The Good News: The Union Doesn’t Get to Attend Every Meeting (Part 2)

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By Ann Boehm, April 11, 2022

This is final of my two articles on union attendance at meetings. Last month, I covered the Weingarten right. This month, it’s formal discussions.

The statutory guidance on both types of meetings is in 5 U.S.C. § 7114(a)(2). The formal discussion language is in subpart (A): “An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at … any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.”

Let me be honest. I could write a long article discussing all the intricate aspects of what is and is not a formal discussion. Fortunately, I do not have to do so. Here’s my public service announcement: In 2015, the FLRA Office of the General Counsel published “Guidance on Meetings.” It’s a must-read for anyone in Federal sector labor relations. The guidance summarizes key case law and highlights the important aspects of both formal discussions and Weingarten meetings. It’s also 43 pages long.

The goal of this article is not to regurgitate all the details in that guidance, but instead to give you my own highlights regarding formal discussions, including some key practical advice.

Why does the union have this right?

In evaluating the union’s right to be present at a formal discussion, you need to understand why they have the right in the first place. The right exists “to provide the union with an opportunity to safeguard its interests and the interests of employees in the bargaining unit–viewed in the context of a union’s full range of responsibilities under the Statute.” Dep’t of Justice, Bureau of Prisons, FCI Ray Brook, 29 FLRA 584, 589 (1987), aff’d, AFGE v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989). The biggest takeaway from the “why” is to realize that the union’s right to be present at a formal discussion is to represent the entire bargaining unit, not any individual employee!

Why did Congress use the word “formal”?

The above-mentioned FLRA guidance explains this very nicely. Let me highlight the key information from that guidance (at page 5, emphasis added):

Where a meeting is brief, spontaneous or deals with a performance issue particular to the bargaining unit employee, the Authority is less likely to find that it meets the “formality” requirement. In reaching this conclusion, the Authority has noted that the word “formal” was inserted as an amendment to the Civil Service Reform Act of 1978 “‘to make clear that this subsection does not require that an exclusive representative be present during highly personal, informal meetings such as counseling sessions regarding performance.’” (citing F.E. Warren AFB, Cheyenne, Wyo., 52 FLRA 149, 156 (1996) (Warren AFB).

Isn’t that great to know!

So, what exactly is formal?

The FLRA highlighted the factors to consider to determine formality in Department of Energy, Rocky Flats Field Office, 57 FLRA 754, 755 (2002): “1) the status of the individual who held the discussions; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) how long the discussions lasted; (6) whether a formal agenda was established for the discussions; and (7) the manner in which the discussions were conducted.” There is another potential factor — whether attendance was mandatory. DVA, Central Ark Veterans Healthcare System, 63 FLRA 169, 172 (2009).

It gets a bit tricky, though. The FLRA lists out these factors, but also has said they are “illustrative, and other factors may be identified and applied as appropriate.” VAMC, Richmond, Va., 63 FLRA 440, 443 (2009). Oh gee. That’s helpful.

If it is a formal discussion, then what?

Prior to conducting a formal discussion with unit members, management must 1) notify the union, 2) within a reasonable time in advance of the meeting, 3) allow the union representative to be present, and 4) participate. Simple enough, right?

Practically speaking, Ann Boehm of 2022 has this advice for you: If it’s not clear whether a meeting is a formal discussion or not, invite the union.

What? Ann, are you crazy?

Let me explain. Early in my career, my goal (as directed by management) was to try keep the union out of every meeting. Over time, however, I mellowed. I mean, why would you not invite the union to a meeting between management and bargaining unit employees?

Let’s face it, if a bargaining unit employee is in the meeting, it is likely that the union will hear about it. If the union attends, and management does something the bargaining unit members don’t like, the managers can always say, “Well, the union was present at the meeting.”

And let me tell you the biggest thing I learned over a fairly long labor relations career. If you invite the union, you have satisfied your obligation. If they do not attend, that’s on them. In case you hadn’t noticed, federal employees meet a lot. If you invite the union regularly, you may find that they opt not to attend.

Here’s another bit of practical advice. If you don’t invite the union, and they think it was a formal discussion, the union can file an unfair labor practice — a “gotcha.” They get to say, “Bad management, you violated the Statute when you failed to invite us to this meeting.” If you invite the union, you avoid the “gotcha.” It’s not as fun for the union.

What if the employees don’t want the union there?

Believe it or not, bargaining unit employees do not always want the union to attend their meeting with management. But as I mentioned initially, the union’s formal discussion right is intended to enable the union to represent the best interests of the entire bargaining unit. It is not the employee’s right.

Where this gets a bit bizarre is on the grievance aspect of the formal discussion rights. For example, the FLRA considers EEO complaints and MSPB appeals to be grievances, so settlement discussions in such cases can be formal discussions. In practice, a bargaining employee may have private counsel for their EEO or MSPB case, and yet the union will have a right to attend a settlement discussion between management and the employee. You will find that bargaining unit employees are often concerned about the union attending their EEO settlement meeting. If that occurs, it’s not management’s problem. The agency is obligated to notify the union, and the union has a right to attend. If the employee has a concern, they should raise it internally with the union.

