The Good News: ‘Pro-employee’ is the Secret to Labor-Management Relations

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By Ann Boehm, May 19, 2021

The media does it. The President and Congress do it. I do it. We break the world down into “pro-union” or “anti-union” and “pro-management” or “anti-management.” And with these worldview parameters, we miss the key consideration:  What is “pro-employee?”

The goal for any workforce is for the employees to accomplish the mission. The best way for that to happen is for employees to enjoy their jobs. That can be a little bit challenging, because it’s “work,” not “play.”

There are good managers who have the knack for getting employees to work efficiently and effectively, thus helping them enjoy their jobs. But there are plenty of managers who do just the opposite.

Based upon my years of experience, and years of reading as much as I can on leadership, Federal personnel law and guidance, and media coverage of Federal personnel issues, I think the greatest source of union organizing and angst stems from leadership that forgets to take care of the employees.

In my very first Federal sector labor relations job, the workforce was evenly divided (by five votes in two separate union elections) on who wanted to be represented by the union and who did not. Amazingly, the division broke down based upon the leadership skills of the employees’ supervisors.

The supervisors who were effective leaders tended to have employees who opposed the union, and the supervisors who were not effective leaders tended to have employees who supported the union. It was pretty amazing to witness.

For those employees frustrated with bad leadership, a labor union can seem like the knight in shining armor that will protect them from the wickedness. Yet this is not always the case, because unions are not necessarily “pro-employee” either.

I worked for Immigration and Customs Enforcement at one point during my career. At the time, I had 16 years of Federal experience. We were moving to new office space. I figured as one of the more senior Federal employees, I would get top pick for the new office space. Wrong.

As a bargaining unit member, I was constrained by the collective bargaining agreement theoretically negotiated on my behalf by the union. Turns out, seniority for the bargaining unit was based upon years of service with ICE. All my years of prior service meant nothing, and I was the last person in the office selection queue. I have to tell you it was a big morale killer. The union was not my knight in shining armor.

Unions often make bad decisions without really contemplating the impact on the employees. Unions tend to defend the bad employees, sometimes 100 percent, and often at the expense on the good employees.

Just this week, I heard from an agency that the union, in its defense of an employee’s disciplinary action, challenged the agency’s reliance on the recently revised OPM regulations on comparator employees (5 C.F.R. § 752.403(d). The union called the regulation “fruit of the poisonous tree.”

Yes, that particular OPM regulation derived from the now-revoked Trump Administration Executive Order 13839. But the language of that regulation is logical and consistent with MSPB case law dating back to Douglas v. VA, and other cases from the 1980s. It also corrects the craziness from the MSPB’s “Terrible Trilogy” of cases, suggesting agencies had to look at comparators from all over the entire “big A” Agency.

Consider what the regulation says: “Employees should be treated equitably. Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time. An agency should consider appropriate comparators as the agency evaluates a potential disciplinary action. Appropriate comparators to be considered are primarily individuals in the same work unit, with the same supervisor, who engaged in the same or similar misconduct.” 5 C.F.R. § 752.403(d).

Call me nutty, but this provision makes a lot of sense to me. The union’s knee-jerk reaction to this provision is ultimately not good for the workforce. Bad employees who engage in misconduct need to be disciplined appropriately. Otherwise the good employees the unions also represent will suffer. Disciplining every employee exactly the same just plain doesn’t make sense, yet often that’s what the unions seek.

Sometimes, though, agencies make bad decisions without really contemplating the impact on the employees, and the unions really can help. In 2018, the Department of Agriculture announced plans to relocate two of its scientific agencies from Washington, DC to somewhere else in the United States. The employees of these agencies were facing a major relocation to a point unknown. Not exactly a pro-employee action. The employees unionized pretty darn quickly.

When the USDA ultimately decided to move the employees to Kansas City, the union mobilized to try to mitigate the negative impacts of the relocation. The union was pro-employee in that situation, but the agency was not. Many of the impacted employees left the agency, despite the union’s best efforts to be the knight in shining armor. Without the union, likely more would have left.

Knee-jerk reactions from management that anything the union suggests is bad, and from unions that anything management suggests is bad, are very common and tend to muck everything up. If both sides could consider the employees (all of the employees in the bargaining unit – particularly the good ones) as a primary factor in every decision, I think the Federal sector labor-relations world would be a better place.

Better labor-management relations, and happy employees – that would be Good News! Boehm@FELTG.com

 

The Good News: OPM is Back (I Think)!

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By Ann Boehm, April 20, 2021

A mere two years ago, a move was afoot to abolish the Office of Personnel Management. You know, OPM – the entity created by the Civil Service Reform Act of 1978 that “serves as the chief human resources agency and personnel policy manager for the Federal Government.”

