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Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to provide the views of the Patent Office Professional Association. Our organization is the exclusive bargaining agent for the approximately 2200 patent professionals at the U.S. Patent and Trademark Office. The vast majority of the employees we represent are engineers, scientists, and lawyers who work as patent examiners.
In the proposals to reorganize the PTO, our membership sees both good and bad. There is virtually universal agreement that providing the PTO with the authority to retain its fee income, and to spend it without appropriation, is a benefit. We all recognize that charging someone a fee for a service and then diverting the fee to other purposes undercuts our ability actually to do the work. It also constitutes a tax on innovation which undercuts incentives to invent.
There is also virtually universal agreement that the ever-rising number of applications filed requires a commensurate increase in the staff needed to process those applications. When applicants pay a fee, they are entitled to receive the service they have paid for. The PTO is not taxpayer funded. It is unfair to take the users' money and then to deny service arbitrarily because of an FTE ceiling based upon a general desire to eliminate other government functions. Therefore, freedom from FTE ceilings is the logical solution.
But the reorganization proposed for the PTO goes way beyond providing for these two very beneficial effects. It dramatically changes the way in which personnel policy is generated, implemented and reviewed. In all of the free- standing bills, H.R. 1659, H.R. 2533 and S. 1458, personnel policy will be divorced in its most significant aspects from the current system, and placed entirely in the hands of the corporation's CEO. No significant checks and balances are built into the legislation. If the corporation establishes, for example, a pay system which creates unwarranted benefits for a few, it will take an Act of Congress to change that system.
The proposed legislation dismantles the most basic expectation of our nation's civil service system, namely, the expectation that your employment will continue so long as you perform acceptably and there is enough work to do. It also does away with the salary system as we know it, including the GS scale, within grade increases, objective performance measures coupled with the right, when needed, to a second chance to demonstrate improved performance, and the rules by which placement on the salary scales is determined. Job security, a treasured benefit of public employment, will disappear.
The proposed changes to Title 5 of the United States Code threaten the entire culture of the civil service system. It is that culture that is so critical to my membership. It is a culture that honors and respects fairness and equity. It is a culture that says there will be equal treatment of people in similar situations. It is a culture in which you will have an opportunity to defend yourself if you are accused of poor performance or of wrongdoing. But most important of all, it is a culture of honorable treatment in which you can expect to be free of unreasonable demands and coercion from those in positions of authority.
Maintenance of that culture is especially critical to the job of the patent examiner if we wish to ensure public confidence in the decisions made by those examiners.
Patent examiners have several different constituencies. One such constituency is made up of those who seek patents, and it is they who may be dissatisfied with adverse decisions made in the examination process. Nonetheless, examiners are called upon to make such decisions, and it would be unfair for them to have to fear for their jobs every time an unsuccessful applicant decides to exert pressure by complaining to their supervisors. Those decisions must be made properly in order for patent examiners to serve capably other less visible constituencies. One constituency is the portion of the business community which would wrongly be denied the right to make, use and sell products and processes which, according to law, are not to be protected by patents. Another constituency is the public who would needlessly pay a premium for patented products and processes that should be in the public domain. Yet, these other constituencies are naturally far less visible in the process, and are not considered to be þcustomersþ by PTO management.
In order to ensure the integrity of the patent examiner's decision, it is essential that the examiner feel free of coercion or undue influence. It is because of the tension inherent in the fact that an examiner may have to make a decision adverse to the interest of a particular patent applicant that we say that an examiner operates in a quasi-judicial capacity.
To better understand the role of the examiner, consider what would happen if there were no examination system. We could still encourage science and technology by giving inventors a patent to their inventions. We could rely entirely on the integrity and knowledge of the applicant to determine what is novel and worthy of protection. That, in fact, has been tried and it's called a registration system. It has been tried in this country. In the forty years prior to 1836, there was only a registration system in the United States. Because it resulted in excessive litigation it was considered a failure and replaced with an examination system. Because applicants are not necessarily objective about their own inventions, a self-nomination system tends to lead to a lot of litigation over whether what the inventor believes is his invention actually meets the conditions for patentability. Just as much as a valid patent will encourage science and invention, an invalid patent can be used to stifle competition. An invalid patent can be used as a sword to harass a competitor.
Once one recognizes the quasi-judicial nature of the examination job, it becomes obvious that we are dealing with an inherently governmental function, and not a business service that is provided to the patent applicant. It has been said that corporatizing the PTO is to be the model for the rest of the government. It is no more appropriate to make the PTO into a CEO controlled corporation than it would be to make our judicial system into such a corporation.
