| October 2005 |
| Can We Help Probationary Employees? Yes! |
| by Dennis Schneider, NTEU National Counsel |
| Let’s start out with a true / false test dealing with probationary employees. |
- Probationary employees are not part of the bargaining unit until they are finished with their probationary period.
- Probationary employees cannot join NTEU until they are finished with their probationary period.
- NTEU contracts do not cover probationary employees so they cannot file a grievance.
- Probationary employees cannot be represented in formal meetings.
- NTEU has never been able to convince management to rescind a removal letter on a probationary employee.
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| If you answered “true” to any of these questions please read on so that you can get the facts on representing probationary employees. If you answered “false” to all of the questions, then you scored 100% but still read on as we will be discussing the rights of probationary employees and what we can do to assist them before the agency. |
| Newly hired federal employees are required to complete a probationary period based on the type of appointment the employee was hired under. Most employees are hired under a Competitive Service appointment and must complete a 1-year probationary period. Employees hired under a Schedule C appointment can be required to serve up to a 2-year probationary period. It is also possible for employees to be hired under a special statutory appointment and may be required to serve a probationary period of some specified time. Determine under what authority the employee was hired so you can determine the appropriate probationary period. See, 5 CFR 315.801 – 802. |
| Another important issue that may arise is whether an employee can be required to serve a second probationary period. This most often happens when an employee is promoted to a different position. The answer depends on the conditions under which the employee received the promotion. An employee promoted through the career ladder of the current position does not have to serve a new probationary period. The same is true of an employee promoted through the agency’s internal promotion process. However, if an employee submits an application for a position as an external hire and is picked up under a register from the Office of Personnel Management, a second probationary period may be required. This is true even if the employee could have been promoted internally (thus avoiding the second probationary period). This should be a consideration for employees who apply for positions internally and externally. |
| Probationary Employees: In The Unit And Covered By The Contract |
| Probationary employees are part of the NTEU bargaining unit and have all the rights and protections afforded by the contract. Since they are part of the bargaining unit and are covered by the contract they can and should become members of NTEU. The “coverage” article of your NTEU agreement lists the employees covered and excluded from coverage by the contract. Probationary employees are not listed among the excluded employees. What this means is that a probationary employee can file a grievance over any matter concerning conditions of employment that are covered by the contract. Examples include, but are not limited to: |
- Lost overtime opportunities
- Disciplinary actions
- Denial of leave
- Eligibility for career ladder promotions
- Health and safety concerns
- Alternative work schedule issues
- Representation in meetings with agency representatives (investigatory interviews or meetings over changes in working conditions)
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| NTEU also can represent probationary employees proposed for some adverse actions (suspensions of 15 days or more or reductions in grade) including taking the case to arbitration. However, NTEU will not represent nonmembers in their oral reply over these proposals. Later we will discuss what NTEU can do if a probationary employee is proposed for removal. |
| NTEU Represents The Rights Of Probationary Employees Every Day |
| NTEU is constantly working to improve the lives of NTEU members. We fight for fair pay and benefits by supporting legislation that is supportive of federal employees and opposing legislation that is harmful to employees. Just look at the annual fight over pay parity—each of the last four years NTEU has aggressively fought the president’s pay proposal in order to ensure that civilian federal employees get the same pay increase as military personnel. As a result, all employees we represent have seen additional money in their pockets with each pay period. |
| NTEU also lobbies Congress for increased funding to add additional positions which creates promotion opportunities and avoids reductions in force (RIFs) in federal agencies. In recent years NTEU won the right for Federal employees to take pretax deductions for certain expenses (including health insurance premiums) and to earn compensatory time during travel. These are just a few examples of legislative efforts that have increased the pay and benefits of Federal employees. |
| NTEU is also constantly bargaining with the agencies we represent in an effort to increase employee rights. Each probationary employee comes to work covered by a contract that has evolved over the years and benefits from the hard fought victories in the past. Each probationary employee should learn the contract protections and rights they enjoy were won from management because large numbers of employees joined NTEU, thus giving the union the clout needed to win these rights. Probationary employees are also covered by any negotiations that may be ongoing nationally or locally concerning changes proposed by management or initiated by NTEU. All of these hard fought victories benefit employees every day. Probationary employees also enjoy the benefits of any lawsuits filed on their behalf and other court victories that protect and enforce employee rights and benefits. NTEU has won important cases ensuring that employees are properly covered by statutes such as the Fair Labor Standards Act. NTEU also provides a highly trained field operations staff that support chapters’ efforts to enforce the contract and win additional rights through the arbitration process. |
