Fedweek

A change of administrations provides the White House with opportunities to replace several thousand political appointees—less than half of whom require Senate confirmation— including many of the key positions in the agencies overseeing the federal workplace.

Those opportunities will be even wider for a Biden administration because of vacancies in some of those positions where incumbents serve fixed terms that can span administrations.

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That is the case for example with the Merit Systems Protection Board, which must have a 2-1 party line split in the governing board and whose members serve five-year terms. That board however has been unable to issue decisions in appeals of hearing officer rulings throughout the Trump administration; it had only one member for the first two years and since then has had none.

The nominations of two Republicans and one Democrat have been stalled in the Senate since clearing the committee level more than a year ago, reportedly due to one or more Democratic senators blocking floor consideration. Biden’s White House would certainly nominate two Democrats and one Republican unless by some chance the current nominees would be confirmed by then.

The three-member Federal Labor Relations Authority also must have a 2-1 split and its members also serve five-year terms, but all three seats currently are filled and those terms won’t expire until late 2022. The FLRA as it currently is constituted has issued a string of decisions in favor of management on the scope of allowable bargaining and, most recently, on eligibility of employees for union membership.

Members of Federal Service Impasses Panel, an arm of the FLRA that resolves bargaining deadlocks, also has issued a series of pro-management decisions, but all its members serve at the president’s discretion and can be replaced.

Also at an administration’s discretion is the position of FLRA general counsel, which decides which unfair labor practice complaints—the large majority of which are filed by unions against management—to bring to the board’s consideration. That position has been vacant for more than two years and as with the MSPB board has not come to a full Senate vote despite committee approval and now likely never will come to that vote.

That likely also will be the case of the OPM directorship, which has been filled on only an acting basis for all but about 12 months of the Trump administration. The most recent nominee to fill that position, HUD official John Gibbs, received a confirmation hearing but the committee then indefinitely delayed a vote on him.

Also key for federal employees is the OMB deputy director for management. During much of the Trump administration that position and the OPM directorship has been held by the same person at any one time, as a means of imposing more direct White House control over federal personnel policies.

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