Way back in the late 70’s agencies could only fire poor performing employees using the adverse actions statutes.  Managers complained that made it too hard because they had to prove their allegations by the preponderance of evidence as well as prove that the employee’s alleged failings were serious enough to merit termination. President Carter changed all that by creating a way for agencies to fire these employees with merely substantial evidence, and no chance to challenge the seriousness of the mistake or the penalty imposed.  However, in return for that he signed a statue that stated that agencies would let employees know in advance what the performance standards would be and that they would “to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria.” (5 USC 4301)  When that deal was struck, the law was signed and then the roof fell in on federal employees.

The law put MSPB in charge of administering the new Unacceptable Performance process and it wasn’t long before the Board was spewing forth glorious pronouncements about the protections employees would enjoy under the law.  For example, as seen in the recent decision about critical element performance standards titled, Gladys Towne v. Dept. of Air Force, 2013 MSPB 81 (2013) “Standards must be reasonable, realistic, attainable, and clearly stated in writing. . . .specific enough to provide an employee with a firm benchmark toward which to aim her performance, . . . and must be sufficiently precise so as to invoke general consensus as to their meaning and content.”  However, when the Board actually applied all these admirable criteria, it turned out the words had little meaning.

We now know that the Board has a monkey on its back that we call Intellectual Dishonesty.  Despite the fact that most Board members have been attorneys and taken an oath to uphold the laws of the United States, they routinely ignore legal precedent to help agencies fire employees for alleged poor performance.  All attorneys learn in their first few weeks in law school that when interpreting statutory language the primary rule is to give the words of the law their “plain and ordinary meaning” unless it is obvious that Congress intended otherwise.  Yet, with few exceptions Board members have repeatedly refused to follow that rule, thereby making it easy to fire allegedly underperforming employees and to impose low evaluations scores on employees they do not fire.  Take a look at Debra Chandler v. Dept. of Treasury, 2013 MSPB 74 (2013) and you will find a very clear picture of this conflict.  Board member Anna Wagner interpreted the statute in that case literally while the other two members drew conclusions without any foundation in the actual words of the law.

Aside from the harm done employees, agencies are hurting themselves with these vague elements and standards. The intent was to generate objective measures so that they had to decide in advance what would be acceptable and what would not be.  Objective standards were going to make it easier for managers to set the performance bar for employees and for executives to hold supervises accountable for acting on poor performers.  At the other end of the spectrum, objective standards were going to help identify the best performers without any management favoritism.

But all is not lost just because the Board is playing fast and loose with statutory interpretation rules.  Late last year the Authority upheld Arbitrator James Margolin’s decision that one of the critical elements imposed on union members was not valid.  The agency, the Dept. of Labor, had demanded that its Field Economists convince private employers to voluntarily respond to surveys at a certain rate.  The union filed an institutional grievance arguing that the critical element standard demanded a level of performance that was not within the employees’ control to achieve.  Margolin agreed and ordered the agency to remove the critical element from employee appraisals. The Authority upheld his decision because it was consistent with the plain wording of the statute and OPM regulation which require that critical elements and performance standards, “. . .  to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria.” (5USC 4302(b)(1))  See Dept. of Labor, BLS and AFGE, NCFL, 67 FLRA 77 (2012), see also Fedsmill’s post entitled, “AFGE Pulverizes Performance Standards.

In contrast, it is FEDSMILL’s opinion based on a lot of MSPB performance termination cases that MSPB would not have applied the plain meaning of its glorious criteria as literally or faithfully as an arbitrator will.  Moreover, if the union appealed a performance appraisal rating asking MSPB to rule that the critical element is invalid it is virtually certain the Board would not even take the case.

Consequently, in any grievance challenging an appraisal or even if a critical element is just objectionable the union should consider challenging the validity the entire critical element or any performance standard part of it based on the Board’s proclaimed standards.  The Board has ruled that the Agency, not the employee has the burden of proving that any performance standard meets the requirements of Chapter 43. (Evans v. Dept. of Treasury, 24 MSPR 571 (1984) Aside from the ones mentioned above, here are a few other requirements the Board has established.

Critical element standards should be:

  • Reasonable and valid (Jackson v. Dept of VA, 97 MSPR 13 (2004) which can mean that it demands too high a degree of error-free work (Blain v. VA, 36 MSPR 322 (1988) and Walker v. Dept.of Treasury, 28 MSPR 227 (1985)) 9 11 or too much work be done in the time available.
  • Capable of being “applied in a verifiable fashion. ( Stone v. HHS, 35 MSPR 603 (1987))
  • Create a “firm benchmark.” (Melnick v. HUD, 42 MSPR 93 (1989)
  • Written as an elusive goal which the agency may find the employee met or failed to meet at its pleasure. (Donaldson v. Department of Labor, 27 M.S.P.R. 293, 298 (1985))
  • Stated as a raw number if addressing quality or timeliness, but as a percentage of the total workload that must meet the mark. (Boyd v. Dept. of Navy, 88 MSPR 435 (2001))
  • Realistic and attainable. (Greer v. Dept of the Army, 79 MSPR 477 (1998))
  • Describe with clarity how an employee can attain a particular rating in any given element other than fully successful. Van Pichard v. Dept. of Defense, 2011 MSPB 94 (2011))

Critical element standards should not:

  • Be stated backwards in terms of what the employee should not do. (See Jackson-Francis v. OGE, 2006 MSPB 255).
  • Use vague measurements such as “somewhat short.” 4 5
  • Subject to various interpretations and subjective evaluation (Eibel v. Dept. of Navy, 857 F.2d1439 (1988))

Sadly, the Board allows an agency that has not had a valid critical element standard in place to “flesh out” the details in supplemental documents and counseling. (Eibel v. Dept. of Navy, 857 F.2d1439 (1988)) But that surely seems to violate the 1979 promise that these standards would be set up in advance so no one was surprised when appraisals were issued.

If the elements/standards in your bargaining unit have been in place for a while, there is no need to worry because the courts expect agencies to improve on these standards as they go along. “Our approval of initial standards should not be taken to mean that those standards would not later be disapproved. As experience is gained in writing standards which are understandable and appropriate to various types of positions, the court expects the agencies to revise and update original performance standards. See Lovshin v. Department of the Navy, 767 F.2d 826, 842 (Fed. Cir. 1985) (in banc), cert. denied, 475 U.S. 1111 (1986).

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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