A Blueprint for Civil Service Revival

It should be obvious to any reader that the American Federal civil service is poorly considered by the public as a whole. Given the overall decline in private sector unionism http://www.bls.gov/news.release/union2.nr0.htm

And poor poll results http://www.gallup.com/poll/142007/Americans-Approval-Labor-Unions-Remains-Near-Record-Low.aspx, government unions are appearing entrenched and intractable to the public as a whole.

In 2002, Paul C. Light, Director, Center for Public Service, The Brookings Institution, issued a report stating ”The federal workforce does not have the confidence and respect of the people it serves.”

Americans continue to have doubts about the motivation and performance of federal employees.  Americans remained convinced that most federal employees are motivated primarily by the job security (70 percent pre-September 11 versus 71 percent in May, 2002), salary and benefits (68 percent pre-September 11 versus 71 percent today), and having a secure paycheck (68 percent pre-September 11 versus 69 percent today). According to a May, 2002, Princeton Survey Research Associates survey conducted on behalf of the Center for Public Service, Americans estimated that 42 percent of federal employees do not do their jobs well; a month later, the number had increased to 48 percent” 

The Role of Unions in Civil Service Decline

Almost everyone outside Federal service with whom I discuss government is both surprised and shocked by the fact that virtually every Federal employee eligible to be represented by a union is. The TSA election has been interesting for a number of reasons but mostly by the reaction of the mainstream media to Federal employee bargaining. They appear surprised that the TSA employees could organize at all and if informed of the overall unionization of government are often skeptical as if to say “no way that could be true”.

People are so ignorant that the current Ohio governor, a former Congressman, has no clue what unions in the Federal service bargain about. 

While states are wrestling with the difficult task of improving government performance and responsiveness facing strong resistance from entrenched unions, the Federal government has handed its day to day management to political appointees and union leaders under the guise of collaboration. The president has directed Agencies to involve unions on a pre-decisional basis in all workplace matters regardless of whether these matters otherwise violate the law if negotiated.

As you can tell, I believe that the record shows a parallel between the degree of Federal unionization and union political power and the decline of public confidence in the civil service. In the Federal sector, there is one indisputable fact. Most unions have a small percentage (frequently less than 20%) of members as opposed to represented employees. Because of union shop provisions in the private sector, many people equate unionization with high membership. This is not the case with Uncle Sam.

It is critical to understand that President Obama’s Executive Order creating Labor Relations Forums DOES NOT INCLUDE as participants employees who are not union officials. The Order, when read, appears altruistic and concerned about good government. The truth is that its goals are good government according to union leadership as opposed to Federal workers. That is an entirely different thing.

The Failure of the FLRA

I think it is fair to say that principal union goals are continued institutional survival and increased political power. I used to believe that increasing membership was a union goal but have found in situation after situation that local leadership actually kept membership low to retain their majority status among existing members.

Major union contract proposals put the lie to any claim that Federal unions are interested in good government, merit systems or positive change. I defy anyone in a Federal labor union to show me a contract that puts better government before maintenance of the status quo or, in the most cases,  bureaucratic provisions that would put an apparatchik to shame (look it up). The idea that an employee covered by the contract would be accountable for anything is anathema to union negotiators. I know. I’ve sat across a table from a great many.

The Federal Labor Relations Authority and Impasses Panel are generally of the view that unions must get more every contract usually at the expense of Agency flexibility and the provision of quality service. Part of the FLRA, the General Counsel, exists for the sole purpose of prosecuting union-filed unfair practice claims (in excess of 95% of claims filed) or individually filed (the rest) against Federal Agencies based on an increasingly favorable (to unions) body of case law. The system created to deal with federal labor relations as well as its enabling legislation is one of the great failures of our government.   Neither the FLRA nor the Impasses Panel is accountable to anyone except perhaps the courts if a case makes it there. Interestingly enough, the FLRA has such an incredibly dismal record before the Supreme Court that it removed mention of the cases it lost there from its website at the beginning of the Obama administration.

OPM and MSPB need Fixing as Well

Similarly, the creation of the Office of Personnel Management and the Merit Systems Protection Board actually undermined the idea of merit in government employment. Neither is responsible for overall civil service integrity. OPM styles itself as a management advisor while MSPB considers itself a court. To prove that point, very early in its existence, MSPB went to great lengths to rename its hearing officials as administrative judges. Administrative Law Judges, who go through a rigorous selection process, were not amused and continue to be outraged when compared to hearing officers from MSPB with highfalutin’ but not so hard to come by titles.