At the time, I wrote an article suggesting that abolishing OPM might not be a bad thing. I reflected on a time, early in my career in the 1990s, where one could call OPM experts and get outstanding advice. And I reflected on how that greatly changed by the end of my career in 2018. OPM stopped being the go-to entity for Federal personnel advice, particularly in the area of hiring federal employees.

Not to bore those of you who read the article then, but my anecdote is worth mentioning again.

I could not fill an Employee Relations Specialist position. Two years of advertising the position resulted in no hires. I went to OPM’s website to see if there was anything there that could help me. The website highlighted OPM’s hiring reform concept. I was prepared to be the manager who could be creative and hire more effectively.

I wrote an email to the address on OPM’s website. Instead of getting some legitimate guidance from OPM, the OPM contact forwarded my email to the Human Resources Director for my agency and indicated that I needed help. I was mortified. What OPM did not only failed to help me, but also embarrassed me with my agency, just for trying to think outside the box.

In 2019, the Trump Administration proposed moving OPM to the General Services Administration and the Office of Management and Budget. Congress placed that action on hold and commissioned a study by the National Academy of Public Administration (NAPA) on the wisdom of this proposal. The findings of that study, issued in March, recommended against dismantling OPM. Elevating Human Capital: Reframing the U.S. Office of Personnel Management’s Leadership Imperative, National Academy of Public Administration, March 2021 (NAPA Report).

The study also highlighted years of OPM failures, particularly failing to provide greater flexibilities to hire. It noted the constant turnover at OPM – from the position of Director on down through the ranks. And it stated emphatically that OPM needs to “focus on strategic human capital management and performance.” NAPA Report at p.22.

Now for the good news. Even before the issuance of the NAPA Report, the current administration signaled support for the mission of OPM.

Just a few days after the Inauguration, on Jan. 25, the Biden Administration identified a new OPM leadership team. On Feb. 23, 2021, President Biden nominated Kiran Ahuja to be OPM Director. Her nomination is pending in the Senate. OPM has been without a Senate-confirmed Director since Dale Cabaniss left abruptly in March 2020, and leadership is important.

Most recently, on April 9, OPM indicated it is ready to improve its management of human capital. It launched the Federal Workforce Competency Initiative (it even has an acronym, FWCI, which we know is a big deal in the Federal government!) to Build Stronger Federal Workforce Capability.

The first phase of the FWCI will be a survey of Federal agency employees and supervisors. The purpose of the survey is to identify competencies and tasks relevant to Federal jobs. Hmmm. Sounds like a good start (and yes, I know, OPM has done stuff like this in the past to no avail. But I’m always hopeful).

Here are some more good signs. We know that OPM worked quickly to issue guidance to agencies on the implementation of Biden Executive Order 14003. I’m also hearing that OPM is happily taking phone calls and providing advice.

Folks, this is a big deal. The Federal workforce is essential to this country. Agencies need support managing the workforce – from hiring to firing. OPM is supposed to help. And maybe, just maybe, help is on the way.

Think good thoughts, my friends. I’m looking forward to a renewed and improved OPM that can result in a better Federal government for all! That would be Good News! Boehm@FELTG.com

The Good News? ‘He Left the Job Because He Just Couldn’t Take the Union Any Longer’

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By Ann Boehm, March 16, 2021

I overheard an agency employee quote the headline above when explaining why a supervisor left his job for another position. The supervisor couldn’t deal with the union any longer.

This is a sad statement. And yet, I’ve heard it before. Heck, I’ve felt that way myself at various times during my career.

Many of you are probably nodding your heads in agreement. But that’s not the way it is supposed to be. And with a pro-union Administration, what’s an agency manager, labor relations specialist, or attorney to do?

If you read my articles, you know by now that I am a hopeless optimist. When drafting this article, I wanted to help those of you in the trenches deal more effectively with the unions, so that you don’t want to leave your jobs.

We know that Congress stated in 5 U.S.C. §7101(a) that collective bargaining “safeguards the public interest” and “contributes to the effective conduct of public business,” but that doesn’t seem to be the case with the supervisor mentioned above. Causing an agency supervisor to leave a job does not seem to be in the public interest. (OK, it could be if the supervisor is a real jerk, but I did not get the sense that was the case with this individual.)

We also know that President Biden’s Executive Order 14003 says, “it is also the policy of the United States to encourage union organizing and collective bargaining.” The President believes that  in supporting the “[c]areer civil servants” who “are the backbone of the Federal Workforce” and “necessary for the critical functioning of the Federal Government,” unions must be empowered.

