Reconsidering Two Douglas Factors

By on April 26, 2010 in Current Events with 2 Comments

In an earlier article, I acknowledged the nearly three decades during which the Merit Systems Protection Board (MSPB) decision in the cases of Curtis Douglas, et. al. v Veterans Administration, et. al. has become the standard for determining disciplinary penalties throughout the Federal sector. 
 
While the 12 “Douglas factors” apply only to MSPB cases (15-day suspensions or worse), they are being routinely used in most agencies for disciplinary cases of all stripes – major and minor.
 
In this article, I want to look at two of the twelve factors which, in my opinion, have not served the Federal community as well as others over the decades since Douglas was written. They concern: 1) alternatives to formal discipline; and 2) using agency “tables of penalties”. I believe the former has contributed little to the process of determining an appropriate sanction. The latter has proven far more confusing than illuminating.
 
Alternatives that haven’t panned out
Alternatives to discipline were chic at the time the 12 factors were invented. Books and articles extolling creative and “positive” discipline were getting attention and traditional notions of corrective action (especially the practice of spanking children) were being scrutinized.  In Douglas, this was acknowledged this with their 12th factor:
 

“…the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

 
I see no continued need for the Board’s requirement that agency management give consideration to non-traditional options. Using corrective methods not mentioned in law or regulation is always an option for agency management and is sometimes viable. It should not, however, be suggested or scrutinized by judges or arbitrators who use the Douglas factors when reviewing a penalty.
 
‘Tis better to give…
Where I worked in the Department of the Navy, “alternative discipline” was seldom given much credence. We commonly annotated this factor “N/A”. Other agencies, however, modified their regulations and labor-management agreements to promote community service or donation of annual leave to a leave-sharing program as viable alternatives to disciplinary suspensions.
 
I am repeatedly impressed by the many thousands of Federal employees who donate considerable time and money to charities and community activities. For many of us, “giving back” is a core value. I look askance at those who perform acts of generosity to get out of trouble. Their motivation (and that of their employer) may insult those who are truly charitable with their non-work hours and their leave.
 
There are, however, alternatives that may prove useful. Among those I advocate when presenting seminars are “last chance agreements”, “paper suspensions”, and mediated agreements.
 
Alternatives worth considering – “Last Chance Agreements”
“Last Chance Agreements” (LCAs), came into use 2-3 decades ago. The first one I was able to find was designed by a Post Office in Memphis, TN. Such agreements are common now, and several are specifically mentioned in articles contributed by Susan Smith to this site. (See, for example, "Last Chance" Agreement Means What It Says)
 
LCAs are usually reserved for removal cases and may be suggested when changes in the employee’s personal life (often substance abuse or medication issues) might result in the workplace changes management desires. In exchange for a year or two of good behavior the employee is willing to sign away all rights of grievance, appeal, legal action, or complaint should things don’t work out. Virtually every, employee who has failed a last chance agreement and been removed has had no luck contesting such action.
 
This alternative may prove a “win-win” (saving an employee’s career balanced by immunity from litigation) and warrants consideration. Employees who succeed in using such opportunities to change their behavior are living examples for the rest of us. Failure to consider or offer such an agreement for whatever reason, however, shouldn’t be reviewable by the Board or other outsiders.
 
Alternatives worth considering – “Paper Suspensions”
Similarly, I recommend what the MSPB’s website refers to as “paper suspensions”. In an earlier FedSmith article, I referred to them as “permanent letters of reprimand”. These are documents with staying power (not to be expunged, as are reprimands) that acknowledge the employee could have been suspended without pay, but opted for this letter instead.
 
Modern companies left suspensions behind a while back and just work with letters/memoranda. It’s time for Federal agencies to move to an option better suited to a 21st century workforce – “Letter 1, letter 2, letter 3, you’re fired”. 
 
If the employee will agree to a “paper suspension” management gets an indelible paper trail (comparable to the Form SF-50 that accompanies a suspension without pay) and the employee gets the opportunity to change their behavior without being sent home, as if in grade school. Judges and arbitrators, however, shouldn’t make inferences if management has chosen to ignore this “alternative”.
 
