Labor Pains

n a number of fronts in the private sector and in federal agencies, President George W. Bush is fighting-and winning-a war against organized labor.

In the private sector, Bush has blocked more strikes than any president in recent history. Last year, he prevented mechanics' strikes at Northwest Airlines in March and at United Airlines in December. His threat to block another strike in June 2001 hastened a deal between flight attendants and American Airlines. When 10,000 port workers along the West Coast threatened to strike this summer, administration officials said they would prevent the strike or bring in Navy personnel to replace the workers.

By executive order, Bush killed three labor rules opposed by federal contractors. He also repealed a federal contracting rule that would have required government procurement officials to consider companies' labor records before awarding them contracts.

On another front, Bush is trying to widen the rift between the AFL-CIO, an affiliation of about 66 unions with 13 million members, and smaller unions that disagree with AFL-CIO tactics or policy. On Labor Day, Bush spoke at a Pennsylvania rally of the United Brotherhood of Carpenters and Joiners, which quit the AFL-CIO last year. The Bush administration also has cozied up to the Teamsters union, which is at odds with the AFL-CIO on a number of issues.

But it is in executive branch agencies, where unions have more limited rights and the president has great strength, that Bush is most successfully prosecuting his war on unions. In the federal government, the president can revoke or deny union rights for national security reasons. His appointees also can refuse to bargain with unions over pay rates, the size of the workforce and a number of other workplace issues that companies must bargain over. Clinton administration appointees voluntarily negotiated with unions over these issues; the Bush team has no such plans.

The administration's anti-union actions at federal agencies include:

• Denying collective bargaining rights to the 62,000 employees who will secure the nation's air system as employees of the Transportation Security Administration. Many previously belonged to unions.
• Reducing union power at the agency level by eliminating partnership councils. President Clinton created the councils by executive order in 1993, requiring federal executives to involve unions in management decisions outside normal bargaining procedures.
• Appointing officials, such as Deputy Administrator Ruben King-Shaw at the Centers for Medicare and Medicaid Services, who view union rights more narrowly than their predecessors in the Clinton administration. These officials are trying to take back the power that their predecessors ceded to unions.
• Revoking union rights for thousands of employees at the Justice Department, including those in U.S. attorneys offices. Bush's blanket order denying union rights to the employees came as a group of lawyers in the Miami U.S. Attorney's Office were organizing a bargaining unit.
• Threatening to deny collective bargaining rights to the 170,000 federal employees who will be transferred into the new Homeland Security Department. About 40,000 of those employees now belong to unions.

In fact, as Bush tries to weaken the unions, he may end up strengthening them. By casting the Bush administration as an anti-worker employer, unions are pulling in more members across the government. In recent years, public sector unions have held onto their members, while in the private sector union membership has declined. Nearly four in 10 federal, state and local government workers are union members, compared with just one in 10 in the private sector, according to the Bureau of Labor Statistics.

STRENGTH IN NUMBERS

In 1962, President Kennedy signed an executive order allowing federal employees to unionize. Congress put the right to unionize in law as part of the 1978 Civil Service Reform Act. Today, 78 unions represent 1.1 million of the 1.8 million civilian workers in the federal government. The unions range from the tiny 13-member Sport Air Traffic Controllers Organization to the American Federation of Government Employees, which represents 600,000 employees, or one in three federal workers. In addition, four major unions represent most of the 800,000 workers at the Postal Service, which operates under different labor-management rules than the rest of government and sees little to no intervention from the White House.

The percentage of nonpostal federal workers represented by unions has remained steady at about 60 percent since 1975, after unions launched major organizing campaigns during the 1960s following Kennedy's order. But the number of union members-those who actually pay dues-is significantly smaller, perhaps 30 percent of federal workers (which is still much higher than the private sector average). Under the 1978 law, federal employees do not have to be dues-paying members to reap some of the benefits of union representation. While AFGE represents 600,000 federal workers, only 198,453 are dues-paying members. The National Treasury Employees Union represents 155,000 employees, 74,306 of whom are dues-paying members. The four largest federal employee unions represent 836,123 employees, but only 38 percent, or 318,312, are dues-paying members. The top four unions are AFGE, NTEU, the National Federation of Federal Employees (representing 68,535 employees with just 7,528 members) and the National Association of Government Employees (representing 45,433 employees, 38,025 of whom are members).

Unions traditionally have been strongest in agencies with large numbers of clerks or blue-collar workers, such as the Social Security Administration, Internal Revenue Service and Defense Department.

During the 1990s, when many government clerical and blue-collar jobs were eliminated, unions organized white-collar professionals. The National Treasury Employees Union, for example, unionized the attorneys and accountants at the Securities and Exchange Commission in 2000. While the number of blue-collar employees represented by unions continued to shrink because of downsizing from 1999 to 2001, the number of white-collar employees represented by unions rose by 5,659, to 852,761 over the same period, according to the Office of Personnel Management.

As a result of government downsizing, the overall number of federal employees represented by unions dropped from 1.26 million in 1992 to 1.04 million in 2001, a 17.5 percent decline.

