You’re Still Making the Same Stupid Mistakes

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By William Wiley

Twice a year here at FELTG, we present an audio conference that we bill as an update on the law. Starting this fall in our next offering, we’re going to add a new twist. We’re going to highlight not only any tweaks to the existing law, but also call out those agencies that continue to make stupid mistakes, causing them to lose charges and cases that should not have been lost.

That’s right. No more Mister Nice Guy. After 15 years of trying to teach agency representatives how to win cases, protect employee rights, and save us taxpayers a bucket-load of money when you screw up, we’re going to tell it like it is. Yes, you lose cases sometimes because the members at  MSPB get a little screwy and try to create foolish new law (e.g., the comparator employee Terrible Trilogy, Miller reassignment only if it makes the employee happy, prior discipline as progressive discipline only for the same category of misconduct). And sometimes you lose cases because the judge weights your evidence more lightly than you thought warranted. But do you know the Number One reason agencies lose cases? No, you don’t, because you haven’t read all the Board’s decisions.

Fortunately, we have here at FELTG. And the Number One Reason agency removals are set aside on appeal is … (drum roll, please) … practitioner error. That’s right. Some agency employee, attorney or Human Resources specialist, did something wrong. And we are TIRED OF IT. We’ve been out here for 15 years, a dozen times a year or more, telling you agency practitioners how to win cases. And some of you still don’t get it. Federal employment law is our craft, for goodness sakes. If you claim to be one of us, then you must properly and consistently practice our craft. And waaaaaaay to many agencies are relying on practitioners who don’t know this work, to do this work.

Let’s take just one topic: charging. Our FELTG colleague, author, and Instructor Emeritus Renn Fowler highlighted this issue all the way back in the mid-90s. MSPB and the Federal Circuit Court of Appeals are very fussy about the way an agency frames a charge. Something about Constitutional due process and the Magna Carta providing inalienable rights to federal employees. So for at least 20 years, those of us who teach employment law to federal agencies have been pounding away at the critical nature of the drafting of a charge in a proposal letter. By now, federal agencies with even a modicum of knowledge should have picked up on how to do this.

Yet too many haven’t.

We’ll be covering this in more detail in the fall webinar, but here’s a little taste of some recent evidence that some employment law practitioners do not know the basics:

Reid v. Air Force, CH-0752-14-0849-I-1 (2016): The misbehaving supervisor had a way of saying and doing things relative to the breasts and buttocks of other employees that were simply inappropriate in a federal workplace. When the agency finally got around to proposing that she be fired, one of the charges it relied on was “Touching and making a statement about the breast size” of another employee. And all of you certified practitioners who have completed our famous MSPB Law Week just about choked on your morning coffee when you saw that conjunctive “and” in the middle of this charge. Because you know that the law for nearly a quarter of a century requires that an agency prove both sides of a conjunctive change that is joined by an “and.” As the agency proved the touching but not the making a statement, the charge failed.

Bennett v. DVA, CH-0752-15-0367-I-1 (2016): Although the Board conceded that the appellant had a record of troubling behavior, it reversed the agency’s removal and put Mr. Bennett back to work because it simply could not “uphold his removal by affirming a poorly drafted charge.” And the horrific charge? Eerily similar to one we use as a bad example in our FELTG on-site one-day Charges seminar: “Disrespectful, intimidating language toward a supervisor/Conduct unbecoming a Federal employee.” Was it disrespectful? Was it intimidating? Was it both? And how’s all that related to unbecoming conduct? Would the conduct have been “becoming” if appellant was NOT a federal employee? Just think of all the good DVA could have done for our vets with the money it has to spend to pay this guy’s back pay. At least, a nice balloon party.

We’ve got more. So sign up for our Update webinar, if you can take pain and humiliation. If you want Mr. Nice Guy, go talk to an EAP counselor. If you want to learn how to be a better practitioner and not embarrass your agency and the rest of us in the same profession, come to our seminars. Learn this business. Everybody makes mistakes, but there are no excuses for mistakes that could (and should) have been easily avoided. Wiley@FELTG.com

 

 

MSPB’s Non-Precedential Decision Policy is Bad for America

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By William Wiley

Beginning in 1979, MSPB issued two types of decisions: precedential and short forms. The short form says nothing other than a Petition for Review challenge to a judge’s decision has no merit, much like the Supreme Court’s say-nothing orders that “deny certiorari.”

A full “Opinion and Order” precedential decision discusses an important civil service principle, and contributes to the development of federal employment law. The Board’s reviewing authority, the US Court of Appeals for the Federal Circuit, is bound to affirm an MSPB Opinion and Order on appeal unless it is:

  • Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
  • Obtained without procedures required by law, rule, or regulation having been followed; or
  • Unsupported by substantial evidence.”

5 USC § 7703(c); see Terban v. Energy, 216 F.3d 1021 (Fed. Cir. 2000)

About five years ago, the then relatively-new leadership at MSPB decided to replace the say-nothing short form dismissal with a new type of decision, a non-precedential order (NP). These new orders were defined by the Board as not contributing significantly to the Board’s case law, 5 CFR 12901.117(c). In other words, they were intended to dismiss the less-important issues while simultaneous giving the reader insight into the members’ rationale for doing so.

