Author Archives: trainingfeds

The Uniquely Unionized National Guard

“The National Guard has a union?  I didn’t know the military could be unionized.”  That’s a response I’ve heard from friends and family over the two decades I have been teaching management/HR seminars to Guard supervisors, managers and union officials.  The status of “Military Technicians” (a term long-debated by the Guard’s most prevalent union – the Association of Civilian Technicians or ACT) was a mystery to me for years, as it is to most Federal HR specialists.

Like many Labor Relations Specialists of my era, I read a series of decisions concerning the Montana Air Guard and ACT.  It concerned the negotiability of wearing military uniforms to work for “Title 32” employees.  At the time those decisions were being published, I never fully appreciated the complexity of the issues that case represented.  Then I was asked to teach classes for the Guard in several states (including Montana) and I became better informed.

What is the plural of “status”?

National Guard Technicians are, with a few exceptions in every state, members of an “excepted service”.  While that term applies to many categories of Feds, Title 32 is unique to the Guard and reserves.  Employees covered under this part of the US Code and Code of Federal Regulations are classified under the General Schedule (GS) and or Federal Wage System (FWS) but must also maintain membership in the National Guard (Army or Air) as a condition of their employment.

This “dual status” means that soldiers and airman must be fit for deployment/military service and disqualified for conditions that would require accommodations for most employees.  Many of the thousands of National Guard members who served in Iraq and Afghanistan were GS, WG, and WS employees who were activated for military service and returned to their civil service job after deployment.

Most members of the National Guard, however, are not full-time employees.  In the past they were referred to as “Weekenders” – people who serve part-time while being employed outside of the Guard.  They agree to be deployed if/when necessary.  Following Hurricane Hugo in 1989, these “Traditionals” were a familiar sight to people living in the Charleston area.  Many of those called up by our governor to serve needed to repair their own homes and care for family members.

As may already be evident, the Guard is a complex hybrid.  It employs military, civil service, military reservists (the Active Guard Reserve or AGR), state employees, and more.  Supervisors, managers, and HR specialists are trained to distinguish among these many statuses and how each is officially treated.  HR specialist in the Guard refer to other Federal employees as “Title 5’s”.  For them, this is one of several employment statuses with differing regulatory guidance.

Unions and uniforms

Non-supervisory National Guard Technicians are commonly unionized employees.  While ACT is the largest union within the Guard, there are others.  For instance, I have worked with the South Dakota Guard, where Air Guard employees are represented by the American Federation of Government Employees (AFGE) and the Army Guard has an agreement with the Laborers International Union of North America (LIUNA).  There are as many as 7 union locals representing employees of the California Guard.

The Montana case from years back concerned whether Technicians must wear military uniforms to work.  There were strong feelings on both sides of the issue.  On one side, were most of those inside the Guard’s leadership across the country.  They believed that wearing of the uniform was an essential component of “dual status” employment.  In their estimation, any GS or WG Technician could be activated into military status at any time.  Moreover, their 40-hour/week jobs were contingent on their willingness and ability to wear those uniforms.

On the other side of the argument were the unions – especially ACT.  Their leaders and members felt the uniform represented only half of a Technician’s status.  When doing their day-to-day duties (on an air base, in Army maintenance facilities, developing logistics plans, or in an HR office) Technicians are paid per Federal schedules and regulations.  If these workers are classified like other Feds, why require them to wear military uniforms?

Caught between these opinions was the Montana Air Guard.  Their leadership agreed to contract provisions that would, with management approval, allow Technicians to work in civilian attire.  Such a provision had gone unnoticed in a 1981 version of their labor-management agreement but when the Montanans agreed to carry the same language into a subsequent document, the fireworks were lit.

Litigation over what’s worn to work

Like most decentralized agencies, the Guard has a headquarters advisory service – the National Guard Bureau (NGB).  “Bureau” as it’s known around the country provides coordination and policy that cross state lines.  NGB also has a staff of subject matter experts including some who advise HR Offices located in each state.

At the time the Montana Air Guard agreed with ACT over the uniform issue, Bureau provided technical assistance in reviewing the completed agreement per 5 U.S.C. Sec. 7114(c)(2) for all of the states.  When the NGB specialists and lawyers saw language allowing civilian attire for Military Technicians, they rejected it, declaring that wearing the uniform for dual status employees to be a management right per 5 U.S.C. Sec. 7106(a)(1)  Assuming that to be the case, providing an option to sport civilian attire was an illegal contract provision and could not remain in the negotiated agreement.

