Scuttling The Federal Labor Relations Authority
By Frank Ferris
Sunday, June 8, 2008
For as long as there have been navies, enemy ships have been scuttled. Once in control, all the captor need do is open all the hatches and valves. The in-rushing water will do the rest. If added speed or excitement are needed, blow some holes below its water line. And, to vastly increase the return on the invested effort, scuttle it in the shallows of an enemy's harbor trapping even more prey inside.
But scuttling is also a very effective tactic for dealing with unwanted organizations. They are just as easy to sink after a hostile takeover, especially if there are no allies in the vicinity to rush to the rescue. The current Federal Labor Relations Authority (FLRA) is a classic example.
The Republicans took majority control of the FLRA in mid-2001 putting Dale Cabaniss in the captain's chair. At the time, the Authority was not just afloat, but also racking up impressive productivity victories and helping to reduce the conflict inherent in labor-management relationships.
However, a mere six years later FLRA is low and slow in the water unable to carry out her mission. Moreover, she has suffered numerous defeats. In the year before Cabaniss took charge, the courts upheld the Authority 89% of the time,1 but they rejected 13 out of 25 FLRA decisions between January 2004 and December 2006--and often with harshly worded criticisms, such as the following:
- this analysis fundamentally misapplies the Statute,2
- the Authority's reading of the CBA would lead to bizarre results,3
- an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored,4
- if we were to accept the Authority's interpretation, we would be left with the absurd situation,5
- its short-shrift dismissal of the Union's arguments . . . provides us once again with little basis upon which to uphold the Authority's decision.6
- the cases the FLRA cites, however, lend no credence to [its] revisionist view.7
- It is nonsensical to say that a termination, . . . does not constitute an "appreciable effect upon working conditions." The Authority's error runs deeper, however,8
- The Authority's decision to dismiss the . . . complaint is premised on an entirely untenable interpretation.9
Judge after judge administered a stern dressing down of the Authority's legal leadership. To add insult to that injury, often the courts sided with the lone Democrat, Member Pope, who frequently dissented from majority Republicans' opinions in an attempt to warn them that they were far off course.
But the courts cannot repair the FLRA's truly critical acts of self-destruction. The Authority's on-board strength has been reduced by over 25% during Cabaniss' tenure10 despite overwhelming evidence and admissions that the Authority is not meeting its goals. For example, by her own admission neither the FLRA General Counsel, Office of Administrative Law Judges or the three-member Authority itself met their 2006 performance goals.11 Nor were these near misses. The three-member FLRA failed to meet its own goals in every case it handled in FY 2006.12 In fact, the three-member FLRA failed to issue even one decision on an unfair labor practice allegation in all of FY 07.
In words reminiscent of Captain Queeg, Cabaniss blamed this on Member Pope's decision "not to support the new agency goals."13 She also blames two senior attorneys who retired and for whom she has not found replacements14 --as if she is barred by law or similar hurdle from engaging in succession planning or using agency funds on recruiting and retention bonuses. She regularly has refused to spend approximately 25% of her annual appropriations while all major productivity measures were tanking.15
She also has decommissioned most of the extremely helpful advice and guidance that was on the agency web site when she took charge; she has deleted from the Authority's annual report embarrassing statistics such as the average time it takes to process a case or ADR success; and she even lost the support of the most recent Republican appointee. Member Beyer resigned after finding it necessary to side with the lone Democrat over Cabaniss in eight of his last ten decisions.16
Finally, reminiscent of scuttling a ship in the shallows of enemy's harbor to trap more prey, she reduced the Federal Service Impasses Panel professional career staff by 60%. In their place, she hired a GS-15, Step 6 Schedule C political appointee whose previous 9 years of employment were spent as a sales representative for the fresh fruit and vegetable industry.17 This political appointee has served as Cabaniss' Schedule C forward observer inside FSIP to "reestablish authority" over Panel operations according to papers Cabaniss signed and sent forward for OPM and White House approval.18
Given this, no one should oppose the FLRA moving to the federal agency equivalent of a shipyard for stem-to-stern retrofitting, if not outright decommissioning and replacement. After all, she was constructed using the NLRB's 1930's design plans. A sister agency, MSPB, created at the same time has had far more success in closing similar cases much faster. Numerous states have designed labor-management administrative agencies using alternative approaches that could be instructive. FLRA herself now has 30 years of experience showing what works and does not. Even the concept of organizational conflict has evolved from being considered a bad thing to being considered the lifeblood of organizational futures. Progressive leaders try to harness its power rather than squash, ignore, or senselessly exacerbated it.
