So Much for Transparency
by Mike Eastman
Today, the National Mediation Board (NMB) published a proposal that will make union organizing in the airline and railroad industries easier. We’ve discussed the substance of this proposal before (three links) and will do so again, but what should really catch people’s attention here is the flawed and secretive process that led to this union giveaway.
For background, you should know that the NMB consists of three members. Two are Democratic appointees (Members Hoglander and Puchala) and one is a Republican (Chairman Dougherty). Here is how Chairman Dougherty described the process leading up to today’s proposal:
The proposal was completed without my input or participation, and I was excluded from any discussions regarding the timing of the proposed rule. … I should have, at a minimum, (1) been given drafts along the way for consideration and comment; (2) been included in discussions regarding the timing of the proposal and (3) been given ample time to review and prepare a dissent if necessary. Instead, on Wednesday, October 28 at 11 am, my colleagues informed me that they had prepared a "final" version of the proposed rule and intended to send it to the Federal Register that day. They initially told me I had one and a half hours to consider their proposed rule. They also told me that I would not be permitted to publish a dissent in the Federal Register and would have to air any disagreement some other way. Publication of my dissent is not prohibited by any agency policy, and their decision to forbid it in this particular case was arbitrary and ad hoc. After several requests from me, they agreed to give me ad additional twenty-four hours—until noon on Thursday, October 29—to review and determine my position on the rule. They continued to insist that I would not be permitted to publish my dissent. The next day, an hour and a half before my "deadline," I informed my colleagues that I intended to dissent and asked for more time to digest the rule and draft my dissent. My request for more time was rejected. I was then told I would be permitted to publish my dissent, but only if I could have it completed by the noon deadline—an hour and a half from the time of the conversation. The dissent I originally submitted included a discussion of these process flaws as one of the reasons for my dissent. I was told by my colleagues that if I did not remove the discussion of the process flaws from my dissent, they would not consent to its publication in the Federal Register.
When I read this letter, I thought of the Memorandum issued by President Obama in his first days in office titled "Transparency and Open Government" in which he wrote:
My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.
Transparency promotes accountability and provides information for citizens about what their Government is doing. Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly and in forms that the public can readily find and use. Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public.
I guess the NMB didn’t get the memo.
Since the NMB wouldn’t let the public have access to Chairman Dougherty’s full dissent, we are pleased to provide it here.
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