I Can’t Keep Up with this Stuff

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By William Wiley, July 19, 2018

Recently, you readers got an article from us (me) here at FELTG that purported to describe the MERIT Act that is moving through Congress. Well, as it turns out, it’s moving faster than I can keep up with. Thanks to a heads-up email from a very important reader, we now know that our article described an earlier version of the bill that was subsequently amended.

The most recent version of the bill contains the following significant changes:

Current Law MERIT Act Changes Original MERIT Act Changes Now
30-day minimum notice period prior to a removal. This means that the agency has to keep a bad employee on the payroll at least 30 days after giving the employee a notice that his removal is being proposed. 7-day minimum; 21-day maximum notice period. The period of advance notice of proposed action is reduced to 15 business days. The period of time in which an employee has to respond to a notice of proposed action is reduced to no more than 7 business days. This actually increases the employee’s response period by two days from the current seven calendar days. It reduces the overall notice period from 30 days of pay to 19 days of pay.
30-day maximum time period to file an appeal of a removal to MSPB. 7-day maximum period of time to file an MSPB appeal. The appeal must be made not later than 10 business days after the adverse action is effective. That’s 12 calendar days, for those of you used to counting days that way, down from the current 30; less time to find a representative and draft an appeal.
A goal of 120 days for the MSPB administrative judge to issue a decision on a removal appeal. A firm 30 days for the MSPB administrative judge to issue a decision. No time limits on the Board’s judge to make a decision.
The Board can stay a removal if it believes that whistleblower reprisal might have occurred. No more whistleblower stays. Stays of whistleblower reprisal claims are OK.

If you think that these changes are significant, get a load of these:

  • The ability to use demonstration periods and to remove employees for failing performance during the demonstration period is repealed (5 USC Section 4303). No more PIPs, ODAPS, or any other opportunity to demonstrate acceptable performance.
  • Unionized employees can no longer grieve and arbitrate removals, long suspensions, demotions, RIFs, or furloughs greater than 30 days.
  • Furloughs of 14 days or fewer may no longer be appealed to MSPB.
  • Demoted SESers for poor performance can no longer retain the pay of the higher-level position.
  • SESers may be suspended for fewer than 15 days.
  • Employees who are removed or proposed to be removed for committing a felony will cease to accrue time credit for an annuity during the period the felonious misconduct occurred. Not sure how this will be applied as sometimes it takes just a few minutes to commit a felony.
  • Agencies may recoup award, relocation, recruitment, and retention monies paid to an employee if the agency subsequently determines that the employee engaged in misconduct or unacceptable performance prior to the payment.
  • Probationary periods are to be extended from one to two years.

In addition to the MERIT Act, HR 559, the House Oversight Committee this week also voted out HR 6391. Add the following potential changes to your to-think-about list:

  • Individuals who appeal their adverse actions to MSPB will have to pay a filing fee, refundable if the appeal is successful. MSPB will set the fee amount, to be no more than half of what a filing fee is in district court (currently that would be half of about 50 bucks).
  • The Board can mitigate a removal to a suspension or less only if the removal is so disproportionate as to be wholly without justification. Now, the agency has to prove that the penalty is within the range of reasonableness by a preponderance of the evidence.
  • The Board may grant summary judgment motions and decide the appeal without a hearing. Now, the MSPB judge is obligated to provide the employee a hearing if he asks for one.
  • Appellants no longer have an unfettered right to a hearing on appeal even without a summary judgment motion.
  • Board members can be reappointed once their terms expire. This has always been the case at FLRA and EEOC, but not before at MSPB.

Whew. if you are not blown away by these changes, you must be highly medicated. Some changes would be effective within 90 days of the day the bill becomes law, others have a one-year date for implementation. There are other parts of the pending acts that address secondary issues, but this Executive Summary captures most of the issues you need to know about now.

I am reminded of a day in the fall of 1978 when, as a young HR lad, I sat in on a staff meeting in the civilian personnel office where I had been employed for just over a full year. Somebody passed out copies of the Civil Service Reform Act of 1978 and the attendees all began to discuss it. I, naively, said, “Hey, is this a big deal? Does it really matter that we just got a new civil service law? Doesn’t this kind of thing happen all the time?” Over the ensuing laughter, I was quickly informed that, yes, Virginia, it is a big deal (don’t know why they called me “Virginia”). When Congress makes significant changes to civil service law, the whole government catches its breath.

We, the members of the civil service law profession, just caught our collective breath. And, we should each hold onto it until we see what comes out of the Senate relative to these bills. Or, we faint, whichever comes first. Buckle up, kids; the ride, she will be bumpy. Wiley@FELTG.com 

Don’t Say We Didn’t Warn You; the End Times are Upon Us

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By William Wiley, July 18, 2018

We have been shouting from the pages of our articles and in our classroom seminars (and webinars) that because we are not doing a good job of holding employees accountable, we are on the verge of losing our federal civil service. We leave it up to you, the informed reader, as to whether that is a good thing or a bad thing. But it is a thing nonetheless. And the verge just got a full step closer.

About 18 months ago, HR-559 was introduced by a bunch of Congresspeople in the House of Representatives. If you know how Congress works, members introduce a lot of bills to make sure, in part, that they have something to brag about when they communicate with their constituents. Now, most of those bills never make it to first base. They are assigned to a committee, and the committee discretely fails to act on the submission. Congressional representatives get points for the introduction, and that’s about it. If a bill is ever voted out of a committee, that’s huge, because now it goes to the floor for a vote, a vote that usually agrees with the recommendation of the committee, especially if the bill has many cosponsors. Given that this particular bill sat in committee for a year-and-a-half suggested that it would die the fate of most pieces of proposed legislation, and just fade away.

Well, well, well. Guess who just made it to first base? That’s right, HR-559, the MERIT Act of 2017, was voted out of committee recently. With 55 cosponsors (all Republicans, if you care), it now stands an excellent chance of being adopted by the entire House. That would be second base. Then, it goes to committee in the Senate where historically many House-passed pieces of legislation go to die. However, this year is different from many others:

  • The Senate has signaled that it is geared up to pass legislation and confirm Presidential nominations by significantly shortening its usual month-long August recess.
  • In case you haven’t noticed, there’s a midterm election coming up in November. Look at your three-part government-issued calendar hanging on your wall. That’s just a couple or three pages from now.
  • Congressional Members and Senators love to take recently-passed legislation to the voters near elections to show them that they take governing seriously. What could be more serious governing than creating a law to make it easier to get rid of bad government workers? You know, those federal employees that the public, in general, thinks are over-paid and under-worked?
  • Republicans who support the President, according to the Washington Post, are winning elections over Republicans who do not.
  • The President, in his State of the Union speech, said he wants the law changed to make it easier to fire federal civil servants.

