Executive Orders 10988 and 11491, and Craft Recognition in the Federal Service

• Author: By Captain John Clay Smith, Jr.
• Pages: 01

In the dam of President Nizon's new Ezecutive Order 114Y1, Labor-Management Relations in the Federal Service, the author reviews sample arbitration decisiaa under Ezecutive Orde? 10988 before and after a majorchange in KLRB policy in the craft recognition a~ea and

concludes that the arbitrators were not responsible to Board rulings. He notes critically that men under Executive Order 114.91, the ultimate decision-makers are not bound by NLRB rulzngs, or by thek o m . He offerssuggestions fa7 arguments and making a record in future hearings before the Assistant Secretary of Labor for Labor Menagemant Relations and the Fedeml Labor Relations Council created by the new Order, and urges that these agencies should be responsive to NLRB decisions.

1. INTRODUCTION

1. EXECCTIVE ORDERS 10988 AND 11491

   Unionism in the federal service began in such government facilities as arsenals, naval yards and printing plants. Certain craftsmen (carpenters, mechanics and the like) joined the union movement around 1830. Initially, craft union enrollment flourished in government aerviee but began to ddine, reaching a low ebb of 280,000 by 1946.'

   'The opinions and eond~iions presented are those of the avtho? and do not neeesasriiv reoreaent the view of The Judze Advoeate General's School

   . .

   or any other governmental agency.

   *'J.4GC, US

   Army; Claims Judge Advocate, Militam District of Weah-ington, U.S. Army; A.B., 1954, Creightan University; J.D.,

   1961, Howard University Sehaal of Law; member of the Nebraska and District of Columbia

   40 Military Law ReTiew

   In recent years. union membership in the federal service has grown Impressively,' showing the renewed interest of federal workers in employee organization In 1967 there nere:

   -808 exciww um!s tbrauehaut t t e federal eifabl'shrrenf fplus 24.000 :oca1 port "Ace .nit91-836.000 employees B T ~ caiered by ex~.uo\e units filS.000 of theze e m ~ l w e e i BIP I" the Post OAea Deoanment).

   A 2 9 agreementi negotiated emerme approximate!) iSO.On0 e? piayees ~n mer 20 fedora! departments and agencies'

   During 19661967 alone, exclusive recognition was afforded to 173 units, and 184 collective bargaining agreements were negotiated Recent statistics are even more impressive The Office of Labor-Management Relations reports that as of Sovember 1968 the number of units with exclusive recognition increased to 2,306. Approximately 1,416.073 federal employees are covered by these units, of E2 per cenr of the total federal work force. Likewise, the number of negotiated agreements has increased to 1,181, and the total number of employees under those agreements equals 1,175,524, or 42 per cent of the total federal work force. Presently, over 30 federal departments and agencies have unit agreement?.'

   The increased interest in unions among members of the federal service can be traced directly to Executive Order 10988,' which was promulgated by President John F. Kennedy in 1962. That document established a8 federal policy the right of workers in the federal service to organize.'

   This federal policy received a shot in the arm with the promulgation of Executive Order 11491 by President Richard M Nixon in October 1969 Several progressive provisions were added to the new order.' However, no attempt is made in this

   and new exeeutne orders see note 73 miru.

   I

   OFFKE OF LABOR.~~A~ACEMENT

   Raii~lllh's. U.S. ClvlL SwlPiCr COMMIX,

   UP~OV

   RFCOCKITION IN THE FEDERAL Go\whvm~--STATlsncAL REPDRT 1-2, 7 (bo" 1968)

   .3 C.F.R 521 11959.1563 Comp 1 5 V.S.C $ 631, at 866 (19641 [hereafter cited as Exec. Order 109881

   'Exec Order. 10988 $ 1. See geneidly Premdent'a Task Force an Em-ployee-Management Reiafions ~n the Federal Service, A Policy far Employee. Management Cwperation .n the Federal Service 11 (30 Nov 1981).

   '54 Fed. Reg. 17605 11969) [hereafter cited as Exec. Order 114911.

   Craft Reeognition article to dipeat either Executive Order 11491 or 10988 beyond those provisions which influence craft recognition.

2. THE CRAFT UNIT SEPARATION PROBLEM

   One of the most troublesome areas of Executive Order 10988, carried over into Executive Order 11491, was the provision requiring "apDrODriate units."1o "This area done , . . presented a number of difficult problems."

   When a unit petitioned an agency for exclusive recognition (including petitions for craft separation), a threshold question was "whether a unit was appropriate for purposes of exclusive recognition . , . .? If the question of the appropriateness of the unit was not resolved internally by the agency, the Executive Order provided :

   Upon the request of m y ngeney. or of m y employee organization whish ia reeking exclusive recognition and qualified for 01 hna beenaccorded formal recognition, the SeeietDry of Labor, aubjeet to such nEeIIav rule6 as he msy prereribe, shall nominate from the Na-tional Panel of Arbitrators maintained bg the Federal Mediation and Conelliatlsn Service one or more qualified Arbitrators who will be available for emplagment by the agency concerned fm . , . the fol-lowing PYIPIIII . , , (1) to inwitigatp the faeb and iliiue m rd-v h r y dmldon as to the sppropriatpnera of the unit for purposei of excluiive recognition and a9 to related issues submitted for con-aidemtion. , ,

   ."

