LETTER TO MR. DWIGHT INK FROM F. W. M. JANNEY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80M00165A001700110004-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 15, 2016
• Document Release Date: March 8, 2004
• Sequence Number: 4
• Publication Date: October 3, 1977
• Content Type: LETTER

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Mr. Dwight Ink
Executive Director
Personnel Management Project
U S. Civil Service Commission
1900 E Street, N. W.
Washington, D. C. 20415
Dear Mr. Ink:
We have reviewed Option Papers Numbers Four, "Federal Government
Labor-Management Relations", and Five, "Federal, State, and Local
Interaction in Personnel Management". The nature of our mission, as
well as Executive Orders, precludes our interaction with state and
local government; therefore, we have no substantive comments on
Option Paper Number Five.
As regards Option Paper Number Four (Federal Goveranent Labor
Management Relations) the Central Intelligence Agency is excepted
from the Federal Labor-Management Relations Program under provisions
of Executive Order No. 11491.
The nature and sensitivity of CIA's mission dictate that such
exception be continued and incorporated in any changes contemplated
for the Federal Labor-Relations Program.
Sincerely,
F. W M. Janney
Director of Personnel
TAT
Distribution:
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Retyped:OD/Pers:1jc(130ct77)
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TRANSMITTAL SLIP
I
DATE
TO:
Executive Registry
ROOM NO.
BUILDING
REMARKS:
FROM:
AD/Pers
ROOM NO.
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EXTENSION
I FEB 58241
REPLACES FORM 36-8
WHICH MAY BE USED.
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Executive Summary/Outline
OPTION PAPER NUMBER FOUR
FEDERAL GOVERNMENT LABOR-MANAGEMENT RELATIONS
PROBLEM: Central administration of the present program is vested
by Executive Order in a part-time Federal Labor Relations
Council (FLRC), composed of 3 top Government managers, with
some important functions delegated to the Assistant Secre-
tary of Labor for Labor-Management Relations (A/SLMR).
Traditionally, central administration of other labor-manage-
ment relations programs has been vested in a full-time
"neutral" board or authority. The managerial structure and
part-time nature of the FLRC are criticized as principal
defects of the labor relations program under E. 0. 11491.
OPTIONS: 1. Retain current organizational arrangements, either in law
or E.O.
2. Alter composition of Federal Labor Relations Council.
3. Establish an independent authority with integrated- functions.
4. Extend NLRB coverage.
IMPLEMENTING ACTION REQUIRED: Option 3 or 4 would require legisla-
tion or Congressionally-sanctioned reorganization. Option
2 may require legislation, with some action possible
through Executive order.
RELATED ISSUES: 1. Composition of authority: neutral or tripartite.
2. Powers of central authority and judicial review.
3. One or several "central" authorities.
4. Representation of the "public interest."
II. Recognition
PROBLEM: In the Federal program, a labor organization must achieve
exclusive recognition in an appropriate unit of employees
before it is entitled to negotiate for those employees.
Under E.O. 11491, exclusive recognition is won by secret
ballot election supervised by the A/SLMR. Other methods
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Part 1. CENTRAL ORGANIZATION
FOR LABOR-MANAGEMENT RELATIONS AND PUBLIC INTEREST CONCERNS
I. Organization of a Central Authority for administration of the Federal
labor-management relations program
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for granting recognition are also employed in other labor
relations systems. The election requirement of E.O. 11491
has been criticized as unduly restrictive, expensive and
time-consuming. Others believe the election process is the
best guarantee of employee freedom of choice.
OPTIONS: 1. Voluntary recognition.
2. Card-check certification.
3. Secret ballot.
4. Choice of these options as alternatives.
IMPLEMENTING ACTION REQUIRED: No legislation is necessary. All of
the above options are amenable either to administrative
action or adjustments in the E.O.
