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New York University Public Law and Legal Theory
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New York University School of Law
9-2015
The Paradox of Federal Sector Labor Relations:
Voluntary Unionism Without Collective
Bargaining Over Wages and Employee Benefits
Samuel Estreicher
NYU School of Law, [email protected]
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Recommended Citation
Estreicher, Samuel, "The Paradox of Federal Sector Labor Relations: Voluntary Unionism Without Collective Bargaining Over Wages
and Employee Benefits" (2015). New York University Public Law and Legal Theory Working Papers. Paper 528.
http://lsr.nellco.org/nyu_plltwp/528
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THE PARADOX OF FEDERAL-SECTOR LABOR RELATIONS:
VOLUNTARY UNIONISM WITHOUT COLLECTIVE BARGAINING
OVER WAGES AND EMPLOYEE BENEFITS*
BY
SAMUEL ESTREICHER**
I. INTRODUCTION .....................................................................................
Table 1: Federal Sector Union Membership and
Representation Rates; Comparison with Other
Sectors ...............................................................................
II. THE CHOICE WHETHER TO BE REPRESENTED BY A UNION ..................
A. Benefits of Union Representation ...................................................
B. Costs of Union Representation .......................................................
Table 2: Federal Sector Union Dues: Comparison with
Other Sectors .....................................................................
III. THE CHOICE WHETHER TO PAY UNION DUES OR AN AGENCY
FEE ........................................................................................................
Table 3: The Free Rider Effect in the Federal Sector,
2014 ...................................................................................
V. CONCLUSION .........................................................................................
I. INTRODUCTION
Unionism and collective bargaining in the federal sector present a
paradox.1 Under federal-sector labor law, employees have a right to form
unions and, in most cases, engage in some form of collective bargaining
with their employing agency. Like almost all government employees,
*
© 2015-2016 by Samuel Estreicher. All rights are reserved. The comments of Thomas M.
Beck, Cynthia Estlund, Laurence Gold, Anton Hajar, Barbara Kraft, Martin Malin, Jean Perata, and
Joseph Slater are gratefully acknowledged. All remaining errors are mine.
**
Dwight D. Opperman Professor of Law & Director, Center for Labor and Employment Law,
New York University School of Law.
1. Professor Malin identifies a different paradox in public-sector labor relations. See Martin H.
Malin, The Paradox of Public Sector Labor Law, 84 IND. L.J. 1369, 1391 (2009) (“The paradox of
public sector labor is that to avoid antidemocratic aspects of public sector collective bargaining, the law
has channeled public employee unions away from investing in the risks of the public enterprise and
toward insulating their members from those risks.”).
101
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federal employees have no right to strike.2 However, unlike labor relations
in private companies and in many state and local governments, in most
federal agencies there is no collective bargaining over wages or pensions,
healthcare, and other major employee benefits because these matters are
governed by federal statute or regulation.3 Moreover, employees are under
no legal obligation to pay union dues or an agency fee to the union
representative; all such payments are voluntary and cannot be made a
condition of employment. Federal-sector unions are under a statutory duty
to represent fairly all employees in the bargaining unit, whether or not they
are union members or pay a fee of any kind.4 Federal employees also have
significant rights by statute not to be discharged or disciplined without
cause and the ability to contest a discharge or other significant discipline in
an adjudication (with or without union representation) before an
independent federal agency, the Merit System Protection Board,5 or if a
discrimination claim is involved, the Equal Employment Opportunity
Commission.6
The paradox is why federal employees select union representation and
in many cases voluntarily pay for such representation. Indeed, the paradox
is so intriguing that Wisconsin Governor Scott Walker (perhaps ironically)
referred to the federal sector as his model for cutting back public-sector
bargaining rights in his state.7
Before beginning to address the paradox, some data first. As Table 1
2. 5 U.S.C. § 7116(b)(7) (2012).
3. Federal employees have the right “to engage in collective bargaining with respect to
conditions of employment through” an exclusively bargaining representative. Id. § 7102(2).
“Conditions of employment” are “personnel policies, practices, and matters” that “affect[] working
conditions.” Id. § 7103(a)(14). They do not include “wages and other matters pertaining to
compensation of federal employees. . . .” Dep’t of Defense Dependent Sch. v. Fed. Labor Relations
Auth., 863 F.2d 988, 988 (D.C. Cir. 1988). As the Supreme Court (per Scalia, J.) explained in Fort
Stewart Schools v. Federal Labor Relations Authority, 495 U.S. 641, 649 (1988): “The wages and
fringe benefits of the overwhelming majority of Executive Branch employees are fixed by law, in
accordance with the General Schedules of the Civil Service Act, see 5 U.S.C. § 5332, and are therefore
eliminated from the definition of ‘conditions of employment’ by the third exception in §
7103(a)(14) . . . which excludes ‘matters . . . specifically provided for by Federal statute.’ 5 U.S.C. §
7103(a)(14)(C).”
4. 5 U.S.C. §7114(a) (1); see, e.g., Nat’l Treasury Emps. Union v. Fed. Labor Relations Auth.,
800 F.2d 1165 (D.C. Cir. 1986).
5. See 5 U.S.C. §§ 7511(a)(1), 7512, 7113(b),(d) (2012).
6. See 29 C.F.R. part 1614 (2015).
7. Governor Walker (R-WI) stated on NBC’s Meet the Press on February 27, 2015: “Well, our
proposal is less restrictive than the federal government is today . . . . Barack Obama . . . presides over a
federal government where most federal employees do not have collective bargaining for benefits, nor
for pay. So what we’re asking for is something less restrictive than what the federal government has.”
Robert Farley, Wisconsin Gov. Scott Walker Says Most Federal Employees Do Not Have Collective
Bargaining for Benefits or Pay, POLITIFACT (Mar. 2, 2011, 10:56 AM), <www.politfact.fom/truth-ometer/statements/2011/mar /02/scott-walker/wisconsin-g>.