Both H.R. 1659 and the administration bill will politicize the Patent and Trademark Office. The Commissioner, or the CEO, will be a political appointee. All other employees will be þat willþ employees whom the Commissioner can fire or replace as he or she chooses. Without the strictures of the civil service system, it will be completely legal to treat all the jobs in the Patent Office as patronage jobs. The existing perceived integrity of our examination process will be undercut. U.S. patents will no longer be seen as valid, since patent validity is inextricably linked to the integrity of the examination process.
When we surveyed our membership, 64% of the respondents said that they believed that their decisions may be compromised if the PTO Corporation eliminates their civil service protections.
Politicization is not the only adverse consequence of eliminating the civil service status of our employees. It is likely to demoralize the employees and not very likely to produce enhanced performance. Our members feel so strongly about this matter, that when they were asked whether they were willing to risk their civil service protections for the possibility of higher pay, 82% of the respondents said no.
Most examiners, when they first come to the PTO with their engineering or science background, are in a position to get jobs in other organizations. As time goes on, those employees' abilities to get jobs in other organizations decrease because, the special skills they acquire in order to be promoted are not transferrable to other organizations. By the time employees are primary examiners, their skill level has become so specialized that they are no longer employable as scientists or engineers at comparable pay. These employees in essence are trapped at the PTO and thus are particularly in need of protection against any arbitrary and capricious removal. It would be an enormous disincentive to employees to persevere and become primary examiners if they could be removed without cause. Who would be willing to take the risk that years of study and toil to become a primary examiner would pay off if you could be removed from your job at the whim of a supervisor?
Right now, patent examiners are a dedicated, hard- working, highly educated group of scientific professionals, many of whom devote their entire lives to the patent system. Disturb their morale and their confidence that they will be treated fairly, and you may not like the results. You will have devalued the worth of some of your best and brightest federal employees.
Consider how this will impact on the hiring and retention of employees. Although the government, for some individuals, is not the employer of first choice, the PTO has benefitted from the layoffs and restructuring of our nation's scientific work force. When this windfall ends, the PTO may not be able to attract the employees needed. The job security and the culture of the civil service system provide the government a competitive advantage, incapable of being matched by private industry. If you eliminate that culture and that job security, how will the PTO compete with private industry? How will the federal government attract competent employees if the size of a paycheck is the only basis for choosing a job?
Yet, the foregoing is not even the most important reason for retaining employee civil service protections. The most important reason is that the public has the right to know that the power and authority conferred by the public to its government will not be hijacked by unaccountable management personnel carrying out their personal prejudices. Due process requirements for employee discipline and removal, in which management must demonstrate that the alleged poor performance or malfeasance of an employee is real, are what protect the public from corruption of legitimate authority. While it is understandable to want to reduce the burden of regulation, we should remember that these regulations came into being because public outrage demanded remedies to widespread historic abuses. There is no reason to believe that absolute power will no longer corrupt absolutely as we enter the twenty-first century.
Amazingly, the legislation before us provides for removal only for cause for the CEO, but for no one else. Even the patent owners' representative in the first day of your hearings testified that employees deserve the protection of removal only for cause.
Our employees want to have permanent jobs, but without the protections of Chapters 31, 33, and 35 they could be left with only a series of temporary appointments. At the FDIC, I am told, it is commonplace to give certain professionals only 2 year terms. Currently, under OPM regulations, an agency is allowed to use temporary employment only in situations in which there is an expectation of a limited workload, in which a documented request has been submitted to OPM, and OPM has approved its use. OPM has continuing oversight jurisdiction and may revoke permission to continue temporary appointments. Under the proposed bill, there is no administrative oversight of the corporation's use of its appointment authority.
Temporary appointments can be used to undercut an employee's entitlement to health and life insurance. Temporary appointments can also be used to avoid the due process procedures required for removals for cause. In the PTO, 10 examiners with computer science degrees were hired in Group 2300 on a temporary basis because, we were told, it was not clear that individuals with such degrees could successfully perform patent examining duties. Presumably, a refusal to renew the appointments is intended to be used as a substitute for substantiation of an allegation of poor work in a removal action.
Another method of avoiding the due process procedures required for removals for cause is to unduly extend probationary periods. Under current law, an employee is subject to summary dismissal during the probationary period. That means a mere general allegation of poor performance, without a specification of charges and without the opportunity for a hearing, is a sufficient basis for removal. Summary dismissals are not grievable. The proposed bill eliminates the current one year limitation on probationary periods and further specifies that the þproceduresþ for employment are not negotiable.