Conclusion

I hope these two articles have helped you know when the union has a right to be present at management meetings. Just because the union wants to attend a meeting does not mean they get to attend. And that’s Good News. Boehm@FELTG.com

[Editor’s note: For more guidance on all things Labor Relations, join Ann and Joseph Schimansky for FLRA Week May 9-13. Register now.]

The Good News: The Union Doesn’t Get to Attend Every Meeting

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By Ann Boehm, March 15, 2022

One of the most frequent labor relations questions I get from supervisors is, “Does the union get to attend meetings between me and an individual bargaining unit employee?”

The answer to that question is, “It depends.” And I would add, “Probably not as often as bargaining unit employees think.”

Many union stewards, bargaining unit employees, and supervisors do not understand when a union representative may be present for a meeting between management and bargaining unit employees. The statutory guidance on meetings is in 5 U.S.C. § 7114(a)(2). There are two different types of meetings that the union may attend – formal discussions (§ 7114(a)(2)(A)), and Weingarten meetings (§ 7114(a)(2)(B)).

This article focuses on the Weingarten right. In my experience, people tend to believe the Weingarten right to representation arises more often than it does. Let me try to explain when the right does arise.

To trigger the Weingarten right, there has to be an investigation by the agency. That typically means a misconduct investigation. If there’s no investigation occurring, you can pretty much stop there — no right to a union representative.

If there is an investigation, the next consideration is whether the representative of the agency is examining a bargaining unit employee, or to put it another way, asking questions. No questions, no right to representation.

But wait, there’s more. If there is an investigation, and there is an examination of a bargaining unit employee by an agency representative, the employee still has to “reasonably believe” that disciplinary action against the employee could result from the examination in order for the employee to have a right to union representation in that meeting. (You still with me??) If the employee is the subject of the investigation, it is highly likely that “reasonable belief” requirement will be met. However, if the employee being questioned is just one of many witnesses, the requirement will not be met. No reasonable fear of disciplinary action, no right to union representation.

And that’s not all. The employee has to request a union representative (unless the collective bargaining agreement specifies that the agency representative has to inform the employee of their right to representation). The union cannot assert the Weingarten right for the employee. It’s up to the employee to seek the representation. No request for representation, no right to representation.

I’m not done yet. If those are the triggers for the Weingarten right, what types of meetings are NOT going to trigger the right?

Our friends at the FLRA highlight a few specific types of non-Weingarten meetings in the Office of the General Counsel’s Guidance on Meetings (Sept. 1, 2015).

The Authority has routinely held that performance counseling sessions and other meetings intended to convey concerns over the quality or timeliness of an employee’s work performance do not constitute “examinations” within the meaning of section 7114(a)(2)(B) where they are not designed to elicit information from the employee, but rather to inform and counsel the employee regarding performance deficiencies. It has reached the same conclusion regarding meetings to announce disciplinary actions, as well as meetings conducted for the purpose of giving the employee an assignment or a test or as part of a non-disciplinary classification desk audit.

So, there you have it. I hope this helps you understand the parameters of the Weingarten right. The union doesn’t get to attend every meeting. That’s Good News! (Stay tuned. Next month I’ll cover formal discussions.) Boehm@FELTG.com

The Good News: Brief is Better

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By Ann Boehm, February 15, 2022

Communication in 2022 is dominated by Twitter, which limits users to 280 characters per Tweet. Online news organizations provide news feeds specifying number of words and expected reading time. Brevity is so important that online news organization, Axios, has trademarked and is marketing the concept of “Smart Brevity.”

So FELTG friends, stop writing such long discipline documents!!!

No one wants to read a 10-, 15-, or heaven forbid, 25-page proposal to remove or suspend.

Why do managers, employee relations specialists, and attorneys write such long documents? Probably because of fear. The fear is unjustified.

Writers of documents with legal implications believe that providing more words will protect in the event of a lawsuit. In reality, more words are likely to prove detrimental.

We write the way we talk, and in oral communication, silence is uncomfortable. Writing becomes excessive because of unnecessary space fillers — comfort words. Learn to recognize those and cut them! Examples: therefore; essentially; literally (I hope you don’t use that, but suspect you may); henceforth, the, that, etc. Writing is not the same as speaking.

We also worry that failing to cover every possible detail will hurt our case. Judges are guilty of this. Long decisions prevail. If you asked judges, though, they probably prefer to read shorter documents from litigants.

The challenge to concise writing is knowing what is important to the reader. I imagine news organizations now providing word counts and reading times had to adjust to the societal desire for brevity. But reading these news feeds provides the information you need to know without the fluff. People love it!

I challenge you to read the now-prevalent shortened communications. Note how effectively people on Twitter communicate with 280 characters. Pay attention to how news feeds highlight critical information.

