(Originally sent as 14 STATE 23082 on March 11, 2014)
In 2009 President Barack Obama acknowledged the value of “a collaborative and productive form of labor-management relations throughout the executive branch” (Executive Order 13522). AFSA is both a labor union and professional association. What does that mean in practice? What is the history of labor-management relations at the Department of State and the foreign affairs agencies? What are the rights and responsibilities of various parties involved in labor-management relations? In an effort to increase employee and management understanding of labor-management relations as it relates to the Foreign Service, we present the information below. AFSA is also working on a labor-management module that will be incorporated into appropriate FSI curriculum.
History of Labor Management and the Foreign Service
AFSA is both the professional association and public sector union representing the Foreign Service. In 2014, we marked the 40th anniversary of AFSA’s status as the democratically elected exclusive representative of Foreign Service employees at the Department and 90th anniversary as the professional association. In 1970, employees affirmed via referendum that they wanted union representation and in 1972 AFSA was elected as the exclusive representative at State, USAID, and USIA (for more history see the April 2013 and June 2003 issues of The Foreign Service Journal). President Nixon had already signed executive orders calling for public sector unions, but in 1973 he signed Executive Order 11636 recognizing that “the unique conditions of Foreign Service employment require a distinct [labor management] framework.” Congress incorporated these unique labor management provisions into Chapter 10 of the Foreign Service Act of 1980 (http://www.flra.gov/fsa) signed by President Carter. The Department of State’s 3 FAM 5000 governs labor management relations at State and in appropriate negotiations, USAID, the Foreign Commercial Service, Foreign Agriculture Service, Broadcasting Board of Governors, and the Animal and Plant Health Inspection Service, who each have their own bodies of regulations as well.
Labor Management Vocabulary
AFSA is the exclusive representative of the Foreign Service and as such is the only labor organization having been duly elected and certified that may represent and negotiate on behalf of the interests of all bargaining unit employees. AFSA is the Department’s sole interlocutor on Foreign Service conditions of employment. The Foreign Service’s bargaining unit is unique in that it is singular, world-wide and includes both employees and their supervisors. The Foreign Service Act of 1980 affirmed the unique nature of the Foreign Service and its inclusive bargaining unit membership. The Foreign Service bargaining unit includes all Foreign Service employees except those determined to be occupying positions deemed to be management officials and their deputies and only for the duration of that assignment. For example, an individual serving as the Deputy Chief of Mission overseas would be considered a management official and outside of the bargaining unit. However, on the person’s return to Washington as an Office Director in a regional Bureau the person would once again be in the bargaining unit. This differs significantly from Civil Service bargaining units that exclude all supervisors. FS bargaining unit status is not determined by the person’s individual grade or skill code but rather the responsibilities of the individual assignment. As AFSA is both a professional association and a union the person can continue to be a member of AFSA’s professional association even if he or she is temporarily outside of the bargaining unit.
Employee, Management, and Union Rights
Chapter 10 of the Foreign Service Act enshrines Employee Rights (22 USC Section 4104), Management Rights (22 USC Section 4105) and Union Rights (22 USC Section 4113). The Foreign Service Act also identifies the appropriate external bodies in the event that parties are unable to resolve questions concerning labor negotiations, representation, or grievances: Foreign Service Impasse Disputes Panel (www.flra.gov/fsip), Foreign Service Labor Relations Board (www.flra.gov/fslrb) and the Foreign Service Grievance Board (www.fsgb.gov).
In short, employees have the right to join a union, but do not have to. If the person is in the bargaining unit they have the right to the presence of a union representative at an agency investigation that they reasonably believe might lead to disciplinary action (Weingarten Right) if they ask for such representation. Management must inform them of this right on an annual basis, but not necessarily before or during the investigation.
Management has the right to make decisions in some areas without union agreement, for instance determination of mission, budget, and organization. However, the union has the right to negotiate the procedures and appropriate arrangements for employees who may be negatively impacted by management’s decisions if the decision has more than a minimal impact on the bargaining unit.
The union has the right and responsibility to represent all employees in collective bargaining negotiations. It also has the right to be present at any formal discussion concerning any grievance, personnel policy or practice or other general condition of employment. As part of its educational outreach AFSA has posted the Department of Labor’s notice on union member rights and officer responsibilities on its website.
Unfair Labor Practices
The Foreign Service Act creates rights and obligations on the part of unions, agency management, and employees. If either the labor union or management fails to perform its obligation to the other party, an unfair labor practice (ULP) charge may be filed. A ULP charge may also be filed if either labor union or management interferes with the rights each has been given under the Statute. Employees may also protect their rights under the Statute by filing ULP charges against the labor union or management. There are many types of ULPs and the explanation of any particular one can be complicated. The parties will seek to expand on that explanation in the training mentioned above. The Federal Labor Relations Authority also maintains an extensive guide on Unfair Labor Practices. As an example, it may be a ULP if the Department fails to provide the union with information it has requested that is normally maintained, reasonably available, and necessary for the union’s representational responsibilities. It may also be a ULP if the Department were to discourage membership in the union or coerce bargaining unit employees in exercising their rights to seek union assistance. It may also be a ULP if the Union fails to fairly represent its members or negotiates in bad faith with the Department.
Labor Management Relations
Employees, management, and union officials have rights and responsibilities under the Foreign Service Act as it pertains to labor management relations. Given the Foreign Service’s unique bargaining unit – world-wide and inclusive – it is especially important that employees temporarily assigned as management officials are aware of their additional responsibilities.