It is time to consider the use of private arbitrators rather than administrative law judges;19 to boost the clout of mediators; to allow private parties to move on their own when the General Counsel is missing, too slow, or hostile;20 to better manage the appeals process; to tap the best experiences of the ADR field; and to encourage parties to create their own alternative dispute resolution processes.
With nearly 80% of eligible federal employees unionized, the government and the public, as well as labor and management need a far more effective and modern organization to steer us through the next 30 years. In the tradition of sea captains taking control of enemy ships, Cabaniss has virtually scuttled an entire federal agency she found objectionable to her personal views despite orders (found in the statute, judicial decisions, and years of Congressional appropriations) to do otherwise.
It has cost the government millions to fund her adventures at sea and all she has returned is a dangerously riddled, unseaworthy shell of what she was given. President Bush's 2007 nomination of her to another term must be read as just as strong a signal of his approval of her leadership as his infamous post-Katrina words, "Brownie, you're doing a heck of a job." But, surely P.J. O'Rourke followers are also nodding their heads at one more affirmation of his infamous observation about government leaders who perform poorly.21
Footnotes:
1. 22nd ANNUAL REPORT (FLRA) May 17, 2001.
2. ACT, Wichita v. FLRA, D.C.Cir. No. 03-1083 (2004)
3. NAGE, Local R5-136 v. FLRA, D.C.Cir. No. 03-1127 (2004)
4. NAGE, FD-1, Local 1442 v. FLRA, D.C.Cir. No. 03-1277 (2004)
5. NTEU v. FLRA, D.C. Cir. No. 03-1423 (2004)
6. NTEU v. FLRA, 339 F.3d 334 (2005)
7. NFFE, FD-1, Local 951 v. FLRA, 412 F.3d 119 (2005)
8. AFGE, Border Patrol, v. FLRA, 446 F.3d 162 (2006)
9. AFGE, Local 2942 v. FLRA, D.C.Cir. NO. 05-1241 (2006). See also NAGE, Local R5-136 v. FLRA, D.C.Cir., 03-1127( 2004
10. THE BUDGET FOR 2009, Office of the President, p. 1180 versus THE BUDGET FOR 2001, Office of the President, p. 1158.
11. FLRA Performance and Accountability Report FY 2006, p.10-11.
12. FLRA Performance and Accountability Report FY 2006, p. 20.
13. FLRA Performance and Accountability Report FY 2006, p. 10.
14. FLRA Performance and Accountability Report FY 2006, p. 11.
15. FLRA Performance and Accountability Report FY 2006, p. 30, which shows that FLRA posted as "Unexpended Appropriations" for 2005 of $5,056,973 and for 2006 $7,544,373.16. "Beyer's Resignation Spotlights Uncertainty, Chaos at FLRA," Federal Human Resource Week, January 28, 2008.
17. Taken from the resume of Victoria Dutcher, which was released to the author pursuant to an FOIA request.
18. See "Request for Schedule C Appointment," OPM Form 1019, dated Oct. 9, 2002, signed by Dale Cabaniss and released to the author pursuant to an FOIA request.
19. The statute has provided for nearly 30 years that arbitrators can do the work of Administrative Law Judges. 5 U.S.C. Section 7116(d).
20. FLRA Performance and Accountability Report FY 2006, p. 10.
21. P.J. O'Rourke quotes. "The Republicans are the party that says government doesn't work and then they get elected and prove it."
© 2008 Frank Ferris. All rights reserved. This article may not be reproduced without express written consent from Frank Ferris.
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