Do we want to go back to the days when patronage, nepotism, and cronyism dominated the federal government? Of course not. But consider the following examples of statutes in Title 5 of the U.S.C. from which the new PTO is to be exempted: Section 3303 which prohibits political recommendations regarding hiring promotions and other personnel actions. This section is a key element in the defense against patronage. Or perhaps, Section 3110 which prohibits the employment of, or favored treatment of relatives. Of the eleven categories of prohibited personnel practices specified in Section 2302, only one, dealing with whistleblower protections, is applicable to the employees of a government corporation. A typical prohibited practice not applied to corporate employees is the prohibition against retaliation for testifying on behalf of a fellow employee in a hearing before a government agency or in a grievance proceeding.
PTO employees have earned and deserve their civil service rights. The PTO has been an example of hard work, productivity and efficiency, in stark contrast to the stereotype of unproductive and inefficient government workers. All examiners are subject to a performance evaluation system in which they are fully responsible for quality, quantity and timeliness. Production quotas are specified in six minute increments and many employees already put in lots of voluntary overtime. Surely, it would be contrary to the family values we all share to allow management the untrammeled power to demand even more output, thereby requiring employees to spend more evenings and weekends to meet ever-increasing goals.
In considering the proposed legislation, it is important to assess the impact it is likely to have on the performance of patent examiners. Especially important is the relationship between quality and quantity. For examiners, quality basically means a complete search of the prior art, a thorough and clear exposition of all the legal issues, and making correct decisions. In the past fifteen years, there has been a relentless drive to increase the productivity of examiners, that is, to decrease the amount of time spent on each case. Each professional puts as much quality into the product as time granted to him by management allows. As the complexity of the technology has expanded, as the size of the search file has expanded, as the complexity of the legal issues has expanded, and as patent procedures have become more complex, there is only one thing that has remained constant - the quota that has been assigned to each examiner.
At this point, the average amount of time spent per application is approximately seventeen hours. How much less time can an examiner spend on a case and still put out a quality decision?
Our customers have been surveyed numerous times, and have been extensively interviewed in focus groups. The number one concern is with the quality of our work product, especially as regards the adequacy of the search of the prior art. Our employees have also been surveyed, most recently by an outside consulting firm that was hired by management as part of the re-engineering efforts at the PTO. The number one problem identified by employees is concern over the quality of our work product. Our examiners are strongly motivated to provide a quality work product by their professionalism and by their pride. Every patent lists the names of the examiners who worked on the case, and no one wants to be embarrassed.
Our customers have spoken. Our employees have spoken. But, nothing has changed. Production and cycle times still take precedence over quality. The prognosis for the future is clear. When we did an additional survey in preparation for todayþs testimony, our employees again expressed their belief that if PTO management were given the flexibility provided in the proposed bills, there would only be a further squeeze on quality.
Particularly pernicious is the performance agreement, set forth in Section 103 (b)(3)(A) of the administration bill, to be established between the Secretary and the CEO of the Corporation. That agreement is to incorporate þmeasurable goals in such specific areas as productivity, cycle times, efficiency, cost reduction, innovative ways of delivering patent and trademark services, and customer satisfactionþ. Conspicuous by its absence is any reference to quality or any measure of the correctness of the patent and trademark decisions that are made.
Our professionals recognize that all of their past hard work will now only serve as the new baseline for a production and performance driven CEO who wants to double his salary so that his income can exceed that of the President and all of Congress.
Employees also recognize that you build quality into a product only with more time and more resources. Currently, the European Patent Office spends about as much time searching a patent application as our examiners spend on the entire prosecution of a case. When inadequate time is available for searching, fewer applicants can be assured that the patents they are granted will stand up in court when assailed by a well-financed opponent who is willing to fund a thorough search.
Employees have seen that management is willing, even after hearing from its customers and its employees, to sacrifice quality in the examination process in favor of increasing production and reducing cycle time. Even in light of this expressed concern for quality, management has stated its intention to gut the independent quality review operation, and has severely cut back our patent classification efforts, that is, efforts which allow patents to be indexed in the proper areas so that they can be found when an examiner goes to search for them. Top management's principal goal in the ongoing re-engineering efforts is still to decrease cycle times, and to increase productivity, rather than to improve quality.
