Who’s Afraid of a Big Bad PIP?

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By William Wiley, September 11, 2018

We hear it all the time from participants in our supervisory classes. “My HR specialist advised me not to use the Chapter 43 unacceptable performance procedures with a problem employee. He said the misconduct procedures would be much easier.” The White House executive order dealing with accountability went out of its way to stress that Chapter 75 procedures were always an option instead of Chapter 43 when dealing with a poor performer, see EO 13839, “Promoting Accountability & Streamlining Removal Procedures Consistent with Merit System Principles.” Finally, the recent MERIT Act voted out of a House committee last month would abolish 5 USC Chapter 43 altogether, thereby preventing agencies from using a demonstration period to give the employee a chance to show whether he can perform acceptably.

Here at FELTG, we just don’t see the problem. Sure, if the bad employee has already done something that warrants removal, 5 USC Chapter 75 adverse action procedures are preferable. Otherwise, 5 USC Chapter 43 procedures offer a list of advantages, and they are easy to use.

One aspect of the unacceptable performance procedures that causes a lot more problems than it should comes from the document that must be given to the employee to initiate the evaluation period. So many agencies overwork that particular memo, adding in a bunch of things completely unnecessary to having a legally viable document. Stuff like:

  • Instances of previous unacceptable performance that caused the supervisor to implement an evaluation period.
  • Referrals to EAP, EEO, medical providers (in case there’s a disability), OSC (in case the employee thinks he’s being reprised against for whistleblowing), etc.
  • Lengthy paragraphs as to how important it is to the mission of the agency that the employee perform acceptably, admonitions to work hard and prosper, and promises of tremendous help and guidance throughout the period.

Not only does all this extra language take more time, but it does nothing useful for the agency, and in some instances can even cause more trouble than necessary. Look. You want to initiate a demonstration (aka PIP) period? Easy peasy. Send the employee an email like this:

Bill-

It’s come to my attention that lately you have not been performing acceptably regarding Element 3 of your annual performance plan (attached). I have decided to give you 30 days to demonstrate whether you can raise your performance to an acceptable level. Starting today, here are some things I need you to do.

1 – Keep copies of every document (including emails) you create relative to the tasks that relate to Element 3.

2 – Keep a log of all phone calls and in-person discussions. Note the person involved, the content of the discussion, and whether any follow-up was required on your part.

3 – Meet with me every Friday for the next 30 days to discuss your progress for the week. We will meet in the main conference room at 2:00 PM, and you are to bring the above with you.

If you fail to accomplish three or more Element 3 assignments during the evaluation period, regrettably I am required to initiate steps to remove you from your position. Should you have any questions regarding my expectations of you, please direct them to me at any time.

Those of you with sophisticated computer skills might even be able to squeeze this into an instant message. Or, even a 280-character tweet. This is not hard. In fact, it is embarrassingly easy. If you believe that more is required, you do not understand the law of civil service performance accountability. Hey, that’s OK. Come to our classes. Learn the best way to do this business. Tell the folks on Capitol Hill and in the White House that we don’t need new laws, we just need good training. Hey, you can have us come out to train you. Or, if drafting the above email is just too much for you, we’ll even do it for you.

Don’t let poor performers get you down. FELTG is here to help. Wiley@FELTG.com

The New Definition of Collective Bargaining

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By William Wiley, September 3, 2018

As we talked about in this space last week, a federal district court judge has recently enjoined (stayed, put on hold) major parts of the three Executive Orders that were issued by the White House back in May. The EOs were intended in large part to curb the accomplishments of unions in the civil service. The court’s order declared the EOs to be illegal primarily because by setting out bargaining objectives, the President has effectively foreclosed agency officials from negotiating for anything other than those objectives. The judge concluded that the President’s setting of bargaining objectives was an impermissible interference with a union’s rights in negotiating with management. The court reasoned that by definition collective bargaining requires the parties to be “flexible,” to bargain in a “give and take manner,” and to work toward a “mutually acceptable resolution.”

Well, where did this new definition of collective bargaining come from?

Here’s how the law has defined collective bargaining in the federal sector for over 40 years:

The performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession. 5 USC 7103(a)(12)

Somebody show me the word “flexible” in here. Where does the law require that the negotiators have to both “give and take”? The law says that there should be “effort to reach agreement.” Where does the judge find the definition of “agreement” to mean “mutually acceptable” agreement?

Consider the “mutually acceptable” tweak for a moment. If you tell me I have to sell my used car for a “mutually acceptable” price, I cannot stand firm on my asking price and I have to keep making concessions until the buyer says, “I’ll take it.” Maybe that’s a good way to negotiate if you’re having a garage sale because in reality, you just want the junk out of your garage, and you’ll take any offer just to get someone to haul it away. In comparison, selling your old Porsche is not a yard sale. You have a firm price and it can sit in that garage until your kids have to deal with it during the probate of your will for all you care. You are not letting it go for less than what you consider to be its value.