But aren’t managers and supervisors necessary for the critical functioning of the Federal Government? Of course. There needs to be a balance between labor and management. Creating that balance, however, is an age-old dilemma.

In an effort to help, I’ve thought of some things I believe may help everyone work effectively together (remember – I’m a hopeless optimist).

1 – Read the Federal Service Labor-Management Relations Statute (Statute). Yes, the whole thing. It’s right here. Don’t be frightened. I just re-read the whole thing and timed myself. It took me 15 minutes. You may not understand every word of it, and you don’t need to become an expert on what it says, but it may help you better understand how labor and management are supposed to interact.

Why am I telling you to do this? Because knowledge is power. The Statute is the basic rulebook for all things labor-management relations in the Federal government.

Believe it or not, sometimes even well-meaning unions do things that are contrary to what the Statute says. But if the managers and supervisors dealing with them don’t know that, they just feel like the darn union is too hard to handle.

2 – Read the entire collective bargaining agreement (CBA). This may be more of a time commitment. Although it boggles my mind, the reality is that many of you have to work with 300-plus page CBAs!?! But if you don’t know what it says, you are at the mercy of the union officials who tell you their interpretation. At least skim it and focus in on the areas that seem to arise most frequently with your bargaining unit employees.

3 – Be prepared to fight the union if they legitimately are violating either the Statute or the CBA. That’s the main reason the FLRA exists – to resolve disputes between the agencies and unions. If you complete steps one and two, above, you will be better positioned to challenge the union when it’s legally appropriate.

4 – Stay mission focused. This should be the mantra for all Federal employees – bargaining unit members, managers and supervisors, attorneys, labor and employee relations specialists. Everyone! If you can assert that any union activities are interfering with the agency’s ability to fulfill its mission, you will be better positioned for any potential litigation (and heaven forbid, media interest).

5 – Communicate with the union. Remind them of the agency’s mission. Let them know you have read the Statute and the CBA. Understand that sometimes they will have good ideas that could make the workforce happier and more effective. Tell them, logically and legally, when they are putting bargaining unit employee rights ahead of the rights of the American people on whose behalf you are obligated to serve.

I hope all of this helps. I know the unions feel vindicated by this Administration after feeling attacked by the last one. It is probably frustrating. Stay strong. And I hope none of you want to leave your jobs because you are tired of dealing with the union! Boehm@FELTG.com

 

Transition Talk: Be Honest and Positive, and Offer Training to Appointees

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By Dan Gephart, March 2, 2021

This is the final article in our Transition Talk series, where members of the FELTG Faculty share their advice on how to best work with presidential appointments and thrive under a new Administration. See our previous articles in the series:

 

Ann Boehm experienced a number of presidential transitions during her 26-year Federal career. Her most recent transition was in 2017. Ann was working for the U.S. Marshals Service, where more than 90 presidentially appointed marshals were potentially entering on duty.

“During the 2017 transition, we decided to mandate a training course for the new U.S. Marshals,” Ann said. “The training included procurement, appropriations, and personnel law, as well as other things regarding the day-to-day running of the U.S. Marshals Service. The Marshals greatly appreciated the training. Presidential appointees are busy people, but agencies committed to providing them with effective training can ease the transition for everyone involved.”

DG: What is the best advice you have ever given — or would like to have given — to a presidential appointee?

AB: I think it is important for presidential appointees to listen to the career Federal employees. Sometimes the appointees undervalue the career feds. They also may be coming from the private sector or even state or local government, and they need to get assistance from the career employees on how procurement, appropriations, and personnel (from hiring to firing), among other things, all work in the Federal government.

DG: What is your advice for FELTG readers working with new presidential appointees?

AB: The most important thing to do when working with new presidential appointees is to maintain a positive attitude. Most human beings do not like change, and most presidential appointees come into an agency looking to change things. Career Federal employees can sometimes be overwhelmed by appointees coming in and wanting to alter the way the agency runs.

It’s important to understand the appointees’ motivation, and also to educate them if an idea is unlikely to succeed. In my experience, the appointees want to succeed, and a logical argument can go a long way toward helping them understand agency culture and what is likely to be the best way to further the agency’s mission.

DG: What is the most important skill necessary to survive and thrive in a new administration?

AB: I think the most important skills are flexibility and honesty. Do not be afraid of new ideas, but be prepared to explain when things are not working.

Ann will be one of the presenters at the upcoming MSPB Law Week, FLRA Law Week and the FELTG Forum 2021: Emerging Issues in Federal Employment Law. If you’re interested in bringing Ann Boehm to your agency for training, email Gephart@FELTG.com.

Focused on Mission and the American People: An Effective Federal Workforce

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By Ann Boehm, February 10, 2021

Let’s be honest. The past administration did not hold any particular fondness for Federal employees. We can start with the whole “Drain the Swamp” thing.