At Bureau’s insistence, the Montana Air Guard repudiated the already-negotiated provision and years of litigation ensued including trips to the Federal Labor Relations Authority’s (FLRA) General Counsel, the FLRA itself, US District Court, and the Circuit Court of Appeals.  In the end, Bureau lost its case and turned to the late Gillespie “Sonny” Montgomery, a Congressman from Mississippi and retired National Guard General.

Montgomery was one a handful of elected officials who actually understood issues relating to dual status Technicians.  He introduced a bill to amend the Technician Act (32 U.S.C. § 709) by requiring the wearing of uniforms for excepted service Technicians while performing their 40-hour/week jobs.  It passed, and that statutory provision ended the controversy concerning whether Technicians would wear military uniforms to work every day.

A peculiar institution

Yes, there are unions in the National Guard, and while actual membership is problematic, most Air and Army Guard Technicians have labor unions representing them while performing their fulltime jobs.  They wear military uniforms to work, but remain dual status employees – a hybrid of civil servants and military members.  While at work they commonly refer to one another by their military rank.

Title 32 has its peculiarities (compensatory time, but no overtime is an example) but mostly works the same as Title 5 – which governs the employment conditions of most Feds.  As in other agencies, unions provide exclusive bargaining representation services for those covered under negotiated agreements.  Grievance and other procedures can be found in the dozens of agreements between union locals/chapters and most states.

In most cases, there are separate Army and Air agreements, as the concerns of each side of the Guard can prove different.  In some states, however, a single union local represents employees across the state.  Consolidated bargaining units across state lines have been rejected as impractical, given the unique legal status of Adjutants General.

Working with the Guard

Over ~25 years working with the Guard in over a dozen states and the District of Columbia, I’ve found management and labor remarkably aligned with the agency’s mission.  There is also an inherent acceptance of leadership built into dual status employees.  Many employees have day-to-day supervisors who on weekends or deployments are their officers.  Union representatives perform their functions in the context of a National Guard that has be redefined (especially on the Army side) due to the many deployments of personnel overseas.

I recently facilitated contract negotiations involving the Oregon National Guard and its single AFGE Local 2986 using interest-based techniques.  I was once again impressed with the common sense of purpose in the room – reflective of both the National Guard and Oregon’s longstanding labor-management partnership.  In less than a full week’s work, most of the issues “at the table” had been resolved to both sides’ satisfaction.

Similarly, I ran a meeting for the South Dakota Army Guard that combined both non-supervisory Technicians and their facility leadership.  I was again reminded how a sense of common mission and commitment to success infects much of the Guard.  The potential for “us” vs. “you” was defeated by a union that took a “hands off” approach – allowing the employees and management space to resolve their own issues.  Moreover, the leadership was fully engaged and attentive to the needs of front-line employees.

Guard leadership consists primarily of Officers (both commissioned and non-commissioned) who have been trained in military schools.  A few weeks ago I was dealing with Colonels who are also GS-15s.  Because of dual status, their familiarity with roles and functions compares well against management in other agencies who never get to military officer training.

That said, the National Guard is far from perfect and the dual status conditions of Technicians lead to many misunderstandings.  Over many years, I have encountered plenty of jerks and incompetents representing both labor and management.  Nothing new there.

As with all Federal agencies, union-management relationships vary from state to state… and even under a single Adjutant General.  Drill weekends and deployments, however, lead National Guard Technicians to a different experience than most Feds.  Their sense of purpose and camaraderie reflects that of so many who serve their country – in and out of uniform.

An Open Letter to OPM Director Nominee Katherine Archuleta

This letter is from me and readers who post comments to it.  This open letter contains ideas and recommendations from the nerve endings of government.  (No doubt, some of the chronic commentators will add their cynical/inane remarks as well.  Please do your best to ignore them.)  Those who want to skip the author’s thoughts can go directly to the comments section by clicking here.  Consider forwarding this article link to those Feds you know who might be interested.

Dear Ms. Archuleta:

I begin this letter with congratulations on your presumptive nomination to direct the Office of Personnel Management (OPM).  I hope you will be hard at work there soon.  Your resume shows much experience in politics, I also learned that you have worked in the executive offices of two Federal departments and you’ve seen the civil service at work.  That’s a great combination for an OPM Director to have.

Before I open this posting to readers for their wisdom, experience and advice, I should introduce myself.  I’m a civil service dropout.  My Federal career ended after 13 years.  My reasons for leaving are unusual:  I didn’t want the jobs ahead of me and did not want to remain for 17 years in the one I occupied.  I was a GS-12 Labor Relations Specialist when I resigned my job.  I really enjoyed my short Federal tenure.

