Prior Discipline Continues to Lose Respect at the Board

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By William Wiley

My initial training in this business was in July 1977. Back in the day, the old Civil Service Commission ran weekly academies year-round in Washington, DC, with an academy devoted to each major personnel discipline: classification, staffing, training, labor relations, and employee relations. To practice independently in your chosen field, by CSC policy, you had to attend the academy and pass the final test for your discipline. If you attended and did not pass the final exam, you were sent home without the ability to work independently, and had to return to retake the program at a later date. Serious stuff.

One of the principles I remember clearly being taught in my employee relations academy was that of progressive discipline. Although not mandatory, employing progressive discipline was presented to us as a way to give an employee a fair chance to prove whether she could obey rules and pull her weight as a federal civil servant. And if she could not, progressive discipline laid a good foundation to show that the agency had been fair to the employee, and that the employee continued to be a problem.

The concept of progressive discipline is exceedingly simple: first offense = reprimand, second offense = suspension, and third offense = removal. Of course, there was room for an agency to decide to do something less, but that would be up to the agency’s discretion. The philosophy of progressive discipline was to initially use a warning (a reprimand) to try to correct the employee’s behavior. If the employee engaged in a subsequent act of misconduct, he was demonstrating that the reprimand did not work, because if it had worked, he would have obeyed the rules and not have engaged in more misconduct. As the reprimand didn’t work, the supervisor was empowered to move up to more serious discipline in an attempt to correct behavior, and that’s where the suspension became an appropriate penalty – a negative reinforcement of taking away pay to motivate rule-obeying conduct.

Then finally, if the employee engaged in yet another act of misconduct subsequent to the suspension, with rare exception, the last stage of discipline was removal. By engaging in a third act of misconduct, the employee was demonstrating that a suspension was inadequate to correct the bad behavior. If a reprimand didn’t work and a suspension didn’t work, the only option left was a removal. As I remember one instructor putting it so eloquently, “The government does not have to retain in its employment an individual who does not respond to discipline.”

And to me, that makes perfect sense if we think of discipline not as punishment for the sake of punishment, but as a tool for correcting behavior. If it doesn’t satisfy the objective of correcting behavior, then the non-responsive employee can go work elsewhere. The civil service deserves rule obey-ers, not rule breakers. That philosophy explains why agency penalty tables list only three offenses. Because in most cases, by the third offense the employee has demonstrated an inability to be corrected, and won’t remain employed any longer where he would get a chance to commit a fourth or fifth offense.

Unfortunately, today’s MSPB didn’t attend that academy. As far as I can tell, the Board expects an agency to tolerate indefinitely an employee who does not respond to discipline. If not indefinitely, it hasn’t given us any clear signs as to when enough is enough. Take, for example, MSPB’s recent decision in Ballard-Collins v. Navy, SF-0752-13-0617-I-1 (2016)(NP). In that case, the appellant three years previously had been suspended for 7 days, then later that same year, had been suspended for 14 days for subsequent misconduct. You would think that by those two actions, the employee would have been given a fair chance to learn that misconduct would not be tolerated; i.e., to correct her behavior.

Well, you would be mistaken. Even after these two suspensions the appellant committed yet another offense (disrespectful conduct) and was fired. On appeal, although the Board characterized the disrespectful conduct as a serious offense – particularly so because the appellant was a team leader – it mitigated the agency’s removal to a five-day suspension.

No kidding. Even though the appellant had demonstrated that suspensions don’t work on her to get her to correct her behavior, even after losing 7 and 14 days of pay as negative reinforcement, MSPB somehow reached the conclusion that maybe a 5-day suspension would get the employee to obey the agency’s rules.

Well, that’s just crazy; crazy IF you believe that an agency should not have to tolerate a rule breaker. You see, suspending the employee hurts the agency as it does the employee. The employee loses pay, and the agency loses the services of the employee for the duration of the suspension. The old Civil Service Commission gave us an end to this problem by teaching that ours is a three-strike game. The Board, on the other hand, gives us no clear guidance, effectively saying that an agency may have to tolerate a misbehaving employee indefinitely, suspending over and over again, regardless of the lack of effectiveness of the suspensions to correct behavior and the loss of productivity the agency suffers.

You want more crazy? I got more crazy. When coming up with a 5-day suspension, MSPB used this reasoning:

  1. The prior 7-day suspension was for discourtesy. The prior 14-day suspension was for failure to follow instructions.
  2. This last act of misconduct was properly characterized as discourtesy. Therefore, we have a second act of discourtesy.
  3. The agency’s penalty table provides for a range of penalty for a second offense of discourtesy to be a one to five day suspension. Therefore, a five day suspension is warranted.

Notice how the Board ignored two critical aspects of this “second offense”:

  • The agency issued a seven-day suspension for a first offense of discourtesy. One would think a second offense of something warrants more severe discipline than that administered for a first offense.
  • The Board COMPLETELY IGNORED the fact that in addition to the prior suspension for discourtesy, the employee had been suspended for 14 days for failure to follow instructions. It’s as if the Board is saying that when we consider prior discipline, we are to consider only prior discipline for misconduct in the same category as the most recent misconduct. Well, that’s just ridiculous. If we go down that dark road, an employee would have to be disciplined progressively for each category of misconduct. In a typical penalty table, that would be dozens and dozens of categories. Expecting progressive discipline in each of them could add up to double that many of suspensions before we had finally plugged all the holes and were able to eventually fire the multitasking bad employee.

Ask yourself this philosophical, but critical, question: Which of the following makes for a better government?

  1. A civil service in which employees who do not conform their behavior to agency rules after two formal attempts at correction normally can be removed.
  2. A civil service in which employees who commit acts of misconduct can retain employment indefinitely regardless of the number of attempts at correction as long as each act of misconduct is of a different nature from the other.

This break from the old school three-strikes-and-you’re-out approach defies common sense and leaves us without any framework in which to assess whether prior discipline carries any weight when selecting a penalty for a particular current act of misconduct. This is exactly the kind of decision that makes it appear that the Board is overly protecting employees at the expense of an efficient, orderly, civil service discipline system. This was a third offense. The agency had administered two significant prior suspensions. The idea that only a five-day suspension is warranted as a maximum reasonable penalty now is unreasonable and strikes at the heart of the concept of federal employee accountability. Wiley@FELTG.com

Don’t Come to Mediation if You’re not Willing to Budge

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By Deborah Hopkins

Mediation is an interesting thing. Most disputes resolve without litigation, but for some reason we don’t seem to talk as much about that as we do about the cases that get to hearing or the courts. Obviously, the cases that go to litigation also provide us with our case law so we would be remiss if we didn’t spend a lot of time and energy teaching that stuff.