Alternatives worth considering – written agreements
Lastly, I have seen mediated agreements (always in writing, please!) prove preferable to traditional management-directed discipline.  If the employee acknowledges his shortcomings, agrees to make specific changes, and/or apologizes to coworkers for their behavior – they and their agency may benefit. 
 
Years back, I wrote a FedSmith column on this subject. So did my former colleague Bob Gilson a few months later. 
 
A couple of years after these FedSmith articles, the MSPB provided excellent guidance on how such “Alternative Disciplinary Agreements” should be drafted and enforced. 
 
I commend the Board for its guidance and wonder why it didn’t come from our Office of Personnel Management. When an employee and their management come together to outline needed behavioral changes, it’s more likely those changes will come to pass. 
 
I would only add that the likelihood that negotiating such an agreement may prove easier if facilitated by a trained and neutral mediator. Mediation allows a supervisor the luxury of fully participating in the discussion without the need to manage it. Neither the Board, nor the EEOC, nor labor arbitrators; however, should scrutinize management’s willingness to look into such a written agreement. This Douglas factor is presumptuous and could easily be dropped, leaving us with 11 relevant Douglas factors.
 
Tables of Penalties – one of HR’s weirder directives
For over two decades I have taught supervisors, managers and union officials from dozens of agencies how to use the Douglas Factors. The seventh factor always gives me pause. It reads: “…consistency of the penalty with any applicable agency table of penalties…
 
Tables of Penalties are bizarre to me. Like Letters of Reprimand, these documents have become institutionalized in government over many decades. Imagine my surprise when I could find no reference to either of them in law or regulation. If any ancient readers or human resources historian knows how they came to be, I’d appreciate learning from you.
 
Imagining bad, worse, and worser
For the uninitiated, these “tables” (or “schedules”) reflect an effort to imagine every workplace sin a Fed might commit and suggest the agency’s disciplinary response. Not only do these tables attempt to fix a “range of penalties” to each offense, but they imagine penalties for second and sometimes third offenses of the same kind. Those composing/updating these tables (some haven’t been revised in 15-20 years – predating web and government credit card abuse) must go half-blind trying to imagine both a comprehensive list of transgressions and consistent recommendations. 
 
Another concern of mine is that these tables commonly presume that discipline begins with typed reprimands. Not true. All of my clients use punitive techniques preliminary to reprimands such as “counselings”, “warnings”, “admonishments”, etc. The tables seldom acknowledge these longstanding practices.
 
The tables are also difficult to use. After 30 years of navigating these tables, a question remains unclear to me. If a person is reprimanded for “Unauthorized Absence” and 10 months later is charged with “Disrespectful Conduct,” is that a first or second offense? I have found that, among labor and employee relations specialists, there is no common practice for navigating a table of penalties.
 
Abracadabra and [poof] it’s gone!
I think the MSPB was correct in demanding that, because these documents have been published and promulgated by Federal agencies, they must be consulted and considered. Ten years into the 21st century, however, the tables themselves should be reconsidered. Why not just do away with them? In that case, the Board cannot consider factor seven and discipline might (perish the thought!) be simplified ever so slightly.
 
Only those most resistant to change are likely to argue in favor of retaining their agency’s table. Of course, eliminating it involves changing a “personnel policy” – thus requiring notice to (and potential bargaining with) unions. So what? 
 
Unions never participated in devising these tables and would be hard-pressed to argue for perpetuating them. …and then there’s the management right by law “…to suspend, remove, reduce in grade or pay, or take other disciplinary action…” – which would, no doubt, limit the scope of negotiations.
 
Requiring managers to consult these time-worn directives, however, is senseless. Without the Table of Penalties, agency management would investigate their own past disciplinary practices – the notable 6th factor, “…consistency of the penalty with those imposed upon other employees for the same or similar offenses”. Purge your agency’s table and answer factor 7, “N/A”.
 
Start subtracting
The 12 factors enumerated by the new MSPB in Curtis Douglas, et. al. v Veterans Administration, et. al. changed the way we administer discipline in the Federal sector. While Douglas complicated things back in the 1980s, most of us familiar with Federal HR have grown comfortable addressing 12 factors. Now it’s time to look at making them 10.

© 2016 Robbie Kunreuther. All rights reserved. This article may not be reproduced without express written consent from Robbie Kunreuther.

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About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to trainlngfeds.com.

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