Collective bargaining in the federal government is not a garage sale. If the union demands free office space in a proposal, management should be free to just say no. Nothing in the law or derived case law says that an agency engages in bad faith bargaining by refusing to concede things to the union, or that management negotiators have to be “flexible” and engage in “give and take.” The court effectively is mandating that if management (or, I guess the logic would hold true for the union, as well) is inflexible and refuses to make a concession, it is violating the law. Well, the law says very specifically that collective bargaining “does not compel either party to agree to a proposal or to make a concession.” The very words “flexibility” and “give and take” imply the making of concessions. The judge in this case has misapplied the law.

The court’s decision concludes that the EOs impermissibly interfere with the union’s rights to collective bargaining. That’s equivalent to saying that the EOs require bad faith bargaining. If you know your FLRA case law, you know that bad faith bargaining occurs, inter alia, when a party refuses to meet, refuses to consider the views of the other party, or refuses to participate in the impasse process. There has never been a single Authority decision that says a party engages in bad faith bargaining by refusing to make a concession, by being inflexible, or by abstaining from giving and taking.

Had the White House issued an EO that directed the Federal Service Impasses Panel how to rule on impasses brought before it, then, in our humble opinion here at FELTG, that would be an impermissible interference with the union’s rights to collective bargaining. The EOs don’t do that. Instead, they lay out objectives to be attained within the framework of collective bargaining consistent with the law. They acknowledge the collective bargaining process and do not attempt to interfere with the conclusion of that process before FSIP, if necessary.

The court’s decision effectively bars the President from providing guidance to agency heads regarding negotiation objectives to be attained through collective bargaining. However, 5 USC 301, read in consideration of 5 USC 305, makes the President, through subordinate agency heads, responsible for “determining the degree of efficiency and economy in the operation of the agency’s activities.” One would think that this statutory scheme allows the President to exercise this responsibility by providing direction and guidance to agency heads regarding the significant adverse effects to governmental efficiency and economy that can result from poorly negotiated collective bargaining agreements. Apparently, this judge does not think so.

There may be some very smart people who conclude that the EOs go too far, that the objectives that the White House has laid out are not good for America and are unfair to the unions. Heck, we might even believe that here at FELTG (although we try not to think too deeply these days). It’s just fine to disagree with the EOs as a matter of policy. However, that does not make the EOs illegal. The judge in this case seems to be saying that because the White House has declared certain policy objectives that the union will not like, the EOs violate law. No, that’s a policy conclusion. Courts should be making legal calls, not policy calls. Wiley@FELTG.com

Big Parts of the Recent Executive Orders Bite the Dust

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By William Wiley, August 28, 2018

As every reader of our FELTG articles knows, on May 25, 2018, the White House issued three Executive Orders directed at the federal workforce. Two of them were intended to curtail union activity in the civil service and the third was designed to increase the ability of supervisors to hold employees accountable for misbehavior and shoddy work performance. On August 25, a federal district court judge in Washington, DC, set aside (enjoined) significant parts of those orders as illegal, AFGE, et al v. Donald J. Trump, et al, DC District Court No. 1:18-cv-1261 (KBJ). In doing so, the judge put a broader spin on the concept of collective bargaining than we’ve ever had before. Here’s what you need to know now.

First, these are the specific sections of the EOs that have been enjoined:

  • 13,836 (Bargaining Obligation) – Sections 5a, 5e, and 6
  • 13,837 (Official Time) – Sections 3a, 4a, and 4b
  • 13,839 (Accountability) – Sections 3, 4a, and 4c

All the other sections were found to be valid. Also, these sections are invalid only as they apply to management’s collective bargaining obligation.

Next, here are the actions called for by the EOs that are no longer valid:

EO 13,836

  • Setting time limits for bargaining
  • Requiring only written proposals be exchanged, not oral
  • Barring the bargaining of the “permissive” topics of negotiations

EO 13,837

  • No official time for unions to lobby Congress
  • No official time to pursue grievances
  • 25% limit on individual use of official time
  • Limit on total amount of official time that can be negotiated
  • No more free office space or free equipment for the union
  • No more expense reimbursement for union officials

EO 13,839

  • No 30-day limit for performance demonstration periods (aka PIPs)
  • No more grieving anything relative to awards

Finally, an overview of the content and rationale of the court’s decision:

Content – Fully half of the decision is a discussion of the court’s jurisdiction and the ripeness of the issues that constitute the union’s arguments against the EOs. If you got an “A” in civil procedure in law school and think that Constitutional law is the cat’s meow, be sure to savor this section. For the rest of the FELTG Nation, you can spend your time with other more relevant matters.

Rationale – Follow this logic chain closely. It contains a leap in concept that could turn bargaining in the Federal Service on its head.

  1. It is the intent of Congress, as expressed in the preamble to the Civil Service Reform Act of 1978, that agencies and unions engage in collective bargaining.
  2. Although an EO is effectively a law for the purpose of collective bargaining, an EO cannot subvert the intent of Congress.
  3. Collective bargaining requires that agencies approach negotiations with an open mind “with every intention of coming to a mutually acceptable result,” demonstrating flexibility in a give-and-take process.
  4. Presidential statements in an EO, no matter whether they are directive or simply suggestive of goals, prevent agency officials from having an open mind. In this case, they effectively declare certain matters to be “non-negotiable.”
  5. Therefore, because Congress intended that agency negotiators have an open mind, and the EOs take away negotiator open-mindedness, those parts that deny flexibility are illegal.

