Chairman Pope’s Dissents: A Crystal Ball for Future Decisions?

Over the course of her term as minority member of the FLRA, now Chairman Pope dissented many times in FLRA decisions. The author identifies those that specifically addressed negotiability issues and asks, can we expect a reversal if the issues come up again?

As a frequent critic of the Federal Labor Relations Authority (FLRA), I read their decisions with an eye to predicting the future course they may take on issues. (See, for example, New FLRA Policy Announced: Everything’s Negotiable!)

Since Federal Agency managers, specifically OPM in its alleged leadership role, are too shortsighted to try and coordinate cases taken to FLRA, I hope my offering here at least serves as a cautionary tale for those who are smart enough not to take risky cases forward. By the way, no surprise about OPM as it apparently still believes Federal unions care about merit. 

Read some union proposals, Mr. Berry. Of course, OPM is itself now talking about a “modern” definition of merit in which the word doesn’t really mean merit after all, so I guess the unions’ definition is as good as anyone’s.

A couple of weeks ago, I conducted a class on negotiability. To get ready, I looked at dissents of current FLRA Chairman Carol Waller Pope on negotiability cases of which there are 12 or so. There are many, many more on arbitrator exceptions. Sadly, I didn’t have time to look at those in detail although I think they would also be very revealing about the FLRA under her leadership. 

During her time as minority member, Ms. Pope frequently decried the Bush Authority’s departure from Clinton Authority decisions claiming these departures were ill advised violations of precedents of established law. 

If you read previous articles, you’ll know I like to ping the Authority for its frequent adventures into interpreting other peoples’ laws and regulations without asking those law enforcers or regulators what interpretation they themselves intended. Ms. Pope is a practitioner of this particular predisposition as you’ll see from her dissents.

The Office of Government Ethics offers the following as a result of FLRA’s foray into interpreting its regs during Ms. Pope’s beloved Clinton Years:

“Agency ethics officials should contact OGE’s Office of General Counsel as soon as possible when any provision in OGE’s executive branchwide ethics regulations in 5 C.F.R. chapter XVI is the subject of a union proposal. In this way, OGE can answer any questions about the provision and thereby assist in assessing any unresolved negotiability issues. In appropriate cases, where the negotiability of a proposal concerning the regulations is before the Federal Labor Relations Authority, OGE may seek to participate as amicus curiae.”

Anybody know when OPM last awoke from its Van Winklian slumber to file an amicus brief or intervene, as is its right? Last I heard, OPM was EMCEEing Federal Iron Chef on C-Span and strolling under the cherry blossoms. (See The Federal Employees’ Cookbook and Time Off to Smell the Flowers)

Attached is a listing of Ms. Pope’s dissents next to the majority stance on the issue. It’s offered for your reading pleasure and to suggest caution in declaring these issues nonnegotiable lightly. This is particularly true for the Office of the Comptroller of the Currency which the FLRA Chairman obviously thinks must bargain all aspects of compensation.

As always, the above reflects my thoughts and analysis. If I got either wrong, blame me alone. 

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.