Chapter 19
PUBLIC SECTOR LABOR RELATIONS
INTRODUCTION
Chapter nineteen discusses the rights of public sector employees and their liberty to organize and bargain
collectively. The independence of federal, state, and local governments to engage in collective bargaining
is a recent phenomenon. Public sector employees are excluded from receiving protection under the
CHAPTER OUTLINE
I. Differences Between Private and Public Sector Labor Relations Issues
A. Constitutional Restriction
1. Constitutional provisions place a limit on the public sector employer’s method
B. Government Sovereignty
1. Public employers have sovereignty as government entities. The government
may be obligated by law to perform certain functions and provide certain
services, and government officials are given authority to take such actions and
make such decisions as are necessary to perform those functions.
C. Right to Strike
1. Section 7 of the NLRA protects the right for private sector workers to strike.
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2. Public sector workers, in general, do not have the right to strike. The activities
of the government due to labor disputes could negatively affect the welfare of
the public.
CASE 19.1 POSTAL CLERKS V. BLOUNT
325 F. Supp. 879 (U.S.D.C., D.C. 1971), aff’d, 404 U.S. 802 (1971)
Background: This is a lawsuit brought by the United Federation of Postal Clerks (“clerks”) against
defendant, Blount, who is the Postmaster General of the United States. The lawsuit is in response to a
statute forbidding clerks from participating in a strike against the government.
Issue: Whether the statute is a violation of the clerk’s First Amendment right?
Decision: No. There is no constitutional right to strike. Absent legislation, public employees do not have
the right to strike. Congress has consistently treated public employees as being in a different category
than private employees. Congress originally enacted the no-strike provision separately from other
ANSWERS TO CASE QUESTIONS
1. There is no constitutional right to strike, and there was no right to strike under common law.
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all times and to prevent inappropriate use of bargaining power to influence the political decisions of
the government in allocating resources.
II. Federal Government Labor Relations
A. Historical Background
1. In 1883, the Pendleton Act, also known as the Civil Service Act granted
Congress the sole authority to set wages, hours, and other terms and conditions
of federal employment.
4. By 1962, through Executive Order 10988, federal employees were given the
right to organize again as executed by President Kennedy.
5. The Federal Service Labor-Management Relations Law of 1978, which was
enacted as part of the Civil Service Reform Act of 1978, was the first
comprehensive enactment covering labor relations in the federal government.
B. Coverage
1. The FSLMRA covers federal employees who are employed by a federal
agency or who have ceased to work for the agency because of an unfair labor
practice.
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4. The Thurmond Act of 1969 prohibits military personnel form belonging to a
union.
C. Postal Service Employees
1. The employees of the U.S. Postal Service are not subject to the FSLMRA. The
Postal Service Reorganization Act (PSRA), which created the U.S. Postal
D. Administration
1. The FLRA is empowered to regulate the activities of unions, including
determining the appropriateness representative unit, elections, collective
E. Representation Issues
1. Under the FSLMRA, a union becomes the exclusive representative of an
appropriate unit of employees by a majority of votes cast in a representation
2. Representative units may not include: any management or supervisory
employees; confidential employees; employees engaged in personnel work
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3. Representation Elections
4. Consultation Rights
a) If the employees of an agency have not designated any union as their
F. Collective Bargaining
1. The FSLMRA requires that agencies and exclusive representatives of agency
2. Conditions of employment are defined as including personnel policies,
practices, and matters—whether established by rule, regulation, or otherwise—
or matters that are provided for by federal statute.
G. Wages
1. Wages for most federal employees are not subject to collective bargaining
because they are determined by statute.
H. Management Rights
1. The FSLMRA contains a very strong management-rights clause, which also
restricts the scope of collective bargaining. According to that clause, collective
3. Decisions to assign work, contract out work, or select candidates to fill
4. The duty to bargain extends to matters that are the subject of any rule or
regulation as long as the particular rule or regulation is not government-wide.
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5. The agency’s duty to bargain includes the obligation to furnish, upon request
by the exclusive representative, data and information normally maintained by
the agency. Such data must be reasonably available and necessary for full and
CASE 19.2 U.S. DEPARTMENT OF THE NAVY V. FEDERAL LABOR
RELATIONS AUTHORITY
665 F.3d 1339 (D.C. Cir. 2012)
Facts: In the mid–1990s, the Naval Undersea Warfare Center Division in Newport, Rhode Island, began
providing employees with bottled water. It did so after an EPA report indicated that water fountains in
some Navy buildings in Newport contained components manufactured with lead. Beginning in 2005,
however, the Navy replaced the problematic water fountains, tested the tap water, and determined it
Issue: Did the Navy have an obligation to bargain with the unions about the elimination of bottled
water, and if not, should the arbitrator’s award be vacated?
Decision: The Circuit Court of Appeals for the District of Columbia held that federal appropriations
law barred the Navy from providing bottled water to its civilian employees, when perfectly safe tap
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when it sought to enforce the arbitrator’s award to the contrary.
I. Impasse Settlement
1. The FSLMRA created the Federal Service Impasse Panel*.
2. The Federal Mediation and Conciliation Service, created by the Taft-Hartley
4. Grievance Arbitration. The FSLMRA provides that all collective agreements
under it must contain a grievance procedure.
5. The grievance procedure must provide for binding arbitration as the final step
in resolving grievances. If arbitration is invoked, either party may appeal the
*Federal Service Impasse Panel: Federal body created under the Federal Service Labor-Management
Relations Act to resolve impasses in collective bargaining in the federal service.
