By William Wiley, August 16, 2017
OK, kiddos. Everybody and their mother are re-considering the legal underpinnings of our civil service, and what can be done to make them better. Here at FELTG, we never shy away from giving out opinions, so here’s another one.
First, I need to premise the following by saying emphatically that I have no problems with unions in a government workplace. I believe that unions provide an important service for employees and overall make for a stronger government. I may have a bone to pick about certain union tactics or specific union cases, but as representatives of the interests of civil servants, I got no problem.
With that disclaimer, consider the following hypothetical. Let’s say that you’re the mayor of a small town. You have one stop sign. So you send your only law enforcement officer out to determine whether your citizens are obeying the law by coming to a complete stop at the stop sign, because you’re concerned about citizen adherence to the law.
After a couple of weeks, the cop reports good news to you. Apparently, all the citizens are law abiding. They all stop at the stop sign, and he hasn’t had to issue a single ticket to anybody. You are very pleased, you’re proud of your citizens, you tell the cop he has done a good job, and tell him to move on to other matters where he might not find as much law abidance. You need income for your town, but you clearly aren’t going to get it by issuing tickets for not coming to a full stop at a stop sign.
Now, let’s tweak things a bit. Let’s say that the only source of income for the town, and payment of the cop’s salary, is based on the income from tickets issued to people who disobey that stop sign. If you tell the cop this sad fact, that if he doesn’t issue any more tickets, he won’t get paid, what do you think the cop will do?
- Continue not to issue any more tickets. Or,
- Find some reason to issue tickets because his children are hungry and baby needs a new pair of shoes.
Well, if you picked 1, you are an idiot. Life doesn’t work like this. Humans act to preserve themselves. Survival of the fittest. Read Darwin if you didn’t pay attention in college. Or, Maslow if you skipped psychology class. We have no sympathy for you and wish you a speedy and painless exit from this world of federal employment law. Sad.
Now, take the correct answer of this hypothetical to the federal workplace in a unionized setting: 2. Management should never take a disciplinary action that is not warranted. That’s the law, just like stopping at the stop sign is the law. If management takes a disciplinary action and the reviewer of that action (the cop) has no incentive to find fault, then the action will be affirmed. However, if the cop knows that his salary depends on sometimes finding that management screwed up, the action on occasion is going to be reversed. No matter what, sometimes management is going to lose.
Take this hypothetical situation into a real federal workplace, where the employees are unionized, and in 1978, Congress said that they have the right to challenge serious discipline to either an MSPB judge or to an arbitrator. An MSPB judge gets paid no matter what she decides. There’s no quota of affirmance and reversal. When I was chief counsel to the Board chairman in the ’90s, we had a judge who affirmed agency removals 100% of the time, for at least 18 years of her career. She was seen as a good judge who got paid every two weeks, just like every other federal employee.
But what if the employee chooses an arbitrator? When an employee selects arbitration instead of an MSPB appeal, the union has an equal say in who the arbitrator will be.
Pop Quiz: Do you think that the union will agree to an arbitrator who always affirms management’s removal actions, or do you think that the union will only agree to an arbitrator who sometimes holds for the employee?
Again, if you believe that the union will agree to a cop who never issues tickets, you are an idiot. OF COURSE, when given a choice, as unions always are, the union will look to select an arbitrator who sometimes finds fault with an agency’s removal, even though agencies by law are required to always remove employees only for just cause.
Here’s our FELTG opinion, for what it’s worth, and remember you are paying nothing. Unions of government employees serve an important purpose in our society. However, the removal of federal civil servants for misconduct or performance should not be subjected to the oversight of individuals who are motivated to set aside removals. They should be reviewed only by individuals who have no vested interest in the result, such as MSPB judges. Any system otherwise, as is the current civil service labor law, should be modified to recognize this reality.
Until then, get used to it. Wiley@FELTG.com