Bargaining for Pay

The biggest difference between federal and private sector labor unions is federal unions' inability to bargain for pay or call for a strike.

This double whammy leaves unions representing federal employees -- for all their lawsuits, grievances and congressional lobbying -- considerably weaker than other unions. But Bush administration efforts to lessen federal union influence could actually empower the labor groups to bargain for pay for almost a million government employees.

Multiple court decisions barring the implementation of new labor rules in the Homeland Security and Defense departments mean that for now, the departments would have to move ahead with their planned new pay systems without increased management power. Appeals are still in the works.

"If the regulations are messed up by the courts … then you could well find the unions arguing they have a right to bargain over pay," said George Nesterczuk, who recently retired as the Office of Personnel Management's senior adviser on the National Security Personnel System in the Defense Department.

Governmentwide regulations block unions from bargaining over pay, but when agencies leave the General Schedule, those governmentwide protections are left behind. The biggest example is the Federal Aviation Administration, which left the General Schedule for a more flexible pay system in the 1980s and began bargaining over pay.

"FAA is penny ante compared to DoD," Nesterczuk said. "I mean, [in] FAA you're talking about 40,000 employees. DoD has 20 times that. So a billion-dollar payroll problem for the FAA becomes a $20 billion problem for the government when you're looking at DoD. That's a huge deal."

It's far from clear that the $20 billion problem will come to life. Doris Hausser, a senior OPM adviser, explained that the regulations on even the pay portions of the DHS and Defense systems, which were not enjoined by the courts, bar collective bargaining on pay.

"DoD put [that] into its regulations but it is not something that was put into the law," said Terry Rosen, a labor relations specialist for the American Federation of Government Employees. "We have our beliefs of what would be bargainable. We've said all along that we believe that the only bar to bargaining pay in the federal sector is governmentwide law and regulation."

Unions representing Defense and Homeland Security employees say their lawyers are still in an exploratory phase, but they come down in varying degrees, at least publicly, on how much they want the authority.

"We'd love to negotiate pay," said Matt Biggs, spokesman for the coalition of Defense unions that filed the lawsuit. "We think that's a possibility. What they've done is they may have enabled the unions the ability to negotiate pay. That's not a problem for us."

"I think there are plusses to it and there surely are -- there will wind up being -- funding issues as there always are," said National Treasury Employees Union President Colleen Kelley. "But we have always been more than willing to move into the arena of bargaining for pay."

"If it is broke, don't throw [the pay system] baby out with bath water," said Ron Ault, president of the Metal Trades Department, AFL-CIO. "Yeah, I do [want to bargain for pay], but I don't want to change the way that pay is totally calculated."

Agency officials who put together the new systems are clear that they did not want to move into the pay bargaining arena.

"We don't believe pay should be subject to collective bargaining," Hausser said.

In fact, current governmentwide law does not explicitly bar pay bargaining. Instead, it prohibits bargaining over job classification -- which amounts to pay within the rigid General Schedule -- and sets a governmentwide pay system that can't be toyed with in individual agencies without authority from Congress.

But with the new systems, "our intent [was] of being very straightforward," Hausser said, that unions cannot bargain over pay.

In the end, the Federal Labor Relations Authority would have to rule on what is negotiable under the systems, should a party bring up the issue.