Air University Review, January-February 1971
In March of 1970 the mail carriers of the United States walked out in a strike against the government. The striking mail carriers violated the law, which prohibits strikes against the federal government. Air Force management followed the events of this strike very closely. Experts in the field of employee-management relations in the Air Force are well aware that strikes of varying degrees have occurred in the public sector throughout the country. However, the magnitude of the postal strike was a shocker. A surprising historical first resulted from the postal strike when a cabinet officer sat down with the union at the bargaining table to discuss the nonnegotiable item of wages. Developments in the postal strike have in a sense established a “new ball game” for management in the Department of Defense.
Many commanders in the Air Force today, as well as young officers who are destined to become commanders, know very little about a commander’s responsibilities in the field of union-management activities. The purpose of this article is to inform the Air Force line officers of important changes in the labor-management program and to offer suggestions as to attitude, techniques of negotiation, and proper language in agreements.
Since 1962, USAF involvement in labor-management relations has become a major element of the civilian personnel program. With the momentum provided by Executive Order 10988, union growth within the civilian work force has made substantial gains. Today over fifty percent of Air Force employees are represented by unions with which management deals regularly on an official basis. This impressive growth of unionism, not only in the Air Force but throughout the federal sector, eventually created a need for change in certain aspects of the labor relations program. Accordingly, Executive Order 11491, dated 29 October 1969 and in effect since 1 January 1970, was designed to bring greater maturity to labor-management relations on both sides of the negotiating table.
The greatest change made by Executive Order 11491 is in providing for centralized authority over certain key matters that have proved troublesome to both unions and management. Decisions on issues and disputes concerning unit determinations, elections, unfair labor practices, negotiability questions, and other matters will be made by such impartial outside bodies as the Federal Labor Relations Council, the Federal Service Impasses Panel, and the Assistant Secretary of Labor for Labor-Management Relations. The introduction of third-party review means that management actions and decisions may be subject to close appraisal by an authoritative outside agency when they affect employees and their unions.1 This also means that a third party will make decisions that have historically been made by commanders concerning grievances. Never before in the history of the military services has this been true.
changes made by EO 11491
Time and space permit only an abbreviated explanation of the important differences between the old executive order entitled “Employee-Management Cooperation in the Federal Service” and the new one entitled “Labor-Management Relations in the Federal Service.”
The new policy section prohibits a supervisor from acting as a union officer or representative of a labor organization (other than excepted by Section 24), and an employee is prohibited from participating in the management or representation of a labor organization where there would be conflict or apparent conflict of interest or incompatibility with law or official duties.
Section 3 applies to all employees and agencies in the executive branch except when an agency head determines that it cannot be applied in a manner consistent with the internal security of the agency. An employee who administers a labor relations law or EO 11491 may not be represented by a union that could be party to a matter the employee would consider in the course of his official duty.
The major changes are contained in the administration section. It provides for the President to designate a top-level interagency committee, known as Federal Labor Relations Council, as central authority to oversee programs, settle policy issues, and act as final appeals body on labor-management disputes except negotiation impasses on substantive issues. The President will appoint a high-level government panel, known as Federal Service Impasses Panel, to assist in resolving negotiation impasses or, if necessary, to make final decision in resolving an impasse. Arbitration or third-party fact-finding, with recommendations, may not be used except when expressly authorized by the panel. This section also transfers authority from agency heads to the Assistant Secretary of Labor for Labor-Management Relations to supervise elections and certify results and to decide unit and representation disputes, questions of eligibility for “national consultation rights,” complaints of unfair labor practice, and standards of conduct cases. The Assistant Secretary also has power to require an agency or union to cease and desist from violating the order on these matters and take appropriate affirmative action to effectuate the policies of the order.
The recognition section transfers authority from agency heads to the same Assistant Secretary to disqualify organizations from recognition because of corrupt or undemocratic influences.
The section on agreements requires that both parties negotiate in good faith. It clarifies those items that are not negotiable, adds a new one on internal security practices, and provides new rules for settling disputes on negotiability issues. A new policy protects an agreement from effect of change in agency regulations unless the change is required by law or outside authority. An agreement may not require an employee to become or remain a union member or to pay money to a union except as he voluntarily authorizes.
