So, What’s Changed?
In 1995, the Performance Management Committee of the Coalition for Effective Change examined Federal employment disputes making findings and recommendations in their report, "A Proposal to Streamline Federal Employment Dispute Resolution."
- There is a strong public perception that the Federal Government lacks an effective method for removing Federal employees who cannot or will not perform their job in a satisfactory manner.
- There are currently multiple dispute resolution forums. These specialized and sometimes overlapping forums present a confusing array of processes and procedures to be followed.
- Many employment disputes can and do take from one to two years or more to resolve—too long by any reasonable standard.
- The current elaborate set of Federal employment due process rights and procedures were created to ensure effective and efficient management of the Federal workforce yet few, if any, believe they have accomplished that purpose.
- Current Federal workplace due process rights are also intended to protect Federal employees from arbitrary or capricious management actions, yet Federal employee surveys show that significant percentages of employees believe they are being treated unfairly.
Does any of this look familiar to you? Here we are 22 years later and all of the above findings would certainly be accurate today. Let’s look at their recommendations:
- Federal dispute resolution should be driven by these principles:
- Resolution of disputes at the lowest possible level within the organization in which the dispute occurs
- Federal departments and agencies should be given maximum flexibility to establish internal dispute resolution mechanisms and procedures consistent with their needs.
- Managers, employees, and their representatives should be deeply involved In the design of agency dispute resolution mechanisms and procedures.
- Less formal alternative dispute resolution methods, such as settlement or mediation, should be actively encouraged over more formal procedures at all stages.
- When major disputes cannot be resolved at the department or agency level, an outside review from a single, independent adjudicatory body within the executive branch should be available.
- Dispute resolution must be impartial, fair, and timely. When a formal third party judgment is available and requested, final decisions within 120 days or less should be the norm.
- A Federal Employment Board should be established that subsumes the varied responsibilities for adjudication of Federal employment disputes currently assigned to MSPB, FLRA, EEOC and OPM. This new Board should include:
- A single forum for the resolution of disputes.
- A three member, bipartisan Board that is appointed by the President with Senate confirmation. The Board members would serve for fixed, non-renewable terms and be removable only for inefficiency, neglect of duty, or malfeasance in office.
- Within the Board, and after attempts to reach settlement in an employment dispute, the Board's assigned reviewing official would issue a final, binding decision. Rights to further review either within the Board or to a Federal court would be very limited.
- General review and oversight responsibilities for the civil service system to ensure Governmentwide accountability for effective human resources management, including equal employment opportunity, and the absence of any systemic patterns of discrimination or other prohibited personnel practices.
- Responsibilities currently assigned to the Office of Special Counsel and the General Counsel of the Federal Labor Relations Authority would be combined into a new office that is an independent part of the Board.
- Abolish Chapter 43 of Title 5 (Performance). Protections for Federal employees accused of unacceptable performance would be covered by appropriate changes to Chapter75 of title 5 USC. Such changes would retain the substantial evidence standard for proposed actions based on unsatisfactory performance but would not mandate the use of a performance improvement plan.
I’ve been involved in Federal sector labor and employee relations for more than 40 years. When civil service reform was enacted in 1978, I worked at the U.S. Civil Service Commission which that reform abolished. The Commission owned or was involved in all the appeals system in existence at the time. I never heard that anyone thought it did a bad job. The drive for that law in 1977 and 1978 was to encode Federal employee rights and appeal systems within a legal framework. No serious effort was made to test the effectiveness of that law despite the kind of review and recommendations made by the coalition in 1995.
My own belief is that the 1978 law created bureaucracies that fostered expansion of that law as well as expanded authority for themselves under the law. Perhaps the most amazing thing that happens under the current system is that for the clear majority of cases the people filing and representing an employee, the people representing the Agency and the person adjudicating a case through multiple levels within the executive branch and beyond are all paid with taxpayer money. It is truly sad that the “reform” act has stood for almost forty years with most practitioners who have worked on it believing it was inefficient, ineffective and a testament to the mistaken idea that government best regulates itself.
What was true in 1995 is still true today. Despite the real need for reform, I fear that Congress, instead of reforming the entire system, will make things worse by making piecemeal changes.
Bob Gilson is a retired Agency representative, trainer and negotiator. Since his retirement, he has written extensively on federal sector labor and employee relations and has been active as a consultant to Agencies. He may be reached at email@example.com. Any opinion in the above is his and should not be considered as representing that of the publisher or in this case, the SEA.
Bob is a Federal sector negotiator and trainer. He can be reached at 757.621.3982 or firstname.lastname@example.org.
Bob Gilson is currently a Senior Associate with RGS Inc. His specialty is working with and training Federal Agency clients to resolve employee problems at all levels. Both before and since retiring, Bob has negotiated on behalf of Federal clients. A retired Agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues. He can be reached at email@example.com.
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