In 1988, heading toward an uncertain horizon, I was hired to teach labor and employee relations seminars for a fledgling partnership of two other Federal dropouts.  One of that team is Ralph Smith, the founder of this website.  Ralph and his business partner, the late Dennis Reischl, moved into other ventures and I left their growing business to become a self-employed trainer.  I have been teaching classes relating to union/management relations, performance evaluations, and correcting conduct/performance issues for 25 years and Federal agencies are my only clients.

I want this letter to serve two purposes: 1) To voice my own hopes for your tenure; and 2) Invite the thousands of current and former Feds who frequent this website to consider voicing their wishes relating to Federal HR.  I’ll go first, with the understanding that my perspective is limited.  Here are 3 suggestions.

1.  Leadership in the career civil service is a mess.  Studies from OPM, the Merit Systems Protection Board (MSPB) and outside entities all indicate serious shortcomings among Federal supervisors and managers.  New supervisors commonly arrive on the job with no management training, mentoring, or other development options.  They serve a 1-year probationary period (during which they can be returned to their former job level) but this option is rarely exercised (your staff should have the numbers) and most become “lifers” – for better or worse.  Across the government there is no systematic review process during that crucial year.

OPM could create a simple and sensible curriculum for the development of new supervisors.  You might also consider creating models for pre-supervisory development.  I respect the merit system and disdain the cronyism that leads to “pre-selection” of less-qualified-but-better-connected candidates.  Such concerns, however, must be balanced against the problems associated with leaders who walk into the job have never studied management or read a book on the subject.

An OPM recommended/required syllabus of online and printed materials is desperately needed.  Quarterly exam materials might be called for as well.  Federal employees numbering in the tens of thousands are waiting for a more professional supervisory corps.  Supervisors should be versed in basic management concepts such as TQM, MBO, and LEAN.  Feds across government may be gratified for generations if you take this on.

2.  The Civil Service Reform Act of 1978 (CSRA) changed the landscape of personnel management in the Federal sector and created the Office of Personnel Management that you are likely to lead.  President Carter and others who helped fashion the Act believed it would be easier to separate poor performers and respond to misconduct.  The evidence over decades is that has not happened.

The sad fact is, it takes months of tedium and unconscionable costs to rid the government of a single employee whose performance and/or conduct would be unacceptable to any sane employer.  I believe in due process and employee protections, however, HR specialists and the managers they serve now live in fear of the process.  Much of it has been handed over to attorneys who shy from likely litigation before the MSPB or EEOC.  Under your leadership there could be a review of law, regulation and guidance that might lead to long-needed changes.

Performance appraisal procedures are 35 years old… and disciplinary ones date back to the mid-20thcentury.  Consider inviting subject matter experts like Peter Broida and William Wiley into such a review.  Their expertise (and that of others who now work outside government and apart from “Beltway Bandits”) may be of great value to you.  If your task force has recommendations pointing the way toward statutory amendments, you may find both political parties agreeable to pragmatic changes.

3.  Lastly, don’t make an attempt to change the Federal compensation system.  That same CSRA of 1978 attempted to do so with “Merit Pay” for managers at the GS-13 through GS-15 levels.  It failed.  Donald Rumsfeld tried it with his National Security Personnel System (NSPS) last decade.  It failed too.  With less access to meaningful raises for civil servants (sad but true), this pursuit is a dead end

You will hear from advisors and consultants about successful pay-for-performance (pfp) experiments in government the many reasons other attempts failed.  You will inherit a test project with the acronym GEAR (Goals Engagement Accountability Results).  There is much to be learned by the pilots underway at a few agencies, however, most of these lessons will relate to improving supervision/management which is all to the good.

Widespread success of a pfp system in the Executive Branch is extremely unlikely.  “Pay banding” better fits the private sector.  There, money is the motivator and unions are scarce.  Federal employees are commonly motivated less by money than by security, career, and service to country.  We’re not all that different from our colleagues who serve in uniforms.  With no moves to inject pfp for them, consider the case closed.

My best wishes—

Robbie Kunreuther

Your Turn!

That’s my 3 cents.  Now those who have ideas, cautions, recommendations, etc. can weigh in.  What should Ms, Archuleta know as she assesses her new job?  The instructions for leaving a comment can be found below this article.  …and feel free to forward this piece to those you know who have knowledge of Federal HR.

The Effects of Rotting Apples

One of the oldest management axioms follows along these lines, “Your best people can and will leave you.  Your worst people can’t and won’t.”  It was never truer in the Federal government than it is now.  Some of the most talented attorneys, engineers, lab technicians, auditors, etc. are looking away from Uncle Sam when they are most needed.