An agreement may now contain employee grievance procedures which meet Civil Service Commission requirements; may make them the only grievance procedures available to employees in a unit; and may provide for arbitration. An agreement may contain procedures for consideration of disputes over interpretation and application of an agreement, including arbitration with consent of the union. Both parties may file exceptions to the arbitrators’ award, and the agency and union will share all costs equally. Agency head can disapprove a locally negotiated agreement if disapproved on the basis of conflict with applicable law, policy, or regulations.
The sections on disputes and impasses authorize use of the Federal Mediation and Conciliation Service to assist in negotiating agreement and use of the Federal Service Impasses Panel to bring about final resolution of impasses.
The section on conduct of labor organizations and management now requires organizations to file financial and other reports, to provide for bonding of officials and employees, and to meet trusteeship and election standards. The Assistant Secretary of Labor now prescribes regulations and decides alleged violations.
The new EO covers additional unfair labor practices and clarifies some previous provisions. Again the Assistant Secretary of Labor is responsible for impartial procedures and enforcement, including antistrike and picketing provisions.
The EO prohibits authorization of official time for employees acting as representatives in negotiations with management, even when the meeting was requested or approved by management. It authorizes dues allotments but terminates all formal and informal recognitions.
A careful evaluation of the changes brought about by EO 11491 and a reading of the entire order will indicate to the Air Force officer that labor-management activities at any installation can become complicated, technical, and perplexing. The more experience a commander has in labor-management relations, the less trouble he will encounter in day-to-day dealings with the unions. It is true that every base commander and higher-level commander usually has one or more highly trained civilian employees and an Air Force judge advocate who can resolve or furnish advice to assist in the resolution of most labor-management matters. Notwithstanding the excellent management teams located on our Air Force bases, most serious problems that occur in the labor-management area are caused by unit commanders who take improper action or fail to act when it is their responsibility to do so. This situation may be aggravated by the retirement within the next three to five years of most commanders who have attained a high level of efficiency and knowledge in labor-management relations.
Unfortunately, we still have military and civilian managers who have no interest in learning more about the new Executive Order and whose thought and action patterns have not changed. Some officers hold the view that civilian employees should not question management decisions simply because they work for a military department. The point I am making is that every Air Force officer serving as a commander or occupying a position with labor-management responsibilities should make a greater effort to become more knowledgeable, proficient, and productive in the USAF labor-management program. Commanders must understand that unions are here to stay and that unionism plays a major role in employee relations. As EO 11491 comes to bear on the USAF’s labor-management relations program, management attitudes and views will have to be adjusted to the changing character of civilian personnel administration.
The Personnel Development Center at Gunter AFB, Alabama, conducts a short course in labor-management relations, which is designed to provide management the knowledge needed for effective labor relations at the activity level. Most of the students are key civilian employees, judge advocates, and line officers occupying staff positions. Base commanders and their deputies should attend.
why unions?
Air Force officers, aware that unions are firmly implanted in the federal service, may ask: “What is the purpose of unionism for government employees?” The answer: “To share the decision-making process with management.” For many, this sharing is merely an extension of the basic democratic premise on which our society is founded. Given the egalitarian spirit of our origin, it is not surprising that men whose careers and livelihood are deeply involved in a particular set of options are anxious to be informed in advance of the final management decision. They naturally desire to be consulted; they hope eventually to gain a voice in making the decisions.
The desire for decision-sharing is accentuated by certain aspects of modern technology. The increasing complexity of the management structure, the growth of and reliance upon computers and other automated processes, the proliferation of obscure specialists—all contribute to a feeling of insecurity or uncertainty among employees. The trend toward impersonality in work has gone too far. The personal touch is being lost. For many, joining a union restores their lost sense of companionship. It also strengthens the drive to improve working conditions. A major factor in the growth of unions in the public sector is the disparity in pay, the private sector running well ahead of the public. Industry salaries are higher than those received by government employees, especially where training and skill become an important job factor. Furthermore, job security, once the most important feature for many in the Civil Service, has lost its appeal with the new generation, which generally has known only prosperity.
