Speech of Robert Tobias


Speech of Robert Tobias

FLRA 20th Anniversary Luncheon

Monday, June 14, 1999


     I am very pleased to be asked to speak to celebrate 20 years of statutory labor-management relations. It seems like only yesterday that President Carter sent his Civil Service Reform package to the Hill and it did not contain a chapter converting the Executive Order system into statutorily protected rights.

     We fought hard, and successfully, and today we have a chance to look back to where we have been, where we are today, and where we might be headed in the future.

     If you can envision a continuum where at one end there was no formal or informal contact between management and employee representatives, and at the other end employees through their union representatives fully integrated into creating more effective and efficient work processes and procedures, and fully integrated into the business decision-making process at the other end of the continuum.

     Before 1963 the Postal Service had unions formed primarily for lobbying Congress and there were a few unions in shipyards in which rudimentary bargaining took place. The golden age of organizing began in the federal sector when President Kennedy issued Executive Order 10988. It created a system for organizing and electing employee representatives and obligated management to recognize and bargain with the elected representative.

     The scope of bargaining was slightly more limited than it is today, but the Order encouraged bargaining by having three forms of recognition-informal, formal and exclusive recognition. With informal recognition a union could request to meet with management and management, at its discretion, could meet. Formal recognition was achieved after a union had 10 percent membership in an appropriate unit and management was required to meet to solve problems for the 10 percent represented. An unlimited number of unions could have formal recognition in a unit. Exclusive recognition occurred, as today, after an election in an appropriate unit. The exclusively recognized union bargained on behalf of the employees in the recognized unit. Because employees could become familiar with unions in the informal and formal recognition stages, they began to understand the role unions could play in the workplace and were then predisposed to vote for unions when given a chance.

     As a result, employees in units of exclusive recognition went from zero in 1962 to about 50 percent of the workforce, or about 65 percent of the eligible employees by 1970. There was not much negotiation, but there was a great deal of organizing.

     Executive Order 11491 added to the rights created in Executive Order 10988 by identifying management and union ULPs, and creating an administrative structure of enforcement. The A/S of Labor for labor-management relations was directed to investigate and decide ULPs and created the Federal Labor Relations Council to decide appealed ULPs and make negotiability determinations. The Federal Labor Relations Council consisted of the Chair of the Civil Service Commission, Secretary of Labor, and Director of the OMB.

     Executive Order 11491 eliminated the three levels of recognition, banned supervisors from participating in unions, and created an additional body of enforceable rights and duties.

     The CSRA transformed a program which was established by executive order into statutory rights enforceable in court. And it created a totally independent administrative process to ensure that the rights created were enforced. One more brick was added in the wall of rights and obligations framing the federal sector labor-management relationship.

     We had the rights, we had the obligations, and we had a very narrow scope of bargaining. We had a rights-based/rules-based relationship and it was adversarial. Not just a little bit adversarial-a lot adversarial.

     And I loved it. I knew the rules; I knew who the bad guys were-and they never disappointed me; and I knew that NTEU members were hungry to feel the power inherent in the statutory rights.

     I will never forget my first hearing under the new act. It occurred in Jacksonville, Florida and involved whether unions were entitled to employee home addresses. I had a great theory based on private sector law, and I was eager to prove the brillance of my new theory.

     We held the hearing in the Federal District Courthouse. Although the ALJ did not wear a robe, the elevated bench, plaintiff and defendant tables, and a recorder was certainly enough to adrenalize a young lawyer like me.

     I should have known I was in trouble with my case when after my first witness took longer than expected, I turned to call my second witness and he was nowhere in sight. I asked for a recess and discovered he was not in the restroom as I had hoped, he left the courtroom to go to a long-standing doctor's appointment which he had failed to tell me about. Even though I eventually lost the case, I loved the drama, and because I hated losing, I knew I would love winning.

     And I was not alone. We all loved winning and we all hated losing. And when we lost, we could not wait to try a new fact pattern or a new theory. We loved the adversarial game.

     Even though there was hand wringing, several uncomplimentary GAO reports, and conferences ad nauseam to explore why we were so adversarial, we did not change. We loved it.

     We were like those 11:00 movies you sometimes watch even though you do not want to and should go to bed. You know those movies-- each guy moves into the center of the circle with a knife in his hand, and then each guy grabs one end of a short rope and they fight until one guy lets go of the rope or one guy kills the other. It is a kill or be killed game, much like federal sector labor relations.

     We each loved the game so much because every new employee right was, of necessity, created at the expense of the exercise of a management right. It was a zero sum game, a kill or be killed game. It is no wonder we fought so hard.

