Well, We Never Saw This One Before

By William Wiley, June 14, 2017

Here at FELTG, we’ve seen a lot of things. In fact, sometimes we smile when someone comes up to us at a seminar and says, “I have a very unusual situation.” Ha, ha, ha, we chuckle silently. It might be unusual to you, Buddy, but we’ve seen it all before. As Farmers Insurance says in their TV ad, “We know a thing or two because we’ve seen a thing or two.” Yeah, us too.

So the incoming question below took us back a bit. We’re comfortable with the answer, but we have to admit, we’ve not run into this situation before. And there’s certainly no case law to rely upon. From a long-time reader:

Dear FELTG-ites,

I am a LER Specialist at a federal agency.  While assisting a manager in addressing the poor performance of an employee, we discovered that the employee’s work was being completed by a full-time union official. When confronted, the employee admitted the union rep had done the work for him.  After confronting the union official about the misuse of official time, he declared that official time was necessary to assist one of the unit’s members. How should I approach taking action against the union official?

Our FELTG response:

Dear Loyal Reader-

The answer as far as we’re concerned is strictly political.

• We discipline to correct behavior. In other words, we don’t do it to punish. Therefore, if you can stop the union official from doing this again, you have done America a service.
• The harm to the agency as to a loss of time is not significant. One way or the other, the union official was not going to be doing his regular government job. In fact, one could argue that he actually did the agency a service because instead of doing union business, he was doing productive agency work. Maybe he should get a Special Act award.

• That last sentence is a joke, by the way :).

• We’d say you have three options:

1. If you want to keep your union/management relationship low key, you write the official a big fancy letter from the head of labor relations that tells him that doing what he did is harmful to the agency and that you will not tolerate it in the future. If he wants to do government work, he can cut back from full time union representation and return to his regular position.
2. If you want to fire things up a bit, or don’t really care about the tenor of your relationship with the union, you can discipline the union official with a Reprimand. He will then file a ULP or a grievance, and you’ll be off to the races. Make sure you AWOL him for any time he spent doing this guy’s work so that he loses pay.
3. Or, you can ignore the union official. Focus on the employee who misled his supervisor by having someone else do his work. That, combined with unacceptable performance just might warrant a removal. If I thought about it longer, I might even conclude that if all this occurred during a PIP, you could discount the work done by the union official, fail the employee during the PIP, and have yourself a nice easy 432 removal. Take this route and I guarantee that the union official won’t try this again.

I have been doing federal employment law for 40 years. This is the first time I have run into this one. Thanks for making my day.

By the way, folks. If you’ve seen that Farmers Insurance ad mentioned above, you know that the stories are told as the old guy walks the young guy around the Farmers “Hall of Claims” museum that is dedicated to all the surprising accidental mishaps that Farmers has insured over the years. That got me thinking; wouldn’t it be cool if we had a museum like that for all the crazy things that federal employees have done that got themselves fired? I can just see the tourists lining up on The Mall now. Wiley@FELTG.com