But, we want to make sure we spend some time talking about other methods of dispute resolution. I recently attended mediation for a private sector employment dispute. While a few of the details were different than what a federal sector employment law dispute would cover, the general formula is the same.

The mediator was a former circuit court judge in Virginia, and he has been an attorney for 49 years. Can you imagine that? What a long time to be an attorney! In his opening script he stated that he believes the objective of finding a “mutually agreeable resolution” is a misstatement, and that the better way to look at things would be to aim for a “mutually disagreeable resolution” since neither party was going to get exactly what it wanted. He also explained that his success rate was a whopping 97%. Little did the parties (or at least, one of the parties) know that this mediation would fall into the remaining 3%.

Why did the mediation fail, you might ask? Well, it’s because one of the parties arrived that morning completely unwilling to budge from its position. The outcome: after seven hours, the only people who benefited were the attorneys (who got paid) and the mediator (who got paid). Neither side was anywhere closer to a resolution because one party refused to consider anything less than what he wanted from the beginning. He was so stuck on his position (being “right’) that the mediation proved to be a complete waste of time. [Editor’s Note: Some agencies exacerbate this problem by mandating that line supervisors are required to participate in the mediation of discrimination complaints. As Deb well points out, it is a waste of everybody’s time and money when one side or the other has no intention to compromise. Mediation should be voluntary on the part of all parties. If it is not, then it is not going to work.]

There are two primary types of negotiation: position-based and interest-based. Let’s a take a quick look at each:

Position-Based Negotiation (PBN)

This type of negotiation focuses on the stances taken on each side of the dispute. Each party takes a position, and then spends its time arguing from that position. Throughout the process, each side makes concessions until an agreement is finally reached. Benefits to taking this approach include clarity of standpoint, strong anchoring during stressful negotiations, and clear, defined roles of the parties.

But, there are some major downsides to classic PBN:

  • Any final agreement may not be very wise; it may instead be a product of the interactions of the negotiators rather than the logic of the arguments pro and con whatever is being negotiated.
  • The more the parties argue position, the more they become committed to the position, thus impacting flexibility and open-mindedness to alternative resolutions. (The more attention is paid to position, the less attention is paid to underlying concerns. This = bad news.)
  • PBN can be inefficient. Because they know they’ll likely end up meeting somewhere in the middle after making a series of small concessions, parties in these cases are tempted to start off with extreme positions.
  • It strains relationships. Often involving a contest of wills, in PBN one side generally wins, which means the other side loses. Being nice is not a good answer to this problem, because then the goal switches from reaching a wise agreement to just reaching any agreement. Plus, it’s rare that both sides act nicely, so the nice people generally get taken advantage of in these scenarios.

Position-based negotiation has its place, for sure, but is not always the best approach.

Interest-Based Negotiation (IBN or IBB)

This type of negotiation approach is drastically different because the parties separate the people and relationships involved from the problems that are in contention. Rather than present a position on why they should prevail, the parties instead discuss their interests and what is important to them. IBN is based on assumptions of mutual gain and is designed to generate high-quality solutions while enhancing relationships. Sound like a pipe dream? Well, believe it or not, it sometimes works.

Interest-based negotiators provide a variety of resolution options before the parties decide what to do, and generally set timelines to promote efficiency. Strengths in the IBN process include greater confidence and self-esteem, more control, and influence over strategic decisions.

IBN is not perfect, though. Sometimes the partnership process can be slow. Other times, IBN’s use is limited to softball issues and not major points of dispute. For example, parties have encountered problems dealing with contentious issues – such as the types of issues normally handled through adversarial bargaining – and management and the union sometimes have divergent views of how negotiations should work. When considering this approach, then, it makes sense to think about the issues to be addressed, the parties concerned, and their relationships.

One of the primary requirements for a successful mediation is for each party to come with an open mind. If either party is uncooperative, then it’s a waste of time for everyone – not to mention expensive. Productive negotiations during mediation have a few similarities:

  • They result in a wise agreement
  • They are efficient
  • They do not damage the relationship between the parties (and in some cases, they improve it)
  • They focus on the future, not the past

The mediation I attended was derailed by one party that would not abandon its position. A learning experience, to be sure. I’ll likely attend the upcoming trial, so stay tuned for my observations on that! Hopkins@FELTG.com

Attorneys Should not Make Management Decisions

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By William Wiley

Here at FELTG, we do a LOT of training for supervisors. We really enjoy helping front line managers learn the procedures the law provides for dealing with poor performers and civil servants who don’t follow the rules. And during those sessions, we hear a LOT about what supervisors think about their legal and human resources support staffs.

One of the more common comments we get, and perhaps the most infuriating, is this: “Bill, I’d like to do it that way, by my solicitor won’t let me.” Man, oh man, does that comment make us cringe. With rare exception – and I mean really rare exception – the authority to hold agency employees accountable is delegated to the line managers who have been hired to run the place, not to the lawyers who are responsible for providing advice. Where do lawyers (or human resources specialists) get off telling line managers what to do when it comes to initiating discipline and performance removals?

Perhaps it started in law school, when the attorney-in-training took all those management classes.

Ha, ha, ha. That’s a little joke. Nary a law school in the country requires that its students take courses in how to manage a federal agency. OPM doesn’t have any minimum training requirements for staff attorneys to take management classes once hired into government. So your typical agency attorney, though perhaps highly competent in the skills necessary to be a lawyer, has zilch formal education in the science of management.

Well, maybe those skills necessary to be a highly competent attorney are easily transferrable to the field of agency management. Perhaps whatever it takes to be a good lawyer is also what it takes to be a business manager.

No, they aren’t. In fact, the skills necessary to be a good lawyer are sometimes antithetical to what it takes to be a good manager. Take risk-avoidance for example.  Lawyers are trained to do whatever it takes to reduce the risk involved in an action, to consider every possible bad outcome, no matter how remote, and to include language in the contract or argument in the brief to cover that possibility. In the world of federal employment law, that means a lawyer would be likely to want to avoid the possibility of losing an appeal, even if that possibility was slight.

In the business world, hesitation can cost a company a lost opportunity. Nobody wants to lose, but risk of loss in the management of an agency is sometimes worth the benefit of the gain that can result from success. When I was a baby in this business back in the ‘70s, I remember trying to talk a Navy commanding officer into settling an appeal because if we were to lose, it might cost the Navy “over ten thousand dollars.” He gave me one of those over-the-spectacle looks that seasoned people give to newbies and said, “Young man [I knew I was about to be put in my place when he started off with that], last month I spilled $30,000 worth of fuel refueling my jets. Do you really think that I care about another ten grand?” He was making a business decision for which I did not have a perspective. And that’s exactly what he was supposed to do.

