A Brief History of Collective Bargaining in the Federal Sector

Categories: The Insider, Contracts

Last week AFGE local and council officers and staff were invited to join an AFGE NOW training with renowned expert, Peter Broida, to learn all about expanded bargaining rights. 

Peter, who once served in AFGE’s General Counsel Office, is the most sought-after speaker on the subject of federal sector bargaining. He developed this training on the what and the why of the bargaining, with all the caselaw, hand in hand with our experts from AFGE.  

Peter went over all the executive orders issued decades ago and our union’s responses to them that shaped our policies today. It’s clear that the expanded rights we have today would not have happened without our union’s involvement, political nudges, and demands. 

If you missed the training, here’s a brief history of collective bargaining in the federal sector and what we should do with Biden’s executive order on collective bargaining rights: 

1. Subjects that can be negotiated are more limited in the federal sector than the private sector 

The National Labor Relations Act of 1935 signed by President Franklin D. Roosevelt is a labor law that guarantees the right of private sector employees to organize. Under the law, private sector workers can negotiate over wages, hours, and conditions of employment. If management wants to have rights, they have to negotiate for them. 

Unlike the private sector, subjects that can be negotiated in the federal sector are much more limited. In fact, when the NLRA became law, federal unions were not even recognized and wouldn’t be until almost three decades later.  

2. JFK issues an executive order recognizing federal unions, but… 

President John F. Kennedy issued EO 10988 in 1962 to formally recognize unions in the federal sector. Unions could negotiate over working conditions, personnel policy, and others, but could not negotiate over agency mission, budget, organization, assignment of personnel, technology of performing its work. The JFK EO also stipulated management’s rights. Because of so many restrictions, there was widespread dissatisfaction among unions. 

3. Nixon expanded union rights, but… 

President Richard Nixon issued EO 11491 in 1969 to expand rights under JFK’s EO. It created the Federal Labor Relations Council to oversee labor-management relations, unfair labor practices, binding arbitrations, certain disputes, major policy issues, appeals. It also created the Federal Service Impasses Panel. 

EO 11491 also allowed negotiations on personnel policies, matters affecting working conditions, published agency policies and regulations. But it prohibited negotiations on mission, budget, organization, number of employees, types, grades of positions or employees assigned to a unit, work project, or tour of duty, technology, internal security practices. 

EO 11491 also included a management rights clause and allowed appropriate arrangements for employees adverse affected by the impact of realignment of work forces or technological change. 

Because of restrictions, there was dissatisfaction among unions. 

4. Unions won more rights through CSRA 

With President Jimmy Carter’s support, Congress passed the Civil Service Reform Act of 1978, codifying employees’ rights to join a union and engage in collective bargaining over their working conditions – personnel policies, practices – except policies and practices related to political activities prohibited under Chapter 73 subchapter III, classification of any position, matters specifically provided for by the federal statue. 

Under CSRA, now we can negotiate over numbers, types, grades of employees and positions of employees assigned to any subdivision, work project, tour of duty, technology, methods, means of performing work – rights specified under 5 USC 7106 (b)(1).  

This is huge! 

5. Clinton created labor-management partnerships 

President Bill Clinton issued EO 12781 in 1993 to create Labor Management Partnerships. The EO also allowed negotiations over the issues under CSRA 5 USC 7106 (b)(1) issues but allowed no administrative or judicial review. The order resulted in more bargaining over b(1) subjects, but some agencies did not elect to do so, and the courts found the agencies were allowed to refuse to bargain b(1) subjects despite the EO. 

6. Obama’s disappointing directive 

President Barack Obama issued EO 13522 in 2009. The Obama EO was less ambitious than Clinton’s, offering scant encouragement that resulted in very little b(1) bargaining. 

7. Biden’s EO expands b(1) bargaining

President Joe Biden issued EO 14003 this year to allow negotiations over 5 USC 7106 (b)(1) issues. We have our strongest b(1) bargaining EO yet in this executive order and can expect to bargain b(1) more often now. 

Working under this new order, we should propose, bargain, and try to achieve b(1) gains for our members. We should continue to pressure agencies to ensure they are in compliance with the spirit and the letter of this new EO using the variety of tools available to us, including formal processes and bringing public pressure. 

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