     And we could not expand the size of the rights pie to facilitate settlement of disputes. Increasing the size of the pie is a traditional method of solving difficult problems, but the narrow scope of bargaining prohibited any pie expansion, so we continued to fight over the scraps available.

     Although many of us called on each other to be nice, we were all comfortable in our roles.

     Government executives did not have to deal with unions because they were marginalized into discussing and negotiating issues not central to the effective management of the agency, labor relations specialists were given great stature because they kept the heathens at bay, and union leaders could be constantly angry.

     All of that changed on October 1, 1993, with the issuance of Executive Order 12871. The Order called for the creation of partnership relationships as a supplement to the existing rights/rules-based statutory program. Relationships were recognized as a necessary supplement to change the adversarial relationship, include employees, and improve agency efficiency.

     Mandating the establishment of relationships created the opportunity for the unaddressed, unresolved issues in the adversarial relationships to be addressed and resolved; for unions to expand the scope of their involvement in an unprecedented manner; and for managers to be able to make faster, better decisions which were actually implemented.

     The game changed from zero sum with a fixed pie size to potentially an infinite sized pie-all matters become discussable-not just those mandatorily negotiable and managers had the potential of creating allies instead of enemies with every decision. The Executive Order also introduced a new process tool to be used by the parties-interest-based problem solving.

     I suggest, however, that mandating the creation of relationships in the form of partnerships-a concept long understood and used in the private sector-and encouraging the use of interest-based problem-solving would not have changed the federal sector labor-management dynamic.

     The final piece of the puzzle was the portion of the Executive Order mandating bargaining on 7106(b)(1) matters. It changed the federal sector labor-management soup into gumbo. Mandating 7106(b)(1) bargaining was the essential catalyst for a paradigm shift in the program.

     Management decision-making would have to change to include SES Executives and political appointees because real money and real impact on agency programs was now on the table. The stakes were too high to relegate to labor-management specialists. There was now real incentive to include employees and their unions before decisions were made so problems could be resolved without formal 7106(b)(1) bargaining.

     For unions, the opportunity to be included before decisions were made-the opportunity to work on the symptoms rather than resisting management decisions after they were made was ample incentive to create partnership relationships. Mandatory 7106(b)(1) bargaining-the creation of an additional right-also created safety to union leaders to go forward.

     Partnership relationships take time to build and issues take longer to resolve predecisionally. The predecisional issue resolution is often done more quietly with less breast beating and the issues themselves are often not as clearly defined as they are in formal bargaining. And, of course, any union leader not excoriating a manager is assumed by many constituents to be in bed with them.

     In order to give elected union leaders the time to lead, the time to convince their constituents that proactive problem-solving is better than reactive fighting, the time to experience results, they must be able to say if all else fails we can bargain the 7106(b)(1) matters. So mandatory 7106(b)(1) bargaining provides the safety net for elected union officials to lead.

     As we know, many agencies have ignored Executive Order 12871 in whole and in part. And now the President is considering a reaffirmation of Executive Order 12871 and the mandatory obligation to bargain, and we are hearing a great deal of resistance from some career managers and some political appointees.

     Fundamentally, those opposing a reaffirmation of Executive Order 12871 and mandatory 7106(b)(1) bargaining misunderstand the critical role it plays in providing incentives to both parties to resolve problems rather than prolonging disagreement; they fail to understand the critical role it plays in providing trust to parties to jointly work on the business problems of the agency and resolve them; they ignore the evidence that agencies with effective partnerships have higher employee satisfaction, higher customer satisfaction, and are more productive.

     In order to fulfill the promise of Executive Order 12871, the executive order must be reaffirmed. But if we are truly to keep moving on the continuum toward employees being fully integrated through their union in the agency decision-making process, I think we have to keep in mind that it is the combination of rights with effective relationships that will get us there.

     The FLRA can and should play an effective and supportive role in encouraging parties to resolve problems, but the FLRA cannot forget it was created to ensure that the rights identified in the Act are protected. Without the rights, and the guarantee that the rights are protected, there will never be enough safety to create the trust critical to effective relationships. We need both-rights and relationships-in order to move us forward.

     I hope we can look back at our history to gain a real understanding of where we have been and why we are here. I hope we can summon the insight to understand that unions and management each have an interest in making agencies more effective, responsive to the public, and satisfying to employees, and, most importantly, that these interests overlap. I hope we can summon the courage to acknowledge our overlapping interests and to act on that knowledge.

     Our history in the federal sector has been rich with creativity and ingenuity. I am pleased and proud to have been a small part of that history. Even though in the future I will be watching from the sidelines, I will be watching-and hoping.

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