Last year, I was lassoed during a break in one of our open-enrollment seminars by an attorney who worked in an agency for which FELTG recently had been doing a lot of onsite supervisory training. She was upset that we were teaching her agency’s supervisors what accountability options were available without considering “the culture” of the agency. In other words, we were telling supervisors what they could do, and her office (the Office of Culture, I’m guessing) didn’t want them to know what they had the authority to do.

On another occasion when I was speaking to a group of agency attorneys in an onsite course for an agency, I stressed (as I always do) how important it is to get the employee out of the workplace once a removal has been proposed. One of the attorneys in the group promptly informed me that “We don’t do that here” because “it would look bad in the papers” to have an employee on administrative leave during the 30-day notice period. She was making her decision on what “we do” based on her view as an attorney safely ensconced down the hall in her office behind a locked door. The poor line manager, who should by all rights be making the decision, would be the one sitting around the corner from the about-to-be-terminated employee, directly in the line of fire, should the employee snap and become violent.

Line managers should be making line management decisions, not agency attorneys and human resources specialists. Our job is to provide advice and counsel, not to direct and tell. The concept of “HR won’t let me do that” should disappear from the workplace. We are a service entity, not a line component. If we are advising a line manager who wants to do something we think to be bad for the agency, our job is to run that issue up the chain of command of that manager, not to interject our own style of management into our client.  And I stress the word “client” as that should be the nature of our relationship with the manager.

Think of yourself in private practice. How much income do you think you would have if business people came to you for your legal counsel and you instead took it on yourself to tell them how to run their business and how to make business decisions? If you want to decide what “we do” around here or what “the culture” should be, start a business and become accountable for your decisions. Until then, if you are an agency advisor – attorney or otherwise – do America a favor. Fulfill your consultant role to the best of your ability and allow line managers to make the decisions that are their role to fulfill.

Take it from someone who has been on both sides. It’s easy to tell someone what they cannot do. It’s much harder and more important to help them do what they’ve decided to do. Wiley@FELTG.com

EEOC Continues to Focus on Protecting Transgender Employees from Discrimination in the Federal Workplace

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By Deryn Sumner

Since its decision in Macy v. Dept. of Justice, EEOC No. 0120120821 (April 20, 2012), the Commission has continued to push the law forward to protect transgender employees from discrimination in the federal workplace.  Last year saw the issuance of the Commission’s decision in Lusardi v. Dept. of Army, EEOC No. 0120133395 (April 1, 2015), where the Commission found the agency subjected the complainant, who had transitioned from male to female, to disparate treatment and harassment based on her sex.  There, the agency had restricted her from using the common female restroom until she could provide “proof” of her complete transition, and her third-level supervisor referred to her by male pronouns and made hostile remarks after she announced her transition.

The latest decision from the Commission addressing claims of sex discrimination raised by a transgender employee came a few weeks ago when the Commission issued Hillier v. Dept. of Treasury, EEOC No. 0120150248 (April 21, 2016). The complainant, a transgender female, worked as a GS-13 Revenue Officer in Richmond, Virginia and was part of an agency employee organization named Christian Fundamentalist Internal Revenue Employees (CFIRE).  This organization met weekly on agency property for Bible study.  The complainant attended these meetings and at some point, informed the leadership of this organization that she was transgender and identified as a female, but attended the group meetings presenting as a male. Complainant asked if she could attend the weekly meetings “in the attire of the gender I believe I am: female” and the organization’s president denied the request.  A few weeks later, the organization’s president, in response to complainant’s request to present at a meeting, responded, “I cannot allow the CFIRE platform to be used to promote your transgender lifestyle.” In response, the complainant stated that she was not planning on presenting anything relating to transgender issues (she sought to present on “a play she recently saw and discuss Judas’ role in God’s plan, and what it means for Christians today”) and would not make the presentation dressed as a woman.  The organization’s president still refused the request and the complainant filed an EEO complaint. The agency dismissed for failure to state a claim, claiming that the organization’s president, not agency management, took the action at issue and therefore his acts were not the actions of the agency.

The complainant appealed and the Commission vacated the dismissal, reinstated the formal complaint, and remanded it for investigation.  Now some of you may be thinking, why should the agency be liable for the conduct of an employee who was acting in his capacity as an officer of an employee organization?  The Commission addressed that argument in its decision, finding that although the agency viewed the complaint as one of disparate treatment, it should have been framed as a harassment claim, noting that the complainant checked a box marked “harassment (non-sexual)” on the EEO counselor’s report.

The Commission further noted that agencies can be liable for harassment by a co-worker under a theory of harassment and the actions of this organization were related to the complainant’s employment noting, “CFIRE is an employee organization created and recognized under the Agency’s Employee Organization Policy, and sponsored by an executive member of the Agency. In accordance with this policy, employees of the Agency were permitted to organize as a group and use Agency facilities, meeting rooms, interoffice mail, and Agency newsletters. CFIRE members were also permitted to attend conferences and receive compensation by the Agency for travel expenses. As a result, any alleged discrimination from CFIRE and its officers or members is reasonably related to Complainant’s employment with the Agency.”
The Commission then found that the complainant stated a viable claim of harassment, noting “[w]e find that not allowing someone to dress as the gender with which they identify is severe enough to constitute a hostile work environment, as a reasonable person would find it hostile or abusive…Not allowing an employee to dress as the gender with which they identify and forcing them to dress as a gender with which they do not identify can be humiliating and dehumanizing, and it certainly unreasonably interferes with an employee’s work environment. Further, not allowing an individual to present on any topic simply because that individual is transgender causes further alienation and reasonably interferes with an employee’s work environment. Finally, the CFIRE President’s use of the term ‘transgender lifestyle’ can reasonably be perceived as offensive, as it is indicating that transgender people somehow are different from others and have a different lifestyle than others, and as a result, they should be treated differently. Therefore, we find that this complaint states a claim of sex-based harassment.” [Editor’s Note: This employee claimed “non-sexual harassment” and EEOC found “sex-based harassment.” Apparently, the employee’s claims don’t really matter when it comes to the conclusion EEOC will reach to do justice.]

The Commission further disposed of the agency’s arguments that CFIRE’s actions were an exercise of religion, noting that an employer is not required more than a de minimis burden to provide religious accommodation in the workplace. The Commission remanded the complaint for investigation within 150 days of when the decision became final. Sumner@FELTG.com

What is the Role of the Union Official in Statutorily-Defined Meetings?

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By William Wiley

Questions, we get wonderful questions here at FELTG. And the one below from a well-respected senior practitioner raises a couple of issues of importance to all you unionized readers out there: the difference in union rights between a formal discussion and a Weingarten investigation. The FELTG responses to the questions are in bold.

Dear Beloved FELTG-

This whole business of representation at investigatory examinations has me utterly confused. For a long time – and please correct me – I’ve distinguished between formal and investigatory meetings by telling folks this: Union representation in formal meetings flows from the Union; Union representation in investigative examinations flows from the employee.