TAKING BACK POWER

The Clinton administration's creation of partnership councils was, in part, payback for the unions' tacit acceptance of downsizing, which cut the federal workforce by 430,000 jobs, or 19.5 percent, from 1993 to 2000.

During the same period, partnership councils thrived at some agencies, such as the Internal Revenue Service, where managers and unions with strong existing relationships adjusted easily to the Clinton administration's mandate to work together on a broader range of issues. At agencies with traditionally bad labor-management relationships, such as the Immigration and Naturalization Service, both sides viewed the councils as a waste of time.

In a June 21 memo to agency heads, OPM Director Kay Coles James explained that Bush's order to dissolve the partnership councils was really intended to give agency leaders some choice in the matter. In other words, the order recognized that partnership councils had worked in some agencies, but not in others. "While agencies are no longer required to form partnerships with their unions, they are strongly encouraged to establish cooperative labor-management relations," James wrote.

Indeed, the Transportation Department is re-forming its partnership council under a different name, and the IRS has never stopped including the NTEU in decisions.

But many union officials still view the Bush order as an opening salvo in the administration's assault on collective bargaining rights. In fact, skeptical union officials have charged that James issued her clarifying memo to soften the effect of another order, issued earlier the same week, that required agencies and unions to better account for official time spent on union duties. Union representatives are allowed to work on union business while on the clock because they are required to serve all bargaining unit employees, not just those who pay dues. Some union representatives say managers are using the James memo to deny them official time.

But the dissolution of partnership councils and the official time order are small potatoes compared with the growing belief among labor representatives that the Bush administration is taking every opportunity to bust unions in the federal sector. The administration's plan for a new Homeland Security Department does not guarantee collective bargaining rights for the 170,000 federal employees whose jobs would be swallowed by the new agency. After announcing the plan in June, administration officials promised that employees who are now represented by unions would be able to keep their union status when they switched over to the new department-at least at first. But the officials refused to promise union rights indefinitely.

Upon hearing the plan for the new department, NTEU President Colleen Kelley immediately thought of the Justice Department workers whom Bush had stripped of union rights earlier in the year. Bush issued his anti-organizing order on the day of a Federal Labor Relations Authority hearing in Miami. At the hearing, lawyers at the U.S. Attorney's Office in South Florida had planned to argue that they should be allowed to unionize despite the Justice Department's objections. The lawyers didn't get to make their case because the order, citing national security, banned unions at all U.S. attorneys offices, as well as at the Justice Department's Criminal Division, the U.S. National Central Bureau of Interpol, the National Drug Intelligence Center and the Office of Intelligence Policy and Review. Several hundred U.S. attorneys office and criminal division employees represented by AFGE and

AFSCME suddenly found themselves without union representation-and with no recourse, since presidential orders barring unions cannot be appealed.

The Justice Department action was on Kelley's mind when she and American Federation of Government Employees President Bobby Harnage met with three White House officials on June 7 to discuss the new Homeland Security Department. Kelley says OPM Director James, OMB Deputy Director for Management Mark Everson and White House personnel chief Clay Johnson listened but wouldn't provide any information. Kelley asked the three officials for assurance that employees would have the right to belong to unions. "They just stared at me," she says. "At one point the silence was so uncomfortable, one of them finally said, 'We understand your issue, Colleen.'"

Feeling certain that the administration was planning to prevent, or at the very least reduce, unionization at the new department, the unions began a campaign to force the administration's hand. They pressed friendly lawmakers to include provisions in the new department's authorizing legislation that would protect union workers.

AFGE and NTEU placed an ad in The Hill newspaper warning that Border Patrol agents and other Homeland Security employees would be less likely to speak out about suspicious activity if they weren't union members. The National Border Patrol Council, a division of AFGE, sent members to Capitol Hill to lobby for union rights. AFGE Local 2499 President Mark Hall, a Border Patrol agent on the northern border, appeared at a July 31 press conference with Sen. Joseph Lieberman, D-Conn. "I do not understand how my role as union leader is incompatible with my oath to protect and defend the Constitution," Hall said. Lieberman received $2,500 from AFGE and $2,000 from NTEU's political action committees during the 2000 election cycle, according to Federal Election Commission reports. Overall, labor unions' political action committees contributed $100,000 to Lieberman's $4 million 2000 election war chest. Labor will be crucial to Lieberman if he runs for president in 2004.

Union members also launched massive letter-writing campaigns. The National Association of Agriculture Employees, an independent union that represents employees of the Animal and Plant Health Inspection Service who are slated to join the new department, fired off letters protesting their inclusion in the department and the threat to their union rights.

The unions' lobbyists convinced Rep. Connie Morella, R-Md., who since 1999 has received $9,500 from NTEU's political committee and $6,000 from AFGE's committee, to introduce an amendment to the homeland security bill that would make it harder for the president to bar unions at the new agency. The law that Bush used to bar unions at the U.S. attorneys offices and elsewhere in Justice sets two criteria. First, the agency or office must have "as a primary function intelligence, counterintelligence, investigative, or national security work." Second, the president must determine that union rights are incompatible with national security objectives.

