Tag Archive for: Dan Gephart

By Dan Gephart, April 18, 2022

Ernest DuBester holds the Federal Labor-Management Relations statute close to his heart.

Literally.

During our recent conversation, the FLRA chairman pulled a mini printed version of the statute from the left breast pocket of his shirt several times to emphasize the points he was making. Those close to the chairman know he likes to carry that Pocket Statute with him everywhere he goes.

As Chairman DuBester’s nomination for another FLRA term remained stuck in committee, he took time to discuss the FLRA’s plans for returning to the workplace, the status of the Authority union, the legal issues that he’s most looking forward to addressing, and more.

[Editor’s note: Join FELTG for FLRA Law Week May 9-13 to get up to date on all things federal labor relations. Sessions will run from 12-4 pm each day. Early bird pricing ends this Friday, so register now.]

DG: What has been the biggest challenge the agency has faced during the pandemic? And what did you learn from it?

ED: The pandemic has had a huge effect on our society. And it has certainly had a big effect on the FLRA. From Day One, and it continues today, my focus has been on employee well-being, employee health and safety, but also combined with what I call the appropriate and requisite ability to run an agency that fulfills its mission. That has been the hard thing.

There were a lot of things that were not only my preference to do in person, but that I think are actually done better in person. (When the pandemic hit), they had to be done virtually or remotely. Converting to mostly an all-virtual workplace is huge.

For example: One of our responsibilities, which stopped for over three years during the Trump Administration, is that we handle unfair labor practice cases, and we have hearings. Those are run by our Regional Offices and Office of General Counsel personnel. We haven’t been able to do those in person.

Similarly, and related to that, our administrative law judges have the responsibility then with respect to unfair labor practices. They hold ULP hearings at a later stage. Those decisions may come up to me and my colleagues, the other members, on what I’ll call appeal.

The administrative law judges have had to move to virtual hearings. And that’s a big thing, not only practically and logistically. It really has a huge bearing on the way you relate, interact, and share information.

I’m all about effective communication. To me, it’s the secret of everything. It’s certainly the secret to effective management-labor relations, which are based on relationships and human behavior, in particular. There’s no doubt, and I’ll say this emphatically: The ability to communicate and solve problems and hopefully to address and resolve disputes more effectively requires effective communication. And you can’t do it as well on a computer, or telephone or email.

Our employees are dedicated employees. They have gotten, in some respects, accustomed to working remotely, and to some extent enjoy the benefits. We’re all human. We don’t like to commute to work. So, we’re going to have to practically work through how best to harmonize those kind of work/life issues for individuals, and that’s not just employees, but it’s managers and supervisors, too. And it’s leaders, too. What I call the practical dimensions of the job is about labor-management relations, and it requires human interaction to be most effective.

DG: What is the status of the union of Authority employees?

ED: When I was made Chair over a year ago, the first thing I did on Day One was to restore recognition of our in-house union. As you may know, the FLRA had recognized that union since the first year of its existence in 1979, through Republican and Democratic administrations alike, until the end of 2018.

We went through nearly 40 years having recognized the union, and then that was ended in 2018.

Just for context. That recognition initially back in 1979 had been done after seeking an opinion from the Department of Justice whether we could do that. Under our own statute, we’re one of the agencies exempt from coverage. We’re not covered by our own law, for practical reasons. But then the question is: Could we voluntarily recognize a union in-house? The answer came back in a very thoughtful and thorough memo from Justice that said, yes you could, with a couple caveats. For example, our employees couldn’t be represented by a union that had business before us.

Last year, I restored recognition. It was very important to our employees. Morale had already plummeted. From Day One, we’ve been in negotiation with our union, and discussing with them several aspects that involve the pandemic, wrapping up three different agreements:

1.    Telework.

2.    Remote work.

3.    And then have begun to consider the future and a re-entry plan as directed by OMB and OPM. We’ve been negotiating a re-entry plan which we’re about to finalize.

[Editor’s note: The FLRA’s telework Memorandum of Understanding allows employees in appropriate circumstances to work from somewhere other than their assigned FLRA office for up to 8 days per pay period. The remote work MOU allows employees, in appropriate circumstances, to work from somewhere other than their assigned FLRA office more than 8 days per pay period, and generally does not require them to come into their assigned FLRA office on a regular basis. This agreement is moving forward as a 24-month pilot program. The parties will evaluate the pilot and decide whether to continue it past 24 months.]