It cannot be denied that quite often the reason an employee joins a union is management. However painful, it must be acknowledged that employee dissatisfaction is occasionally allowed to fester and become a problem. Usually the matter is out of all proportion to its importance, except of course to the individual who feels himself a victim of an injustice. More often than not his grievance is not directed against policy but a specific act or omission by a supervisor, who keeps the issue bottled up, perhaps unthinkingly backed by management. A union can be very effective in this situation, especially at the unskilled or semiskilled level, because it has the resources to get to the root of the problem, the time to take it to the top, and no fear of personal retribution.
union negotiator
The words “union negotiator” may conjure up a stereotype of an uncouth individual with an unsavory past. Management acting on such a mental picture naturally may pick a representative who can handle such an imagined adversary, i.e., a hardheaded, aggressive, chip-on-the-shoulder negotiator. Actually, the union negotiator is usually well trained, well dressed, well mannered, intelligent, tactful, and well paid—in a word, a professional. He will be familiar with the subject matter, having done his homework, and able to communicate. He will know how to bargain collectively, often portraying the traits of actor, preacher, lawyer, and politician. He can be very warm and likeable as well as provocative and antagonistic. Air Force installations that have not been wise enough to recognize the versatility of union negotiators have often come out on the shorter end of negotiations.
management negotiating team
There has been insufficient appreciation on the part of management of the importance of the negotiating team. All too often reluctant middle-level managers are selected either because “they won’t be missed too much” or because top management is not interested and is apprehensive about unions. But usually it is the people who will be missed that would make the best negotiators. In fact, Air Force negotiations under EO 10988 showed that the unions will expect the chief spokesman for management to be at the bargaining table speaking for the commander. If the chief spokesman does not have that authority, chaos may develop.
The most important trait of a successful management negotiator is that he be a fighter who can maintain his position with patience and calm—in the current vernacular, he must “keep his cool.” An inexperienced negotiator may be worn down by a skillful, determined adversary to the point where he is willing to give in, or rather give up after prolonged bargaining on one issue. The management negotiator must know or learn how to bargain collectively. The labor-management specialists of the civilian personnel office and the base legal adviser can give excellent advice on how to bargain. The “old man” (commander) can furnish the best guidance on this subject because he is the best judge of what the command is willing to give and what it needs to gain.
In my opinion, a staff judge advocate should not be the commander’s negotiator, even though he may otherwise be the ideal choice. It is very difficult for a staff judge advocate to maintain his role as legal adviser to the commander and all his people and at the same time be a decision-maker for the commander at the bargaining table. An Air Force negotiator must be familiar with the mission and all activities of the organization he represents. He should be familiar with the hopes, fears, desires, and problems of many of the employees. He should understand the nature and politics of unions. He should be aware of the laws, rules, and regulations governing employees in the Civil Service. To sum up, what is required is the knowledge of the political scientist, the skill of the lawyer, the tact of the diplomat, and the philosopher’s understanding of human nature. Such a paragon is hard to come by. My point is that only the best people are good enough for the job.
written agreements
The Directorate of Civilian Personnel, USAF, will publish a new Air Force manual on labor-management relations, and one of its chapters will pertain to policy, contents, duration, and other requirements of the negotiated written agreement. This manual will implement EO 11491 and should be followed explicitly during the writing of an agreement. I would like to pass on a few suggestions that I have learned from my experience as adviser to management’s negotiating team and as a participant in writing negotiated agreements.
The selection of words which make up agreement language is very important. A quick but basic example is that the word “will” should not be used when “may” would be more appropriate. “Will” is certain and usually irrevocable; “may” can preserve management’s prerogative and right. The articles of an agreement should be accurate, effective, and easily understood. Legal “whereas,” “wherefore,” and language that is difficult to understand have no place in an agreement between management and a union. An article must not be indefinite, ambiguous, vague, repetitious, superfluous, too broad, or illegal. Some words and phrases that should be avoided in writing union-management agreements are “compelling circumstances,” “grievance or complaint,” “conditional assignments,” “compelling personal emergency,” “from within whenever possible,” “mutually agreeable,” “mutual interest,” and “all.” These words, used properly, can, of course, be most appropriate, but they are often used improperly and leave sentences open to extreme interpretations.
