Agencies covered by the order were told to align policies with 2018 executive orders on discipline on performance or conduct grounds issued in the first Trump administration. Image: Jonah Elkowitz/Shutterstock.com
By: FEDweek StaffPresident Trump’s executive order to terminate existing labor-management contracts and prohibit future bargaining in many agencies on national security grounds means that those agencies should move ahead with returning to policies of the first Trump administration to give management a stronger hand in discipline, OPM has said.
A memo on chcoc.gov says that collective bargaining agreements (CBAs) “often create procedural impediments to separating poor performers beyond those required by statute or regulation. Covered agencies and subdivisions should seek to bring their policies into alignment” with those of a trio of 2018 executive orders on discipline on performance or conduct grounds that formed the backbone of the first Trump administration’s federal personnel policy.
The Biden administration had quickly revoked those orders, whose implementation had been delayed by a lawsuit that resulted in an injunction against many of the key provisions. An appeals court later overturned that ban but by the time the first Trump term ended, some provisions remained tied up in legal disputes while others were put in place so late that they had little impact.
Trump in January had revoked Biden’s order in turn. While OPM afterward said that agencies should return to the earlier policies, the latest guidance suggests that terms of union contracts have proven to be a barrier to doing so and emphasizes that agencies affected by the latest order should not consider themselves hindered. The guidance “highlights common provisions of agency CBAs that may be inconsistent with the President’s policies and management priorities.”
It pointed to policies on “performance improvement periods”—a legally required chance for those told that they are under-performing to improve before disciplinary action is taken—that the 2018 orders limited to the law’s minimum of 30 days. Biden’s action had returned agency practices to allowing for up to 120 days, it says, adding that “After covered agencies and subdivisions terminate CBAs that require PIPs of more than 30 days, they should take prompt action to reduce PIPs for former bargaining unit employees to no more than 30 days.”
The 2018 orders also had encouraged agencies to make more use of the law allowing the use in performance cases of a disciplinary procedure most commonly used in misconduct cases called “chapter 75.” That does not require the agency to provide the employee a chance to improve although it sets a higher legal standard for an agency to meet if the discipline is appealed to a body such as the MSPB.
“Many agency CBAs functionally prohibit using chapter 75 procedures by requiring PIPs for all performance-based separations. Covered agencies and subdivisions that have terminated their CBAs should thereafter use chapter 75 procedures to separate underperforming employees without PIPs in appropriate cases. Agencies may continue to use chapter 43 procedures in appropriate cases,” the guidance says.
It also points out that in a 2017 law, the VA was given additional discretion to take disciplinary actions over its own employees; the department under Biden had stopped using that “section 714” authority, saying it was unneeded and mostly resulted in tying up the VA in appeals—many of which it lost.
“VA should, upon termination of its CBA, consider whether to resume use of section 714 authority in appropriate cases. Where facts and circumstances warrant, VA should cease providing covered employees with PIPs before separating them for poor performance under section 714,” the guidance says.
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