III. Unfair Labor Practices
PROBLEM: The Federal labor-management relations program has adopted,
with some adjustments, the basic unfair labor practice (ULP)
provisions of the National Labor Relations Act (NLRA).
Overall, such provisions are well understood and accepted,
both as to substance and enforcement. However, unlike the
NLRA procedures, each complainant in a ULP dispute under
E.O. 11491 is responsible for prosecuting his/her own case
before an administrative law judge. This means that in
some cases ULP records may be misleading or incomplete,
may not address the issues, may be unnecessarily long, etc.
As a result, the cost of litigation, both to the parties
and to the Government, may be excessive. Moreover,
inconsistencies in the quality of representation may
result in poor presentations, making administrative justice
in some meritorious cases more difficult to administer.
Although the 1975 review of the E.O. authorized independent
ULP investigations by the A/SLMR, he is not permitted to
prosecute these cases on behalf of the complainant, as is
done by the General Counsel of the National Labor Relations
Board (NLRB) in the private sector.
OPTIONS -- ENFORCEMENT:
1. Retain current system.
2. Provide for prosecution by A/SLMR or an independent
authority.
3. Provide for court enforcement by complainant.
IMPLEMENTING ACTION REQUIRED: The present FLRC could institute Option 2
through a change in the Assistant Secretary's regulations. An
independent authority would require legislation, as would court
enforcement under Option 3, or sanctioned reorganization.
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IV. Standards of Conduct
PROBLEM: In the private sectorry union members are guaranteed rights
to democratic participation in the internal affairs of their
labor organization by the 1959 Labor-Management Reporting and
Disclosure Act (LMRDA). Furthermore, that law places certain
fiduciary and reporting responsibilities on the officers of
labor unions to ensure that they act in the interests of their
members. While unions representing Federal employees are
subject to standards of conduct generally equivalent to those
applied by law in the private sector, the E.O. provision
lacks the direct remedies, court enforcement, and judicial
review that would be available under the LMRDA.
OPTIONS: 1. Retain current provisions.
2. Provide for LMRDA coverage.
IMPLEMENTING ACTION REQUIRED: Option 2 would require legislation.
V. Organization for handling negotiability questions
PROBLEM: Negotiability questions arise under the E.O. program when
one party submits a contract proposal at the bargaining
table which the other contends is contrary to law, regulation,
or the Order. These questions are resolved first by referring
the disputed proposal to the agency head for determination
and, if he finds the proposal to be nonnegotiable, by
appealing this determination to the FLRC for decision. Where
interpretations of the Federal Personnel Manual (FPM), of law,
or of government-wide policy are central to the resolution of
negotiability issues, the FLRC practice is to go to the authori-
tative source for its comments -- e.g., CSC, the Comptroller
General, etc. This process may be time-consuming and delay
agreement negotiations. Where management rights are at issue,
negotiability decisions by the FLRC may have an appearance
of bias -- warranted or not -- due to its management com-
position.
OPTIONS:
1.
Retain current system.
2.
Maintain current system with altered FLRC.
3.
Provide
unfair
for
labor
resolution of all such questions through
practice procedure.
4.
Provide
for
single, special, expedited procedure by
independent administrative authority.
IMPLEMENTING ACTION REQUIRED: Option 3 could be accomplished by
executive Order. Option 2 might bj -by~-E.a.: or, like
Option 4, might require legislation.
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VI. Relationship between grievance and appeal systems
PROBLEM: Numerous overlapping, and. sometimes conflicting, statutory
grievance and appeal systems are now available to Federal
employees, depending on the subject matter of their com-
plaints. In addition, E.O. 11491 authorizes bilaterally
negotiated grievance and arbitration procedures for repre-
sented employees, excluding only matters subject to a statu-
tory appeal system. Thus, Federal employees may face a
confusion of forums in processing their complaints, and
effectuation of their rights may often depend on their
ability to properly classify the nature of their claims.