If Congress is concerned about the quality of the work product, we recommend that you consider the professionalism and the pride of the employees as a resource. The most direct way you can utilize that resource is by providing an additional clause in Section 103 that states: þNotwithstanding the provisions of Title 5, USC, Section 7106(a), performance evaluation systems and performance standards shall be proper subjects of negotiationþ.
Working in partnership with management, we will best be able to increase the quality of our examination process. On the other hand, without an explicit statutory concern for the quality of our work product, only the characteristics listed in the administration bill will be heeded.
Unfortunately, the easiest and quickest way to decrease costs and increase cycle times is simply to do less examination. For example, if we don't classify foreign patents into our U.S. classification system, and then donþt put them in our files, we will become more cost effective. Not only will we save the cost of classification, but there will be fewer references to search. Thus, our examiners will be able to save time in the search. Furthermore, if a relevant reference is missed, they will be able to issue the application instead of having to write a rejection with all its attendant effort and time. Of course, this is not the way to increase quality.
During the first day of hearings on the possible transformation of the PTO, the Administration cited to a 40% reduction in costs at the British Patent Office as a result of converting to a þperformance-basedþ organization. Frankly, this sounded too good to be true; and it turned out not to be true. The British Patent Office did not achieve a 40% reduction in overall costs. It achieved a reduction of that size only in the cost of þcommon services,þ which reduction, according to their 1994-95 Annual Report, þderives mostly from accommodation savings following relocation to South Wales.þ The cost of common services in their fiscal year ending in March of 1995 was only about œ12 million in overall expenditures of over œ46 million. The British Patent Office moved from leased space in London to mostly government-owned space in Newport, South Wales, a town of only about 110,000 people on the opposite side of the British Isles. This is roughly the equivalent of moving our PTO to the middle of West Virginia.
Our Current System Works Well
The Commissioner, in his testimony, stated that he needed greater þflexibilityþ in pay matters so that he can pay employees more. In particular, he has said that he doesn't want to have to stick a cracker jack biotech examiner in management to pay him more. His lieutenants must not have given him all of the correct information. Under our current system, the agency has lots of flexibility to pay people more including the opportunity to: 1) establish special higher pay rates if the basis for the payment is the occupational specialty of the employee; 2) provide retention bonuses of up to 25% of yearly salary for employees whose special skills are in particular demand in the private sector; 3) provide recruitment bonuses of up to 25% of yearly salary if the agency would otherwise have trouble finding high quality candidates to fill a position; 4) provide a relocation bonus of up to 25% of basic pay when it is necessary to recruit outside of the commuting area in order to find a high quality candidate; 5) eliminate artificial restrictions on the number of non-managerial GS-15 patent examiner positions; 6) establish a senior level pay scale which provides for pay up to level IV of the Executive Schedule for particularly exceptional employees; 7) grant award amounts higher than currently paid, including up to 10% of salary for fully successful performance and up to 20% of salary for exceptional performance; and 8) provide additional fringe benefits such as transit subsidies.
With all these well-established programs for paying employees more money, we cannot imagine what additional flexibility an agency would need to attract a well qualified workforce. To the extent the Commissioner wants to pay us more, he should do it now using these existing authorities.
Pay affects employees on a daily basis. Nothing affects morale more than the perception of fairness that is associated with the pay system. Right now we have a system that everyone is comfortable with. The patent examiner series, GS-1224, was a custom designed classification system keyed to the special needs of the examining job. It is a rational structure that provides a progression of salaries from a low of GS-5 to a high of GS-15. We know of no specific inadequacies in that structure.
The National Academy of Public Administration (NAPA) Report on þIncorporating the Patent and Trademark Officeþ attempts to create a rationale for exempting the Office from portions of Title 5. Unfortunately, the rationale is flawed in many instances due to an inaccurate understanding of the factual situation at the PTO. For example, the Report alleges that employees in career ladder positions need only demonstrate satisfactory performance in their current grade to be promoted. If this is true it is only because an agency fails to follow the regulation which requires agencies to establish a systematic means for promotion according to merit. The specific provisions of a promotion plan are left to the discretion of the agency. We cannot imagine any grater flexibility than that. The practice in the PTO is such as to require patent examiners to maintain productivity levels half way between their current level and the next highest level for the six months prior to promotion and demonstrate a likelihood of successful performance at the next highest grade.