When the NP change was announced, this newsletter argued strongly against it for several reasons:

  • Writing substantive NP decisions in the 60% of the appeals that formerly were short-formed would double the workload at MSPB without any commensurate increase in the value of the decision.
    • An increased workload would result in increased delays in issuing decisions thereby denying appellants a prompt resolution of their cases and increasing the government’s back pay liability in appeals in which a removal was set aside.
  • NPs allow the Board to create secret anti-agency case law, case law that cannot be challenged by agencies on appeal. You see, only significant decisions can be appealed by the government to federal court. As NPs, by definition, are not significant, the Board can give direction to its judges relative to the thoughts of the members via an NP, and an agency cannot do anything about it (whereas an appellant can).
    • Yes, the Board says in the introduction to an NP decision that a judge is not required to follow its reasoning. However, if you do not think that judges read these things and apply the rationale to later cases, you do not know how a judge thinks. If you were a Board judge, and an NP decision said the answer is X, would you not go with X the next time you saw that issue, knowing that if you said Y or Z the members will reverse and remand the case to you? Everybody likes to go home on time, even MSPB judges.
  • NPs confuse consumers: the parties, the courts, and us practitioners. We do not know what to do with them and they double the research case load, although we’re not sure they are worthwhile as precedent.

Here’s an example that reinforces our argument that MSPB made a mistake when it decided to begin issuing NPs. On July 14, 2014, the Board issued an NP order in the appeal of a putative whistleblower. The appellant had disclosed his belief that a private sector company had committed tax fraud. The judge had found disclosures related to misdeeds by private entities were, per se, not the sort of disclosure protected by the whistleblower protection laws. Two of the three members agreed, holding that the whistleblower laws protect those who disclose government malfeasance, not private entity malfeasance. Aviles v. Treasury, DA-1221-13-0518-W-1 (2014).

MSPB Vice Chairman Wagner disagreed. She argued in dissent that the then-recent amendments to the Whistleblower Protection Act expanded the protection of whistleblowers beyond those that report government malpractice, but also to those who disclose waste/fraud/abuse by private entities in their normal course of duties.

This issue is HUGE. If Congress indeed intended to expand the definition of whistleblower to cover those who report non-government bad deeds in the normal course of their duties, as argued by Vice Chairman Wagner, the universe of whistleblowers increases by several-fold, as there are hundreds of thousands of government employees who have the opportunity to do this sort of thing as a routine part of their work. One would think that if one of the three Presidential appointees at MSPB believes this is what Congress clearly intended “as a matter of plain logic,” the Board’s decision in this matter would be worthy of a precedential decision.

Well, the members did not think this way. They decided to hide this intra-Board disagreement in an NP, thereby relegating the competing rationales of the dissent and the majority opinion to the never-never land of Board law.

In response to the NP order denying his appeal, appellant Aviles took the Vice Chairman’s arguments in his favor to the United States Court of Appeals for the Fifth Circuit. As it turns out, this NP decision became the very first decision to be appealed directly to the Fifth Circuit as provided for in the alternative forum provisions of the 2012 amendments to the Whistleblower Protection Act. The Fifth Circuit did three interesting things with this “insignificant” Board order:

  1. Held that it would not decide whether it was bound to provide the 5 USC § 7703(c) (Terban) deference to an NP decisions (the court is just as confused as the rest of us).
  2. Concluded that the US Federal Circuit Court of Appeals, the court that has been ruling on appeals of Board decisions involving whistleblowers for 25 years, is using the wrong evidentiary standard when assessing jurisdiction (e.g., that the motion-to-dismiss standard should be applied to these appeals, not the summary judgment standard used by the Federal Circuit).
  3. That the logic of Vice Chairman Wagner, as argued by the appellant, was “at odds with common sense and principles of statutory construction.” Aviles v. MSPB, 779 F.3d 457 (5th 2015)

Vice Chairman’s rationale was clearly wrong in this matter. However, she was indeed one of the three individuals empowered by the President, with confirmation by the Senate, to make these decisions. Her dissenting logic and arguments should not be relegated to the world of non-precedential orders, especially so when the case involves significant matters of Board jurisdiction and Federal Circuit precedent. Wiley@FELTG.com

Swearing (at?) the Proposal Letter and Other Matters

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By William Wiley

Questions, we get questions. And we got several follow-up questions from a certified practitioner who recently completed our famous FELTG MSPB Law Week seminar. Always good to hear that class participants are picking up on things. Below are my responses, in bold.

  1. Mr. Wiley stated that he now recommends that proposed discipline is sworn by the PO. Is that true for disciple that is not appealable to the MSPB? Yes. Why do you recommend that proposals be sworn to?

By adding the penalty of perjury statement to a proposal letter, the statement is converted from a simple hearsay documenting the agency file to a document having greater evidentiary value. “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.  28 USC 1746. The Board consistently gives significant weight to uncontroverted penalty of perjury statements, and lesser evidentiary value to evidentiary statements made in an unsworn document.  There is always the possibility that a proposing official will not be able to testify at hearing. Adding the penalty of perjury statement converts those factual statements in the proposal – perhaps things that the PO observed personally – into hard evidence that the agency can use to support its case. Without that statement, it cannot use the proposal as evidence of very much. As there is value added and as there is no reason NOT to include the statement, I think it is prudent to do so.

  1. In the class Mr. Wiley said that the deciding official should complete a DF [Douglas Factor] analysis on a worksheet. However, in the version of his book that’s available on CyberFEDS©, the DF analysis is in the document. Which one is correct?

Both are correct. However, attaching the worksheet itself is a stronger approach, and an approach that I developed after CyberFEDS© published the desk book. I believe I wrote the desk book around 2005.  In 2010, the Board began a more scrupulous review of the Douglas Factors. Therefore, my practice evolved.

  1. Mr. Wiley said that if one of our supervisors is confronted with a record that another supervisor gave a lesser penalty, then he could say: “If I was that supervisor, I would have handled it differently.” HR has said that that recommendation is not supported by the case law, and even if a manager would have handled it differently, we are bound by the previous decision, absent distinguishable facts. Do you agree? Is there any case law or other references that support the recommendation?

Davis v. USPS, 120 MSPR 457 (2013): “The deciding official further testified that he was unfamiliar with the [comparator employee] or the circumstances of his discipline, but that he would have removed the [comparator employee] if he had been the deciding official in that case.”