Next, apply what you learn to your writing. Resist long factual narratives and put relevant factual information in specifications supporting charges. Trust me. Try it. You will be amazed.

Then, edit your documents. Cut out extra words. Read for what matters. Take out what does not. This takes confidence. The benefits will be significant. You will save time and energy for all subsequent readers. Those readers are likely decision-makers. They will see points concisely and cogently and will not get mired in extraneous details.

This will be an adjustment. It will take confidence. It will improve the discipline process. And that’s good news! Boehm@FELTG.com

[Ann’s note: The original version of this article had 491 words. After editing, it has 396 words. You didn’t miss a thing!]

For more on drafting disciplinary documents join FELTG for MSPB Law Week March 28-April 1, 2022. 

The Good News: Stop Using ‘Can’t Versus Won’t’ and Everyone Will Be Happier (Trust Me)

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By Ann Boehm, January 11, 2022

Throughout almost 30 years of working in Federal personnel law, one of the mantras that bothers me the most is the one used by many personnel practitioners to decide whether an employment issue is performance or misconduct: “If the employee can’t do it, it’s performance. If the employee won’t do it, it’s misconduct.”

My reaction to this statement is remarkably consistent: “Huh?!”

Seriously, what does this mean? If you want to get very legalistic about it, this mantra is assigning intent to whether an employee should be placed on a performance improvement plan or disciplined. No intent (can’t) = performance. Intent (won’t) = misconduct. That just doesn’t make sense.

I see how a willful failure to perform – “won’t,” if you will – could be misconduct. But a willful failure to perform can also be performance. And if somebody can’t do what they are expected to do, does that excuse them from engaging in misconduct? I think not.

In 2014, I attended FELTG’s MSPB Law Week training. FELTG Grand Poobah Emeritus Bill Wiley explained that “can’t vs. won’t” doesn’t make any sense (agreed, agreed, agreed; applause, applause, applause). As Bill explained it, the proper test for performance versus conduct simply requires examination of the critical elements in the performance work plan. If an employee is unacceptable on any one critical element in the plan, it’s performance. Otherwise, it’s misconduct.

Hooray! Life changing! This makes so much sense!

We at FELTG continue to teach performance versus misconduct in this way. It’s totally logical. “Can’t versus won’t” is not. But sadly, “can’t versus won’t” just will not go away.

Even the MSPB has used the illogical “can’t versus won’t” analysis. In Valles v. Dep’t of State, MSPB LEXIS 25 (M.S.P.B. Jan. 6, 2020), the appellant challenged his removal. He argued that a fully successful performance rating undermined the agency’s proof of the misconduct charge “failure to follow instructions.”

Let’s just stop right there. The appellant received a fully successful performance rating. He was acceptable on all of his critical elements. If you use the FELTG approach, this could not be a performance case. It had to be misconduct.

The MSPB, however, did not use the very wise and logical FELTG approach. The administrative judge explained that a “failure to follow instructions” charge requires an agency to show that the employee “(1) was given proper instructions, and (2) failed to follow the instructions, without regard to whether the failure was intentional or unintentional.” Id. at *19 (emphasis added). Even though intent is not relevant to a failure to follow instructions charge, somehow the AJ was persuaded by the agency witnesses’ testimony that “performance involves an employee who ‘can’t do,’ while misconduct involves an employee who ‘won’t do.’” Id. at *25. (Sounds like an intent analysis to me.) Apparently, the appellant was a classic “won’t do.” That was good enough for the AJ to find the agency proved the failure to follow instructions charge.

Arghhhhh!! This makes no sense!

The Federal Circuit reviewed the MSPB’s decision and affirmed the removal. Valles v. Dep’t of State, No. 2020-1686 (Fed. Cir. Oct. 29, 2021). Unfortunately, the court did not question the AJ’s “can’t versus won’t” analysis. However, it did not rely upon it either. The court pointed out that “[i]ssues of misconduct and performance may overlap” and “following instructions can fall within this area of overlap.” Id., slip op at 4.

The performance and conduct overlap is precisely why agencies struggle with whether to pursue a matter as performance or misconduct. An easy tool is needed to help with this decision-making process.

Guess what that easy tool is. NOT “can’t versus won’t.” Trust me. It’s the FELTG way. Failing a critical element means it is performance. Otherwise, it is likely misconduct.

It’s important to understand what else the court held with regard to this performance/ misconduct overlap. The court determined that appellant’s fully successful performance evaluation was relevant and had to be considered in assessing the proof of the charged misconduct as well as the penalty (in the Douglas factor analysis).

Agencies need to consider the impact of a fully successful evaluation on a related misconduct case. That being said, the court noted “that the existence of a fully successful performance evaluation” does not bar “discipline for matters covered by the evaluation,” only “that the evaluation must be considered” in determining whether the discipline was appropriate. Id. at 5. Fortunately for the agency in Valles, the court found that even though the AJ erred in not considering the fully successful appraisal, the employee was so bad that removal was justified – no harmful error there. Id. at 5-6.