Being referred to as swamp dwellers does not do much for employee morale.

The Biden Administration is trying to rebuild the morale. President Biden recognizes and values civil servants. He’s been busy in the first few weeks of his administration making that clear.

Executive Order 14003, issued just two days after the inauguration, rescinded Executive Orders 13836 (limitations on collective bargaining); 13837 (limitations on official time); 13839 (accountability for employee performance and misconduct); and 13957 (creation of at-will Schedule F employees).

Unions and federal employee advocates are cheering the administration’s efforts, and so am I. But having gone through this kind of transition several times during my own career, I am also a bit afraid of the pendulum swinging too far in favor of employee unions and in favor of protecting the bad employees.

An important part of employee morale is ensuring that agencies deal effectively with Federal labor organizations, and also with discipline problems and poor performers. Your friends here at FELTG have spent more than 20 years helping agencies do just that.

The system Congress created in the Civil Service Reform Act back in 1978 remains in place. Federal employees have many rights. But they don’t have the right to be bad employees.

I think it’s important to recognize what President Biden already has said about the Federal workforce. Executive Order 14003 begins with this statement: “Career civil servants are the backbone of the Federal workforce, providing the expertise and experience necessary for the critical functioning of the Federal Government. It is the policy of the United States to protect, empower, and rebuild the career Federal workforce. It is also policy of the United States to encourage union organizing and collective bargaining.”  E.O. 14003, § 1 (Jan. 22, 2021).

Beats swamp-dweller, right?

Also, in a taped message for all career staff, President Biden made these statements:

– “We’re a team … One team for one America.”

– “You are civil servants for all Americans.”

– “[T]ogether we will lead with core values … values that help us make good decisions, stay focused on what’s most important, and keep ourselves accountable, hold ourselves accountable to the American people and to our conscience.”

– “Humility, trust, collegiality, diversity, competence: these are the values that most of you look to. These are the values that form our vision for our work ahead.”

Pretty powerful stuff. If you haven’t watched the President’s video, I highly recommend that you do. And make sure your employees watch it too.

In this administration, unions are more empowered. Employees are more empowered. And yes, managers are also empowered (and protected – be very thankful that Schedule F is gone). What’s critically important in this more positive environment is for every Federal employee to make sure that the American people come first.

How do agencies ensure that this happens? I recommend that agency managers, labor-relations specialists, and labor relations attorneys reach out to their bargaining unit representatives. Communicate effectively. Talk about the rescinded Executive Orders. Work together to ensure the President’s goals are achieved, keeping in mind that the goal for all is to stay mission focused and help the public.

Also continue to take appropriate action to handle those performance and misconduct problems that impact negatively on the morale of the many outstanding civil servants. Even the President’s speech noted that “most” of the career civil servants embrace the values he highlighted. Those who don’t should be handled as Congress envisioned in 1978, through the discipline or performance routes.

It’s good to be a Federal employee. It always has been. Now you have the support of the administration. You can focus on your mission. You can take care of the American people. And that’s good news! Boehm@FELTG.com

The Good News: 30-day Demonstration Periods – ‘Just Do It’

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By Ann Boehm, January 11, 2021

I’m not quite sure why the 1980s Nike “Just Do It” slogan came to my mind as a title for an article about using a 30-day demonstration period (also known as a PIP, ODAP, NODAP, DOP, etc.) to handle a poor performer. Perhaps it’s because I long for a simpler time.

Or maybe I’m too obsessed with binge-watching Cobra Kai. Terrific show! Lots of  ’80s nostalgia. (If I’m ever conducting training for your agency, ask me about the time I served breakfast to William Zabka/Johnny Lawrence.)

Or maybe thinking back to a 1980s slogan is a subliminal recognition that since at least 1989, the Merit Systems Protection Board (MSPB) has said that 30 days is legally sufficient time for unacceptable performers to have an opportunity to demonstrate that they can perform their job before being removed, demoted, or reassigned. Melnick v. Dep’t of Housing, Urban and Development, 42 MSPR 932 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990)

Or maybe It’s because back in 1986, during a federal personnel training session, I heard the attorney instructor say, “Performance is the easiest way to remove a federal employee, but no one is doing it.” That always stuck with me.

Performance is the easiest way to remove a federal employee. Why is that?

Performance cases are reviewed by the MSPB using the “substantial evidence” burden of proof. That’s “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p) (emphasis added), 5 C.F.R. § 1201.56(b)(1)(i).

It is a lower burden of proof than the “preponderance of the evidence” that is required for misconduct cases— “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q) (emphasis added), 5 C.F.R. § 1201.56(b)(1)(ii)

Congress intended for performance to be the easier way to remove Federal employees. Why else would the burden of proof be lower for performance than misconduct?