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indicates, in 2014, 22.9 percent of employees in the federal sector
(excluding employees of the U.S. Postal Service who can bargain over pay
and employee benefits)8 were covered by collective bargaining agreements.
We will call the percentage of employees covered by collective agreements
the “union representation rate.” This compares favorably with the privatesector representation rate of 7.4 percent but is less than one-third of the
postal-service representation rate of 68.2 percent and falls considerably
short of the state-government (32.8 percent) and local-government (45.5
percent) representation rates.9
8. The Postal Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 733 (codified at 39
U.S.C. §§ 1201-1209), created a hybrid scheme including federal private-sector labor law provisions for
representation elections (§§ 1203-1204) and final, binding interest arbitration mechanism for the
resolution of labor disputes without a statutory right to strike (§ 1207). The principal labor
organizations are the American Postal Workers Union (APWU), AFL-CIO; the National Association of
Letter Carriers (NALC), AFL-CIO; the National Rural Letter Carriers Association (NRLCA); and the
National Postal Mail Handlers Union (Mail Handlers), a division of the Laborers’ International Union
of North American, AFL-CIO. The APWU represents postal clerks, maintenance employees, motor
vehicle operators and mechanics, and certain information technology and accounting services
employees; the NALC represents city letter carriers; the NRLCA represents rural letter carriers; and the
Mail Handlers represents mail handlers. Most represented employees work in the Postal Service’s mail
processing facilities.
9. There is a basis for linking postal-service employees with other federal-sector employee
because while the former can engage in full collective bargaining (albeit with compulsory interest
arbitration in lieu of a statutory right to strike, see 39 U.S.C. § 1207(c)-(d) (2012)), they, too, work free
of a union-security or agency-fee obligation, see id. §1209(a). If we were examining the free-rider
effect alone, postal employees would be included, but because they can engage in economic bargaining,
the “paradox” identified in this paper is less striking. The focus of this paper is on the phenomenon of
voluntary unionism in the absence of economic bargaining rights. For the effect of state and local “meet
and confer” laws that fall short of collective bargaining, see Richard B. Freeman, Herbert Ascherman
Chair in Economics, Harvard University & Eunice S. Han, Nat’l Bureau of Econ. Research, Paper
presentation at the Am. Econ. Ass’n meeting, Public Sector Unionism Without Collective Bargaining
(Jan.
6,
2013),
available
at
<https://dash.harvard.edu/bitstream/handle/1/12553710/82975005.pdf?seque nce=1>.
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Table 1: Federal Sector Union Membership and Representation Rates;
Comparison with Other Sectors – 201410
No. of
Employees
(thousands)
No. of
Members
(thousands)
Employees
Covered by
CBA
(thousands)
629.7
% Employees
Who Are Union
Members
(union
membership)
18.6
% of Employees
Covered by CBA
(union
representation
rate)
22.9
Federal
(Nonpostal)
2705.4
510.5
Postal
Private
Sector
655.4
111,228.00
424.7
7639.0
446.7
8224.0
64.6
6.6
68.2
7.4
State
Governmen
t
6264
1867.0
2056.0
29.8
32.8
Local
government
10532.0
4412.0
4793.0
41.9
45.5
Because of the prevalence of union-security clauses (which require
employees to pay union dues or their financial equivalent as a condition of
employment) in states which have not outlawed such a provision,11 the
percentage of union members among represented employees – termed here
the union-membership rate – is typically a bit larger but not much more so
than the union-representation rate in the private sector and states allowing
union-security obligations.
This near equivalence between representation rate and membership
rate is plainly not true of non-postal federal government employees where
the difference between the rates is 4.3 percentage points, or 117,000
workers (and potential members). Yet it remains the case that a little over
half of a million workers or four out of five represented non-postal federal
10. BARRY T. HIRSCH & DAVID MACPHERSON, UNION MEMBERSHIP AND EARNINGS DATA BOOK:
COMPILATIONS FROM THE CURRENT POPULATION SURVEY
(2014),
available
at
<www.unionstats.gsu.edu-Postal-State-Local_files/sheet001.htm>: News Release, Bureau of Labor
Statistics, U.S. Dep’t of Labor, Union Members-2014, USDL 15-0072, tbl. 3 (Jan. 23, 2015), available
at <http://www.bls.gov/news.release/pdf/union2.pdf>.
11. See 29 U.S.C. § 164(b) (2012).
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employees pay union dues or agency fees on a voluntary basis.12
This paper explores why 20 percent of federal government employees
(excluding postal) are apparently willing to select a collective
representative and pay an agency fee even though the representative cannot
bargain over compensation and most employee benefits.13 Once a
relationship with a union bargaining agent has begun, its continuation is
less difficult to explain. Many federal-sector bargaining (hence, electoral)
units are quite large beause they were initially certified as agency-wide
12. See also infra Table 3. These figures are derived from the Current Population Survey (CPS)
used by the U.S. Department of Labor. Because workers may have difficulty knowing whether in fact
they are covered by collective agreement or are members of unions, these figures may overstate the
representation and membership rates of employees. The limitations of CPS figures for calculating the
number of non-union employees covered by collective agreement in the federal sector and other “right
to work” jurisdictions are discussed in Barry T. Hirsch, An Anatomy of Public Sector Unions (Inst. zur
Zukunft der Arbeit [Inst. for the Study of Labor] Discussion Paper No. 7313, 2013), available at
<http://www2.gsu.edu/~ecobth/ Hirsch_IZA_AnatomyPublicUnions_dp7313.pdf>.
There are a number of federal agencies (see President George W. Bush’s Exec. Order No.
