The Merit Systems Protection Board (MSPB or the Board) has broad jurisdiction over Federal employee appeals related to adverse actions including removals; reduction in force; whistleblower reprisal actions; and many other actions.
For a number of years, MSPB employees, including administrative judges and others, have been represented by a union and have negotiated collective bargaining agreements (CBAs) with Agency management. The union calls itself the Merit System Protection Board Professional Association.
On January 31, 2019 another union, The International Federation of Professional and Technical Engineers (IFPTE) issued as press release announcing a vote by the MSPB union to affiliate with it.According to the press release, the Board union is made up of 85 administrative judges and lawyers.
If you don’t know, these “administrative judges (AJs)” were once called hearing officers and nothing much changed but the name. They are not administrative law judges who are appointed by a specific procedure administered by the U.S. Office of Personnel Management (OPM). AJs are subject to the same hiring, firing and promotion procedures as other federal civil service employees in similar appointments.
So, What’s the Problem?
Board AJs will certainly hear cases involving employees represented by IFPTE which has recognitions throughout the Federal government. IFPTE’s website has a menu that lists its partners which includes the AFL-CIO, the Metal Trades Department AFL-CIO, but more importantly the Federal Workers Alliance including twenty unions, most of which represent Federal employees.
Board AJs hear appeals from those represented employees and their unions are frequently involved. These appeals may involve the AJ making a determination on the interpretation and application of a CBA and its relevance to a given appeal. This decision may become the final decision of the board, lead to a subsequent Board decision and ultimately be appealed to the U.S. Circuit Court of Appeals for the Federal Circuit and to the U.S. Supreme Court. It is clear that AJ decisions are included in the following statutory language from 5 U.S. Code § 7112:
(c)Any employee who is engaged in administering any provision of law relating to labor-management relations may not be represented by a labor organization—
- which represents other individuals to whom such provision applies; or
- which is affiliated directly or indirectly with an organization which represents other individuals to whom such provision applies.
So, I guess the Federal Labor Relations Authority (FLRA) and the Board must now ask themselves:
- Do the MSPB employees administer any provision of law relating to labor-management relations?
- Is the MSPB Professional Association part of 1. A labor organization representing other employees covered by 5 USC 7101 & ff and/or 2. is it affiliated directly or indirectly with an organization which represents other individuals to whom such provision applies?
And the Answers Are:
Yes, they certainly administer the statute by, if nothing else, making determinations on the same subjects as an arbitrator, or for that matter, FLRA.
They are by their own press release now affiliated with a union doing those things the statute says they cannot.
Did the Union Commit an Unfair Labor Practice?
5 U.S. Code § 7116 (b) states clearly: “For the purpose of this chapter, it shall be an unfair labor practice for a labor organization— (8) to otherwise fail or refuse to comply with any provision of this chapter.”
So, if the affiliation vote violates section 7112 as discussed above, then the union has failed to comply with a provision of the chapter and is guilty of an unfair labor practice. So, who can file? The FLRA’s regulations address this. At 5 CFR §2423.3, it states:
“Who may file charges?
(a) Filing charges. Any person may charge an activity, agency, or labor organization with having engaged in, or engaging in, any unfair labor practice prohibited under 5 U.S.C. 7116.
(b) Charging Party. Charging Party means the individual, labor organization, activity, or agency filing an unfair labor practice charge with a Regional Director.”
FLRA has long held that “any person” means just that. So, anybody who thinks the MSPB Professional association is in violation of the statute may file.
Wouldn’t it be interesting if OPM, the government’s principal management labor relations advisor, stepped up to the plate on behalf of those Agencies who must appear before the Board? Again, not likely in my lifetime.
Perhaps an Even Bigger Problem, If Possible
There’s a Federal Agency out there called the Office of Government Ethics (OGE) which lists as its mission, “Provide overall leadership and oversight of the executive branch ethics program designed to prevent and resolve conflicts of interest.”
So, let’s say you are an Agency advocate appearing before a Board AJ and the appellant is a bargaining unit employee of an IFPTE unit, represented by an IFPTE attorney or other representative, or is one of either of these affiliated with or partnering with IFPTE. Let’s say that advocate is aware of this connection and moves that the AJ recuse him or herself from the appeal. Is the AJ required to do so, and if so, who hears the appeal? Now I would never accuse an Agency of being asleep at the switch, but I know that every Federal Agency has an ethics counsel and is required to conduct annual ethics training for employees. So, how would the MSPB ethics counsel see this?
Is this a farout scenario? Let’s look at what OGE says about conflicts of interest. This is copied directly from OGE’s “5 C.F.R. Part 2635: Standards of ethical conduce for employees of the executive branch”:
“Subpart E – Impartiality in Performing Official Duties There may be circumstances other than those covered by Subpart D in which employees should not perform official duties in order to avoid an appearance of loss of impartiality. Subpart E contains two disqualification provisions addressing those appearance issues.
The first provision, entitled “Personal and business relationships,” states that employees should obtain specific authorization before participating in certain Government matters where their impartiality is likely to be questioned. The matters specifically covered by this standard include those:
Involving specific parties, such as contracts, grants, or investigations, that are likely to affect the financial interests of members of employees’ households; or
In which persons with whom employees have specific relationships are parties or represent parties. This would include, for example, matters involving recent employers, employers of spouses or minor children, or anyone with whom the employees have or seek a business or financial relationship. There are procedures by which employees may be authorized to participate in such matters when it serves the employing agency’s interests. The process set out in Subpart E should be used to address any matter in which an employee’s impartiality is likely to be questioned. (My emphasis)
How could a judge have a relationship with IFPTE? Would not hearing and deciding a case involving that union or one of its affiliates or partners raise at least the appearance of a conflict? Since an AJ subject to discipline, removal, RIF or other action may reach out to IFPTE for help including representation, doesn’t that very fact create an ongoing conflict or appearance of a conflict?
Now I can’t imagine any citizen thinking a government lawyer could ever have a conflict of interest especially within the Beltway. A Washington lawyer with an ethics problem, certainly not in my lifetime.
Now here’s another issue; let’s say these employees disaffiliate with IFPTE or are directed to by FLRA or MSPB; does the conflict ever go away or have they managed to muddy the water indefinitely? When will the recusal motions end? People still refer to Caesar’s wife 2000 years later; Will the Board be able to get out from under this?
I don’t think there’s a lot of opinion above, but if so, it’s all mine.