The Wages of Federal Employees. Can We Talk?

• Author: by Captain Natalie L. Griffin
• Pages: 07

1. INTRODUCTION

   As long as management and labor sit acmss a table fmm each other they wlll duagee. The problem becomes even more complex not only when they disagree over the topic of discussion, but also when they disagree over whether to discuss the topic at all. The salaries of federal employees have long been such a topic. Thls paper will review the question whether union proposals concermng the compensation of federal employees are permissible topics far discussion.

   Recent cases are divided in their holdings and yet uniform in the questions they have examined' The issues are clearly threefold. Thefint issue IS whether compensation of federal employees whose rates of compensation are not specifically set by Statute is a negotiable "condition of employment:'z The second is whether bargaumng proposals that involve compensation of employees are "on-negotiable because they interfere with the agenq's management nght to deter. mine its b~dget.~

   The third issue 1s whether the duty to bargain over wages is inconsistent with federal law or government-wide rules or regulations, or alternately with agency rules or regulations for which a compelling need exists.'

   It 1s the position of various federal agencies that these types of proposals are not negotiable The Federal Labor Relations Authom ty (FLRA) insists that they are indeed negoriable Federal cmuns that have considered the question are equally diwded in their responses Most recently the question was addressed to the United States Supreme Court m Fort Sfmarl Schools ?: FLRA The Supreme Court decided this case on May 29. 1990 This article will review the historical context giving rise to the controversy aver these labor disputes, including this most recent decision that resolwd some of the issues

   1. COLLECTIVE BARGAINING IN THE FEDERAL SECTOR

      To undemand the positions of the various players. the authoiity under which the> operate and their roles in the process must be analyzed There is one underlying theme to this collective bargain mg process that cannot be disputed-collecnw bargaming 1s favored In 1978 the Federal Semse Labor-Management Relations Statute was enacted as Title VI1 of the Cinl Service Reform Act Congress was unequivocal in its statement of purpose, stating

      (1) expenence m both private and public employment indicates that the statutorg protection of the right of employees Io organize, bargain collectnely, and participate through labor organizations of their own choosing in decisions Tvhlch affect them--

      ~~

      (A) safeguards the public interest. (9) contributes to the effective conduct of public busmess. and (C) fmiitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment k f o r e . labm orgmnizattons and collectire hamatnunu in the ciiil seryzce are i?~the public

      iliterest.~

      Government agencies are tasked to engage in collective bargaining with their emplogees through the employees' excIus~ve represen-

      19901 FEDERAL WAGES

      tative This duty to bargain 1s a duty to "bargain m a good-faith effort to reach ageement with respect to the conditions of employment ''lo Case law LS replete with exampies of "conditions of employment" that are proper subjects far negotiation11 There IS still much room far argument. as evident from this article's discussion, over what the term "conditions of employment" means The statute defines conditions of employment as

      personnel policies, practices, and matten. whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies. practices, and matters-(A) relating to political activities prohibited under subchapter 111 of chapter 73 of this title, (B) relating to the classification of any position, or (12) to the extent such matten are ipecifically provided for by Federal statuteJ2

      Collective bargaining 1s in the public interest, and government agencies must bargain in good faith over "conditions of employment: Congess, however, recomizmg the need for the Federal Government to function efficiently and effectwely, placed limitations on the duty to bargam The obligation to bargain in the federal sector is not as comprehensive as It E in the private sector, There is no duty to bargain Over matters that conflict with federal law or a government-wide rule or regulation. or aith an agenct rule or regulatmn for

      Conimand

      'Amencan Rd'n of Gni'f Emplajeer. AFL CIO and ?IC Force L a ~ r t a r

      '7 K S C 5 7103 (a)(llj 119881aright-Pattenon A x Force Bare, Ohro 3 FL R A 601 (1980)

      which a compelling need There IS also no duty to bargaln over those areas known a6 management rights These include, among ocher things, the agency's authority to "determine the m1ssmn. budget, organization, number of employees. and internal securir) practices of the agency"'*

   2. THE ROLE OF THE FEDERAL LABOR

      Agencies must engage in godfaith bargaining with their empio) -ees over matters that are proper "conditions of employment " Haw ever, agencies and their employees are not always in agreement con cermng where the line of negotiabilitS IS drawn Is it a "conditmn of employment * Is it a management right0 The role of the FLRA. a three-member, Independent. bipartisan body appointed bg the President is to "resdve issues relating to the duty to bagam m good faith ''lj