  1. Mr. Wiley said that MSPB is pulling back from the idea that you have to disciple consistently throughout the agency. HR disagrees, and I can’t find any authority in support of the statement.

I reach that conclusion from reviewing how the Board assessed the factors in a recent case like Chavez v. SBA, 2014 MSPB 37, and the facts in the collection of the four 2010/2011 cases that started us down this dark road of comparator employees: Lewis/Woebcke/Villada/Raco. In Chavez, the Board addresses three points that they ignored in the Terrible Trilogy: 1) penalties effected post-removal are due limited weight (the greater the length of time between the two, the less weight the later penalty warrants), 2) different discipline officials in different chains of command can justify different penalties, and 3) the agency need not compare appellant to employees who engaged in similar misconduct, unless that misconduct was actually charged. The discipline officials in Lewis/Villada/Raco were different from the comparators. However, the Board did not consider that when mitigating the penalties in those cases. Yet in more recent cases such as Chavez , the fact that the employees were in different chains of command was a major factor in the Board not mitigating that penalty.

In other more recent cases, the Board has spoken to non-mitigating factors it did not consider in 2010/2011. For example, the Board now considers a lack of knowledge on the part of the deciding officials relative to other discipline to be a non-mitigation factor. Ly v. Treasury, 2012 MSPB 100 (“Any difference in treatment between the appellant and the comparator was not knowing and intentional on the part of the deciding official.”) Knowledge on the part of the deciding officials (or lack of knowledge) was not a consideration in the earlier Terrible Trilogy comparator-mitigation decisions.

Finally, the Terrible Trilogy decisions were issued by Board members Grundmann/ Wagner/Rose soon after Grundmann and Wagner were appointed and began issuing decisions in 2010. Member Robbins was appointed in 2012 subsequent to the Terrible Trilogy decisions to replace Member Rose and immediately dissented from the comparator theory of the Terrible Trilogy. Boucher v. USPS, 118 MSPR 640 (2012). Ms Wagner is now gone and Ms Grundmann’s appointment has expired although she is holding over until after the Presidential election, by all appearances. Putting all of this together leads me to the conclusion that the Board is moving away from its poorly thought out approach in the Terrible Trilogy.

Hope this helps. Best of luck-  Wiley@FELTG.com

This should be GOOD News, not Bad News

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By William Wiley

As we’ve written in this newsletter previously, if your Uber driver picks you up promptly, takes you where you want to go quickly, and is in general nice to you, you rate her 5 stars because she’s done exactly what you wanted.

With this reality in mind, let’s look at some recent numbers from GAO relative to the 2013 federal employee summary performance ratings:

  • Most all agencies have a five-level (5-star) performance evaluation system: Outstanding, Exceeds, Fully, Minimal, Unacceptable.
  • 61% of GS-1 through GS-15 employees were rated either 4- or 5-stars.
  • The higher the grade level, the higher the rating; e.g., 78% of GS-13 and above employees were rated 4- or 5-stars, whereas only 67% of GS-9 through 12 employees received either of these ratings.

One commenter suggested that these findings are a bad reflection on performance management in the civil service by stating, “The GAO report is likely to add fuel to the debate about whether federal performance management is effective.”

No, no they are not. These are wonderful numbers.  They show that 2/3s to 3/4s of federal employees are doing just about the best we can expect from them.  Isn’t this what you would expect from a group of merit-based selectees who are among the best and the brightest? Isn’t that what a merit selection and promotion workforce is supposed to look like, including that those who rise in the ranks to the higher levels get better ratings (because they are better employees)?

It just blows me away when people look at numbers like these and think that there’s something wrong with our civil service performance management system. We get asked to rate and give feedback on so many things these days. If you owned a company and found out that your employees were all rated at the top of a scale, wouldn’t you be delighted? If you drive for Uber, and you consistently get 3-stars, you don’t drive for them much longer.

If people were assigned to work in the civil service randomly, then their performance ratings should follow a bell curve: most in the middle, and fewer 4s and 5s. However, selection into the civil service is the opposite of random. It’s based on merit: talent, education, and experience. Therefore, it should come as no surprise (at least no surprise to those who paid attention in statistics class) that most feds are rated highly.

Goodness knows that agency management could do a better job of removing poorly-performing employees. The Chairman of MSPB said several years ago that 5-7% of the federal workforce is not performing adequately. However, that is unrelated to the fact that most federal employees are doing a good job. That’s why they get good ratings. The world would be a better place if we would accept that we should expect 4- and 5-star ratings from a merit-based workforce, and focus our performance-management energy on getting rid of the bottom of the barrel.

And while we’re at it, making recommendations and all like we here at FELTG know how the government should be run, here are a couple more suggestions to you policy makers:

  • All government performance rating systems should go to a 5-star format. Get rid of the stupid names for levels. “Isn’t Exceptional a better rating than Outstanding?” If it’s good enough for TripAdvisor and Yelp (and Uber and Zagat and just about everybody else), then it should be good enough for the civil service.
  • Service recipients, either internal to the government (e.g., Feds who call an agency Information Technologist for help) or external (e.g., citizens who go to a social security for assistance), should be the primary source of performance ratings.
  • Employees should be required to wear a lapel pen visible to the entire world with their star-rating for the past year. Post ratings on the web.

Performance management systems should be based on both common sense and science. Understanding that high ratings are to be expected from a merit-based workforce satisfies both of those requirements. Wiley@FELTG.com.

Preponderance of Evidence Revisited

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By William Wiley

We’ve all been frustrated at one time or another with the help (or non-help) we’ve received from an unfriendly Information Technology specialist, some of which live half-way around the globe. Did you ever slam down the phone and wish you could just fire them? Well then, you’ll be interested in the following evidence in a removal of a close-by IT specialist for discourteous behavior, an employee who had previously been suspended for 7 days (for similar discourtesy), then 14 days for failing to follow orders.