OPM, the successor to the Civil Service Commission, delegated almost all of the formerly rigorous selection systems to Agencies. OPM also curtailed its review of various Agency personnel programs, particularly hiring practices, “merit” promotion and employee suitability. I worked in Agency
Human Resource offices and saw the sad results of OPM’s abrogation of the Commission’s strict application of merit. Added to the failure of the labor relations statute is the failure of merit systems and their maintenance by that same law. In a recent Fedsmith article, the Department of agriculture was touting its reorganization of personnel staff moving all into new jobs. The new Secretary is quoted as saying:

“One of the first things we said [after taking over] was, what was the problem we had? And that was, we didn’t have at the department level the right mix, the right talent of individuals who could provide the best advice, knowing their customers, being strategic.”

So now the HR advisors at Agriculture don’t know anything about the subject matter of their jobs such as classification, staffing, labor relations or employee relations but they give the political management what it wants. An amazing state of affairs isn’t it? And where is OPM while this is going on? OPM’s job appears to center around defining “modern merit” and policing Agency union-management forums.

So What’s To be Done?

There is no way, politically, that even a Republican President and Congress could repeal the Civil Service Reform Act of 1978 and return to the pre-existing system. The previous administration tried to reorganize the system by addressing new processes for the Departments of Defense and Homeland Security and met with judicial resistance. The system they proposed would have duplicated the FLRA in those Agencies creating alternates rather than fixing the entire process. These problems did not arise in a day and won’t be solved in one either. If a climate favorable to change comes about in 2012, there are some things to be done that may provide the basis for a better Federal government and confidence of both the public and federal employees. They include:

1. Consolidate the Agencies that Address Civil Service Issues

Between OPM, FLRA, MSPB and the Office of Special Counsel, there are 46 political appointees of one stripe or another (according to the 2008 Plum Book). Before 1978, there was one Agency, the Civil service Commission and it had three political appointees serving terms and each of these had one Schedule C assistant for a total of 6. That’s an almost 800% increase in non-career jobs from then to now as a result of this law. The Commission was responsible for federal EEO at that time as well. The Commission conducted employment screening, management and specialist training and background investigations at that time. All of these have been either delegated or otherwise off loaded with predictably negative results. While this will reduce political patronage jobs, it will strengthen confidence in the sincere resolve of the government to revitalize employment based on merit.

2. Pass Legislation Strengthening the Merit System

This legislation should address seven main points:

1. Return to the use of valid testing as the primary means of employment intake for entry level positions.
2. Require selection based on job related merit factors.
3. Reduce the number of non-career positions to a fixed number and limit to a fixed grade and term.
4. Empower the central personnel Agency to develop and implement government-wide merit systems policies and procedures.
5. Make clearer and easier to enforce prohibitions on non-merit staffing.
6. Authorize the central Agency to evaluate Agency programs and require compliance with merit standards.
7. Revisit the Hatch Act and limit Federal employee political activity.

3. Reform Federal Labor Relations

Pass a new labor relations law with the following changes:

1. Bargainable working conditions may not address the methods means or technology of Agency work nor procedures for the exercise of management rights.
2. The current management rights provision must be clarified to include the same criteria for interpretation as currently applied to “zipper” clauses.
3.  Limit the scope and frequency of negotiations.
4. Limit official time to representation to dispute resolution.
5. Specify the scope of information that may be requested by a labor organization.
6. Subject unfair labor practice allegations to the grievance procedure and provide a similar system to address individual employee claims.
7.  Limit the institutional union use of government property.
8. Limit the individual use of official time to no more than 25% for any employee.

4. Abolish the Current FLRA, FLRA General Counsel, MSPB and OSC

If this sounds draconian, see below:

1. Replace the OSC with a government-wide merit systems inspector general whose job also includes whistleblower protection.
2. Replace the FLRA General Counsel with the negotiated grievance procedure.
3. Create a single integrated appeals system within the consolidated Agency and make its decisions appealable only to the Federal Circuit with limited grounds such as the existence of new and material evidence not available earlier or use the basis for arbitration review now used by the courts.
4. The idea that taxpayers pay punitive damages in complaints or appeals is crazy. End that practice and require specific Agency action if a manager acted willfully in violation of an employee’s rights.
5. Create a government-wide office within the consolidated Agency to provide advice and assistance on labor management relations and related programs. Currently, there is absolutely no coordination of cases going to FLRA, MSPB, EEOC or FSIP. That’s also crazy, folks. If someone in one Agency makes a poor or ill-considered decision, its effects in resulting case law can be enormous.

There are many more things needing doing but one thing is certain. Aristotle, who lived almost 2500 years ago said: “Criticism is something we can avoid easily by
saying nothing, doing nothing, and being nothing. ” Similarly, Ben Franklin said: “The man who achieves makes many mistakes, but he never makes the biggest mistake of all – doing nothing.”

As always, any opinion cited above is mine alone.