13,252, 3 C.F.R. § 195 (2003)) and categories of employees (see 5 U.S.C. § 7112(b) (2012) (exclusions
from appropriate bargaining units), id. § 7112(c)) excluded either by statute or executive order from
collective bargaining authority; these workforces perhaps should be removed from the denominator in
calculating union representation or membership rates. However, all labor laws, both in the government
and private sectors, have exclusions from coverage, and it is difficult to assume the exclusions are
significantly larger in the federal sector than in other sectors. The CPS data does not adjust for such
exclusions.
13. Bargaining over compensation and employee benefits does occur at the U.S. Postal Service.
See Postal Reorganization Act, Pub. L. No. 91-375, § 1209, 84 Stat. 719, 737 (1970). It also occurs
between flight controllers and the Federal Aviation Administration, see FAA Modernization and
Reform Act of 2012 Pub. L. No. 112-95, §601, 126 Stat. 11, 109. The FAA and the National Air Traffic
Controllers Association (NATCA) agreed in 2012 to extend their collective agreement to 2016. The
2012 agreement authorizes mid-term bargaining over work schedules and compensation. For criticism,
see OFFICE OF INSPECTOR GENERAL, AUDIT REPORT, FAA IS NOT EFFECTIVELY MANAGING AIR
TRAFFIC CONTROLLER MID-TERM BARGAINING AGREEMENTS (Report No. AV-2014-059 (2014),
available
at
<https://
www.oig.dot.gov/sites/default/files/FAA%20NATCA%202012%20Collective%20Bargaining%20
Agreement%20Audit%20Report%5E6-19-14.pdf>.
A distinct category of federal employees work in the “non-appropriated fund” (NAF) sector
because they are employed on the basis of non-appropriated funds such as user fees. NAF employees
are subject to the FLRA, see 5 U.S.C. §§ 703(a)(2), 2105(c) (2012), and can seek to bargain for pay and
working conditions because those terms are not set by federal law or regulation. See Fort Stewart
Schools v. Fed. Labor Relations Auth., 495 U.S. 641 (1988) (agency required to bargain with union
representing Department of Army school personnel over working conditions such as mileage
reimbursement, paid leave, and salary increases. As the Court stated in Fort Stewart Schools:
“Employees of schools established under [20 U.S.C.] § 241 are among a miniscule minority of federal
employees whose wages are exempted from operation of the General Schedules. [Section] 241(a)
provides that an agency establishing such a school may fix ‘the compensation, tenure, leave, hours of
work, and other incidents of the employment relationship’ of its employees without regard to the Civil
Service Act and rules.” 495 U.S. at 649 (internal quotation marks omitted). Most NAF employees
reside in the Department of Defense (DOD). Approval or disapproval of NAF collective bargaining
agreements, pursuant to 5 U.S.C. § 7114(c) (2012), is the responsibility of DOD’s Defense Civilian
Personnel Advisory Service. See generally AM. FED’N OF GOV’T EMPS., NON-APPROPRIATED FUND
COLLECTIVE
BARGAINING
GUIDE
ECONOMIC
PROPOSALS
(2014),
available
at
<http://www.afge.org/Index. cfm?Page=CIS&DocumentID=4599>.
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units by the Federal Labor Relations Authority (FLRA), or were combined
over time by the FLRA to permit agency-wide bargaining.14 Employees can
after a year revoke their authorization of a checkoff of union dues from
their paycheck by filing an easily available form.15 However, they cannot
readily exit from the bargaining relationship unless a rival union appears on
the scene willing to shoulder the expense of an agency-wide contest.
To add to the paradox of federal-sector unionism, unions generally are
not able to obtain bargaining authority without winning a secret-ballot
election. Under the National Labor Relations Act (NLRA), the principal
statute governing labor relations in private companies, an employer can
enter into a collective-relationship with a labor organization that is
“designated or selected” by a majority of employees in an appropriate
bargaining unit.16 The term “designated” refers to a majority showing by
labor organization through signatures on a petition or authorization or a
petition.17 Voluntary recognition by employers is relatively common in
private firms. By contrast, under the Federal Service Labor-Management
Relations Statute (FSLMRS), administered by the FRLA, an employer’s
voluntary recognition of a majority union does not establish
representational authority. The FSLMRS defines the “exclusive
representative” as the labor organization which is “(A) certified as the
exclusive representative of employees in an appropriate unit pursuant to
[the election procedure of] section 7111 . . . or (B) was recognized by an
14. Federal-sector bargaining units can be quite large. See, for example, the 44,000 airport
screeners covered by the Transportation Security Administration-AFGE collective bargaining
agreement of November 2012 and the 200,000 employees covered by the Department of Veterans
Affairs-AFGE master agreement of March 2011. Press Release, Am. Fed’n of Gov’t Emps., AFGE and
TSA
Agree
to
Historic
Labor
Contract
(Aug.
2,
2012),
available
at
<http://www.afge.org/?PressReleaseID=1376>; Press Release, Am. Fed’n of Gov’t Emps., AFGE, VA
Sign
New
Collective
Bargaining
Agreement
(Mar.
28,
2011),
available
at
<http://www.afge.org/Index.cfm?Page=PressReleases&PressReleaseID=1267>. Since a petition for a
decertification election requires a showing of interest by at least 30 percent of the bargaining unit, 5
U.S.C. § 7111(b)(1)(B) (2012), this would seem a formidable task in most cases. There appears to have
been no decertification election on a basis narrower than a consolidated agency-wide union in the
history of labor relations under the FLRA.
15. See U.S. OFFICE OF PERS. MGMT., STANDARD FORM 1188, CANCELLATION OF PAYROLL
DEDUCTIONS FOR LABOR ORGANIZATION DUES (revised April 2011), available at
<https://www.opm.gov/forms/pdf_fill/sf1188.pdf>; 5 U.S.C. § 7115(a). Unions can negotiate
procedures governing dues-checkoff revocation to provide an opportunity for the unions to persuade the
revoking employees to change their minds, but the “negotiated procedures may not infringe on the
employee’s right to ‘remain free to revoke their dues authorization at annual intervals.’” Nat’l Treasury
Emps. Union v. Fed. Labor Relations Auth., 647 F.3d 514, 518 (4th Cir. 2011) (quoting AFGE, AFLCIO and Dept. of Veteran Affairs, 51 F.L.R.A. 1427, 1433 (1996)). There appears no obligation to
inform employees of their checkoff-revocation rights.