So that restoration of the union has led to the negotiation of these three agreements that are offshoots of the pandemic, giving our employees a voice. I anticipate that we’ll be returning to the office in a different way than existed the last two years, and in different ways than existed before the pandemic hit.

DG: When do you expect to return employees to the physical office?

ED: We agreed we wanted to see 14 straight days with a reduction in transmission rates recorded. We still have a couple regional offices located in areas where we haven’t nailed that down yet. Then we have a 30-day notice provision before we transition back. I guess somewhere around mid-May, we’ll be getting ready to transition.

DG: What are the most important legal areas you will look to reexamine if given the opportunity?

ED: If you followed us closely, we got into areas over my objections that were based on what are characterized as requests for policy guidance. It wasn’t a specific case or controversy between parties, it was just some entity requesting policy guidance in certain areas. Those entitles were varied, some were parties before us, but eventually some of them weren’t.

In my view, it’s somewhat analogous to rulemaking. It’s my view that those kinds of serious matters should be addressed and resolved by cases. But many were over my dissent, and I dissented substantively as well.

I think it’s important to say this to set the table. And I think it’s historically factual.

Three Federal agencies oversee three collective bargaining laws – the NLRB, the National Mediation Board, and we have the FLRA, which, as you know, has jurisdiction over approximately 2 million Federal employees. I’ve worked at all three agencies. Throughout its history, at the NLRB, you’ve seen a lot more political swings in their case law and decisions. It does change. Sometimes, it changes by administration. Certainly, long-standing precedents are overturned at certain points in time.

That hadn’t been true of the FLRA in the same way. With a couple of exceptions – and only a couple — we’d had a lot of long-standing precedents that have been in existence for decades. Then, in the last 5 years, while I’ve been in the minority, there has been a unique noteworthy change in our history. I don’t think you can deny, there’s been a very purposeful objective of overturning long-standing precedents that had continued through Republican and Democratic Administrations. To me, with all due respect because people are entitled to their opinion here, they also reflect an undermining of what I consider to be some of the key policy underpinnings that are reflected in this statute.

When this statute was enacted, it was discussed in the context of what is unique to the Federal sector, not just the public sector. Everybody says (the statute) was modeled on the National Labor Relations Act. It was, in some respects, but that is really misleading. It’s a much different statute in many ways, based on policy considerations in the Federal sector, and those have been violated in my opinion.

Here’s one good example: It’s important to every workplace in every sector, but there’s a unique importance of grievance arbitration in federal labor management relations. Why is that so? Because of a lot of other decisions that were made.

Number one is (Federal unions) don’t have the right to economic weapons. They don’t have the right to strike under our law. So, you need mechanisms to resolve disputes.

Grievance arbitration was made paramount. Every agreement must have a grievance arbitration provision. The definition of grievance is very broad in here. What I would say: The language of our statute makes clear and other decisions also made clear that arbitrators doing Federal sector work should be accorded the same deference we accord them when doing private sector work.

One of the FLRA’s most important responsibilities is we sit as the surrogate for the Federal courts in handling appeals or exceptions for grievance arbitration awards in the federal sector.

Arbitrators should be given that deference. Now I will say that that’s my very strong view, but like on everything, don’t take my word for it. I will tell you that the DC Circuit has come up, in a number of decisions, and overturned my colleagues, tracking my dissent.

In 2020, the DC Circuit overturned my colleagues and said, as I said to you today and throughout my professional life, the FLRA is required to apply the deferential standard of review used by the Federal courts in the private sector. That principle needs to be enshrined and re-established. It’s so central to the day-to-day workings of labor management relations at any agency over which we have jurisdiction.

If you look at the decisions that have discarded longstanding precedent. and they fall into different areas, the common theme there is that they’re restricting access to the rights provided here, or they’re limiting the scope of collective bargaining, one of the purposes of this law.

