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NTEU supports the concept of increasing flexibility by establishing the U. S. Patent and Trademark Office (PTO) as a wholly owned government corporation. However, we remain concerned about a number of the legislative proposals currently before this Congress (including H.R. 1659 & H.R. 2533) which reflect drastic reductions in employee rights and protections as a precondition to achieving this goal. NTEU believes that it is indeed possible to create a more efficient and cost effective patent and trademark operation without compromising critical employee protections that help ensure a fair work environment. This can be accomplished without compromising the flexibility management needs to better serve its customers and the American public.
The elimination of title 5 requirements over pay, classification, performance appraisals, and other key issues in both H.R. 1659 and H.R. 2533 leave employees very vulnerable. The bills give sole discretion to the head of the agency without any check on arbitrary or unfair action. This is not the "status quo" in labor relations, as is often stated by proponents of these bills. Presently, even where employees cannot bargain, they can enforce the rights given by statute through the grievance procedure. Unfettered management discretion over these issues would truly turn the clock back.
NTEU supports the language included in H.R. 2533 to establish a joint committee comprised of both management and labor designees to assist the CEO by making recommendations in certain key areas. I recommend that the Subcommittee improve this language to ensure that employee recommendations are fully considered before any changes in these policy areas are made. Similar language should also be included in H.R. 1659.
NTEU is also concerned about a number of the contracting- out provisions included in sections 102 (b) of both H.R. 1659 and H.R. 2533. For work that is susceptible to privatization, a fair and open process should be created to ensure that Federal employees are replaced only if a substantial saving can be guaranteed.
NTEU cannot support legislation that is more restrictive than the current construct of collective bargaining in the federal system. While we support the Committee's goal of eliminating FTE ceilings and retaining all user fees collected, we do not feel that eliminating basic employee protections is necessary to achieve this goal. If the corporation is to craft an entirely new set of employment rules, collective bargaining is the only viable check and balance, and guaranteed right of participation that has stood the test of time.
If there are no rules, then fairness cannot be ensured. Basic protections must be provided in the statute in order to allow the participants to feel sufficiently secure to focus on the needs of the agency and not solely on their own protection. NTEU remains willing to work closely with both Congress and the Administration to achieve these goals.
Mr. Chairman, Members of the Subcommittee, I am Robert Tobias, National President of the National Treasury Employees Union (NTEU). On behalf of the more than 150,000 Federal workers represented by NTEU, I appreciate your invitation to present testimony today as the Subcommittee continues its examination of H.R. 1659, the "Patent and Trademark Office Corporation Act of 1995", and H.R. 2533, the "United States Intellectual Property Organization Act of 1995".
NTEU supports the concept of increasing flexibility by establishing the U. S. Patent and Trademark Office (PTO) as a wholly owned government corporation. However, we remain concerned about a number of the legislative proposals currently before this Congress (including H.R. 1659 & H.R. 2533) which reflect drastic reductions in employee rights and protections as a precondition to achieving this goal. NTEU strongly believes that it is indeed possible to create a more efficient and cost effective patent and trademark operation without compromising critical employee protections that help ensure a fair work environment. We also believe that this can be accomplished without compromising the flexibility management needs to better serve its customers and the American public. NTEU is committed to working in partnership with the Congress and the Executive Branch to achieve these goals. I thank you for the opportunity to present our views.
NTEU represents a total of approximately 2,500 bargaining unit employees at two local chapters at the U.S. Patent and Trademark Office. The employees of NTEU Chapter 243 are involved in all phases of the patent application process -- from handling mail, to other tasks directly related to the adjudication of patent applications. The Trademark Society, NTEU Chapter 245, whose President, Howard Friedman joins me here today, represents the professionals who process Trademark applications. PTO plays a crucial role in the development of new industries in our economy, and these employees are vital to the successful operation of the Office. Employees of the PTO perform an inherently governmental function that appropriately belongs in the public domain.
Before commenting on the specific PTO corporatization proposals pending before the Subcommittee, I would like to take a moment to say a few words about the federal workplace of the future and the role of the federal employee in responding to increased efficiency demands in an increasingly competitive global marketplace.
No one feels stronger about the meaningful transformation of the Federal workplace than Federal employees. Federal employees and federal employee Unions, particularly NTEU, recognize the world is changing and evolving at an ever faster rate. We are conscious of the budget deficit and its impact on pay, benefits, training, office supplies, and federal employee work life. We see it; we feel it; we know it. Federal employees have arguably given more toward deficit reduction efforts than any other single group over the last decade.
Today's economic and political realities have created a climate ripe for meaningful change in the federal service delivery system. It is critical, however, that current efforts to reinvent government go beyond meeting the political objectives of one party or another. As this Subcommittee and the 104th Congress explore options to reinvent and reorganize the Patent and Trademark Office, it is important to remember that the Federal employees on the front lines of the PTO effort are critical to the successful implementation of any reform initiatives. These employees can offer an informed and valuable perspective on the kinds of changes that are needed - - a perspective that ought to be considered if the Congress is indeed serious about creating a cost efficient and effective reorganization. Mr. Chairman, for these reasons I especially appreciate your inviting Howard Friedman, President of NTEU Chapter 245, to testify here today, along with our other union colleagues. Federal employees, and their elected Union representatives stand solidly with the Executive and Legislative branches of government in the effort to bring change in the way services and benefits are delivered to the American public.
