Trump recently issued three Executive Orders aimed at punishing federal employees, who he prefers to call the “deep state,” and the unions that represent them. By this time it should surprise no one that he has again demonstrated how little he knows or expects his staff to know. One of the Orders bars agencies from putting in negotiated labor agreements any commitment to progressive discipline. His message is that the only good punishment is capital punishment when it comes to federal employees—outside the White House.  (We are still waiting to hear what punishment he imposed on Kellyanne Conway in response to the U. S. Special Counsel’s report that she violated the Hatch Act three times.)

The President and his posse seem to believe that union contract requirements to discipline employees progressively are ruining government.  Had he or his staff (or whatever special interest group ghost wrote this for them) bothered to actually read and understand the law they would know that FLRA long ago barred unions from negotiating progressive discipline clauses (See POPA, 49 FLRA 176 (1994)). Stated differently, the President just ordered the LR community to do what the FLRA required of it years ago.

Of course, that is not the clearest indication of the President’s ignorance on the issue of progressive discipline or how to manage the federal bureaucracy.  Imagine for a moment that your agency spent months purchasing the finest laptop computers on the market, loaded them with cutting-edge software that was going to boost productivity, and trained you how to operate them with maximum efficiency. Now imagine that the first time the computer screen froze your manager told you to take out the hard drive, shred it and toss the computer in the trash. Finally, add the image of the manager telling you to just sit there and do nothing for the next year or so because he has no money to replace the laptop. That is effectively what the President just did with a human resource.

The government spends big bucks recruiting people, and generally spends just as much loading them with information and technically training them. It is inevitable that almost every one of them will make mistakes. Now the President wants his managers to respond to that not by some moderate corrective action such as a demotion, reprimand or suspension, but by firing the employee, wasting all the taxpayer money invested in her.  Moreover, given that the President has also imposed a hiring freeze, in all likelihood the manager will not be allowed to replace the employee anytime soon, i.e., before January 2021. Finally, given the lack of HR support in most federal agencies the manager will likely have to do this without much technical help. If s/he screws up and violates the employee’s civil rights (EEOC) or personnel protections, he can potentially be disciplined himself, fined and even barred from federal service.  Any manager who follows the President’s lead on this should be sent for a fitness for duty exam.

Ironically, by discouraging, if not prohibiting, the use of progressive discipline, the President just increased the odds that any serious disciplinary action will be overturned. MSPB has frequently stated that when taking serious disciplinary action against an employee agencies should be prepared to show that the action was necessary because lesser penalties in the past have not worked against that employee. It has written–

The prior discipline demonstrated an attempt to rehabilitate the employee through progressive discipline; repetition of the offense demonstrated that future rehabilitation was unlikely. Spates v. Dept. of Army, 20 MSPR 133, 134 (1984); Merchant v. USPS, 52 MSPR 330, 334 (1992) (AWOL: “The record of progressive discipline . . . demonstrates that sanctions less severe than removal have not been successful….

Excessively punishing employees, especially with termination, is one of the clearest examples of waste of government resources. Sadly, our President and his cronies are not concerned with waste.


About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
This entry was posted in Discipline/Adverse Action, Executive Orders and tagged . Bookmark the permalink.

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