16. 29 U.S.C. § 159(a) (2012); see SAMUEL ESTREICHER & MATTHEW J. BODIE, LABOR LAW:
CONCEPTS AND INSIGHTS 104-05 (forthcoming 2016).
17. See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
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agency [as such a representative before the effective date of the FSLMRS]
(i) on the basis of an election, or (ii) on any basis other than election” and
continues to be so recognized.18 This text would seem to foreclose initial
certification of an exclusive bargaining agent without an election, although
the FRLA has recognized limited circumstances involving merger of
agencies or labor organizations indicating no question as to who is the
majority representative of the surviving unit or union.19 Thus, in the federal
sector, employees have to vote for union representation in a secret-ballot
election for an exclusive bargaining relationship to begin.20
II. THE CHOICE WHETHER TO BE REPRESENTED BY A UNION
To consider why federal-sector employees vote for union
representation, we utilize a conventional cost-benefit analysis. Unless the
employee has some pre-existing commitment to unions, perhaps due to
family influence or past experience,21 the employee will vote for union
representation only if the benefits of such representation outweigh the
attendant costs.
A. Benefits of Union Representation
We turn first to the benefits side of the equation. An important benefit
unions can provide is a measure of due process on the job. Unrepresented
federal employees have a statutory mechanism for challenging a discharge
or serious discipline by filing an appeal with the Merit System Protection
Board (MSPB), an independent agency that Congress created to protect the
merit principles of the federal civil service system.22 But represented
18. 5 U.S.C. § 7103(a)(16) (2012).
19. See Dep’t of the Army, U.S. Army Aviation Missile Command, 56 F.L.R.A. 126 (2000);
NAGE, SEIU, Local 5000 and VA, 52 F.L.R.A. 207 (1997). The FLMRS authorizes consolidation of
preexisting units “with or without an election into a single larger unit if the [FLRA] considers the larger
unit to be appropriate.” 5 U.S.C. § 7112(d).
20. Compare Timothy D. Chandler & Rafael Gely, “Before Wisconsin and Ohio”: The Quiet
Success of Card-Check Organizing in the Public Sector, 16 EMP. RTS. & EMP. POL’Y J. 629 (2012).
21. It is unlikely that federal employees have a significantly different political perspective than
other workers. Indeed, a 2010 Gallup poll found that federal employees, even if union-represented, are
more likely to identify themselves as Republicans than state and local government employees or nongovernmental employees. Within each sector, union-represented workers are more likely to view
themselves as Democrats than non-represented workers. See Frank Newport et al., Democrats Lead
Ranks
of
Both
Union
and
State
Workers,
GALLUP
(Mar.
24,
2011),
<www.gallup.com/poll/16786/democrats-lead-rank>.
22. 5 U.S.C. §§ 7513(b), (d), 7701(a)(1)-(2). The covered actions are removal, suspension for
more than fourteen days, reduction in grade or pay, or furlough for thirty days or less. Id. § 7512.
Employees eligible for such review must be non-probationary employees in the “competitive service”
or “excepted service.” Id. §7511(a)(1).
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employees have the option, which they generally exercise, to bypass the
MSPB route23 and file a grievance under the “negotiated grievance
procedure” (NGA) set forth in the collective bargaining agreement.24
There are several advantages to the NGA route. One is that the union
is an experienced advocate in the arbitral forum and provides
representation that is at least as effective, and certainly less costly, than the
lawyer who might have to be retained to ensure appropriate consideration
of the claim in the MSPB process. A second benefit of the negotiated
procedure is that it provides a single forum for nearly all of the claims the
employee may have arising out of the adverse agency action; no other
forum can hear both contractual grievances and statutory claims.25 Finally,
the arbitral route is less risky than the administrative route at the MSPB
because the arbitrator is jointly selected by, and needs to remain acceptable
to both, the agency and the union, if the arbitrator hopes to be selected
again in future cases. Interestingly, unlike the rule in the private sector and
many state and local government laws, adverse arbitration awards generally
can be appealed to the FLRA.26
The collective bargaining agreement, though its scope is narrower
than agreements in the private sector and many state and local governments
where bargaining is permitted over wages and major employee benefits,
still provides advantages that accrue to working in a union-represented
facility. Even if, for example, we consider the constrained scope of
bargaining involving TSA airport screeners,27 that agreement provides,
23. Some employees are covered by other personnel systems. This includes employees of the
Federal Aviation Administration, the Securities and Exchange Commission, health-care professionals in
the VA, and overseas teachers of the Department of Defense Dependent Schools. These systems also
allow the employee to elect between the negotiated procedure and the administrative remedy. See U.S.
FED. LABOR RELATIONS AUTH., GUIDE TO ARBITRATION UNDER THE FEDERAL SERVICE LABORMANAGEMENT RELATIONS STATUTE 1-3 (2013).
24. 5 U.S.C. § 7121(e)(1).
25. Consider also the role of the election-of-remedies provisions in 5 U.S.C. § 7127(d)-(e). See
Jones v. Merit Sys. Protection Bd., 589 F. App’x 972, 977 (Fed. Cir. 2014) (unpublished) (quoting
Rodriguez v. Merit Sys. Protection Bd., 804 F.2d 673, 675 (Fed. Cir. 1986) (“[O]nce a timely filing is
made to pursue a path, the other is forever waived.”).
26. 5 U.S.C. § 7222. Personnel systems described in note 23 do not provide for such an appeal.
See U.S. FED. LABOR RELATIONS AUTH., supra note 23, at 6.