Managers pay be deterred from taking necessary and appropriate
personnel actions because of the multiplicity of procedural
requirements which must be met before such actions may be
sustained if and when an appeal process is invoked by an
affected employee. Generally, "make-whole" remedies are
unavailable to Federal employees unless the requirements of
the Back-Pay Act are met -- an issue subject to interpreta-
tion by the Comptroller General. Therefore, there is general
dissatisfaction with the present grievance and appeals systems.
OPTIONS: 1. Continue current systems.
2. Permit negotiation of procedures to cover all but
certain specified appeals..*
3. Permit negotiation of full-scope grievance arbitration
covering all appeals (ULP procedure available, if
applicable).
4. Permit employee to elect appeal route: grievance proce-
dure, or statutory procedure, or ULP.
IMPLEMENTING ACTION REQUIRED: Legislation would be required to permit
negotiated grievance procedures to cover statutory appeal
systems matters. Complete "make whole" remedies would also
require legislation.
*.Appeals on FLSA, EEO, classification, political activity, etc.,
might be handled through systems other than the negotiated grievance
procedure, although there is wide support to make the negotiated
procedure as inclusive as possible. Alternatives to the present
appeals systems per se are being treated by Task Force #4 and other
PMP studies.
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Part 2. ORGANIZATION OF THE FEDERAL EMPLOYER
FOR MANAGEMENT UNDER LABOR_MANAGEMENT RELATIONS: EMPLOYEE/EMPLOYER
RELATIONSHIPS
Organization of the employer for management effectiveness
PROBLEM: Definition of the employer for purposes of collective
bargaining is one of the biggest problems in Federal
labor-management relations. Authority to make policy
is separated between'the Executive and Congress,
subject to judicial review, and it is further dispersed
within the Executive Branch, with the results that
(a) management is fragmented and cannot speak with an
effective voice in bilateral relations, and (b) most
big issues, such as pay and benefits, are beyond
the scope of bargaining, resulting in negotiations
focusing largely on a narrow 'range of management discretion
and the shifting of union actions to other arenas
outside the collective-bargaining process.
Management leadership within the Executive Branch
isn't integrated at the central level and is uneven at agency
levels, with labor-management relations sometimes
functioning as just another overlay of complicated
procedures--an add-on to already complex personnel
administration provisions.
OPTIONS: 1. Retain the present structure.
2. Establish central Executive Branch management leader-
ship with (a) creation of a central labor relations
office to provide general management leadership, and
(b) possible changes in pay-setting machinery.
3. Within agencies, elevate responsibilities for labor
relations and related personnel functions to more
integral levels of management organization.
IMPLEMENTING ACTION REQUIRED: Option 2 could be achieved through
Congressionally-sanctioned reorganization, with legislative
action required for substantive changes in pay-setting
machinery. Option 3 could be accomplished by Executive Order
or possibly administrative action under the present E.O.
II. Mechanisms for dealings
PROBLEM: Depending on the issues to be discussed, several forums are
currently available and being utilized by Government manage-
ment and Federal unions to resolve matters affecting Federal
employees. Not all of these discussions, however, constitute
"collective bargaining". as that term is used in the Federal
labor relations program, since E.O. 11491 excludes bargaining
on a range of "bread-and-butter" issues determined pursuant
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to law or controlling regulations. Such matters of vital
concern to Federal employees, including questions of pay
and compensation, are dealt with in arenas established by
such law or other authority. As the scope of permissible
negotiations continues to expand, the present mechanisms
for dealing may prove to be inadequate, and different frame-
works for union-management dealings may have to be instituted.
OPTIONS: 1. Bargaining unit negotiations.
2. Master agreements (government-wide or agency-wide),
with local supplements.
3. Multi-tiered, multi-unit, coalition bargaining.
4. Unit structures in agencies plus other mechanisms at
the central level (i.e., FPRAC, Pay Agent, President,
Congress, etc.).
