If a probationary employee comes to the union for help because he/she is about to be or has been terminated, the union should go over the following issues with the employee to see if there are grounds for appeal or a strategy for avoiding termination.

  1. Get a copy of the employee’s termination letter.  If terminated for pre-employment reasons, get copies of the proposal letter, reply, and final decision.
  2. Get the employee’s authorization to obtain a copy of his/her OPF, EPF, and any files the supervisor may have kept on the employee.  Also request access to copies of any e-mail messages in which the employee was mentioned.  Then, put management on notice, in writing, that it is to retain all records related to the employee as well as to any similarly situated employees.  The idea here is that you will examine these records for evidence of illegal disparate treatment.
  3. If terminated for pre-employment reasons, get the employee’s side of the story about each allegation.  If you can show management that the charges are not true, perhaps you can convince management to not terminate.  After all, generally management cannot quickly replace a terminated employee.
  4. If terminated for material, intentional false statements, or deception, or fraud in an examination or appointment, check to see what OPM’s involvement was, e.g., did it approve the action.
  5. If terminated for actions that occurred after the employee began work with the agency, verify when the employee received notice of the decision.  If it was not before the termination moment, the agency made an error.
  6. If terminated for a combination of pre and post-employment reasons, verify that the agency used the pre-employment procedures.
  7. Ask if the employee had any prior federal service.  If so, ask the employee and management for a copy of the employment record showing the period of time the employee worked and on what kind of appointment.
  8. Once those issues are out of the way, start looking into any unstated motives for the termination.  First ask about marital status and the employee’s perception about whether employees with the same status were treated differently than others.  Then turn to politics and ask the same kind of questions, e.g., did management know the employee’s political beliefs, did it mock or punish him for them, were people with the same beliefs treated differently.
  9. Now go into the employee’s union activity, e.g., is she a union member, did management make critical remarks about her being a member, was membership discouraged by her manager,  had the employee filed a grievance or threatened to, had the employee helped another employee file a grievance, etc.
  10. Examine the reason why the employee was terminated whether for pre or post-employment reasons.  Did the agency enforce a rule it never had before, did it terminate because the employee did not meet some standard never shared with the union or that was a change in the existing practice? Had the employee refused to follow an order recently?  If so, what was the order and why did the employee refuse to comply?
  11. Move on to the traditional civil rights act issues. Did the employee feel resentment because of her gender, age, race, national origin, sexual orientation, disability status, religion, etc.  If so, what did she base that on and what was the civil rights make-up of her work group and management chain of command?  Next, did management treat her and others in her same protected group less favorably than those of other groups?  How? Finally, had the employee asked any manager about a civil rights incident she had learned of and what she could do about it?  If so, get names, dates, and a description of what was said.  Don’t forget about possible witnesses or even e-mail confirmation that the conversation occurred. 
  12. Ask if the employee had been asked any personal questions that she thought were over the line.  Demands for information about an employee’s medical condition, prognosis, and diagnosis are often signs of disability discrimination.
  13. Had the employee been criticized recently for giving information to someone other than his manager—or even being perceived as doing that?  If so, what information did he give and did the employee feel there was any connection between the information release and his termination?  Verify the time management learned the information was released and the time the employee was first criticized for doing so. 
  14. Had the employee had a dispute with any manager over being paid for overtime worked?  If so, when and what was said?  How were other employees in a similar situation treated? Were there witnesses?
  15. Had the employee had a dispute with any manager over leave to take care of a family matter or herself or because of a request for or use of FMLA leave?  If so, when and what was said? How were other employees in a similar situation treated? Were there witnesses?
  16. Had the employee had a dispute with any manager over a health and safety matter?  If so, when and what was said? How were other employees in a similar situation treated? Were there witnesses?
  17. Does the employee have prior military service?  If so, when and did anyone in management ever say anything critical or mocking about it?  Has the employee had military service since beginning the job?  If so, when?  Has the employee helped or even openly supported other employees exercising their right to participate in military service.
  18. Identify every time the employee was evaluated, rated, or given any other kind of feedback about his performance.  Have the employee describe the circumstances and what was said by whom and in front of what witnesses.
  19. Had the employee been injured recently and received workers compensation leave or money?  If so, does the employee see any connection between the injury and the termination?
  20. Does the employee think that some other reason was behind the termination that you had not asked about?  If so, get the details.
  21. Was the employee ever called into an investigation of her conduct by her manager or anyone else in management.  If so, was she told she had a right to a representative and did she ask for one?  Get the details of the investigatory interview.
  22. What would the employee say is the most significant reason why management should retain him even if he did do (or fail to do) what management alleges in its letter?
  23. Which co-workers know him or her well and would be willing to talk to the union rep about the employee and the cause of the termination?
  24. Has anything unusual or surprising happened in the employees work group recently?  If so, what?
  25. Would the employee be willing to resign if management kept his record clean or agree to a last chance agreement?

Remember, that the union may not be obligated to represent the employee if he/she has the right to file an appeal by himself or herself.  Check with you local’s expert in “fair representation” questions before you commit to represent the employee. 

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.
This entry was posted in FLRA, Grievance/Arbitration, MSPB, Probation Period and tagged , , , . Bookmark the permalink.

One Response to

  1. Carl says:

    You listed good questions to ask but did give the route one should take should the union rep get information that would help the worker. I recognized ULPs, EEO, discrimination against military personnel or vets (don’t know the appeal route for that), Office of the Special Counsel and throwing oneself on “the mercy of the court.” But I have been doing this for decades. Many union reps may not know what to do with the information

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