Being a betting person, if I had the opportunity, I would bet that this bill is going to make it to third base (committee passage in the Senate), and then to home plate (adoption by the full Senate) before the end of the year. With that in mind, let’s take a look at how our civil service will change if the MERIT Act indeed does become law:

Current Law MERIT Act changes
30-day minimum notice period prior to a removal. This means that the agency has to keep a bad employee on the payroll at least 30 days after giving the employee a notice that his removal is being proposed. Some agencies have kept employees on the payroll for more than a year after issuing a proposal. 7-day minimum; 21-day maximum notice period. No more extended pay period beyond the removal being proposed. Not only does this change reduce the pay to the employee, it also restricts the amount of time he and his representative have to prepare a response to the proposal.
30-day maximum time period to file an appeal of a removal to MSPB. 7-day maximum period of time to file an MSPB appeal. Less time for the fired employee to find a representative. Less time for the representative to draft an appeal.
A goal of 120 days for the MSPB administrative judge to issue a decision on a removal appeal. A few AJ decisions take many months beyond this goal because of complexity and workload. A firm 30 days for the MSPB administrative judge to issue a decision. If the judge exceeds this time limit, the removal stands. Also, MSPB has to report the failure to Congress where the judge’s next birthday will probably be cancelled.
The Board can stay a removal if it believes that whistleblower reprisal might have occurred. No more whistleblower stays. There really weren’t many of these anyway, but man-oh-man, were they a poke in the eye when they occurred.
Each fact and the ultimate justification for a removal must be supported by a preponderance of the evidence. This means that the firing agency must present evidence to MSPB that it is more likely than not that the removal is justified; i.e., that removal is probably warranted. This is a significantly lower burden of proof than the beyond-a-reasonable-doubt burden required to convict someone of a crime. A removal must be supported by substantial evidence, a lower burden than preponderance. The agency must prove that removal might be warranted, not that it is probably warranted. The Supreme Court has described this evidence burden as a grain more than a scintilla. Most cases we lose are not lost for lack of proof; most are lost for using bad procedures. However, this will help with those where proof is controlling. *

* Here’s an example of how the lower burden of proof most likely would have helped an agency. Several months ago, our friends at the Forest Service fired an employee for engaging in unwelcome sexual conduct after hours in his government-provided housing unit on agency property. The judge who heard the appeal set it aside, reasoning that the agency had not proven that there “probably” is a nexus between the off-duty conduct and his agency employment. In my opinion, and it is worth exactly what you are paying for it, a judge would be hard-pressed to conclude that the agency failed to prove by at least substantial evidence that there “might be” a nexus. Those grains and scintillas are mighty tiny, you know: a jot, a whit, an iota, a scrap, an itty-bitty trace.

So, let’s put all this into perspective. If the MERIT Act becomes law, we still have a protected civil service. However, if in today’s world you believe that on a scale of 1-10, the effort necessary to fire a bad federal employee is about an 8, the level of difficulty under the MERIT Act now drops it to about 2-3. We can still lose cases on appeal if we, for example, violate the employee’s due process rights and the judge acts quickly enough to reverse the removal. The act does not go as far as the law change over at the Department of Veterans Affairs last year where there is now no mitigation of the penalty. Under the MERIT Act, agencies will still need to do a Douglas Factor analysis. Nor does the act take away MSPB appeal rights altogether, as was done to SESers at VA. The core rights of federal employees to be treated fairly remain in place. However, the mechanisms by which an employee can exercise those rights will be significantly restricted.

Keep in mind that this is still only a bill. The Senate is known for taking the edge off of House-passed legislation. Your guess is as good as anyone else’s as to what sausage will come out the other end of this legislating process. However, if the MERIT Act becomes law, whatever you do in the civil service will change significantly. And, it’s because in large part we have not effectively used the existing laws to hold bad employees accountable. Keep THAT in mind as well as you move toward implementing whatever it is that finally comes out of Congress.

Wiley@FELTG.com

Here Comes OPM with Guidance Relative to the New Executive Orders

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By William Wiley, July 18, 2018

So many practitioners have wondered just what the President’s Executive Orders issued May 25 actually mean. We’ve received hundreds of questions here at FELTG, and we’re just a little training company who contracts occasionally with federal agencies. I can’t imagine what level of questioning there has been within the Executive Branch where answers actually carry official weight.

We were all excited to see that OPM, as the leader in human resources management in the federal government, recently (July 5) issued several pages of guidance as to how to implement the EOs. That is, until we read the guidance and then came away with that same empty feeling that comes from eating kale for dinner. Remember that lady years ago in the commercial who wondered, “Where’s the beef!?!” Yeah, I know exactly what she feels like.

First, the general shortcomings in OPM’s “Memorandum for Heads of Executive Departments and Agencies.” Lots of highfalutin words that repeat and paraphrase the EOs, but add little substance that actually helps those of us out here on the front lines trying to make government work. For example, the guidance spends a lot of time talking about the new requirements for reports and team participation. Yes, that’s important stuff. But if I’m a GS-12 Labor Relations Specialist servicing an HHS Indian Health Service clinic in South Dakota, and tomorrow I have to meet with the ticked-off union President to tell her what we’re going to do with the mandates in the EOs, I get little help from the guidance. In fact, on a couple of tough issues, the guidance says that if I have any questions, I should refer them to a local labor relations advisor. Heck, I AM the local labor relations advisor. I’m the one who needs more guidance.

Secondly, and I know this is picky, but the guidance is written by someone who has spent waaaay too much time writing government bureaucratese. Too many vague words written with an undeserved degree of officialness, with no practical guidance about how to go forward. For example, I ran into an abominable sentence with 65 words in it. Come to our legal writing seminars here at FELTG and learn how to write shorter sentences that are easier to understand. I hate officious government bureaucratese. And, so do you.

Third, the guidance from OPM is just flat out wrong in a couple of areas. For example:

  • The guidance says that agencies are required to use FMCS and FSIP when trying to implement the changes required by the EOs. Well, I can’t find that requirement in law. If an agency wants to make a change, and after good faith bargaining it reaches an impasse with the union, the agency is free to notify the union that it will implement its last final offer by some date in the future without invoking either FMCS or FSIP. When that is done, it is then up to the union to either make new proposals to break the impasse or to invoke FMCS and FSIP. There is no statutory obligation for the agency to invoke the impasse procedures.
  • Separately, when discussing the EO that makes it clear that progressive discipline is not a prerequisite to firing a bad federal employee, it adds the additional language that “consideration of progressive discipline is not … permitted when administering disciplinary action.” None of the EOs say that, and if they did, it would be inconsistent with 36 years of law implementing the Douglas factors in penalty assessment. Of course, we have to consider whether the employee has been previously disciplined. The EOs simply say that we are not bound to something less than removal if the employee has not been disciplined before.