Valuing the worst among us

In many cases their desire to leave is understandable.  Tens of thousands of Feds work with the mentality of: “That’s not in my job description.”; “Why should I do more than anyone else around here?; “I know others who got away with it.”; and “That’s the way we’ve always done it.”  Trying to do more with less while working with such folks can prove draining.

As morale becomes problematic under the weight of sequestration, furloughs, cost-of-living maladjustments, freezes, etc. it may be time for agency management to consider the costs of tolerance.  What do the worst 5% in your agency add in value… and what do they subtract?  A smaller group can often do a better job and feel better about coming to work when that person isn’t around.

This small minority of Feds may be “more trouble than they are worth”… literally.  She may be very nice and agreeable, but over years has been unable to keep up with coworkers.  He may be very good at what he does, but emanates toxicity – in his rants, treatment of coworkers, or denial of responsibility for his own behavior.  Having worked for the Navy, the expression “shape up or ship out” comes to mind.

The blame game

There are some FedSmith readers who believe that employees who cannot perform the duties they are paid to do (and others whose antics are more aligned with high school kids than adults) are a reflection of failed leadership. I never debate that possibility.  There are lots of lousy leaders in the Federal sector.

That acknowledged, most of the front-line leaders I meet are just Feds who wanted more money and/or challenges.  Management was their only option.  They did their jobs well and ascended to leadership with the best of intentions.  They hoped to do better than the person they replaced, however, career managers get little coherent training and coaching on how to treat one’s best employees (other than cash awards), how to motivate the great middle to improve, and especially how to deal with the worst.

Now these folks must lead with fewer resources than they could have expected.  To these front line leaders I commonly advise that a long conversation, referral to employee assistance, or a mediated conversation often bring about desired changes in performance or conduct with little intervention.  Only a misanthrope would argue against such approaches.  When those positive efforts fail, however, it’s time to acknowledge that your agency is neither a welfare department nor a vocational rehabilitation service.

The hidden costs of inaction

Consider Mary.  She supervises 14 people.  Three are absolutely wonderful; eight range from good to mediocre; one demands regular attention to stay focused and organized; while the last two present significant problems.

The first of this duo is Tim.  He carps and whines about assignments, other employees, the public he serves, and leadership.  His attitude has been toxic for years.  Mary wishes he would just evaporate.  He wishes the same of her.  Past supervisors have tried reason, persuasion and reprimands – all to no avail.

The other member of this pair is Janelle.  She is cheerful, agreeable, and incompetent.  Her assignments are 2-4 grade levels below her position.  Mary has found that assigning her work at grade level isn’t worth the time and expense of reviewing,  re-working, coaching, etc.  All of Janelle’s recent ratings have been “Fully Successful” for any number of reasons that don’t amount to an excuse.

Mary doesn’t want to confront and/or discipline Tim.  Others advise her that formal action is unlikely to change his behavior… and very likely to result in grievances or EEO complaints.  Such push-back would result in investigations, administrative litigation… and Mary is uncertain whether HR or her superiors will have her back.  As for Janelle, Mary believes (mistakenly) that prior acceptable ratings will jeopardize any case this rating cycle, and that she’ll have to rate Janelle “Minimally Successful” before she can use the rating of “Unacceptable” (again mistaken).  Moreover, a “Performance Improvement Plan” may prove more time and energy than it’s worth.

It’s time to recalculate

Mary’s paralysis may be understandable; however, two of her top 3 staff members are putting in for any job that suits their qualifications.  One is likely to leave government altogether.  He’s tired of the (seemingly endless) assaults on Federal employees and of doing more work than his coworkers without compensating recognition.  The other is so fed up with Tim and his griping that she’ll work almost anywhere else just to get away from negative atmosphere he engenders.

This fictional composite of real stories reveals the hidden costs of avoidance.  It also reminds us that the perceived outlays associated with PIPs, grievances, EEO complaints, etc. may be miscalculated if the focus is narrowed to just one employee.  As teachers and parents know, giving a passing grade to a failing child is likely to cost more than it saves, and failing to address behavior issues may encourage increased misbehavior among others.

A matter of competence and confidence

After 38 years working in and for the Executive Branch, it’s clear to me that talented, hard-working folks prefer leaders who don’t run from confrontations, polarization, and similar challenges.  Our best civil servants are more likely to stay in government, even in hard times, if their unmotivated/inept counterparts see consequences.  Supervisory confrontation may prove as simple as a clear statement of expectations or as complicated as removal.

What coworkers want to see is evidence that management is aware of and working the problem.  After all, if management wants employees who will accept and meet today’s workplace challenges, shouldn’t leadership do likewise?  Over time, subordinates know if they’re working for someone who confronts or avoids such problems.