But many years later, agencies still resist handling poor performers through the performance removal process. And I firmly believe the reason they do is because they make the demonstration periods too daggum long.

Agencies I worked for — and agencies I trained for the past two plus years with FELTG — wrongly have believed a demonstration period should 60, 90, or heaven forbid, 120 days long. Sometimes the agency policies contradict this belief. Many agency policies state a demonstration period should be 30 days.

Why does this continue to occur?

Some supervisors, HR professionals, and attorneys think the law requires more. Sometimes they fear if they don’t give the employee at least 60 days, they will get sued (um, employees have lots of ways to sue agencies, and they will do so no matter how long the demonstration period runs). Some even believe it’s too hard to measure performance in 30 days.

Let me tell you what is really hard. Expecting a supervisor to manage a demonstration period for more than 30 days.

An employee comes to work every day to do something associated with her job’s critical elements. If the employee is unacceptable on a critical element, there are assignments she should complete during a 30-day period that allow her to show she can perform acceptably – or not.

The supervisor has to work hard during a demonstration period – providing assignments, reviewing them, assessing them. It is reasonable to expect a supervisor to spend 30 days in order to have the opportunity to remove a poor performer. But if we expect them to spend more than 30 days, it becomes too onerous. And that’s not what Congress intended.

If you still don’t believe me, keep in mind that the newly issued Office of Personnel Management regulations do not include a timeframe for the demonstration period. All that they require is a “reasonable opportunity” for the employee “to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.” And good old Melnick told us back in 1989 that a 30-day demonstration period satisfies that “reasonable opportunity.” The MSPB confirmed this more recently in Thompson v. Dep’t of the Army, 2015 MSPB 31, n.12 (2015).

So, in 2021, Just Do It. Thirty-day demonstration periods. Handle problem employees. It’s easy. And that’s good news! Boehm@FELTG.com

The Good News: A Letter to Santa

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By Ann Boehm, December 15, 2020

Dear Santa:

I think I have been very good this year, although 2020 needs to be on the naughty list. I hope you and Mrs. Claus are doing OK during the pandemic.

For Christmas this year, here are some Federal employment law things I’d like:

  1. A quorum at the Merit Systems Protection Board (MSPB). (Two members will do. Three would be really great.)
  2. A General Counsel at the Federal Labor Relations Authority (FLRA).
  3. Simplification of the Federal equal employment opportunity complaint process. (I know, I’ve been asking for this for a very long time. It’s kind of like the pony I keep asking for – I just know it will show up someday.)
  4. Labor-management partnerships that are actually balanced exchanges of ideas between unions and management.
  5. Performance improvement plans /demonstration periods/opportunities to demonstrate performance that stay 30 days long (because that’s always been long enough according to the MSPB).
  6. Recognition by the Federal unions that bad employees hurt the good ones, even bargaining unit members – and then (this is a big ask) union cooperation with management when management takes care of the bad ones through discipline or performance.
  7. Decisions from the MSPB (see number 1), the FLRA, and the Equal Employment Opportunity Commission that are based more on the law than on political biases.
  8. Some kind of amazing alternative dispute resolution process at the MSPB that will help them with their backlog of more than 3,000 appeals.
  9. Smooth transitions for Federal employees and agencies as people start returning to the workplace, whenever that happens.
  10. A pony. (I know it’s not really a Federal employment law thing, but I still really want one, and I have to keep trying.)

Thanks, Santa. Be safe out there on Christmas Eve! I can’t wait to see what you bring me! Boehm@FELTG.com

Good News: With This FLRA, It’s Good to be an Agency, Part Deux

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By Ann Boehm, November 30, 2020

A few weeks ago, I told you about the three FLRA decisions that are definitely on the pro-agency side of the bargaining spectrum: U.S. Department of Education and U.S. Department of Agriculture, 71 FLRA 968 (Sept. 30, 2020); U.S. Office of Personnel Management, 71 FLRA 977 (Sept. 30, 2020); and U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986 (Sept. 30, 2020). I focused that article on the first case and promised to provide in-depth coverage of the other two in a subsequent article. So here goes:

U.S. Office of Personnel Management, 71 FLRA 977

This case makes zipper clauses a mandatory subject of bargaining.

Let’s start with what may seem like a basic question: What is a zipper clause? A zipper clause is a provision in a collective bargaining agreement (CBA) that forecloses the union’s right to bargain during the term of the agreement on matters not contained in the CBA.