Finally, and this is the big one if you’re working in a unionized organization, OPM’s guidance – without citing to any authority for the proposition – concludes that the EOs carry the weight of a government-wide regulation EVEN THOUGH there is good authority that says that an EO carries the weight of law. Here’s the 30-year old authority for the position that these EOs carry the weight of non-negotiable laws:

“As to whether Executive Order 12564 [an EO dealing with drug testing] constitutes law or Government-wide regulation within the meaning of section 7117(a)(1) of the Statute, we find that it has the force and effect of law. Courts consistently have held that executive orders issued pursuant to statutory authority are to be accorded the force and effect given to a law enacted by Congress. Executive Order 12564 was issued pursuant to the President’s statutory authority to regulate the civil service.” NTEU & Army, 30 FLRA 1046 (1988). [The President’s statutory authority to regulate the civil service comes from 5 USC 301 and 302, for those of you new to the business.]

So, what difference does it make if the EOs carry the weight of law or instead the weight of government-wide regulation? Well, it’s a HUGE difference:

  • If the EOs are effectively law, they are controlling NOW without bargaining with the union. We just tell the union that there’s been a change in the law and wait for the union to propose impact and implementation proposals.
  • If the EOs are effectively government-wide regulations, then we CANNOT implement them immediately. Instead we have to wait until to either a) the existing CBA expires, or b) the existing CBA provides for a reopener when EOs are issued or at the midterm. Once the contract expires or is reopened, we can unilaterally implement the government-wide rules at that time, but not before.

Under 5 USC section 7117, government-wide rules and regulations bar the negotiation of union proposals that conflict with them. The only limitation on the superiority of government-wide rules or regulations is found at 5 USC 7116(a)(7). That section makes it an unfair labor practice for an agency “to enforce any rule or regulation … which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed.” Therefore, a government-wide rule is not controlling if there is a conflicting provision of a CBA that was in effect before the date the rule was issued.

I’m trying not to be too aggressive with these things, but here’s my reasoning regarding effective dates of the mandates in the EOs should anyone ask:

  1. OPM and other agencies trying to interpret the EOs argue for maintaining the status quo until an opener occurs in the contract because the EOs are mere government-wide regulations. In addition, some rely on this language for support: “Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order.”
  2. Two sentences later, the EO says:

(c)  Nothing in this order shall be construed to impair or otherwise affect the authority granted by law to an executive department or agency, or the head thereof.

(d)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

  1. 5 USC 7103(a)(14)(c) says that management does not need to bargain “to the extent such matters are specifically provided for by Federal statute.”

By case law, FLRA has equated an Executive Order with a law (e.g., a statute) when it comes to negotiability (NTEU & Army, above). It is ridiculous to the point of absurdity to think that a CBA could contain a provision that is inconsistent with law. For example, if Congress were to pass a law tomorrow that prohibited flexiplace, every flexiplace arrangement in the government, including those contained within a CBA, would become invalid immediately. It is inconceivable that the authority in a union contract could be superior to the authority of a federal law.

The two sentences quoted above give management the authority to conform to the law and say that the EO is to be implemented consistent with the law. The law says that executive orders are non-negotiable because they carry the weight of law. Now. They are not negotiable.

I’ve heard that some agency guidance argues that the new mandates contained within the EOs cannot be implemented now because of this language:

Sec. 9.  General Provisions.  (a)   Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order.

Regarding the no-abrogation language, the general rule is that management’s decision not to be bound by a CBA provision in conflict with law does not constitute a repudiation of the parties’ agreement. See Office of the Adjutant Gen., Missouri NG and ACT Show-Me Air #93 and Army #94 Chapters, 58 FLRA 418 (2003). If an EO has the effect of law for bargaining purposes, we have a law. If there’s a controlling law, there’s no repudiation. If there’s no repudiation, there’s no abrogation.

Look. Here at FELTG, we’re not saying that this is the right answer. What we ARE saying is that this appears to us to be a legally defensible approach, that the mandatory portions of the EOs are effective immediately, just like the provisions of a new federal statute would be effective immediately, regardless of contrary language in a CBA.

I don’t know President Trump personally. I don’t work for him, and all I know is what I read in the papers. Perhaps I’m mistaken, but he seems to be the kind of person who wants things done when he says he wants them done. On May 25, he laid out some significant restrictions that he believed should be applied to labor relations in the federal government. If I worked for him, I would be doing everything I could to implement those mandates as fast as I could, using every legal approach I could implement with a straight face until someone official told me I was wrong. Of course, that’s just me, and I admit that I am a wimp and that I scare easily. Those who are willing to tell him “no” clearly have greater fortitude than do I. Wiley@FELTG.com

Unions are Like Salt

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By William Wiley, July 12, 2018

To me, Federal unions are like salt. A bit is good; too much spoils the whole dish.

President Trump was probably thinking about that when he issued his two union-limiting Executive Orders recently. He didn’t issue an EO banning union activity in any large segments of federal agencies as some would argue he could do by using his statutory authority at 5 USC 7103(b)(1). He didn’t say that unions do bad things. Instead, he primarily said that union activity costs too much.

If you understand collective bargaining in the civil service, you realize that President Trump was being critical of how agency management in the past had been, in his opinion, too generous with unions when negotiating working conditions. For example, his EOs restrict the amount of time an individual employee can devote to union activities while being paid his regular salary (a concept known as “official time,” or in the language of the EO, “taxpayer-funded union time”). No doubt he was responding to the situation a number of agencies have where some federal employees are paid their regular salaries for performing union work 100% of the time. Under the new EOs, individual employees serving as union officials will be limited to no more than 25% of their paid work time being official paid union time. That means that 75% of the year, the employee will have to perform the job he was hired to do, if he wants to get paid.

So how did we get into a situation in which some federal employees are paid their regular salaries for doing union work 100% of the time? Was there a mandate from Congress that this be done? Did the Federal Labor Relations Authority somehow require that this occur? Do the union negotiators have some sort of magical power by which they gave themselves 100% official time?

Nope. Those things didn’t happen. The way that some union officials got the entitlement to get paid their regular government salary for doing full-time union work was that agency management negotiators agreed to it through collective bargaining. Whether or not we agree with the President’s position that individual employees should be performing their regular government duties at least 75% of the time, we have to acknowledge that it’s not solely the unions’ fault that the current situation occurred. Agency management negotiators who signed off on collective bargaining agreements that allow employees to use large amounts of official time are as much to blame as anyone. The new EOs are an attempt to roll back the previous generous management grants of official time to something the President thinks is more reasonable.

There has been a lot in the press about how the EOs’ limiting of official time violates the law and is fundamentally unfair. Unions do important things: e.g., protect employee rights, such as the right to be free of civil rights discrimination and the right to obtain employee benefits like child care facilities. Unions represent the interests of employees in the many workplace decisions that would otherwise be solely left to management to decide, such as flextime rules. Unions need official time for their representatives to do these things.

Well, not according to Congress. When the Civil Service Reform Act of 1978 was drafted, the bill indeed did mandate official time for some union activities, specifically bargaining and interacting with FLRA. 5 USC 7131. However, it specifically DID NOT mandate official time for everything else that union officials need to do. And those “other” activities take up the bulk of official time used today by union officials. Instead, it left the amount of official time for these activities up to the collective bargaining process, to a mutual agreement between union and management negotiators as to what is “reasonable and necessary” official time. One could argue that if these other duties were so important and fundamental to a union’s right to exist, Congress would have mandated that a specific amount of official time be provided to perform those duties. It did not. Therefore, the President’s actions designed to limit official time cannot be said to completely abrogate a union’s ability to provide services to bargaining unit employees, whether we agree with those limits or not.