My friends, we at FELTG want to make the crazy Federal personnel world easier for you to navigate. Resolve in 2022 to stop relying on “can’t versus won’t” in deciding between a performance or misconduct action. Rely on a review of the performance plan’s critical elements. We don’t make this stuff up. We want to help. And that’s Good News. Boehm@FELTG.com

Join FELTG for the live virtual training MSPB Law Week March 28-April 1.

The Good News: A Letter to Santa 2021

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By Ann Boehm, December 7, 2021

Dear Santa:

I hope you and Mrs. Claus had a good year, despite the continued pandemic. I guess you’re happy to have your own elf labor and reindeer transportation, since the supply chain appears to be a problem now.

I think I should be on the good list this year. I have decided that I won’t mention the pony this year, even though a pony would be really neat. And since I’m not asking for a pony, I hope you will help me with some other things I really want for Christmas. Here they are.

1. A revised Federal EEO process.

Yes, Santa, I know that the pony would probably be easier than this, even with the sleigh limitations. But this one would really help EEO complainants and Federal agencies.

2. Senate-confirmed MSPB Board members.

Santa, please stop laughing. This one is serious. No quorum at the MSPB since January 2017 is getting a little silly. The three nominees are through committee and just waiting for confirmation. Can you help?

3. Senate-confirmed FLRA members and General Counsel.

There are three FLRA members, but two are on expired terms. It would be bad for the FLRA to go the way of the MSPB and not have a quorum. And the Acting General Counsel can only serve for so long. Not having a General Counsel means no ULP processing, and that’s a bad thing. Two FLRA nominees and the General Counsel nominee are through committee and waiting for confirmation. Please help with these nominations, too.

4. Acknowledgment from this Administration that pro-Union doesn’t mean pro-bad employee.

The Biden Administration is really pushing agencies to encourage union membership and work with bargaining unit employees. That’s a nice theory, but too often unions take the side of the toxic, draining employees at the expense of the effective, hard-working employees. Santa, it would be great if you could help everyone understand that bad employees are bad employees, regardless of their bargaining unit status.

5. Progressive discipline (reprimand, suspension removal) even for non-vaccine disciplinary cases.

Santa, we here at FELTG have taught about progressive discipline for a very long time. Sometimes agencies don’t always believe us when we tell how it works, and then bad employees stay employed for far too long. The vaccine mandate has highlighted how progressive discipline works. I would like to ask you to make sure agencies (and this Administration) understand that progressive discipline is appropriate to use for all misconduct cases (unless misconduct is bad enough to remove an employee in the first instance—and yep, that can be appropriate).

6. More in-person training.

It’s been amazing to be able to train agencies virtually during this bizarrely long pandemic crisis. But I do miss the in-person interaction. I’m fully vaccinated and willing to travel. If any agencies want in-person training, I’m ready to roll.

7. A pony.

OK. I said I wouldn’t ask, but I have to keep trying. Stay safe, Santa. Merry Christmas and Happy New Year! Ann

Boehm@FELTG.com

The Good News: Administration’s LR Oxymorons Aren’t as Bad as They Seem

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By Ann Boehm, November 17, 2021

I think oxymorons are kind of fun. An “oxymoron” is “a combination of words that have opposite or very different meanings,” according to the Merriam-Webster Online Dictionary. You know — jumbo shrimp, military intelligence (I have to include that since my husband spent his Federal career in military intelligence), small crowd, pretty ugly, freezer burn.

But are they fun in the Federal labor relations world? The administration’s emerging Federal sector labor relations policy has thus far created two oxymorons. (Full disclosure — I coined these myself based upon Administration directives.)

It started with Executive Order 14003 and this Administration’s directive (like the Clinton and Obama Administrations before it) for heads of agencies to engage in permissive bargaining under 5 U.S.C. § 7106(b)(1). In other words, we now have “mandatory permissive” bargaining. An oxymoron. I’m not going to go into detail about mandatory permissive bargaining in today’s article. We’ve hosted webinars on the topic, and it’s part of our labor relations training classes. Suffice it to say, though, mandatory permissive bargaining has been around before, and it’s not as onerous as agencies fear. (And just for good measure, the Trump Administration directed agencies not to engage in permissive bargaining, so we had “prohibited permissive” bargaining. Who knew Federal labor relations could have so many oxymorons?)

Let’s add a new oxymoron that emerged from two recent OPM directives. As of Oct. 20, 2021, agencies are being strongly encouraged by OPM to engage in what I call “neutral encouragement” of employee bargaining unit rights. An oxymoron.

According to two OPM memoranda to Heads of Executive Departments and Agencies, OPM wants agencies to highlight bargaining unit employee rights in the hiring and on-boarding processes and highlight bargaining unit employee rights to join a union and their rights as bargaining unit members.

What’s the problem with that, you may ask? Well, the Federal Service Labor-Management Relations Statute requires agencies to remain neutral regarding Federal sector unions. According to 5 U.S.C. § 7116(a)(2), it is an unfair labor practice for an agency “to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment.” OPM acknowledges this little conundrum in the Frequently Asked Questions attached to one of the memos.