27. For a summary of those limitations, see Press Release, U.S. Transp. Sec. Admin., TSA
Administrator Pistole’s Decision on Collective Bargaining (Feb. 4, 2011), available at <https://w
ww.tsa.gov/news/releases/2011/02/04/tsa-administrator-pistole%E2%80%99s-decision-collectiv
ebargaining> (“Should officers choose a union, Administrator Pistole would allow bargaining on limited,
non-security issues relating to employment including shift bids, transfers and awards. Bargaining on
any issues related to security would be strictly prohibited. For example, bargaining would not be
allowed on security policies, procedures or the deployment of security personnel or equipment, pay,
pensions and any form of compensation, proficiency testing, job qualifications or discipline
standards.”).
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inter alia, (1) procedures and principles governing the performance
appraisal process, whereby employees “may grieve their final end-of-year
performance rating” (Art. 1);28 procedures and eligibility for employee
recognition awards (Art. 2);29 procedures and eligibility for leaves and
comparable time (Art. 3);30 procedures for bidding on shifts and screening
lines, trading of shifts, and transfers to other areas of covered facilities
(Arts. 4-6);31 procedures for changing one’s status from full-time to parttime and vice versa (Art. 7);32 a uniform allowance and rules for various
special items (Art. 8);33 process and eligibility for special assignments (Art.
9);34 and break rooms, protective gear, nursing facilities, and union access
(Art. 10).35
In other federal collective agreements, the parties negotiate over merit
pay and promotion,36 parking spaces and reimbursement of employee
parking for use of private vehicles for agency purposes,37 procedures for
employer investigations of misconduct,38 leave sharing, flexible work
place39 and telework policies,40 and consideration of seniority in deciding
which employees will be affected by staff reductions.41
If the parties cannot reach agreement, they can invoke a form of
interest arbitration through the offices of the Federal Services Impasse
Panel (FSIP), which is a unit of the FLRA.42
28. Collective Bargaining Agreement, Am. Fed’n of Gov’t Emps., AFL-CIO-Transp. Sec.
Admin., art. 1, § M, Dec. 9, 2012, available at <http://www.afgelocal899.org/AFGE-TSA%20
CBA%20Final%20.pdf >.
29. Id. art. 2.
30. Id. art. 3.
31. Id. arts. 4-6.
32. Id. art.
33. Id. art. 8.
34. Id. art. 9.
35. Id. art. 10.
36. See, e.g., National Collective Bargaining Agreement, U.S. Customs & Border Protection-Nat’l
Treasury Emps. Union, arts. 41-42, May 11, 2011, rev. Oct. 2013, available at
<http://www.nteu.org/Documents/CBPNTEUAgreement.pdf>.
37. See AFGE Local 2139, Nat’l Council of Field Labor Locals and U.S. Dep’t of Labor, etc., 61
F.L.R.A. 654 (2006).
38. See, e.g., U.S. Customs & Border Protection-NTEU agreement, supra note 36, arts. 21-22.
39. See, e.g., Collective Bargaining Agreement, Health Res. & Servs. Admin.-Am. Fed’n of Gov’t
Emps., arts. 20, 23, Aug. 16, 2012, available at <http://www.hrsa.gov/hr/about/afge.pdf>; see also
Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. §§ 6120-6133 (2012).
40. See, e.g., Master Agreement, U.S. Dep’t of Veterans Affairs-Am. Fed’n of Gov’t Emps., art.
20, Mar. 2011, available at <http://www.va.gov/lmr/docs/master_agreement_ between_dva_and_afgefin_52311.pdf>.
41. Id. art. 28.
42. Under 5 U.S.C. 7119(c)(5)(B)(iii) (“If the parties do not arrive at a settlement after assistance
by the Panel [under subparagraph (A)] the Panel may . . . take whatever action is necessary and not
inconsistent with this chapter to resolve the impasse.”). FSIP decisions can be found at FSIP Decisions,
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In addition to negotiating collective agreements, federal unions
establish political action committees43 and play a role in articulating
employee concerns in particular agencies and across the government,44 and
in proposing and commenting on federal personnel policy developments,
such as comparability pay adjustments,45 new overtime pay arrangements,46
and new wage garnishment procedures.47
Finally, these unions provide various benefits for members only. The
AFGE, for example, provides discounted prescription coverage, dental
services, life insurance, and legal services including a free initial
consultation.
B. Costs of Union Representation
We now turn to the costs of union representation. In the private sector,
employees have to think long and hard about whether to be represented by
a union because of likely employer opposition. Many commentators focus
FED. LABOR RELATIONS AUTH. <https://www.flra.gov/fsip_table> (last viewed Nov. 22, 2015); see,
e.g., Dep’t of Homeland Sec., Bureau of Customs & Border Protection v. Nat’l Treasury Emps. Union,
Case
No.
2010
FSIP
010
(Jan.
10,
2011)
(Malin,
Arb.),
available
at
<https://www.flra.gov/node/13205>; Dep’t of the Army, Deseret Chemical Depot, Stockton, Utah &
Local 2185 v. Am. Fed’n of Gov’t Emps. incase No. 2010 FSIP 054 (Mar. 22, 2010) (Malin, Arb.),
available at <https://www.flra.gov/node/12918>.
43. See RONALD N. JOHNSON & GARY D. LIBECAP, THE FEDERAL CIVIL SERVICE SYSTEM AND
THE PROBLEM OF BUREAUCRACY 140-46 (1994).
44. See, e.g., Am. Fed’n of Gov’t Emps. v. U.S. Office of Pers. Mgmt., No. 1:15-cv-01015
(D.D.C., filed June 29, 2015) (challenge to OPM system-wide data security breach under federal
Privacy Act); AFGE 22 vs. NNSY: Registration Is Open, CLASS ACTION IMPLEMENTATION GRP.,
<http://www.flsacash.com/#!afge22/c84y> (last viewed Nov. 23, 2015) (registering employees who
may be eligible to share in award from classwide overtime grievance against the Norfolk Naval
Shipyard in Portsmouth, VA); NFFE Fights Announced Army Civilian Personnel Cuts, NAT’L FED’N
FED. EMPS. (Aug. 28, 2015), <http://www.nffe.org/ht/display/ ArticleDetails/i/105864>; National
President Dougan: “Federal Workers Have Earned a Pay Adjustment that Reflects the Increased Cost
of
Living,”
NAT’L
FED’N
FED.