Agencies and unions have always had the ability to negotiate over inclusion of zipper clauses in the CBA, but until this decision was issued, zipper clauses were not mandatory subjects of bargaining. With the FLRA now stating that they are mandatory subjects of bargaining, the parties may bargain zipper clauses to impasse.

In practice, this could take away union rights to initiate midterm bargaining. It also could simply result in more clever negotiating tactics by the unions and agencies. Member DuBester suggested as much with this line from his dissent: “In reality, unions wishing to preserve their ability to initiate midterm bargaining will now be required to trade something of value at the bargaining table in hopes of securing what was, until today, a statutory right.” Id. at 985.

You heard it here agencies (thanks to Member DuBester). Be clever in negotiating. Zipper clauses are very much on the table.

U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986

This case allows for Agency head review of expiring, existing collective bargaining agreements when there is a request for renegotiation pending.

Two key statutory provisions apply in the FLRA’s analysis of this matter — 5 U.S.C.§7114(c)(1), which provides that CBAs are subject to agency head review, and 5 U.S.C.§ 7116(a)(7), which provides that it is an unfair labor practice for an agency to enforce a rule or regulation in conflict with an existing CBA if the CBA was in effect before the date the rule or regulation was prescribed.

Since 1993, the FLRA has held that for CBAs that automatically renew upon expiration, the Agency head may review the agreement the day after the expiration of the CBA window for requesting renegotiation. Kansas Army Nat’l Guard, 47 FLRA 937 (1993). This review ensures that the renewed agreement complies with any rules or regulations that changed during the previous CBA term.

What the Department of Agriculture asked the FLRA to decide in this case is whether there can be Agency head review of an existing CBA when a party requests to renegotiate an expiring CBA with a continuance provision. It’s a pretty discrete issue, eh?

Here’s what the FLRA decided. If a continuance provision extends the CBA past the original expiration date, “the first day of the extension period that is beyond the original expiration date” is the beginning of a new term. Id. at 989. So, on the first day of the extension, all rules and regulations that became effective during the previous term apply, and the Agency head has 30 days to review.

Now once again, Member DuBester was not pleased. He believes this decision is contrary to 5 U.S.C. § 7116(a)(7). According to his interpretation of the matter, a continuance provision is an agreement that the existing CBA remains in full force and effect until a new CBA is approved. Id. at 990. That would foreclose Agency head review. He even goes so far as to say the FLRA’s explanation of how it determined that the extended agreement is in “a meaningful sense” not the same one in effect “is—to put it mildly—novel.” Shazam! Id. at 991.

Well, there you have it. As I said in my previous article, none of these three decisions eliminate the bargaining rights of unions. But they do tilt in the agencies’ favor. Count on all three being appealed by the unions. Stay tuned. And for now, have fun agencies. Boehm@FELTG.com

[Editor’s note: Want to learn more about these and other recent noteworthy FLRA decisions, such as the recent decision that dealt a “major blow” to the 2017 VA Accountability and Whistleblower Protection Act, and their impact on your agency? Register now for What’s Going on at the FLRA? Case Law Updates and More on December 8 from 1 – 2 pm ET.]

Good News: With This FLRA, It is a Good Time to be an Agency

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By Ann Boehm, October 14, 2020

You may be aware that the FLRA recently issued three decisions that are definitely on the pro-agency side of the spectrum:  U.S. Department of Education and U.S. Department of Agriculture, 71 FLRA 968 (Sept. 30, 2020), which changes the standard for an agency’s obligation to bargain changes to conditions of employment; U.S. Office of Personnel Management, 71 FLRA 977 (Sept. 30, 2020), which makes zipper clauses a mandatory subject of bargaining; and U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986 (Sept. 30, 2020), which allows for Agency head review of expiring, existing collective bargaining agreements.

As you can imagine, these decisions have drawn the ire of the major Federal unions. They also received some media attention. The headline for an October 2 Government Executive article is pretty strong:  “Labor Authority Abandons Decades of Precedent, Eviscerates Union Bargaining Rights.”

Also, the lone Democrat on the FLRA, Member Ernest DuBester, dissented in all three decisions.

So, what’s going on here?

Is this the end of collective bargaining in the Federal government as we know it?

Not necessarily. But with these three decisions, this FLRA is trying to make things easier for agencies in the collective bargaining context.

Here are some of my general observations on these three cases.  

Observation Number 1

Each of these cases is a “Decision on Request for General Statement of Policy or Guidance.” Section 2427.2 of the FLRA’s regulations allows for issuance of such decisions, and section 2427.5 sets forth the standards the FLRA is to follow in determining whether to issue a general statement of policy or guidance. 5 C.F.R. §§ 2427.2, 2427.5.

These types of decisions have been rare in the history of the FLRA, but more common with the current FLRA. The issuance of three such decisions on one day is notable.

