10.20.2011 0

Unions: Creating A Place At the Table

By Mark Wohschlegel — Obama is known to be very union friendly. But, how far does this go? Based on a White House Office of Management and Budget FOIA response to Americans for Limited Government, it appears unions were allowed not only to shape federal policy, but also to guide the President’s pen in in the creation of Executive Order 13522.

On December 9, 2009, President Obama signed Executive Order 13522, Creating Labor-Management Forums To Improve Delivery of Government Services. This created the National Council on Federal Labor-Management Relations with the purpose of establishing a cooperative and productive form of labor-management relations throughout the executive branch. The desire was to create a “nonadversarial forum for managers, employees, and employees’ union representatives to discuss Government operations [that] will promote satisfactory labor relations and improve the productivity and effectiveness of the Federal Government.”

While this sounds nice, a closer look at the Executive Order reveals a key concession that will: “allow employees and their union representatives to have pre-decisional involvement in all workplace matters to fullest extent practicable, without regard to whether those matters are negotiable subjects of bargaining under 5 U.S.C. § 7106.” In short, managers are being told to go “above and beyond the law” and discuss all workplace decisions with unions to reach joint decisions, even if the subject is not an allowed bargaining item.

How did the Executive Order become so one sided? According to FOIA documents, the Obama Administration had significant input from at least 13 unions. In a congratulatory email on the eve before Executive Order 13522 was signed, Nathanael Tamarin, Associate Director of the Office of Public Engagement and Intergovernmental Affairs for the White thanked the heads of various unions for “working with us in the process to develop an executive order creating labor-management forums.” This list of unions included:

• International Brotherhood of Teamsters (Teamsters)
• National Air Traffic Controllers Association (NATCADC)
• Professional Aviation Safety Specialists (PASSNATIONAL)
• National Education Association (NEA)
• International Federation of Professional & Technical Engineers, AFL-CIO (IFPTE)
• National Federation of Federal Employees (NFFE)
• National Treasury Employees Union (NTEU)
• American Federation of Government Employees, AFL-CIO (AFGE)
• Service Employees International Union (SEIU)
• American Federation of Labor – Congress of Industrial Organizations (AFL-CIO)
• International Association of Fire Fighters (IAFF)
• International Brotherhood of Electrical Workers (IBEW)
• Laborers’ International Union of North America (Liuna)

At least three of the unions were preparing their final press release drafts with the Administration prior to the release of the Executive Order. Furthermore, it is apparent from an October 9, 2009 email from Maureen Gilman, Legislative Director of NTEU that unions were involved at least two months before the Executive Order was issued. In her email, she makes reference to a draft that was circulated among the agencies – one she also had reviewed and desired to express concerns to Administrative staff. In another email exchange, the Teamsters’ Michael Filler made a point to schedule a lunch with the then newly appointed Shelley H. Metzenbaum, OMB’s Associate Director for Performance and Personnel Management to discuss the “pending draft executive order.” Mr. Filler was even helpful enough to direct her to Jeff Zients, Deputy Director of OMB, from whom she could get a draft of the executive order in preparation for their meeting in his November 24, 2009 email. The fact that these union heads knew about the pending executive order (and where to get it) shows that they had easy access to members of the Obama Administration to the exclusion of others.

While some communication with unions would be expected, it seems by this access that they did more to shape this Executive Order than just provide input. For example, as evidenced by email correspondence, SEIU influenced the list of participants even in the eleventh hour prior to its release. On December 8, 2009, the day before the Executive Order was issued, David Holway, President of NAGE emailed Jeremy Smith, Deputy Director of Government Relations for SEIU, with a concern that NAGE was not going to be named among the unions appointed as members of the council in the document. Mr. Holway had learned this information from conversations with the White House. That same day, Mr. Smith of the SEIU emailed Nathanael Tamarin at the WHO-EPO, appealing on behalf of NAGE: “Are we on the list? Has it been finalized? As you know this will be a big deal for us. [I am] at Dol but will call you.” As a result, NAGE’s David Holway was given a seat on the council.

Even more disturbing than the unions exercising their influence is the Obama Administration’s solicitation of this influence. Found within the released documents is a series of emails in which the WHO-EPO showed deference to SEIU. Here members of the Administration were providing notice of discussions and seeking SEIU input on OMB guidance dealing with “work that needs to be reserved for performance by federal employees” (work that cannot be contracted out). In another example, the Teamsters’ Mr. Filler is responding to a question from OMB’s Ms. Metzenbaum (omitted from chain) by email, providing her the name of four union contacts and where they fall on “performance policy”: “This is my best quick assessment I can offer in response to your question. Hope it is helpful.”

It is also interesting to note that Executive Order 13522 is not the first of its kind. It is actually an updated reissue of Executive Order 12871 Labor Management Partnerships, issued under President Clinton on October 6, 1993, and kept alive until it was revoked by Executive Order 13203 issued by President Bush on February 17, 2001.

This latest version (E.O. 13522) goes further than its predecessor by creating three additional seats on the council for union organizations (NAGE, FEA, & Teamsters), giving unions a greater voice. In fact, out of the fifteen members (not including the OMB co-chairs) unions hold seven seats on the council – nearly half. The Executive Order also offers stronger language calling for more pre-decisional union involvement on all decision by management.

This is another step in unions’ efforts to make 5 U.S.C. § 7106 (b) bargaining suggestions mandatory and increasing their power and influence among federal agencies.

Such heavy union influence in this Administration, coupled with the Administration’s solicitation of union influence continues to be troubling. As a result of this marriage, federal policy is heavily one-sided in favor of unions, and has little effect on the efficiency of government operations. Unions will use the influence gained from this executive order to their full advantage. Every predecisional issue will be turned into a bargaining chip, and should something proceed not be to their liking, such as the likelihood of services being contracted out, they will use their influence to pit employees against management. Rather than a step towards governmental efficiency, this order will only lead to power struggles between unions and management. After all, a union’s worst enemy is a happy employee. Therefore, much like its predecessor, Executive Order 13522 should be revoked, and the Administration should turn its resources to removing barriers that hamper the private sector’s ability to create jobs for the 9.1 percent of unemployed Americans.

Mark Wohlschlegel is a legal analyst with Americans for Limited Government.

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