The law must be one that enunciates the importance of labor relations and collective bargaining and provides for a strong Federal labor relations authority with broad powers over a broader spectrum of negotiable areas. H.R. 10700 is a good bill but it is not strong enough. It relies on the present Executive order and limited National Labor Relations Act provisions for precedent more than do H.R. 13 and H.R. 9784. We are not in full agreement with those bills in that their denial of contract bar and their denial of any need for some definition of management rights is not appropriate for Federal public employment. What management rights should be is a good question-the best answer is limited. So long as management and employees are working toward the same goals and objectives, management's rights should center around the collective bargaining agreement. All in all, the stronger rights granted to unions and to employees in H.R. 13 and H.R. 9784 are necessary to insure equality in the Federal sector for all as to the conditions affecting employment. Therefore, we recommend that H.R. 10700, with the addition of a majority of the substantive and procedural elements of H.R. 13 and II.R. 9784 as discussed herein, be adopted by this subcommittee as soon as possible. Thank you for your courtesy and attention. Mr. HENDERSON. Thank you very much, Mr. Lyons. I think you have a very excellent statement. Your views certainly will be carefully considered. Before I get into some of the technical questions, I'm delighted to yield to Mr. Moakley. Mr. MOAKLEY. I will yield back to you since you're the expert in this field. I'll be glad to listen. I think the statement is a great statement and I think that the problem that this committee has under the Bolling report, that this committee may no longer function, and I'm glad you're in favor of retaining this committee to deal with the problems of the Federal civil service. Mr. HENDERSON. Mr. Lyons, I think the most significant point that you make is the one that I have arrived at, and that's the need for the legislation. I think we could have much greater success in the kind of legislation we enacted if everyone recognize the need, but I'm most appreciative of the points that you have made with regards to not only both the need but getting possible clarification, and from time to time as we work on the legislation I feel sure we will be calling on you and your people to give us your further advice with regards to some of the specifics. On page 5 of your statement in discussing coverage of the proposed legislation, you say that "there are clearly employees whose positions are so sensitive that they need to be excluded. Definitive standards should be applicable to any conceivable situation." What standards would you suggest be incorporated either in the bill or established by the Federal Labor Relations Authority to assist in determining these exclusions? We have found great difficulty in the definitive standards and if you would like to touch on it or if you'd like to submit your views to us later, in either event, they could be most helpful to us. Mr. O'DEA. We believe that although there are Federal agencies that are involved in national security, they have employees who could clearly be involved in union relations and should have some voice in collective bargaining. However, the people involved in the most sensitive file areas and the agents themselves we feel would be excluded. That, of course, would cover the foreign agents of the CIA, the field agents of the FBI, and possibly those Secret Service agents involved in Presidential production. Mr. HENDERSON. Do you think this could be resolved by a request of the employees or their proposed organizations to the Authority for specific recognition of the unit rather than to continue the full exclusion of the agency? Mr. O'DEA. Clearly, I don't think the agency should be the party making this decision. I think the Authority must make the decision because the agency is involved in its own management. We don't believe the agency head should have the unchallenged right to unilaterally determine who should be exempt. Mr. LYONS. Let me give you an example of this. We had a unit we petitioned for in Virginia of National Guard technicians. There was some question as to the people that we had petitioned for as related to some of their duties, in that from time to time they used guard dogs and did guard duty, once or twice a month. That the agency felt they should be excluded from the unit. Their jobs were allegedly sensitive and they were considered as security guards. By the time they got through with the unit, I think we lost 60 percent of the people we had petitioned for and I thought that the decision that was rendered was rather ridiculous, that they were in a sensitive position. Certainly, for the once or twice a month that they walked around with an attack dog, I don't believe they should have been placed outside of the unit. But these are some of the things that we are faced with and many times there are different decisions involving the same grades and types of personnel throughout the country. I remember one time when the head of the FAA thought that every person who worked for the FAA was in a sensitive position, even including the janitors who worked in their building, but he was overruled, fortunately. Mr. HENDERSON. Also on page 5, you advocate some form of union security. Yesterday in their testimony, the National Federation of Federal Employees proposed a fair representation fee which would serve that purpose but contingent upon an election by employees in the unit represented to determine whether they supported the