Official time as a form of union security in federal sector labor-management relations.

• Author: Bullock, Kenneth

1. INTRODUCTION II. EXCLUSIVE REPRESENTATION AND UNION SECURITY IN AMERICAN LABOR RELATIONS A. Exclusive Representation B. Types of Union Security Arrangements 1. The Closed Shop 2. The Union Shop 3. The Agency Shop and Fair Share 4. Fee for Service 5. Maintenance of Membership 6. Dues Withholding ("Checkoff") 7. Leave for Representational Activities C. The Controversy Over Union Security D. Constitutional Aspects of Union Security in the Public Sector III. FEDERAL SECTOR COLLECTIVE BARGAINING, OFFICIAL TIME, AND UNION SECURITY BEFORE 1978 A. Employee Organization and Collective Bargaining before 1962 B. Pre-1962 Developments in Union Security and Official Time C. President Kennedy's Task Force and Executive Order 10,988 D. Developments in Official Time and Union Security: 1962 to 1978 1. President Johnson's Review Committee and the Right-to-Work Movement 2. Exec. Order. 11,491 and Developments in the 1970s IV. ENACTMENT OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE V. DEVELOPMENTS IN UNION SECURITY SINCE 1978 A. Expansion of Official Time 1. Official Time vs. Management Rights 2. "Labor-Management Activity" under § 7131(d) 3. Interpreting the "Internal Union Business" Prohibition 4. Lobbying Activities B. Trends in Impasse Resolution for Official Time Proposals C. Problems in Administering Official Time 1. Evaluating Union Officials 2. Promotion of Employees Who Use Official Time 3. Control, Monitoring and Prevention of Abuse 4. Erosion of Critical Skills 5. The Social Security Administration Controversy D. The Unions' Dilemma: the Duty of Fair Representation E. Union Security in the Federal Sector Today VI. CONCLUSIONS AND RECOMMENDATIONS A. Lessons for Management and Unions B. Unanswered Questions C. The Need for Reform; Options to Evaluate 1. Authority to Negotiate a "Fair Share "Agreement 2. Modification of the Duty of Fair Representation 3. An Examination of the TVA's Pre-1984 Preference Policy 4. Restrictions on Official Time I. INTRODUCTION

   Can a nationwide labor-management relations system based on the principle of exclusive representation operate effectively, even if the law requires unions to represent all bargaining-unit employees while depriving them of the ability to obtain adequate financial support? That question has been the subject of an unannounced experiment in the federal government since the 1960s, and there are indications that the experiment has not been successful.

   The majority of federal workers are represented by unions that have the right and the duty to represent all employees, regardless of union membership. Since the unions are required to offer their basic services to all, incentives for employees to join and pay union dues are much weaker than they are in many private-sector and state government bargaining units. To make matters even more difficult, most federal-sector employees do not have bargaining representatives that are permitted to directly bargain with management over wages and economic benefits, (1) and thus the unions lack one of the primary recruiting tools enjoyed by non-federal unions. As a result, rates of union membership in the federal sector are low, (2) even though coverage of federal workers by union contracts is exceptionally high. (3)

   How do federal-sector unions effectively represent all employees without a traditional system of "union security;" i.e., the means to compel financial support from the employees served? A system has gradually evolved in which "official time" (that is, paid federal time spent by union officials performing representational activities) has become a substitute for union dues. While the costs of official time are relatively minor in relation to the overall federal personnel budget, it has been the subject of controversy, especially when employees revealed questionable practices in the Social Security Administration during the 1990s.

   This article will show that between 1962 and 1978, the Executive Branch and Congress allowed the official-time system to evolve haphazardly, disregarding sound advice and options on union security provided by government studies. There are substantial indications that official time is not an adequate substitute for more direct methods of union security, and moreover it causes problems and imposes costs that would not exist if other forms of union security were available to unions. While there is not yet sufficient information to permit the choice of a single alternative, Congress should authorize agencies to conduct test programs, so that arrangements that have proven themselves in the private and non-federal public sectors can be evaluated at the federal level. In the absence of Congressional action, union leaders and managers should be vigilant in controlling the use of official time, while taking advantage of its limited value to promote smooth labor-management relations.