EMPS.
(Jan.
13,
2015),
<http://www.nffe.org/ht/display/ReleaseDetails/i/104591>; Letter from Colleen M. Kelly, President,
Nat’l Treasury Emps. Union to Donald Stakes, Director, U.S. Dep’t of Homeland Sec., Customs &
Border
Protection
(Dec.
18,
2012),
available
at
<http://www.nteu.org/
Documents/FLSANatlGriev.pdf> (filing national grievance asserting misclassification under the Fair
Labor Standards Act).
45. The Federal Employee Comparability Act of 1990, 5 U.S.C. §§ 5301-5307 (2012). establishes
a method for setting pay for white-collar employees that uses a combination of across-the-board and
locality pay adjustments. These adjustments are recommended in a report by the President’s Pay Agent
consisting of the Secretary of Labor and the Directors of the Office of Management and Budget and
Office of Personnel Management. Id. § 5304.
46. U.S. Office of Personnel Management, Overtime Pay for Border Patrol Agents, Proposed
Rules, 80 Fed. Reg. 34,540 (June 17, 2015) (new method of overtime compensation pursuant to
Overtime Border Patrol Act of 2014, as amended).
47. U.S. Office of Personnel Management, 5 C.F.R. pt. 179 (2015) (adopting final regulations
implementing administrative wage garnishment provisions of the Debt Collection Act of 1982, as
amended).
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on unlawful employer opposition – threats of retaliation or actual discharge
or discipline of union supporters. This can be a factor. But there is also the
influence of lawful employer opposition. For the individual non-union firm,
a union represents the prospect of net additional costs because the union
will likely seek a higher wage, more generous employee benefits, and
buffers against employer discipline not present in the union’s absence. In
what I have called “Gompers 101” in other writings,48 an effective union
will try to neutralize these additional costs by imposing them, or presenting
a likely prospect they will be imposed, on competitors in the same product
market.
The perspective of the average employee is not often very different
from that of the firm. Even if the employee may otherwise support union
representation, the employee is going to worry about the adverse
consequences for the firm. A rational employee has to evaluate the
effectiveness of the union bargaining agency against the risks that
bargaining gains or the policies of the union will undermine job security
and firm profitability.
In the federal sector, by contrast, the employer-opposition factor is
virtually non-existent. While few federal agencies affirmatively welcome
the constraints on managerial flexibility involved in a collective bargaining
agreement, they are not likely to seek to incur the political risks of a long
drawn-out battle with the organizing union. This is certainly true in
Democratic administrations but is also the case during most Republican
administrations.49
In addition to the political factor, the federal agency, like nearly all
public employers, does not face product-market competition. There are few
substitutes for most government services and the federal agency faces a
48. See, most recently, Samuel Estreicher, “Easy In, Easy Out”: A Future for U.S. Workplace
Representation, 98 MINN. L. REV. 1615 (2014).
49. There are also a variety of structures in the federal government that highlight, if not
institutionalize, the position of the federal labor unions. On February 17, 2001, President George W.
Bush repealed Executive Order 12,871 of October 1, 1993, which established the National Partnership
Council and required all federal agencies to form labor-management partnerships for management
purposes. Exec. Order No. 13,203, 3 C.F.R. 761 (2002). On December 9, 2009, President Barack
Obama issued Executive Order 13,522 establishing a National Council on Labor-Management
Relations (which would include, among others, the presidents of the AGFE, the NFFE, and the National
Federation of Professional and Technical Engineers, AFL-CI0), and calling on all agencies subject to
the FLMRS to establish a labor-management forum in their sphere. Exec. Order No. 13,522, 3 C.F.R.
281 (2010). On the effect of these structures, see generally U.S. Office of Pers. Mgmt., LaborManagement
Relations
in
the
Executive
Branch
12-22
(2014),
available
at
<https://www.opm.gov/policy-data-oversight /labor-management-relations/reports/labor-managementrelations-in-the-executive-branch-20 14.pdf>; Marick T. Masters et al., What Did Partnerships Do?
Evidence from the Federal Sector, 59 Indus. & Lab. Rels. Rev. 307 (2006).
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quite limited risk that the union’s gains at the bargaining table will lead to
cuts in appropriations for the agency.50 Indeed, because the federal
government does not permit, in most cases, collective bargaining over
compensation and most employee benefits, the costs of an agreement are
often not large and, in any event, not readily apparent to the public.51
Aside from these factors, which tend to dull the willingness of the
federal agency to fight a unionization campaign, employees have strong
statutory civil-service protections against unfair discharge or other
discipline. It may be an overstatement but there is some force to the general
perception of non-probationary federal civil service employees that their
jobs are secure for the entirety of their careers.52
Union representation also entails payment of union dues or an agency
fee. Table 2 in panel A compares median and average annual union dues in
so-called “right to work” jurisdictions which outlaw union-security clauses
and jurisdictions where such clauses are enforceable.53 Panel B indicates
the annual union dues charged by the leading unions representing federal
employees. With the exception of the air traffic controllers union54 and
craft locals of the NFEE, federal-sector unions apparently charge lower
dues than what unions charge in other sectors of the economy.
50. See generally HARRY H. WELLINGTON & RALPH K. WINTER, JR., THE UNIONS AND THE
CITIES: STUDIES OF UNIONISM IN GOVERNMENT (1971).
