In a recent article, we took a look at two cases in which the Federal Labor Relations Authority appeared to find, simply, that Agency Inspectors General were obliged to observe collective bargaining agreement language in the conduct of investigations. Actually, these decisions may be intended to go much further. More on this in a minute.
Cases Are Likely to Be Appealed
We reported that it was unknown whether the Agency involved would go to the Justice Department to seek to appeal the decisions to the D.C. Circuit Court of Appeals. I have it on good information that the matter will go forward at least to Justice apparently after some encouragement from other Agency IGs. I don’t know (Maybe someone can fill us in) whether this came as an organized effort from the Council of Inspectors General on Integrity and Efficiency or individual IGs concerned about the matter.
Broad Effects If Not Reversed
What are some major concerns in these cases?
- Apparently an arbitrator can reverse an Agency discipline decision based on the failure of the IG to follow contract provisions despite the fact that the Agency has no control over the actions of the IG’s agents. The Agency gets back a miscreant despite having had nothing to do with the claimed error.
- Do the decisions mean that any interaction between an IG employee and an Agency employee is subject to arbitral review? For example, an IG agent meets with a witness who has no reasonable fear of discipline, is this a formal discussion and ergo, does the union have a right to be notified and by who? The Agency may not even know such a meeting is taking place. Would an arbitrator, under FLRA’s theory, be able to direct the IG to act in some manner in the future?
- Some contracts give an arbitrator the authority to subpoena a witness. Are IG staff subject to such and if so, what is the remedy if they don’t appear?
- If the contract has provisions related to searches, surveillance and the like, do they apply to the IG when not done in concert with non IG folks.
What other provisions of a contract might apply to the IG? I think this is but the tip of an iceberg of future litigation risk created by the FLRA. Is FLRA worried that it may run out of work and so is creating a potential docket? Well Agency labor lawyers, on the bright side, it appears there are future employment opportunities coming in IG offices as we couldn’t have non-IG lawyers representing the IG.
Where Is FLRA’s IG in All This?
Another interesting thing to know would be the FLRA Inspector General’s take on all this. Since the FLRA has never won a case where it interpreted a law other than its own and the offended party objected, one might argue that the FLRA decisions forcing court review on such matters are a waste of taxpayers’ hard earned funds. Waste of funds at FLRA, I smell a scandal brewing. Sounds like a job for the IG, huh?
According to the FLRA website it’s the IG’s mission (note highlighted areas):
- to evaluate the efficiency and effectiveness of FLRA program and resource management and identify best practices as well as factors impeding the accomplishment of the FLRA’s mission;
- to assist the Chairman and FLRA management in carrying out their responsibilities by providing them with objective and timely information on the conduct of FLRA operations, together with the Inspector General’s independent analysis, conclusions, and recommendations; and
- to use evaluations, internal reviews and the more traditional assessment tools of audits, inspections and investigations, when necessary, to maximize oversight and strengthen system and process controls to maximize government integrity and minimize occurrences of fraud, waste, abuse and mismanagement.
If you go on FLRA’s website, you’ll also find that its IG writes reports and conducts audits. All of these deal with internal housekeeping and administration, in other words, whether FLRA is compliant with the myriad of laws that govern governments’ handling of money and such. Based on a reading of FLRA’s IG reports, its IG must not meet with other IGs or go to their websites. Other IGs delve into the business of an Agency. Perhaps the FLRA IG and you should take a look at the DHS’IG’s website for just Customs and Border Protection.
for some ideas and maybe some intestinal fortitude. CBP’s IG looks at the effects of Agency policy on mission goals and objectives. FLRA decisions can set precedents, some unappealable, that have a broad variety of potential impacts on Agencies, government-wide. FLRA IG, have you even considered this or are there rocks to live under on K Street?
Not a single FLRA IG report addresses anything the FLRA’s decisions actually affect. Things such as:
- What have FLRA decisions cost Agencies versus benefits?
- What effect have FLRA decisions had on government efficiency and effectiveness?
- Is FLRA perceived to be fair and impartial by the parties affected by its decisions?
- Is the highlighted requirement of 5 USC § 7101(b) (below) being evaluated?
“(b) It is the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government. The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government.”
Knock, Knock FLRA IG, anybody home? The economy is in the toilet, Agencies are in financial turmoil due to legislative and other difficulties. Uncle Sam doesn’t have the money to darn his socks and the FLRA has never been looked at to determine whether it’s helping or hurting.
As always, the above is my sole responsibility although I admit to being influenced by perceptions of practitioners in Agency HR and GC offices.
Don’t forget, give Dennis Hermann a call if you’re interested in Advanced Labor Relations Workshop in Dallas in May. He can be reached at (757) 723-1051 or, [email protected]. The class in Arlington VA last week was very well received. I met some very bright folks who are deeply engaged in the nation’s business.