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WHAT NOW, MSPB?

Things seemed bad. They got worse. The Board lost its sole member, Mark Robbins (now at OPM as general counsel) on March 1, 2019, leaving the ship without a captain, master, or first mate. Two nominees for Board membership are on hold in the Senate until a third Board member is nominated. Legislation to extend the term of Mr. Robbins did not make it past the House. Issues of staff morale and good public administration aside, the immediate effect of the loss of a single Board member will be the inability of the Special Counsel to obtain a stay from the Board of prohibited personnel practices. Administrative authority at the Board is held by the Board's general counsel for the time being (the executive director of the Board having returned to private practice months ago). Still laboring in full vigor are the sixty or so administrative judges, receiving appeals, issuing orders, holding hearings, and closing appeals out through initial decisions-initial decisions that if appealed through petition for review to the full Board will wait a long time for disposition, with over 2,000 PFRs pending and more arriving each day. Mr. Robbins, now at OPM, will soon be joined there by a director of that agency, nominated on March 4, Dale Cabaniss, formerly with the FLRA, who also served as a congressional staff member attending to civil service issues at the Senate. What has happened to development of civil service law? It is ceded to the Federal Circuit, where some appellants now repair for judicial review because they cannot obtain timely MSPB review through the PFR process from initial decisions issued by the AJ corps.

MEANWHILE, AT FLRA

The FLRA has a full complement of members, whose recent decisions are principally devoted to reviewing (often unfavorably) arbitration awards. FLRA still lacks a nominated and confirmed general counsel, without whom unfair labor practice complaints cannot be issued.

Of note, on December 21, 2018, FLRA Chairman Kiko, acting on the exclusion of FLRA employees from coverage of the Federal Service Labor-Management Relations Statute, notified the staff union that FLRA terminated their collective bargaining relationship upon expiration of their labor contract on December 21, 2018. The Chairman assured the staff union and employees that the Authority would continue affirmative engagement with employees, but not through union representation.

And, on March 1, 2019, FLRA filed a Federal Register notice seeking amicus briefs in a case the Authority will use as a vehicle to reexamine authority of arbitrators to award counsel fees. The Authority traditionally follows MSPB criteria for fee awards. Should there be a departure from that line of authority, applicable at MSPB principally to adverse actions or performance-based cases? The case before the FLRA involves an arbitrator's award of environmental differential pay. Should counsel fee entitlement in a benefits case depend on a showing of bad faith, or that the agency knew or should have known it would not prevail, or other criteria typically applied by the MSPB? Now is the chance for your views to be expressed to FLRA, by April 1, 2019, in the format and addressing the content outlined in the Federal Register notice, at 84 F.R. 7053 (March 1, 2019)