That is, in formal meetings the agency gives the Union a “heads up” (prior notification) and a chance to attend.

In investigatory meetings, 7114(a)(2)(B)(ii) places the burden of exclusive representation on the employee, not the union.  That’s how I’ve always read the statute.  So I’ve told supervisors and investigators long ago if the employee does not request, no need to notify the union.  Q:  Was (or am) I right? Yes.

Folks who tell me a Union is entitled to representation in investigatory meetings without the employee’s request or permission drive me crazy. They are wrong. There is no authority for that position. But I’m more than willing to grant my ignorance of case law on this matter.   But why does the Statute distinguish between the two if there were no difference? There IS a difference.  In formal meetings, the employee has no reasonable belief he might suffer discipline (might be irrational belief).  In investigatory interviews, the employee may well reasonably believe, “Uh oh, this may not turn out well for me…”

I’m told the Authority gives great latitude to the “reasonable belief” clause Correcto, even granting representation when the employee has no reasonable belief personally.  But this does not speak to the exclusive representative’s alleged institutional right to attend uninvited to an investigatory examination.  There is no institutional right for the union to attend an investigatory interview.

In its “Guidance on Meetings,” the Authority cites the high court’s justification for representation by the following rationale:

The Court also reasoned that by attending the interview, the exclusive representative

“protects the ‘interests of the entire bargaining unit’” and is “able to exercise ‘vigilance

to make certain that the employer does not initiate or continue a practice of imposing

punishment unjustly.’” (Guidance, 17-18)

This language tells me the union has an institutional interest in attending an investigatory examination FLRA has never reached this conclusion. Note the “also” in the statement. That indicates that this is a secondary purpose of the Weingarten right, separate from the primary purpose of allaying fears the employee might have, not solely to protect the interest of the employee under investigation.  Hence, it has a right to attend even if the employee does not request? No, there is no case law that says that, and the statute specifically requires an employee REQUEST: “and requests representation.” 5 USC § 7114(a)(2)(B).

The Weingarten decision from the Supreme Court itself states, “The right arises only in situations where the employee requests representation. In other words, the employee may forgo his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative.” 420 US 251, 257 (1975). If the Supremes say that the employee can participate in the interview without the union, that’s good enough for me. There simply is no separate union right to be present independent of the employee’s request, although if the employee requests union representation, such representation provides the secondary benefit of the union protecting the interest of the BU.

In clarifying 7114(a)(2)(B)(ii), the Authority does not address my burning Q of whether the exclusive representative can attend uninvited or even at the expressed opposition of the employee (pp 20-1).  Put out the fire. The union has no right to attend without the employee invoking Weingarten.

Q:  So is it a violation of the statute if the agency honors the employee’s silence or tells the agency (even the Union) he does not want representation? No. Absolutely not. If there were such a union right, we would have a case on point by now. We do not.  Is it a ULP to exclude the exclusive representative from the investigative interview? We don’t exclude the union because the union has no right to be there. Exclusion comes only if there is a commensurate right to be present (e.g., once the employee invokes his right to a union rep in an investigatory meeting, the union has a right to be represented by whoever it chooses.) Therefore, if management were to exclude the chosen union rep, that would be a ULP; e.g., FCI Englewood, 54 FLRA No. 133 (1998).

And additionally, suppose the employee wants his own representative (attorney or not) not affiliated to the union or not approved by the union? The employee can want chocolate cake for breakfast. However, there is no right to it. If the agency decides to allow him a rep even though there is no entitlement, the employee can choose whoever he wants, whoever is willing to do it, and whoever the agency will allow.  What then?  Must the representative be necessarily approved by the exclusive representative? No, because the primary purpose of Weingarten is to provide protection to the employee, not to benefit the union.

As always, we hope this helps. Wiley@FELTG.com

My Weekly Flash of Genius: Phone Duty for Presidential Appointees

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By William Wiley

Here at FELTG, we are always in pursuit of a better civil service. And one day last week in our semi-annual FLRA Law Week seminar, I had a flash of genius. OK, genius to me. Let’s see what you guys think.

First, the problematic situation. It takes a long time and lots of attorney resources to resolve what should be routine labor relations disagreements. Typical situation:

  1. HQ issues a new policy.
  2. Management’s labor chief notifies Union of potential change.
  3. Union proposes that the change not be implemented.
  4. Management asserts non-negotiability and refuses to bargain. The agency has a “compelling need” for the new policy.
    • If you are already lost, not knowing why management notified the union or what the devil “non-negotiability” or a “compelling need” is, you best get yourself enrolled in out next FLRA Law Week seminar scheduled for November 14-18 in DC.
  5. Union files a negotiability appeal with FLRA. Management has two bad options:
    • Wait until the negotiability process is completed prior to implementing the new policy, or
    • Implement the new policy now, risking an unfair labor practice finding and a status quo ante remedy if the change is eventually found to be negotiable.
  6. Assuming management takes the high road and participates in the negotiability appeal process, the next step is the pre-petition conference with representatives of FLRA. In that discussion, FLRA staff will attempt to mediate the disagreement as to whether there is a compelling need for the policy.
  7. Failing resolution at the pre-petition step, the matter is referred to the staffs of the three Authority members.
  8. Legal research is done, draft decisions are circulated, and arguments as to the proper outcome occur within the Authority.
  9. Eventually, a decision is issued, when at least two of the members agree (the third member may issue a dissent). If there is a dissent, the two members have to review it and may comment on it in the majority opinion.
  10. If the majority opinion is that there is no compelling need for the new policy, the agency is ordered to bargain the implementation of the policy with the Union.

We could spend some time calculating the approximate resources necessary for the Authority to reach a final conclusion in this matter. However, specificity is not necessary to appreciate a central fact: at least a dozen FLRA attorneys and a fair number of weeks (or months) are going to be required to get a compelling-need decision.

Consider, if you will, this genius-level alternative, an alternative that retains in the Authority the power to resolve compelling-need disagreement while avoiding the resource and time commitment of the above procedure:

  1. FLRA establishes weekly phone-in times. One of the three members is assigned to phone duty during each one of these phone-in opportunities.
    • For example, 1:00-3:00 TU, WE, and TH could be established, with each member having the responsibility to be available for the two-hour periods on one of the three days.
    • By internal policy, the three members delegate to the member taking calls the authority to act on behalf of all three members. The board members at MSPB have had a similar internal delegation policy for over 20 years relative to OSC initial stay requests.
    • It doesn’t seem to me that we would be asking too much of a Presidential appointee who is being paid nearly $200,000 annually to answer the damned phone every now and then.
  1. When a local management team and Union have a question as to whether a new HQ policy is based on a compelling need, they get an appointment with the Authority for a phone-in opportunity. Here’s what would be a typical telephone conversation.

