On June 9, 2015, the Wall Street Journal published an opinion piece linking a Federal Labor Relations Authority (FLRA) decision to the Great Chinese Hack of 2015 at OPM in which a ton of electrons were stolen that compromised many Federal employees’ and retirees’ privacy and made them vulnerable to a bunch of nefarious activities. The article lauds the dissent of minority Member Patrick Pizzella who was critical of the majority members’ decision.
While I cannot agree more that the potential outcome of this case is appalling, I believe the majority opinion was both consistent with current FLRA policy and an inevitable outcome of that policy.
What Happened?
The case involved was 67 FLRA No. 126. The parties were Immigration and Customs Enforcement (ICE) and American Federation of Government Employees (AFGE) Immigration National And Customs Enforcement Council 118. It resulted from a grievance filed by AFGE and pursued to arbitration. The issue (mostly) was whether ICE had to bargain over ordering employees to stop accessing their personal webmail accounts through their government issued computers over ICE’s network based on its assessment that such use increased the chance of compromising ICE’s IT System(s) integrity and make it more vulnerable to a hack attack. The arbitrator found that ICE did not bargain as it should and ordered the Agency to engage in post implementation negotiations.
To be fair, both parties in the dispute behaved badly. According to the arbitrator’s decision, evidence indicated that ICE’s computer weenies, despite an awareness that employees were accessing their webmail, didn’t do anything for 3 years to enforce a Homeland Security policy that had been on the books for some time that addressed such things. When they woke up to the concept there might be a problem, they waffled for quite a while before somebody finally made a decision to cut off the access. Their saving grace was that they finally did wake up and do something about it. As you’ll see, that cannot be said of other players.
AFGE, ostensibly ICE’s partner and co-contributor to goodwill and harmony on the Agency’s Labor Management Forum, and dedicated to the success of ICE’s mission, didn’t say “Hey we understand your concerns and we support your response to a mission threat”. What AFGE did, if you read the arbitrator’s decision, was to get all het up about employees having to use their own smart phones or home computers to communicate with the union. In other words, the mission can go south, but the first priority is continued union access to free government services. I hope all are aware that every penny spent on this case by everyone involved except maybe the arbitrator who likely got half his fee paid by the union, was spending taxpayer dollars to deal with it.
So what does the FLRA do?
So now we come down to an appeal of the decision to FLRA. This is the same FLRA who issued new regulations a couple of years ago ruling that unless you make an argument to an arbitrator, you can’t make it to them. That’s right, no matter how badly a decision violates a law or how obviously, FLRA’s regulations say that they won’t consider that information. The Federal labor statute states at its beginning, “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.” I think this decision, on its face, violates the law.
Ralph Waldo Emerson said, “a foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” In the world this FLRA has created for itself since 2009, it has consistently determined, despite Circuit Court reversals, that, as in this case, it may interpret laws other than its own with impunity; that, as in this case, nothing, not even a threat to an Agency mission, trumps its view of an Agency’s duty to negotiate endlessly before addressing the threat; and that, as in this case, it may ignore on its authority alone and without any consideration at all, the articulation by an Agency that an arbitrator’s decision is illegal.
It’s axiomatic among practitioners that bad cases make bad case law. This FLRA certainly helps that idea along in this matter. This case is important not just because it places an Agency’s ability to respond to issues at some risk or because the Great Hack of 2015 came after it was decided, but because it points out inherent problems in the current statute that allows what one U.S. Circuit Court of Appeals judge termed a “minor administrative body” to meddle in matters of which it lacks knowledge, responsibility or, at the end, good judgment. It is time to rethink both the FLRA and the labor law itself as this case decision reflects the wacky world the law created.
I take responsibility for any opinion you conjure from the above. Last week I took a bunch of heat for reporting union criminal activity and bad internal election processes by Federal unions. I was accused of being a hater among other things. I happened to see LeBron James in a playoff game at the same time and found out he once said, “I like criticism. It makes you strong.” Thanks LeBron.
