Two very encouraging decisions were issued in August setting back the administration’s efforts to eliminate federal employee jobs. The Department of Energy on August 2, 2005 sustained a protest filed by NTEU against an A-76 contracting out award which would have eliminated the jobs of about 70 maintenance employees. 43 GERR 770 - 771 (August 9, 2005). This is one of the first tests of OMB’s 2003 amendment to Circular A-76, which allows federal employee union representatives to challenge contracting out decisions. The Department of Energy agreed with NTEU that the process for cost comparison was flawed.

Another ruling issued by a federal judge in Pennsylvania plows new ground. In a decision reported by the Associated Press on August 26, 2005, U.S. District Judge John R. Padova enjoined Secretary of Defense Rumsfeld from deactivating a Pennsylvania Air National Guard Unit without the consent of the Governor of Pennsylvania. Judge Padova ruled that the National Guard is normally under the command of the Governor of each state and that the Base Realignment and Closure Act (BRAC) does not supersede the federal statute that requires the consent of a state governor to deactivate a guard unit.

A recent ruling from the private sector may come in handy in federal sector employment cases. The U.S. Court of Appeals for the Tenth Circuit ruled in Mowry v. United Parcel Service 177 LRRM 2897 (10^th Cir. 2005) that a driver who was fired for claiming compensation for a three hour break he took because of hazardous driving conditions is entitled to sue the employer on the basis that his termination is in violation of public policy.

Anyone who has represented employees in administrative proceedings knows how casual arbitrators and other hearing officers are about allowing the submission of almost any evidence. However, in Bartow Center 121 LA 249 (Kravit, 2005), the arbitrator ordered the reinstatement of a nursing home employee who had been fired for patient abuse, where the evidence against him consisted solely of hearsay. Although the patient was mentally competent, he had severe cerebral palsy and the employer said he was unable to testify because of his medical restrictions. A management official testified instead that the patient accused the employee of mistreating him. The arbitrator found this evidence insufficient to justify the employee’s termination, particularly since such a severe penalty was involved and since the charge of patient abuse "would be devastating to the grievant’s prospects for future employment."

In a much less encouraging development, the FLRA overturned an arbitrator’s decision to reduce a two-day suspension to a written reprimand in Social Security Administration 61 FLRA 92 (2005). The arbitrator upheld a charge against the employee of accessing the records of a relative, in violation of agency regulations, but determined that management failed to give sufficient weight to a number of mitigating factors and so reduced the suspension to a reprimand. The Authority, in a decision that contradicts 45 years of precedent dating back to the Supreme Court’s "Steel Workers Trilogy" overturned the arbitrator’s decision on the basis that the employee’s offense was serious and a two-day suspension was a proper penalty. The lone Democrat, Member Pope, wrote a blistering dissent criticizing the majority for usurping the arbitrator’s power to interpret the labor contract.

In El – Hakem v. B J Y Inc. 96 FEP Cases 84 (9^th Cir. 2005) the Court upheld an employee’s claim for racial harassment based on a supervisor’s insistence on "Westernizing" the employee’s Arabic name –"Mamdouh" to "Manny." The Court found that the supervisor’s refusal to call the employee by his given name in the face of the employee’s repeated objections amounted to racial harassment.

The National Park Service recently created a new Associate Director position for "Human Capital." According to Interior Deputy Secretary Lynn Scarlett, the reason for this slot is that it "affirms our commitment to raising the importance of our human capital to equal that of our financial capital."

Things are pretty bad when the Bush administration feels compelled to announce that it aspires to start valuing federal employees just as much as it now values agency reserve funds, accounts receivable and other financial capital. At least it is Human Capital and not Human Cattle, though it might as well be.

As the seemingly interminable Bush years drag on, public servants (AKA human capital) are beginning to get desperate because it is getting harder and harder to make genuine progress in federal service. Increasingly, the only remaining measure of pride is helping their agency avoid doing bad things, rather than affirmatively accomplishing anything good. This makes for a thin gruel, indeed.

Consequently, our intake load is growing, as scientists, cops and attorneys find themselves serving political appointees dedicated to undermining the very mission of the agencies they occupy. These professionals are seeing the reason that they entered public service evaporate. Some react with anger or sadness. For a few, it is utter despair.

Thus, PEER acts as a giant battered staff shelter for federal workers. We try to provide aid, comfort and advice. In some cases, we are called to fight on their behalf. In many cases we identify constructive outlets so that public servants can unofficially channel their frustrations into activism.

There are approximately a quarter million environmental professionals working at all levels of government. If all of these specialists were simply allowed to do their jobs, the world would truly be a better place. PEER’s role is to help these legions of highly trained workers directly participate in the environmental movement when their jobs have been stripped of benefit to the public interest.

The federal hallways are full of wise heads who know how our government could do better. When one or two well-informed, strongly motivated insiders decide to move beyond the water cooler and into action, it can produce very impressive results, as this newsletter summarizes each quarter. This is the force of human capital that the Bush administration would like to keep bottled in a reserve account.