Official time as a form of union security in federal sector labor-management relations

Air Force Law Review, Spring, 2007 by Kenneth Bullock

I.   INTRODUCTION
II.  EXCLUSIVE REPRESENTATION AND UNION SECURITY IN
     AMERICAN LABOR RELATIONS
     A. Exclusive Representation
     B. Types of Union Security Arrangements
       1. The Closed Shop
       2. The Union Shop
       3. The Agency Shop and Fair Share
       4. Fee for Service
       5. Maintenance of Membership
       6. Dues Withholding ("Checkoff")
       7. Leave for Representational Activities
     C. The Controversy Over Union Security
     D. Constitutional Aspects of Union Security in the Public
       Sector
III. FEDERAL SECTOR COLLECTIVE BARGAINING, OFFICIAL
     TIME, AND UNION SECURITY BEFORE 1978
     A. Employee Organization and Collective Bargaining
        before 1962
     B. Pre-1962 Developments in Union Security and Official
        Time
     C. President Kennedy's Task Force and Executive Order
        10,988
     D. Developments in Official Time and Union Security:
        1962 to 1978
        1. President Johnson's Review Committee and the
           Right-to-Work Movement
        2. Exec. Order. 11,491 and Developments in the 1970s

IV.  ENACTMENT OF THE FEDERAL SERVICE LABOR-MANAGEMENT
     RELATIONS STATUTE
V.   DEVELOPMENTS IN UNION SECURITY SINCE 1978
     A. Expansion of Official Time
        1. Official Time vs. Management Rights
        2. "Labor-Management Activity" under [section] 7131(d)
        3. Interpreting the "Internal Union Business"
           Prohibition
        4. Lobbying Activities
     B. Trends in Impasse Resolution for Official Time
        Proposals
     C. Problems in Administering Official Time
        1. Evaluating Union Officials
        2. Promotion of Employees Who Use Official Time
        3. Control, Monitoring and Prevention of Abuse
        4. Erosion of Critical Skills
        5. The Social Security Administration Controversy
     D. The Unions' Dilemma: the Duty of Fair Representation
     E. Union Security in the Federal Sector Today
VI.  CONCLUSIONS AND RECOMMENDATIONS
     A. Lessons for Management and Unions
     B. Unanswered Questions
     C. The Need for Reform; Options to Evaluate
        1. Authority to Negotiate a "Fair Share "Agreement
        2. Modification of the Duty of Fair Representation
        3. An Examination of the TVA's Pre-1984 Preference
           Policy
        4. Restrictions on Official Time

I. INTRODUCTION

Can a nationwide labor-management relations system based on the principle of exclusive representation operate effectively, even if the law requires unions to represent all bargaining-unit employees while depriving them of the ability to obtain adequate financial support? That question has been the subject of an unannounced experiment in the federal government since the 1960s, and there are indications that the experiment has not been successful.

The majority of federal workers are represented by unions that have the right and the duty to represent all employees, regardless of union membership. Since the unions are required to offer their basic services to all, incentives for employees to join and pay union dues are much weaker than they are in many private-sector and state government bargaining units. To make matters even more difficult, most federal-sector employees do not have bargaining representatives that are permitted to directly bargain with management over wages and economic benefits, (1) and thus the unions lack one of the primary recruiting tools enjoyed by non-federal unions. As a result, rates of union membership in the federal sector are low, (2) even though coverage of federal workers by union contracts is exceptionally high. (3)

How do federal-sector unions effectively represent all employees without a traditional system of "union security;" i.e., the means to compel financial support from the employees served? A system has gradually evolved in which "official time" (that is, paid federal time spent by union officials performing representational activities) has become a substitute for union dues. While the costs of official time are relatively minor in relation to the overall federal personnel budget, it has been the subject of controversy, especially when employees revealed questionable practices in the Social Security Administration during the 1990s.

This article will show that between 1962 and 1978, the Executive Branch and Congress allowed the official-time system to evolve haphazardly, disregarding sound advice and options on union security provided by government studies. There are substantial indications that official time is not an adequate substitute for more direct methods of union security, and moreover it causes problems and imposes costs that would not exist if other forms of union security were available to unions. While there is not yet sufficient information to permit the choice of a single alternative, Congress should authorize agencies to conduct test programs, so that arrangements that have proven themselves in the private and non-federal public sectors can be evaluated at the federal level. In the absence of Congressional action, union leaders and managers should be vigilant in controlling the use of official time, while taking advantage of its limited value to promote smooth labor-management relations.