      RELATIONS AUTHORITY

      the case ma) be uhich iirirlng rhaf d ~ornpell

      5 IlOXe)(l)(B) The FLR.4 nil1 appoint Reglunal Direcram m d Mminisrratlre Lan Judger for the proper performance of rheie functions 5 U SC 9 7lOXd) (1958) 144

      1990] FEDERAL WAGES

      A federal agency may refuse to bargain altogether by alleging that the duty to bargain does not extend to a paracular matter In that case the exclusive representative af the employees may appeal the agency's allegation of non-negotiability to the FLRA The final dew smn of the FLRA IS appealable to the courts of appeals:' The role of the FLU LS analogous to the National Labor Relations Board (NLRB) in the private sector The FLRA, like the NLRB, wa5 to "develop specialized expertise in Its field of labor relations and to use that expenise to Sve content to the principles and goals set forth m the Federal Senrice Labor-Management Relations Statute ''IS

      The parties may initially agree to bargain, but they may nor be able to reach agreement The parties have an obligation to bargain until they reach an impasse. When such an impasse is reached. it may be resolved by either party requesting the Federal Senwe Impasse Panel to consider the matter, or the parties may apee to adopt binding arbitration of the negotiation impasse if approied by the Panel?' Quite nrnplg, the FLRA is the umpire between agencies and unions,ensuring that both ades are carrying out their obligations under the federal labor relations program.

      11. THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (FSLMRS)--CONGRESSIONAL INTENT

   1. LEGISLATIVE HISTORY

      The guiding principles of collective bargaining in the federal sec-tor can be found in the FSLMRS An examination of the statute and its legislative history should clarlfy whether Conpess intended wages to be a matter for collective bargammg. The intent of Congress, however, 1s far from clear Consequently, federal courts examining the question are equally divided. There are two issues to examine in reviewing the intent of Congress. One IS the general mtent that is evident from the rhetoric during the floor debates prior to passage of rhe statute. The other 1s the more specific intent that requires an examination of the language of the statute and the history of that language.

      "6 U S C g 7117(ej(lj (1988)

      "5 LSC 5 7123 (19881"Bureau of Alcohol. Tobacco and Firearms 5 FLRA. 164 KS 88, 87 (1883) lB5 LSC 5 7118(b) (1888)

      MlLIT.4RY LAW REVIEW I\bl 120

      There are many statements that seem to indicate congressional disfavor with the proposition that wages are negotiable in the federal sector Cong~eeisman CdaU, the proponent of the compromise bill that eventually became the FSLMRS. stated

      There 1s not really any argument in this bill or m rhis title about Federal collect~ebargaining for wages and fringe benefits and retirement-the kinds of things that are giving us difficulr, in the Postal Seriice todq All these major regulations about wages and hours and retirement and benefits will continue to be established by law through congressional acmn

      Congressman Ford also StatPd, 'Islo matters that are governed b? statute (such as pay. money-related fringe benefits, retirement and so forth) could be altered by a negotiated agreemenK."" The House Report Khat accompanied the bill stated that "employees. through their unions. [\w11] be permitted to bargain with agenn management throughout the executive branch on most ISSUBS. except that iedeial

      pay will continue to be set in accordance with the pay prousions of title 6 '22

      of 1978, ai 923 (19781 Ihereinafrer Legillatire Hstor!l

      *1124 Cang Rec HS4b8(dad! ed -\ug I1 1578)(remarkinE Rep Ford) Legihtiir mime inember stated

      1990) FEDERAL WAGES

      While the above statements seem to indicate a blanket disapproval of wager as a negotiable matter, there were other views expressed Congressman Clay, who supported Representative Udail's compromise legislation, stated

      Section 7103(a)(14)(D), removing from subjects of bargaining those matters specifically provided for by Federal statute, was adopted by the committee and retained in the Udall substitute with the ckar understanding that only matiers "specifically" providedfor by statute would be ezcluded under this subsec-tion. Thus, where a statute merely vests authority over a particular subject with an agency official with the official given discretion ~n exercising that authority, the particuiar subject is not excluded by this subsection from the duty to bargain over conditions of employment.z3

      The differing statements begin to devolve into two different analyses. If only the sentiments of Congressmen Udall, Ford, and a few othen are...