Specification Proof In Support of Proof Against Board Ruling
1.1. Appellant called a customer a jerk. Customer testified that appellant said he was “acting like a jerk” or “words to that effect.” Appellant denied using the word ‘jerk.” The customer’s testimony was equivocal. Although customer’s testimony that appellant was “rude” was not equivocal, that was not the charge. NOT SUSTAINED.
1.2. Appellant was loud and discourteous to a customer, a senior agency manager. Customer testified that appellant was loud, belligerent, used hand gestures, leaned forward, and conveyed an attitude she was unwilling to provide assistance. Appellant denied being discourteous or loud. Although perhaps unpleasant, it is debatable whether appellant’s behavior rose to the level of discourteous. NOT SUSTAINED.
2.2. Appellant got in the face of a coworker with a customer and said animatedly, “Are you monitoring me now, too?” The coworker testified that the interaction occurred as charged. There were tensions in the workplace. Tensions go to penalty, not to whether misconduct occurred. SUSTAINED.
2.3. Appellant was routinely discourteous, talked bad about other elements of the organization, was a bully that liked to intimidate others, and treated people in a humiliating manner. A customer stated the facts in the charge in a sworn statement. The interactions were confrontational, based on organizational friction, but not discourteous. As there was no testimony or other evidence to support these generalized accusations, NOT SUSTAINED.
2.5. Appellant was rude and disrespectful toward her former supervisor by yelling at him across a parking lot, “Don’t you ever come into my workplace again.” The former supervisor stated the facts in the charge in a sworn statement. Appellant denied yelling or making the statement in the specification. Live testimony trumps a sworn written statement. NOT SUSTAINED.

Agencies don’t often lose MSPB appeals because of a failure to prove specifications. Usually, agency losses can be attributed not to a lack of charge proof, but to a procedural screw-up: due process violation, poorly drafted charge, weak Douglas analysis. This case is an exception because most of the specifications failed completely. Of the original three charges each with up to seven specifications, the Board sustained only one specification and mitigated the removal to a five-day suspension. Ballard-Collins v. Army, SF-0752-13-0617-I-1 (2016)(NP).

As for the Board’s evidentiary findings, we’ll leave it up to you to decide whether you think the agency proved by a preponderance of the evidence (more likely than not) that the appellant was discourteous. The evidence is a classic he-said/she-said. For each specification considered on PFR, the appellant simply denied the charge, and a customer or co-worker supported the charge by sworn testimony or affidavit. In all but one specification, the Board decided to believe the appellant, not the agency witnesses.

As for us practitioners, there are a few basic takeaways worthy of note:

  1. The agency should not have relied on written statements as proof in the face of the appellant’s contrary live testimony. Almost every time, the Board will believe in-person sworn testimony over written affidavits.
  2. SPECIFICITY! We’ve taught for 15 years that charges and specifications need to be short and specific. Generalized charges hardly ever withstand Board review. Don’t use them.
  3. Charge what you can prove. If you can prove rude behavior, charge rude behavior. Don’t try to prove “discourtesy” by submitting evidence of “rudeness.” The Board is a nit-picky old bitty when it comes to the wording of a specification.

Some readers will, no doubt, conclude that the Board made a mistake in the weighing of the evidence. Our reality is that we cannot always be sure of how a judge will evaluate our attempt to prove the charges. However, there are strategic steps we can take to put our case in the best light possible. Understanding and using some of the basic principles of Board practice gives us a better chance of walking away with a winner at the end of an appeal. No guarantees, just an improvement in the odds. Wiley@FELTG.com

FELTG Once Again Leaps to Defend MSPB

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By William Wiley

And the truth shall set you free.

Yes, here at FELTG, we’ve been known, on occasion, to whack old MSPB upside the head when the Board issues some lame-brain decision that undermines the ability of agencies to run an effective government (or causes employee rights to be violated).  This week, however, we feel the need for speed, to point out when the Board has been unfairly attacked and its decisions mischaracterized by people who should know better.

Last week, at least a dozen different news organizations (and I use that term loosely), reported that MSPB was being berated for reversing a removal that was discussed in recent testimony before the House Committee on Oversight and Government Reform. According to those reports, the testimony on the Hill by Acting EPA Deputy Administrator Stanley Meiburg and by Assistant Inspector General  for Investigations Patrick Sullivan described the reversal by the Board of a removal of an EPA employee who:

  • Was a registered sex offender,
  • Was a convicted child molester who imitated a police officer, and
  • Who kept child pornography on his computer.

According to reports, after being told by Deputy Administrator Meiburg  that when EPA fired this employee, MSPB found the “basis for the removal was not sustained,” Chairman Chaffetz exclaimed,

“How do you lose that case? It’s just pretty stunning. How do we need to change the Merit Systems Protection Board? Because what’s not happening is we’re not protecting the American people and the taxpayers, and we’re not protecting the employees that have to sit by this freak of a pervert.”

Well, speaking of perversion, take a look at what the “real” facts are in this case. Yes, EPA fired this guy. And, yes, the Board reversed the removal.  It just sounds horrible that a child molesting, police officer imitating, registered sex offender cannot be fired from government because of the nasty US Merit Systems Protection Board. News reports like this make all of us civil servants (current and retired) look bad in the eyes of the public. No wonder that Congress is jumping up and down – as have a number of recent candidates for the Presidency and current agency heads  – about changes that should be made to gut the civil service system. There’s legislation afoot that would remove significantly large groups of civil servants from the protections of Title V, just so that the evil MSPB cannot get its hooks into a removal appeal and reinstate a non-deserving employee into the federal government.

