Court to settle union-management power struggle

The U.S. Court of Appeals for the District of Columbia Circuit Tuesday heard arguments in a case that will determine whether federal agencies must expand the scope of bargaining with employee unions.

The case, which pits several unions against the Federal Labor Relations Authority and the Justice Department, hinges on the question of whether President Clinton committed agencies to bargain over issues traditionally reserved as management rights.

In section 7106(b)(1) of federal labor-management relations law, agencies are given the option to elect to bargain over "the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or ... the technology, methods, and means of performing the work." Those issues are often referred to as "permissive" or (b)(1) issues.

In 1993, President Clinton issued Executive Order 12871, which instructed agencies to bargain over (b)(1) issues.

In court on Tuesday, the National Treasury Employees Union argued that Clinton's order serves as a decision on behalf of the entire executive branch to engage in (b)(1) bargaining. If an agency won't bargain over (b)(1) issues, then the union can file an unfair labor practice with the Federal Labor Relations Authority, which can order the agency to the bargaining table.

But the FLRA contended that it cannot compel agencies to follow the executive order. Section 3 of the order states that it "is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review."

The Justice Department echoed the FLRA's contention, saying the President can enforce the order by political means, including firing officials who ignore the order. But unions cannot pursue (b)(1) disagreements with the FLRA or in the courts, Justice officials argued.

Justice attorney Alfred R. Mollin said the order was not intended to give unions the right to bargain over any issue they choose. For example, a union wanted to bargain over when Immigration and Naturalization Service inspectors could carry guns at JFK Airport in New York. The President did not mean that such issues should be discussed at the bargaining table, Mollin argued.

NTEU counsel Robert H. Shriver countered that the President could revoke his executive order if he changed his mind about the expanded scope of bargaining, but until he does, the order serves as an official decision by the executive branch to bargain over (b)(1) issues.

The three-judge panel that heard the case on Tuesday asked few questions of the attorneys. The judges asked twice whether the President could enforce his order by putting pressure on political appointees.

NTEU argued the case on behalf of the Patent Office Professionals Association. In 1994, the Patent and Trademark Office refused to bargain over its decision to hire new patent examiners with two-year, rather than permanent, appointments. The patent office union filed an unfair labor practice charge with the FLRA, which ruled last year that it could not enforce Executive Order 12871.

The National Association of Government Employees is involved in a similar case, which was bundled with the patent office case.

The Clinton administration is considering issuing a memorandum instructing agency heads to follow the executive order. But opposition from federal managers has stalled the effort.

The case is Patent Office Professional Association v. Federal Labor Relations Authority, 98-1377.