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    2. August 2008 2 TimTim

    3. August 2008 3 Overview Labor Relations Issues – Union Organizing Managing Performance Performance Reconsideration Process Equal Employment Opportunity Issues Alternative Dispute Resolution TimTim

    4. August 2008 4 Union Activity Union organizing efforts targeting eligible employees not represented by unions Organizing efforts have spiked, particularly in organizations covered by NSPS Organizing efforts across all Components Union organizing efforts have impacted NSPS implementation for some organizations NSPS limited to non-bargaining unit employees Organizing efforts raising questions on employee status – bargaining unit or non-bargaining unit? TimTim

    5. August 2008 5 Some Helpful Tips Management Conduct During Union Organizing Activities Remain neutral: Don’t coerce or attempt to influence an employee’s choice Don’t take actions based on union organizing activity (reprisal) Don’t discuss if unions are beneficial or not Don’t promise a benefit to employees based on a desired behavior regarding election outcomes Don’t interfere with an election TimTim

    6. August 2008 6 Some Helpful Tips What can you do? Inform employees of an election Encourage employees to vote Rebut false or misleading statements Enforce all workplace rules Prohibit organizing activity in work areas during work hours Refer employee union-related questions to Human Resources Offices, FLRA, and Union Consult with your Labor Relations advisor in your servicing Human Resources Office TimTim

    7. August 2008 7 Nine Bargaining Units Under NSPS All organized AFTER conversion to NSPS 1 Navy bargaining unit (41 employees) 6 Army bargaining units (174 employees) 1 Air Force bargaining unit (42 employees) 1 Defense Logistics Agency bargaining unit (24 employees) Currently, 281 NSPS employees covered by above units 1 Army unit and DLA unit are existing units - added NSPS employees Both have collective bargaining agreements in place Army unit covers 177 employees DLA unit covers 15,140 employees

    8. August 2008 8 Union Organizing Efforts Organizing activity has resulted in other new bargaining units At least 37 new bargaining units have been formed since July 2006 New bargaining units cover approximately 2367 employees 12 existing bargaining units expanded to include 856 additional employees At least 35 elections or petitions for elections currently pending before the Federal Labor Relations Authority TimTim

    9. August 2008 9 Managing Performance Communicate performance expectations Observe and document performance Provide on-going feedback Evaluate performance Address performance that does not meet expectations Debra The first order of business in managing performance is communicating your expectations to your employee. This is absolutely critical. An employee can not meet expectations that he/she is not aware of. As a manager you should observe and document performance – good and bad. Provide employees meaningful, constructive and candid feedback relative to performance. Employees like to hear what they are doing right and in holding employees accountable, they need to know what they are doing wrong. At some point in the performance cycle, performance should evaluated and upon evaluation, if the employee’s performance is not up to par, then the poor performance should be addressed. Debra The first order of business in managing performance is communicating your expectations to your employee. This is absolutely critical. An employee can not meet expectations that he/she is not aware of. As a manager you should observe and document performance – good and bad. Provide employees meaningful, constructive and candid feedback relative to performance. Employees like to hear what they are doing right and in holding employees accountable, they need to know what they are doing wrong. At some point in the performance cycle, performance should evaluated and upon evaluation, if the employee’s performance is not up to par, then the poor performance should be addressed.

    10. August 2008 10 Origins of Poor Performers Employee came as a poor performer Employee developed a poor attitude or work habits Employee and job are not compatible Employee has health problems Employee’s position or job assignment has changed Debra – Employee has always been a poor performer. The employee has been passed around from one organization to another. If a manager discovers he or she has a poor performer, this situation should be addressed early on. Developed poor attitude or work habits and have gotten away with them. The supervisor just waited until the person found another job, thus indirectly rewarding the behavior. Wrong match - the person and the job are mix matched. This could occur after a reorganization – employees are shifted around. There is a change in the employee’s work habits or performance – health problems may be the source. These problems may not always be obvious. Health problems can complicate dealing with a poor performer. It is critical that management works with the employee relations specialist as soon as health problems are suspected. - Position or job assignment changed- because of reduction in force, realignment, or simple changes in the job assignments. Other problems that may cause poor performance are personal problems such as elder care or financial concerns. Also, there may be misconduct issues that are handled separately but yet have an adverse affect on the performance Debra – Employee has always been a poor performer. The employee has been passed around from one organization to another. If a manager discovers he or she has a poor performer, this situation should be addressed early on. Developed poor attitude or work habits and have gotten away with them. The supervisor just waited until the person found another job, thus indirectly rewarding the behavior. Wrong match - the person and the job are mix matched. This could occur after a reorganization – employees are shifted around. There is a change in the employee’s work habits or performance – health problems may be the source. These problems may not always be obvious. Health problems can complicate dealing with a poor performer. It is critical that management works with the employee relations specialist as soon as health problems are suspected. - Position or job assignment changed- because of reduction in force, realignment, or simple changes in the job assignments. Other problems that may cause poor performance are personal problems such as elder care or financial concerns. Also, there may be misconduct issues that are handled separately but yet have an adverse affect on the performance