As a separate issue, the decision takes a swing at a principle articulated by former FLRA member Patrick Pizzella. Member Pizzella argued in dissent in several FLRA decisions that the statute’s statement that collective bargaining should be done in mind with keeping the government efficient. The judge in this case dropped footnote 14 to indicate that she felt such an argument to be wrong. She reasons that Congress has declared by definition that collective bargaining creates an efficient and effective government. If I understand her correctly, you cannot have an inefficient or ineffective government if you have collective bargaining. There’s a whole lot of Kool-Aid in that concept, if you know what I mean.

OK, this should be enough to help you keep your head above the water for a while. If you, as management, are currently engaged with a union in negotiations regarding EO mandates, you have to back down from any arguments that your proposals are the result of the directions given in the EOs. For example, you can no longer say to the union, “We demand a 25% cap on official time use by a union official because there’s an EO that says so.” However, there’s nothing that says you cannot say, “We demand a 25% cap on official time use by a union official because excessive official time is bad for America and because a federal pay check should be based primarily on the performance of federal work, not union activity.”

And finally, keep in mind that the heart of this decision is that certain parts of these EOs impermissibly interfere with collective bargaining. The court makes it clear that it is enjoining those parts only and that the remainder of the EOs are valid. Therefore, as the accountability EO applies to both bargain unit and non-bargaining unit employees, it is invalid only as to the bargaining unit employees. The requirement for a 30-day demonstration period for non-bargaining unit employees, for example, remains the directive of the President.

We mentioned above that there’s a scary tweak in the rationale of the court relative to the legal concept of collective bargaining. In some ways, it’s a bigger issue than what has been enjoined here. Check back with us for a discussion of that horror in a later FELTG article. What exciting times!  Wiley@FELTG.com

GAO, Tell Us Something We Don’t Know

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By William Wiley, August 21, 2018

GAO recent released what could have been a Breaking News report entitled “Federal Employee Misconduct: Actions Needed to Ensure Agencies Have Tools to Effectively Address Misconduct (July 2018).” Given the recent kerfuffle about increasing employee accountability through Executive Order and redesigning the civil service through legislation, one would have hoped for some data and recommendations from a neutral outside body as to what can be done to make things better. Unfortunately, although in many ways comprehensive, the report doesn’t really set any pants on fire with its recommendations.

First, a short look at some of the report’s findings that parallel what we’ve been screaming from the FELTG mountaintop for about 20 years:

  • Supervisors should receive initial and ongoing training in discipline and performance procedures.
  • Supervisors should be held accountable for addressing misconduct in a timely manner.
  • Human resources and legal staff should work together with the supervisor to help put together the necessary adverse or performance action.

In addition to these recommendations (which we heartily support, but are nothing particularly ground-shaking) GAO unearthed some helpful statistics when it comes to the current health of our civil service accountability measures:

  1. Less than 1% of the federal workforce receives a suspension, demotion, or termination in any given year.
  2. 25% of employees who are suspended have been suspended before.
  3. Of the group of actions known as “appealable adverse actions” (long suspensions, demotions, and firings), 60% are suspensions.

The thing that’s missing from the report that would be immensely helpful is for SOMEBODY to address this data and make a determination as to whether this indicates a well-functioning civil service discipline program, a mediocre program, or a program that we could not trade for a bucket of warm spit. The White House tells us that it wants the government to be run like a business. Well, wouldn’t it have been helpful to have some comparative statistics from private businesses? How about other countries that have what we would consider to be well-functioning civil services? Does France discipline its “fonctionnaires” at a rate similar to ours? How about the Crown employees in the UK? How often does the Queen act as a Deciding Official in a removal case?

Somebody needs to take this data and turn it into policy. As usual, since nobody else is picking up this responsibility, we here at FELTG jump into the driver’s seat because this bus isn’t going anywhere until policies get crafted and implemented. So here we go. The FELTG take on what to do with the data above:

Less than 1% of the federal workforce receives a suspension, demotion, or termination in any given year. This number seems low by about 80% of what it should be. Several years ago, the MSPB Chairman said that the percent of the federal workforce that was not doing its job is around 5%. That number matches up nicely with what studies of large organizations have shown us is true in the private sector and academic institutions: About 5-7% of the workforce needs to get better or get fired. Given that we appear to be exceedingly low in the number of disciplinary actions taken each year, our FELTG recommendation would be:

  • Mandatory training for all supervisors, HR staff, and attorneys in how to take these actions fairly and efficiently.
  • Performance standards for all supervisors that rate them on their accountability efforts.
  • Targets for HR offices and agency counsel that set the number of employees that should be fired based on a percent of the workforce; e.g., agencies would be expected to hold HR and legal offices responsible for supporting supervisors in disciplining or removing 3% of the workforce each year.

25% of employees who are suspended have been suspended before. If discipline is supposed to be corrective rather than punitive, it makes no sense to impose a second suspension if the first suspension did not correct the bad behavior. Albert Einstein is broadly credited with exclaiming, “The definition of insanity is doing the same thing over and over again but expecting different results.” Our FELTG recommendation would be that agencies who choose to use suspensions in their accountability programs state in their discipline policy instructions that supervisors can suspend employees once, but no more than once, absent exceedingly rare circumstances, and then only with the approval of the agency’s CHCO.

