But it is stymied. The three-member panel has only one. It lacks a quorum, so the authority cannot issue decisions.
“The impact of delayed decisions from lack of a FLRA quorum is to delay significantly the relief for grievants ordered after hearing by an arbitrator,” said Colleen M. Kelley, president of the National Treasury Employees Union. “That is simply unfair, in that grievants in most instances have been living with outstanding disputes for some time. Further delay means no finality. In many cases, it means that money owed to a grievant is not being paid on a timely basis.”
Actually, the work of the agency continues — only for some of it to stall at the most important point. Except for the halt in issuing decisions, which is an “important reality,” as Chairman Ernie DuBester acknowledges, “it is still business as usual.”
“We are moving cases,” he added, “including right up to my consideration and voting.”
But he’s operating in an echo chamber. The only authority member’s voice on cases is his and decisions need at least a duet.
“There’s only so much he can do as a single member, which is not a lot,” said David Borer, general counsel of the American Federation of Government Employees (AFGE).
“AFGE has hundreds of cases a year before the board,” he said. “We need a fully staffed and working agency. This is going to mean delays in case processing and a return to the Bush-era situation in which the FLRA was hamstrung and unable to handle cases. That’s shortchanging federal employees.”
When President George W. Bush left office, the FLRA was a depleted, dispirited place. Staffing declined some 40 percent to about 120 employees in fiscal 2008, down from more than 200 in 2001. The agency’s budget fell 19 percent over five years beginning in 2003. The FLRA was rated dead last among agencies in its category on the 2007 and 2009 Best Places to Work in the Federal Government lists.
The backlog was hundreds of cases deep as Bush left office, because the agency then, as now, had been without at least two members.
That memory of dysfunction remains fresh and heightens concern over the present situation. Now, however, is nowhere near as bad as then, at least not yet.
“We certainly don’t want to recreate the serious situation when I came in and joined the authority back in 2009, when we had a backlog of about 400 cases,” DuBester said. “That really undermines the statutory imperative.”
The agency was resuscitated once President Obama took office. For most of that time, the authority has had a full complement of members, staffing increased and so did employee morale. At the end of last year, the backlog was just two cases. In 2010, the FLRA was honored as the most improved small agency on the Best Places list. The list is published by the Partnership for Public Service. (The nonprofit organization has a content-sharing relationship with The Washington Post.) In 2012, the agency was ranked eight out of 29 agencies. That’s very good for a place that was a castoff not long ago.
There’s no indication it will sink again, but the inability to issue decisions is troubling.
DuBester said the authority issued 143 decisions in fiscal 2012. If that rate of work flow continues, the agency will fall behind by about 12 cases for each month it goes without a quorum.
“[O]nce this important administrative agency gets back in business, there is no telling how long it will take to catch up with the backlog,” Kelley said. “This not only is inefficient and frustrating, it is unfair in that parties are still held to FLRA filing and other timelines, but without the prospect of decision.”
Obama has renominated Carol Waller Pope to be chairman of the authority. She had to leave office Jan. 4 because of tenure limitations. There already was one vacancy, so her departure left the authority without the minimum number of members required to get work done.
The White House announced Obama’s intention to renominate her on Dec. 20, but the Senate did not receive the nomination until Jan. 22, according to the Senate Homeland Security and Governmental Affairs Committee. No date for Senate action has been set.
The delay in getting Pope’s nomination to Capitol Hill, which the White House did not explain, ensured the agency’s work would stall.
“We’re dismayed that we’re down to one member again,” Borer said. “It’s really a mystery” why the White House waited so long to nominate Pope. “It wasn’t for a lack of people bringing it to their attention.”
Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.