AFGE WINS WTH UNCOMMON DEFENSES TO PERFORMANCE CRITICISM
If the average federal employee only knew how vulnerable he/she is to being fired for performance-based reasons, employee pharmaceutical bills would double. Management can unilaterally set the performance standards, need only produce some evidence that the employee failed to meet one of them, and choose the penalty with virtually no second-guessing by MSPB or the courts. That’s why a recent AFGE victory is very good news, whether grieving a low performance appraisal or defending against a proposed removal for unacceptable performance.
In this case (AFGE, 66 FLRA 880), the agency rated the employee (an attorney) as “failing to meet expectations” for the performance period based on several charges. One allegation was that he failed to meet the standards of the critical element entitled, “Advocates for/Represents the Agency” which essentially required that agency attorneys deal with “courts, clients, and others” in a diplomatic manner. As evidence of that failure the agency cited the employee’s “spats” with co-workers. AFGE argued that nothing in the plain language of the standard addressed interactions with co-workers, and the arbitrator agreed.
Another standard allegedly violated was entitled, “Provides Legal Advice” and required timely responses to inquiries as well as professional behavior. The agency cited the same complaints from the employee’s co-workers as proof the employee failed this standard as well. And once again the arbitrator agreed with AFGE that the cited performance was not covered by the performance standard.
When FLRA was asked to review the decision, it made several useful statements. First, it said that arbitrators are authorized to interpret and apply agency rules, such as elements and standards. Second, the agency could not prove that the arbitrator’s interpretation of its standards was wrong.
Consequently, whenever union reps are involved in performance actions they should examine whether they can allege that the incidents cited by management as proof the employee failed the standard are covered by the standard. All too often that defense is passed over too quickly.
Another very valuable element of this case is that it produced a resolution to the question of whether the agency must postpone an employee’s rating beyond its normal due date if it is missing important facts at that time. Again, FLRA sided with AFGE and the arbitrator finding that 5 CFR 430.208(g) does require that. FLRA stressed that the rating must stress actual performance rather than assumptions or yet-to-be-fully-investigated allegations. In this case, there was a pending investigation of the employee’s interactions with co-workers that the agency decided not to wait for.
FLRA went on to note that OPM guidance, opinions, letters and manuals will only be relied upon where they “have the power to persuade.” While the agency did point to some OPM material advising that it should delay evaluations in certain situations, FLRA found that to be inconsistent with the actual federal regulation—and unpersuasive.