It’s all about the $$$. Union officials are free under the EOs to perform all the duties they now perform on official time; they just don’t all get paid for all of that time. If the President had issued orders to prohibit union representation of BU employees, we would then have an illegal action. Instead, under the EOs, union officials can still represent. They can be paid for part of that time by the agency; otherwise they must do so after hours or on annual leave or LWOP if they can cut a deal with the agency to use leave for that purpose. In addition, significant time for representing employees must now be spread out among more than one union official. For example, instead of one union official spending 100% of her workday performing union work, she must now spend no more than 25% of her work life on union activities, either on leave or official time. The remainder of union work to be performed during the workday must now be spread among other union officials, all of which must perform their regular government duties at least 75% of the time.

The President is spreading the salt among several individuals. You and I may disagree that this is how unions should be allowed to use official time, or you may think that it is unreasonable to require individuals to either cut short the services they provide as union representatives or provide services on their own time. But our disagreement does not make the EOs unlawful. There are a lot of legal ways to approach the process of collective bargaining. The President has told us how he thinks it should be done. Wiley@FELTG.com 

EOs: Effective Now or Effective Later?

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By William Wiley, June 26, 2018

So much has been left to interpretation in the three Executive Orders issued by The White House on May 25. That’s just the way it is when something is issued that is as significant and specific as are the changes mandated by the President. Here at FELTG, we’ve been doing a lot of thinking and responding to questions and comments from the FELTG-Nation regarding the meaning of these things. We’ve even resorted to Deep Thoughts to try to figure them out, and deep thinking is not necessarily our strongest suit. With that said, here’s where our evolving EO-interpretation is today:

Effective Date:  There’s a bedrock principle in our civil society that bills become laws the moment they are signed by the President (or a Presidential veto is overridden on Capitol Hill). That protects our citizens from the retroactive application of a law to conduct that was legal prior to the law, and binds us all to the requirements of the law from the date of signing forward. The only main exception to this rule is if the law itself sets an effective date somewhere in the future. The Civil Service Reform Act of 1978 is a relevant example. Although it was signed by President Carter in October 1978, it was written so that it was not effective until 90 days later.

There’s no reason that this timing principle would not apply to an Executive Order. These three EOs were signed by the President on May 25, 2018. They have been effective since that date as there was nothing in the EOs that set a later overall date. Therefore, if you have been giving unacceptably performing employees generally more than 30 days to demonstrate whether they can perform in an acceptable manner since that date (i.e., you issued a 90-day PIP), you have violated the accountability EO.

“But, Bill. Doesn’t the EO say something about 45 days? Don’t we have until July 9 to put all of this into place?” Well, not exactly. The EO says that agencies have until July 9 to adapt their discipline and performance instructions to the requirements of the accountability EO. To my read, that doesn’t mean that agencies are not bound before then. It just gives you six weeks to put the requirements into writing.

Mandates or Objectives:  I’ve heard a number of representatives on both the management and the union side say that the EOs simply lay out bargaining objectives, that there really are no guarantees that the requirements of the EOs will survive the negotiation process and become part of a collective bargaining agreement (CBA). I’ve even had a couple of interesting discussions with practitioners who take the position that the EOs mandate that nothing in the Orders abrogates current CBA provisions that are contra to the EOs; therefore, they cannot be effective immediately.

If this objectives-only approach is taken by an agency, many of the requirements of the EO may not be implemented for years, maybe never if the current CBA is not renegotiated, but is simply extended into the future. Considering the EOs’ requirements to be opening positions for an agency to take in negotiations, rather than policies to be implemented now, prevents the swift implementation of the President’s instructions.

As we’ve spoken about in our webinars analyzing the EOs (there’s still space in tomorrow’s session), in our opinion there is a defensible argument that the mandates of the EOs are effective now and need not be subjected to negotiations. It is black letter law in our business that a CBA can not contain provisions inconsistent with a law or a government-wide regulation. Almost 30 years ago, FLRA held that an EO carries the same weight as a law for the purpose of collective bargaining. See NTEU & Army, 30 FLRA 1046 (1988) (Holding that shalls were “legal” mandates).

If an agency were to take this approach, the Big Brains over in the labor relations office should be combing through the EOs looking for mandates (e.g., the shalls) and separating them from the simply desirables (e.g., the endeavors). For every mandate found, the agency should notify the union that you are immediately changing your policy to conform to a new law-like EO, and are accepting any impact and implementation proposals the union might choose to make. As the EOs say, “Nothing in this EO impairs the authority granted by law to an agency head.” By law, an agency head has the authority to implement a law without negotiating the substance of the law with the union.

Enforceability:  Many of you wonderful readers have some Big Decisions to make over the next few days. What do the EOs really say? Is that comma important, or not? Do we really want to upset the union by unilaterally implementing the mandates in the three EOs? What if we resist the EOs and choose not to implement them, for whatever reasons? Who’s going to care?

Oh, I don’t know. Maybe the PRESIDENT OF THE UNITED STATES? Maybe whoever it is who heads up your agency, who works for the President? Please, oh please, invite us to the meeting in which you tell your political overlords that you advise keeping the union officials on full official time out of fear that the union might file an unfair labor practice charge if you unilaterally act to implement the EO and reduce official time use. That meeting, in comparison, will make cage fighting look like an elementary school game of dodgeball.

You probably have noticed that a number of unions have filed lawsuits to prevent the implementation of these EOs. At least one union has asked a court to issue an injunction to stop EO implementation, something courts usually do only then there is the danger of immediate irreparable harm. Well, if these EOs simply laid out bargaining objectives, issues that ultimately would be resolved through the collective bargaining process, there wouldn’t be any immediate harm, would there? Maybe our friends on the union side are onto something.

EOs aren’t like laws that once they are issued become static and open to varying interpretations. These EOs express the wishes of a single President and have his signature at the bottom of each one. If you’re confused as to what they mean, just ask the President. He has a White House Counsel who speaks for him on things legal. He has a Justice Department that implements his legal wishes. He has a Director of OPM who is supposed to understand what the President wants and then implement regulations to carry out those wishes. If you have a telephone, you don’t have to guess at the answers. Call the guy who issued the darned things and ask, “Hey, what’d you mean in that Union Time EO? Are we supposed to implement that puppy immediately or just try to bargain for those restrictions?” Just be sure to phrase your question so that he can respond in 280 characters, or fewer. That will ensure you a speedy response.

So, get busy. And cancel those plans for a big July 4th holiday vacation. If you’re an agency’s employment lawyer or Human Resources specialist, you have precious little time left to do what the President has told you to do.

