What’s new from the agency in the middle of labor-management disputes
The Federal Mediation and Conciliation Service recently had its first in-person national conference since before the pandemic.
The Federal Mediation and Conciliation Service recently had its first in-person national conference since before the pandemic. Which got us thinking … what is it like on the ground in the world of labor relations in the United States. For an update, the Federal Drive with Tom Temin spoke to the FMCS deputy director Javier Ramirez.
Interview Transcript:
Tom Temin And just briefly, so in case there’s a few people out there that may not know exactly what the Federal Mediation and Conciliation Service does.
Javier Ramirez So, we were created in 1947, primarily to help with the large number of strikes that were happening after World War II. So, we were created primarily for the private sector. But as the Congress saw the work that we do in dispute resolution, they gradually started to expand our authority. And so, in 76, under the Civil Service Reform Act, is when we started to federal sector collective bargaining, then we then in the 90s, under the Administrative Dispute Resolution Act, we started to do additional work for other federal agencies through interagency agreements. So basically, dispute resolution, give us a call, if we can help you out, we’ll point you in the right direction.
Tom Temin And so how do you interact visa vie with the FLRA, the Federal Labor Relations authority.
Javier Ramirez So, the NLRA, you know, they’re separate. And so, what happens is they have a number of arms, they’re the in the FRA but we work really nicely with them, if we specifically work with Khandro,
Tom Temin The Collaboration and Alternative Dispute Resolution Office.
Javier Ramirez That they handle negotiability claims, so when folks are negotiating their collective bargaining agreement, and they’re not sure if this is a permissive subject of bargaining, they usually go before CADRO. And then they will help them either mediate that and or resolve that issue. And so, we work really closely with them. They’ll do training programs to help with federal sector folks. And we sometimes partner with them to do to do those. And interestingly enough, before cases go to the federal services impasse panel, which is part of the Federal Labor Relations authority, they have to go through mediation, so although they’re not required to use our services, they could use a private mediator, our price is kind of hard to beat right. So, we don’t charge federal agencies. So, the majority do come through us.
Tom Temin But you still do commercial industrial private sector mediation, also?
Javier Ramirez that is the bulk of our work. And if I’m being candid with this federal crowd, we could have done better in servicing the federal sector workforce. And we learn that when we send somebody over to that federal services didn’t Impasse panel to work with them for six months, they came back and gave us a report out on stuff that they saw that we could be doing better. And we implemented those changes, and so on, when we implemented those changes in matter of three months, we went from resolving disputes about half of them, these cases that came to us from 50% to 80%. Resolution rates, and the number of issues that move forward to the federal services impasse panel went from dozens to two or three. So dramatic changes, in the federal sector there.
Tom Temin and what does the workload of the Conciliation Service look like? Do you do 1000s of cases a year hundreds, dozens? What’s the order of magnitude?
Javier Ramirez Yeah, so 10s of 1000s. And I say that as a whole, right, because there’s a number of type of cases that we handle, but federal sector collective bargaining, we’re in the range of about 200, plus or minus 50, that we handle in a given year before they go to the panel. But we get in the private sector, we get about 15,000 notices a year of contracts that are expiring, and that that including grievance mediations, public sector, when we do teachers, police fire, we just help out on those as well. So, our volume is pretty high.
Tom Temin Yeah. And so mainly, then the work is when a contract is expiring, or has expired, negotiations aren’t finished, and they seem to be going nowhere. And people are on the verge of possibly a strike. That’s when you tend to come in.
Javier Ramirez Yeah, you know what, the Labor Management Cooperation Act was an amendment to the National Labor relations act. And that act asks us to start trying to do stuff before that situation occurs. Right. So we will go in there and during midterm bargaining, we will or the middle the negotiations, rather, we will come in and do training programs to help them communicate more effectively resolve disputes more effectively, and to establish their management committees and just good communication processes so they could avoid the battle when it comes to negotiations.
Tom Temin Right. Trust is kind of a big factor in having these things go well, isn’t it?
Javier Ramirez You know, I tell people, you don’t necessarily have to trust each other, but trust the process. And sometimes we help them honor the process. So, they can trust the process and use that to reach agreement even though there may be some trust issues within the relationship.
Tom Temin We’re speaking with Javier Ramirez, Deputy Director for field operations at the Federal Mediation and Conciliation Service and in the federal disputes that you take care of. Are there any themes and trends? I mean, what happens to cause an impasse the most often have you seen?
Javier Ramirez Yeah, you know, as far as in the federal space, the number one issue that we’re seeing right now is returned to office and I’m very careful with that term, right? It’s not returned to work. The federal sector has proven that we can be very effective working from home. But we understand that depending on the type of role that they’re doing, that there is a need for a return to Office situations. So, it’s that battle back and forth of what’s the appropriate amount of office time versus working from home time. And that seems to be the number one issue that we’re seeing in the federal space at the moment.