A Human Capital idea

“But it takes so long and costs so much… and the employee will inevitably return triumphant.”  Yes and No.  It does take too long and the cost of firing a Federal worker who deserved to be fired months/years ago is often exorbitant.  That acknowledged, assume that the process costs an obscene $100,000, what benefits will accrue over the next two years in terms of productivity, morale, loyalty, and retention?  …and agencies win far more contested actions than they lose.

These are issues of “Human Capital”, a title I dislike but which applies directly to my concerns.  Perhaps this article should be forwarded to your agency’s Human Capital Officer (CHCO).  Such senior executives should be investing in the employee relations side of their HR offices.  If  staffing and employee development are experiencing smaller workloads due to cuts, allocating resources to the more active side of HR seems logical.  Demanding times are seldom met by calcified structures.

In a similar vein, first level supervisors and managers should be encouraged (as they may have beendiscouraged in the past) to confront the worst of the workforce.  Most have fine staffs and needn’t heed such advice.  Others have been waiting years for a “green light”.  CHCOs should live up to their titles, advising managers of the budgetary implications that result from neglecting what lies at the bottom of their agency’s workforce barrel… and then supporting efforts to act.

A world with fewer carrots

How many needed classes could agencies schedule if an incompetent employee weren’t paid 4 grade levels higher than he’s working?  How many medical, scientific, or HR conferences could Feds attend if the woman who spends hours each day getting out of work weren’t paid for it?

Many agencies are reacting to sequestration by cutting budgets for efforts that would save them scarce funds.  Supervisors and managers need the backing of their leadership to do what many have long wanted to do all along.  They need training in how to confront and deal with those who are frustrating their coworkers on a week-in/week-out basis… and support for taking action their predecessors avoided.

With fewer carrots available to motivate the Federal workforce (which everyone regrets), smart leaders must look to sticks in some cases.  While this is not a pretty thought, neither are furloughs and brain drains.  Like most voters, I believe the Executive Branch of government could do a better job finding savings.  Like most FedSmith readers, I know where a bunch of those savings are likely to be found.

Performance Appraisals, an Inspector General, and the Bell Curve

‘Tis the season

The performance appraisal season has arrived for hundreds of thousands of Federal employees.  Ratings will be assigned to civil servants across the country and the world.  Some ratings will be used to determine salary increases, others bonuses/awards, some both, and many neither.  Those payouts, however, are drying up in most of the Executive Branch as a pay freeze and budget cuts take effect.

All of these appraisals will focus on a year’s worth of performance that will have already passed.  According to the late Dr. W. Edwards Deming, a brilliant statistician and management thinker, it is unlikely that all of this time and effort will lead to tangible improvements in the coming fiscal year.  He found that past ratings do not reliably predict positive changes for the future.  I haven’t found evidence that he was wrong.

Throwing darts and the bell curve

Most of the appraisals that are coming up next month, however, will be arrived at without much, if any, actual evidence obtained and annotated during the rating year.  The late Dr. Deming, however, would be surprised to learn that Federal supervisors and managers commonly lack sufficient documentation to grade employees objectively.

As students of appraisal know, subjective ratings are susceptible to factors other than the past year’s achievement.  They may be unduly influenced by recent events, by personal friendships and alliances, and other biases – most of them unconscious.  In fact, numerous studies of the evaluation process have shown that impressions of other people can be subject to any number of “non-merit” factors.

Another likely influence will be the “bell curve”.  It owes its name to the shape of a bell where people are clustered around a mean or central rating/outcome.  Federal agencies, however, cannot presume to have such a “forced distribution” of ratings.  To do so would violate Federal regulations.  5 CFR 430.208(c) states in part,

“The method for deriving and assigning a summary level may not limit or require the use of particular summary levels (i.e., establish a forced distribution of summary levels).”

It’s not your year
The use of a bell curved philosophy of performance ratings has always been a curiosity to me.  In most agencies it commonly works like this:

  1. An agency declares that goals, strategic plans, and objectivity are what drive performance evaluations.
  2. Many experts, HR professionals, and senior leadership profess that “objective measures” can and should be developed for any and every job.
  3. Managers and supervisors who are closer to where work actually gets accomplished see that objective metrics create half a picture (at best) of actual job performance.  Moreover, they demand considerable time/effort be spent documenting behind employees.
  4. Directives eventually provide a way out by: a)  Using vague “generic” or “benchmark” standards (or “contributing factors”) which can lead back to subjective ratings; and or b)  Suggesting that higher level standards not be defined in writing.