Member: Hey everybody. This is Pat. Who do we have on the call today?

Management: Sir, this is Deputy General Counsel Ann Anderson, on behalf of the US Administrative Agency. We need to implement a new policy for which we believe we have a compelling need.

Union:  Sir, this is Chief Steward Ursula Underwood. That new agency policy is no more based on a compelling need than my bad breath is based on evil thoughts.

Member: OK, first, we do first names in this process. Second, you both know how it goes. Ann, you have seven minutes to pitch me your side of the situation, including statements from any witnesses you want me to hear.

Mgmt:  Got it. Here goes … [Blah, blah, blah for seven minutes].

Member:  More interesting than usual, Ann. I appreciate the extra effort put into your organization and elocution. Ursula, what does the union have to say about this fascinating argument in your seven minutes?

Union:  Well, Pat, I can tell you that on behalf of the union, we think you need a bucket and mop to clean up this pile of poo. [Blah, blah, blah for seven minutes].

Member:  Typical Union drivel, Ursula. I would have thought you had moved beyond the 1950s. Ann, you have two minutes for rebuttal.

Management: [Blah, blah, blah]

Member: Ursula, your turn for two minutes.

Union: [Blah, blah, blah]

Member: Hmmm. You have both made good points. And I appreciate your time. However, as for time, it is my time to tell you my decision. After considering your extensive and entertaining arguments, it is my conclusion – on behalf of the Federal Labor Relations Authority – that, although a close call, the agency’s intended change is NOT based on a consideration for which there is a compelling need. Therefore, the union’s proposal is negotiable and USAA is hereby ordered to engage in collective bargaining on the substance of the proposed new policy. Ursula, if Ann and her team don’t comply with this order to engage in bargaining on this issue, give our Solicitor a call at 202-343-1007 and we’ll get a court order for you. Any questions?

Management:  No.

Union:  Not a one.

Member:  Then, we’re done. Best of luck to you both. If you need us again in the future, you know our number. Have a nice day. FLRA out. [Mic drop]

“Oh, Bill. Have you lost your freaking labor relations marbles? Obviously, this will result in a terrible decision. We need lots of lawyers thinking lots of legal thoughts and writing lots of labor-law words to get a valid decision on negotiability. What about consideration of all those factors related to a ‘compelling need’ determination: core function of the agency, necessary rather than merely helpful, possibly abrogation, excessive interference, and the KANG analysis? We can’t really get a good decision if those factors aren’t weighed and analyzed in excruciating detail, can we?”

Of course, we can. Those highly subjective and impossible-to-define terms are just ways that an individual Authority member can justify his or her gut call on whether a matter should be negotiable. Do you think that there has ever been a member in history who actually understood those arcane concepts, and then used them to assess a particular set of facts to draw a rationale conclusion? Of course not. NOBODY understands what these terms mean. They are just weasel words that can be shaded and twisted to support whatever conclusion a member wants to make. And I mean no disrespect by making this statement. Judges do this, Board members do this, and goodness knows that Supreme Court Justices do this. It is the way the world works, whether we admit it or not. We may say, “Pay no attention to that man behind the curtain,” but we still know he is there.

So let’s cut the crapola. Our adjudicators know the answers before we ever get them our arguments. The law says that the FLRA members are empowered to make labor law decisions. Why waste all that time and resources pretending that they are making better decisions with all the legal theater of our attenuated processes? If a union and management have a disagreement about something, get a member on the phone, let him or her hear the parties out, then issue an immediate decision that allows the government to move on. A good decision today is more valuable than a perfect decision two years from now. And since a year or two of adjudication is no more likely to produce a more perfect decision than one issued next Tuesday, why in the world should we wait?

Wiley@FELTG.com

Morally, Ethically; Spiritually, Physically; Positively, Absolutely; Undeniably and Reliably

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By William Wiley

Ding Dong! The Witch is dead. Which old Witch?

The Wicked Witch! Ding Dong, the Wicked Witch is dead!

Wake up, you sleepy head, rub your eyes, get out of bed.

Wake up, the Wicked Witch is dead!

If that little ditty doesn’t get you dancing around with glee, then you might be a heartless non-Munchkin who needs to dance and smile more.

And, boy oh boy, do I have a good reason for you to dance and smile. But first a perspective.

Back in the good old days – up until 2010 – our cares were few and light when it came to disparate penalty defense. Even if there was someone else in the agency who was not fired who had done the same thing as the current miscreant, it was OK to fire today’s misbehaver as long as he was in a different organizational component.

This was known as the “comparator employee” analysis. Effectively, it resulted in few removals being mitigated because there was almost always enough difference between or among comparators to justify differential discipline. The Board occasionally found other reasons to mitigate, but this Douglas Factor usually did not carry much weight.

Then, in 2010, we started getting decisions from President Obama’s two new Board members. Clearly, they came into their offices with a different take on workplace accountability. Rather than follow the well-worn path of requiring consistency only below the Deciding Official, these newly sworn-in Presidential appointees decided that an agency had a responsibility to be consistent throughout the AGENCY, an absolutely ludicrous and indefensible position with no basis whatsoever in civil service law. The three decisions that nailed down this new principle in 2010 came to be known among seasoned employment law practitioners as The Terrible Trilogy. See Woebcke v. DHS, 2010 MSPB 85; Lewis v. DVA, 2010 MSPB 98; Villada v. USPS, 2010 MSPB 232. And thus, the dark days began.

It is rare that a new twist in case law harms both sides of the bar, employees and management alike. On the management side, agencies began trying to develop world-wide data bases to track all the discipline being administered, and correlating it with the charged misconduct. Soon, agency practitioners began to realize that they simply could not do what the Board was asking because:

  1. The Board was looking for comparator misconduct, not simply comparator discipline. To satisfy The Trilogy, an agency would need to track non-disciplined world-wide misconduct, a physically and mentally impossible task.
  2. Some agencies tried withdrawing from front line managers the authority to hold employees accountable through discipline. The thought was that centralized discipline decisions would provide The Trilogy’s mandated consistency. Of course, when that was done, line managers who are being held accountable for the success of their organizations began to feel dis-empowered and wondered how they could run their organizations effectively with some panel of HQ lawyers deciding who should be fired and who should not.

On the employee side an obvious adverse situation began to develop. In an effort to ensure consistency in appeals of removal actions, agencies began to fire EVERYBODY so that the bar would be kept high for subsequent comparators. Deciding Officials were coached to provide no mercy. A lower penalty today might mean that a monster could not be fired tomorrow as the Members were applying an extremely broad definition of comparators post-Trilogy. In one particularly noxious decision, the Members compared employees doing different work, at different grades, in different organizations, with different discipline histories, with vaguely similar misconduct, to an employee who was fired based on a charge that the Board re-characterized on appeal. Raco v. SSA, 117 MSPR 1 (2011).