IMPLEMENTING ACTION REQUIRED: Government-wide master agreements under
Option 2 might be authorized through Executive Order revision,
Congressionally-sanctioned reorganization, or through legis-
lation. Substantial revision or expansion in central-level
mechanisms under Option 4 would require legislation.
III. Unit Structure
PROBLEM: Excessive unit fragmentation has been a persistent problem
in the Federal labor relations program. In many instances,
the unit structure and level of exclusive recognition bear
no reasonable relationship to the employer's discretionary
authority over bargainable topics under E.O. 11491. Although
the present philosophy of the labor-management program favors
reduced unit fragmentation, where such unit economies are not
possible a need exists to accommodate the unit structure to
the appropriate organizational.level of the agency to facilitate
meaningful bargaining.
OPTIONS: 1. Retain the present system.
2. Apply unit criteria and bargaining experience to merge
existing units.
3. Establish units in the program charter (Executive Order/
statute).
IMPLEMENTING ACTION REQUIRED: Only Option 3 would require Executive
order/or legislation. Option 2 could be by administrative
action or may require change in the E.O.
REORGANIZATION PROCESS CONSIDERATIONS: It appears that existing recognitions,
agreements and dues-withholding arrangements should be honored
to the maximum extent possible pending final resolution of unit
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issues in agency reorganizations.
EXCLUSION OF SUPERVISORS: It appears also that supervisors should be
fully integrated and identified with agency management and
should be excluded from units covering the employees they
supervise. Unions argue, however, that the present
definition of "supervisor," as applied, is too exclusionary
and locks many whose interests are more closely aligned
with the rank-and-file out of bargaining units with them.
IV. Union Security
PROBLEM: Achievement of exclusive status means-that the labor organi-
zation must represent all employees in the bargaining unit
fairly and, equitably, without regard to their membership or
nonmembership in the organization--including negotiating
agreements with the employer covering all unit employees.
In the private sector, there is statutory authorization for
the negotiation of arrangements which require payment of union
dues as a condition of employment, or lesser forms of union
security (except in those states which expressly forbid such
contracts). In the Federal sector, however, it is argued
that due to the special regard for employment conditioned only
on merit, employees have the right to refrain from union
membership or assistance--i.e., they may not be imposed as
a condition of Federal employment. There is little or no
union support for any arrangement short of the agency shop
as the option on union security. Unions see the agency shop as
the quid pro quo for the duty of fair representation of all
unit employees.
OPTIONS: 1. Continue the present prohibition of the agency shop.
2. Mandate the agency shop.
3. Authorize negotiation of the agency shop.
4. Authorize variations of an agency shop.
IMPLEMENTING ACTION REQUIRED: Legislation annears to be required
to_ authorizt agency sciup..
Part 3. SCOPE OF BARGAINING
I.. General scope of bargaining
PROBLEM:, The scope of bargaining is narrowed by the exclusion of pay
and benefits and by policies controlled by CSC in most
personnel areas and by other central-management agencies
Minimizing opportunities for meaningful trade-offs and focusing
negotiations . on areas ;of_managemen.discretion..-
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OPTIONS: 1. Continue the current.scope of bargaining.
2. Maintain the current scope of bargaining, but modify
and expand consultation procedures in pay setting to
include benefits determinations -- total compensation
consultation.
3. Expand the scope of bargaining at the central level of
the national government to include pay and/or benefits
determinations.
4. Expand the scope of bargaining to permit the negotiation
of agreements which cover matters now within the authority
of central-management agencies --e.g., certain personnel
regulations issued by CSC.
5. Expand the scope of bargaining to permit the negotiation
of agreements which cover matters now proscribed by certain
laws, including some central personnel system matters.
IMPLEMENTING ACTION REQUIRED: Options 2 - 5 would require legislation,
with relatively long-term developmental leadtime (1979-80)
for total compensation consultation or bargaining.
II. Management Rights
PROBLEM: "Management rights" is a term which refers to those powers
vested in management which bear a reasonable relationship
to its ability to carry out its responsibilities.