    11. August 2008 11 Performance Interventions Give supervisory feedback Provide remedial training Change work assignment Assign mentor or advisor Provide improvement period Take appropriate action Debra One of the most difficult tasks a manager or supervisor has is dealing with a poor performer. Most employees perform their jobs in a satisfactory manner, but every now and then you come across those who do not. When the performance is not up to par – options that a supervisor could use include providing feedback, reiterating expectations, providing training, the work assignment may need to be changed, assign an individual that could mentor the employee especially when the individual has strengths in the employee’s weak areas. An improvement period is another option, and although it is optional may prove to be very valuable, and when other interventions have failed take action which could include a letter of counseling, demotion, or a removal. Debra One of the most difficult tasks a manager or supervisor has is dealing with a poor performer. Most employees perform their jobs in a satisfactory manner, but every now and then you come across those who do not. When the performance is not up to par – options that a supervisor could use include providing feedback, reiterating expectations, providing training, the work assignment may need to be changed, assign an individual that could mentor the employee especially when the individual has strengths in the employee’s weak areas. An improvement period is another option, and although it is optional may prove to be very valuable, and when other interventions have failed take action which could include a letter of counseling, demotion, or a removal.

    12. August 2008 12 Performance Actions Types of Actions and Penalty Selection Not Capable of Performing (e.g. failure to perform accurate engineering analysis) Remedial Actions: coaching, letter of counseling, training, mentoring, improvement period, reassignment Adverse Actions: change to lower pay band, removal (logically involves movement out of the position) Willful or Negligent Non-performance or Failure to Perform (e.g. failure to work harmoniously with customers) Remedial Actions: verbal warning, letter of counseling, oral admonishment. Adverse Actions: Written reprimand, suspension to removal (full range of penalties open and may be effective) Deb All actions regardless of whether they are based on performance or misconduct – will be taken under chapter 75. You are probably wondering what happened to chapter 43 (where a Performance Improvement Period is required)– the answer to that question is – the NSPS Performance Management Regulations waived Chapter 43. Consequently, for those folks under NSPS, the only avenue available to take performance based actions will be chapter 75. I think of these 2 bullets where as in the 1st bullet the individual “can’t” perform – purely a performance based action…Prior to taking any kind of action in this situation, you should take appropriate remedial action, such as the coaching, counseling, remedial training, and although not required under chapter 75 , you may also put the person on a performance improvement period. (SC 1940.8). Under chapter 43, penalties were restricted to demotion or removal for performance. Whereas, theoretically, it is possible to impose any penalty in the agency table of penalties (TOP) when using Chapter 75. However, it makes no sense to suspend someone who is not capable of performing. If you have tried providing training, coaching and counseling, the logical penalties under Chapter 75 involve movement out of the position. - Change-to-lower pay band - Removal Keep in mind that MSPB will be reviewing these actions, upon appeal, to determine that they are: - For such cause as will promote the efficiency of the service; and - The penalties must be justified in light of the Douglas factors. The MSPB may also mitigate the penalty under chapter 75. Also, what you may find is that medical issues may creep into the mix as well as reasonable accommodation.________________________________________________ The 2nd bullet is “won’t” perform. There is willful or negligent performance. - The typical charge would be “failure to follow instructions” (e.g. you order the employee to do the engineering analysis and the employee just does not do it) - The full range of penalties are open and available for use and promote the efficiency of the service. - This is behaviorally oriented and progressive discipline is in order. How do you take the Adverse Action into Consideration on the NSPS Performance Appraisal (the Rating of Record) You consider the underlying conduct and its impact on the employee’s performance or that of the team. Deb All actions regardless of whether they are based on performance or misconduct – will be taken under chapter 75. You are probably wondering what happened to chapter 43 (where a Performance Improvement Period is required)– the answer to that question is – the NSPS Performance Management Regulations waived Chapter 43. Consequently, for those folks under NSPS, the only avenue available to take performance based actions will be chapter 75. I think of these 2 bullets where as in the 1st bullet the individual “can’t” perform – purely a performance based action…Prior to taking any kind of action in this situation, you should take appropriate remedial action, such as the coaching, counseling, remedial training, and although not required under chapter 75 , you may also put the person on a performance improvement period. (SC 1940.8). Under chapter 43, penalties were restricted to demotion or removal for performance. Whereas, theoretically, it is possible to impose any penalty in the agency table of penalties (TOP) when using Chapter 75. However, it makes no sense to suspend someone who is not capable of performing. If you have tried providing training, coaching and counseling, the logical penalties under Chapter 75 involve movement out of the position. - Change-to-lower pay band - Removal Keep in mind that MSPB will be reviewing these actions, upon appeal, to determine that they are: - For such cause as will promote the efficiency of the service; and - The penalties must be justified in light of the Douglas factors. The MSPB may also mitigate the penalty under chapter 75. Also, what you may find is that medical issues may creep into the mix as well as reasonable accommodation.________________________________________________ The 2nd bullet is “won’t” perform. There is willful or negligent performance. - The typical charge would be “failure to follow instructions” (e.g. you order the employee to do the engineering analysis and the employee just does not do it) - The full range of penalties are open and available for use and promote the efficiency of the service. - This is behaviorally oriented and progressive discipline is in order. How do you take the Adverse Action into Consideration on the NSPS Performance Appraisal (the Rating of Record) You consider the underlying conduct and its impact on the employee’s performance or that of the team.