   There has been some discussion as to what effect, if any, the National Labor Relations Board's decisions had on arbitration decisions taken under section 11 of the Executive Order.>* Under section 11, the arbitrator was not expressly required to rely on any published opinions, not even those promulgated under the Executive Order. But, it may well be asked, "Why allow the thirty

   'Superviaom are prohibited from acting aa union ofleers 01 represents. tive. where auch activity gives the appearance of conflict of interest, 0 l(b1. 0 2 adds definitiana of such terns as "agency." "employee." "superviaor." and "guard," and clarifies the definition of "labor ~rganization." A Federal Labor RdationB Council ii established to admmster the order. "decide major policy iawes, prescribe regulations and , , , report and make Feeommendstions to the President." 0 4. A Federal Semite Impaasea Panel, appointed by the President, ii created and authorized to take setion neeeaaary to settle impnsa-e. on mbatantive Issues in negotiations. This panel, upon Bpplieation of either pa* is empowered to recommend procedure far binding arbitration 0sI 11,'The authority to decide representation disputes supervise and d t i f y &lono, decide unfail Iebor prwtice eomplainta, and 'order violating pprtiea b nme and dedit from ~iolating the Executive Order is transferred to the Auiatsnt Secretav of Labor for Labar.Msnagement Relatiens. 5 6. The di.dnetionr among exdunive formal, and informal recamition of emPioYee

   five years of SLRB experience go to waste?" I: Since 1962 many labor organization representatives and government Iaxyers have argued NLRB policy to arbitrators Likewise. many of the approximately 85 advisory arbitration decisions under Executive Order 10988 cited KLRB decisions as supporting their rationale^

   Executive Order 11491, like Its predecessor, does not require its administrators to rely on any published opinions-not eYen those to be published under the new order. Again, the question arises. "Why allow the thirty five years of NLRB experience go to waste?"

   One area of labor law in the private Sector which has seen a drastic change IS craft union separation cases. Starting with Ameriean Potash & Chemicni Carp.. . the SLRB has decided a Series of craft Separation cases. However, in 1966 the Amencan Potash parade came to an abrupt halt in Mallinckrodt Chemical Works."bargaining "nits (see note 75 infra! SIP remavsd and the Istwr two caw. gaties eliminated for new units. $5 7(f), 6(a), 24rb!, ( ~ 1 .

   Also, BXC!YBIY~

   recognition can no longer be gmnted LO a proposed unit "solely an the barn of the extent to which employees in the proposed umt have organized . "

   8 10(bi. After a unit is accorded recognition, and a valid election IS held to ehaaae a labar mganization 8% an OXCIUSIWrepresentative. there 13 a twelve-month bar on new eleefi~nb to determir.e whether iiie organization shall continue as the exelii~ive representative 5 i l c l . L'nlonr are now le. qulred ta disclose mfornation sbaut their finances to :he Armtantof Labor for Labor-MMansgement Relationr snddemocratic proeedureS and practices within the urn5 19 clarifies what eonstiiurei unfair labor prscunions snd agenem (For the text af these pro?

   Proeedurea may be negotiated to provide for arb]snees and dinputen over the interpretation ai agreemen:%. bvt not to change agreements or agency policy S 14. The Federal Medlatlan and Conciliation Service IP directed to "provide services and asslatance to Federal Bgenclei and labar aIgsnisstiong ?n the resaiutian of negat!atlan dI9putei.'' S 16. Contract negotiations during working hours are prohibited. 5 20, and B duea cheekoff IS authorized, 5 21

   Barr, Ezrnrtiir Oidrr 10988: An Eipedment 112 Employee Management

   Cooperatton m ths Federal Senwe. 52 GEO. L J. 420, 125. 430-36 (1964). The emresponding language ~n Exec. Order 11491 may be iavnd .n I IO(s1.

   ~'Waile*stem mpia note 2. *t 212.

   "Exec. Order. 10988. 6 11;:Id.

   "See U.S. DEPT OF ARMY, trn~r~s

   Barr, *"pia note 10 at 428 434: vaa1aa. sup70 note 3 at 92.

   B ~ ~ ~ A I N I N C

   uYIT

   So. 71. TRE

   that arbitrators 8- not all ln'agree,ent sa to how much weight they should give to NLRB deeiniona.

   6.7 (1965). B~~~ io, at 428-19. ~ s r r reports

   "See msterisls cited ~n note 15 aumn "107 N.L.RB. 1418 (l9G4)

   "162 N.L.R.B.387 (1869i.

   PERSOXSEL

   PAM~HLET

   wt rtemgnltion

   Prior to Mallinekrodt many advisory arbitration decisions un-der Executive Order 10988 had either cited the Ama'can Potwh case or applied the law of Amm'can Potash in arriving at Craft unit separation decisions in the federal service. This article will address itself to a limited discussion of pre- and posteraft separation questions presented to advisory arbitrators during 1966-1968 in an...