Holy moly, was The Trilogy a terrible mistake. And everyone seemed to realize it, except the two Board members who came up with the idea and were in a position to fix things. Fortunately, President Obama’s newest Board Member Mark Robbins, appointed in 2012, understood the situation and immediately began issuing dissents arguing that this agency-wide comparator philosophy was bad law. Unfortunately, he is but one vote out of three, and The Trilogy marched on.

Every now and then, post-Trilogy we would glimpse a ray of hope. There would be a decision that found that the alleged comparator was not actually a discipline-restricting comparator based on some factor not addressed in the three foundational cases from 2010. Even though that “new” factor was no doubt present in The Trilogy, it was not discussed in those three cases as if it had no relevance. The decision I have viewed as the life raft in this mess is Chavez v. SBA, 2014 MSPB 37. In that decision, without distinguishing The Trilogy in any way, the Members held that a number of common sense factors were relevant to distinguishing a comparator employee, factors not really analyzed in The Trilogy cases.

And if Chavez is the life raft, I think I might now see the rescue boat. Thanks to an alert reader who was kind enough to point out a recent non-precedential decision to me, I have reached the conclusion – tentative, but a conclusion nonetheless – that the two remaining Board members have drifted back to where we were pre-Trilogy. When determining that the alleged comparator was not really a comparator for finding a disparate penalty, the Board relied on the following non-Trilogy factors:

  1. Different positions
  2. Different first line supervisors
  3. Different Proposing Officials
  4. Different Deciding Officials
  5. Different charged misconduct

In addition, although in some previous decisions the Board had raised the issue of disparate penalties on its own motion (that’s sua sponte for all you Latin-os out there), in this decision the Board clearly stated that the agency does not have a disparate penalty defense burden until the appellant “triggers” it by proving non-Trilogy factors such as:

  1. The appellant and comparator are in the same work unit
  2. They have the same supervisor
  3. They have the same deciding official
  4. The penalties occurred relatively close in time (MSPB had previously reached back four years to find a comparator)

In addition, the nature of the acts of misconduct must be so similar that a “reasonable person would conclude that the agency treated similarly situated employees differently.” Brantley v. USPS, DA-0752-14-0590-I-3 (April 15, 2016)(NP). In Brantley, the appellant’s act of misconduct was being an accessory after the fact to armed robbery with a firearm whereas the comparator’s act of misconduct was aggravated battery (throwing bleach in a woman’s face). The Board concluded that the nature of these two acts of misconduct was different because they were committed “under vastly different circumstances.”

I can already hear those nay-sayers now. “But Bill, Brantley is non-precedential. Those decisions don’t really mean very much. Besides, the Members are not specifically saying that they are abandoning The Trilogy. In fact, they specifically reference Lewis, one of foundational Trilogy decisions. Aren’t you over-reading things a bit?” Well, no, I’m not. I might be reading between the lines a bit, but sometimes this business requires that we work off nuances and shades of meaning. In 2010, when developing The Trilogy, the Board didn’t make a big deal out of it. In fact, for the most part it pretended that it was just applying established law under Douglas. I’ve had the honor of working with 12 of the 20 Board members we’ve had in history, and I can tell you that they don’t like to announce case law shifts as major. They like to slide into them, ostensibly based on existing precedence even when they are coming out of left field with a new, perhaps controversial, idea. To my read that is what is happening here.

And for those of you who poo-poo non-precedentials, keep in mind that the reason the Board labels them NP is because the Members are saying that there’s nothing new here, and that the analysis rests on established case law. In other words, this is old stuff. So you may not rely on NPs for controlling authority, but you can bet your next step-increase that the judges read these things and see them as instructive.

I may be wrong on this. But you know what? I don’t care. The way the Presidential campaign is going, coupled with the piecemeal attacks on the civil service being thrown around on Capitol Hill, has pushed me into an employment-law-practitioner funk. I need something to lift me up, and by gosh, this is going to be it. As always, go make your own decisions and do what you think needs to be done. As for me, I’ve got some singing and dancing to do:

It’s gone where the goblins go, below – below – below.

Yo-ho, let’s open up and sing and ring the bells out.


Ding Dong, the merry-oh, sing it high, sing it low.


Let them know The Trilogy is dead!

Wiley@FELTG.com

If you have even a little bit of childlike glee left in you, you will click this link and sing and dance along with the Munchkins, as we do here at FELTG. Hey, nobody’s watching! https://www.youtube.com/watch?v=PHQLQ1Rc_Js

 

You Have to Earn Respect

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By William Wiley

This little pop quiz is for you readers who are supervisors. HR specialists will already know the answers.

Pop Quiz No. 1: How much education does a person need to have to be minimally qualified to be a senior Human Resources specialist in the federal government?

  1. A graduate degree
  2. A bachelor’s degree
  3. A high school diploma or equivalent
  4. Zero, as in not even kindergarten

Pop Quiz No. 2: How much government-specific training is a practitioner required to have to be a Human Resources specialist in the federal government?

  1. 80 hours within the first two years of employment
  2. 40 hours within the first year of employment
  3. At least 8 hours annually
  4. Zero, as in not even what can be written on a 3 x 5 note card

Pop Quiz No. 3: Why is the term “human resources professional” a misnomer?

  1. It suggests a distinction from “animal resources professional.”
  2. “Professionals” are individuals who usually develop their craft from the long-term study of a large developed body of knowledge in an institute of higher education.
  3. The main organization in the federal government devoted to the field is named the “Office of Personnel Management,” not the “Office of Human Resources Management.”
  4. All of the above

Fortunately, you don’t need a 3-D printer to come up with the three 4s as the correct answers to these questions. Amazing, isn’t it? The field of personnel management in the federal government has huge responsibilities, can cost an agency millions of unnecessary dollars if it makes mistakes, and its practitioners routinely claim they don’t get the respect they deserve. Yet in my nearly 40 years in the business, the most significant upgrade the field has made to itself that has been made is to change the name of practitioners from “personnel specialists” to “human resources professionals.”

You don’t get to be a professional by declaring yourself to be one. You have to earn it with formal education. Go ask a classifier.

In comparison, look to some of the modern high-tech companies. At Google, for example, in their “People Operations” division, fully 1/3 of their positions are occupied by specialists required to have graduate degrees in organizational psychology or physics. Cutting edge companies like Google see the field of personnel administration to be a science with decisions based on the collection and analysis of large amounts of data, more data than a single specialist could accrue in hundreds of years of experience. For example, do you know the minimum number of interviews required to hire a top-notch performer for your agency? No, you don’t. But the personnel specialists at Google do because they use applied science and data analytics to reach that conclusion.