    13. August 2008 13 Chapter 75 Requirements Notice of Proposed Action Employee’s answer to notice Right to representation Decision issued Notice of right to appeal Debra When taking an adverse action under chapter 75, the employee in which the action is taken against is entitled to… 30 days advance written notice A reasonable time to reply, not less than 7 days Right to choose a representative A written decision and Appeal rights. While I have taken you through managing performance to taking a performance based action….keep in mind that when employees are not engaged they may explore other avenues to air their concerns. These avenues include Office of Special Counsel, Administrative Grievance, The Reconsideration Process for those employees under NSPS and the EEO process. Debra When taking an adverse action under chapter 75, the employee in which the action is taken against is entitled to… 30 days advance written notice A reasonable time to reply, not less than 7 days Right to choose a representative A written decision and Appeal rights. While I have taken you through managing performance to taking a performance based action….keep in mind that when employees are not engaged they may explore other avenues to air their concerns. These avenues include Office of Special Counsel, Administrative Grievance, The Reconsideration Process for those employees under NSPS and the EEO process.

    14. August 2008 14 Reconsideration Process What is the Reconsideration Process? The exclusive means for non-bargaining unit employees to challenge their rating of record Individual job objective ratings – currently cannot be challenged Individual job objective ratings can be challenged per revised NSPS regulations expected to be finalized by end of calendar year What it is not—exclusions Share determination (number and value) Payout (base pay/bonus distribution) Interim review Recommended rating Individual objective rating or adjusted rating not resulting in a change to rating of record until regulations are revised Closeout assessment EEO matters Carolyn The Reconsideration Process is one means of employee redress It limited in scope to the employee’s rating of record. We have had a few instances of employee grieving their ratings of record, ______________(Provide info from the Components) Carolyn The Reconsideration Process is one means of employee redress It limited in scope to the employee’s rating of record. We have had a few instances of employee grieving their ratings of record, ______________(Provide info from the Components)

    15. August 2008 15 Reconsideration Process Carolyn If employee not happy with the rating-of-record (ROR), may file a written Reqest for Reconsideration with Pay Pool Mgr w/i 10 calendar days of receipt of ROR (copy: rater & HRO) 2. May request a representative, may include req for a discussion with PPM 3. Must include a copy of rating, state what change is being requested and basis for change 4. Rater shall review a copy of request and address employee’s concerns with PPM 5. PPM shall review request and confer with rater and/or conduct further inquiry, as he/she deems appropriate 6. PPM must render written decision w/i 15 calendar days. This may be extended by 15 days upon notification of employee and further upon mutual agreement. Decision must include brief explanation of basis of the decision (copy: HRO, rater, employee). 7. PPM decision is final unless employee seeks further reconsideration from PRA. If employee is unhappy with PPM decision, or if none is rendered within timeframe (15 days, 30 days if extended, or further upon mutual agreement), employee may submit written request for final review by PRA or PRA designee w/i 5 days of receipt of PPM decision or w/i 5 days of date the decision should date been rendered. 2. PRA shall review request and confer with PPM, or conduct further inquiry as he/she deems appropriate, before rendering a decision w/i 15 calendar days of receipt of written request from employee (15 day extension upon notification to employee, further extension upon mutual agreement) 3. PRA decision is final (copy: HRO, PPM, rater, employee) Carolyn If employee not happy with the rating-of-record (ROR), may file a written Reqest for Reconsideration with Pay Pool Mgr w/i 10 calendar days of receipt of ROR (copy: rater & HRO) 2. May request a representative, may include req for a discussion with PPM 3. Must include a copy of rating, state what change is being requested and basis for change 4. Rater shall review a copy of request and address employee’s concerns with PPM 5. PPM shall review request and confer with rater and/or conduct further inquiry, as he/she deems appropriate 6. PPM must render written decision w/i 15 calendar days. This may be extended by 15 days upon notification of employee and further upon mutual agreement. Decision must include brief explanation of basis of the decision (copy: HRO, rater, employee). 7. PPM decision is final unless employee seeks further reconsideration from PRA. If employee is unhappy with PPM decision, or if none is rendered within timeframe (15 days, 30 days if extended, or further upon mutual agreement), employee may submit written request for final review by PRA or PRA designee w/i 5 days of receipt of PPM decision or w/i 5 days of date the decision should date been rendered. 2. PRA shall review request and confer with PPM, or conduct further inquiry as he/she deems appropriate, before rendering a decision w/i 15 calendar days of receipt of written request from employee (15 day extension upon notification to employee, further extension upon mutual agreement) 3. PRA decision is final (copy: HRO, PPM, rater, employee)

