I was out of pocket when Dr. Ferris’ article hit the electrons on FedSmith and didn’t get to make a timely comment. I spent some time thinking about what was said and arrived at some different conclusions.
Federal Unions Better Pray for a Democrat in the White House in 2009
Dr. Ferris’ article is an entirely political contrivance. As I’ve written before, the mistakes made in the middle 90s that ended up politicizing Federal labor relations are evident in the article. Dr. Ferris’ union represents Federal employees. While Hatch Act liberalization has provided greater opportunity for his constituents to become more active in that arena, the same changes have made it riskier for Federal employees and particularly those that are union officials. Federal unions seeking official time for lobbying and other political activities are inviting the exact kind of return on investment one might expect when their political opponents get in.
Dr. Ferris is recorded in bargaining notes referring to members of both the Federal Labor Relations Authority (FLRA) and the Federal Service Impasses Panel (FSIP or Panel) as “Bush’s Nazis”. He has, as a non-Federal employee representative of a private sector enterprise, the perfect constitutional right to do so. But why is he apparently then so surprised when the current FLRA seeks to reverse trends set during an era in which the party in power was seeking to cuddle up to Federal unions? The answer is easy. His politicians aren’t in charge. When they were, things were apparently splendid.
Litigation and Friendly Circuits
Dr. Ferris quotes decisions in two circuits that are more often friendly to labor than entirely neutral on the subject. NTEU should know the courts well. The 60s saw Frank Zappa and the Mothers of Invention. The 80s and 90s brought us Frank Ferris and the Masters of Contention. NTEU raised the appeal of FLRA decisions to an art form, pressing the limits of the law and encouraging at least one former FLRA General Counsel to expend heroic efforts to discover the meaning of every “is” in every law, rule or regulation out there. In the perpetual pursuit of parsing every phrase, the drafters hope that “the provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government” (5 USC 7101(b)) got forgotten if not entirely lost.
Dr. Ferris says in his article, “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.” His belief that conflict is inherent is more an argument for a neutral FLRA than one that makes the unions happy some of the time and ticks them off the rest of the time.
About the FLRA and the Use of Private Neutrals
As anyone who reads my scribbling knows, I have been critical of the FLRA more often than not. It is an imperfect construction that can be blown by political winds in strange directions. The Federal Courts are also less than perfect in their understanding of the challenges facing Agencies as our society, legislators, administrators and the world undergo steady and sometimes chaotic change. But the idea that the program be turned over to arbitrators is so ludicrous as to defy imagination. The representative of a non-governmental entity, seeking legitimacy and enhanced political status would certainly think that. We can only hope that cooler heads prevail in reassessing the FLRA and its operation. Dr. Ferris is suggesting turning over to contractors what must continue be an inherently governmental function. What’s ludicrous is that this is the exact opposite of efforts by Federal unions which vehemently fight contracting of government work as their most critical bread and butter issue.
Dr. Ferris and I share the belief that Federal labor relations is broken. It’s the fix that we likely disagree on.
So What’s To Do
In July 1991, the then General Accounting Office, in a report, (during a Republican administration and after only 12 years under the statute) recommended the following:
Because the perceived problems are systemic and widespread, we believe a piecemeal approach of technical revisions to the statute would not be the best means to bring about the necessary changes. A system is needed that all participants can agree with and support. Accordingly, we are not making any specific recommendations for changes to the program: Rather, we recommend that the appropriate committees of Congress hold hearings on the state of the program as a first step toward establishing a panel of nationally recognized experts in labor-management relations matters and participants in the federal program to develop a proposal for comprehensive program reform. Participants on the panel should include representatives of executive branch agencies, including OPM and the Department of Labor; officials of federal employee unions, representatives of the third party agencies that administer the statute (FLRA, FMCS and FSIP), and experts in labor relations and public administration in general.
Maybe it’s time to follow the recommendation.
In particular, the opinions stated herein are mine and mine alone.
