Following is the section of a document sent to Capitol Hill in support of the administration’s budget request showing that the White House will seek changes in law to limit employee protections in both performance-related and conduct-related discipline and to restrict union bargaining and grievance processes in the workplace.
Streamline procedures for addressing unacceptable performance
This proposal would streamline the procedures for taking an adverse or performance-based action on the basis of unacceptable performance by shortening the length of certain notice and response periods, such as:
Limiting the time period to demonstrate acceptable performance to generally not more than 30 days while providing agencies sole and exclusive discretion to extend this period if circumstances warrant.
Reducing from 30 days to 20 days:
o the amount of advance notice (notice period) that must be provided to employees when an agency is proposing to take an action for unacceptable performance under chapter 43 procedures.
o the amount of time an agency may extend the notice period provided to employees when an agency is proposing to take an action for unacceptable performance under chapter 43 procedures. An agency may extend the notice period beyond 20 days only for reasons provided in regulations by the Office of Personnel Management.
o the amount of time an agency has to make decisions on proposed actions for unacceptable performance.
Streamline and improve adverse action procedures covered by Chapter 75
The following proposals would improve adverse action procedures:
Remove references to taking actions for discourteous conduct to the public confirmed by an immediate supervisor’s report of four such instances within any one-year period or any other pattern of discourteous conduct. With the removal of this language, agencies will no longer be limited concerning when they can suspend an employee for 14 days or less for discourteous conduct to the public as long as the action is for the efficiency of the service.
Establish a maximum advance notice period of not more than 15 days for employees when an agency is proposing to suspend an employee for 14 days or less for the efficiency of the service. The law currently has no specified advance notice period so agencies have discretion on how much advance notice to provide.
Establish a time limit of 5 days for an employee to respond to a proposed suspension of 14 days or less. The law currently has no time limit for how long an employee has to respond to a proposed suspension of 14 days or less.
Establishes a time limit of 20 days after the employee answers or the expiration of the reply period, whichever occurs first, for agencies to make decisions on proposed suspensions of 14 days or less. The law currently only requires a written decision “at the earliest practicable date” which means agencies have discretion to take longer to make a decision.
Modifies the definition of “employee” to provide greater flexibility for agencies to use longer probationary periods. OPM can provide for longer probationary periods under its current authority, but any practical benefit of this authority is constrained by the current statutory definition of employee, which defines when an individual becomes an employee for purposes of challenging a removal from the Federal service.
Establishes a 20 day advance notice period (reduced from 30 days) provided to employees (including SES) when an agency is proposing to take an action for the efficiency of the service and limits this notice to not more than 20 days.
Modifies adverse action procedural requirements (including SES) to clarify that the term “written notice” does not import any heightened pleading requirements and instead means providing sufficient information so that the employee may reasonably understand the action or failure to act that is the basis for the proposed action. This will simplify adverse action “written notice” requirements reducing the time burden in drafting notices and reduce technical reversals of actions taken for employee misconduct.
Establishes a 10 day period for an employee (including SES) to respond to a proposed adverse action involving removals, suspensions for more than 14 days, reductions in grade, reductions in pay, or furloughs for 30 days or less. Current law provides “a reasonable time, but not less than 7 days” which means agencies have discretion to provide longer time periods.
Establishes a time limit of 20 days after the employee (including SES) answers or the expiration of the reply period, whichever occurs first, for an agency to make decisions on proposed adverse actions for the efficiency of the service. Current law only requires agencies to make decisions at the earliest practicable date.
Clarify essential management prerogatives while preserving the important role and rights of unions in the Federal labor relations system
These proposals reflect the premise that while Federal unions retain core collective bargaining rights, they should be precluded from exercising those rights in a way that would unreasonably deter, divert, or delay managers from meeting their mission for the American people.
