THIS POOR DHS BRANCH CHIEF
MSPB just upheld the termination of a DHS Branch Chief for unacceptable performance under circumstances that a bargaining unit employee likely would have won. We say that because the agency did not rely on the wording of his critical elements and performance standards to make its case. Rather, it supplemented those requirements in the PIP by including 11 actions the employee had to complete to avoid termination. Here is why we think a bargaining unit employee could have won the case.
When an agency establishes critical elements and performance standards for a job it is setting the performance-related conditions of employment for that job. Under labor law when those conditions are established the agency must give the union specific notice of the conditions. (Check out this Fedsmill.com post about what is required of a notice to be specific.) MSPB holds that, “An agency may give content to performance standards by informing the appellant of specific work requirements through written instructions, information concerning deficiencies and methods of improving performance, memoranda describing unacceptable 8 performance, and responses to the appellant’s questions concerning performance.” That is true and we can’t change that.
Agencies often do this because the existing critical elements and performance standards rarely meet the following MSPB requirement: “Performance standards should be specific enough to provide an employee with a firm benchmark toward which to aim his performance and must be sufficiently precise so as to invoke general consensus as to their meaning and content.” However, the mere fact that an agency has the right to suddenly supplement a job’s performance requirements once it is on the brink of firing someone from that job does not mean that labor law can be ignored.
As we see it, if the agency needs to supplement the long-standing critical elements and performance standards for a job to meet the MSPB standard, then it needs to serve advance notice on the union of those changes, supplements or whatever else it calls them and give the union a chance to negotiate before implementing them. If they do not do so, it seems to us to be a certain ULP violation of 7116)a)(1) & (5), requiring a return to the status quo ante, including reinstatement of the employee with back pay, interest, benefit coverage, attorney fees, etc. The agency can always argue the newly stated requirements do not constitute a change, but that will be a steep hill for it to climb given that by its own actions the employee did not have notice of these requirements before.
Agencies are likely to whine about having to follow MSPB and FLRA law at the same time. However, if they do not want to take this path the agency can always opt out of the unacceptable performance legal requirements and take a Chapter 75 adverse action against the employee.
Finally, it goes without saying that if a union is going to raise the ULP defense it must appeal the termination through arbitration and declare itself a co-grievant. The right to notice and bargain is a union right; not an employee right. So, the union must assert the violation along with the employee’s claim against the termination. Additionally, it is unlikely the MSPB will enforce a ULP claim.
Check out Jeffrey S. Hill v. Dep”t. of Homeland Security, MSPB Doc. No. AT-0432-16-0643-I-1 (September 14, 2022)