Grievance Arbitration Within Department of the Amy Under Executive Order 10988

• Author: By Major David C. Davies
• Pages: 01

This article analyxes grievance arbitrations within the Army. The author traces the history oj such grievances since Executize Order 10388 tow promulgated in 1962 briefly compares Army ezperience with that of the othe; services, and suggests techniques jor counsel in such arbitrations The conclusion indicates that the arbitration system has successfuly alleviated pressures that m:ght have impaired employee morale. I. INTRODUCTION

On 17 January 1962, President Kennedy signed Executive Order 10988 and thereby formally established government-wide policy favoring employee-management cooperation in the federal service.' By November of 1968, over 1.4 million persons, or fifty-two per cent of all federal civilian employees, were represented by labor organizations with exclusive bargaining rights.* That figure has continued to increase sharply.2

Magnitude of coverage alone makes it abundantly clear that today public employee labor organizations are forces to be reckoned with in the federal service. The draft report of a task force estab*This artide wad adapted from a thesin presented to The Judge Adroeate General's School. U.S. Army, Charlotrewdle, Virginia, while the author was a member of the Sei.enteenth Adraneed Course. The opinms and eonclunians presented herein nre chose of the author and do not neees~arily represent the

YEUS of The Judge Adweate General's School or any other governmental agency.

**JAGC, U.S. Arms. Initruetor Milirary Affairs Diviaian The Judge Ad-vocate General's School: A.B.,

185b. Stanford University; Lf B., 1968, Har. rard Law Sehavl. .'lember of the Bars of the State of Oregon alld ribs U.S.covrr of Milltary Appeals.

Exec. Order No. 10988, Eniployoe-.nonagem.n! Caoperalion in the Fedcral Seruiee, 3 C.F.R. 621 (1969-63 Comp.), 5 U.S.C. 8 631, at 866 (1964) [here-after cited as E. 0. 109881.

2 US. Clix SERTICE CO~i\llssIoN, OFFICE OF LIBOR-\IIZIADEYEFT RELATIONS, Urmx RECOONII.IONis TEE F ~ E R A L

GOIERXIIENT, STATISTICAL

RE.

PORT 2 (No". 196:).a As of 7 April 1869, Department of the Amy personnel covered by exclu-awe apreements taraled 164,736 perrons an increase of 31 180 persons over Korernber 1967. Intell-lm~ mth U' J. Seihrader Chlef Labdr Reiafrons DlviIion, Ohee of Civilian Personnel, Deputy Chid of Srhff far Personnel, U.S. Army, 7 Apr. 1968.

46 MILITARY LAW REVIEWlished in late 1967 to recommend to the President changes in Ex-ecutive Order 10988 has recentlk- been submitted: Vhile the strikes and picketing by public employees which hare become increasingly Widespread in the State and local sector so far hare left ed, the possibility of wen this

10988 authorizes the inclusion of grievance arbitration clau~es in collective bargaining agreements. This article vill examine those grievance arbitrations held to date within Department of the Army, briefly contrasting Department of the Savy and Department of the Air Force experience, with the objective of determining the present and potential significance of such arbitrations within the total Army labor rela-tions framework. In addition, it will discuss arbitration mechanics, techniques, and preparation sources about \which counsel at ar-bitration hearings should be aware.

A basic aasumption underlying the following pages is that labor relations already have achieved and increasing]>- wli achieve substantial importance, bath to the Army as a whole and to the individual commander having cirilian emplok-ees within his cammand. There are many aspects of labor relations within Department of the .4rmy well north exploring in depth. Several, including the resolution of negotiation impasses and the determination of appropriate bargaining units and majority status, either currently or potentially involre the use of arbitration. The scope af this article, however, is confined to that arbitration authorized by section 8(b) of Executive Order 10988 as the final step in ne-gotiated grievance procedures.

11. HISTORICAL BACKGROUSD A. THE FEDERAL EMPLOYEE PRIOR TO EXECL'TIVE ORDER 10988

Until the promulgation of Executive Order 10988, no 80"-ernment-wide policy on labor relations within the federal sector existed, although collective bargaining had been encouraged and regulated by the federal government within the private sector since the paasage of the Norris-LaGuardia Act In 1932.' The Sa-tional Labor Relations Act (Wagner Act) e and the Labor-Nanagement Relations Act (Taft-Hartley Act) - expressly excluded

4 The report 88s made public on 16 Jan. 1969. BXA 280 GOI'T EMPL REL Rep, A-1 (20 Jan. 1969) [hereafter cited ai GERR].

8 29 U.S.C. 51 101-15 11960.'28 U.S.C. 19151-68 11960.'29 U.S.C. $1 14147 (1064).

GRIEVANCES

gotwrnment employees from coverage, ivhile reaffirming the common law rule that such employees hare no right to strike.