6. When a grievance involves matters that are subject to a statutory review
statutory procedure or through the negotiated grievance procedure.
J. Unfair Labor Practices
1. The FSLMRA prohibits unfair labor practices by agencies and unions. The
K. Agency Unfair Practices
1. Unfair labor practices by agencies under the FSLMRA include: interfering
with or restraining the exercise of employees’ rights under the act; encouraging
2. It is also an unfair labor practice for a union to call or condone a strike, work
slowdown, or stoppage or to picket the agency if the picketing interferes with
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L. Unfair Labor Practice Procedures
1. When a complaint alleging unfair labor practices is filed with the FLRA, the
General Counsel’s Office of the FLRA investigates the complaint and attempts
to reach a voluntary settlement.
M. Unfair Labor Practice Remedies
1. The FLRA has broad authority for fashioning remedial orders for unfair labor
practices.
CASE 19.3 PROFESSIONAL AIR TRAFFIC CONTROLLERS ORG. V. FLRA
685 F.2d 547 (D.C. Cir. 1982)
Background: The Professional Air Traffic Controllers Organization (PATCO) was the exclusive
bargaining representative for air traffic controllers employed by the Federal Aviation Administration
(FAA) since the early 1970s. PATCO and the FAA began negotiations for a new contract in early 1981,
and a tentative agreement was reached in June. That proposed agreement was overwhelmingly rejected
In addition, the FAA filed an unfair labor practice charge against PATCO with the Federal Labor
Relations Authority (FLRA). An FLRA regional director issued a complaint on the unfair labor practice
charge, alleging that the strike was prohibited by federal law and seeking revocation of PATCO’s
certification under the Civil Service Reform Act.
Issue: Did PATCO engage in an illegal strike and should PATCO’s certification have been revoked?
Decision: The court affirmed the FLRA order finding PATCO had violated the legal prohibitions against
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N. Judicial Review of FLRA Decisions
1. Final orders, other than bargaining unit determinations and arbitration awards,
are subject to review in the federal courts of appeals. The party seeking review
2. Upon review, the court may affirm, enforce, modify, or set aside the FLRA
O. The Hatch Act
1. The Hatch Act prohibits certain political activity by federal employees. Federal
employees are prevented from taking an active part in the management of
P. Union Security Provisions
2. A union may not require union membership as a condition of employment,
meaning the collective agreement may not contain a closed shop or union shop
3. Agency shop provisions, which require that an employee pay union dues or
fees but do not require union membership, do not raise the same constitutional
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4. In Abood v. Detroit Board of Education, the Supreme Court held that union
expenditures for expression of political views, in support of political
5. The Court held that employees who object to political expenditures by the
6. A state law requiring public sector unions to get affirmative authorization of
7. In Ysursa v. Pocatello Education Association, the Supreme Court held that a
8. In Chicago Teachers Union, Local No. 1 v. Hudson, the Court held that the
union is required to provide objecting members with information relating to
9. In Lehnert. Ferris Faculty Associate, the Court set out three criteria for
determining which activities are in essence related to collective bargaining
10. Using these criteria, the Lehnert Court held that the teachers’ union could not
charge objecting individuals for lobbying, electoral activities, or political
activities beyond the limited context of contract implementation or negotiation.
In addition, the union could not charge for expenses incurred in conducting an
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11. The Court also held that the union could not charge the objecting individuals
12. Private sector employees have the same right to object to political expenditures
13. The FSLMRA provides that union dues may be deducted from an employee’s
pay only if authorized by the employee. The employer may not charge a
Q. Federal Labor Relations and National Security
1. In response to the terrorist attacks of September 11, President Bush created the
Department of Homeland Security (DHS).
2. As part of the administrative reorganization involved with the creation of
3. The Homeland Security Act of 2002 authorized the Secretary of Homeland
4. The act also stated that any regulations adopted had to “ensure that employees
5. Pursuant to the authority granted under the Homeland Security Act, DHS
adopted the “Department of Homeland Security Human Resources
Management System,” a human resource management system that restricted
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Protection Board (MSPB), which administers the federal civil service system
and regulations.
6. The National Defense Authorization Act for Fiscal Year 2004 authorized DoD
The WORKING LAW
Airport Screeners Seek Bargaining Rights
The legislation that established the Transportation Security Administration (TSA) states that the
Administrator of the TSA has the authority to decide whether or not to allow its employees to engage in
collective bargaining. The Bush Administration took the position that collective bargaining rights for
TSA employees would weaken travel security protections by adding an additional layer of procedures to
TSA operations, and would limit the agency’s ability to respond quickly in emergencies because it
would be required to negotiate changes in security procedures with unions representing its employees.
Proponents for collective bargaining rights argue that collective bargaining can ensure that the agency is
run more effectively, and that current TSA employees complain of hostile work environments,
ask the DHS general counsel to review whether she has the authority under existing legislation to grant
collective bargaining rights to TSA employees.
Additional resources are available at:
CASE 19.4 NATIONAL TREASURY EMPLOYEES UNION V. MICHAEL CHERTOFF,
SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY
452 F.3d 839 (D.C. Cir. 2006)
Background: The Homeland Security Act of 2002 (“HSA”) gave the Secretary of Homeland Security the
authority, jointly with the Director of Personnel Management (“OPM”) to establish, and from time to