QUESTION: WHEN IS A PIP A ULP? ANSWER: ALMOST ALWAYS
The law requires that employee performance standards be written so as “. . . to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria.” (5 USC 4302(b)(1)) That was put in the law to protect and benefit employees in the new system that made it easier to fire them for poor performance. “In requiring the use of objective criteria in performance standards and communication of the standards to employees, Congress also intended to ensure that employees were made aware in advance of what was expected of their performance.” Siegelman v. Dept. of HUD,14 MSPR 326 (1983).
Based on those words, SSA Claims Representatives, IRS Tax Examiners, Customs and Border Protection Officers, VA technicians and others should all have performance standards notifying them of the number and kind of errors, for example, that would result in them being rated Unacceptable, Exceptional, Outstanding, or whatever. But they don’t.
The Merit Systems Protection Board (MSPB), the agency that administers the law, decided to let management off easy because it thought that would be too hard for management to do. All the Board requires today is that management give the employee some objective benchmarks or similar clarity at the time it notifies the employee that his performances appears to be unacceptable and imposes a PIP. That is normally just weeks before it fires the employee. Here is that rule in the Board’s own words, ” Nonetheless, any lack of specificity inherent in the performance standards was cured by the agency’s providing the appellant with clear guidance during the PIP as to what was expected of him. See Baker v. Defense Logistics Agency, 782 F.2d 1579 (Fed. Cir. 1986) (an agency can give content to performance standards by informing the employee of specific work requirements through written and oral instructions).” Joseph Diprizio v. Department of Transportation,88 MSPR 73 (2001)
That single Board precedent has made it very difficult for employees to challenge any performance appraisal, whether it is the denial of a high rating or the imposition of a failing one.
But, FEDSMILL.com has an idea that just might rebalance the scales. (After all, we started FEDSMILL to use ideas to generate the power to change things; hence, the windmill image.)
Just for purposes of an example, suppose management gave its Social Security Claims Representatives a critical element performance standard that read as follows: “Make no more than occasional errors in writing final decisions.” Now assume that it does not like how one of them is performing and decides to impose a PIP before firing her. In preparing the PIP management anticipates the objectivity requirement of the law and officially tells the employee the following: “Make no more than one calculation error in every 100 calculations and no more than four spelling errors per report.” That scenario plays out thousands of times a year in government when management tries to fire an employee and employees have been helpless to fight back.
In this example, management complied with the MSPB law, but in all likelihood it committed a ULP in the process. By changing the standard from the ambiguous words in the official performance standard to an objective criterion for the individual employee, it made a change in working conditions–and probably without notifying the union in advance so that the union could bargain over the change. Given that FLRA has not addressed a set of facts like this, our conclusion that this is a ULP is our best guess as to how FLRA would rule if it ever gets such a case. But, it is an educated guess based on the following:
- The FLRA has held that changes involving just one person can constitute negotiable changes. See, AFGE, 37 FLRA 278, (reassignment of one employee was deemed sufficient to require impact and implementation bargaining). AFGE 47 AFGE 225(discrimination settlement agreement for a single employee can constitute a negotiable change).
- It is “reasonably foreseeable” that once an objective standard is set for one employee it will be used to judge other similarly situated employees.
- Performance standards are unquestionably working conditions.
- FLRA precedent allows for it to order employees reinstated with back pay when management violates 7116(a)(5). See AFGE, 61 FLRA 688.
If that sounds like a good idea to you, then you should raise the issue the next time you represent an employee who is given a more objective clarification of her performance standards the day she begins a PIP. Claim that management has unilaterally changed working conditions by changing the standard without notice to and bargaining with the union first. And, if the employee is fired, either raise the ULP issue at the arbitration along with challenges to the unacceptable performance action. If you decide to appeal the employee’s individual case to MSPB, you can always file a ULP with the FLRA to litigate the unilateral change and ask for reinstatement with back pay.
An indirect effect of making this argument is that perhaps management will decide that the expedited process for firing poor performance without much evidence is not so attractive anymore and choose to use the more traditional adverse action route.
This is another one of those areas where an individual employee cannot raise this defense. Only an official of the exclusive representative can complain about a unilateral change. Of course, if the employee does not work in a unionized unit, then she is totally without this protection.
(This was first posted on December 14, 2011)