Imagine that the folks in your department work under a critical element that requires them to close a claim no later than 10 days after it is placed in their inventory and that for years almost everyone has met that standard. During that time an average of 20 new cases were put in their inventory each day. Now imagine that the White House, Congress or the media does something that causes the number of claims to surge to over an average of 40 arriving in each employee’s inventory daily.  Finally, imagine that when you and the Chief Steward accuse the agency of changing working conditions without notifying and bargaining with the union, it tells you that FLRA precedent holds that when the change is initiated by some force other than the agency, there is no bargaining obligation, and it shows you the cases proving that is rock solid case law. The agency also tells you that it has no plans to change the critical element. So, what can the union do for its members who are all failing to meet the critical element no matter how much harder they work? There are several things.

First, file a ULP grievance alleging that the agency violated 7116(a)(1) and (5), which obligate the agency to bargain before making changes. Ignore the current case law; the plan would be to try to reverse it. But do not focus on the mere increase in claims coming in from the outside as the change. The agency is right.  It did not initiate or control that change. Rather, focus on the change in practice that occurred due to the surge of claims.  If 20 new claims arrived daily for the last year or so and during that time the critical element called for them to be closed in 10 days, the practice was that employees closed 20 cases a day. Focus on that practice as the unilateral change because now the agency is effectively demanding that employees close 40 cases a day. If employees have had to make other changes in how they work to accommodate the surge, cite those changes as well. (Warning: Be sure you officially asked to bargain on the record and that the change be rolled back until agreement is reached before you file this grievance. It is probably not necessary, but it makes it for a cleaner case.)

Second, if your agreement contains wording that requires the agency to notify and negotiate before making changes in conditions of employment allege the contract language was violated as well as the statutory obligation. FLRA has permitted arbitrators to enforce contract violations of that language where the Authority nonetheless rejected any finding of a statutory ULP. Between this and the previous grievance allegation you not only want the practice of assigning and evaluating employees on closing 20 cases a day restored, but you want those practices restored.  For example, if the agency tended to give employees who closed 25 cases a day an Exceptional rating and those who closed 30 Outstanding, you would want the records reconstructed and employees reevaluated.

Third, another allegation in your grievance should be an attack on the critical element. Title 5 USC 4302(b) provides that, “…each performance appraisal system shall provide for— (1) establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria … related to the job in question for each employee or position under the system….” Given that the reality under this case surge is that everyone is failing the critical element there is a good case that the element/standard no longer permits accurate evaluation. This part of the grievance should aim to have the critical element voided or not used during the surge.

Beyond that, the agency has written the element in such a way that it ignores the reality of the ebb and flow of cases coming in the door. While it is an unworkable standard in the situation we describe it is just as unworkable if the intake slows to a trickle of cases. In short, it does not permit “accurate evaluation.” Changing it to reflect the actual practice, e.g., an employee must close 20 cases a day on average, would permit accurate evaluation. The grievance should demand such a change be made.

Fourth, also allege the agency has violated 5 CFR 430. 204 and 207.  Both impose on the agency an obligation to assist employees in improving unacceptable performance. Given that agency production reports will quickly show overwhelming evidence that employees are failing to meet the performance standard, demand that the agency take actions to assist employees to meet it and if it does not then as a remedy call for the entire performance system to be declared in violation of regulation and unusable. 5 CFR 432.104 backs up this argument.

An additional regulation to cite as violated is 5 CFR 300.101-103.  It requires that the agency develop “employment practices” that they “fairly test the relative capacity and fitness of candidates for the jobs to be filled” and that “there shall be a rational relationship between performance in the position to be filled …and the employment practice used.” Given that other regulations require that the agency consider performance appraisals when promoting employees these criteria would seem to apply to critical elements and standards.

Moving on from the grievance turn your attention to demanding information.  At a minimum, you want to know how many claim cases were put in each employee’s inventory per day over the last year before the surge and how many were entering it since the surge. Get the data in a spreadsheet so you can use it for several calculations. It might also be wise to request the data by employee grade or any other variable that might influence production. You want these data to examine the basis for a grievance and the strategy for pursuing it.

If the data demand is the fifth step in the union’s action plan, a sixth would be to counter the agency’s position that it had no obligation to notify the union.  Do that by invoking the union’s right to initiate midterm bargaining irrespective of whether the agency proposed or made a change. Focus on what changes when implemented down the road could help employees if the grievance fails. Check out Dept. of Interior and NFFE, 56 FLRA 45 (2000) for a complete review of the case law on that union right.

Finally, as with any significant union action plan and especially where you have so many employees adversely impacted, use this as an opportunity to organize them. Communicate with them regularly. Identify the non-members in the group and seek them out for some face-to-face time. DO NOT GO TO ALL THIS WORK WITHOUT USING ALL THIS ENERGY TO BUILD INTEREST IN THE UNION.

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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