Why is the FLRA proceeding in this way? I suspect it is because there is no General Counsel for the FLRA. A nomination has been pending, but the Senate has not confirmed. That means no unfair labor practice (ULP) complaints are being prosecuted before Administrative Law Judges (ALJ), since only the FLRA General Counsel can prosecute ULP complaints. ALJ decisions can be appealed to the FLRA for review. Without ULP complaints and ALJ decisions to review, there are areas of Federal sector labor-management law that this FLRA has not been able to consider – or perhaps more significantly, reconsider.

Agencies are aware of this FLRA’s pro-agency tilt, so they are cleverly utilizing 5 C.F.R. § 2427.2 to seek general statements of policy or guidance. The FLRA is happy to oblige.

In one of his dissents, Member DuBester notes that “[i]n several recent decisions, my colleagues have reversed long-standing and well-reasoned [FLRA] precedent based solely upon their view that it was inconsistent with the plain language of the Federal Service Labor-Management Relations Statute.”  U.S. Dep’t of Agriculture, OGC, 71 FLRA at 990. He also states, “[i]f one thing is clear from the rash of policy statements that the majority has recently issued, it is that this is no way to establish precedent on significant matters affecting federal-sector labor relations.” Id. at 991. No doubt, the unions will challenge these decisions in Federal court. It will take a while to get through that process, but stay tuned over the next year to see whether the courts think the FLRA has overstepped its bounds.

Observation Number 2

Good golly, these decisions have a lot of footnotes. If you have taken our legal writing courses (or really any writing course), the usual guidance is to avoid footnotes. They are distracting. If it’s important enough to mention, put it in the text. OK, I’m off my soapbox now.

Observation Number 3

I don’t think these decisions are horrible. Granted, I spent a good part of my career on the agency side of matters. For purposes of this month’s article, let’s focus on the FLRA’s decision in U.S. Department of Education. (I’ll cover the other two decisions in subsequent articles. Or, if you just can’t wait,  attend the webinar Precedents Broken: The New Future of Collective Bargaining on November 2 for more information.)

Based upon my reading of the decision, I think it would be fair to say the FLRA pushed a reset button on management bargaining obligations with unions. I would not say that the decision deprives unions of their bargaining rights.

The decision focuses on the bargaining obligations under 5 U.S.C. § 7106(b) — “when an agency makes a change to a condition of employment, it may be required to bargain over either procedures or appropriate arrangements (sometimes referred to as ‘impact and implementation bargaining’).”  U.S. Dep’t of Education, 71 FLRA at 968.

Has the FLRA diluted the management bargaining obligation? Yes. Eviscerated the unions’ collective bargaining rights (as announced by Government Executive)? Not so sure.

In this recent decision, the FLRA returned to a bargaining obligation standard originally set under interpretations of Executive Order 11491, Labor-Management Relations in the Federal Service (Oct. 29, 1969), and applied by the FLRA until 1985. That standard required bargaining “only when a change had a ‘substantial impact’ on conditions of employment.” U.S. Dep’t of Education, 71 FLRA at 968.

This standard is also applied by the National Labor Relations Board (NLRB) in determining whether private sector employers are obligated to bargain over work changes. U.S. Dep’t of Education, 71 FLRA at 970. NLRB case law is regularly used by the FLRA and even the courts for guidance on labor issues. Id. n.30.

Since 1985, the FLRA has applied a different standard that required bargaining “whenever a change to a condition of employment was ‘more than de minimis.’” Id. According to this decision, “the [FLRA] has effectively extended the bargaining obligation under the de minimis test to conclude that a matter triggers an agency’s duty to bargain, no matter how small or trivial.” Id. at 969. I think that’s a fair point.

One of my favorite cases that illustrates a pretty heavy, and in my opinion, ridiculous bargaining obligation on the part of an agency involved vending machines. The agency changed the vending machine cost of a soda from $.50 to $.55. Marine Corps Logistics Base and AFGE, 46 FLRA 782 (1992). The FLRA found that the agency’s failure to bargain over this change in working conditions was an unfair labor practice. Id. OK smarty pants lawyers out there – the agency in that case did not argue that this was a de minimis change not subject to bargaining. But the FLRA did find that there was an obligation to bargain over a five-cent change in vending machine cost. If that’s not de minimis, I don’t know what is.

Interestingly, in the D.C. Circuit case cited in Member DuBester’s dissent, where the court adopted the FLRA’s de minimis standard, the union challenged the standard as too onerous. Association of Administrative Law Judges v. FLRA, 397 F.3d 957, 963 (Jan. 28, 2005).

