I recently came upon some cases and other documents that tell a story I hadn’t heard about how one agency stood up for its mission and got another to get out of its business. It is an interesting story that perhaps holds some lessons for other Agencies.
On September 30, 1997, the Federal Labor Relations Authority (FLRA) issued 53 FLRA No. 61 involving the Patent Office Professional Association (POPA) and the Patent and Trademark Office (PTO). The case involved the negotiability of a number of union proposals on ethics. The FLRA (Clinton Era), without seeking the advice of the Office of Government Ethics (OGE) ruled on the proposals, finding a number of them negotiable. If you read the case, you understand why Judge Harry Edwards of the D.C. Circuit constantly upbraided the FLRA throughout the 1990’s for its arrogance.
First of a Kind Offer
In the spring of 1999, Stephen Potts, then Director of OGE, issued a memorandum to agencies expressing his concern about “some troubling applications of its regulations” referring to FLRA’s decision. Mr. Potts then called on agencies to avail themselves of the OGE Office of General Counsel’s help whenever union proposals address OGE’s regulations.
That’s a pretty broad offer. It’s also an offer I have never heard made by the proponents of government-wide regulations such as OPM, GSA and Labor to name just a few. In other words, Mr. Potts put his money where his mouth (and mission) was. He could have said, as others have, the regulation is out there and what agencies do with it is their business. But he didn’t. He took on the FLRA and offered to help agencies by providing the expertise of his staff.
The Plot Thickens
In a no surprise move, PTO and the union went to impasse on the issue. On November 14, 2000, the Panel issued Case No. 00 FSIP 55. The decision cites PTO’s continuing effort to make somebody at FLRA, first the members then the Panel, to understand this matter that should not be on the table. The Panel, in what only can be called a gutless move, relied on the FLRA decision and again, nobody at the Panel asked OGE for its view. My bet is that the Panel, at the time, if called on this would have taken the typically “neutral” stance that it was the agency’s, not their responsibility, to get OGE involved despite the outcome.
Stuck with a bad FLRA decision and a bad Panel decision, PTO’s Agency head disapproved the illegal provisions required by the Panel’s order.
A Fresh Look
Out goes the old FLRA and Panel and in comes the new. Regarding the Panel, one can only wonder if this was the decision that prompted the President to dismiss the entire Clinton Panel in one day. Although I believe, looking at decisions they made that showed they never saw a union proposal they didn’t like, it was only one of many proverbial straws. So the case went back to the FLRA, and OGE filed an Amicus brief on the issues involved.
The current FLRA, relying on OGE’s interpretation of its own regulations, both humbly (a real departure from precedent) and appropriately tanked the old decision and found the union proposals nonnegotiable (see 59 FLRA No. 50, September 30, 2003). The idea that the OGE regulations confer “sole and exclusive authority” to agencies when implementing their various requirements was sustained. Of course, the very concept that a Federal agency might have sole and exclusive authority to do anything was anathema to the Clinton FLRA who held that it was the only Agency with such power. Six years to the day after the original decision, and at who knows what cost to Uncle Sam, the legally correct result was handed down.
So What Are the Lessons to Take Away
Of course, some may call me arrogant for lecturing agencies on how to conduct their business. I’ll be glad to take that heat if it gets some of the folks at OPM, GSA, Labor and others off their backsides. Agencies that issue regulations addressing a workforce that is extensively organized, should also issue guidance on their implementation (protected from disclosure under the statute) and make staff available to help the very Agencies that must implement them.
Perhaps the Federal government should finally recognize that collective bargaining is around to stay and begin coordinating, as large corporations do, its efforts.
OGE, a tiny agency, stepped up to the plate and succeeded in defending its policies. OPM, a much larger outfit, should perhaps devote some time or based on history, any time, helping agencies bargain issues surrounding its rules. Issuing a policy and failing to follow up on it is bad government. We all deserve better.
As always, any opinion is exclusively mine.
Bob Gilson conducts negotiation training and provides bargaining assistance for Federal Agencies. You can send him an email through this link.