The White House has moved ahead with provisions of executive orders issued last year on employee discipline that were not blocked in court. Image: Mark Van Scyoc/Shutterstock.com
By: FEDweek StaffThe Trump administration has been pushing forward with parts of the three executive orders signed this time last year on disciplinary and labor-management matters that are not tied up in a lawsuit currently pending in a federal appeals court.
Because the lower court decision in that case blocked many of the most significant provisions of the orders, there is a common view that the orders are totally invalid — at least pending a final legal resolution. Some are mostly administrative in nature but others get to important issues of employee rights.
The lower blocked provisions to: set time frames for negotiating ground rules and then for reaching a contract; bar agencies from bargaining over matters that are negotiable at management’s discretion; limit to 30 days the “performance improvement periods” before taking disciplinary action on performance grounds; discontinue the long-standing practice of providing unions with free use of office space and agency equipment; limit official time to one hour per bargaining unit employee annually and further restrict its allowable uses; and exclude from negotiated grievance processes disciplinary actions, the assignment of performance ratings, or the award of any form of monetary incentive.
However, the lower court left in place provisions stating that in deciding on discipline, agencies: should consider all of an employee’s past misconduct, not just similar misconduct; need not use progressive discipline; need not suspend an employee first if the infraction merits removal; and need not apply the same penalty that was used in a previous similar case involving another employee.
Also undisturbed were provisions telling agencies to: use their powers to remove employees during the probationary period when employees have fewer appeal rights; consider using, in performance-related cases, disciplinary procedures that don’t require giving the employee a chance to improve first; no longer agree, as part of settlements with employees, to remove information about their performance or conduct from their personnel files; speed up the notice and decision process; better educate supervisors and managers on how to carry out discipline; and more.
Soon after the district court ruling, OPM told agencies that they are to carry out the portions that were not enjoined and that they remain free to take certain positions during bargaining, including to limit opportunities for employees to show improvement before being disciplined on performance grounds, not commit to using progressive discipline, and to limit official time. They also remain free to set a goal of completing negotiations within a year and invoking mediation or filing unfair labor practice charges against a union that an agency believes is delaying negotiations, it said.
In a series of instructions since then it has issued guidance on carrying out certain parts of the orders still in effect, including that they: submit to OPM collective bargaining agreements and arbitration awards in order to create a central database; report on disciplinary actions they took against their employees broken down by type of action, probationary vs. tenured status, whether the agency provided a performance improvement period, how long the agency took to make a final decision in misconduct cases and other specifics; and the provision regarding removing information about an employee’s conduct or performance in a settlement.
While the bargaining-related provisions have resulted in a series of unfair labor practice complaints filed by the unions, there has been no assessment of the impact so far of the disciplinary provisions. That’s in part because since January 2017 the MSPB has lacked the quorum on its governing board to decide on appeals in such cases.