OPM acknowledges that “Agencies and their managers and supervisors should remain neutral, but this does not mean agencies are prohibited from providing information to employees or removing certain obstacles that might inhibit a union’s ability to exercise its rights under the law.” Hmmmm. Could you call that splitting hairs? Wonder how many lawyers it took to come up with that distinction.

The memo further explains, “OPM is simply encouraging agencies to inform employees of the Government’s policy relating to labor-management relations and representation and informing employees of their rights under the law.”

There you have it. “Neutral encouragement.” The latest oxymoron.

And what is it, then, that OPM is “strongly encouraging” agencies to do?

  • Include in job announcements whether a position is in a bargaining unit or not.
  • Include in job announcements the name/local/chapter of union.

Ann’s take: I do not think these two requirements are a good or bad thing. For me, if I had known one of my past jobs was in a bargaining unit, I might have declined the position (despite 16 years of Federal service, I was lowest on the seniority rung because the Collective Bargaining Agreement provided that service within the agency counted above Federal service). Putting this information in announcements could encourage some people to apply and discourage others.

  • Encourage unions to be part of new employee orientation.

Ann’s take: I do not think is a good thing or a bad thing. Employees are often overwhelmed by the information they receive during orientation. The union presentation will be just one additional piece of information for them to absorb. And let’s face it: If they are in a bargaining unit, they have bargaining unit rights. No reason to hide that from them.

  • Provide new bargaining unit (BU) employees information regarding their labor relations rights.
  • Provide BU employees notice of their labor relations rights on a quarterly or biannual basis.
  • Highlight the BU employees’ rights to join a union and include contact information for the union representative.

Ann’s take: Providing employees notice of their labor relations rights is likely to be a good thing. Employees and even union officials often misunderstand and misinterpret their representation rights. Providing the statutory language to employees initially — and on a regular basis — may actually help agencies deal with BU employees. Whether an employee pays dues and joins the union really has no impact on the agency.

Are these requirements really neutral?

Probably not.

Personally, I take this neutrality stuff seriously. If it weren’t for the neutrality requirement, I may never have worked in the Federal labor-management relations world.

Way back in 1992, I was hired by the Fort Campbell Schools (FCS) because they had a union election overturned (the union lost that election) because the FLRA decided the FCS management did not remain neutral during the election process. In the second election, the union won.

FCS decided they needed a labor attorney to guide the FCS administrators on all things Federal sector labor relations, and that was how I got hired. Throughout my career, I remained acutely aware of the management obligation to remain neutral.

Even though agency “neutral encouragement” of bargaining unit rights is arguably an unfair labor practice under the Federal labor statute, what OPM is asking agencies to do is really not the end of the world. And that’s good news. Boehm@FELTG.com

The Federal EEO Process is Broken: Can We Help Fix It?

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By Ann Boehm, October 20, 2021

I started working on Federal EEO cases in 1993. From the first case I handled, I thought the process was very odd and inefficient. You probably are aware of the process, but in case you aren’t, here it is:

Informal complaint with counseling. Formal complaint. Investigation. Report of investigation. Request for a hearing with an Equal Employment Opportunity Commission (EEOC) Administrative Judge. Discovery. Summary judgment motion. Perhaps a hearing. A Decision.

But wait. There’s more.

A Final Agency Decision. Perhaps an appeal to the Office of Federal Operations. And even Reconsideration of that decision. What the EEOC says is final. No appeal to a court as an option (which is not the case for Federal Labor Relations Authority and Merit Systems Protection Board cases – those can be appealed to U.S. Courts of Appeals).

Who thought this up?

And throughout the process, the complainant can amend and add to the complaint. Plus, they will forevermore claim retaliation for anything that happens in the workplace after they file the first complaint. This can’t be the best way to handle discrimination claims. But it’s been the same for years and years.

A recent article in Government Executive gave me hope. Rep. Carolyn Maloney (D-NY) asked the Government Accountability Office to look at reforming the Federal EEO process. Finally, there’s hope. Or is there?

According to the article, Maloney thinks the process is tilted against the complaining employees. She is correct that the process is “convoluted, slow, costly,” but I’m not sure she’s correct about “unjust.”

She’s correct that discrimination is still very prevalent in the United States. She is not correct, however, in asserting that the process is pro-agency — at least not in my experience. I’d characterize it as onerous for agencies and complainants.

I teach a lot of EEO courses for FELTG. I hear from many attendees that complainants are filing multiple complaints – sometimes as many as 20 to 30. There’s supposed to be a point where that number of complaints is frivolous, but the EEOC almost never makes such findings.

There’s other abuse of the system. One attendee recently told me a complainant blatantly revealed she was filing a complaint to ensure she could claim retaliation for anything the agency might do to her in the future. According to the EEOC’s 2019 Annual Report, employees claimed retaliation in 7,176 cases. There’s either a lot of retaliation going on, or it’s just easy to claim.