| NTEU Can Provide Representation If Proposed For Removal |
| Although the law does not provide us with the right to arbitrate the removal of a probationary employee for conduct or performance and severely limits appeal rights to the MSPB that does not mean we are powerless to assist a member proposed for removal. Consider the following steps if an employee is to be removed during their probationary period. |
| Step 1: Is the employee being removed during the probationary time period? If the agency is even one day late in taking action against a probationary employee, they must provide the employee with full due process rights. See 5 CFR 315.802 and 804. You should first calculate to make sure the employee is still within the probationary period. As noted previously, some employees now have 2-year probationary periods due to their type of appointment. Also, make sure that periods in which the employee was in a non-pay status have been credited toward their probationary year. 5 CFR 315.802 provides that some periods in a non-pay status can still be counted toward the employee’s probationary period, including time off under workers’ compensation and military leave. If you are representing a seasonal employee, a recent MSPB case concerning seasonal employment provided that time in furlough status should be counted when computing a probationary period. Gutierrez v Department of the Treasury, DA-315H-04-0209-I-1, 105 LRP 34043 (July 12, 2005). |
| Step 2: Is the removal motivated by some impermissible reason which would trigger the right to higher review? 5 CFR 315.806. The Merit Systems Protection Board (MSPB) has jurisdiction on the removal of a probationary employee if the removal is based on partisan political reasons or marital status [5 CFR 315.806(b)]; if the removal is based on race, color, religion, sex, national origin, age or handicapping condition [5 CFR 315.806(d)]; or, if the removal is based on pre-employment misconduct (5 CFR 805). If the removal is motivated by union activity a ULP can be filed with the Federal Labor Relations Authority (FLRA). 5 U.S.C. 7116(a)(2). The Office of Special Counsel (OSC) can be asked to investigate the matter if the removal is based on whistleblower retaliation. Please note: You cannot use the negotiated grievance procedure to attack these issues. The courts have ruled that we have no right to pursue these allegations through the grievance procedure ending in arbitration. Even if we allege that the motive for removal is based on discrimination or reprisal, our broad scope grievance rights do not apply to the removal of a probationary employee. If any of these situations apply to you contact your chief steward or chapter president so that additional guidance can be obtained from the NTEU Field Office. |
| Step 3: Even if the employee has no special protections, NTEU can still provide some representation. Check your contract regarding what is required of the agency prior to terminating the employee. NTEU contracts provide for advance notice as well as ongoing communication with the employee regarding conduct and performance. Usually, failure to provide these notification requirements will not prevent the agency from removing the employee but may be additional evidence of an agency bias against the employee. We are certainly free to assist probationary members who have received notice of deficiencies by giving them ideas on how to perform their work more efficiently. Helpful hints on how things are done in the agency, how the promotion and interview processes work, and assistance with the interpretation of local directives are examples of how we can assist probationary members. Even if we do not have a right to make a presentation to management, we can request the opportunity to speak with higher management and make the case for keeping the employee on board. Emphasize the investment management has made in this employee and that making an extra effort to help the employee succeed makes good business sense. It is important that you remain professional and calm during the presentation. Remember, we have very limited appeal rights for probationary employees and table pounding is not likely to help us realize our goal of assisting the employee. |
| Ask if there is another position in the agency where the employee can successfully perform. If so, argue that management can save time, energy and money by moving the employee into that position. The position may be a downgrade for the employee, but an employee can voluntarily move to a lower grade without having to follow adverse action procedures. Check your contract to determine if the employee has some right to another position based on employment in a previous position. If all else fails, negotiate a “clean 50” which indicates the employee resigned for personal reasons and, therefore, avoids a blemish on their employment record. |
| Conclusion |
| Hopefully you now know that the answer to all of the opening statements is “false.” Although our ability to represent probationary employees is limited, it is not accurate to state that we cannot represent them. Every day we represent all of the employees in our bargaining units by litigating court cases, lobbying Congress, negotiating contracts or protecting employee rights and contract language in arbitrations. Probationary employees enjoy those protections and benefits as well. In addition, we have the ability to assist probationary employees with performance issues by providing them with a mentor or other assistance to help them improve their performance. Should a probationary employee be proposed for removal we can use the relationships we have built over time to attempt to get an additional chance to show success or to find an alternative position in the agency. Lastly, if all else fails, we can negotiate a clean resignation to help them protect an employment record. |
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