For a number of reasons, performance ratings tend to rise over years. In other words, the curve bulges to the right (due to higher performance ratings) over time.  Eventually, senior management and/or HR become alarmed that there are too many employees being evaluated above average.  Knowing that ratings in most agencies are anchored more to impressions than data, the “quota system” or “bell curve” is enforced… unofficially, of course.

I recall being told, “It’s not your year.  You got one [Outstanding rating] last year.  It’s someone else’s turn.”  This was an honest supervisor responding to the bell curve limitations being imposed from above.  I understood and appreciated the candid explanation.  It felt better than some pained pretext.  As his subject matter expert in area of performance appraisals, however, I also knew it violated the Code of Federal Regulations.

As if the Postal Service wasn’t in enough trouble

It was in this light that a recent report from the US Postal Service’s Office of Inspector General (OIG) caught my eye.  It seems as if lots of postal supervisors and managers, who are evaluated as “Executive Administrative Schedule” employees under a PFP system are unhappy.  On their behalf, the National Association of Postal Supervisors requested an investigation by their OIG regarding the efficacy of their evaluation process.  The IG report, date August 8, 2011 can be found at:

After examining the 2009 rating cycle, the IG found something that would startle only the most naïve among FedSmith readers.  The report concludes,

“We determined that individuals responsible for evaluating or approving sampled employees’ FY 2009 core requirement ratings were not compliant with PFP policies and procedures. Specifically, we found that managers lowered core requirement ratings in a manner inconsistent with PFP policies and procedures, which state that employees should be rated on these requirements based on agreed-upon objectives and targets and that end-of-year ratings should reflect employees’ individual achievements. In addition, managers used numeric targets to rate postmasters on their core requirements, which they are supposed to base on behavioral objectives.”

Evidence didn’t stand up to the curve
Despite specific metric objectives (that are touted by PFP advocates) the report found that the Postal Service still employed a quota system.  The OIG wrote:

“…46 percent of the evaluators, and 40 percent of the second-level reviewers responsible for rating 59 sampled employees lowered employee ratings because they either were instructed to do so or believed ratings should be in line with unit scores. Managers also used numeric targets to rate postmasters’ core requirements contrary to policy.”

I have run across the phenomenon of senior managers lowering performance ratings throughout my 36 years in and outside of government.  The complaint is too consistent to be coincidental.  I have heard of upper management increasing an employee’s rating, but that’s unusual.  In the case of the Postal Service, even objective measurements (that prove so elusive in practice) were trumped by the bell curve.

Assessing the costs

In the case of the USPS, how many employees win and how many lose seems to have been paramount.  The small group of winners should be well satisfied.  The majority of supervisors and managers contacted by their OIG, however, show symptoms that should be of concern to leaders throughout government.  If their PFP program was designed to motivate personnel, it doesn’t appear to be working very well.

All of this raises the question: Are appropriate rating dispersions and a Darwinist pay system actually more important to our government than the loyalty, commitment,  job satisfaction of those who did not rate among the elite?  Performance appraisal literature shows little objective evidence that validates the benefits of evaluating by the bell curve and/or tying the outcomes to monetary rewards.  In fact, there appears to be more evidence to the contrary.

Even when PFP isn’t the issue, the bell curve can adversely affect those who actually do the work of government.  I wouldn’t trust an organization where the vast majority of employees are rated above average.  By the same token, changes to ratings by managers who are least likely to know the individuals affected can be more destructive than the problem they were intended to correct.

What is the ultimate objective?

I suggest that we consider performance standards that focus more on improvement of individual performance, rather than just racking and stacking an agency’s workforce.  In an era that stresses goals, objectives, measures, and results, this can be a challenge.  Managers could focus more on how employees perform and less on outcomes that are hard to successfully attribute and quantify.

The Code of Federal Regulations reads,

“Performance standard means the management-approved expression of the performance threshold(s), requirement(s), or expectation(s) that must be met to be appraised at a particular level of performance. A performance standard may include, but is not limited to, quality, quantity, timeliness, and manner of performance.”

Little energy has been spent on the last option which might concentrate attention on the ways employees approach and execute their work.

Telling an employee to write 8-10 reports per year is a quantity standard.  Demanding that no more than 2 re-writes per year are required is a quality standard.  Insisting that at least 75-85% of reports be completed by or before deadlines is a timeliness standard.  These three examples focus management’s attention back into the past.  Furthermore, they require bean counting throughout the year.

The “manner of performance” alternative has not been seriously explored by the Office of Personnel Management (OPM) to date.  It’s an area that has gotten a lot of my attention since the regulations were issued by OPM decades ago.  If it can serve to point the employee toward more desirable work habits, it may begin to shift the objective of appraises toward real value – the actual saving of time and money.  For those familiar with TQM and LEAN, manner of performance standards can be used for process improvements at the individual level.