The concept of hostile work environment seems to be fundamentally misunderstood. I hear repeatedly that employers who assign work to their employees are getting claims of hostile work environment filed against them. Being told to do your job is not a hostile work environment. Doing your job is, well, your obligation. Employees are filing these claims for sure. The EEOC’s 2019 report indicates that employees claimed a hostile work environment in 7,470 cases (7,044 non-sexual; 498 sexual).

My friends, these comments from practitioners all over the government and these statistics suggest to me that the process remains broken. There are way too many frivolous complaints tying up the process. The legitimate discrimination complaints are lost in a system that allows the frivolous complaints to overwhelm that system.

Here are some more fascinating statistics from the EEOC’s 2019 Annual Report that I think indicate some problems with the system.

Employees filed 36,348 informal complaints. Out of those, 14,138 filed formal complaints. Agencies spent $46,475,845 investigating those complaints. That’s an average of $5,087 per complaint.

In 2019, 4,054 of those complaints were resolved by an Administrative Judge’s decision. Are you ready for this? Out of 4,054 complaints decided by an Administrative Judge, a finding of discrimination occurred in 100 cases – 2.47 percent. That means 97.53 percent of cases resulted in a finding of no discrimination. Why are there so many cases filed and so few findings of discrimination?

Is it just too easy to pursue an EEO complaint?

According to Maloney, these statistics suggest that the EEO process is not serving those who are victims of discrimination. To me, however, these statistics suggest that something is very wrong with the process.

In the private sector, employees must file a discrimination charge with the EEOC, and the EEOC investigates. If the EEOC determines there is likely discrimination, the EEOC or Department of Justice files a lawsuit against the employer. If the EEOC is not able to determine that there is discrimination, the employee receives a Notice of Right to Sue. The employee then can proceed in court against their employer.

If the EEOC tells you it does not think there’s evidence of discrimination, that’s a significant indication that you are not a victim of discrimination. In the Federal system, the EEOC does not get involved until there’s an Administrative Judge’s decision. This comes long after other time-consuming processes – the investigation, the report of investigation, and discovery. AJ decision statistics indicate there are not many cases of illegal discrimination in the Federal sector.

The private sector system forces employees to pursue cases against their employers in court. Going to court costs money. An attorney is likely involved. There’s probably a court filing fee. An employee who wants to proceed against her employer in court has some real cost-benefit assessments to make. If she has a legitimate discrimination complaint, she has an incentive to go through the process. If she is trying to abuse the system, it’s a bigger financial risk in the private sector than in the Federal sector.

Am I cynical? Yes. But I really feel like the current system does not serve the victims of discrimination. We know it takes an enormous amount of time and energy on the part of agency counsel, EEO specialists, EEO counselors, responding management officials, and yes, the complainants too.

So FELTG nation, how can we help? If GAO goes forward with the requested review of the process, what would you tell them? There’s got to be a better way to process Federal EEO cases.

I hope GAO does a thorough review. I hope they talk to EEO counselors, EEO investigators, and agency EEO counsel. I hope people are honest. And I hope that the process can finally be improved. There I go again. Eternal optimist.

If you have any thoughts, send me an email. Boehm@FELTG.com

The Good News: LR Statute Doesn’t Say Unions are Always Right

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By Ann Boehm, September 14, 2021

In a recent training session, an attendee raised this scenario: “A political appointee is close friends with an agency union official, and we are pretty much being told to do whatever the union wants. Do you have any advice for how a labor relations specialist can effectively deal with this situation?”

Yes, in fact, I do. And I’m going to start with a little history lesson.

The Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. Chapter 71, was passed as part of the Civil Service Reform Act of 1978. In 1978, Democrats held significant majorities in both the House of Representatives and the Senate. President Carter was a Democrat. President Joe Biden was a Democratic Senator at that time.

Historically, Democrats tend to be more pro-union than Republicans. If we presume that the leaders who created the Statute leaned pro-union, then we have to consider why they bothered to create a Statute that carefully outlines rights and obligations for both agencies and unions.

In section 7116, the Statute establishes what constitutes an unfair labor practice by an agency, and also what constitutes an unfair labor practice by a union. So, the Democratic leadership in 1978 acknowledged that unions are not always right. They may even commit unfair labor practices.

Section 7114(a)(2)(A) explains that the union has a right to be present at any “formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.” Note that it does not say the union has a right to be present any time management meets with employees. Congress created limits.

The Statute established management rights, expressly providing in section 7106(a) management rights that are outside the duty to bargain with unions. There is also a whole section (section 7120) that establishes “Standards of conduct for labor organizations.”

I won’t bore you by going through all the provisions of the Statute, but I promise you that it is full of limitations on what Federal employee labor unions can and cannot do. The Statute, created by Democrats, does not say that unions can do whatever they want during Democratic administrations.

I acknowledge that this Administration is setting a pro-union tone. I read an article that called President Biden the most pro-union president since Lyndon Johnson. So, there’s that. I also acknowledge that the last Administration was pretty darn anti-union.