To me, it doesn’t just reflect what I would call a different view on policy, it reflects a disagreement with the law. One of the unique attributes of this statute and a striking contrast to the law in the private sector under NLRB is the narrow scope of bargaining. It’s already very narrow. You don’t bargain over anything under which there is a Federal law, like wages, salaries, fringe benefits. They are essential to most bargaining anywhere else.

And (the statute) is pro-management. To try to whittle it away, little by little, to me, is basically saying we don’t believe in the statute, so that’s my concern.

Beyond what I mentioned, it’s important to focus and highlight the underlying policy around grievance arbitration. So many areas need to be addressed. Just look where precedent has been overturned … Just speaking generally, and without prejudging how I would rule in any particular case, I think the precedent was probably for the most part well-founded and needs to be restored.

Gephart@FELTG.com

By Dan Gephart, March 21, 2022

It’s just four words, but we are so thankful that we won’t have to include them in any more presentations or articles about the Merit Systems Protection Board. I’m talking about, of course, “lack of a quorum.”

On March 1, the Senate confirmed Raymond Limon and Tristan Leavitt as members of the MSPB. And then on March 4, they were sworn in, officially ending the five-year-and-two-month stretch in which the Board did not have enough members to vote on any Petitions for Review (PFRs), among other stalled functions.

Member Leavitt had been serving as MSPB’s General Counsel since late 2018. In the absence of any Senate-confirmed Board members, he served as the agency’s acting chief executive and administrative officer starting in March 2019.

Vice Chair (and current Acting Chair) Limon is new to the Board, but he comes with a resume that seems particularly fitting for this position. He had an extensive career as a human resources professional, including stints as Deputy Assistant Secretary for Human Capital and Diversity and Chief Human Capital Officer at the Department of the Interior, as well as similar roles for the State Department and Corporation for National and Community Service. He also served as an attorney in the Office of Personnel Management’s Office of General Counsel.

Vice Chair Limon very graciously took some time to answer our questions last week and offered a glimpse into the Board’s approach to that huge backlog of PFRs.

DG: Tell us how you think your experience, particularly in HR at DOI, will help you as you transition to this new position?

RL: Thank you for this opportunity to share my excitement and acknowledge the deep appreciation I have in helping to lead this amazing agency. I am honored for this privilege and plan to contribute the best way I can to the Board’s mission. With that said, I do feel the numerous HR experiences gained over those years have prepared me for this position.

I have over 25 years as a federal career civil servant and 22 years as an executive promoting and defending the merit system principles through my management, policy and legal experiences at various title 5 and non-title 5 Executive branch agencies, while serving in small and large agencies. After practicing law in the private sector, I joined OPM’s Office of General Counsel where I litigated before the MSPB, EEOC, and FLRA and coordinated with OSC and DOJ, along with dozens of federal agency partners.

After enjoying success as a litigator, I accepted an executive position to lead OPM’s Office of Administrative Law Judges (OALJ). While managing OALJ, I oversaw the ALJ personnel system that involved the application, examination, selection, compensation, classification, movement, and oversight for all ALJ positions serving in over 30 agencies. After OPM went through a significant realignment in 2003 and the functions of OALJ were divided among three new OPM divisions, I became OPM’s Director of Compliance and led its merit system compliance reviews for all federal agencies across the nation.

In 2005 and based in part on my earlier experiences as a U.S. Peace Corps Volunteer serving in Honduras, I joined the Corporation for National and Community Service (CNCS). CNCS manages domestic national service portfolio that included AmeriCorps, VISTA, Senior Corps, and the National Civilian Community Corps (NCCC).

In this position, I became the first-ever Chief Human Capital Officer (CHCO) for CNCS and developed and implemented an HR system outside of Title V. While in that position, I was selected by the 100-plus small agency council members to lead the Small Agency HR Council, and in 2006, I represented all small agencies on the CHCO Council. In 2012, I left CNCS to join the State Department and continued serving on the CHCO Council as the Director, Office of the Civil Service HR Management. I had the privilege to work among dedicated civil and foreign service professionals and I was the executive sponsor that rolled out a first-ever developmental program that allowed civil and foreign service employees to go on short-term rotations between their respective personnel systems to close skills gaps, enhance mission knowledge and meet work surge demands. In 2015, I was offered the Deputy, CHCO position at the U.S. Department of the Interior and by 2017, I became the Deputy Assistant Secretary for Human Capital and Diversity and CHCO. Interior has an amazing workforce and operates in over 2,400 locations and almost every occupation covered under the federal inventory of positions (approximately 350) are also found within Interior.