So why did the Board order the reinstatement of a child molester to the civil service? Did it think that child molesting is not such a big deal? Did it say that the government is a good place for registered sex offenders to be? That’s sure what all the hullaballoo on Capitol Hill sounds like.

No, the Board ordered the removal to be set aside because the agency did not prove the charge: AWOL.

That’s right. This guy was not charged with child molesting, impersonating a police officer, or having child pornography on a government computer. He was charged with AWOL. And the Board set aside the AWOL charge because the agency failed to satisfy the requirements of a lead decision from 1981, a 35-year-old precedent (which, frankly, I don’t like, but the law is the law; see Pearson v. Navy, 8 MSPR 405 (1981)).

I leave it to others to conjure why two top agency officials would testify before Congress in a manner that resulted in the Committee Chairman concluding that MSPB was the bad guy in this scenario. Did they not tell Congress that the removal was reversed for a reason unrelated to this employee’s status as a sex offender? Did they not know that? Or, did they actually make that point, but the committee members accidentally heard something else? Did no one stop to think that the basis for the reversed removal was relevant?

Sometimes Board decisions deserve to be held up to the bright light of public ridicule. But this case is not one of them. Instead, in this situation perhaps that bright light needs to pointed somewhere else. Wiley@FELTG.com

My Weekly Flash of Genius: Phone Duty for Presidential Appointees

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By William Wiley

Here at FELTG, we are always in pursuit of a better civil service. And one day last week in our semi-annual FLRA Law Week seminar, I had a flash of genius. OK, genius to me. Let’s see what you guys think.

First, the problematic situation. It takes a long time and lots of attorney resources to resolve what should be routine labor relations disagreements. Typical situation:

  1. HQ issues a new policy.
  2. Management’s labor chief notifies Union of potential change.
  3. Union proposes that the change not be implemented.
  4. Management asserts non-negotiability and refuses to bargain. The agency has a “compelling need” for the new policy.
    • If you are already lost, not knowing why management notified the union or what the devil “non-negotiability” or a “compelling need” is, you best get yourself enrolled in out next FLRA Law Week seminar scheduled for November 14-18 in DC.
  5. Union files a negotiability appeal with FLRA. Management has two bad options:
    • Wait until the negotiability process is completed prior to implementing the new policy, or
    • Implement the new policy now, risking an unfair labor practice finding and a status quo ante remedy if the change is eventually found to be negotiable.
  6. Assuming management takes the high road and participates in the negotiability appeal process, the next step is the pre-petition conference with representatives of FLRA. In that discussion, FLRA staff will attempt to mediate the disagreement as to whether there is a compelling need for the policy.
  7. Failing resolution at the pre-petition step, the matter is referred to the staffs of the three Authority members.
  8. Legal research is done, draft decisions are circulated, and arguments as to the proper outcome occur within the Authority.
  9. Eventually, a decision is issued, when at least two of the members agree (the third member may issue a dissent). If there is a dissent, the two members have to review it and may comment on it in the majority opinion.
  10. If the majority opinion is that there is no compelling need for the new policy, the agency is ordered to bargain the implementation of the policy with the Union.

We could spend some time calculating the approximate resources necessary for the Authority to reach a final conclusion in this matter. However, specificity is not necessary to appreciate a central fact: at least a dozen FLRA attorneys and a fair number of weeks (or months) are going to be required to get a compelling-need decision.

Consider, if you will, this genius-level alternative, an alternative that retains in the Authority the power to resolve compelling-need disagreement while avoiding the resource and time commitment of the above procedure:

  1. FLRA establishes weekly phone-in times. One of the three members is assigned to phone duty during each one of these phone-in opportunities.
    • For example, 1:00-3:00 TU, WE, and TH could be established, with each member having the responsibility to be available for the two-hour periods on one of the three days.
    • By internal policy, the three members delegate to the member taking calls the authority to act on behalf of all three members. The board members at MSPB have had a similar internal delegation policy for over 20 years relative to OSC initial stay requests.
    • It doesn’t seem to me that we would be asking too much of a Presidential appointee who is being paid nearly $200,000 annually to answer the damned phone every now and then.
  1. When a local management team and Union have a question as to whether a new HQ policy is based on a compelling need, they get an appointment with the Authority for a phone-in opportunity. Here’s what would be a typical telephone conversation.

Member: Hey everybody. This is Pat. Who do we have on the call today?

Management: Sir, this is Deputy General Counsel Ann Anderson, on behalf of the US Administrative Agency. We need to implement a new policy for which we believe we have a compelling need.

Union:  Sir, this is Chief Steward Ursula Underwood. That new agency policy is no more based on a compelling need than my bad breath is based on evil thoughts.

Member: OK, first, we do first names in this process. Second, you both know how it goes. Ann, you have seven minutes to pitch me your side of the situation, including statements from any witnesses you want me to hear.

Mgmt:  Got it. Here goes … [Blah, blah, blah for seven minutes].

Member:  More interesting than usual, Ann. I appreciate the extra effort put into your organization and elocution. Ursula, what does the union have to say about this fascinating argument in your seven minutes?

Union:  Well, Pat, I can tell you that on behalf of the union, we think you need a bucket and mop to clean up this pile of poo. [Blah, blah, blah for seven minutes].

Member:  Typical Union drivel, Ursula. I would have thought you had moved beyond the 1950s. Ann, you have two minutes for rebuttal.

Management: [Blah, blah, blah]

Member: Ursula, your turn for two minutes.

