UNION REP TEST #8  (Part 1) – Prohibited Personnel Practices (PPPs)

Although union reps are much more likely to encounter agency actions violating provisions of a labor agreement or federal regulations, there are situations where one of these 14 statutory prohibitions arises.  So, it helps to have at least a passing understanding of them. The 14 individual PPPs are listed below followed by a factual situation.  See if you can figure out if the PPP has been violated in the noted situation or not.  The answer follows each situation.

PPPs and Test Questions

PPP #1.      An agency official shall not discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, disability (or handicapping condition), marital status, or political affiliation. 5 U.S.C. § 2302(b) (1)

Situation: Towards the end of the office’s busy season, an employee notices that she never got any overtime assignments like almost everyone else in the group.  When she asked the supervisor why not, he told her that he was trying to help out her and another employee  given that they are both a single moms and needs to get home to the kids.

PPP #2.      An agency official shall not request or consider a recommendation based on political connections or influence. 5 U.S.C. § 2302(b)(2)

Situation: When an employee asks for feedback about why she did not get a promotion, she is told that the Selecting Official was very impressed with a recommendation he got from the Selectee’s  Town Supervisor that extolled her work habits on behalf of her community.

PPP #3.      An agency official shall not coerce the political activity of any person or retaliate against an employee for refusing to engage in political activity. 5 U.S.C. § 2302(b)(3)

Situation: After a brief lunch time conversation in which the supervisor taunted an employee for not participating in the countries political processes like voting, the employee notices that the supervisor has started to cancel some of his telework days by ordering the employee to the office.

PPP #4.      An agency official shall not intentionally deceive or obstruct anyone from competing for employment. 5 U.S.C. § 2302(b)(4)

Situation:   A promotion panel member rates an application merely as Acceptable in the key ranking factor because he knows that only employees rated better than Acceptable in that factor can obtain the promotion.

PPP #5.      An agency official shall not influence anyone to withdraw from competition in order to improve or injure the employment prospects of any person. 5 U.S.C. § 2302(b)(5)

Situation: There are two promotion opportunities bring advertised at the same time.  One is for a Claims Examiner who works exclusively in the office and the other for a Claims Examiner who travels locally outside the office. They are the same grade, but the latter comes with a Compressed Work Schedule. When an employee applies for both, a supervisor strongly encourages her to withdraw her application for the traveling Claims Examiner to show the selecting official that she really wants the other job.  Otherwise she might not get either job.

PPP #6.      An agency official shall not give an unauthorized advantage in order to improve or injure the employment prospects of any person. 5 U.S.C. § 2302(b)(6)

Situation:   Selecting official who hopes to select a particular employee has the vacancy announcement changed from the normal one for the job rating to modify the rating criteria in favor of the guy she wants.

PPP #7.      A federal government employee shall not engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives). 5 U.S.C. § 2302(b)(7) (In this section “relative” is defined by law as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother or half sister.)

Situation:   You learn one day that a unit employee is actually the cousin of her second line manager, but they have not had contact outside the job for five years, since the last family wedding. However, you can’t find any indication this relationship helped the employee.

ANSWERS

#1.    VIOLATION. While the denial of OT to these employees is probably a violation of most labor agreement that contains passages such as “overtime will be assigned in a fair and equitable manner,” this also a prohibited personnel practice because the manager made decisions adverse to the employee based on her marital status. CHECK OUT FED REG AGAINST

#2.    VIOLATION.  The Office of Special Counsel says “this means that a recommendation to hire or promote someone in the federal workplace must be ignored unless the person making the recommendation has actual knowledge of the person’s abilities as they would apply to the position in question.

#3.    VIOLATION.   An employee cannot be pressured into political activity by a superior. This section also prohibits retaliation against an employee for refusing to engage in political activity—not just on behalf of a particular party. Allegations of this kind should be filed with OSC’s Hatch Act Unit by clicking

#4.    VIOLATION:  There are probably a lot of opportunities for employees to allege this PPP that they pass up.  For example, when an employee fails to make the Best Qualified list because of a low score from a promotion panel member which is clearly wrong or without justification it could be because the panel member was trying to keep the employee out of the final competition for selection.

#5.    MAYBE: According to the Office of Special Counsel, for a violation to occur, this influence or persuasion must have happened in order to help or hurt another person’s employment prospects. However, the applicant does not have to actually withdraw from competition in order for the action to be a violation. This section does not bar an agency official from counseling an applicant to withdraw from competition for legitimate reasons, for example, because the applicant is not highly qualified or a better position is available.

#6.    VIOLATION, BUT: The Office of the Special Counsel requires that an employee alleging a violation of this prohibition must have evidence that the hiring process was manipulated with the intent of improving or injuring a particular person’s chances of selection.  It is unclear whether there must be a smoking gun showing that or whether the fact that there is no other reasonable explanation for the change is enough to conclude intent. Union reps should also think about alleging a ULP if the standard vacancy announcement or ranking factors were changed without advance notice to the union and bargaining.

#7.    VIOLATION:  The employee has not done anything wrong, but the second line manager has.  Unfortunately, even though the agency might be ordered to take discipline against the second line supervisor irrespective of any evidence that he favored his cousin, it might also reassign the employee. We at Fedsmill.com think that would be retaliating against the employee in violation of another PPP (5 USC 2302(b)(9)), but it is unclear whether the Special Counsel or the law agree with that. Tread carefully if there is no suggestion that the supervisor did a favor for his cousin that cost someone else, e.g., approved special training for the cousin.

# 8- 14.      Part 2 of this quiz will be posted soon.

The vast majority of federal labor agreements permit employees to file a grievance over a PPP and take the matter to arbitration.  The advantage of tossing a PPP allegation on top of an alleged contract, regulatory or ULP grievance allegation is that it increases the chances the arbitrator will find in the employee’s favor and/or do so in a way that makes it very difficult for FLRA to overturn the employee’s victory.  There is also a greater risk to the agency when a PPP is alleged because there can be harsher penalties on management when one is violated.  We will explain that in Part 2. In Part 3 we will explain the options for raising PPP allegations.