Of the group of actions known as “appealable adverse actions” (long suspensions, demotions, and firings), 60% are suspensions. Long suspensions hurt the agency often more than they hurt the employee. Who is going to do the work of the suspended employee for the three or more weeks he’s not at work? Will the agency hire temporary contractors? Pay for overtime? Or, simply not cause the work to get done? As for demotions, they hardly ever make sense. If you demote an employee, you now have to accept work at the lower grade. If an employee has done something bad enough to warrant a demotion, 95 out of 100 times, removal is also warranted. Executive Order 13839 states that a “suspension should not be a substitute for a removal.” The same could be said for demotions. Our FELTG policy suggestion is for agencies to state in their discipline policy instructions that supervisors are not to use long suspensions to discipline employees. In addition, voluntary demotions can be offered to employees in lieu of a proposed removal, but otherwise should be avoided.

The GAO report also raises a couple of Deep Thought policy issues beyond those we’ve discussed above. We’ll save an analysis of those for another article. Wiley@FELTG.com

 

 

Three Recommendations to the New Board

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By William Wiley, August 15, 2018

Many of you in FELTG Nation are about to see something that has not previously occurred since your birth, and which is unlikely to happen again in your lifetime. Within the next couple of weeks, we in the United States of America are about to witness a once-in-a-life-time event. It happened in 1979, and it is happening again in 2018: The US Merit Systems Protection Board will soon have three brand spanking new members all at once. The only time that occurred before is when the first individuals to become The Board assumed office on MSPB’s zero birthday in January 1979, when it was created by the Civil Service Reform Act of 1978.

MSPB was not designed to have such a quantum shift in membership. The Creators carefully laid out the terms of the three members so that they each overlapped by a couple of years, theoretically assuring a gradual changeover in both case law and procedures. Sadly, that grand plan fell apart these past two years because of the Senate’s refusal to confirm President Obama’s nominee, and then the current White House’s inaction in filling two vacancies for a year and a half, with the term of the third remaining holdover member expiring in the meantime. By June of this year, three new appointees had been nominated to the Senate, with confirmation and the swearing in of all three nominees imminent as of this writing.

Coincidentally, MSPB recently has endured some of the most severe criticism in its 40-year history. For example, its decisions limiting an agency’s ability to reassign employees and to select differential penalties have universally been criticized by agency practitioners. Congress even passed legislation a few years ago to bypass the decision-making authority of the three members, preferring to rely on the judgment of a career staff attorney rather than President Obama’s political appointees (that legislation has now been invalidated by the courts). With all the ongoing activity relative to civil service reorganization, there has even been talk of abolishing the Board altogether.

What a perfect time for some significant changes at MSPB. And who better to recommend those modifications than the world-famous brains here at FELTG. So, buckle up, new Board members. Here comes some of the best advice for change that you’re ever going to get:

  1. Initial decisions should be more focused and structured. As we’ve argued in this space before, Initial Decisions written by the Board’s administrative judges are too long and cover too much irrelevant detail. In one decision we reported on recently, in the appeal of a misconduct removal, the judge did not reveal the charge until page seven. In another decision we addressed, the judge spent useless verbiage describing the color of the trellis on which the marijuana was being grown. Dear Board, the judge’s decision need not be a novel. We don’t need a back story with character development and subplots to figure out if you’re saying whether the guy should stay fired. Generally, every judge’s decision should start off the same way:

On June 15, 2018, the Government Services Administration removed William Wiley based on misconduct. The charges in the removal action were 1) Theft of Government Property, and 2) AWOL, 24 hours. In his appeal, Wiley claims that the removal action was motivated by whistleblower reprisal. I find that although Charge 1 was proven, Charge 2 was not. I also find that Wiley has not proven his claim of whistleblower reprisal. I SUSTAIN the removal.

The New Board should declare that focused, succinct decisions are highly valued. Judges and their supervisors should receive feedback from a centralized authority within the Board (not from individual regional directors) as to how well their decisions conform to these principles and to an established Board-wide format for drafting decisions.

  1. The Board should stop drafting full-text decisions in every appeal, labeling some as non-precedential (NP). This practice was adopted in 2010 in response to a few complaints that litigants (primarily the appellant’s bar) wanted to know why their wonderful, insightful, compelling disagreements with the judge were not adopted by the Board members on petition for review. Well, there are some mysteries in life that simply need not be revealed (e.g., how my mother gave birth to me without having sex). The US Supreme Court doesn’t issue a fulsome decision regarding every petition it receives, and America continues to be the greatest country in history. The Board issued full decisions in only about a third of its appeals until 2010, and the civil service remained strong.

It’s not that full decisions in every case are necessarily bad. It’s just that a) they are not worth the legal effort of HQ staff to produce them, and b) they are confusing to practitioners who the Board instructs can use NPs for reference, but they aren’t really controlling. With apologies to Bill Clinton, that’s like saying that you can smoke marijuana all you want, but you just can’t inhale it. Foolish.