Union: [Blah, blah, blah]

Member: Hmmm. You have both made good points. And I appreciate your time. However, as for time, it is my time to tell you my decision. After considering your extensive and entertaining arguments, it is my conclusion – on behalf of the Federal Labor Relations Authority – that, although a close call, the agency’s intended change is NOT based on a consideration for which there is a compelling need. Therefore, the union’s proposal is negotiable and USAA is hereby ordered to engage in collective bargaining on the substance of the proposed new policy. Ursula, if Ann and her team don’t comply with this order to engage in bargaining on this issue, give our Solicitor a call at 202-343-1007 and we’ll get a court order for you. Any questions?

Management:  No.

Union:  Not a one.

Member:  Then, we’re done. Best of luck to you both. If you need us again in the future, you know our number. Have a nice day. FLRA out. [Mic drop]

“Oh, Bill. Have you lost your freaking labor relations marbles? Obviously, this will result in a terrible decision. We need lots of lawyers thinking lots of legal thoughts and writing lots of labor-law words to get a valid decision on negotiability. What about consideration of all those factors related to a ‘compelling need’ determination: core function of the agency, necessary rather than merely helpful, possibly abrogation, excessive interference, and the KANG analysis? We can’t really get a good decision if those factors aren’t weighed and analyzed in excruciating detail, can we?”

Of course, we can. Those highly subjective and impossible-to-define terms are just ways that an individual Authority member can justify his or her gut call on whether a matter should be negotiable. Do you think that there has ever been a member in history who actually understood those arcane concepts, and then used them to assess a particular set of facts to draw a rationale conclusion? Of course not. NOBODY understands what these terms mean. They are just weasel words that can be shaded and twisted to support whatever conclusion a member wants to make. And I mean no disrespect by making this statement. Judges do this, Board members do this, and goodness knows that Supreme Court Justices do this. It is the way the world works, whether we admit it or not. We may say, “Pay no attention to that man behind the curtain,” but we still know he is there.

So let’s cut the crapola. Our adjudicators know the answers before we ever get them our arguments. The law says that the FLRA members are empowered to make labor law decisions. Why waste all that time and resources pretending that they are making better decisions with all the legal theater of our attenuated processes? If a union and management have a disagreement about something, get a member on the phone, let him or her hear the parties out, then issue an immediate decision that allows the government to move on. A good decision today is more valuable than a perfect decision two years from now. And since a year or two of adjudication is no more likely to produce a more perfect decision than one issued next Tuesday, why in the world should we wait?

Wiley@FELTG.com

Morally, Ethically; Spiritually, Physically; Positively, Absolutely; Undeniably and Reliably

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By William Wiley

Ding Dong! The Witch is dead. Which old Witch?

The Wicked Witch! Ding Dong, the Wicked Witch is dead!

Wake up, you sleepy head, rub your eyes, get out of bed.

Wake up, the Wicked Witch is dead!

If that little ditty doesn’t get you dancing around with glee, then you might be a heartless non-Munchkin who needs to dance and smile more.

And, boy oh boy, do I have a good reason for you to dance and smile. But first a perspective.

Back in the good old days – up until 2010 – our cares were few and light when it came to disparate penalty defense. Even if there was someone else in the agency who was not fired who had done the same thing as the current miscreant, it was OK to fire today’s misbehaver as long as he was in a different organizational component.

This was known as the “comparator employee” analysis. Effectively, it resulted in few removals being mitigated because there was almost always enough difference between or among comparators to justify differential discipline. The Board occasionally found other reasons to mitigate, but this Douglas Factor usually did not carry much weight.

Then, in 2010, we started getting decisions from President Obama’s two new Board members. Clearly, they came into their offices with a different take on workplace accountability. Rather than follow the well-worn path of requiring consistency only below the Deciding Official, these newly sworn-in Presidential appointees decided that an agency had a responsibility to be consistent throughout the AGENCY, an absolutely ludicrous and indefensible position with no basis whatsoever in civil service law. The three decisions that nailed down this new principle in 2010 came to be known among seasoned employment law practitioners as The Terrible Trilogy. See Woebcke v. DHS, 2010 MSPB 85; Lewis v. DVA, 2010 MSPB 98; Villada v. USPS, 2010 MSPB 232. And thus, the dark days began.

It is rare that a new twist in case law harms both sides of the bar, employees and management alike. On the management side, agencies began trying to develop world-wide data bases to track all the discipline being administered, and correlating it with the charged misconduct. Soon, agency practitioners began to realize that they simply could not do what the Board was asking because:

  1. The Board was looking for comparator misconduct, not simply comparator discipline. To satisfy The Trilogy, an agency would need to track non-disciplined world-wide misconduct, a physically and mentally impossible task.
  2. Some agencies tried withdrawing from front line managers the authority to hold employees accountable through discipline. The thought was that centralized discipline decisions would provide The Trilogy’s mandated consistency. Of course, when that was done, line managers who are being held accountable for the success of their organizations began to feel dis-empowered and wondered how they could run their organizations effectively with some panel of HQ lawyers deciding who should be fired and who should not.

On the employee side an obvious adverse situation began to develop. In an effort to ensure consistency in appeals of removal actions, agencies began to fire EVERYBODY so that the bar would be kept high for subsequent comparators. Deciding Officials were coached to provide no mercy. A lower penalty today might mean that a monster could not be fired tomorrow as the Members were applying an extremely broad definition of comparators post-Trilogy. In one particularly noxious decision, the Members compared employees doing different work, at different grades, in different organizations, with different discipline histories, with vaguely similar misconduct, to an employee who was fired based on a charge that the Board re-characterized on appeal. Raco v. SSA, 117 MSPR 1 (2011).

Holy moly, was The Trilogy a terrible mistake. And everyone seemed to realize it, except the two Board members who came up with the idea and were in a position to fix things. Fortunately, President Obama’s newest Board Member Mark Robbins, appointed in 2012, understood the situation and immediately began issuing dissents arguing that this agency-wide comparator philosophy was bad law. Unfortunately, he is but one vote out of three, and The Trilogy marched on.