No disrespect is intended here. The federal government is fortunate to have a number of individuals working in the personnel (or “people”) field who have learned critical thinking and analytical thought through formal education including advanced degrees. A few have developed those skills without formal education. However, until the bar is set across government for a significant minimal educational level for entry into the field, coupled with a requirement for both initial and on-going continuing education in the respective specialities in a personnel function, practitioners will suffer from a lack of respect, supervisors will suffer from a lack of top-notch support relative to people management, and Our Great Country will suffer because the federal government is not as efficient and effective as it could be.

And don’t get me started on attorneys who don’t educate themselves in the field of federal employment law even though they have significant agency responsibilities in the specialty. I can hum this tune forever. Wiley@FELTG.com

Why Do We Suspend Bad Employees?

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By William Wiley

We’re all federal employment law practitioners. Some of us practice as supervisors; some of us practice as advisors to supervisors. As federal employment law practitioners, we don’t just know what to do, we know why we do it (the difference between being a technician and a professional; ask a classifier). With that role in mind, let’s examine the question, “Why do we suspend employees who engage in misconduct?”

It is generally accepted that we discipline employees to correct behavior. A psychologist would say that when we deny pay by suspending an employee, we are providing “negative reinforcement” in an attempt to encourage him to obey the rules and thereby avoid future misconduct.

We certainly do not suspend employees for the sheer pleasure of watching them suffer. If your bag is to experience Schadenfreude, don’t do it by disciplining your employees.

OK, so we suspend employees to correct their behavior. But is there a downside to management when we decide to suspend an employee? Sure. Those days the employee is suspended are days of productivity that are lost, that coworkers have to pick up the slack. So we suspend to correct misconduct, but we pay a price in lost productivity when we do it.

Given the cost to management of suspending an employee, we should look to the least costly suspension that accomplishes the objective of correcting the misconduct. As far as we know, there’s no official limit as to how long an employee can be suspended in the federal government. However, it’s fair to say that the rare outside examples are in the 90-day range.

Next, we look to see if there’s anything that makes longer suspensions more expensive to management than shorter suspensions, aside from the degree of productivity loss that comes from any suspension. And lo and behold, we find that Congress has built into the law a tremendous cost increase as suspensions get longer. 5 USC Chapter 75 (adverse actions) tells us that if an agency suspends an employee up to 14 days (10 work days; generally a pay period), the employee can challenge the merits of the suspension within the agency, but not beyond. However, if an agency suspends an employee for more than 14 days, the employee can challenge the merits of the suspension outside of the agency to the US Merit Systems Protection Board. And as every practitioner knows, a right to appeal to MSPB gives the employee a full blown hearing with discovery (depositions, interrogatories, document production into the millions of pages), an appeal to the three Board members, an appeal to the Federal Circuit, and even a potential appeal to the Supremes.

Several years ago, GAO estimated that it cost the government about $100,000 to defend an agency if an individual filed an MSPB appeal. And that was just through the hearing level. Add to that the cost of defending a long suspension beyond the hearing level, plus the one in four possibility that the agency will lose and have to pay back pay and attorney fees (add in there an expense factor for damages in some cases), and you have yourself a bucket load of potential expense.

I have no problem with high cost. When the Porsche dealer told me that the turbo would add $30,000 to the price of my new 911, I considered that the extra expense would let me get from zero to sixty 8/10 of a second faster, and realized that the extra speed was clearly worth the additional thirty-grand. Others might have chosen the standard model, but it’s my money and I get to decide what’s of value to me.

So let’s look at the value of suspensions of different lengths. Remember, we suspend to correct behavior, not for the enjoyment of punishing someone. Is there any research that shows that a suspension of more than 14 days is more likely to correct behavior than a suspension of 14 days?

No. The Porsche will go faster with the turbo, but there are no studies, inside or outside of government, that show that a longer suspension is more likely to correct misbehavior than would a shorter suspension.

Let’s look at where all of this analyzing leaves us:

  • Longer suspensions (over 14 days) are no more likely to correct misconduct than are shorter suspensions.
  • Long suspensions are potentially more expensive than are short suspensions by a significant factor.
  • Therefore, why would anyone with a scintilla of judgment ever suspend for more than 14 days?

Answer: Beats me.

I once had an attorney who wanted to argue this point say that since MSPB mitigates to 30 and 45 day suspensions, they must be good for an agency. No, they must not. Keep in mind, MSPB is not responsible for an efficient government; the employing agency is. MSPB sets the outer limits; it doesn’t say what the actual decision should be. The speed limit on the Beltway may be 65 MPH, but that doesn’t mean you have to drive that speed in the rain, at night, in heavy traffic. Although the Board might mitigate to a long suspension, that mitigation is always characterized as the “maximum reasonable” penalty, not the “appropriate” penalty. And guess who gets to decide what an “appropriate” suspension is?

Your agency managers do.

If I were in a policy-setting position within an agency, I would set a policy that we don’t do suspensions of more than 14 days. Period. If the employee warrants discipline beyond 14 days, he gets removed. The associated costs to the government of a long suspension simply are not worth the zero added value we get.

Hey, it’s your money. You get to decide what’s of value to you. Wiley@FELTG.com .

A Chance to Do the Right Thing

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By William Wiley

If you know a bit about emergency room medicine (or, heart attacks), you may have heard of “the golden hour.” That’s the critical time period that begins with the onset of a heart attack. The decisions made and the care received during this first hour may determine the quality of all the remaining hours of the life of the patient.

Well, we may this week have begun to see the “golden hour” for the life of the Merit Systems Protection Board. On March 1, 2016, at midnight, Susan Tsui Grundmann completed her term of service as the Board’s Chairman, having begun this odyssey on November 12, 2009.

During that time, the Board endured one of the major challenges of its existence: the processing of thousands of (unnecessary) appeals of furloughs caused by the Stupid Sequestration in 2013. From my view, the credit for handling that mess flows directly to the regional directors and administrative judges who worked day and night to provide fair and expedient hearings and decisions for the individuals who appealed their furloughs. That hard work occurred under the leadership of Chairman Grundmann, and she deserves significant credit for that accomplishment.

