Avoiding Action Equals Job Security
In federal employee viewpoint survey results conducted by the Office of Personnel Management (OPM), between 2017 and 2021, an average of 36% of employees responding to the question said that “steps are taken to deal with a poor performer who cannot or will not improve.” Stated differently, 64% reported their agencies did not take action to deal with an employee who was not successfully performing in a work unit.
In these surveys between 2019-2021, federal employees report that more than 50% of poor performers “remain in the work unit and continue to underperform.” For each of these three years, 2% of respondents said the poor performers left the work unit or quit, about 9% of the poor performers were transferred or removed and about 19% said there were not any poor performers in their work unit. About 18% said the poor performers continue to work there and gradually improve over time.
A recent column based on research obtained through records obtained through the Freedom of Information Act (FOIA) shed some light on why job security may be as high as it is for federal government employees.
Civil Service Reform Act, Federal Employee Performance, Federal Job Security
The federal government’s labor relations statute became law back in 1978 as part of the Civil Service Reform Act of 1978 (CSRA). President Jimmy Carter and AFGE’s national president at the time, Kenneth Blaylock, toured the country giving speeches urging Congress to pass the reform bill into law. Blaylock, the former plumber who started his career and union involvement at Maxwell Air Force Base, Alabama went on to enjoy a successful career. Appearing on stage with a president had to have been a heady experience.
The new law was not widely popular within AFGE. In part, the unpopularity of the new law was because the purpose of the law was to reduce job security by making it easier to fire federal employees who were performing poorly or engaging in misconduct. Even as late as 1986, the union was still losing members. According to the Washington Post, “AFGE’s membership has dropped from almost 300,000 in the 1960s to about 180,000, although the union represents about 700,000 workers. AFGE lost roughly 1,000 members a month for several years under Blaylock…”
The previous system of taking disciplinary action was considered too complex and outdated. Forty years ago, there was also a common belief that the federal government was not efficient and there was a lack of sufficient political control over the federal bureaucracy by the president (an early belief in a “deep state” within the federal bureaucracy).
The CSRA was going to create a more efficient system and more responsive civil service system. It emphasized performance standards to be used for rewarding and retaining employees and created a Senior Executive Service with the ability of agencies to move senior people into positions and locations where they were needed the most.
If the unpopularity of the new law in AFGE was due to creating a new system that made it easier to fire federal employees or to take disciplinary action more quickly, the concerns have proved to be unwarranted.
Few Actions Taken to Remove Federal Employees, Few Supervisors Confident It Can Be Done
The AFPI article by James Sherk notes that 4,040 permanent full-time employees with at least two years of service for performance or misconduct were terminated in fiscal year (FY) 2021. This is about one-quarter of 1 percent of the federal government’s 1.6 million tenured employees with two or more years of experience excluding seasonal and non-permanent employees.
The data show that federal employees can be fired for misconduct or poor performance. Being a federal employee is a virtual guarantee of secure employment. One-quarter of 1% is a small number. And, as noted above, 64% of employees in the OPM survey indicated their agencies do not deal effectively with poor performance.
In a research brief published by the Merit Systems Protection Board (MSPB) dated June 18, 2019, 41% of federal supervisors were confident they could remove an employee for serious misconduct, and 26% were confident they could do so for poor performance. With this background, it is unlikely a supervisor will undertake an action to remove an employee even if that employee is not meeting the standards that would normally justify a person remaining as an employee in the organization.
Chances of Action Being Upheld: MSPB vs. Arbitration
AFPI author James Sherk analyzed case decisions disclosed by the MSPB after receiving the information under a Freedom of Information Act request. The analysis included initial appeals before an administrative law judge (ALJ) and petitions for review before the full MSPB. These figures do not reflect cases where the dispute is without an ALJ or MSPB decision. No cases were issued by the MSPB for several years (after 2016) as there was no quorum of MSPB Members.
The data revealed that the MSPB overturns 28% of removal actions. Agencies win most MSPB appeals and employees get their jobs back in just over 25% of these cases.
A federal employee appealing an action does not have to go to the MSPB to seek relief in many instances. An employee who is in a bargaining unit (an employee represented by a union), can file a grievance instead of going to MSPB.
A grievance is a complaint filed with the agency according to the terms of a union contract. The steps may vary in this process. But, if the grievance is not resolved, the case can go before an arbitrator. The arbitrator has the authority to reinstate a federal employee.
An arbitrator is usually selected from a list provided to the agency and union by the Federal Mediation and Conciliation Service (FMCS). Arbitrators have a variety of backgrounds. They are private contractors who register with the FMCS. The agency and union can agree on an arbitrator or they can each strike a name until one name remains.
Unlike the MSPB, arbitrators are more likely to try to rule to provide some relief to each party. In practice, this means the arbitrator can direct the agency to reinstate the employee, perhaps receiving back pay for some period of time.
Under an Executive Order issued by President Trump in 2018, OPM issued guidance to federal agencies that required them to send arbitration decisions to OPM within 10 days after receiving an arbitration decision. This requirement created a central database of arbitration awards. AFPI requested these records through a Freedom of Information Act request and 435 arbitration awards were released.
The report on the analysis of these cases revealed that 58% of removals were overturned by arbitrators. They ruled in favor of unions in 54% of all cases heard on the merits. In other words, arbitrators overturned removals more than twice as much as cases that go before the MSPB. Also, the MSPB data revealed the agency upholds 72% of dismissals while arbitrators uphold 42%.
Also, arbitrators required agencies to pay back pay in 84% of cases in which removals were overturned.
Summary
Federal employees are not often removed for misconduct and even less frequently for poor performance. Supervisors lack confidence in handling these cases and do not often pursue them. Federal employees are aware of the problem and CSRA passage did not change much in this regard.
Arbitrators are much more likely than the MSPB to “split the baby” and order the reinstatement of an employee. Arbitration can take longer (assuming there is a quorum at the MSPB) but employees fare much better before an arbitrator and are more likely to get back pay.
Arbitration is also frequently more expensive for agencies. Agencies pay union officials their federal salary while handling a grievance or arbitration case. Many contracts also have a “loser pays” clause and agencies may foot the entire arbitration bill as well as back pay for an employee.