In all these roles, I maintained a constant and valuable connection to the CHCO Council and have had the privilege to work on many issues facing the federal workforce over these years. Over these many years, I participated in a wide variety of partnership functions with the Board, whether attending training or conference panels with its representatives, participating in its surveys, or providing feedback on future studies and evaluations. I bring a wide variety of strategic, tactical, legal, and policy-setting experiences and executive leadership perspectives that will support me well as the Board’s Vice Chair and have developed a deep appreciation for its mission and the professionals that serve there.

DG: You are walking into an an unprecedented situation with more than 3,600 Petitions for Review waiting for you. Do you have a process to address those PFRs? What kind of cases are you prioritizing? Are you considering short-form opinions?

RL: The good news is that of those approximately 3,600 cases, career staff have drafted recommended decisions for about 3,400 of them. This includes updating recommended decisions, when appropriate, in cases in which statutes, regulations, and court precedent may have changed during the lack of quorum.

That said, there are various ways we as a Board could choose to approach the backlog. For example, we could implement a “first-in, first-out” approach, or we could prioritize certain categories of cases, such as precedential decisions, cases involving back pay, whistleblower appeals, or more straightforward cases such as settlements and withdrawals. We’re very cognizant that there’s no right answer here given what we’re facing with the backlog and the fact that the parties have been waiting a long time for a decision from the Board on their PFRs. However, during the lack of quorum, our legal offices collaborated to try and determine which cases were priorities from all perspectives, and so we’re initially taking a hybrid approach to incorporate various types of cases, and we’re prepared to adjust our approach as we move forward.

Similar to the most recent Board quorum, we are planning to issue both precedential and nonprecedential decisions, but the latter will be more tailored to a length that’s appropriate for the issues presented in each PFR, meaning that some nonprecedential decisions will be a few paragraphs while others could be several pages. Additionally, during the lack of quorum period, MSPB staff deployed enhancements to our current case processing systems to provide more flexible and efficient options for the Board as it tackles the backlog.

DG: Have you had an opportunity to address MSPB employees? What is your message to them?

RL: Yes, Member Tristan Leavitt and I had the opportunity to virtually address the entire agency during our swearing in. We both conveyed appreciation to the workforce and acknowledged the challenges and opportunities facing the Board today. I came to this position with high regard and respect for what the Board is tasked with and how it serves our nation by protecting our federal workforce. After my first week of briefings and personally meeting so many of the Board’s professionals, that respect has deepened immensely.

DG: Everyone focuses on the PFR backlog. What other functions are particularly challenging now due to the fact the Board lacked a quorum for so long?

RL: During the lack of a quorum, MSPB could not issue our traditional, fulsome studies with policy recommendations for the President and Congress. [Editor’s note: We discussed those reports with Jim Read, then-director of the agency’s Policy and Evaluation Office back in 2019.] We are looking to move out on that. Similarly, the quorum must also approve a new research agenda that has been prepared.

Notwithstanding the lack of a quorum, administrative judges and support staff continued the mission of the agency and acted with distinction during the pandemic to adjudicate thousands of cases. Similarly, the Offices of the Clerk, Appeals Counsel, and General Counsel made significant contributions to address the increasing backlog and expertly prepared the incoming Board members to take on this challenge. Over the months to come, we are looking to leverage technology to improve the user experience and improve our case management functions and continue to receive input from our stakeholders.

Our legal offices have also been working on updates to our regulations to account for changes in statute and case law, as well as our shift toward more electronic case processing. Updates to the regulations could not be issued while the Board lacked a quorum, but they will be among the new Board’s priorities. The appropriate notices will be posted to the Federal Register in the coming months.

[Editor’s note: With a new quorum now in place, it’s an important time to sharpen your MSPB skills and knowledge. Join us for MSPB Law Week Virtual Training March 28- April 1 or the Getting Back on Board: An MSPB Case Law Update webinar on April 20.]

Gephart@FELTG.com