Here are the facts.  A member, let’s call her Sharon, walks into the union office and asks for help because her manager just gave her an Unacceptable Performance rating and put her on a Performance Improvement Plan (PIP).  You look it over quickly, conclude that the manager seemed to base the letter on rather thin evidence, and ask the employee if there is anything else going on between her and her manager.

Sharon says that she thinks this is retaliation because about two months ago she sent her supervisor’s boss, Mr. Boyer, a memo complaining that the supervisor, Mr. Mantle, had falsified a fellow employee’s annual evaluation by giving that employee, Mr. Berra, credit for achievements Sharon knows that Berra had nothing to do with. Sharon says she can prove that the things Berra got credit for were actually accomplished by someone Sharon shares her carpool with.  When you ask Sharon how she knows Berra got credit for the achievements, she explains that Boyer gave Berra a big cash award for the achievements at a group ceremony and read to everyone the basis for the award, which included those achievements.

When Sharon finished you explained to her that the best thing she can do right now is perform her best during the PIP and that the union will arrange a meeting with her supervisor to show that it is behind Sharon as well as start demanding documentation.  However, you also tell her that the union cannot file a formal grievance until the manager takes action at the end of the 30 day PIP.  Sharon is obviously disappointed that this is all the union can do now and explains that it will be disastrous for her family if she loses her job. “Isn’t there anything else you can do to stop the PIP and almost certain proposed removal in 30 days?” she asks.

Well, is there?

We have often said that it pays for union reps to know federal statutes, regulations and case law precedents just as well as they know the contract.  Moreover, even when they are generally aware of a rule protecting employees, it is easy to miss the connection between the rule and a specific factual situation.  And that is what is happening in Sharon’s situations.  What Sharon did by telling Boyer’s boss that she believes Boyer falsified a federal document and that falsification might have led to an improper use of federal funds was blow the whistle. Stated more formally, the employee made a disclosure of information that she reasonably believed evidenced any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety

Take a look at a recent MSPB decision in which the U.S. Special Counsel launched an investigation of a claim very similar to what Sharon complained about. Special Counsel and Elmers, CB-1208-15-0007-U-1 (12/1/14)  It quickly asked MSPB to impose a stay barring the agency from taking any action against the employee until it had finished its investigation of whether the employee’s complaint to higher level management resulted in the supervisor taking the unacceptable performance action.

So, the answer to Sharon’s closing plea for help is, “Yes, the union can do one more thing that might scare the hell out of management and cause it to back off or even punish Boyer.”   The union could contact the U. S. Special Counsel and file a charge alleging that Sharon is being punished for whistleblowing activity by being subjected to a PIP.  That is a Prohibited Personnel Practice.  The investigation itself should cause management to think twice about going forward against Sharon and may even result in a quick settlement to back off Sharon.  If it does not, the union might learn something it can use should the agency actually carry through with its threat to remove her for poor performance.

In the alternative, the union could wait to see what action management takes at the end of the PIP and it if removes or demotes Sharon it can challenge that through arbitration or MSPB and alleged a Prohibited Personnel Practice at that time.  Frankly, we favor going to the Special Counsel early for one reason, namely, surprise.  When Boyer decided to give Sharon the unacceptable performance rating, he probably knew that the union could challenge any action he took at the end of the PIP period and decided that was worth it the risk.  (He may even have been planning just to rattle Sharon for the 30 day PIP and back off at the end to avoid any union challenge or scrutiny given that the union contract bars a grievance until after final action is announced.) No matter what was going on in Boyer’s mind he had decided that there was more benefit from imposing the PIP than cost to him.  However, filing a formal charge with an outside body that launches an investigation changes all Boyer’s calculations.  Suddenly, he has to defend his actions and if he cannot he is personally liable for disciplinary action, including termination and a fine.

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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