of any person alleging that 30
percent of the employees of such unit wish to be represented
for collective bargaining by an exclusive representative or
that the exclusive representative was no longer the repre-
sentatives of the majority of employees in such unit. The
Authority if it finds after investigation that there is rea-
sonable cause to believe that a question of representation
exists would provide for hearing upon notice and pursuant
thereto and subject to rules to be established may hold an
election and certify a labor organization which receives the
majority of votes therein as the unit's exclusive represen-
tative.
Provision is also made for certification upon petition
of a labor organization where the Authority is satisfied
that the organization represents A majority of employees in
an appropriate unit, has lawfully reached such majority status,
and that no other person has filed for re:ognition.
H.R. 10700 appears to be intended to create a comprehen-
sive bill of rights for Federal employee /abor organizations
and spells out in specific detail rights of employees and
rights and duties of labor organizations and agencies in labor-
management relations. In the latter connection, it would pro-
vide for the establishment of a Federal Labor Relations Board
to consider policies and regulations (or amendments thereto)
involving matters subject to negotiation between the represen-
tative organizations and Federal agencies encompassing per-
sonnel policies and practices and matters affecting working
conditions proposed to be adopted by the Civil Service Commis-
sion, or other agencies. (Sec. 7107.)
Among other provisions; proposed Section 7109 enumerates
actions constituting unfair labor practicEs on the part of
both Federal agencies and labor organizations; Section 7110
would vest power in the Authority to prevEnt unfair labor
practices; and Section 7111 would em?ower the Federal Media-
tion and Conciliation Service, upon request, to assist in the
resolution of negotiation impasses.
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537
While this bill codifies many of the provisions con-
tained in existing Executive Orders Nos. 11491, 11616, and
11636, issued respectively on October 29,.1969, August 26,
1971, and December 17, 1971, many of its other provisions
would in our view effect significant changes in the rela-
tionship which now prevails between Federal agencies and
their employees.
H.R. 10700 would by definition (with certain stated
exceptions) be applicable only to Executive agencies. There
is therefore a question whether the bill includes independent
regulatory agencies, since they are in statutory form arms of
the Congress rather than of the Executive.
In summary we have no objection to enactment of the bill.
The Office of Management and Budget advises that there is
no objection to submission of this report and that enactment
of H.R. 10700 would not be in accord with the program of the
President.
FEDERAL POWER COMMISSION
JOHN N, N. NASSIKAS
CHAIRMAN
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538
commumtc.A.-r mmi COlsritsA\SS\Wk
was54
JULY 8, 1974
Honorable Thaddeus J. Dulski
Chairman
Committee on Post Office and
Civil Service
House of Representatives
Suite 207
Washington, D.C. 20515
Dear Mr. chairman:
The Commission appreciates the opportunity to comment on H.R. 10700,
which proposes legislation for labor-management 17elatiots in the
Federal service.
The Commission has no exhaustive comments to make conceriing H.R.10700;
however, we would 1.-.1