However, with credit comes responsibility. And there are decisions for which Chairman Grundmann has responsibility that had, have had, or will have a significant (though unintended) adverse effect on the civil service far beyond the resolution of the sequestration furlough appeals:

  • The Board has ruled, over the objection of the current Member Mark Robbins, that federal agencies must administer essentially identical discipline for similar misconduct throughout an agency throughout the world. The result has been that agencies today are more likely to remove employees rather than show mercy out of fear that implementing a penalty less than removal will lower the bar for all future similar misconduct within the agency. As importantly, the other major adverse result is that an appellant who otherwise may be guilty as sin will have his removal penalty reduced or set aside if anyone else anywhere in the agency has ever engaged in similar misconduct and was not removed. This philosophical change has been the singular most problematic series of decisions issued by the Board in my 40-year career. Woebcke v. DHS, 2010 MSPB 85, Lewis v. DVA, 2010 MSPB 98, and Villada v. USPS, 2010 MSPB 232, aka “The Terrible Trilogy.”
  • Although recently overturned by the Federal Circuit Court of Appeals, the Board held for a period of time that a federal employee could not be reassigned geographically if she did not want to be reassigned. I know; I know. The holding was couched in the language of “the efficiency of the service,” but the result was the same. If an employee refused a reassignment, and it would cost the agency more to fire the employee for being insubordinate than it would to leave the employee in place, the “efficiency of the service” concept mandated that the employee be allowed to remain in the preferred position even though the agency had rightfully decided that the employee’s services could be better utilized in another location. In its reversal, the court stated that the Board “is not empowered to reject controlling law.” Further, “The Board erred as a matter of law in abandoning the two step approach” previously set forth by the court. Cobert [OPM] v. Miller, Fed. Cir. No. 2014 (September 2, 2015). Sadly, the rejection of controlling law has been a characteristic of a number of decisions issued under the leadership of the current Chairman.
  • In reference to the selection of an appropriate penalty, in the seminal case of Curtis Douglas, MSPB ruled that “the Board’s function is not to displace management’s responsibility but to assure that managerial judgment has been properly exercised within tolerable limits of reasonableness.” Douglas v. Veterans Administration, 5 MSPR 280 (1981). In interpreting 38 U.S.C. § 713 (the new legislation that applies to SES removals at DVA), the Board concluded that the efficiency of the service standard and Douglas do not apply, and that the express statutory language creates a rebuttable presumption in favor of the agency’s discretion to select the appropriate penalty. 79 Fed. Reg. 63031, 63032 (October 22, 2014). In other words, it should be even harder for the Board to find a penalty to be unreasonable in a DVA SES removal/demotion action than it would be under the significantly deferential standard of Douglas.

Yeah, well tell that to Deputy Secretary Sloan Gibson of the Department of Veterans Affairs. In decisions issued this year, the Board’s judges, applying the recent precedence established by the Grundmann-Board, while sustaining the charge brought against the appellants, the senior judges assigned to these cases set aside the demotions and removals of three senior executives because the judges disagreed with the managerial judgment in the case: “I do not find these [distinctions made by Deputy Secretary Gibson] are meaningful distinctions.” Rubens v. DVA, PH-0752-16-0151-J-1 (February 1, 2016); “Deputy Secretary Gibson … stated [a co-worker’s conduct] that would go to lacking sound judgment is different. I do not see it as different,” and “Deputy Secretary Gibson testified that he had no intent to discipline [appellant’s co-worker] because [the co-worker] did not receive [$274,019.12 in] relocation benefits. I do not find that these are meaningful distinctions. First, although the she did not relocate, [the co-worker] had a sizable pay raise to lose [of $18,000 per annum].” Graves v. DVA, CH-0707-16-0180-J-1 (January 29, 2016); “In his decision letter, Deputy Secretary Gibson indicated that he considered the appellant’s response to the charge. However, … Deputy Secretary Gibson’s decision letter did not [specifically enumerate the mitigating factors in the appellant’s response].”  “The record does not reflect as simple, obvious, or dire a situation as [Deputy Secretary Gibson] has presented. … I find that the facts and circumstances as presented by the record before me demonstrate that it is unreasonable to remove an employee who has very positively contributed to the agency for more than 42 years for this one offense.” Weiss v. DVA, NY-0707-16-1049-J-1 (February16, 2016).

This SES/DVA series of agency-adverse decisions has had such a negative effect that the Secretary of DVA is in the process of asking Congress to exclude all of his SES discipline from review by MSPB. And as we have predicted here many times, soon it will be obvious that if it’s good enough for those DVA SESers to be exclude from the Board’s jurisdiction, it’ll be good enough for the non-SES contingency at DVA. And eventually, if it’s good enough for DVA, why not DoD? Or, DHS? Or, all the other federal agencies who do important government work as does DVA? The Board’s actions these past five years have pushed us to the brink of losing our civil service protections, the ones we’ve had since the Lloyd-La Follette Act of 1912.

There are other matters that define the past five years at the Board under Chairman Grundmann: appellate level backlog of cases at headquarters, the time and staff necessary to begin issuing non-precedential decisions, and the finding last year by an administrative law judge that top leadership at MSPB reprised against one of its own senior attorneys for whistleblowing. With that noted, the case law direction described above has the greater potential for causing long-lasting difficulties within the civil service, for civil service management and employees.

So how’s all of this related to having a heart attack? Simple, if you think about it. Digest these facts for a few minutes:

  1. Chairman Grundmann’s term ended at midnight on March 1. She is now in a holdover position, able to remain as Board Chairman until March 1, 2017.
  2. Prior to today, President Obama could not replace her. Now he can.
  3. If the White House does not replace her, she becomes a political pumpkin this time next year, unable to remain at the Board.
  4. MSPB has a vacancy. It today has only two Board members rather than the three envisioned by statute.
  5. Assuming that the Republican Senate does not approve the currently nominated Democratic replacement to fill the Board’s vacancy, and assuming that Chairman Grundmann holds over to March 2017, our new President, ___________ (fill in the blank with your prediction), within not quite six weeks of taking office, will be confronted with a one-membered Board that cannot issue decisions because it lacks a quorum.

Hence, a “golden hour.” Actually, a golden year: a period of time in which the White House can act to replace Chairman Grundmann, thereby foreclosing the probable reality that MSPB will cease to function about this time next year, the federal agency equivalent of having a heart attack. And the way to do it, in case anyone at the White House needs advice on this, is to send a nominee to the Senate that has a good chance of being approved, someone who can serve as a healing force rather than as a divider of employees-against-management. As my friend and occasional protagonist, Peter Broida, has said, the Board was created to uphold management’s actions. That’s because agency managers should NEVER fire someone who doesn’t deserve it. If agencies always did it right, the Board would never set aside or mitigate a penalty.

But as recently reported by Chairman Grundmann, in her defense of the reversal of the DVA SES actions, MSPB affirms agency removals 75 to 80% of the time. Although put forth as an indicator of the Board’s neutrality, after 40 years of law-making, to an informed reader that statistic is instead an indicator of the very problem the Board is causing.

We are in desperate times (review the results of the Super Tuesday vote if you doubt me). We need a solid, consistent, deferential approach to the serious adverse actions taken by senior federal managers. MSPB is the only game in town that can take us in that direction. Hopefully, the White House and the Senate can see that and thereby act in cooperation to give us immediately new Board leadership that will take us in a positive direction, away from the brink of civil service collapse and toward a government workforce that is accountable to we, the people. Wiley@FELTG.com