Or, to tell him you’re not going to do it. Whooo, doggies; I’m going to bring my first aid kit for that meeting. Wiley@FELTG.com

James Comey was not Insubordinate

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By William Wiley, June 19, 2018

More precisely, the 500+ page OIG report issued last week regarding possible misconduct at DoJ does not establish Comey’s “insubordination.” As everyone who has attended the FELTG MSPB Law Week seminar (next offered September 10-14 in Washington, DC) knows, charges of workplace misconduct have specific legal definitions. The various aspects of a charge definition are known as “elements” of the charge. To prove a charge like insubordination, an agency would have to prove all the following elements:

  • The willful and intentional refusal,
  • To obey an authorized order of a superior,
  • Which the superior is entitled to have obeyed.

Redfearn v. Labor, 58 MSPR 307 (1993)

The report concludes that Comey acted in an insubordinate manner when he took it upon himself to release certain information without telling his supervisor about an investigation into Hillary Clinton’s use of a non-government computer for government work. That, indeed, may have been a bad thing to do. Perhaps (and here at FELTG, we have no dog in this fight) what he did demonstrates poor judgment. However, I can find nothing that says his superior, Attorney General Lynch, had ordered him not to do that. In fact, the executive summary of the report states just the opposite:

While Lynch asked Comey what the subject matter of the statement was going to be (Comey told her in response it would be about the Midyear investigation), she did not ask him to tell her what he intended to say about the Midyear investigation. We found that Lynch, having decided not to recuse herself, retained authority over both the final prosecution decision and the Department’s management of the Midyear investigation. As such, we believe she should have instructed Comey to tell her what he intended to say beforehand and should have discussed it with Comey.

The report concludes that Comey’s supervisor made a mistake by not giving him an authorized order to tell her what he was about to do. She most likely would have been entitled to have that order obeyed had she given the order. However, she did not. Based on these facts alone, Comey cannot be held to be insubordinate for failing to obey an order that his superior did not give.

You, our beloved reader, might be sitting there thinking, “Oh, Bill. You’ve gone off the deep end again. This is being very picky about a trivial hair splitting.” Well, Smarty Pants, just try running this series of events past judges at MSPB and see how quickly they set aside your charge of Insubordination. You don’t got no stinkin’ order? Then, you don’t got no stinkin’ insubordination. Black letter law. Case closed; e.g., Redfearn, supra.

Had the DoJ OIG office called us for advice on how to frame Comey’s misconduct (888-at-FELTG; operators are standing by), we would have recommended charging “Lack of Candor.” The elements of that charge are:

  • A failure to disclose something that should have been disclosed
  • To make a given statement accurate and complete.

Hoofman v. Army, 2012 MSPB 107

And according to a recent decision out of the Federal circuit, Lack of Candor must be “knowing” so there’s your third element. Parkinson v. DoJ, 815 F.3d 757 (Fed. Cir. 2016)

That charge squarely places the responsibility on Comey to tell the Attorney General what he was about to say to the press. This way, he is being charged with something he had the obligation to do, not being charged with something based on what his supervisor should have done.

There are references in the DoJ OIG report to “well-established Department policies” that Comey failed to follow. Well, that’s fine. Charge him with not following agency policies. However, failing to abide by agency policies is NOT insubordination.

Which leads us to a final point we have made before in our FELTG articles. Agency OIG offices do hugely important work. They are filled with smart, hard-working investigators and lawyers who are trying to do the right thing. However, with rare exception, they are not filled with civil service law experts. That’s not a problem when they are called upon to investigate suspected criminal misbehavior, as is often the case in OIG investigations. But, when it comes to investigations of workplace misconduct in a federal agency, the world would be a better place, and their work would be more legally precise, if OIGs involved a specialist in civil service law in their report development.

James Comey may have done things he should not have done. We leave those decisions to individuals at higher paygrades than we hold here at FELTG (GS-zeros). However, any GS-5 trainee in human resources who has attended our FELTG seminars will recognize that Comey’s actions cannot be framed as a charge of Insubordination.  Wiley@FELTG.com

Are the New Executive Orders Legal and Do They Require Immediate Changes?

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By William Wiley, June 12, 2018

As most everybody knows by now, last month President Trump issued three Executive Orders aimed at the world of federal civil servants. Here at FELTG, we’ve already published an article on the effect these EOs have on holding employees accountable for poor performance and misconduct. We’ve also described for you the new limitations placed on collective bargaining; changes that reduce the union’s use of official time, the scope of grievance procedures, and the options management can offer to the union during negotiations. Yes, it’s a new world out there these days, whether it’s a “brave” new world is yet to be determined.

In this article, we address a couple of issues related to these EOs:

Legality

At least two federal unions have filed suits in federal court to stop the implementation of the EOs. Although we’ve not seen all the pleadings, we have read what has been reported in the media as the rationales for the objections. With all due respect to our friends and the smart lawyers who are supporting those suits, we don’t see a lot of merit to them. For a lawsuit to be viable, there must be evidence of a breach of a law or contractual agreement. We’ve looked hard, but we just don’t see any of that. For example, one suit was reported as claiming that the EOs violated 5 USC Chapter 43 (performance-based removals) and cited to language alleged to come from that law. Yet when we read the cited reference to the statute, it does not say what the suit claims it says. If these suits are to be successful, it’s going to take some hard work and creative advocacy to get there.

Other arguments advanced by the suits make arguments that do not make much sense. For example, because the law does not set a maximum period of time for a poor performer to demonstrate acceptable performance, it is illegal for the President to set a time limit. Or, because the law provides that official time for union officials to perform union duties can be negotiated, it is illegal for the President to limit how much time can be negotiated. I’m never the smartest lawyer in a room, but I have not seen much so far to support a conclusion that the EOs are illegal.

So far, the unions haven’t filed for a temporary restraining order to prohibit implementation of the EOs. One might think they would do that if they felt they could argue significant irreparable harm.

The more practical front-line issue has to do with the requirements the EOs place on collective bargaining. Several “experts” have been quoted in the media as describing the requirements of the EOs as bargaining “objectives” rather than as Presidential “mandates.” Following that logic, the President can require management bargainers not to provide free office space to unions through collective bargaining, but practically speaking, it will be up to the FMCS/FSIP stages of negotiation as to what will eventually be the language of the CBA. Those who think this way are betting on the actions of FSIP to decide what the federal workplace should look like, not for the President to make those decisions through executive fiat.