The union argued that the de minimis standard would damage union bargaining efforts and cause confusion and extensive litigation. Id. Wow. Think that one through. Anyway, the court agreed that the FLRA properly interpreted its own statute by establishing the de minimis standard. And now the FLRA has decided to change that interpretation. Technically, that’s the FLRA’s job — to interpret its statute.

I’m sure there are agency labor relations specialists and counsel who have negotiated minimal changes to working conditions with unions. Congress explicitly stated in 5 U.S.C. § 7101(a) that collective bargaining “safeguards the public interest” and “contributes to the effective conduct of public business,” but did it really intend for just about anything to be negotiated? The FLRA’s change to the higher “substantial impact” standard may be a healthy reset. Of course, the courts will have to agree. But for now, it’s a good time to be an agency! Boehm@FELTG.com

Good News – Letters of Reprimand Save You Time and Money

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By Ann Boehm, September 16, 2020

I left the government in 2018, I spent a short time working in sales. In nearly every training session or staff meeting I attended, we were told to make sure the potential client knows your goal is to save them time and money. It makes sense. Those are things that people care about. (And now that I have told you that, you will now start to hear that “time and money” mantra from realtors, car salespeople, bathtub refinishers, gutter replacers, and anyone else trying to sell you something. Really. Start paying attention.)

I know what you’re thinking: We work for the government – we have all the time and money in the world. In some ways, that is true. But if you have a problem employee, do you really want to waste any more time and money than you have to?

Let’s start with time. So many agencies just love giving out letters of caution/letters of instruction/letters of warning to employees who engage in misconduct. Here at FELTG, we call those “lesser letters.” True, they are legal. But they are a complete waste of time, legally speaking. They don’t count as prior discipline. They are nothing more than a reminder to an employee that they have to abide by the agency’s rules.

To count as prior discipline for progressive discipline purposes – the ultimate goal in employee discipline – the employee’s action has to be clearly erroneous, the employee must be informed in writing, the action must be a matter of record (i.e., in the eOPF), and the action must be grievable and threaten future discipline. Bolling v. Air Force, 9 MSPR 335 (1981). Letters of reprimand satisfy these criteria. Lesser letters do not.

For some reason, supervisors, counsel, and HR professionals feel great comfort when they give an employee a “letter” — one of the lesser letters. When I supervised Discipline Management, we kept track of how many lesser letters we gave out each month. The number hovered around 35 per month. That’s a lot of wasted time.

Once I attended FELTG training and learned that only letters of reprimand count as prior discipline, we slowly stopped the constant issuance of lesser letters. I had to retrain  a lot of supervisors, managers, and employee relations experts on why we should issue letters of reprimand when we wanted to issue a “letter.” We ended up dropping the number of lesser letters to zero (or very close to it), which is the right thing to do, since the lesser letters are undefined and have no legal value.

  1. So that covers saving time. What about saving money? Lesser letters provide the agency with no disciplinary value, but they still provide an avenue for an employee to grieve or file an EEO complaint or file a whistleblower retaliation claim. Last time I checked, litigating those matters costs money. And heck, they take time too.

In Massie v. Department of Transportation, 2010 MSPB 106 (2010), the Agency issued the employee a Written Admonishment (yep, a lesser letter that was not placed in the eOPF). The employee filed a whistleblower retaliation complaint with the Office of Special Counsel (that took agency time and money).  He also filed a grievance under the collective bargaining agreement, which the agency settled by expunging the Written Admonishment (that took agency time and money). The employee then filed an Individual Right of Action appeal before the MSPB. The MSPB administrative judge scheduled a hearing, cancelled the hearing, scheduled the hearing, and then cancelled the hearing based upon the agency’s motion to dismiss the appeal for lack of jurisdiction (lots of agency time and money!).

The administrative judge dismissed the case and the employee appealed to the MSPB. And he won his appeal. The MSPB said this: “[R]egardless of whether the agency placed the Written Admonishment in the appellant’s Official Personnel Folder or not, he has nonfrivolously alleged that the agency subjected him to a covered personnel action when it issued him the Written Admonishment.” Id. (emphasis added). The MSPB then remanded to an administrative judge for a hearing. Good golly. All that for a letter that really did nothing for the agency.

So what’s an agency to do?  If an agency does not think an act of misconduct merits a letter of reprimand, send a corrective email. While an email has zero disciplinary value (um, just like a lesser letter), it’s also unlikely to generate a grievance or EEO complaint or whistleblower case. It can be a basis for a subsequent failure to follow instruction charge, or show that the employee had notice of a rule.

If you want to write a letter, make it a letter of reprimand. Help yourselves out. Save time and money! Eliminate the lesser letters! You’ll be glad you did. Boehm@FELTG.gov