To increase efficiency and productivity in the federal government, particularly with static or decreasing agency budgets, the creation of successful labor-management partnerships is critical. Because union leaders have historically been excluded from operational decisions and policy-setting, the focus has been on getting one's voice heard through the adversarial system of grievances and unfair labor practice charges. This approach emphasizes waiting for a manager to make a mistake, then trying to fix the inappropriate management behavior. Pre-decisional involvement leads to better initial decisions together with faster implementation of needed changes. Formally involving employee representatives in the decision-making process increases the effectiveness and productivity of such operations and policies.
Only by changing the nature of Federal labor-management relations so that managers, employees, and employees' elected Union representatives serve as partners will it be possible to design and implement the comprehensive changes necessary to reform the Federal government. The synergy of overlapping union and management goals provides the potential commitment and energy necessary to overcome the resistance to change and the inertia of the status quo. I wish to stress to the Subcommittee that labor and management can transform the federal workplace into one where employees want to give their discretionary energy because they are excited, challenged and empowered by their work. Such a workplace can be created in the context of a labor-management partnership and it will support a more productive and efficient government. I will discuss this issue in the context of the specific legislation at hand, later in my testimony.
Employee Protections & Labor-Management Relations in H.R. 1659 & H.R. 2533:
NTEU recognizes the potential employee gains that can be realized from transforming the PTO into a government owned corporation, and we support the basic objectives behind the Administration's and the Subcommittee's undertaking of this effort. While we support the basic concept of a PTO Corporation, however, NTEU is extremely concerned about, and opposed to, language in both H.R. 1659 and H.R. 2533, which would give federal employees and their unions fewer rights than they have today under Title V of the United States Code, and very few of the rights in President Clinton's Executive Order 12871 which establishes the new form of labor-management relations envisioned by his Administration.
Both H.R. 1659 and H.R. 2533 remove critical statutorily created rights that currently protect PTO and other federal employees. Section 3(e) of H.R. 1659, and Section 3 (g) of H.R. 2533 exempt the new Corporation from several important chapters of Title 5 of the United States Code, including various aspects of: chapter 31 (authority for employment); chapter 33 (examination, selection and placement); chapter 35(retention preference, restoration, and reemployment); chapter 43 (performance appraisal); chapter 45 (incentive awards); chapter 51 (classification); and subchapter III of chapter 53 (general schedule pay rates).
These provisions eliminate key elements of the civil service statutes and dissolve some of the most basic expectations of employees serving in our Nation's civil service system. NTEU is concerned about the potential impact of this legislation on the PTO's employees, especially with what we perceive as insufficient checks on the power vested in the Chairman of the new Corporation. Not only do both bills exempt the employees from these critical civil service protections, they also fail to incorporate substitute checks or appropriate accountability standards to guard against arbitrary actions by federal managers.
Section 103 (g) on pages 13 and 14 of H.R. 1659 also raises compelling concerns for NTEU, since the language in this section would eliminate all substantive bargaining, including bargaining over several issues permissible under current law. Subsection (1) would prohibit implementation bargaining rights that are currently allowed. The language in subsection (2) is even more problematic. Mr. Chairman, this subsection greatly diminishes existing employee rights since it eliminates a host of additional topics subject to mandatory bargaining since the inception of the labor-management program in 1963. This would leave the corporation's employees without statutorily mandated subjects of bargaining and would limit employee participation to procedures and appropriate arrangements bargaining.
Mr. Chairman, we urge that the language be amended to at minimum contain the mandatory subjects of bargaining contained in section 7106 of title 5, and Executive Order 12871.
The elimination of title 5 requirements over pay, classification, performance appraisals, and other key issues in both H.R. 1659 and H.R. 2533 leave employees very vulnerable. The bills give sole discretion to the head of the agency without any check on arbitrary or unfair action. This is not the "status quo" in labor relations, as is often stated by proponents of these bills. Presently, even where employees cannot bargain, they can enforce the rights given by statute through the grievance procedure. Unfettered management discretion over these issues would truly turn the clock back. If there are no rules, then fairness cannot be ensured.
With regard to H.R. 2533, it too eliminates bargaining on matters historically subject to the bilateral process in favor of þsole and exclusiveþ discretion vested in the Chief Executive Officer.þ The elimination of rights will not create more efficiency of agency operations.
Basic protections must be provided in the statute in order to allow the participants to feel sufficiently secure to focus on the needs of the agency and not solely on their own protection.
I strongly believe that the best solution is to allow bargaining over all of the subjects. This would allow employee input, and would still maintain management flexibility.