fee. What would be your views on this alternative? Mr. LYONS. Certainly I would go along with the-well, right now, for instance, some of the States have an agency fee proviso, and the way our organization handles it, we allow the unit or the local to make that determination as to whether or not the nonmembers will pay an agency fee, and if they vote in favor we notify the town, the city or the State that we request participation in the agency fee program. And I have found in every case where we have requested the membership to vote as to whether or not they want the nonunion members to participate in an agency fee, that it was a favorable reaction. I feel, as we pointed out, that here we are forced to represent both the members and nonmembers and we have to have quite a staff to represent these people. Then the nonmembers, who certainly request representation from time to time, should also participate by paying at least an agency fee. But I would not certainly object to the NEFE proposal and I think it's a fair proposal. Mr. HENDERSON. I'm very glad to have your response because I think we're getting very close with that kind of a proposal, also coupled with some of the positions that I think the Education and Labor Committee and the House of Representatives took recently in the extension of the NLRA to private hospitals, as that legislation. permitted employees with very strong religious convictions to be excluded, and what we possibly could do in this type of voting situation is to insure that no one is forced to belong, to join or to pay a fee to work for the Government, and that's been the very strong position of some of us who have felt that that should not be the case. Mr. LYONS. Could I just respond, Mr. Chairman, with a story I heard from Congressman Moakley. A fellow appeared before a judge also, and talked about the religious aspect, but I know that quite a few of those with very strong religious beliefs come to us and ask that we represent them any time that they get in trouble, and they, because of their religious beliefs, may not belong to the union, but they certainly like to have our attorneys. It was like the story of the fellow-I hope I'm saying it right, Congressman Moakley-who went before the judge and the judge said, "Who's your attorney?" And he said, "The Lord is my representative.” The judge said, "Yes, I know that, but who is it locally?" So our union locally will take care of them. I hope I didn't kill that one. Mr. MOAKLEY. I was going to say you make a better presentation than you tell a story. Mr. HENDERSON. You propose that qualifications in H.R. 9784 regarding supervisor personnel should apply throughout. This is on page 8 of your statement. That bill would permit supervisors of firefighters or educational employees or public safety officers to be in the same unit of recognition as the people they supervise. What would be your position on that proposal and why should these supervisors be treated separately from all other supervisors? Mr. O'DEA. I don't feel that bill provides that all supervisors would be a part of the units in those three areas. It provides that a majority of the supervisory criteria must be fulfilled before an employee is considered a supervisor and thus excluded under the firefighting, educational and public safety areas. In the firefighting area, I think this has been a distinct problem because they have created ranks to provide a broader pay structure that don't entail true supervisory capabilities. The same thing is true of first level supervisors in public education. I feel that hiring and firing, direct control over promotion, and so forth, are valid criteria, demotion and reassignment; but the first level supervisors in those three areas, for the most part, make recommendations that are only advisory. In the firefighting area-and we do have a number of firefighting units in the Federal sector and the State and county areas-most of those units include up to captains and in a majority of our police units we include up to sergeants, who would conceivably be considered supervisory personnel under the criteria of "hiring or firing or promoting or demoting or assigning." If you require the definition of supervisors as H.R. 9784 does, that a majority of these, or a number of these, criteria must be met before a person is regarded as a supervisor and therefore excluded, then I think you will end up with a fairer unit. First level supervisors in those three areas are work leaders. But under existing criteria, they have been excluded and therefore they are denied representation. Management uses them, I feel, as whipping boys and they identify most closely, at least in the educational and public safety areas, with the rank and file. Mr. HENDERSON. Thank you very much, Mr. Lyons. The staff has more questions they have prepared that we would like to work with you on in getting entered into the record at this point without taking more time. Let me commend all of you for the obvious amount of attention you have given to this legislation and I assure you that your presentation this morning has been most helpful to us. Mr. LYONS. Thank you. [The letter which follows was received in response to additional questions:] NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, Mr. Roy D. MESKER, DEAR MR. MESKER: This is in response to your letter of June 20, 1974, to Mr. Lyons setting forth some additional questions in connection with the Subcommittee hearings on June 13. I will address your questions in the order they were posed. 