Well, here at FELTG, we are placing our bets a bit differently from those experts who represent unions and employees. Here are some well-established legal principles that have been around for 30 years or so that guide collective bargaining in the federal civil service:

  1. A CBA cannot contain a provision inconsistent with federal law. If a union proposes contract language that would provide employees a benefit inconsistent with law, the management response should be, “non-negotiable.” Even if the agency wanted to negotiate something different from law, it cannot do it. It is beyond debate that CBAs cannot be inconsistent with law. 5 USC 7117.
  2. When laws change during the existing term of a CBA, the agency is bound immediately by that law. It may not bargain the law. It must adhere to the new law immediately, with no obligation to refrain from implementing the law until related impact and implementation bargaining is completed. (If these concepts are foreign to you, come to our FLRA Law Week seminar, October 15-19 in Washington, DC. They are as basic as the Earth.)
  3. Many years ago, FLRA ruled that a Presidential Executive Order was equivalent to a law for collective bargaining purposes. NFFE and Army, 30 FLRA 1046 (1988). Although not a heavily litigated issue, this case – unless it is overturned – will be FLRA’s guiding light when it is called upon to adjudicate ULPs related to these new EOs. Although FLRA members cannot be removed from office during the five-year term they are serving, with these EOs they have been publicly put on notice of how the President (the guy who hired them) wants to see collective bargaining work in the civil service.

If we accept that an EO is equivalent to a law, we need to review these EOs closely to parse out what they REQUIRE as compared to what these EOs SUGGEST; the old “shall” vs. “should” analysis. When we do that, here’s a sample of what we come up with as EO mandates:

  • Performance ratings, incentive awards, and recruitment/retention/relocation payments are to be excluded from CBA grievance procedures.
  • Progressive discipline is not required prior to firing an employee.
  • Management must be free to use either Chapter 75 or Chapter 43 to fire a non-performer (If you don’t know what these are COME TO OUR SEMINARS! Ignorance is OK; stupidity is not.).
  • Generally, performance demonstration periods (i.e., PIPs) are to be no longer than 30 days.
  • Clean record agreements can no longer be used to settle cases.
  • Internal agency discipline and performance policies have to be rewritten to conform to the EOs by July 10.
  • No free office space for the union.
  • This is an odd one: Agencies are to “endeavor to exclude” removals from CBA grievance procedures. If the EO had just said “exclude,” that’s an easy-to-apply mandate. However, when it says “endeavor” to exclude, does that mean the agency just has to try – that the outcome of trying is left up to some other process; e.g., collective bargaining? Who knows?
  • Agencies must renegotiate any CBAs in conflict with these EOs.

There’s a bit more about filing reports and acting quickly in response to OPM regulatory changes. There’s also a collection of “shoulds,” things that agencies ought to do, but are not required to do; e.g., limit the notice period of a proposed removal to the statutory minimum of 30 days. When it comes to mandatory collective bargaining to bring existing CBAs into conformance with these new EOs that are equivalent to law, it’s the “shalls” that drive the scope and timing of bargaining.

Most of this has to be implemented by July 9. So, what should you be doing TODAY? Well, you need to approach your to-dos from two different perspectives:

Non-bargaining Unit Changes – All of your discipline and performance instructions should be reviewed in light of the mandates listed above. For example, does your agency policy say that PIPs can be any reasonable length? It should now be rewritten to say that generally, demonstration periods (not improvement periods) are to be no more than 30 days. This is a mandate in the EOs.

What about the non-mandatory shoulds in the Eos? Will you rewrite your discipline instruction to state that, for example, the 30-day notice period for removals will not be extended beyond 30 days? What happens to you if you don’t adopt the shoulds as policy for your agency? Oh, I don’t know. Maybe ask your Secretary how he would like to tell President Trump that you’re rejecting the EO’s suggestions on how these policies are to read. And if you’re going to do that, may we come along to watch? We’d really like to see how the President takes that.

Bargaining Unit Changes – Even though a number of our friends from the union side have opined that these EOs contain, at most, bargaining positions, here at FELTG we think that may not be correct. If an EO carries the weight of law relative to collective bargaining (see NFFE and Army, above), and if agencies must act promptly to bring CBAs into conformance with new laws if they are in conflict, then one might conclude that these EO mandates are now effective and need NOT be bargained. If this is correct, agencies should be amending their CBAs today and inviting unions to initiate I & I bargaining relative to negotiable parts of these changes.

Whooooo, doggies. Is this going to be exciting, or what? Better put a cover over that fan because there’s going to be a lot hitting it.

And we’re not done.

The “Independent” Agencies

If you’re just a regular old agency official, you have your Presidential marching orders. Now get out there and rewrite those instructions and bargain with the unions, as necessary.

But what if you’re senior management in an independent (oversight) agency? We’ve already talked a bit about FLRA’s role and precedence; how about the others?

FSIP – Assuming that parts of these EOs cannot be unilaterally implemented by management and will have to be negotiated with the union, any bargaining impasse that results will have to be resolved by the seven members of the Federal Service Impasses Panel. The Panel members are political appointees, having been appointed by President Trump, and who serve at his pleasure. If they are considering two counter-proposals, one of which embodies the intent of the President’s EOs and the other which does not, how do you think they will rule? Yep, that’s our prediction, as well.

MSPB – Some of the things that the EOs are trying to “fix” are prior declarations in rulings of the US Merit Systems Protection Board. For example, it was in 2010 that MSPB that came up with the stupid Terrible Trilogy comparator employee craziness that said that discipline had to be consistent throughout an agency, not just within the chain of command invoking the discipline. The EOs say that this is no longer the rule, that lesser discipline given to a comparator does not prohibit the removal of a different employee. Unlike the members of FSIP, the Board members do NOT serve at the will of the President. Once sworn in, they can be removed only for inefficiency, neglect of duty, or malfeasance in office, 5 USC 1202(d). Will they conform their decisions to the principles espoused in the EOs? Will the President require that potential nominees promise to do that or he will not nominate them? Will the Senate confirm nominees who have promised the President to conform their decisions to his orders?

Whoooooo, doggies.

So many questions, so many opinions. We admit to not knowing a lot of the answers here at FELTG, but we swear on a stack of CFRs, we will do the best we can to keep you up on changes, suggesting strategies and options for you to consider, and maybe even predicting a few things that eventually will come true. So, pay your FELTG dues, renew your subscription to our newsletter, and buckle your seatbelts. The next several months are definitely going to be a bumpy ride. Wiley@FELTG.com

The New Executive Orders and Labor Relations

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By William Wiley, June 5, 2018

As most of our wonderful readers know by now, on May 25 President Trump issued three executive orders to shake up the civil service. One of them primarily was focused on employee accountability for performance and misconduct. As we wrote in another article, those changes were significant, but well within the range of flexibilities already in the system, and already employed by the more progressive agencies for many years.

The other two executive orders were designed to change the world of labor relations in federal agencies. Although the EOs have been characterized in the media as taking away the “rights” of unionized employees, they actually don’t do that. Instead, they primarily lay out a framework for organizing management proposals once collective bargaining commences. Unions still retain their basic rights under law; the executive orders direct where management is supposed to take a contrary position consistent with an “effective and efficient Government.”

