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

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