First Branch Forecast

What We Know About How House Unionization Might Work

The House Administration Committee held a hearing on Congressional unionization on Wednesday, March 2, 2022. Congress approved legislation providing for unions a quarter-century ago and the Office of Congressional Workplace Rights (OCWR) promulgated regulations on how unionization would work at the time, but tricky language in that law requires the House to act (by a resolution) to implement labor protections for certain political and non-political staff. The hearing focused on whether the unionization regulation should be put into effect.

Witnesses included OCWR General Counsel John Uelman, who was there as an expert witness to explain how all this might work, as well as Mark Strand, who represented the conservative Congressional Institute in opposition to unionization. Demand Progress submitted this statement providing a history of how we got here, and Rep. Levin submitted a statement explaining why the time for unionization is now. In addition,  a coalition of 78 organizations called on the House to protect staff’s right to unionize immediately in a letter to House leadership timed to coincide with the hearing. We’ve got the witness statements, video, and everything else you could want on the topic here.

In sum, Uelman said the current OCWR Board unanimously supports the 1996 regulations and “urges Congress to approve these regulations.” More than 160 members of Congress have cosponsored Rep. Levin’s resolution. Following the hearing, the Congressional Workers Union released a statement in support of immediate adoption of the 1996 regulations; it’s available hereRollCall and BGov have good summaries of the hearing.

Working in Congress is “not generally a career path,” Rep. Loudermilk observed during the hearing as an argument against unions. He’s right — working in Congress is not generally a career path — and that is a problem when you want to have professional staff who are expert in their subject matter and loyal to the institution. We don’t expect that unions will solve this problem by themselves, but we think it would help by giving employees a voice at the bargaining table.

We heard from the OCWR that the format of Rep. Levin’s resolution may need to be tweaked even though it parallels what was passed previously. The OCWR also noted that the House can speed up implementation of the regulations, which otherwise would take 60 days to vest, by including language in an accompanying committee report that elucidates good cause to make it sooner. It’s unclear to us whether House Admin will have a markup, will poll the bill, or when it might advance to the floor. Given the circumstances, the House should pass the resolution ASAP.

The hearing addressed a lot of myths about unionization. For example, Uelmen suggested that Strand’s testimony, where Strand raised concerns about a union preventing staff from working long hours, changing the at-will nature of the work, and other items that suggest the union could change provisions of the CAA, was not well-founded in fact. Uelmen also said, in response to Rep. Fernandez, that getting the parties to sit together at the table and hear staffers out, even if you don’t get an agreement between the parties, would likely result in a better understanding of where the other party sits. We recommend looking to OCWR’s fact sheet and written testimony as useful starting points for reliable information — here are some answers to common questions (drawn from these sources):

What issue is before the House?
Congress already made the policy decision that unions should be available for Legislative branch staff when it enacted the Congressional Accountability Act and made these rights available to employees. The OCWR Board already promulgated regulations that have been in effect for many, but not all, Legislative branch staff for the last quarter-century — a decision unanimously reaffirmed by the Board. In the words of OCWR General Counsel Uelman, “It’s just a technicality that they haven’t been implemented for congressional staff.”

Who can unionize? 
Approximately 10,000 House staff, both political and non-political. It would apply to personal, committee, and leadership staff, but also support staff like the parliamentarian, the offices of legislative operations, legislative counsel, the general counsel, and so on. There’s a lengthy list in the written testimony. (In addition, a concurrent resolution would cover joint employees (like CBO), and the Senate would have to pass its own resolution for its staff.) The CAA has already provided union rights to employees of the Capitol Police, the Architect of the Capitol, the Office of Congressional Accessibility Services, and a number of non-political offices in the House and Senate. (It does not apply to unpaid interns.)

What’s a bargaining unit?
Bargaining units, which are the entities that form unions, will likely consist of individual Member offices or committee staff who belong to one of the parties. For example, Democratic staff on a particular committee may form a bargaining unit. Note that while organizing a bargaining unit may be at this granular level, it is possible for multiple bargaining units to create a “master agreement” or a “lead agreement” that applies to all those offices at once. So you could imagine a dozen or more offices subject to the same agreement. It is not possible, however, for the entire House to consist of a bargaining unit because it is not an employing authority.

How do you form a bargaining unit?
An established labor union would make a determination as to who constitutes a bargaining unit and then 30% of its members would provide written consent for an election. The union then files a petition with the OCWR. The petition is served on the employing office. OCWR conducts a vote, and if a majority of bargaining unit members vote to be represented by a union, the OCWR certifies the union as the exclusive rep for the unit. (No one can be compelled to join the union.) Next management and the bargaining unit negotiate over a bargaining agreement.

Who cannot join a union (i.e., who is management?) 
Employees cannot join the union if they are a management official or a confidential employee. Management officials are “those employees whose duties and responsibilities require or authorize the individual to formulate, determine, or influence the policies of the employing office.” Giving direction for the work to be done — serving as a lead employee — would not make an employee management unless they have the power to make determinations around the “conditions of employment.” This is, for example, the power to appoint, hire, discharge, and so forth. Confidential employees are those who work in a confidential capacity for the management officials. Per Uelmen, most issues around who constitutes management is resolved by the parties themselves.

What’s subject to negotiation? 
Many things are subject to negotiation, but only a small subset are subject to mandatory bargaining. In other words, employees and management can negotiate over a wide range of issues, but management is only required to negotiate over conditions of employment, which include personnel practices, policies, and matters affecting working conditions. Management largely cannot be compelled to negotiate on proposals that determine its mission, budget, organization, number of employees, internal security, hiring and firing, discipline, and making job assignments. (A longer list is here.) However, the union under certain circumstances can bargain over procedures used by management when exercising one of its rights. In addition, Uelmen notes that there may be more opportunities to negotiate for congressional employees than for other federal employees because there are fewer laws that regulate some of these areas.

What’s off the table?
Congressional staff cannot strike, conduct a slowdown, or picket. (Uelmen notes this has never been an issue with federal employees.) Congressional staff are at-will employees.

Are unions continuing entities?
Even when the people who started a union leave, that union will persist for those positions. It is unclear, but a union agreement may continue so long as a member is re-elected. It’s unclear what happens if a member dies in office, but possibly the agreement may continue while the Clerk runs the office.

What about emergencies?
In emergencies, such as dealing with Covid or the Trump insurrection, employers have broad discretion and can act very quickly.

The big picture is that passage of a resolution provides legal protection for unionization and provides for mandatory bargaining over an array of issues. Other issues may not be subject to mandatory bargaining but can still be addressed. The OCWR is working on putting together briefing materials and will have more to say. Some issues will remain unclear until it becomes the subject of a dispute that is petitioned to the OCWR Board. For example, at this time, it is unclear to what extent wages are negotiable. We at the First Branch Forecast are working on a list of items that we believe are subject to negotiation.

Finally, one of the most important aspects of unionization is that the unions themselves can advocate on behalf of staff before relevant policymaking committees, such as Legislative branch appropriations, Administration, and Rules. (In fact, we have seen the Capitol Police and CRS unions do so effectively before House Admin and Appropriations in recent years.) This would give staff writ large a seat at the table.

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