Perhaps NP decisions were worth a try. Here at FELTG, we’re big believers in trying out different approaches. And, we’re also big believers in cutting our losses. Well, we’ve tried out these NPs, and the result is that they are not worth the effort. Dear Board, please consider going back to short-forming most petitions challenging judges’ decisions because most judges get things right, and most arguments contra are just spitting into the wind (with apologies to Jim Croce). Also, you don’t pull the mask off an old Lone Ranger, and you don’t mess around with Jim.

We are a full-service advising organization.

  1. Make it a Board objective to help agencies be successful in removals 100% of the time. No, no, no. That does not mean that you rubber stamp all disciplinary and performance removals that are appealed to you. By golly, there are civil service laws, and you are responsible for holding agencies accountable for adhering to them. The problem is that after 40 years of Civil Service Reform Act standards, you still set aside about one in five removals appealed to you. In other words, agencies screw up removal actions about 20% of the time when you review the merits of an action. This is just wrong. Agencies should get it right every time because agencies should not be firing anyone who does not deserve to be fired. There would be a full national emergency if 20% of the attempted landings of commercial aircraft resulted in failure. Why isn’t the Board at DEFCON 2 trying to make sure that all removals in government are handled properly?

“But Bill. That’s not our job.  We get to stay above the fray, issuing stinging criticism and awarding copious back pay from Our Holy Mount, telling agencies after the fact when they blow it, but not doing much to help them know how not to blow it.”

Oh, really? Have you considered your FREAKING NAME recently? You’re supposed to be protecting the darned merit system, not just critiquing it when it breaks bad. Who better to honor our good civil servants by helping agencies remove bad employees only when it’s warranted?

You are an Executive Branch entity, not a judicial court. You should be down here in the trenches with us trying to make civil service work, not hovering above us criticizing what we do. Join the fight. We can use all the help we can get.

How to get started on this? Easy. Turn your decisions into teachable moments. After you adjudicate the action in your decision, evaluate the agency’s action. Sample last paragraphs:

Lessons Learned – In this case, the agency did a good job of focusing the employee’s poor performance on a single critical element of the performance plan. Had it tried to incorporate several critical elements into the demonstration period, the employee would likely have become confused and unfocused. By selecting a single element, the employee had the best chance to demonstrate mastery of his assignments and the agency’s resources were more focused.

Or

Lessons Learned – For over 25 years, the Board has held that an agency errs when it creates two or more charges based on a single act of misconduct. Doing so here resulted in merger of the two charges in this case, thereby causing mitigation of the penalty to a suspension rather than a removal.

Dear Board, please rethink your role in our civil service. Don’t just tell us when we do things wrong. Tell us how to do things right. Make yourself useful. Nobody likes a critic because they take no responsibility for the work being done. Take responsibility. If we lose our precious civil service because of some of that legislation floating around Capitol Hill, you will have failed in your responsibility to protect the merit systems. If you look at the Board’s official seal, you will see that your protection responsibility goes back to 1883. Don’t let down our fore-parents. Wiley@FELTG.com

The ‘New’ FLRA Is Making Big Changes

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By William Wiley, August 15, 2018

New political appointees, new case decisions, new changes to the law. The answer to the questions below from an alert reader highlight one of the recent changes, in case you missed it:

Good Morning FELTG,

With the recent ruling by the FLRA clarifying the two concepts of Conditions of Employment vs. Working Conditions as distinct, would a low-level agency policy concerning Conditions of Employment still be negotiable or still excluded? Does the level of authority make a difference?

Sometimes good questions take two answers to cover everything. Here’s our first:

Dear Reader –

As this is a very recent and significant change, it will be a couple of years before we understand all the implications. However, our best guess is that it is not the level of the change that is controlling, but the nature of the change itself. Remember, some unions have recognition at a relatively low level in an agency; perhaps just a few offices in a regional structure. If a low-level manager changes a personnel policy (e.g., the manner in which annual leave requests will be considered and the standards by which they will be approved), then in our opinion, that’s a change in a Condition of Employment and thereby just as negotiable as it would be if the agency head made the same declaration.

Hope this helps-

Given the complexity, it’s not surprising that the answer above generated question Number Two, below:

So, a policy, rule, etc. affecting a Working Condition is negotiable, just not vice versa? Thank you, sir, for your guidance.

And here’s our answer Number Two:

After DHS & CBP and AFGE, 70 FLRA 501 (2018) we have to be strictly careful about the phrase we use:

  1. A new policy or practice that will change a Condition of Employment must be proposed to the union and bargained to conclusion by management. The agency may not implement the change until this is done.
  2. These negotiable Conditions of Employment, by definition, affect Working Conditions.
  3. However, once the new Conditions of Employment are bargained, the agency may further change the affected Working Conditions established by the Conditions of Employment WITHOUT new notice and bargaining.

The facts of the case were that the workplace Conditions of Employment had established that work was being done in two different related areas. Management changed the relative amount of work being done so that more work was done in one area and less in the other. The union claimed that this was a change that had to be bargained; i.e., a change to a Condition of Employment. FLRA disagreed, finding that although there was a change to the Working Conditions, there was no change to the Conditions of Employment affecting those Working Conditions. Therefore, no bargaining obligation.