The only legislation specifically recognizing the right of federal employees to affiliate with labor organizations was the Lloyd-LaFollette Act in 1912.' Limited to postal employees and carefully forbidding strikes, it revoked Executive Orders af 1902, 1906, and 1908 which had prohibited such affiliation and had denied the right of individual petition to Congress.

Department of Defense experience vith collective bargaining began as far back as the early 1ROO's at such industrial-type installations as shipyards and arsenals. In the year 1836, strikes occurred at both the Washindtan Navy Yard and the Philadelphia Xavy Yard over the issue of hours of work.# In 1893, the Army encountered a similar experience at iTatervliet Arsenal over the issues of hours of work and rates of pay:' In 1899, machinists at Rock Island Arsenal struck over the issues of discipline, discrimination against union members, and failure to consult and to hear grievances. This last incident resulted in a War Department order for arsenal commanders to deal with grievance committees and to refer unresolved matters to the Department."

In the early 1900'8, trade unionism increased rapidly, as Frederick Taylor's principles of scientific management were introduced into some Army industrial settings. Intereiingly, while most employees appeared to oppose these principles,'? some favored them.Ii In any event, employee activities resulted in various congessional resolutions and riders prohibiting the use of funds for such things as time studies and the payment of bonuses.'*

World War I and the resultant need far a stable military-industrial environment brought about some specific recognition of union activity. In 1916, the Department of the Navy urged employees to organize in order to facilitate coordination with management," while within Department of the Army a number of

8 5 D.S.C. 16 7101-102 (1964).

BD. ZIBIIND, ONE THOUSARD

STRILLES

s. smo, GOI~TMEST AS EMIPIOYER 9~95(1948).

11 At Rock Island Arsenal and at Watertom Arsenal, m 1911, employees stmndv abjeeted to the introduction of neienrifie management principles. The EFCICLOPEDIA OF MAPAGEDIENT 876-76 (Heyel ed. 1963).

I* Employees at Frankiart Arsenal dunng the same period petitioned for B

emtinuance of the Taylor nyetem. Id. at 876.

-

.

OP GOVERNMENT E M P U I ~ S

24-25

i1940)

lo

Id. at 30.

arsenals negotiated piece work rates and gromotmna in exchange foi agreements by employees not to restrict output:"

While the shop committee system established hy President Harding after \l'orld \Var I !cas not successful because of em. ployee fear that It w.s a management trick, the onset of \Yorid War I1 gaxe the union movement sharp imperus.' By the end of the war, federal emploi-ee-management policy vas R widespread topic of discussion. ' The prevailing sentiment whwh gamed momentum m the enaumg years \WE well expressed m the 19% Re-part of the Committee on Labor Rehtmns of Gowinmental Em-ployees of the American Bar Association:

Senator O h D. Johnston introduced on a >-early basis a federal employee labor relations bill. In 1966. Senator John I'. Kenned) went on record as supporting rhe bill.? Unfoitunateiy. the bill as It evolved contained some questionably extreme positions, such as mandatory suspension, demotion, or removal for any adminiatrative official violating certain parts of the lair. reEardlesa of know-edge, intent, or other circumstances.?'

During the entire period of union sroirth in the federal sector prior to Executive Order 10988, the only formal government-wide policy, aside from the Lloyd-LaFollette Act in 1912. was inclusion of provisions in the Federal Personnel Ilanual from 1981 on encouraging the solicitation of the views of federal employees in the formulation of personnel policy. Sot until 1968. however, were those provisions interpreted to apply to employee organizations as such.21

7 1s ACIIOX, 1808-1915, 240 ,1960).

'-U' HART, COLLECT~C BIRDAISIPIG Is THE FEDLRlL CnlL SERIICE110-73 (1961).

** Phis1~Eh1'3 TASK FORCEoh E,,IPLOIEE-MIB*DE\IEST RPUIIDII. I

POLICY FOR E I P L ~ ~ ~ E - ~ ~ ~ S * O E M E ~ T

IS

REPORT]

CO-OPZRAT~X

pt. I, at 2-3 (19611 [hereafter cited as T.ASK FORCE

THE FEDERAL

E ~ n n c ~ .

GRIEVANCES

In spite of such limited encouragement, by 1961 some 33 percent of all federal employees, or 762,000 persons, belonged to some type of employee oganization.21 Relations between management and these organizations varied widely from department to department and agency to agency. Xany departments and agencies had little or no significant relatianship.*'

B. PROYCLGATIOY OF EXECCTIVE ORDER 10988 Early in his administration, President Kennedy recognized a valid need for a government-wide policy on employee-management relations in the federal sector. He further recognized that the mood of labor was such that, if the executive branch failed to act, Congress might well enact unduly restrictive legislation, such as the Rhodes-Johnston bill.

Consequently, on 22 June 1961, he appointed a Task Force on Employee-Maxagement Relations in the Federal Service, headed by then Secretary of Labor, Arthur J. Goldberg. Its membership was composed of John IV. Alacy, Jr., Chairman of the...