51. Cf. JOHNSON & LIBECAP, supra note 43, at 139 (“[T[he federal wage bill is spread across all
taxpayers, and it accounts for only a small part of total federal expenditures. In 1988, expenditures for
wages and salaries at the federal level, including defense, were around 11 percent of total expenditures.
The corresponding figure for state and local governments was around 35 percent.”).
52. There is a double edge to this reasoning because what promotes employee comfort with the
decision to vote for union representation also furthers the perception that unionization may not be worth
the candle.
53. The data in panel A are taken from JAMES SHERK, THE HERITAGE FOUND., BACKGROUNDER
NO. 2987, UNIONS CHARGE HIGHER DUES AND PAY THEIR OFFICERS LARGER SALARIES IN NONRIGHT-TO-WORK
STATES
4
tbl.
1
(2015),
available
at
<http://thf_media.s3.amazonaws.com/2015/pdf/BG2987.pdf>. Sherk’s figures are calculated from the
LM-2 reports that labor organizations with at least one private-sector member must file under the
Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §§ 431-432 (2012).
He essentially divided total dues income by the total membership reported on the unions’ disclosure
forms. Because unions have different categories of members some of whom do not pay regular dues,
Sherk’s table 2 reports somewhat higher figures for union dues per paying member. SHERK, supra at 5
tbl. 2.
The data in panel B are taken from LM-2 reports where available. I found that despite several
attempts, data on some unions was simply not retrievable from Office of Labor-Management Standards
Online Public Disclosure Room, U.S. DEP’T OF LABOR, <www.unionreports.gov> (last viewed Nov. 23,
2015). I then rely on inquiries with federal-sector union lawyers, information available on various union
websites, and UNIONFACTS.COM <https://union facts.com> (last viewed Nov. 23, 2015) (the latter
purporting to rely on LM-2 reports).
54. For NATCA, dues are set at 1.5 percent of annual salary. NFFE reports annual dues income
suggesting $653 per member. See Compare AFGE, NATCA. NFFE & NTEU by the Numbers,
FEDSMILL (Dec. 3, 2014), <www.fedsmill.com/compare4>.
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Table 2: Federal Sector Union Dues; Comparison with Other Sectors
Average
Annual
($)
Dues
Median
Dues
($)
PANEL
A:
right-to-work
Jurisdictions
458
352
Union-security
jurisdictions
587
421
PANEL
B:
American
Federation
of
Teachers, AFLCIO
337.86 (55.62
nonchargeable)55
National
Education
Assn./Calif,
Teachers Assn,
Full-time
teachers: 827
(482 nonchargeable)
including NEA
and CTA dues56
American Postal
Workers Union,
AFL-CIO
505.68 for
career
employees
(including both
per capital and
local dues)57
Annual
Range
Continued on next page
55. Memorandum from Loretta Johnson, Secretary-Treasurer, Am. Fed’n of Teachers to Affiliated
Locals and State Federations, Agency Fees 2014-2015 (Aug. 4, 2014), available at
<http://www.aft.org/sites/default/files/wysiwyg/agency_fee2014_national.pdf>.
56. Hudson notice dated Oct. 15, 2012, Friedrichs v. Calif. Teachers Ass’n., No. 14-916, Joint
App. 355. 358 (on file with author).
57. E-mail from APWU representative to author (Sept. 17, 2015) (on file with author).
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17358
AFGE, DOL
form LM-2
AFGE Local
704 (EPA
employees)
[Vol. 19:nn
13.91 biweekly (or 361.66) or GS-1,
Step 1 to 23.41 biweekly (or 608.66)
for GS-13, Step 10
LM-2 reports19.5 monthly (or 239.40)
to 20.80 monthly (or 249.60)
AFGE website reports $ 14-16 per pay
period59
11.25 biweekly (or 292.50) for GS-1
to 15.25 (or 396.50) for GS-12 and
above
272.6060
In sum, for the employee considering a vote for union representation,
the benefits are modest but not trivial,61 the direct financial cost is about
$250 a year, and there is little risk that union policies or actions will
jeopardize the employee’s job security.62
58. 2015 Dues Withholding Chart, NAT’L TREASURY EMPS. UNION CH. 173, <http://www.
nteu173.org/uploads/8/7/3/0/8730614/2015_dues_witholding.pdf> (last viewed Nov. 23, 2015).
59. Dues & Eligibility, AM. FED’N OF GOV’T EMPS., https://www.afge.org/Index.cfm?
page=HowtoBecomeaMember (last viewed Nov. 24, 2015). This does not appear to include dues
payments to AFGE Councils.
60. What Are the Dues, AM. FED’N OF GOV’T EMPS. LOCAL 704, <www.afgelocal704. org/892/what-are-the-dues> (last viewed Nov. 24, 2015).
61. As Fredna White, president of AFGE Local 1822 and a medical administration specialist for
the Department of Veterans Affairs, put it: “Why go out and get an attorney when we will provide you
with one and offer you additional benefits for only $12 a pay period?” Laura Koss Feder, Dues Blues:
Nonpaying Workers Irk Federal Unions, N.Y. TIMES, Nov. 24, 1996, § 3, at 11, available at
<www.nytimes.com/1996/11/24/business/dues-blues-nonpaying>.
62. Federal-sector dues may be lower than otherwise might be the case for several reasons. First,
because of the size of many federal sector bargaining units, see supra note 14, unions can achieve
economies of scale in the delivery of their services at a relatively low cost per represented employee.
Second, under the Back Pay Act, 5 U.S.C. § 5596 (b) (2012), federal-sector unions can
establish a separate fund for the recovery by staff lawyers of market-rate attorney’s fees from successful
back-pay litigation against the agency-employer. See Raney v. Fed. Bureau of Prisons, 222 F.3d 927
(Fed. Cir. 2000).