The NAPA Report also alleges that some employees reach the top of their career ladder without having achieved any additional education or qualifications other than those they possessed when entering their career ladder. This is a dreadful slur. Every primary examiner is required to undergo two rigorous reviews of his work by panels of supervisors to determine full competency. Since most primary examiners end up in dockets they learned only during their careers at the PTO and since most employees entered the PTO without knowledge of patent law and practice, it is obvious that they acquired the knowledge and qualifications in the interim.
The NAPA Report also alleges that one of the defects in the pay system is that supervisors, in many instances, are paid less than the employees that they supervise. This usually occurs when an experienced examiner has a relatively newly appointed supervisor. We believe that is a strength in the system and not a defect because it demonstrates that technical expertise and ability in the actual job of an examiner is worthy of reward.
NAPA alleges there are top performing employees who progressed through their grades a year at a time who have morale problems because they are sitting next to a long time patent examiner who is at the top of the grade but has not kept up with the technology and is a mediocre employee at best. We cannot imagine where this information came from; it appears to be pure fantasy. Examiners are like wine. They tend to get better over time due to increased experience. Although in any group of hundreds there may be a few poor performers, the vast, vast majority of examiners at the top of their grade are well respected and serve as resources for the less experienced examiners. We know of no morale problem of the type identified by NAPA.
Currently, the PTO is an integral part of the government in that it receives oversight from OMB, from OPM, and from the Commerce Department. From an employee perspective, the activities of the oversight agencies is critical. Most of the time, individual employees have neither the resources nor the access to information that make it practical to overturn a prohibited action. Even when employees pool their resources, only a few of the most egregious violations can be remedied. It really takes the power and authority of a government agency to effectively police those who themselves have lots of resources and power. None of the proposals provide that kind of oversight.
Contracting Out Patent Examination to Foreign Governments
In the proposed legislation, at Section 102, in the amendment to 35 U.S.C. 2(b)(10), the new PTO is given the power to contract out the entire operation of the organization, including the searching and examination of patent applications, to foreign governments and international organizations. We believe the critical functions of searching and examination must be retained in this country. We urge the Congress not to give the PTO such unfettered power.
Do not think such an extreme possibility is entirely hypothetical. A recent O.G. notice proposed contracting with the European Patent Office for searches in PCT cases in which the United States was specifically designated by the applicant as the search authority. See 1167 OG 74 of October 18, 1994.
While we support cooperative efforts with foreign patent offices and with international organizations, the basic functions of searching and examination involve policy matters that determine our competitiveness with both the Europeans and the Japanese. We do not think it is wise to even create the potential for such a loss of control of fundamental, Constitutionally mandated economic policy.
Bargaining Rights
The very severe cutback in bargaining rights provided in both H.R. 1659 and the administration bill devalues the voice of employees in supporting the mission of the agency. H.R. 1659 is worded so as to avoid all bargaining, including impact and implementation bargaining, with respect to the classification of positions, pay matters, and procedures for employment. In fact, H.R. 1659 eliminates all currently existing substantive bargaining, even in areas that Congress has specifically provided for, such as bargaining with respect to flextime and compressed work weeks. The only bargaining that is permitted under this bill is bargaining over procedures that management will observe in exercising the management rights, and appropriate arrangements for employees who are adversely affected by the exercise of managementþs rights.
The administration bill similarly restricts bargaining although different language is used. By virtue of the fact that subsection (f) of Section 103 states that the Chief Executive Officer shall have, þsole and exclusive discretionþ means, under current case law, that all negotiation regarding the listed topics is prohibited. See AFGE Local 3295 and U.S. Department of the Treasury Office of Thrift Supervision, 47 FLRA 884 (1993), affirmed sub nom. AFGE Local 3295 vs. FLRA, Docket Number 93-1488 (D.C. Cir. January 27, 1995).
Senator Lautenberg's bill, S.1458, at proposed 35 USC 3, subsection (h)(2), seems to provide for bargaining of the matters reserved to the sole and exclusive discretion of the Commissioner but, in fact, bars negotiability because of the language that says that these matters are negotiable to the same extent as the Federal Labor Relations Authority holding in effect currently. The relevant FLRA case is the one cited in the prior paragraph of my testimony which holds that the þsole and exclusive discretionþ language constitutes Congress' intent to bar negotiability. The potential confusion engendered by this section serves no one.
Even though the Commissioner testified on the first day of hearings that impact and implementation bargaining would be allowed if management made a decision to decrease pay, it is not at all clear that this would be allowed in situations in which Congress has specified that the CEO has þsole and exclusiveþ discretion.