The following provisions would be reflected in Chapter 71 to clarify matters that are basic management prerogatives:
o Exclude from the negotiated grievance process management determinations regarding an employee’s pay involving the exercise of managerial discretion or judgment. Any claimed violation, misinterpretation, or misapplication of any nondiscretionary law, rule, or regulation involving management determinations on an employee’s pay could still be subject to a negotiated grievance process;
o Exclude from the definition of conditions of employment matters related to any step increase under subchapter III or subchapter IV of 5 U.S.C. chapter 53; and
o Excludes matters related to any alternative classification and pay system established under subchapter IX of U.S.C. chapter 53.
Carrying out agency mission during emergencies
o Adds a definition for the word “emergency,” which is currently undefined in chapter 71 but has been defined through case law by the Federal Labor Relations Authority (FLRA) and its reviewing courts with regard to management exercising its right at 5 U.S.C. 7106(a)(2)(D) to take whatever actions may be necessary to carry out the agency’s mission during emergencies. Providing a statutory definition will promote greater deference to agencies, rather than outside third-parties, to determine when an emergency occurs.
Simplified process for resolution of bargaining disputes
o Directs the Chairman of the FLRA to establish a single, integrated process to resolve all matters associated with a bargaining dispute. Collective bargaining on one issue could result in unfair labor practices being filed; negotiability appeals being filed; and negotiation impasses declared. Today, each situation is resolved through a different process and filed with a different part of the FLRA. This proposal would streamline the processes with the goal of expediting the resolution of collective bargaining disputes. The proposal would also restrict the FLRA from imposing status quo ante remedies in certain collective bargaining disputes where such remedies would adversely affect the mission or budget of the agency involved in the dispute, the activity’s mission or budget, or the public interest. Finally, it would provide the Director of the Office of Personnel Management the right at any time to intervene or otherwise participate in any proceeding before the FLRA where the Director believes that an erroneous decision will have a substantial impact on civil service law, including chapter 71, rule, or regulation. This is comparable to authority that the Director currently possesses regarding proceedings with the Merit Systems Protection Board under 5 U.S.C. chapter 77. While the FLRA may seek advisory opinions from OPM regarding OPM regulations that are connected to labor relations disputes before the FLRA, the FLRA isn’t required to seek such opinions and does render decision interpreting OPM regulations without always seeking OPM’s opinion. This provision simply confers on the OPM Director the same authority which exists with regard to MSPB cases.
Discussions with employees on operational matters
o The proposal more clearly defines the parameters of what constitutes a “formal discussion” for purposes of when an agency must invite a union representative to a meeting between bargaining unit employees and agency management officials. A meeting must have a purpose of discussing, announcing, or discussing and announcing, new, or substantially changed personnel policies, practices or working conditions to be considered a “formal” discussion. A “formal” discussion does not occur if the purpose of the meeting is to discuss operational matters where any discussion of personnel policies, practices, or working conditions simply reiterates existing policies; the discussion is incidental or otherwise peripheral to the announced purpose of the meeting; or the discussion does not result in an announcement of a change or a promise to change policies.
Limiting collective bargaining obligations to changes that are foreseeable, substantial, and significant in terms of impact and duration
o The proposal revises the criteria to determine when there is an obligation to bargain or consult on otherwise negotiable subjects. Current case law provides that a change must be more than “de minimis” to trigger a collective bargaining obligation. The proposal clarifies the threshold to ensure that collective bargaining is focused on changes which are foreseeable, substantial, and significant in terms of impact and duration.
Protection from certain grievances that are frivolous, or regarding matters that already have established appeal provisions, such as:
o A performance rating that does not constitute the basis for a performance-based or adverse action against the employee (e.g., grieving an “Exceeds” rating to get it raised to “Outstanding”), and
o Any matters covered under sections 4303 and 7512 which are otherwise appealable to the Merit Systems Protection Board (MSPB), thus restoring unity of review in MSPB.
Restore the unity of review by the Merit Systems Protection Board
This proposal would remove the option for bargaining unit employees to file a negotiated grievance and seek binding arbitration on matters where established statutory appeals processes exist, such as agency actions taken for performance or misconduct and which otherwise are appealable to the Merit Systems Protection Board.