Looking ahead

The desire to create some sort of performance competition within the Federal workplace strong.  Add pay to the equation and the stakes get higher.  This apparently led the USPS to ignore its own measures in favor of quotas.

Even if their OIG’s conclusion is misplaced and only reflects the perceptions of disgruntled supervisors and managers, what has been gained and lost by their adoption of PFP and use of the bell curve?  For all of the consternation that led to a request for their OIG to investigate, is there evidence that employees are better at performing their jobs from one year to the next?  If so, was their pay-for-performance system the reason for such success?  Was it the cause of any failures?  I hope the IG returns in the future for a deeper exploration.

In the meantime, what has not worked in the past, need not be repeated year after year.  Where the evaluation process causes more consternation (costs) than motivation (benefits) , OPM, Human Capital Officers, and senior management should be looking for better options.  Focusing less on quantitative results and bell curves while doing more to anchoring appraisals to the improvement of individual work habits might be a good place to begin.

How Many Judges Does It Take To Change A Light Bulb?

Answer: Just one, she holds the bulb still and the
world revolves around her.

An old case caught my eye.

I recently read a Merit Systems Protection Board (MSPB) decision from back in April of this year involving the Department of Agriculture (USDA) and an employee they fired.  It ticked me off.  From my vantage point, it reveals something that’s gone terribly wrong in government.

I think one of our greatest competitive disadvantages is our unwillingness or inability to effectively deal with our worst employees.

In the case that finally caught my attention, the appellant (Floyd Adamsen) was fired for reasons of unacceptable performance.  He lost his case when heard by an MSPB administrative judge.  The judge’s decision was appealed to the Board itself – three presidential appointees.  The Board denied the appeal and he escalated the case to the US Court of Appeals for the Federal Circuit.  The arguments were:

  1. The appellant wasn’t given a full and fair opportunity to prove his competence;
  2. The standards he was held to were unrealistic or unfair; and
  3. The USDA’s performance evaluation system wasn’t approved by the Office of Personnel Management (OPM) as required by regulation.

The Appeals Court didn’t buy the first two arguments.  They did, however, remand the case back to the Board regarding a technical issue.  Thirty years ago, OPM established a requirement that agencies must get OPM approval when establishing or changing an appraisal system.  The provision is at 5 C.F.R. § 430.209(a) and reads:

An agency shall submit to OPM for approval a description of its appraisal system(s) as specified in § 430.204(b) of this subpart, and any subsequent changes that modify any element of the agency’s system(s) that is subject to a regulatory requirement in this part.

Thus, an OPM regulation regarding its approval of USDA’s appraisal system was the only remaining issue in the case.  It’s a silly formality, but in performance case, the agency must trot out some letter from OPM and place it before the judge.  It has been an MSPB formality since the early 1980s.

Examining the minutiae

No substantive change to USDA’s evaluation system had been effected in the decade preceding Dr. Adamsen’s case.  After an exhaustive review of evidence (the decision runs 23 pages including footnotes and Member Rose’s dissent) Board Members Grundmann and Wagner determined Dr. Adamsen the winner… due to the absence of a specific piece of paper they wanted to see.  The removal was reversed and Agriculture was ordered to “…cancel the appellant’s removal and restore him to his former position effective April 27, 2007…” and “…pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act…”  Additionally, the appellant was advised, “You may be entitled to be paid by the agency for your reasonable attorney fees and costs…”.

Based on all four of the decisions in this case (initial appeal, Board review, court review, and Board decision on remand from the court – spanning 4+ years), it is safe to assume that Agriculture proved that Dr. Adamsen was deficient in at least one “critical element” of his performance plan by what the lawyers and judges call “substantial evidence”.  It was their filing system, however, that failed them.

It is common for those who win on appeal to also receive back pay and attorney fees as well as reinstatement. Perhaps, this novel defense merits such fees.  That’s the way the Federal appeals system works.  I don’t begrudge the appellant or the skills of his representative.  I begrudge the system itself.

Most of us with experience in labor/employee relations are aware of how much time, effort and expense it takes to remove someone for unacceptable performance.

First, a supervisor has to muster the courage to tell the employee their work is substandard and weather the storm that may follow receipt of such a conclusion.

Second, they, their human resources folks, and their attorneys have to dissect critical elements and performance standards to be sure such documentation will stand up to a judge’s scrutiny.

Third, they must construct a “performance improvement plan” (PIP) that meets the requirements of their agency’s and OPM’s regulations.