There is also some confusion as to what is meant by the language in Section 103(f) of the administration bill in which it is stated that the CEO shall have sole and exclusive discretion over þany compensation and award system except gainsharing, including wages and compensation based on performance.þ Since we believe that compensation based on performance is gainsharing, this section seems to be sufficiently indefinite to be a source of future litigation.
The administration bill adds to H.R. 1659's exclusions an additional direction that the CEO shall have sole and exclusive discretion to þabolish positions and lay off without regard to the provisions of Chapter 35 of Title 5, United States Code except that preference eligibility laws shall apply in any layoff system.þ
With such broad and unchallengeable authority to lay off employees without cause, we cannot imagine that anyone would ever be given an opportunity to defend him or herself. Even if management were to believe there is a proper basis for removal for cause, we cannot imagine any management ever giving an employee an opportunity to be notified of the specifics of the basis for that removal when all that management has to do is send the employee a letter that says one line: þYour position has been abolished as of today.þ Our contracts with the agency and Title 5 provisions provide significant due process rights to employees who are to be removed for cause. We expect those rights to be entirely irrelevant should the Agency ever achieve, as is proposed in the administration bill, total and unfettered power to lay off employees without any explanation.
All the proposed legislation treats Patent Office employees as third class citizens who are to have fewer collective bargaining rights than employees in the private sector, and fewer collective bargaining rights than employees in the federal sector. What rationale can be used to justify such shabby treatment? We know of no other comparable situation in which Congress has found the need expressly to deny negotiation rights to employees. PTO employees do not perform military, police, medical, sanitation, emergency functions, or functions having an instantaneous impact on public health or safety. What is it about PTO employment that would justify denial of the basic private sector right to collective bargaining?
The bulk of the labor management litigation at the PTO concerns disputes over what is negotiable and what is not negotiable under the management rights clause. When both sides admit the negotiability of a particular topic, we have shown that we can reach a mutually satisfactory agreement in a very short time. One example of that is a gainsharing agreement which we think has benefitted management, has benefitted the employees, and has benefitted the PTO's customers. That particular agreement was reached in approximately three weeks. There are, of course, other topics in which negotiations reached an impasse, and it was necessary to invoke the services of an interest arbitrator to resolve those negotiations. We challenge anyone to find any ill effects for the public or the PTO in those agreements.
The administration bill provides for the establishment of a labor management committee which is limited to an advisory capacity. We believe that the establishment of such a body, whose recommendations can be ignored at will, is not an effective vehicle for providing employee input.
The Commissioner has stated his intention to write a new personnel manual. With no required input from employees with respect to virtually all of the significant aspects of an employee's career, it should be an easy book to write.
CONCLUSION
The proposed bill eliminates the underpinnings of the civil service system, while it bars by law collective bargaining as to the most significant aspects of the employment relationship. The result is to place virtually unchecked power in the hands of the chief executive of the corporation. As written, it would take an act of Congress to reverse a personnel policy.
This discretion can be used for good or evil - will each employee now be expected to negotiate his or her own wages? Will there be any checks to ensure fairness or avoid special privilege?
No CEO in private industry has unchecked power - there is accountability to a board of directors, a fiduciary duty to stockholders, and a statutory requirement to negotiate with labor unions. In the public sector, it is well established that all institutions should be subject to checks and balances.
We urge that the Congress not succumb to an idealized view of private enterprise in attempting to make government agencies operate more like the private sector. The history of private enterprise in this country, while including many shining achievements is also rife with examples of misbehavior, malfeasance, overbilling, fraud, and knowingly selling dangerous products, and the court records of this country bear ample witness to too many such deplorable episodes. While the public may tolerate this situation in the private sector, accepting þafter the factþ remedies available in the courts, it should be entitled to a higher standard in the government it establishes by Constitution and statute, so that every effort is made to prevent wrongdoing before it happens.
Recommended Action
We recommend, first and foremost, that Congress maintain the status quo with respect to the treatment of employees with regard to their civil service rights and their bargaining rights. What this means, simply, is that the sections of the proposed legislation that exclude employees from key provisions of Title 5 and that restrict the scope of bargaining (including the sole and exclusive language in the administration bill) be stricken from the legislation. Some of the witnesses that you heard on the first day of the hearings, recommended that the status quo be maintained with respect to both bargaining and employee rights matters. We think that is good advice.
However, if Congress is concerned about the quality of examination, then, we recommend as the best means for improving quality, a clause which makes performance evaluations and performance standards a proper subject of negotiations.