The Good News: ‘Pro-employee’ is the Secret to Labor-Management Relations

By Ann Boehm, May 19, 2021

The media does it. The President and Congress do it. I do it. We break the world down into “pro-union” or “anti-union” and “pro-management” or “anti-management.” And with these worldview parameters, we miss the key consideration:  What is “pro-employee?”

The goal for any workforce is for the employees to accomplish the mission. The best way for that to happen is for employees to enjoy their jobs. That can be a little bit challenging, because it’s “work,” not “play.”

There are good managers who have the knack for getting employees to work efficiently and effectively, thus helping them enjoy their jobs. But there are plenty of managers who do just the opposite.

Based upon my years of experience, and years of reading as much as I can on leadership, Federal personnel law and guidance, and media coverage of Federal personnel issues, I think the greatest source of union organizing and angst stems from leadership that forgets to take care of the employees.

In my very first Federal sector labor relations job, the workforce was evenly divided (by five votes in two separate union elections) on who wanted to be represented by the union and who did not. Amazingly, the division broke down based upon the leadership skills of the employees’ supervisors.

The supervisors who were effective leaders tended to have employees who opposed the union, and the supervisors who were not effective leaders tended to have employees who supported the union. It was pretty amazing to witness.

For those employees frustrated with bad leadership, a labor union can seem like the knight in shining armor that will protect them from the wickedness. Yet this is not always the case, because unions are not necessarily “pro-employee” either.

I worked for Immigration and Customs Enforcement at one point during my career. At the time, I had 16 years of Federal experience. We were moving to new office space. I figured as one of the more senior Federal employees, I would get top pick for the new office space. Wrong.

As a bargaining unit member, I was constrained by the collective bargaining agreement theoretically negotiated on my behalf by the union. Turns out, seniority for the bargaining unit was based upon years of service with ICE. All my years of prior service meant nothing, and I was the last person in the office selection queue. I have to tell you it was a big morale killer. The union was not my knight in shining armor.

Unions often make bad decisions without really contemplating the impact on the employees. Unions tend to defend the bad employees, sometimes 100 percent, and often at the expense on the good employees.

Just this week, I heard from an agency that the union, in its defense of an employee’s disciplinary action, challenged the agency’s reliance on the recently revised OPM regulations on comparator employees (5 C.F.R. § 752.403(d). The union called the regulation “fruit of the poisonous tree.”

Yes, that particular OPM regulation derived from the now-revoked Trump Administration Executive Order 13839. But the language of that regulation is logical and consistent with MSPB case law dating back to Douglas v. VA, and other cases from the 1980s. It also corrects the craziness from the MSPB’s “Terrible Trilogy” of cases, suggesting agencies had to look at comparators from all over the entire “big A” Agency.

Consider what the regulation says: “Employees should be treated equitably. Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time. An agency should consider appropriate comparators as the agency evaluates a potential disciplinary action. Appropriate comparators to be considered are primarily individuals in the same work unit, with the same supervisor, who engaged in the same or similar misconduct.” 5 C.F.R. § 752.403(d).

Call me nutty, but this provision makes a lot of sense to me. The union’s knee-jerk reaction to this provision is ultimately not good for the workforce. Bad employees who engage in misconduct need to be disciplined appropriately. Otherwise the good employees the unions also represent will suffer. Disciplining every employee exactly the same just plain doesn’t make sense, yet often that’s what the unions seek.

Sometimes, though, agencies make bad decisions without really contemplating the impact on the employees, and the unions really can help. In 2018, the Department of Agriculture announced plans to relocate two of its scientific agencies from Washington, DC to somewhere else in the United States. The employees of these agencies were facing a major relocation to a point unknown. Not exactly a pro-employee action. The employees unionized pretty darn quickly.

When the USDA ultimately decided to move the employees to Kansas City, the union mobilized to try to mitigate the negative impacts of the relocation. The union was pro-employee in that situation, but the agency was not. Many of the impacted employees left the agency, despite the union’s best efforts to be the knight in shining armor. Without the union, likely more would have left.

Knee-jerk reactions from management that anything the union suggests is bad, and from unions that anything management suggests is bad, are very common and tend to muck everything up. If both sides could consider the employees (all of the employees in the bargaining unit – particularly the good ones) as a primary factor in every decision, I think the Federal sector labor-relations world would be a better place.

Better labor-management relations, and happy employees – that would be Good News! Boehm@FELTG.com