Although such matters are generally negotiable in the
private sector, since the inception of the Federal labor
relations program in 1962 "management.: rights" have comprised
an express exclusion to the employer's bargaining obligation
under the Order. Unions believe that these reserved rights
unduly restrict the scope of negotiations under the Order,
and constitute additional evidence of the Order's perceived
management bias. Agencies, on the other hand, argue for a
continuation of an exclusion of management rights from
negotiations on the ground that fundamental differences
between the public and private employer require that these
essential management tools not be subject to the vagaries
of the bargaining process.
1. Shift certain subjects enumerated in Section 11(b)
to Section 12(b).
2. Maintain the subjects enumerated in Sections 11(b)
and 12(b) of the E.O. on reserved management rights.
3. Reduce the subjects of these Sections.
4. Eliminate these Sections.
IMPLEMENTING ACTION REQUIRED: Option 2 or 3-could be by Executive
Order.
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Productivity, Quality of Working Life, and Labor-Management Relations
PROBLEM: Productivity improvement is a-commonly accepted goal in the
Federal government. But while some constructive efforts
have been undertaken'bilaterally.to 'improve productivity and
quality of working life, those efforts have been relatively
few. Productivity bargaining in its technical definition
appears inapplicable in Federal labor-management relations
-- i.e., restrictive work-rules have not been a pattern in
negotiations and economic trade-offs are not possible. But
there is a place for bilateral efforts to improve productivity
and quality of working-life through consultation committees.
nPTION? Bilateral Consurtation Committees.
IMPLEMENTING ACTION REQUIRED: No changes are required in
labor-management relations provisions. Bilateral
leadership is needed.
I. Organization for Impasse Resolution
PROBLEM: Present FSIP provisions and its "arsenal of weapons" approach
evoke general satisfaction for agency-level impasse procedures.
If the scope of bargaining should be enlarged to include central
level matters, such as pay, appropriate new procedures would be
required.
OPTIONS -- CENTRAL GOVERNMENT-WIDE IMPASSES:
1. Current procedures.
2. Expansion of current procedures.
3. Tripartite or neutral advisory arbitration panel.
4. Binding arbitration.
OPTIONS -- AGENCY-LEVEL IMPASSE RESOLUTION: (not mutually exclusive)
1. Mediation and "med-arb."
2. Fact-finding with recommendations.
3. Compulsory binding arbitration.
IMPLEMENTING ACTION REQUIRED: Legislation and/or sanctioned reorgan-
ization would be required for central impasse procedures.
Present FSIP probably requires no change. Administrative
action may improve existing third-party processess.
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_X.:
RELATED ISSUES:
1.
Aspects of Congressional control.
2.
The public's interest in Federal bargaining and
impasse resolution.
II. Federal government strikes t picketing, and other job actions
PROBLEM: Strikes by Federal employees, although not unknown, continue
to be rare. Such job actions by Federal workers are now
illegal, and there is no apparent groundswell of support
by the parties to the Federal labor relations program, .
including employees, to alter this statutory policy. On the
other hand, recent court decisions have established a First
Amendment right of Federal employees to engage in peaceful
informational picketing of their employer in a labor-management
dispute in most instances, with an exception being drawn for
picketing conduct which actually interferes with, or reasonably
threatens to interfere with, Government operations. The express
language in the current E.O. which attempted to circumscribe all
picketing in a labor-management dispute has thus been nullified,
and a more limited policy, based on a case-by-case review by the
FLRC, is now in effect.
OPTION: Draft a narrower provision to ban picketing which actually
interferes with (disrupts); or reasonably threatens to
interfere with (disrupt), Government operations; which
creates an impermissible work stoppage; or which aids in
achievement of an unlawful objective.
IMPLEMENTING ACTION REQUIRED: Revision of Section 19(b)(4) of E.O. 11491.
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