Here are the primary changes:

  • “Official time” is now called “taxpayer-funded union time.”
  • Agencies should eliminate unrestricted grants of taxpayer-funded union time and instead require employees to obtain specific authorization before using it.
  • Agencies should strive for a negotiated union time rate of 1 hour or less (here are FELTG, we don’t know what this means).
  • Employees may not engage in lobbying activities during official time.
  • Union reps must work 75% of the year in their regular jobs.
  • No free use of agency facilities or property by the union.
  • No reimbursement for expenses incurred performing union activities.
  • No official time to pursue union grievances.
  • OK to use official time to prepare grievances brought by an employee or to appear as a witness.
  • Agencies that form part of an effective and efficient Government should not take more than a year to renegotiate CBAs.
  • The parties should adhere to negotiating period of 6 weeks or less to achieve ground rules, and a negotiating period of between 4 and 6 months for a term CBA under those ground rules.
  • The agency head shall notify the President of any negotiations that last longer than 9 months.
  • A Labor Relations Group shall consist of the OPM Director and staff and representatives of participating agencies determined by their agency head in consultation with OPM.
  • The OPM Director shall chair the Labor Relations Group and provide administrative support for the Labor Relations Group.
  • Agencies with at least 1,000 employees represented by a collective bargaining representative shall participate in the Labor Relations Group. Responsibilities:
    • Gathering information to support agency negotiating efforts and creating an inventory of language on significant subjects of bargaining that have relevance to more than one agency and that have been proposed for inclusion in at least one term CBA.
    • Developing model ground rules for negotiations that, if implemented, would minimize delay and set reasonable limits for good-faith negotiations.
    • Analyzing provisions of term CBAs on subjects of bargaining that have relevance to more than one agency, particularly those that may infringe on, or otherwise affect, reserved management rights.
  • The analysis should include an assessment of CBA provisions that cover comparable subjects, without infringing on reserved management rights.
  • The analysis should also assess the consequences of such CBA provisions on information sharing and analysis, including significant proposals and counter-proposals offered in bargaining.
    • Establishing ongoing communications among agencies engaging with the same labor organizations, and
    • Assisting the OPM Director in developing Government-wide approaches to bargaining issues that advance the policies set forth in the order.
  • This one is HUGE: Management should endeavor to bargain with the union so that employees cannot grieve removals to an arbitrator.

There are a lot of words and terms put forth as mandatory, but in reality, have squishy meaning in application:

  • Interpreted in a manner consistent with the requirement of an effective and efficient Government
  • Reasonable time
  • Promptly
  • Minimize delay
  • Timely manner
  • Expeditiously
  • Reasonable, necessary, and in the public interest

Also, there are time limits for implementation, reports to be made, and authorities assigned. You’ll have to read the full EOs to get the details and the flavor of what the White House is directing to be done. Be that as it may, if you are a management official the above are your goals and requirements for your collective bargaining relationship with your union, so you’d better get hopping if you want this to be done in a “timely manner.”

Here at FELTG, we’ve now given you two summaries relative to the three new EOs. In our third piece regarding these significant changes directed by the White House, we’ll discuss the legality of the requirements of the EOs (we’ve already spotted one illegal provision) and the enforceability of the requirements. We’ll try to get around to that just as soon as our respective heads stop spinning from trying to digest everything that’s going on here. It’s one thing to put out orders; it’s another to be able to enforce those orders (those of you with children know exactly of what I speak).

Some years, our business of civil service law is relatively boring. This is not one of them. Hang in there. We’re with you every step of the way. Wiley@FELTG.com

What You Need to Know About the New EOs

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By William Wiley, May 29, 2018

Wow, what a news dump Friday late. On Saturday, it was above the fold on page 1 of the Washington Post; it was above the fold, page 1 of the New York Times; and the PBS News Hour called it the most significant change to our civil service in over a generation. Who knew that President Trump’s three new Executive Orders issued last week would cause such a stir in the media? “Unprecedented changes by which the White House has made it easier to fire bad federal workers by curbing their protections.”

And they are all wrong.

Yes, the President issued three new Executive Orders related to the civil service last week. And, yes, they are significant. But they do not – repeat, do not – curb existing civil service protections or really create very much that is new at all.

However, what they do for you and to you is mandate the government-wide exercise of existing flexibilities in the civil service laws that have always been there and which some forward-looking agencies have been doing for decades. You have to read the Executive Orders themselves to get the full feel of what is being ordered for the Executive Branch by the President. However, until you get a chance to do that, here’s a summary of what you need to start doing now to be in compliance with the orders:

Unacceptable Performance

The White House has concluded that a number of agencies have not been acting fast enough to deal with non-performers. In our FELTG opinion, the White House is right. If you are a management official in human resources or legal in a federal agency, you are to immediately change your practice to conform with the following:

  • The Executive Order drops the concept of an “improvement” period and instead has begun to use the legally-correct term of “demonstration” period. It takes much less time for an employee to demonstrate whether he can do his job than to see if he can improve in doing his job. This movement in concept corrects the error that OPM made back in the early 80s when it created the acronym “PIP” (first, Performance Improvement Period, then Performance Improvement Plan) in reference to the period mandated by law for a demonstration of acceptable performance. Forward-looking agencies such as HHS have already moved in this direction by dropping the acronym “PIP” and describing the period as an “Opportunity to Demonstrate Acceptable Performance.”
  • In understanding that the period is to “demonstrate,” not necessarily “improve,” the EO requires agencies to limit these periods to 30 days. That change will be a great relief to federal supervisors who often are told that the performance period should be 60, 90, or even 120 days in length. One participant in a FELTG seminar earlier this year told us that his HR advisor advised him that the period had to be six months long. Woof. No wonder so many supervisors think it is hard to fire poor performers.

This mandate for a government-wide approach to poor performance is not a curbing of employee protections. The protections are the same as they have been since 1979. It is simply a recognition that some agencies have strayed from the concept of the efficient handling of a performance problem and directing that they focus on getting the job done more quickly while simultaneously honoring the statutory protections of most all federal employees.

Adverse Actions

We use the Unacceptable Performance procedures for holding employees accountable for meeting their performance standards. We use the Adverse Action procedures for holding employees accountable for adhering to workplace rules. The EOs require that agencies change their procedures for firing employees who engage in misconduct in the following manner:

  • Make it clear that while progressive discipline is a factor to be considered in whether an employee should be fired on the occasion of new misconduct, it is not a mandatory requirement to engage in progressive discipline prior to removing someone. Although this has always been the law, some in the media have misunderstood the concept and have claimed that civil servants cannot be fired without progressive discipline.
  • Clarified that past disciple is an aggravating factor in selecting a penalty for current misconduct even if it is for a different type of misconduct. For example, a prior Reprimand for disrespectful conduct would be just as aggravating when selecting discipline for the subsequent misconduct of AWOL as would be a prior Reprimand for AWOL. Recent MSPB decisions issued by Board members appointed by the previous administration have discounted prior discipline if it was different from the current misconduct. The EO corrects that unwarranted drift in our case law.
  • As many of you readers know, the majority of Board members serving in the previous administration came up with a concept that drove us all crazy: The Terrible Trilogy. Those three cases issued in 2010 abandoned decades of case law that held otherwise and ordered that agencies discipline all employees at the same level for the same misconduct throughout the agency. Given that this is a physical impossibility and not helpful at all in holding employees accountable, we all suffered mightily. Goodness knows this newsletter whined long and loud about the damage being caused by the Trilogy. The EO makes it clear that this is not to be the rule in the future. Deciding officials will be able once again to discipline employees independently, not restricted by the discipline meted out to other employees by other deciding officials.
  • When a supervisor decides that an employee should be fired for misconduct or performance, she has to give the employee notice that she is proposing the removal. The employee then has at least seven days to defend himself by responding to the notice. The deciding official can issue a decision any time after the employee responds. Unfortunately, some agencies have been waiting weeks, months, and occasionally years to issue these decisions. Now these decisions must be issued within 15 business days.
  • The 7-day notice period, above, can be extended to no more than 30 days under the EO.