Tom Temin Well, does it have to have been something in a contract or a labor agreement clause in order to come before the Commission? Because otherwise, it’s simply agency management discretion, correct?
Javier Ramirez Sure. Yeah. Unless there is a collective bargaining agreement. Right? And if like the barring agreement, then then yeah, that would be something that they have to negotiate with their union.
Tom Temin And what do you find that the somewhere is cutting the baby in the middle? That is to say, some people might want to telework all the time, the agency just to make an extreme, the agency may want people to come in five days a week plus Saturday morning. So, you have to find some way in the middle of that.
Javier Ramirez Yeah, each case is very unique. Because in some cases, we’ve found that a lot of federal agencies have actually given back-office space because of budget restraints. And so sometimes there’s just isn’t a sufficient infrastructure to support everybody coming back, then it also you have to look at the work that they’re doing security levels, you know, some folks during pandemic had to either come in or not do any work, because there’s security issues. So, it really depends on the work that you’re doing and the resources available, but they’re all over the place. We don’t we’re not seeing a standard resolution for this issue.
Tom Temin Sure. And let’s talk about the FMCS itself for a minute. How many people do you have that are actually in the mediation business, and what kinds of skills to those people need to have?
Javier Ramirez On the whole the number of mediators that we have, we have about 120 – 130, mediators. They all do work within the federal sector. In regard to training, implement mediation cases, some of that work like that. When it comes to the collective bargaining mediation, that was one of the changes that we made after we had our detailed with the federal services impasse panel, where we’ve reduced the number of mediators that handle collective bargaining in the federal space and gave him specialized training so that we they could better service the federal space when it comes to collective bargaining. So, we have about 120 130 mediators in total that handle it. However, the skills and one of the things that we did, and it was primarily because of the work in the federal sector was we realized that we had to move from an instinctual practice to an intentional practice, right move, our mediators come in, and they help resolve a dispute. And you’ll ask them, so what did you do? What techniques did you use to help the parties reach that resolution, and we refined them, many of them were like, you know, I’m not sure I just, I just did it right. And so we want to, we want to move from that instinctual practice to intentional where they may be able to see the dynamic, put a name to it, and understand that when we see this behavior, these are some skills or techniques that we could apply when we see that we’re calling that our conflict management professionals program. And we implemented that a couple of years ago, and we’re training up all our mediators on these conflict management professional skills, you see that going into the private sector, also.
Tom Temin Because often they don’t have a legal reference. That is to say, the cases aren’t the same as in nature as what might become, you know, before the Merit Systems Protection Board, for example, where there’s a legal kind of true north that they’re measuring against statutory language. In this case, it’s what’s really the right here for the situation.
Javier Ramirez Yeah, exactly what’s right, and what the party is willing to accept. And unless we see something that we know, is glaringly, you know, illegal, where we would say, Hey, you may want to check with your counsel, before you sign off on this thing, right? Because we don’t get legal advice. We’re not an enforcement. We’re non regulatory, we’re there truly, to just help the parties resolve disputes. It’s a matter of fact, one of the things I tell our folks is that your job is to try to put us out of business, right? Unfortunately, we’re in a growth industry, there’s no shortage of conflict. Wouldn’t it be nice if we have never putting ourselves out of business, right? It’s not going to happen. But that’s the mindset put us out of business.
Tom Temin And if people don’t accept the mediation, then they can always go to court. How often does that happen?
Javier Ramirez So with collective bargaining, you know, it’s a little different, because you have the federal services impasse panel that they would go to in the private sector, you go, you have strikes, there are occasions where they can do arbitration, but in other disputes, like employment mediation cases, then yeah, they could go to the next steps, whether it be with the EEOC or some other agency, depending on what the issue is where they would do that. But our resolution rates and I would need to check on this to be sure, but it’s in that 80% ballpark range.
Tom Temin All right. And just briefly, how did you come to this work? Tell us a little bit about yourself?
Javier Ramirez Yeah. you know what, our mediators in general, we get them from one to four sources. We get some that come from other federal agencies like the national relations board, or maybe they’re doing Some ADR work in their in their agency, we get a few that come from there. We get another small percentage that come directly out of school. We’ll bring them in as developmental mediators, and they have a longer runway to develop as well just generically called journeyman mediators. But the bulk of our mediators come out of either having management or labor backgrounds where they spent years negotiating contracts. They’ve been at the bargaining table for years. And so, my background is on the labor side. I come out of a labor union. I spent 14 years negotiating contracts there before I came to the agency, and now I’ve been with the agency for 19 years.
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Tom Temin
Tom Temin is host of the Federal Drive and has been providing insight on federal technology and management issues for more than 30 years.
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