This is a fine line issue our Dear Reader has raised. We will need dozens more FLRA decisions to see more clearly where that line is exactly. Our advice to all you fired-up agency labor relations specialists? Go change something in the workplace without noticing and negotiating and thereby tick off your union so that they file an unfair labor practice. We need the case law. Wiley@FELTG.com

What to Do When a Disabled Employee Declines an RA Reassignment Offer

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By William Wiley, August 15,  2018

Oh, the challenges of trying to accommodate a disability. Does the employee really meet the legal definition of disabled? If his job cannot be modified, is there a vacant position he is qualified to perform? What should management do if the employee refuses a reassignment to a vacant position if one is offered? Here at FELTG, we teach days and days of training each year on the answers to these questions. To give you a flavor of our approach, here’s an answer to a question we got recently from a concerned reader:

Hello FELTG!

I am reaching out to you for some advice on a hypothetical case here at my agency.

If a Bargaining Unit employee were to have a valid Reasonable Accommodation claim that no longer allows him to work in his assigned position, and if that employee refuses to take a new assignment at the agency that recognizes their Reasonable Accommodation limitations, what actions can the agency take against such an employee?

Furthermore, if the employee hypothetically announces that he is pursuing a medical retirement, does the agency have to retain him in a paid status until the medical retirement process is completed?  Would pending EEO complaints also have any impact on such a hypothetical situation?

All good meaty issues. Here’s our response:

Typical situation; easy answer. This very day propose his removal with the charge being Medical Inability to Perform. Attach to the proposal:

  1. The medical documentation that shows he cannot perform an essential function of his job,
  2. A statement from his supervisor that the function is indeed essential and that accommodation in the position is not possible, and
  3. Evidence from your disability coordinator that there are no vacancies in the agency for which he is qualified medically and professionally which he is willing to accept.

EEOC likes it when we get any declination of the other position(s) in writing, but I’m sure your coordinator knows that. Do not include a Douglas Factor analysis along with the proposal because those factors are not relevant if the employee simply cannot perform one or more essential functions.

Do not delay the removal because he has filed for disability retirement. Two reasons:

  1. It may be denied, and then you are in a bad situation, and
  2. By firing him for Medical Inability to Perform you essentially guarantee his application for disability retirement will be granted.

As for pending EEO complaints, they will form a basis for the employee to file a reprisal complaint when you fire him. However, you can’t let that stop you from doing what you need to do. If he is not able to perform work for the agency, you should not keep paying him.

He may file a reprisal complaint, but there will be no merit to it because you will have taken the proper steps to demonstrate that you had a legitimate, non-discriminatory reason for firing him.

Hope this helps.

Best of luck. Wiley@FELTG.com

Emailing Jesus Christ

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By William Wiley, August 7,  2018

A number of agencies have someone like this. He thinks that his personal grievances about the workplace are soooo important that everybody above him in the chain of command must want to know about them. So he emails just about everybody in management with his complaints and allegations hoping to stir someone into action to fix things (and perhaps drop a load of damages and back pay on him). The “To:” block on his emails sometimes contains 50 or more recipients, usually including the President of the United States. In fact, I saw one several years ago that included an email to someone identified as “JesusChrist.”

I tried the address and I received a warning that it was likely SPAM. Maybe I’ll just stick to prayer.

Anyway, here’s a question we got from a member of the FELTG Nation who is having a similar hypothetical problem:

Dearest FELTG:

We [hypothetically] have an employee who raises frivolous claims related mostly to EEO issues (“I saw two co-workers hug and that’s sexual harassment” – that type) up her management chain and they’d like her to stop. This person is a serial EEO filer, which I know isn’t that rare a circumstance, but I haven’t come across any court-approved language that insulates the agency from EEO reprisal claims based on a cease/desist email or other order. Any guidance here?

And here’s our best-guess FELTG response:

Dearest Loyal Reader –

An all-too common frustrating situation with a couple of nasty potential pitfalls. First, OSC has developed some very specific gag order language that we are supposed to use when we restrict an employee’s communications. It’s along the line of your admonition, so follow the admonition with this:

“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”

Separately, EEOC will find that we have discriminated against an individual if we limit his ability to speak out in opposition to discrimination. I think you can put “reasonable” constraints on how a person speaks out in opposition, but the challenge is that EEOC hasn’t been particularly helpful in helping us know what constitutes “reasonable” limitations.

For example, I think that after the first time, we can tell an employee to stop emailing managers Smith, Jones, and Green about anything, as long as we make it clear that he can speak out in opposition to discrimination in any other forum. However, that’s just a guess as I know of nothing definitive from EEOC about that specifically. Unfortunately, we all know that EEOC tends to find discrimination in the darnedest places, so any constraints we enact have the potential to have a chilling effect on the employee’s rights to oppose discrimination.

[Hopkins Note: You may also want to check out the case Anthony Z. v. Air Force, EEOC No. 0120141988 (June 15, 2016), which says that a supervisor may protect employees from unwelcome conduct even if it references EEO activity. Here it was a complainant who wouldn’t shut up about his EEO complaints and kept trying to get his coworkers to file.]

