Many Agency representatives and advocates active in Federal labor and employee relations would agree, I think, that Merit Systems Protection Board (MSPB)took up the slack in 2013 from Federal Labor Relations Authority (FLRA) on politically or ideologically driven decision making. As we’ll see, the Board got testy in a couple of its decisions. Obviously, FLRA’s absence from the scene for almost all of 2013, while a relief to Agency budgets and flexibility, left a void in case decisions but there were a couple issues of interest coming out of them as well.
Practitioners will find FLRA’s Guide To Negotiability Under The Federal Service Labor-Management Relations Statute useful in assessing the Agency’s take on what it believes is on and off the bargaining table. Of course, this does not represent the U.S. Circuit Courts of Appeal particularly that of the District of Columbia whose patience with FLRA has been strained in recent years.
The two majority (Democrat sponsored) members were reappointed. A new member, Patrick Pizzella, represents the minority. Mr. Pizzella signaled his view of Federal Labor Relations in a concurring opinion in the first decision of the Authority in almost a year. Pizzella stressed that “the taxpayer is the FLRA’s biggest stakeholder” and focused on the FLRA’s apparent lack of concern for the costs of its decisions. The majority not only didn’t mention the taxpayer in their comeback, they gave short shrift to these concerns saying “…we are guided, as adjudicators, by the fundamental principle that the terms and intent of those statutory and regulatory provisions control, not purely policy-based considerations. As we believe it is wrong to incorporate other matters into decisions, we will not comment further on the outside-the-case considerations raised in our colleague’s concurring opinion.” Of course, this particular majority crafts the intent of the law to favor its political goal of supporting labor unions whenever possible to the detriment of cost savings or good government. Politically motivated as they are, perhaps Ms. Pope and Mr. Dubester should heed their boss’ (President Obama) words when he said, “If the people cannot trust their government to do the job for which it exists – to protect them and to promote their common welfare – all else is lost.”
The Board had a hard year in 2013. It took them three tries to explain what they meant in a case in which they second guessed a reassignment of a management official. The scrambling may be an attempt to minimize their expected drubbing if the case theory expressed in this one makes it into the Federal Circuit. This Board like its sister Agency, FLRA, has taken a substantial turn. Theirs isn’t the unions though. They are clearly favoring appellant counsel in their decisions, making taking action much more difficult for Agencies.
In Portner v. Justice 2013 MSPB 28, the Board disagreed with a deciding official on the use of a Douglas Factor. In my article on this , I expressed my concern that “the majority members of the Board reversed the Agency action not because the deciding official ignored the Douglas factors; not because he failed to consider a specific Douglas factor; not because the specific factor considered wasn’t relevant; not because the consideration was unreasonable or unreasoned; but, because the majority disagreed with the decision.”
In Ingram v. DOD, 2013 MSPB 78, the Board affirmed an Agency decision involving position sensitivity reluctantly. I was drawn to the words in the write up of the decision in the Board’s Case Reports which said “The agency’s action must be affirmed under Egan. The appellant’s position as a Supervisory Store Associate required that she maintain eligibility to access non-critical sensitive information; that eligibility was denied; and the agency complied with the procedural protections of 5 U.S.C. § 7513 in demoting the appellant to a vacant non-sensitive position. Because the Federal Circuit has concluded that non-critical sensitive positions implicate national security are analogous to positions requiring security clearances, the Board found that the agency’s demotion action promoted the efficiency of the service and must be affirmed.” The Board is still struggling with the rebuff it got from the D.C. Circuit when it tried to get its nose under the tent of security clearance and position sensitivity cases, the virtually exclusive domain of Agencies.
The Board also made clear how it will handle furlough cases in Chandler v. Treasury 2013 MSPB 74, in which it likened Agency burden’s in furloughs to those involving RIFs. The tipoff was this language from the decision, “ in light of the basic similarities between RIF and adverse action furloughs, we find that RIF principles are instructive in determining the scope of the Board’s review of adverse action furloughs and what it means for a furlough of 30 days or less to be taken for the “efficiency of the service.”
It appears 2013 may presage a further increase in the involvement of the circuit courts in both labor and employee relations as both MSPB and FLRA have raised serious questions about their ability to demonstrate neutrality in their decisions.
As all of you know, any opinion I express is mine alone and no one else’s responsibility.