In a recent article, FedSmith highlighted that with the injunction now lifted on three Executive Orders from President Trump that would impact the federal workforce, changes would be forthcoming in the federal labor and employee relations arena.
The changes are now arriving.
The changes are in the form of guidance to agencies from the Office of Personnel Management (OPM). The message to agencies is clear. In effect, don’t take the easy way when imposing disciplinary or adverse action. Instead, “efficiently remove those who fail to perform or to uphold the public’s trust.”
Progressive Discipline and Penalty Tables
A table of penalties is a guide for agencies to consider when taking disciplinary or adverse action against a federal employee. Employees who have been the target of this form of agency action may argue a severe penalty exceeds what is contained in a table of penalties.
Arbitrators will sometimes accept this argument although it has been dismissed in court. Unions will also make the argument on behalf of an employee that the table of penalties must be used in cases and that argument will sometimes convince an agency not to impose a more serious penalty.
A FedSmith author with more than two decades of experience in the federal human resources world, Robbie Kunreuther, makes the argument a table of penalties is not needed by an agency. He notes that “If there’s a reason for keeping the table at your agency, it can’t be much more than, ‘this is the way we’ve always done it.’ “
Kunreuther was ahead of the curve in his observations and arguments against a table of penalties.
Guidance For Agencies on Taking Action
In the latest guidance to agencies, OPM states:
No matter how much agencies attempt to tutor managers in the proper use of tables of penalties, many will resort to them as a crutch instead of thinking clearly and independently about the facts and circumstances underlying the particular facts of each case. Simply put, tables of penalties promote lazy thinking instead of
hands on, thoughtful management.
Instead of relying on a table of penalties, OPM tells agencies “Managers should take discipline that is reasonable and proportionate to the misconduct.” Here are the highlights of the guidance.
- Penalties should be tailored to the facts and circumstances of each case.
- A table of penalties is not required by statute, regulations or case law.
- Union proposals requiring the use of a table of penalties are not negotiable.
- A table of penalties can create restrictions or conditions well beyond legal requirements and can interfere with an agency’s ability to address misconduct effectively.
- Penalties should be reasonably consistent with the discipline applied to similarly situated employees in the same work unit, with the same supervisor, and who were subject to the same standards governing discipline.
- Progressive discipline is an agency’s choice to impose the least serious disciplinary or adverse action applicable to correct the issue or misconduct.
- Agencies have the discretion to consider an employee’s disciplinary and past work record, including all past misconduct, not only similar past misconduct.
Advice for Negotiating a Labor Agreement
The latest guidance to agencies is to be diligent when negotiating a contract with a labor union on the topic of using a table of penalties or taking disciplinary or adverse action.
An agency should decide whether a union proposal is even open to negotiations. In considering whether an agency has a duty to bargain over a proposal, agency negotiators should consider formally challenging the negotiability of a proposal and shift the burden to the union to demonstrate a proposal is a negotiable “procedure” or “appropriate arrangement.”
OPM’s advice: “[A]gency negotiators should examine whether or not the proposal impermissibly interferes with the exercise of a statutory management right. Or to avoid these knotty labor-law questions, an agency may elect in its sole discretion not to resort to progressive discipline or tables of penalties at all.”
Use Agency Head Review of a Contract
Before a contract becomes final, the head of an agency or a designee must approve the agreement. This is the final step for the agency in approving a contract with a federal employee union and it should be taken seriously.
OPM writes an agency “should disapprove any provision(s) which establish and dictate criteria for taking disciplinary action, such as placing a contractual burden on the agency to justify its decision to suspend an employee beyond that required by procedures contained in law and regulation.”
This is the first OPM guidance issued since the injunction was lifted for executing the president’s Executive Orders on this topic. In effect, the guidance tells agencies to be more diligent in taking action and to ensure it does not tie an agency’s hands in reaching a labor agreement with a federal employee union.
We anticipate further guidance to agencies for implementing the Executive Orders in the near future.