By Ann Boehm, November 17, 2021
I think oxymorons are kind of fun. An “oxymoron” is “a combination of words that have opposite or very different meanings,” according to the Merriam-Webster Online Dictionary. You know — jumbo shrimp, military intelligence (I have to include that since my husband spent his Federal career in military intelligence), small crowd, pretty ugly, freezer burn.
But are they fun in the Federal labor relations world? The administration’s emerging Federal sector labor relations policy has thus far created two oxymorons. (Full disclosure — I coined these myself based upon Administration directives.)
It started with Executive Order 14003 and this Administration’s directive (like the Clinton and Obama Administrations before it) for heads of agencies to engage in permissive bargaining under 5 U.S.C. § 7106(b)(1). In other words, we now have “mandatory permissive” bargaining. An oxymoron. I’m not going to go into detail about mandatory permissive bargaining in today’s article. We’ve hosted webinars on the topic, and it’s part of our labor relations training classes. Suffice it to say, though, mandatory permissive bargaining has been around before, and it’s not as onerous as agencies fear. (And just for good measure, the Trump Administration directed agencies not to engage in permissive bargaining, so we had “prohibited permissive” bargaining. Who knew Federal labor relations could have so many oxymorons?)
Let’s add a new oxymoron that emerged from two recent OPM directives. As of Oct. 20, 2021, agencies are being strongly encouraged by OPM to engage in what I call “neutral encouragement” of employee bargaining unit rights. An oxymoron.
According to two OPM memoranda to Heads of Executive Departments and Agencies, OPM wants agencies to highlight bargaining unit employee rights in the hiring and on-boarding processes and highlight bargaining unit employee rights to join a union and their rights as bargaining unit members.
What’s the problem with that, you may ask? Well, the Federal Service Labor-Management Relations Statute requires agencies to remain neutral regarding Federal sector unions. According to 5 U.S.C. § 7116(a)(2), it is an unfair labor practice for an agency “to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment.” OPM acknowledges this little conundrum in the Frequently Asked Questions attached to one of the memos.
OPM acknowledges that “Agencies and their managers and supervisors should remain neutral, but this does not mean agencies are prohibited from providing information to employees or removing certain obstacles that might inhibit a union’s ability to exercise its rights under the law.” Hmmmm. Could you call that splitting hairs? Wonder how many lawyers it took to come up with that distinction.
The memo further explains, “OPM is simply encouraging agencies to inform employees of the Government’s policy relating to labor-management relations and representation and informing employees of their rights under the law.”
There you have it. “Neutral encouragement.” The latest oxymoron.
And what is it, then, that OPM is “strongly encouraging” agencies to do?
- Include in job announcements whether a position is in a bargaining unit or not.
- Include in job announcements the name/local/chapter of union.
Ann’s take: I do not think these two requirements are a good or bad thing. For me, if I had known one of my past jobs was in a bargaining unit, I might have declined the position (despite 16 years of Federal service, I was lowest on the seniority rung because the Collective Bargaining Agreement provided that service within the agency counted above Federal service). Putting this information in announcements could encourage some people to apply and discourage others.
- Encourage unions to be part of new employee orientation.
Ann’s take: I do not think is a good thing or a bad thing. Employees are often overwhelmed by the information they receive during orientation. The union presentation will be just one additional piece of information for them to absorb. And let’s face it: If they are in a bargaining unit, they have bargaining unit rights. No reason to hide that from them.
- Provide new bargaining unit (BU) employees information regarding their labor relations rights.
- Provide BU employees notice of their labor relations rights on a quarterly or biannual basis.
- Highlight the BU employees’ rights to join a union and include contact information for the union representative.
Ann’s take: Providing employees notice of their labor relations rights is likely to be a good thing. Employees and even union officials often misunderstand and misinterpret their representation rights. Providing the statutory language to employees initially — and on a regular basis — may actually help agencies deal with BU employees. Whether an employee pays dues and joins the union really has no impact on the agency.
Are these requirements really neutral?
Personally, I take this neutrality stuff seriously. If it weren’t for the neutrality requirement, I may never have worked in the Federal labor-management relations world.
Way back in 1992, I was hired by the Fort Campbell Schools (FCS) because they had a union election overturned (the union lost that election) because the FLRA decided the FCS management did not remain neutral during the election process. In the second election, the union won.
FCS decided they needed a labor attorney to guide the FCS administrators on all things Federal sector labor relations, and that was how I got hired. Throughout my career, I remained acutely aware of the management obligation to remain neutral.
Even though agency “neutral encouragement” of bargaining unit rights is arguably an unfair labor practice under the Federal labor statute, what OPM is asking agencies to do is really not the end of the world. And that’s good news. Boehm@FELTG.com