A Short History of the Statute
"A well balanced labor relations program will increase the efficiency of the Government by providing for meaningful participation of employees in the conduct of business in general and the conditions of their employment." Rep. William Clay (123 Cong. Rec. E333, January 26, 1977)
Federal employees first obtained the right to engage in collective bargaining through labor organizations of their choice in 1962, when President Kennedy issued Executive Order 10988, which also authorized the use of limited advisory arbitration of grievances. In 1969, President Nixon expanded those rights through Executive Order 11491, which established an institutional framework to govern labor-management relations in the Federal Government, set forth specific unfair labor practices, and authorized the use of binding arbitration of certain disputes. Both Orders contained provisions reserving certain rights to agency management.
Executive Order 11491 also established two new entities. One, the Federal Labor Relations Council (Council), would oversee the entire program; make definitive interpretations and rulings on provisions of the Order; decide major policy issues; hear appeals, at its discretion, from decisions made by the Assistant Secretary of Labor for Labor-Management Relations on unfair labor practice charges and representation claims; resolve appeals from negotiability decisions made by agency heads; and decide exceptions to arbitration awards. The other, the Federal Service Impasses Panel, was given discretionary authority to assist parties in resolving bargaining impasses when voluntary arrangements failed.
Title VII of the Civil Service Reform Act
By 1977, President Carter had determined that comprehensive reform of the civil service system -- the first since the Pendleton Act of 1883 -- was necessary. The Congress agreed and, after extensive hearings, passed the Civil Service Reform Act of 1978. Title VII of that Act, which specifically addressed labor-management relations and established the authority of the FLRA, engendered particularly heated debate. Eventually, that title of the bill before the House of Representatives was replaced by a substitute amendment proposed by Rep. Morris K. Udall. Members of Congress previously opposed to the initial legislation that contained a broad management rights provision supported the amendment, based on an understanding that the provision would be "narrowly construed" and would, "wherever possible, encourage both parties to work out their differences in negotiations." (Rep. Ford, 124 Cong. Rec. H9648). The House passed the "Udall Substitute," the Senate agreed to the conference report embodying that amendment, and President Carter signed Title VII, the Federal Service Labor-Management Relations Statute, into law as part of the Civil Service Reform Act on October 13, 1978, effective January 11, 1979.
The actual establishment of the FLRA was effected by the Reorganization Plan No. 2 of 1978, which took effect on January 1, 1979, 10 days before the Statute became law. As one commentator described, the legislative negotiations that resulted in Title VII and established the FLRA "so muddied the content and intent of the new agency that no one knew what it was supposed to do or how it was supposed to do it." (Patricia W. Ingraham and David H. Rosenbloom, eds., The Promise and Paradox of Civil Service Reform, University of Pittsburgh Press (1992) at 95; quoting Carolyn Ban, "Implementing Civil Service Reform" (1984) at 219.) It was clear, however, that the functions of the Federal Labor Relations Council and the Assistant Secretary of Labor for Labor-Management Relations were consolidated in an independent agency because, as President Carter explained, the arrangement under the Executive Order was "defective because the Council members are part-time, they come exclusively from the ranks of management and their jurisdiction is fragmented." (Message from President Jimmy Carter Transmitting Reorganization Plan No. 2 of 1978, May 23, 1978.)
While the statutory program was similar in many respects to the system that it replaced, there were programmatic and structural differences that radically changed Federal sector labor-management relations. Among the more significant changes affecting the structure and operation of the new agency were:
- The independent and bipartisan Authority was established to replace the Council, whose members had been the heads of three executive agencies, and given broad powers to remedy unfair labor practices and formal rulemaking authority;
- The independent Office of the General Counsel was established to investigate and prosecute unfair labor practice charges; and
- The Statute made the Authority's final orders -- which are issued in unfair labor practice and negotiability decisions -- subject to judicial review.
In addition, the Statute made significant substantive changes that would alter the dynamics of labor-management relations, including:
- Requiring that bargaining agreements contain grievance procedures terminating in binding arbitration and broadening the permissible scope of negotiated grievance procedures;
- Requiring that agencies grant official time to exclusive representatives for negotiating collective bargaining agreements; and
- Changing the nature and scope of reserved management rights and the exceptions to those rights.
FLRA Jurisdiction and Responsibilities
The jurisdiction defined for the newly-created FLRA extended throughout the world to wherever Federal agencies covered by the Statute are located. Subsequent legislation further expanded the list of entities within FLRA's jurisdiction. For example, the Panama Canal Act of 1979 extended FLRA's jurisdiction to cover employees, including foreign nationals, of the Panama Canal Commission and U.S. agencies in the Panama Canal Zone, although this jurisdiction was terminated as of July 1, 1998. More recently, the Presidential and Executive Office Accountability Act extended coverage of the Statute to additional categories of employees of the Executive Office of the President.
Coverage also has been modified over the years by Presidential Orders issued pursuant to § 7103(b) based on national security determinations. In November 1979, President Carter excluded a number of agency subdivisions, principally in the Department of Defense and Department of the Treasury. Subsequently, President Reagan suspended the program with respect to certain overseas activities, and exempted specific divisions of the Drug Enforcement Administration and the United States Marshall's Service from the Statute's coverage.
Through subsequent legislation, Congress expanded the responsibilities of components of the FLRA. For example, the Foreign Service Act of 1980 established a labor-management relations program for the members of the U.S. Foreign Service. The Chair of the FLRA also heads the Foreign Service Labor Relations Board and appoints its members and the members of the Foreign Service Impasse Disputes Panel; the FLRA General Counsel serves as General Counsel to the Board; and the Chair of the Federal Service Impasses Panel serves as a member of the Foreign Service Impasse Disputes Panel. In 1982, the Federal Service Impasses Panel gained authority to rule on negotiation impasses regarding alternative work schedules. And, in 1994, Congress assigned the Authority specific responsibilities concerning the certification of bargaining units resulting from reorganizations within the Department of Agriculture.
In addition to statutory changes related to the FLRA's program responsibilities, legislation subsequent to 1978 has affected the administrative operations of the agency. For example, in 1984 Congress designated the Chair of the FLRA as the agency's Chief Executive and Administrative Officer, which led