Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.
FLRA keeps interpreting laws other than its own with impunity and without benefit of any expertise in those laws. It often gets its own law wrong in the opinion of the DC Circuit. The author asks how this agency, once characterized in a D.C. Circuit Court Decision as a “minor three-member commission with quite restricted expertise”, can defend an ideologically driven agenda and be considered a neutral adjudicator of disputes in the face of its record in court.
The author provides the text of the senate bill to change the SES system at the Department of Veterans Affairs and a plea to the Congress to control its knee jerk response to allegations of misconduct at the Agency. He asks the reader to judge whether this is good or bad law and whether it supports good or bad government based on its words versus the present system.
On June 3, the D.C. Circuit again reversed the FLRA for interpreting a law other than its own. The case, involving the negotiability of union proposals limiting Agency Inspector General investigations to procedures bargained with a union, demonstrated the Court’s continuing refusal to defer to an FLRA interpretation of a law other than the one it administers. The author suggests practitioners read the complete decision but addresses the highlights in his article.
In a negotiability case involving SSA and AFGE, FLRA Member Pizzella reminded the other members of a recent court ruling reversing a decision and taking those members to task for a theory that the court concluded ended up with two separate results on the same issue depending on which process it arose in. Member Pizzella’s opinion is quoted verbatim in the article and the author suggests it’s worth a read by practitioners.
In denying a hearing on the matter (certiorari), the Supreme Court backed the Federal Circuit in setting limits on the MSPB’s jurisdiction to hear appeals of removals or other actions taken by an Agency when an employee loses the ability to hold a “sensitive” government job. As the author points out, many more Federal employees hold positions with a sensitive rating than do those with security clearances.
In a January 3, 2014 decision, the Federal Circuit stated: “As explained in this opinion, by adopting two inconsistent interpretations of the same statutory language, the Authority has acted arbitrarily and capriciously”. This deals the FLRA, only back in operation since mid-December, a stinging rebuke on arguably its most extensive political tool, the determination as to what is or isn’t an “appropriate arrangement.”
Federal Agency advocates, attorneys, HR advisors and adverse action decision makers should make a point of reading the MSPB’s new report titled Clean Record Settlement Agreements and the Law. The report identifies the pitfalls involved in making deals with employees in which the Agency agrees to expunge negative information from an employee’s record in return for a resignation.
MSPB announced on 11/8/2013 that it planned to change the way it adjudicates jurisdiction claims by altering its regulations. The Author suggests that anyone involved in appeals before the Board should read this article and respond to the Board’s request for comments by practitioners. As a part of its effort, the Board has prepared a useful chart called Elements/Issues in MSPB Appeals that is worth reading.