Labor-management Partnerships
NTEU supports the language included in H.R. 2533 to establish a joint committee comprised of both management and labor designees to assist the CEO by making recommendations in certain key areas. Section 103, subsection "j" of H.R. 2533 establishes a joint committee comprised of labor and management personnel. While this language only allows for a labor role to þassist the CEO by making recommendationsþ concerning the design and implementation of systems related to position classification, qualifications and procedures for employment, compensation and awards, and contributions of the Organization to retirement and benefits programs; it represents a step in the right direction
NTEU recommends that the Subcommittee improve this language to ensure that employee recommendations are fully considered before any changes in these policy areas are made. We also recommend that similar language be included in H.R. 1659.
The creation of labor-management partnerships in the federal sector is a recognition that the challenges of the future can not be met within the existing framework of centralized personnel management and adversarial labor relations. Employee participation in decision making enhances morale, increases productivity, improves the work environment, and will assist the government in achieving it's goal of creating a more effective and less costly government. It is becoming more and more evident that an employee's productivity is linked to an employee's work processes and work procedures. Involving employees in work process decisions will enhance productivity because they have the knowledge, skills and ability to understand what the work entails and what must be done to improve it.
Contracting out:
NTEU is also concerned about a number of the contracting- out provisions included in sections 102 (b) of both H.R. 1659 and H.R. 2533. Language in this section of both bills would permit the Corporation to "...use, with the consent of the agency, government, or organization concerned, the services, records, facilities, or personnel of any State or local government agency or instrumentality or foreign government or international organization to perform functions on its behalf." The bills even go further to include language that would allow the Corporation to "...enter into and perform such contracts, leases, cooperative agreements, or other transactions with international, foreign and domestic public agencies and private organizations and persons as needed in the conduct of its business and on such terms as it deems appropriate"
Over the last 13 years, many decisions were made to contract out work done by Federal employees merely because it created the impression that government was being reduced, costs were being cut, and that Federal managers were making decisions like private business managers do. Nothing could be further from the truth. Because of this political predisposition to contract out work, there are many cases where it costs more to privatize than had the work been performed by government employees. The true number of employees whose work is funded with tax dollars is hidden from the public, and legitimate accountability continues to be masked behind press releases about process over the bottom line.
Like the Congress, NTEU is also committed to ensuring that all activities of any resulting PTO corporation are executed in the most efficient and cost effective manner. For that work which is susceptible to privatization, a fair and open process should be created to ensure that Federal employees are replaced only if a substantial saving can be guaranteed. With this in mind, I propose that the Committee include language in this section similar to that approved and signed into law as part of the Resolution Trust Corporation Completion Act of 1993 (P.L. 103 - 204). This language states that the use of non-Corporation employees to perform the work of the Corporation should be done only where the use of such services is the most practicable, efficient, and cost effective. Such language would ensure that critical factors such as these are appropriately considered as an important part of the decision to contract out.
Conclusion:
NTEU cannot support legislation that is more restrictive than the current construct of collective bargaining in the federal system. While we support the Committee's goal of eliminating FTE ceilings and retaining all user fees collected, we do not feel that eliminating basic employee protections is necessary to achieve this goal. If the corporation is to craft an entirely new set of employment rules, collective bargaining is the only viable check and balance, and guaranteed right of participation that has stood the test of time.
In today's business environment, employees are often considered a cost on the same basis as capital and raw materials. It is assumed that workers' interests are antithetical to those of management. As a result, workers become alienated from the organization. They are denied the dignity of their work; their participation in decision making is devalued and discouraged, and they and their Union representatives are treated as adversaries who must be kept at arms length from the decision-making process.
Mr. Chairman, this Committee has an opportunity to reverse the philosophy that has shaped the relations and processes of the Federal agencies for most of the last century -- a management method which emphasizes top-down communication, and views workers as an extension of their machines in an integrated system where, at its essence, everything is viewed as a cost that must be minimized. In reinventing this outmoded management theory, the government must do what the most successful American companies have done. So called "scientific management practices" must be discarded in favor of worker-empowering, high quality, high worker-value practices.
This Subcommittee has an opportunity to seize the day and demonstrate the vision and the courage to establish clear organizational goals and objectives for the PTO. As part of this thinking, workers must be viewed as assets to be developed, not solely as costs that must be minimized, and the government's relationships with its employees and unions must be transformed from adversarial to partnership. You have an opportunity to implement the empowerment ideas articulated by both Speaker Gingrich and President Clinton, and give workers the authority and autonomy to do the work; and make the necessary long term investments in employee training, support and technology. In this way, the new PTO Corporation will be able to more effectively satisfy customer requirements, while reducing operating expenses.
Mr. Chairman, this Subcommittee has an excellent opportunity to create an efficient organization that meets the needs of its customers, while at the same time taking us closer to a fiscally responsible government. With the proposed reorganization of the PTO, Congress has an opportunity to go beyond the simple rhetoric of "partnership" and "empowerment", and realize that true partnership and empowerment presents a genuine opportunity for the innovation, transformation and bottom line results necessary to achieve the goal of a more responsive and effective PTO. A good labor-management relationship is imperative to a successful quality improvement effort, and an important part of the overall PTO equation.
NTEU remains willing to work closely with you to try and achieve these goals.
Again, I thank you for the opportunity to testify before the Subcommittee today, and I am happy to answer any questions you may have.