There is a shift going on here. But it does not mean that agencies must do whatever the union wants.

My advice, then, to those of you who may be dealing with a scenario like the class attendee is this:

Educate the leadership. Explain that the Statute guides all things Federal sector labor relations. Congress did find in 1978 that unions are in the public interest (section 7101(a)). But in so finding, Congress also stated this (section 7101(b)):

“It is the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government. The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government.” (emphasis added)

Keep that language handy. Sometimes unions have good ideas, and they can help employees and agencies work efficiently on behalf of the American people. When they do not contribute to an effective and efficient Government, they are not doing what the 1978 Democratic leadership intended. Make the leaders aware. And remember, you have a lovely guidebook that does not care about the political party in charge – the Statute. That’s good news. Boehm@FELTG.com

The Good News: If Feds Want to Force You to Discipline Them for Disobeying Mask, Testing, and Vaccine Rules, You May Do So

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By Ann Boehm, August 18, 2021

I’m pretty sure that you, my FELTG friends, are aware that the Biden  administration issued some strong guidelines on vaccines, masks, and COVID-19 testing over the past few weeks. And along with this guidance has come direction from the administration that an employee’s failure to comply with the guidelines could result in disciplinary action or even criminal prosecution (for providing false information on the Certification of Vaccination form).

For those who manage people or for those responsible for advising those managers, this may seem like an enforcement nightmare. My job in this article is to give you an incentive to take action against the noncompliant, and to provide you the tools to reassure you that such actions are legally defensible.

So first, the incentive.

A few weeks ago, the VA issued a vaccine mandate for Title 38 VA employees. Soon after, articles about the mandate appeared with quotes from employees determined to resist the direction. Some employees plan to quit or retire. But one comment really got me (and here’s the incentive). One quoted employee said she was encouraging her colleagues not to retire or quit, and instead “force the department to fire them to maximize legal recourse.” Many VA Employees Apprehensive About Vaccine Mandate as Department Begins by Eric Katz, Government Executive (July 30, 2021).

If the employees want to force you to fire them, I think you should accept the challenge.

Now, the legal justification.

On July 29, the administration issued the guidelines that are binding on all Federal employees. Employees have two options. Certify that you are vaccinated (and possibly wear a mask in areas of substantial or high transmission areas) or wear a mask at all times, get tested, and physically distance. Employees do have options, at least. But they also have rules to follow. Break a rule, and you may be disciplined.

There’s precedent for enforcing these kind of rules. There’s even precedent for firing employees who do not comply with a vaccine requirement.

Let me give you a little history lesson. Way back in the 1990s, long before we could have imagined this past year’s pandemic experience, anthrax existed as a potential biological weapon. Anthrax can be deadly, but there is a vaccine for it.

In the early 1990s, the Department of Defense started vaccinating service members against biological warfare threats for which vaccines were available. By 1998, the anthrax vaccine immunization program included service members and civilian personnel who could be at high risk for biological weapons exposure.

Two civilian Navy employees being deployed on a ship bound for Korea were ordered to get the anthrax vaccine. They refused. The Navy removed them. They appealed their removals to the Merit Systems Protection Board. The MSPB Administrative Judge upheld their removals. They then appealed to the U.S. Court of Appeals for the Federal Circuit.

The Federal Circuit also upheld their removals. Mazares v. Dep’t of the Navy, 302 F.3d 1382 (Fed. Cir. 2002), cert. denied, 538 U.S. 960 (2003). The court expressly recognized the Navy’s authority to protect the health of civilian and military personnel.  Id. at 1385. The court also determined that removal was a reasonable penalty for the employees’ charged misconduct: “’failure to obey a direct order to receive mandatory injections of an anthrax immunization vaccine.’” Id. The employees tried to get the Supreme Court to consider their case, but the Court denied the petition for writ of certiorari. 538 U.S. 960 (2003)

Just like anthrax, COVID-19 presents a legitimate danger to the health of the Federal workforce. The guidelines issued by the administration are intended to minimize that danger.

I fully acknowledge that there is a vast divide among people all over the world regarding vaccine and mask mandates. Just a few minutes reading through Facebook, Twitter, neighborhood listservs, and a multitude of media articles, or even conversing with friends and family makes that patently clear. But Federal employees now have been given the instructions. They must comply. Agencies: If employees choose to disobey the guidelines, they are subject to discipline. And Mazares strongly suggests that removal may be the appropriate penalty.

Good luck out there! Boehm@FELTG.com

The Good News: You Can Be an Effective Leader! (Part 1)

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By Ann Boehm, June 16, 2021

This article was inspired by a newsletter subscriber who read my article last month. I explained that during my very first Federal sector labor relations job, the workforce was evenly divided on who wanted to be represented by the union and who did not. I further explained that the division broke down based upon the leadership skills of the employees’ supervisors.

