ATTACHMENT 3

U.S. FEDERAL LABOR RELATIONS COUNCIL,
Washington, D.C., April 26, 1974.

To: Mr. Anthony F. Ingrassia, Office of Labor-Management Relations, Civil
Service Commission.

From: Harold D. Kessler, Acting Executive Director.
Subject: Council Case Handling Statistics.

The following is supplied pursuant to your request for a breakdown of certain Council case processing statistics previously furnished your office by Mr. Frazier.

The Federal Labor Relations Council was established by Executive Order 11491, Labor-Management Relations in the Federal Service, which was issued by President Nixon on October 29, 1969, effective on January 1, 1970. The Council consists of the Chairman of the Civil Service Commission, who is the Chairman of the Council, the Secretary of Labor and the Director of the Office of Management and Budget.

The Council was established in response to a clearly recognized need for a central authority to administer the Federal sector labor-management relations program. Executive Order 10988, the first Executive Order governing labormanagement relations in the executive branch, had provided that authority to administer the program should be vested in the heads of executive departments and agencies with technical guidance and assistance provided by the Department of Labor and the Civil Service Commission. Within a few years agencies and unions clearly recognized the need for a central authority to administer the program and make final decisions on policy questions and disputed matters. According to the Report of the 1969 Study Committee, agencies had found that the lack of authoritative central rulings on policy questions tended to build up unreasonable pressures on the labor-management relationship. The mere appearance of bias inherent in agency resolution of disputes between the agency and a union had placed an excessive burden on agency decisionmaking. Labor organizations complained of the basic inequality in such an arrangement and insisted on program supervision by a central authority and third-party handling of disputed matters.

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Thus, the Council was established to provide overall policy and program direction for labor-management relations in the executive branch and to resolve specific disputes between unions and other Federal agencies. In resolving such disputes, it serves as a third party in the sense that it is not a party to the disputes before it. The Study Committee and the President concluded that a central body of high-level officials in the executive branch, such as the Council with its particular composition, would ensure the desired balance of judgment and expertise in the resolution of disputes and in the administration of the program. In effect, it is the responsibility of the Council to promote what the Study Committee, which recommended its creation, described as "an equitable balance of rights and responsibilities among the parties directly at interest-the employees, labor organizations, and agency management-and the need, above all, in public service to preserve the public interest as the paramount consideration."

The functions of the Council are described in section 4 (b) and (c) of the Order. Section 4(b) states that the Council shall administer and interpret the Order, decide major policy issues, prescribe regulation, and, from time to time, report and make recommendations to the President. Section 4 (c) provides that the Council may consider, subject to its regulations (1) appeals from decisions of the Assistant Secretary of Labor for Labor-Management Relations issued pursuant to section 6 of the Order; (2) appeals on negotiability issues as provided in section 11(c) of the Order; (3) exceptions to arbitration awards; and (4) other matters it deems appropriate to assure the effectuation of the purposes of the Order.

To carry out its functions, the Council has issued rules and regulations which are contained in Table 5, Chapter XIV, of the Code of Federal Regulations, Part 2410 of those rules sets forth the procedures under which the Council, as provided in section 4(b) of the Order, will issue interpretations of the Order and statements on major policy issues. Part 2411 of those regulations sets forth the procedures under which the Council will review decisions of the Assistant Secretary of Labor, negotiability issues, and arbitration awards.

The Assistant Secretary of Labor for Labor-Management Relations is responsible for deciding questions as to the appropriate unit for purposes of exclusive recognition and related representation issues; for supervising representation elections; for deciding unfair labor practice complaints and alleged violations of the standards of conduct for labor organizations; and for deciding whether a grievance is subject to a negotiated grievance procedure or to arbitration under an agreement. The Council will accept an appeal from an Assistant Secretary decision in such matters where a major policy issue is present or where it appears that his decision was arbitrary and capricious.

Because bargaining in the Federal sector takes place within an extensive existing legal structure of statutes, executive orders and regulations, the Order provides a means to resolve disputes as to whether a given bargaining proposal conflicts with such law. Determinations in such cases are initially made by the head of an agency. A union may appeal to the Council for a decision when it disagrees with an agency head's determination that the proposal would violate applicable law or regulation of appropriate authority outside the agency or the Order, or, where the agency head has relied upon agency regulations, the union may appeal to the Council if it believes the agency regulations, as interpreted by the agency head, violates applicable law, the Order or regulation of approprite authority outside the agency.

The third type of appeal which may be brought before the Council is an exception to an arbitration award issued pursuant to a negotiated grievance procedure. The Council will grant a petition for review of an arbitration award only where it appears from the facts described that the exception presents grounds that the ward violates law, appropriate regulation, or the Order, or other grounds similar to those upon which challenges to arbitration awards are sustained by courts in private sector labor-management relations.

From its creation in January 1970 through March 31, 1974, the Council has received 218 appeals cases under section 4 (c) of the Order-115 have been appeals from decisions of the Assistant Secretary of Labor for Labor-Management Relations which were issued pursuant to section 6 of the Order-74 have been appeals from agency head determinations on negotiability issues under section 11(c) of the Order-and 29 have been exceptions to arbitration awards issued pursuant to agreements negotiated under the Order.

When President Nixon signed E.O. 11491, he directed that a review and assessment of operations under the Order be made after one year. That review was initiated by the Council with public hearings in October 1970. Those hearings were followed by an intensive study by the Council of major policy issues which were raised and subsequently by a report to the President which resulted in amendments to the Order.

In September 1973 the Council initiated its second general review of the Federal sector labor-management relations program. As a first step, unions, agencies and other interested parties were asked to suggest issues for consideration, including possible alternative courses of action. After carefully examining all the matters proposed for inclusion in the review, the Council selected 23 areas which became the central focus of the review and parties were asked to submit substantive position papers on these areas. Following receipt and review of the submissions, the Council held public hearings on April 8, 9, and 10, 1974. Representatives of selected agencies and labor organizations testified at the hearings. The purpose of the hearings was to provide the Council an opportunity to seek amplification of the written submissions which had been previously submitted and to pursue proposals made.

Among the areas under review by the Council are the following:

(1) The treatment of specific categories of people under the Order, such as supervisors, management officials, confidential employees, professional employees, guards, and attorneys.

(2) Recognition procedures, including the requirement for secret ballot elections under the Order.

(3) The consolidation of existing bargaining units.

(4) The scope of negotiations, including the impact of agency regulations and management rights on the scope of negotiations.

(5) Negotiated grievance procedures and arbitration.

(6) The requirement for review and approval of agreements to ensure that they comport with law.

(7) Operation of third-party procedures.

(8) Official time for union representatives.

(9) The impact of agency reorganizations on the labor-management relationship.

Those who testified were invited to submit supplementary statements to the Council. Following a careful review and analysis of the transcript and the parties' written submissions, the Council will prepare a report and recommendationsfor submission to the President.