In addition, federal employees representing an exclusive representative have a statutory right
to “authorized official time” for purposes of contract negotiation and administration. 5 U.S.C. § 7131
(2012). This can be quite significant. During fiscal year 2011, while unions “represented 1,202,733 nonPostal civil service bargaining unit employees,” such employees “spent a total of 3,395,187 hours
performing representational duties on official time.” This amounted to 2.82 hours per bargaining unit
employee for the year. See Official Time Statistics for Fiscal Year 2011, U.S. OFFICE OF PERS. MGMT.,
<https://www.opm.gov/policy-data-oversight/labor-management-relations/reports-on-officialtime/#url=stats2011> (last viewed Nov. 24, 2015). In Bureau of Alcohol, Tobacco and Firearms v.
Federal Labor-Relations Authority, 464 U.S. 89 (1983), the Supreme Court held that the FLRA did not
have authority under § 7131 to require an agency to pay a per diem allowance and travel expenses for
unit employees engaged in a representational function.
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III. THE CHOICE WHETHER TO PAY UNION DUES OR AN AGENCY FEE
Table 3 sets forth what might be termed the “free rider effect” – the
percentage of employees covered by a collective bargaining agreement who
voluntarily pay union dues or an agency fee.63 About one-fifth of
represented non-postal federal employees do not pay for the costs of union
representation. This is a higher degree of free riding than we see in the
postal sector but it is lower than one would expect given the fact that
unions have a statutory duty of fair representation (DFR) to all employees
in the unit, union security clauses are not enforceable, and any duescheckoff authorization can be revoked after one year.
One explanation for this lower than expected free-rider effect may be
that some employees fear that the union’s DFR works differently in
practice than in theory. If the employee puts an affirmative value on being
able to utilize the negotiated grievance procedure if disciplined or unhappy
with a job assignment, the employee may believe that the effectiveness of
that option will depend on the energy and initiative union stewards and
other representatives demonstrate in how they investigate the case and
whether the union will, ultimately, invoke arbitration.
Having a union representative also may aid the employee at the prediscipline stage, where the employer is engaged in an investigation that the
employee “reasonably believes . . . may result in disciplinary action against
the employee . . . .”64 The employee has a statutory right to be represented
by the union at such investigations.65
A second factor may be peer pressure. Because the union or its
supporters may be involved in soliciting the initial dues-checkoff
authorization from the employee, the employees who want to “free ride”
will be not be able to do so in secret. And to be able to revoke a checkoff
authorization at the year’s end, the employees may be required by the
collective bargaining agreement to notify the union.66 Employees may not
even be aware of, or may not recall, their statutory right to revoke a prior
dues-checkoff authorization or when they must do so to prevent deductions
for another year.
In the postal sector, the unions have negotiated a contractual right to
63. Recall that CPS coverage data regarding government employees who are not union members
working in “right to work” jurisdictions may be problematic. See supra note 12.
64. 5 U.S.C. § 7114.
65. 5 U.S.C. § 7112(a)(2)(B).
66. See supra note 15. Form 1188 expressly states that a copy of the document is “forwarded by
the payroll office to the labor organization in accordance with the arrangement between the agency and
the labor organization.”
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address employees in any orientation program for new career or non-career
employees.67 This increases acceptability of the union and peer pressure.
In the end, however, there is the influence of moral suasion or
solidarity. Some people have an affirmative preference to share the costs of
an institution that is operating as a responsive agent and is clearly
benefiting them and their colleagues. This is surely the case in the postal
sector and in other settings across the country where union security clauses
are not enforceable. In the absence of a union-security clause, unions have
to work harder to attract and retain membership.68 This is not a bad thing,
but it does require the expenditure of union resources, and some people will
simply insist on a free ride. All other things being equal, the union may be
a good deal less effective in representing employees than it otherwise
would be if fully financed.
Table 3: The Free Rider Effect in the Federal Sector, 2014
No. of
Employees
(thousands)
(A)
No. of
Members
(thousands)
510.5
(B)
Employees
Covered by
CBA
(thousands)
629.7
% of Employees
Covered by CBA
Who Pay Union
Dues or Agency
Fees, or (A)(B)
.810
Federal
(Nonpostal)
Postal
Private
Sector
State
government
2705.4
655.4
111,228.00
424.7
7639.0
446.7
8224.0
.955
.928
6264
1867.0
2056.0
.908
Local
government
10532.0
4412.0
4793.0
.920
67. See, e.g., Collective Bargaining Agreement, APWU-U.S. Postal Serv., art. 17, Nov. 21, 2010,
available at <https://www.apwu.org/sites/apwu/files/resource-files/APWU%20Contract% 2020102015_0.pdf>.
68. See GEORGE BROOKS, THE SOURCES OF VITALITY IN THE AMERICAN LABOR MOVEMENT
(1960); George Brooks, The Strength and Weaknesses of Compulsory Unionism, 11 N.Y.U. REV. L. &
SOC. CHANGE 29 (1982). See generally THE INTERNAL GOVERNANCE AND ORGANIZATIONAL
EFFECTIVENESS OF LABOR UNIONS: ESSAYS IN HONOR OF GEORGE BROOKS (Samuel Estreicher et al.
eds., 2001).
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IV. CONCLUSION
Federal-sector unionism is a paradox. Despite the outlawry of unionsecurity provisions and strikes, sharp limits on the scope of collective
bargaining (outside the U.S. Postal Service and airport air traffic
controllers), and the absence of card-check certification, a good number of
federal employees join unions and pay dues. The union membership rate is
lower than in state and local governments but considerably higher than in
the private sector. Somewhat fewer employees pay dues than are covered
by collective agreements but the free-rider effect is smaller than one would
expect. The federal sector suggests a model of relatively low-stakes
unionism and collective bargaining that perhaps should be considered as an
alternative by labor organizations and policymakers. The federal-sector
model may, however, require certain features that are not readily replicable
in the private sector: the absence of a right to strike in favor of some
measure of interest arbitration as a deadlock-breaking device, an absence of
employer opposition, and statutory employment protections.