The reader focused on my conclusion that “[t]he supervisors who were effective leaders tended to have employees who opposed the union, and the supervisors who were not effective leaders tended to have employees who supported the union.” And she asked this question: “Do you think that effective leader supervisors are the key pro-employee element?”

The answer is an overwhelming “yes.” The tricky part is trying to make sure that Federal supervisors are effective leaders. So my goal for this and next month’s article is to expound on the effective leadership aspect of Federal employee and labor relations.

Pretty much anybody who has ever had a boss has had a lousy one. I had more than a few really lousy ones. The problem with those bad bosses is they rarely know they are bad. They are the ones at leadership training classes who think they are doing everything right already.

My quest is to ensure that supervisors are aware of what makes a good leader. I also want to try and make supervisors do an accurate assessment of themselves and their leadership styles.

I’m highlighting some effective leadership and organizational goals that date from my husband’s Army unit way back in 1991. It just so happens one of his colleagues from 1991 recently stumbled across a piece of paper that highlighted their Battalion’s Command Focus, and he sent it to us. The Lieutenant Colonel who drafted the document retired as a Lieutenant General. He was a great leader. And what he wrote then is useful to anyone in leadership.

Here are the highlights:

Focus on the fundamentals. Believe in the basics. Don’t make it too hard.         

Sounds easy enough, right? But how often do supervisors make things too hard? They add busy work. They micromanage. They often lose the forest by looking at individual trees and forget the fundamental organizational mission. Bottom line: Keep things simple.

Leaders live the standards. Establish, explain, enforce. Consistency in discipline and [employee] care. Mold and forge a team. Invest in leader training.

Let’s start with that first one. “Leaders live the standards.” If you expect your employees to work hard, you need to work hard. If you expect employees to go the extra mile, you need to go the extra mile.

Then there’s “Establish, explain, enforce.” “Establish” what you need from your employees to support the mission of your office and agency. But don’t expect employees to be mind readers. “Explain” what you need them to do to support that office mission. And “enforce” that by holding employees accountable for performance.

What about “consistency in discipline and [employee] care”? Does that mean you have to treat every employee the same?  That’s not how I read it. I think it means you have to discipline employees who engage in misconduct. You can’t ignore it. And you have to take care of your employees. It’s not really about treating everyone exactly the same in discipline and performance matters. It’s about consistently holding everyone to the same high standards to ensure effective service on behalf of the American public.

If you focus on those first three things, then it should be easy to “mold and forge a team.” As we regularly teach here at FELTG, supervising is an interactive process. You have to communicate with your employees. Inspire them to want to fulfill the requirements of the job. Make it easy for people to come to work every day. Help them enjoy their jobs. So often that happens when employees feel part of a team.  It’s called “employee engagement.”

Key to all of this is “invest in leader training.” FELTG offers leadership classes. Many agencies have their own leadership training programs. Often, leader training can be on-the-job training. But as I stated earlier, the key to leader training is for supervisors to be honest in their assessments of their own leadership skills. It’s also important for leaders up the chain of command to do honest assessments of the leaders below them. They need to pay attention to union activity; EEO complaints; grievances; frequent turnover. There are plenty of very bad supervisors who are very good at convincing those above them that they are the best. Everyone in leadership needs to honestly assess the work environment. Anonymous 360 evaluations are essential to this process.

Do the right thing for the right reason.

The key to this concept is the last part – “the right reason.” It is possible to do the right thing but for the wrong reason. One example of that would be a supervisor ensuring employees are mission focused so that the supervisor can get his/her/their next promotion, not because it is the right thing to do. So how can supervisors do the right thing for the right reason? The best way is to focus on the four characteristics of great leaders:  integrity, accountability, humility, and empathy. If a leader has an employee discipline problem, they should have the integrity to not sweep it under the rug simply because it may make them uncomfortable to confront the employee. They should have the accountability to hold not only their employees but their supervisors responsible for executing the standard. They should have the humility to always seek self-improvement through leadership training and 360 degree evaluations. Finally, they should have the empathy to understand what is going on in their employees’ lives. This builds a bond between supervisor and employee and dramatically increases “employee engagement.”

So there you have some outstanding guidance on leadership from a proven leader.

I want to leave you with one of my favorite tidbits on leadership from the professional sports world. I’ve used this before in articles and in training, but I love it, so I’m using it again.  I found this in a Washington Post article on Davey Martinez, now the longest-tenured manager for the Washington Nationals. “Things change, but Dave Martinez remains the even-keeled beating heart of the Nats,” by Chelsea James, Washington Post (October 24, 2019). The article appeared right before the Nationals started their successful World Series run. Here’s what the article said about Martinez:  “He doesn’t berate players. He doesn’t play mind games. He lets veterans lead how they see fit. He stays positive. He smiles. He cares.”

Works for me. It’s completely consistent with the guidance above.

Supervisors, make it your goal to ensure you are an effective leader. You will reduce your employee and labor relations problems. Stay tuned for next month’s article where I pose some questions to see if you are the great leader you think you are. Boehm@FELTG.com

Scott Boehm contributed to this article.