Union Corner: Legal History, Background of Federal Sector Unions

President Kennedy authorized unions in the federal sector by executive order in 1962. Subsequently, Congress passed the Civil Service Reform Act of 1978. Federal unions are descendent from and similar to private sector unions. The laws and concepts which govern federal unions and agencies were forged in the private sector and then modified for use in the federal sector. This series of essays will explore some of the central concepts governing union-management relations in the Agency.

For FDA employees, the legal framework for union-management relations should be easily recognizable because it is analogous to the framework that is the basis for FDA activities:

• Where consumers are protected by the Food, Drug and Cosmetic Act, employees are protected by the Civil Service Reform Act of 1978.
• Both the FD&C Act and private sector labor laws were enacted when the economic strength of employers and producers was so great that it could not be fairly countered by consumers and employees, whose lack of organization and focus fatally crippled them as a viable economic force. Essentially, consumers and employees used their greater political strength at the ballot box to level the playing field.
• The FD&C Act establishes an agency, the FDA, to administer the statute. Similarly, the Civil Service Reform Act establishes an agency, the Federal Labor Relations Agency, to administer that law.
• Both agencies are empowered to issue and enforce rules and regulations to implement their respective statutory responsibilities.
• Actions of both agencies are subject to judicial review.
• It is the activities of manufacturers and sponsors that brings them under the FD&C Act. Certification of a union by the Federal Labor Relations Agency brings both the union and agency under the Civil Service Reform Act.
• Compliance with the rules and regulations of both the FDA and Federal Labor Relations Agency is not voluntary, but mandatory.
• The appropriate subjects of FD&C Act include food, drugs, cosmetics and biologics. The appropriate subject of Civil Service Reform Act are the conditions of employment.
• The end result of the FD&C Act is a market in which the consumers gets what they pay for. The end result of the Civil Service Reform Act is a workplace where employees are treated fairly and equitably.

The Civil Service Reform Act gives employees the right to establish unions and empowers unions to negotiate contracts with agencies that govern employee-management relations in the workplace. It is the provisions in the contract that specifically govern employee-management relations by spelling out the responsibilities and obligations of employees and management. As with any contract, the provisions are enforceable by law. Organization of a union and the conduct of contract negotiations are the responsibilities of the employees. Unions are employee self-help organizations. If employees do not do things for themselves, no one will do it for them. The term “union” should always be understood as “employees.” The Federal Labor Relations Agency only oversees the activities of unions and agencies. It does not act on behalf of either party.

When Congress passed the Civil Service Reform Act, it determined that labor organizations and collective bargaining in the civil service are in the public interest. Congress memorialized its factual findings in the statute: “Experience in both private and public sector employment indicates that the statutory protection of the right of employees to organize, bargain collectively and participate through labor organizations of their own choosing in decisions which affect them safeguards the public interest, contributes to the effective conduct of public business and facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment.”

Some significant differences between the labor laws governing union-management relations in the private and federal sector include provisions that prohibit strikes by federal sector employees and exclude from bargaining those matters specifically provided for by federal law, such as rate of pay, leave and health insurance contribution. Since federal employees are prohibited from striking, disagreements between management and union that cannot be resolved by the parties are resolved by independent third parties whose decisions are binding on both the agency and employees. Unresolvable employee grievances are decided by arbitrators, and unresolvable negotiations are decided by the Federal Service Impasses Panel.

The National Treasury Employees Union was founded in 1938 as the National Association of Employees of Collectors of the Internal Revenue. This association received its charter as a federal union in 1967. In 1977, the union moved beyond Treasury Department employees to organize employees in other federal agencies.

During the 1997-’98 organizing campaign, a sufficient number of FDA employees, more than 30 percent, petitioned the Federal Labor Relations Agency to hold an election in the spring 1998. In April, a majority of FDA employees participating voted to have an FDA union, and the Federal Labor Relations Agency certified the National Treasury Employees Union. Contract negotiations will begin in September. Standard contracts cover such workplace activities as:

• The hours and place of work including related issues, such as overtime, compensatory time, office location and reorganizations.
• Performance appraisal and related issues such as tenure, promotion, discipline and awards; details; training; discrimination; grievances; contract violations; etc.

Before closing I wish to acknowledge the sad fact that many of the safeguards, rights, and liberties we enjoy today were obtained by the sacrifices of many patriotic individuals to whom we owe a debt of gratitude. This is true for those freedoms obtained in the Revolutionary War, enshrined in the Constitution and reaffirmed in the Civil War; the safeguards in the FD&C Act obtained by those who died and suffered in both the Elixir Sulfanilamide and thalidomide tragedies; and those employee rights now codified in the Civil Service Reform Act and obtained by those who suffered violence for such benefits as the eight-hour work day, a living wage, and a safe workplace.

Bob Young is serving as interim President (until the end of 1998) of Chapter 282, FDA headquarters, National Treasury Employees Union. He will be writing a short series of articles from his perspective on key labor-management concepts and how an FDA union conforms to FDA’s consumer protection mandate.