By William Wiley, March 20, 2018
Oh, there’s just so much in the mainstream media these days about our business of civil service law. Sometimes we can go months without an article being published for general consumption about federal employees and their rights. These days, we’re everywhere. And if you care about your own personal future, maybe you’d better read some of those articles verrrry closely. For example:
Andrew McCabe. As most of the world must know by now, McCabe was the deputy director of the FBI until he was fired last week, just over 24 hours before his birthday that would have made him old enough to receive a law enforcement officer enhanced retirement from the federal government. If you’re like most federal employees, you probably have the date marked somewhere that is the earliest date you will have both age and years of service to claim a life-long pension for your work, including till-death-guaranteed access to reasonable health insurance, a significant rarity in the United States these days. Well, go dig up that calendar. Look at the date you have calculated. Now think what the rest of your life would be like after that, if the day before that date, you were fired. Based just on your boss’s opinion, without an appeal right to a neutral institution like the US Merit Systems Protection Board.
For our purposes, it doesn’t really matter what McCabe did that resulted in his removal. Good guy or bad guy, until last week, he was a career federal employee, just like most of you readers. He wasn’t some political flake, appointed from the private sector for some political reason, with no real commitment to the civil service and no real expectation of continued employment. No, he was an individual just like you, who filled out an SF-171 to get his first job, competed for promotions, and underwent the annual embarrassment of a stupid performance appraisal that meant essentially nothing, but which empowered him to continue to do his job of providing service to the American people. He may have made mistakes toward the end of his career, but nobody died because of them. From what I read in the media, he arguably might simply have been mistaken about some of the things he allegedly did. Love him or hate him (and we take no FELTG position on your emotions), he was just like you in the sense of trying to do a decent job for a quarter of a century with the expectation of a government retirement annuity at the end of things, and now he doesn’t have that. By a day. With no appeal. Like it or not, this is how the FBI’s system works.
Department of Education and AFGE. Unless you’re an inside-the-Beltway, labor-law-weenie (as we are proud to be at FELTG), this one might have slipped below your radar. Education and AFGE had been slogging along trying to negotiate a new labor-management agreement for about a year, making little if any progress. Nothing too unusual there. Some federal agencies and unions spend YEARS negotiating a new contract. So, the agency negotiators notified the union that they had a contract that they planned to implement if negotiations did not progress further, gave the union a time frame to respond, and when (according to the agency) there was no response, management implemented its version of a collective bargaining agreement.
Talk about hitting the fan. I’m still cleaning off the inside of my labor law news feed. All that cool stuff in the old labor agreement was gone: employee “rights,” including those addressing workplace health and safety, telework, and alternative work schedules, provisions on workplace discrimination, performance appraisals, compensation, child care and training were all deleted and replaced with nothing. If union representatives now want official time to represent employees in grievances and Weingarten meetings, they can do it on LWOP, not paid time as in the past. Need a union office space to discuss things or send an email? Better find a quiet corner in a hallway from which you can access a Wi-Fi hotspot on your personal smart phone.
Every union official I read about complained that the agency had somehow shoved the new contract down their throats, taking away employee and union rights Congress had intended. However, every practitioner who has attended FETG’s fabulous FLRA Law Week seminar who read about this scenario knew that they were seeing the Civil Service Reform Act playing out just the way it was written back in 1978:
- Management notifies the Union of an intended change to employee working conditions.
- Upon demand by the Union, Management enters into bargaining regarding those parts of the change that are negotiable.
- If Management and the Union cannot reach agreement (i.e., reach an impasse), Management notifies the Union of its final offer.
- If the Union does not respond by initiating the impasse resolution procedures provided for by law, Management has the right to implement the change without further bargaining.
We may think it’s terrible that the employees at Education lost the flexibility of alternative work schedules or that the AFGE reps now lose pay whenever they perform most representational duties. But those things are not Congressionally-mandated rights; they are the fruits of collective bargaining, sometimes won and sometimes lost. There may be good arguments that the union did not waive its right to the impasses procedures. If so, those arguments will be resolved through the unfair labor practice charge that AFGE has filed against Education. Like it or not, this is how the labor negotiations system works.
DVA. Last summer, Congress created a law that allows DVA to fire employees with no more proof than a grain more than a scintilla (i.e., substantial evidence). In addition, unlike most all other agencies, DVA no longer has to defend deciding to fire someone rather than just suspending or reprimanding them. If the supervisor can prove that the employee engaged in a single act of misconduct (e.g., arrived tardy one day), he can be fired, even if he has worked for the government 30 years with no prior discipline and is an otherwise outstanding employee. In the language of civil service law, that means that there’s no penalty mitigation authority at MSPB or in arbitration and thereby no Douglas Factor analysis required.
So, what was in the papers last week? Congressmen on both sides exclaiming that they didn’t know that DVA would use these new authorities to remove housekeepers, veterans, and poor performers without necessarily giving them a chance to get better. Well, Congress. If you didn’t want DVA to do this stuff, why did you pass a law that specifically allows for them to do it? Why did the President say in his State of the Union address that this new DVA firing procedure should be applied to the entire federal government? Like it or not, this is how the DVA system that you created works.
Depending on your view of the federal workplace, you may be thinking that these are wonderful aspects of the civil service; that career individuals can be fired easily and that unions have to bargain rather than be provided benefits by legal right. Here at FELTG, we’re not trying to push your civil service protections in one direction or the other. That’s an effort worthy of a much higher pay grade. What we are suggesting is that before you break out the champagne, go look in the mirror. Mentally age yourself to what you think you will look like when that retirement date on your calendar finally arrives. Now picture that person standing in line to apply to work at Home Depot or CVS, two companies who have special programs to hire old coots individuals approaching their “Golden Years.” Some people might think that a cushy civil service job is for life, but now you know better. Wiley@FELTG.com