Every now and then, post-Trilogy we would glimpse a ray of hope. There would be a decision that found that the alleged comparator was not actually a discipline-restricting comparator based on some factor not addressed in the three foundational cases from 2010. Even though that “new” factor was no doubt present in The Trilogy, it was not discussed in those three cases as if it had no relevance. The decision I have viewed as the life raft in this mess is Chavez v. SBA, 2014 MSPB 37. In that decision, without distinguishing The Trilogy in any way, the Members held that a number of common sense factors were relevant to distinguishing a comparator employee, factors not really analyzed in The Trilogy cases.

And if Chavez is the life raft, I think I might now see the rescue boat. Thanks to an alert reader who was kind enough to point out a recent non-precedential decision to me, I have reached the conclusion – tentative, but a conclusion nonetheless – that the two remaining Board members have drifted back to where we were pre-Trilogy. When determining that the alleged comparator was not really a comparator for finding a disparate penalty, the Board relied on the following non-Trilogy factors:

  1. Different positions
  2. Different first line supervisors
  3. Different Proposing Officials
  4. Different Deciding Officials
  5. Different charged misconduct

In addition, although in some previous decisions the Board had raised the issue of disparate penalties on its own motion (that’s sua sponte for all you Latin-os out there), in this decision the Board clearly stated that the agency does not have a disparate penalty defense burden until the appellant “triggers” it by proving non-Trilogy factors such as:

  1. The appellant and comparator are in the same work unit
  2. They have the same supervisor
  3. They have the same deciding official
  4. The penalties occurred relatively close in time (MSPB had previously reached back four years to find a comparator)

In addition, the nature of the acts of misconduct must be so similar that a “reasonable person would conclude that the agency treated similarly situated employees differently.” Brantley v. USPS, DA-0752-14-0590-I-3 (April 15, 2016)(NP). In Brantley, the appellant’s act of misconduct was being an accessory after the fact to armed robbery with a firearm whereas the comparator’s act of misconduct was aggravated battery (throwing bleach in a woman’s face). The Board concluded that the nature of these two acts of misconduct was different because they were committed “under vastly different circumstances.”

I can already hear those nay-sayers now. “But Bill, Brantley is non-precedential. Those decisions don’t really mean very much. Besides, the Members are not specifically saying that they are abandoning The Trilogy. In fact, they specifically reference Lewis, one of foundational Trilogy decisions. Aren’t you over-reading things a bit?” Well, no, I’m not. I might be reading between the lines a bit, but sometimes this business requires that we work off nuances and shades of meaning. In 2010, when developing The Trilogy, the Board didn’t make a big deal out of it. In fact, for the most part it pretended that it was just applying established law under Douglas. I’ve had the honor of working with 12 of the 20 Board members we’ve had in history, and I can tell you that they don’t like to announce case law shifts as major. They like to slide into them, ostensibly based on existing precedence even when they are coming out of left field with a new, perhaps controversial, idea. To my read that is what is happening here.

And for those of you who poo-poo non-precedentials, keep in mind that the reason the Board labels them NP is because the Members are saying that there’s nothing new here, and that the analysis rests on established case law. In other words, this is old stuff. So you may not rely on NPs for controlling authority, but you can bet your next step-increase that the judges read these things and see them as instructive.

I may be wrong on this. But you know what? I don’t care. The way the Presidential campaign is going, coupled with the piecemeal attacks on the civil service being thrown around on Capitol Hill, has pushed me into an employment-law-practitioner funk. I need something to lift me up, and by gosh, this is going to be it. As always, go make your own decisions and do what you think needs to be done. As for me, I’ve got some singing and dancing to do:

It’s gone where the goblins go, below – below – below.

Yo-ho, let’s open up and sing and ring the bells out.


Ding Dong, the merry-oh, sing it high, sing it low.


Let them know The Trilogy is dead!

Wiley@FELTG.com

If you have even a little bit of childlike glee left in you, you will click this link and sing and dance along with the Munchkins, as we do here at FELTG. Hey, nobody’s watching! https://www.youtube.com/watch?v=PHQLQ1Rc_Js

 

You Have to Earn Respect

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By William Wiley

This little pop quiz is for you readers who are supervisors. HR specialists will already know the answers.

Pop Quiz No. 1: How much education does a person need to have to be minimally qualified to be a senior Human Resources specialist in the federal government?

  1. A graduate degree
  2. A bachelor’s degree
  3. A high school diploma or equivalent
  4. Zero, as in not even kindergarten

Pop Quiz No. 2: How much government-specific training is a practitioner required to have to be a Human Resources specialist in the federal government?

  1. 80 hours within the first two years of employment
  2. 40 hours within the first year of employment
  3. At least 8 hours annually
  4. Zero, as in not even what can be written on a 3 x 5 note card

Pop Quiz No. 3: Why is the term “human resources professional” a misnomer?

  1. It suggests a distinction from “animal resources professional.”
  2. “Professionals” are individuals who usually develop their craft from the long-term study of a large developed body of knowledge in an institute of higher education.
  3. The main organization in the federal government devoted to the field is named the “Office of Personnel Management,” not the “Office of Human Resources Management.”
  4. All of the above

Fortunately, you don’t need a 3-D printer to come up with the three 4s as the correct answers to these questions. Amazing, isn’t it? The field of personnel management in the federal government has huge responsibilities, can cost an agency millions of unnecessary dollars if it makes mistakes, and its practitioners routinely claim they don’t get the respect they deserve. Yet in my nearly 40 years in the business, the most significant upgrade the field has made to itself that has been made is to change the name of practitioners from “personnel specialists” to “human resources professionals.”

You don’t get to be a professional by declaring yourself to be one. You have to earn it with formal education. Go ask a classifier.