2. EXCLUSIVE REPRESENTATION AND UNION SECURITY IN AMERICAN LABOR RELATIONS

   1. Exclusive Representation

      The principle of exclusive representation is one of the most distinctive features of the American collective bargaining system. Under the American rule, after a majority of workers in a bargaining unit choose a union as exclusive bargaining representative, that union has a duty to represent all employees in the bargaining unit, regardless of union membership. (4) Scholars have explained that this system evolved because of the peculiar history of organized labor in this country. Since governments and courts were initially hostile to organized labor, American unions were unable to pursue the "top-down," government-sanctioned form of collective bargaining that prevails in many European nations. Instead, they focused on exerting economic pressure on individual employers and industries, a method that gave rise to the exclusive contract as the primary goal of bargaining. (5)

      Exclusive representation requires employees who desire collective bargaining to choose one union for the life of an agreement, minimizing inter-union conflict. When employers are forced by the law or economic circumstances to deal with unions, there are advantages to dealing with a single union. Having a single, unified bargaining partner can promote orderly bargaining, and exclusive unions tend to promote labor peace, since they suppress the disruption and unrest that can result from competition among unions. (6) In the absence of the exclusive representation principle, employees are free to refrain from union membership, if they are also willing to forego the benefits of collective bargaining. However, in the absence of an exclusive representation rule, employers could be forced to bargain with multiple employee groups, ensuring considerable confusion and additional expense in labor-management relations.

      There are two obvious weaknesses to a labor-management system that relies on exclusive representation. First, in the absence of a majority vote in favor of a particular union, even a large minority of workers who desire representation will be frustrated, unless the law or economic forces oblige the employer to bargain or consult with a minority union. Second, exclusive representation creates the potential for the "free rider," an employee who enjoys the benefits negotiated and protected by the exclusive bargaining representative without providing financial support. In response to this problem, unions and employers have developed several types of arrangements collectively dubbed "union security."

   2. Types of Union Security Arrangements

      1. The Closed Shop

         The closed shop allows the employer to hire only employees who are members of the union at the time of hiring, and membership in the union remains a condition of employment after hiring. The closed shop was permitted under the original version of the National Labor Relations Act (NLRA), (7) but since each employee's job was to subject to the vagaries of internal union discipline, even if the employee diligently paid dues, abuses occurred. Negative publicity about abuses of the closed shop led to its prohibition in the Taft-Hartley Amendments to the National Labor Relations Act in 1947. (8) The closed shop can no longer be legally enforced in any workplace in the United States.

      2. The Union Shop

         Under the union shop, employees must become and remain full members of the union within a defined time period after hiring, usually 30 days. The union shop is only slightly less coercive than the closed shop from the employee's viewpoint, but it represents a significant shift from the employer's viewpoint, since the union no longer has complete control over the pool of potential employees.

         The NLRA does not prohibit the negotiation of the union shop, but the employer's ability to enforce union shop agreements is limited by NLRA § 8(a)(3) and the U.S. Supreme Court's decision in NLRB v. General Motors Corp., where the Court held that the NLRA did not authorize any union-shop membership requirement beyond the payment of fees and dues. (9) Since it is a violation of the NLRA for an employer to enforce a union shop clause against an employee who has faithfully tendered dues and fees to the union, employees are protected from losing their jobs as a result of any union discipline not related to dues payment. The courts have also held that objecting employees are entitled to a rebate of the portion of union dues and fees used for political or public affairs purposes. (10)

         Even though the union shop has not been fully enforceable under federal law since 1947, it was the most common form of union security in private-sector collective bargaining agreements as recently as 1995, (11) and it even exists in a few public-sector agreements. (12)

      3. The Agency Shop and Fair Share

         Even as they banned the closed shop, the drafters of the Taft-Hartley Amendments were sufficiently concerned about the "free rider" problem that they carefully crafted the Act to allow milder forms of union security, including the agency shop...