Thanks for the question. Best of luck.  Wiley@FELTG.com

How to Handle VLTP Misuse

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By William Wiley, July 30, 2018

Some days it seems that every time you set up a system to do good for people, someone will figure out how to misuse it. The civil service program that falls into that category that we’ll cover today is the Voluntary Leave Transfer Program (VLTP).

VLTP is designed to allow employees to donate their accrued annual leave to other employees if an employee needs the leave because of a medical emergency:

5 CFR § 630.901 Purpose and applicability.

(a) The purpose of this subpart is to set forth procedures and  requirements for a voluntary leave transfer program under  which the unused accrued annual leave of one agency officer or employee may be transferred for use by another agency officer or employee who needs such leave because of a medical emergency.

I once received a question from a supervisor (a supervisory attorney, no less) who could not figure out what to do in a situation in which one of her employees was physically bullying coworkers into donating their leave to her so that she effectively had to work only 32 hours each week while getting paid for 40. Folks, if it doesn’t make sense, and is bad for the civil service, then there’s almost always a way to handle it.

Recently, we got the following related question:

Dearest Beloved FELTG, Source of All Civil Service Law Knowledge:

I attended Absence, Leave Abuse & Medical Issues Week in March and am reaching out to you for guidance. I am the Voluntary Leave Transfer Program Coordinator for my agency. We have a situation with an employee enrolled in VLTP. He has been enrolled for in the program since February 2016. He has managed to extend his enrollment every 3-4 months with medical documentation. He has a permanent [medical] condition and has several treatments and sometimes surgeries which maintains his work schedule to be from 15-30 hours per week. He supplements the rest of his income with donated leave. We have tried unsuccessfully in denying extensions based on the fact that VLTP is not to be used as a substitute for disability retirement; that his condition is permanent; that the donated leave program is a short-term program, etc. We have been challenged with an EEO complaint in which he prevailed, and he was allowed to extend his VLTP participation as requested. We would appreciate any advice, guidance or insight that you could shed on this issue. [Sanitized settlement agreement attached.]

And here is our FELTG response, tinged with a bit of anger at how this person is being allowed to misuse the generosity of his hard-working coworkers:

Dear AMI Attendee-

The employee did not prevail in his previous EEO complaint in the sense that anyone ever said what you did was wrong. An agency official simply decided to not defend the agency any longer, and that the most expedient way to resolve the matter was through a settlement agreement. We have no idea why that was done. It clearly was not based on the legal merits of the discrimination claim.

Separately, the settlement agreement says it has no precedential value and applies only to VLTP approved in the past:

“The terms of this Agreement establish no precedent … “

You have every right to discontinue his use of the VLTP program. As he has a permanent disability, he does not meet the criteria for its use because he does not have a temporary medical emergency:

5 CFR § 630.905 Approval of application to become a leave recipient.

(a) The potential leave recipient’s employing agency shall review an application to become a leave recipient under procedures established by the employing agency for the purpose of determining that the potential leave recipient is or has been affected by a medical emergency.

If you continue to allow him to use the program, you are unfairly cheating the other employees of your agency who qualify for the program and would benefit from its temporary use. You should notify him immediately that you are discontinuing his use of VLTP and that if he is unable to report to work, he will have to request use of other leave that might be available. Also, he should be informed who to contact to apply for disability retirement if he believes that his medical condition prevents him from performing his job on a full-time basis. In the future when he does not report to work, if he has no annual nor sick leave, he should be charged as AWOL. The AWOL should then be addressed through adverse action. Nieto v. Treasury, EEOC Petition No. 03A10032 (2002); Murray v. Navy, 41 MSPR 260 (1989).

If you readers are unfamiliar with taking an adverse action in this situation to remove the employee, or you never heard of caselaw like Nieto and Murray,  get yourself signed up for our next Absence, Leave Abuse & Medical Issues Week program, Sept. 24-28 at Dupont Circle in Washington DC. We offer this particular program only twice a year and it almost always fills up. It’s up to management to stop leave misuse, even in situations in which the employee truly has a serious medical condition. Wiley@FELTG.com

Whiners

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By William Wiley, July 24, 2018

Lordy, you would think that the President’s three recent Executive Orders were going to cause the civil service to implode, thereafter leaving a vast wasteland of impoverished traumatized federal employees. I haven’t heard this much whining since I got my head shaved for Navy boot camp (funny note; the whining was all mine). Let’s look at a few complaints I’ve seen in the media about the negative effects the EOs will have on the civil service, and our snarky FELTG responses to each issue:

The 45-day time-limit for amending agency discipline and performance instructions to conform with the EOs is too short.

An agency usually has a single discipline instruction. It can be brought into conformance with the EOs by adding a paragraph at the end like this:

  • Supervisors can consider all past discipline as aggravating factors when deciding what level of discipline is to be imposed for a current act of misconduct.
  • After receiving the employee’s response to a proposed adverse action, the deciding official should issue a decision within 19 days.
  • The notice period for a proposed adverse action should not exceed 30 days.

The grievance instruction can be amended with the following language:

  1. Exclusions: Employees may not grieve performance ratings, awards, incentive pay, or recruitment/retention/ or relocation payments.