In comparison, look to some of the modern high-tech companies. At Google, for example, in their “People Operations” division, fully 1/3 of their positions are occupied by specialists required to have graduate degrees in organizational psychology or physics. Cutting edge companies like Google see the field of personnel administration to be a science with decisions based on the collection and analysis of large amounts of data, more data than a single specialist could accrue in hundreds of years of experience. For example, do you know the minimum number of interviews required to hire a top-notch performer for your agency? No, you don’t. But the personnel specialists at Google do because they use applied science and data analytics to reach that conclusion.

No disrespect is intended here. The federal government is fortunate to have a number of individuals working in the personnel (or “people”) field who have learned critical thinking and analytical thought through formal education including advanced degrees. A few have developed those skills without formal education. However, until the bar is set across government for a significant minimal educational level for entry into the field, coupled with a requirement for both initial and on-going continuing education in the respective specialities in a personnel function, practitioners will suffer from a lack of respect, supervisors will suffer from a lack of top-notch support relative to people management, and Our Great Country will suffer because the federal government is not as efficient and effective as it could be.

And don’t get me started on attorneys who don’t educate themselves in the field of federal employment law even though they have significant agency responsibilities in the specialty. I can hum this tune forever. Wiley@FELTG.com

Why Do We Suspend Bad Employees?

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By William Wiley

We’re all federal employment law practitioners. Some of us practice as supervisors; some of us practice as advisors to supervisors. As federal employment law practitioners, we don’t just know what to do, we know why we do it (the difference between being a technician and a professional; ask a classifier). With that role in mind, let’s examine the question, “Why do we suspend employees who engage in misconduct?”

It is generally accepted that we discipline employees to correct behavior. A psychologist would say that when we deny pay by suspending an employee, we are providing “negative reinforcement” in an attempt to encourage him to obey the rules and thereby avoid future misconduct.

We certainly do not suspend employees for the sheer pleasure of watching them suffer. If your bag is to experience Schadenfreude, don’t do it by disciplining your employees.

OK, so we suspend employees to correct their behavior. But is there a downside to management when we decide to suspend an employee? Sure. Those days the employee is suspended are days of productivity that are lost, that coworkers have to pick up the slack. So we suspend to correct misconduct, but we pay a price in lost productivity when we do it.

Given the cost to management of suspending an employee, we should look to the least costly suspension that accomplishes the objective of correcting the misconduct. As far as we know, there’s no official limit as to how long an employee can be suspended in the federal government. However, it’s fair to say that the rare outside examples are in the 90-day range.

Next, we look to see if there’s anything that makes longer suspensions more expensive to management than shorter suspensions, aside from the degree of productivity loss that comes from any suspension. And lo and behold, we find that Congress has built into the law a tremendous cost increase as suspensions get longer. 5 USC Chapter 75 (adverse actions) tells us that if an agency suspends an employee up to 14 days (10 work days; generally a pay period), the employee can challenge the merits of the suspension within the agency, but not beyond. However, if an agency suspends an employee for more than 14 days, the employee can challenge the merits of the suspension outside of the agency to the US Merit Systems Protection Board. And as every practitioner knows, a right to appeal to MSPB gives the employee a full blown hearing with discovery (depositions, interrogatories, document production into the millions of pages), an appeal to the three Board members, an appeal to the Federal Circuit, and even a potential appeal to the Supremes.

Several years ago, GAO estimated that it cost the government about $100,000 to defend an agency if an individual filed an MSPB appeal. And that was just through the hearing level. Add to that the cost of defending a long suspension beyond the hearing level, plus the one in four possibility that the agency will lose and have to pay back pay and attorney fees (add in there an expense factor for damages in some cases), and you have yourself a bucket load of potential expense.

I have no problem with high cost. When the Porsche dealer told me that the turbo would add $30,000 to the price of my new 911, I considered that the extra expense would let me get from zero to sixty 8/10 of a second faster, and realized that the extra speed was clearly worth the additional thirty-grand. Others might have chosen the standard model, but it’s my money and I get to decide what’s of value to me.

So let’s look at the value of suspensions of different lengths. Remember, we suspend to correct behavior, not for the enjoyment of punishing someone. Is there any research that shows that a suspension of more than 14 days is more likely to correct behavior than a suspension of 14 days?

No. The Porsche will go faster with the turbo, but there are no studies, inside or outside of government, that show that a longer suspension is more likely to correct misbehavior than would a shorter suspension.

Let’s look at where all of this analyzing leaves us:

  • Longer suspensions (over 14 days) are no more likely to correct misconduct than are shorter suspensions.
  • Long suspensions are potentially more expensive than are short suspensions by a significant factor.
  • Therefore, why would anyone with a scintilla of judgment ever suspend for more than 14 days?

Answer: Beats me.

I once had an attorney who wanted to argue this point say that since MSPB mitigates to 30 and 45 day suspensions, they must be good for an agency. No, they must not. Keep in mind, MSPB is not responsible for an efficient government; the employing agency is. MSPB sets the outer limits; it doesn’t say what the actual decision should be. The speed limit on the Beltway may be 65 MPH, but that doesn’t mean you have to drive that speed in the rain, at night, in heavy traffic. Although the Board might mitigate to a long suspension, that mitigation is always characterized as the “maximum reasonable” penalty, not the “appropriate” penalty. And guess who gets to decide what an “appropriate” suspension is?

Your agency managers do.

If I were in a policy-setting position within an agency, I would set a policy that we don’t do suspensions of more than 14 days. Period. If the employee warrants discipline beyond 14 days, he gets removed. The associated costs to the government of a long suspension simply are not worth the zero added value we get.

Hey, it’s your money. You get to decide what’s of value to you. Wiley@FELTG.com .