Labor Relations

Two of the three EOs deal specifically with employees in a collective bargaining unit. We’ll address those significant changes in a later article.

For those of you who have been regular readers of our FELTG newsletter and have attended our FELTG seminars over the years, these changes will look very familiar. We have routinely cajoled, begged, and lectured agency HR and legal officials to approach accountability in this manner. We have strongly criticized MSPB when it has varied from these core concepts. Have the President’s advisors been reading the FELTG newsletter? Have they consumed our textbook UnCivil Servant? Have they sat in our seminars, hiding their identities, and soaking up all this good stuff as we dished it out? Or, maybe they actually contacted us and asked for our opinion as to how things could be improved within the current system without the need for new laws?

Well, aren’t you the inquisitive one, My Pretty. Unfortunately, some things have to remain private, for national security reasons. However it happened, you’d better start coming to our seminars and tuning into our webinars if you want to be on the cutting edge of the evolution of federal employment law. Whether we are steering it or just guessing where its going, there’s nobody else out there who can get you this close to the future of our business. Wiley@FELTG.com.

Read the full text of the EO here.

Join FELTG for a webinar on the new EOs on June 13. Register here.

Think About This Before It Happens to You

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By William Wiley, May 22, 2018

MSPB just established a new policy. You need to know it and decide what to do before you are called on to act on short notice.

As most all Board practitioners are aware, MSPB HQ has effectively been shut down since January 6, 2017. On that date, one of the two remaining Board members unceremoniously resigned before her term was up, leaving the Board with only one member and thereby without a quorum. MSPB quorums are essential to the Board being able to act. The three-membered Board, comprised of Presidential appointees, gets involved when either the firing agency or the fired former-employee files a Petition for Review (PFR) challenging the initial decision of an MSPB administrative judge (AJ). A single member cannot issue a final Opinion and Order to resolve a pending PFR. It takes two to tango; it takes two to adjudicate PFRs.

Many actions related to case handling taken by the Board require agreement among the Board members. No single Board member, with rare exception, has the independent authority to do much when it comes to the resolution of PFRs. The challenge this approach has caused has been magnified by the day-by-day growth of the pending PFR decision backlog for the past 16+ months. If you are a wrongly fired employee, every day that your case is not resolved is potentially one more day you don’t pay your rent, or eat, or can’t hold your head up at dinner with the family.

Hypothetically, the judge ruled against you in the fall of 2016. You filed your PFR challenging the judge’s misplaced initial decision, and began to wait for a Board decision on your appeal. In normal times, that wait would have been around six months – sometimes a bit more, sometimes a little less. However, being the smart appellant you are, about last spring you begin to realize that you aren’t going to be getting a decision on your PFR anytime soon. You decide that enough is enough, and file a motion to withdraw your pending PFR, formally asking the Board to dismiss your appeal. Better to be out of that mess than stuck there indefinitely, you might be reasoning.

But, wait! Your PFR is pending with a quorum-less impotent Board. If MSPB lacks the legal authority to issue any decisions, arguably it lacks the legal authority to grant your motion to dismiss your PFR. That two-to-tango thing might well apply to cases pending at MSPB HQ whether they are to be dismissed as withdrawn or ruled on in a decision. Maybe the single remaining Board member just can’t do anything.

Well, perhaps relief is in sight. MSPB just announced a policy that even with just a single member seated, the Board’s Clerk can grant motions to dismiss pending PFRs if:

  • The motion to withdraw is not based on a settlement;
  • It is unopposed by the other party; and
  • It is timely filed.

It appears that there might be some light at the end of the tunnel for parties to PFRs who are tired of waiting on a decision. But, wait! (Again.) What does “timely filed” mean? There’s nothing in the Board’s regulations that sets a time limit for filing a Motion to Withdraw. Will the Clerk use the time limits for filing the initial appeal documents? That doesn’t help the poor schleps who have been sitting at the Board for over a year, waiting on their government to act. And what does a withdrawn PFR do for the withdrawing party? Can an appellant whose PFR is withdrawn now file with the US Federal Circuit Court of Appeals, thereby challenging the AJ’s decision? Aren’t the time limits for that based on the date of the judge’s initial decision or a Board final Opinion and Order?  The drop-dead date for appealing to the Federal Circuit based on the judge’s initial decision has long passed in most cases, and a Clerk’s dismissal based on a Motion to Withdraw doesn’t feel like a final Board Opinion and Order. Finally, is this new policy even legal? Lordy, I hope so, ’cause if it’s not, we’re looking at some pretty messed up cases should this thing be overturned a couple of years down the road.

It appears to us here at FELTG that there are some questions yet to be answered relative to this new policy. However, it is a policy in force right now, so be aware and be prepared. For example, if you are an agency representative in a pending PFR case, will you object if the appellant who filed the PFR asks that it be dismissed? How would a dismissal be to your advantage?

Alternatively, what if the judge set aside your removal in the initial decision and you filed the PFR? Why would you withdraw your appeal? You’ve already restored the employee to interim paid employment. Is it worth it to give up your chance to be heard by a Trump-appointed Board to roll the dice and see if OPM and DoJ will support your appealing to the Federal Circuit? Even if so, will the Federal Circuit find your appeal there to be timely filed?

The leadership of the Board is to be commended for trying to do something (anything) to reduce the pain being suffered by agencies and appellants who are stuck in the backed-up toilet of PFR adjudication. Our FELTG guesstimate is that as of today there are about 1050 cases sitting there at Board HQ on M Street NW, waiting on just one more signature by a new member to be resolved. Although the President in March nominated two new Board members who will resolve the no-quorum dilemma, the Senate has not scheduled the predicate hearing necessary to get a vote on the nominees. And as all you Hill Observers out there know, if it doesn’t happen by mid-July on Capitol Hill, it ain’t gonna happen until the frost is on the pumpkin in the fall.

Sometimes we have more questions than answers, and this is one of those times. But that doesn’t mean you can wait on the answers. Get those great minds at your agency (or in your union) on a teleconference, discuss the pros and cons of withdrawing pending appeals, and make a smart decision about to what to do now, before it’s necessary to act. Wiley@FELTG.com