Morella's amendment, which won the approval of the House Government Reform Committee, would have prevented the president from using that authority in the new department. But the full House voted down the amendment, in part because of White House opposition. "The Morella amendment deals with collective bargaining, and the president's made clear that he opposes that," White House spokesman Ari Fleischer said on July 30, perhaps more directly than he intended. Instead, the House included a provision that adds an additional criterion to the law: The "mission and responsibilities" of an agency or office must "materially change" for the president to bar unions at the new department.

Critics of the House-passed version point out that it allows the president to waive the additional restriction if he determines that it would have a "substantial adverse impact on the department's ability to protect homeland security." That escape clause renders the additional criterion useless, Morella told House members before they voted down her amendment.

Defeated in the House, union lobbyists turned their attention to the Senate. There, they secured a provision in the Senate Governmental Affairs Committee's version of the legislation that would protect current union members' rights in the new department. The administration responded accordingly. In a speech in South Dakota on Aug. 15, Bush targeted the Senate provision. "I am deeply concerned about this provision of the Senate bill. It strips me of authority," Bush said. "If this bill were to go through, this bill would take away the authority that every president since Jimmy Carter has had, which is to exempt agencies from collective bargaining requirements, if I were to determine that our national security demands it."

Union defenders bristle at the notion that collective bargaining is incompatible with national security. "The enemy here is Osama bin Laden, not Bobby Harnage," Lieberman said at an August press conference. At a June 18 House hearing, Rep. Steny Hoyer, D-Md., who has received $15,000 from NTEU's political committee and $17,800 from AFGE's political committee since 1999, asked OPM Deputy Director Dan Blair to provide an example of union rights getting in the way of security. Blair instead listed Federal Labor Relations Authority decisions exempting groups of employees from bargaining units on national security grounds. Specifically, he included Justice Department Criminal Division employees barred from unions in 1997 and 177 Army Corps of Engineers employees barred this year.

"The president must decide whether the kind of rapid decision-making and flexibility required to adequately safeguard American lives is compatible with the constraints on management discretion imposed by collective bargaining agreements and the labor statute," Blair wrote.

DAY-TO-DAY STRUGGLES

Even at agencies not slated for the new department, many federal managers are hoping they can pull back some power from unions. A case in point is the Federal Aviation Administration, where managers and professional employees complain that former Administrator Jane Garvey gave away the store by negotiating over pay with the National Air Traffic Controllers Association in a 1998 contract. Unlike companies and the Postal Service, federal agencies generally don't negotiate with unions over pay because setting pay is considered a management right in federal labor law. Garvey, whose agency was exempted in 1996 from federal personnel laws and labor rules, granted the controllers major pay raises, which she financed by eliminating about 600 supervisory positions.

After agreeing to the contract, which is up for renegotiation next year, the FAA signed about 1,000 memorandums of understanding at the national and local levels fleshing out contract provisions, sometimes in excruciating detail. FAA managers are hoping to get many of them eliminated, says Andy Quinn, legislative director for the FAA Managers Conference, an independent association of managers that recently split off from the Federal Managers Association. For example, one memo allows controllers to come to work early or stay late to rack up credit hours, which later can be used for time off. "The manager has no say in the scheduling of credit hours," Quinn says. In addition, the managers hope that new FAA Administrator Marion Blakey will limit the scope of bargaining and take pay off the table. Senate Democrats held up Blakey's nomination while trying to get assurances that the Bush administration would approve a contract ratified by 2,000 employees represented by AFSCME in February 2001. OMB has refused to approve the contract, saying it is too generous.

At the Centers for Medicare and Medicaid Services, the union and managers are locked in contentious negotiations as managers try to wrest power from the union. "It's a war," says John Gage, the AFGE district president who represents Medicare employees in the negotiations. The CMS' King-Shaw is leading the effort to limit the union's power. An experienced labor negotiator with a degree in labor relations, King-Shaw says past CMS managers agreed to contracts that limited managers' ability to manage. The new "management felt that in order for CMS to achieve its mission for the people it serves, it had to be able to adjust personnel and resources. The contract made doing that, if not impossible, very difficult," King-Shaw says. "It is my duty to stand up for management's rights, just as unions have an obligation to stand up for their rights."

The struggle for power between unions and managers is likely to continue for the duration of the Bush administration. But ironically, the longer it goes, the stronger unions may become. Federal unions have struggled to get federal employees to become dues-paying members. Only a third of those in AFGE's bargaining units and half of those in NTEU's actually pay dues. The administration's stance against collective bargaining rights, coupled with its push to contract out work, appears to be spurring employees to join unions to protect their jobs and workplace rights. At CMS, for example, AFGE has signed up 300 dues-paying members over the past year, says Gage.

Kelley says NTEU membership has risen for the past three years and that interest in unions has grown during the Bush administration. "There's definitely more of an interest," NTEU's Kelley says. "People who never before thought union issues were about them are seeing that the administration's actions could impact them."