1. It is our belief that the government's labor-management relations program should make provision for the recognition of locals consisting of supervisory employees; further, that there should be no prohibition against representation by and recognition of supervisory units by organizations that also represent non-supervisory employees. We concede that, to permit recognition of units that encompass both supervisory and non-supervisory employees, would pose conflictof-interest problems. However, so long as both categories of workers are confined to units of their peers, we see no problem or potential conflict. Supervisory locals granted recognition under the same procedures as apply presently to locals of non-supervisory employees would elect officers from their own ranks, and should be entitled to negotiate agreements covering their working conditions and personnel policies. 2. Current policy under Executive Order 11491 permissively allows union and management negotiating teams to "request" an exception to an agency policy or regulation if both parties agree to a procedure that departs from such policy or regulation. It is our experience that this provision is meaningless and empty of any real substance. For example, both in 1972 and 1974 the N.A.G.E. has sought an exception to a Department of Commerce policy to allow negotiation in a nation-wide agreement with the National Weather Service of language permitting the union to designate a non-participating observer on promotion panels. Not only has the request been denied by the Department, but the agency negotiating team has been directed by the Department to not join with the union in a request for an exception to the policy. Even if the N.W.S. were to demonstrate a measure of courage and join with us in such a request, the Department has made it clear that it would deny it. The N.A.G.E. contends that, particularly where nation-wide agreements are involved, all agency regulations and policies should be negotiable, except insofar as they are required by statute. Similarly, there presently exists no procedure or process by which unions can have impact or effect on the substance of the Federal Personnel Manual. We suggest the development of a framework by which the major organizations representing Federal workers designate members of a multi-union negotiating team, which would be authorized to negotiate the provisions of the F.P.M. with the Civil Service Commission to the extent that its provisions are not dictated by law. In like fashion, the same multi-union negotiating team should be empowered to negotiate with the Office of Management and Budget on matters directly affecting the Federal workforce, i.e., policies governing contracting-out procedures, programs to control average grade, etc. 3. The N.A.G.E. supports the concept of compulsory and binding arbitration in the resolution of bargaining impasses, in lieu of the right to strike. However, such a mechanism must be coupled with a significant broadening of the scope of negotiability. Binding arbitration over minutiae is neither satisfying nor significant. We would be willing to test the procedure of "last best offer" arbitration, in which the arbitrator selects between the last positions or offers made by the union and management bargaining teams. This technique is now in use in the States of Michigan, Wisconsin, and Iowa. 4. With regard to our testimony on national recognition and national bargaining units, our position is that the two basic concerns must be protected: (1) that viable bargaining relationships enjoyed by unions at the local or regional levels should not be over-ridden by an effort of another union which, through sheer numbers, seeks to "lock-up" an entire agency in a single bargaining unit, and (2) That some agencies lend themselves to national units, while others do not. In short, we are arguing against the adoption of unit criteria which would permit the establishment of larger bargaining units which would cancel out or supersede existing units and/or existing contracts held by organizations other than the one seeking a nation-wide unit. I trust that these comments are responsive to your questions. Sincerely, ALAN J. WHITNEY, Executive Vice President. Mr. HENDERSON. Our next witness this morning is Mr. John Leyden, who is president of the Professional Air Traffic Controllers Organization. Mr. Leyden, it's my pleasure to welcome you before the subcommittee here this morning and I understand you have the general counsel and the legislative research director with you. You may introduce them and proceed with your statement. STATEMENT OF JOHN F. LEYDEN, PRESIDENT, PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, ACCOMPANIED BY WILLIAM B. PEER, GENERAL COUNSEL; ALLAN MOSKOWITZ, LEGISLATIVE RESEARCH DIRECTOR; AND JOHN MAHER, DIRECTOR OF LABOR-MANAGEMENT RELATIONS Mr. LEYDEN. Thank you, Mr. Chairman. I have one other gentleman who is with us this morning I'd like to introduce also. On my left is Mr. John Maher, our director of labormanagement relations. On his left is Mr. Allan Moskowitz, legislative research director; and on my right is our general counsel, Mr. William Peer. Mr. HENDERSON. It's my pleasure to welcome you gentlemen this morning. Mr. LEYDEN. Mr. Chairman and members of the subcommittee, the Professional Air Traffic Controllers Organization greatly appreciates the opportunity you have given us today to present our views on legislation to place the Federal labor-management relations program on a statutory basis, a change that we strongly feel is long overdue. Of the three main bills before the committee-H.R. 10700, introduced by Subcommittee Chairman Henderson for himself and for Committee Chairman Dulski; H.R. 9784, introduced by Congressman William D. Ford; and H.R. 13, introduced by Congressman Frank |