The title and text of an article should clearly relate to the same subject matter. If the title of the article is “Overtime Work,” do not talk about leave without pay in the text. Agreements should not quote or paraphrase regulations because there is always doubt that the article means the same thing as the regulation. It is perfectly proper to refer to or cross-reference a regulation, if desired. When agreements are ready for extension or renewal, management must ensure that all articles are in accordance with regulations published after the original date of the agreement. The best written agreements between Air Force management and the union are short and clear.
attitude of commander and top management
The attitude of a commander and his key management people can usually determine success or failure in all their relations with recognized unions. The commander and his staff must convey a spirit of willingness to consult, understand, cooperate, and explain their situation to local union officials. The daily relationship with union officials should be grounded in the knowledge that the commander is easy to reach and approach. If not, the unions will bypass local managers and take their disputes to Headquarters Air Force level. For example, a few months ago a new base commander told me that he had the perfect solution for dealing with the union and keeping union officials on the straight and narrow. He established a policy of dealing with the unions at “arm’s length” and communicating with the officials by written correspondence. His policy was short-lived because the roof of his hard-shell policy fell in on him. Good judgment, understanding, and approachability must be built and fostered at the activity level.
In order to maintain a position of leadership, Air Force managers and supervisors must be alert to recognize employee problems. Prudent management will make special efforts to smoke out problems that may exist with employees but go unnoticed by management. Management cannot be complacent but rather must be concerned as to employee conditions and relations in every activity in the command. Good management practices are not always prescribed in directives and standard operating procedures. Air Force management was definitely improved under Executive Order 10988, and many advancements were made in the field of labor-management relations. In my opinion, however, the surface has barely been scratched. Young managers in the Air Force have a wide-open field of opportunity to use their imagination and ingenuity in discovering new ways of using unions to the advantage of the Air Force.
It is true that government-employee unions do not have the right to strike.
However, in addition to the recent postal strike, other public employee unions
have struck in some communities in the nation. A governor’s commission in
Pennsylvania has recommended that the Public Employee Law be revised to give
public employees a limited right to strike.2 In 1968 the
International Association of Fire Fighters deleted a 50-year-old no-strike
pledge from the union’s constitution.3 In 1968, the National
Association of Letter Carriers and the National Postal Union approved a
resolution requiring their national officers to “investigate fully the legal
and legislative technicalities involved so that Government employees may be
accorded the right to strike by the Congress” and to “study the feasibility of
removing the no-strike oath that we are now required to take as a condition of
employment.”4
If and when this trend may affect the Department of Defense are of interest and concern to the military services. So long as government employees are denied the right to strike, management throughout the Air Force must be responsible for replacing it with a procedure that insures fairness and meaningful collective bargaining. The importance of the Air Force’s relationship with unions, particularly in view of their impact on its mission, is sufficient justification for Air Force officers to become knowledgeable and proficient in this specialized and highly interesting responsibility of command.
Hq Air University
Notes
1. TIG Brief, USAF, Nr. 5, Vol. XXII, 13 March 1970.
2. Government Employee Relations Report (GERR), B-10, Nr. 251, 1 July 1968.
3. GERR, B-1, Nr. 259, 26 August 1968.
4. GERR, A-9, Nr. 259, 26 August 1968.
Colonel Joseph E. Hearn (L.L.B., Memphis State University) is Staff Judge Advocate, Hq Air University. During World War II he flew 122 combat missions with 51st and 23d Fighter Groups, in China. Since returning to active duty in 1950, he has had legal assignments with Air Training Command and Air Force Systems Command and in Japan, the Philippines, Saudi Arabia, and Okinawa.
Disclaimer
The conclusions and opinions expressed in this
document are those of the author cultivated in the freedom of expression,
academic environment of Air University. They do not reflect the official
position of the U.S. Government, Department of Defense, the United States Air
Force or the Air University.
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