The performance management instruction can be amended with the following language:

  1. When an employee’s performance falls to the Unacceptable Level, the supervisor will implement a 30-day evaluation period to allow the employee to demonstrate whether he can perform at an acceptable level.

If the agency has an instruction relative to discipline alternatives or settling cases, those have to be amended to preclude a clean record settlement once a document is placed in an employee’s official file. If the agency has an instruction relative to report filing, that will have to be amended to provide for the new reports called for relative to adverse actions and performance actions.

There. That took me 10 minutes. Most any Human Resources I’ve ever worked with can take it from here in much less than 45 days.

Employees will need more than seven days to prepare a response to a proposed removal because the agency will need more time than that to respond to the union’s request for information.

The agency has no obligation to delay a proposed removal decision until it responds to the union’s request for information. Any agency that does that is foolish.

It takes longer than seven days to coordinate the schedules of the individuals involved in an oral response.

No, it doesn’t. As we’ve taught for many years in our FELTG seminars, the date and time for the oral response should be stated in the proposal notice. That sets the availability of the deciding official. The employee is on the payroll during the notice. Therefore, he can be told where to be when. If the employee cannot find a representative who can be at the set date for the response, he should find another representative. MSPB has never held that an agency commits reversible error by not accommodating a representative’s calendar to schedule an oral response.

Deciding officials need a lot of time to evaluate an employee’s response.

When I worked at MSPB, Board members had to review entire case files on average within two hours. Yes, there was preliminary summarization of the facts and argument by support staff (me), but that work hardly ever took more than four hours. The EOs give the agency’s deciding official 19 days to evaluate existing facts and argument. Juries often do the same thing in a few days. The President is saying that these decisions should be made promptly. In my world, 19 days is a generous period of time to analyze arguments and facts.

There are situations in which the deciding official might have to provide the employee a new response period; e.g., perhaps new information has come to the attention of the deciding official and she plans to rely on it in making her decision.

Then, the 19 day clock resets until the employee has had a final opportunity to respond to the new information.

It takes significant time for a decision letter to be drafted.

Not if the agency representatives have been through FELTG training. An ideal decision letter is three sentences and then the appeal rights section:

  1. On x date your supervisor proposed to me that you be removed from service based on the charges in the attached proposal notice.
  2. You and your representative have responded to this notice, and I have considered your response.
  3. It is my determination that it is more likely than not that you engaged in the conduct described in the charges in the proposal letter, and that your removal is warranted based on the assessment of the Douglas Factors contained in the proposal notice.

The accountability EO shifts the focus of the evaluation period for a poor performer from improvement to demonstration of acceptable performance.

No. For 40 years, the law has said that the evaluation period is for the DEMONSTRATION of acceptable performance, not the IMPROVEMENT of performance. It’s a final exam, not a training class. The EO simply restates what has been the law for four decades. There is no shift.

We don’t know how much legally-required assistance has to be provided during the evaluation period, nor how long an evaluation period has to be to be legally acceptable.

Well, that would be correct IF WE HAD NEVER READ ANY MSPB DECISIONS. The Board routinely acknowledges that giving the employee feedback during the demonstration period satisfies the legal requirement for assistance from the agency. Also, the Board routinely holds that 30 days is generally adequate to evaluate the performance of a poor performer.

And finally, we hear from well-intended members of Congress that the EOs are taking away union rights. Well, no, they are not. They are curtailing benefits that management has ceded to unions through collective bargaining, but only when the law allows for such action; e.g., a CBA expires or is reopened.

In analogy, you may think that your old car is worth $10,000 and you might propose that you be paid $10,000, but that doesn’t mean when I tell you “no,” that I have somehow violated your rights to $10,000. Our friends on the union side have negotiated for significant contractual provisions for the use of official time for union work. However, contracts have term limits, and when those limits are exceeded, the parties are again equal and everything is back on the bargaining table. If Congress had intended that unions have different rights, it certainly could have included those in the law. It did not.

These are exciting times in the world of federal civil service law. Being a part of that world, we here at FELTG are excited, as well; not necessarily because of the specifics of the EOs, but because it is legally fascinating to see an old law like the Civil Service Reform Act of 1978 doing new tricks. After one of our recent webinars on the EOs, a participant told me that Deb and I sounded absolutely giddy. Well, we are. We are giddy that the system is working, that neither management nor unions control federal sector labor relations, that the EOs are simply a tool to be used in collective bargaining, this time to rein in some of the excesses of previous management negotiators. No doubt the next time, the smart guys on the union side will figure out how to take some of it back.

That’s what union/management negotiation in the civil service was always supposed to be: give and take, then more give and take. The White House has not ended collective bargaining, it has re-energized collective bargaining. None of us really knows where we will be with these EOs come this time next year, but one thing is sure. Wherever we are, it will be the result of the process that Congress intended when it invented statutory collective bargaining in 1978. Whiners, if you don’t like that, change the law. Until then, suck it up and learn to negotiate.

Geez, where can someone learn to negotiate in the federal government? Why, my goodness. FELTG appears to be offering an entire week of training on that very topic October 15-19 in Washington DC, just five blocks from the place that issued the EOs. Be there or be square. Wiley@FELTG.com