Almost every bargaining unit has a Gladys. She works as a secretary, clerk, or clerical assistant.  Although she has performed acceptably for years, suddenly management puts her on a short PIP, imposes deadlines no one has ever heard of before, and shoves her out the door without any concern for how long she has been there or other mitigating factor.  Sadly, if your Gladys appeals to MSPB she will likely lose, as Gladys Towne found out when she appealed her removal from the Air Force. (2013 MSPB 81 (0ct. 28, 2013)) But here are two things a union can do to protect its Gladys from the fate Ms. Towne met.

The agency put Ms. Towne on a 30-day PIP during which she was to improve her performance in five of her six major duties.  When the agency pronounced her still Unacceptable and fired her, Ms. Towne claimed that was not a reasonable period of time in which to improve. Unfortunately for her, the Board declared that 30 days is generally all clerical employees are entitled to given the simple nature of their duties.

While the Board may have a rather snobbish view of clerical work, the union can neutralize MSPB’s arrogance by negotiating a clause providing all employees with a much longer PIP period in which to demonstrate an acceptable level of performance. (See AFGE, 29 FLRA 515, 1987).   Ms. Towne’s also argued that 30 days was unreasonably short because she was expected to make changes in so many (5 of 6) areas. FLRA case law suggests that it would allow the union to propose the PIP period be extended based on the number of areas in which improvement is demanded rather than be the same for everyone.

Ms. Towne also claimed that the performance standards under which she worked were not valid because they were excessively vague. Unfortunately, the Board has allowed agencies to use impermissibly vague wording in the formal critical element performance standard documents so long as they clarify any vague terms when they issue a PIP, e.g., provide a numeric standard.  In Ms. Towne’s case, for example, the agency’s formal critical element document included this phrase about documents she worked on, “routinely finalized in a timely manner, meeting prescribed suspense dates or established deadlines.” The MSPB held that was acceptable because when Gladys was finally issued her PIP the agency specified, “Accurately finalize and route documents by established suspense dates of 5 days following meetings for draft minutes and and [sic] 10 days prior to meeting [sic] for agendas.”

What can the union do to help protect its own Gladys’ from this absurd application of the law?  It could have demanded in term bargaining that the agency propose numeric performance standards for any vague terms such as “timely.”  Once the agency put its specific numbers on the table, the union could have negotiated over the impact and implementation of those numbers before they could have been implemented. (See Proposal 6 in AFGE, 35 FLRA 1276 (1990)). FLRA case law does not permit the union to propose its own numbers or to try to bargain what the number will be.  That violates management’s rights according to FLRA.

If the agency objected to that proposal by arguing that it could not be obligated to establish numerical measures because that would violate its management rights, the union had options.  It could wait until the agency finally translated the vague terms of the performance standards into numerical terms. Once revealed, it could demand to negotiate on behalf of all unit employees in that position on the grounds that the newly revealed numbers were a change in the past practice.  That would force the agency to reach agreement with the union before it could start the employee’s PIP or risk its removal action being overturned because of a refusal to negotiate.

Ironically, MSPB has not done agency managers as much of a favor as some might think by letting them force employees to work under improperly vague, critical element performance standards until it comes time to fire someone.  The delay virtually ensures that no one will have been monitoring whether “timely” has been interpreted to mean 5 days, 15, days or 50.  Consequently, the union can hold back until the agency issues something specific and suddenly claim that the newly specified number is a negotiable change, which means it cannot be used until bargain has been completed.  Had MSPB ordered agencies to be specific when the critical element documents were issued, any bargaining would have been completed long ago, giving the agency an unobstructed path to taking action against the unacceptable performer.

If your contract does not have these protections, make a note to go after them when it reopens.

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.
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