Forth, that same supervisor must deliver the “PIP Memo” to the employee who, in most cases, protests that their performance is no worse than others’ and assumes some ulterior motive on the part of management.

Fifth, that same supervisor must closely monitor that individual’s performance over the course of 1-3 months and meet with them regularly to point out every success/failure that’s been documented.

Sixth, if the employee fails the PIP, HR and legal will likely prepare a detailed notice telling the employee of management’s intent to fire them.  They must determine which official is the appropriate one to sign it, and then who should deliver and explain it to the employee.

Seventh, they must wait a month while the employee continues in their employ.

Eighth, if the employee chooses to respond to the proposal to remove, HR/Legal/Management must have a “Deciding Official” hear that reply to the notice and ensure no lower-level manager influences that person’s perspective.

Ninth, assuming the employee’s pleas are unconvincing, HR and legal must prepare a “decision letter” informing the employee of their last day of work.  This decision letter must be technically correct in how it relates to the proposal, and must include the MSPB’s regulations and an appeal form for the employee to complete.

Tenth, if the employee appeals (why not?), Legal must prepare its “case in chief”, as the burden of proof falls on management as the “moving party”.  That same supervisor will be summoned off the job to prepare for lengthy testimony that ensures an MSPB judge will understand technical matters – in this case “nitrogen fertigation management”.

Eleventh, if the agency prevails they can anticipate the possibility that the employee will appeal to the Board itself.  And the beat goes on.

As if all that weren’t enough, the agency must locate an ancient memo from OPM validating their appraisal system.  Even Job, of the Old Testament fame, would throw in the towel.

The case of Paperwork v Reality

The USDA employs about 100,000 people.  It is difficult to imagine that such a large department had been on the wrong side of OPM for over a decade and that this case finally unearthed an invalid appraisal system.  A rational human being would bet dollars to doughnuts that their appraisal system was approved back at the time it was submitted.  If not, can an appellant find anything in it that is defective or illegal?  …or is the existence of a 15 year-old piece of administrative paper what really matters here?

The Board decision in this case (which sets precedent) presumes the documentation is lacking and puts an appellant who was proven to be unacceptable back on the job.  Why not presume it does exist, and put the burden on the appellant to show otherwise?  Why not call over to OPM and ask?  Why not review Agriculture’s evaluation system to see violates letter, sprit, or intent of law?

Lately, the Board has been working to make Feds more aware of Nine “Merit Systems Principles” written into statute at 5 U.S.C. 2301(b)(6).  To that end, the sixth principle is:

Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.

That’s written into law.  The requirement for OPM approval isn’t.  Doesn’t the spirit and intent of statute trump an administrative regulation, or did the attorneys who trained me have it all wrong?

Silly assumptions and simple solutions

Such outcomes should never happen again… ever.  Why doesn’t OPM provide the MSPB with a long list of approved appraisal programs and close this loophole?  After all, every Federal activity with a union posts annual reminders of the “Weingarten right” to union representation.  Surely, the cost to the government of this one case is evidence enough that an annual list forwarded to the Board is worth the time it would take to prepare it.

Better still, why doesn’t OPM eliminate the requirement it established about 30 years back.  Clearly, the Appeals Court and MSPB are miscalculating its importance and using a sentence of the Code of Federal Regulations to undermine months of time and effort to do what the law considers a Merit Principle.

From where I sit, our appeals/complaints system has become so legalistic that managers, human resources specialists, and agency attorneys are reluctant to do the right thing.  Winning cases are settled, simply to preclude the nuisance and costs of administrative litigation that could result in a decision as technical and silly as this.

I know nothing about Dr. Adamsen or his job performance.  He has been reinstated by the Board, so I trust he is back to work and getting paid every two weeks.  I hope that, due to a technical card falling in his favor, he is showing USDA that he is capable of doing his job successfully and both parties can put this case behind them and focus on work.  I wish him and his agency all the best as they pick up the pieces and move forward.

Meanwhile, in the seminars I present, I will continue to encourage supervisors and managers to take on unacceptable performers.  I know they must slog through performance improvement plans, exercise patience during a mandatory one month notice period once all the evidence of failure has been harvested, and not react in anger should the employee file an appeal with the MSPB or EEOC.  It is their statutory right to do so.

I do, however, offer those management officials my condolences and sympathy regarding a system that is so time consuming, cumbersome, and fraught with technicalities as this case reflects.  Perhaps there’s a FedSmith reader who can convince OPM to look into this and do something simple to ensure history doesn’t repeat itself.  After all, there are Feds who take those Merit Systems Principles seriously.