    16. August 2008 16 EEO Considerations NSPS did not change EEO requirements or procedures Under NSPS there is increased discretion in decisions formerly limited by law or regulation Decision makers need to have business based reasons for taking action – in EEO speak, legitimate nondiscriminatory basis for taking the action CarolynCarolyn

    17. August 2008 17 EEO Considerations What are the likely issues? Performance rating Share determination Split between continuing pay and bonus Selection for reassignment Pay increase with reassignment Some (but not all) strategies to address issues Performance rating Ensure rating is consistent with Performance Indicators Share determination and Split between salary and bonus Have consistent, business-based approach to determining number of shares and allocation Communicate the decision to employees as part of publication of pay pool business rules Selection for Reassignment Have legitimate nondiscriminatory reasons for selection May use competition, even though not required Determination of Pay Increase upon Reassignment Use Pay setting guidelines as appropriate Be consistent with similarly situated employees CarolynCarolyn

    18. August 2008 18 Carolyn ADR is any procedure that the disputants agree to use, instead of formal adjudication, to resolve issues in controversy. When disputes arise anytime during the performance management cycle, the use of ADR principles, whether used informally or formally is an effective, time savings way to resolve the conflict. The decision whether or not to use ADR should be based on individual circumstances. Management should consider all relevant information and weigh the pros and cons of various options.Carolyn ADR is any procedure that the disputants agree to use, instead of formal adjudication, to resolve issues in controversy. When disputes arise anytime during the performance management cycle, the use of ADR principles, whether used informally or formally is an effective, time savings way to resolve the conflict. The decision whether or not to use ADR should be based on individual circumstances. Management should consider all relevant information and weigh the pros and cons of various options.

    19. August 2008 19 Carolyn The ADR Spectrum ranges from the least invasive by an outsider (i.e., 3rd party neutral) allowing the disputants to have control over the process and outcome to the most invasive where the disputants have the least control over the process and outcome. Preventive -An attempt to avert conflict by creating a procedure to address possible future disputes. It provides for a mechanism for channeling disputes into problem solving. Negotiated -Where disputants reach their own (without a neutral) resolution to a dispute or matter through interest-based principles of problem solving, i.e., coming to a solution which satisfies all disputants’ interests and concerns. Facilitated - mediation falls into this category, Where a neutral assists disputants in reaching a satisfactory resolution to the matter at issue. Neutral has no authority to impose a solution. Fact Finding- Where a neutral, often but not always a technical or subject matter expert, examines or appraises the facts of a particular matter and makes a finding or conclusion. This procedure may be binding or non-binding depending upon the disputants. Advisory -Where a neutral reviews defined aspects of a dispute and gives an opinion as to the likely outcome. 6) Imposed -Where a neutral makes a binding decision regarding the merits of a dispute. Disputes are usually over a possible breach of contract or agreement. The neutral party may be an individual or panel. This type of ADR is closest to traditional dispute resolution. Carolyn The ADR Spectrum ranges from the least invasive by an outsider (i.e., 3rd party neutral) allowing the disputants to have control over the process and outcome to the most invasive where the disputants have the least control over the process and outcome. Preventive -An attempt to avert conflict by creating a procedure to address possible future disputes. It provides for a mechanism for channeling disputes into problem solving. Negotiated -Where disputants reach their own (without a neutral) resolution to a dispute or matter through interest-based principles of problem solving, i.e., coming to a solution which satisfies all disputants’ interests and concerns. Facilitated - mediation falls into this category, Where a neutral assists disputants in reaching a satisfactory resolution to the matter at issue. Neutral has no authority to impose a solution. Fact Finding- Where a neutral, often but not always a technical or subject matter expert, examines or appraises the facts of a particular matter and makes a finding or conclusion. This procedure may be binding or non-binding depending upon the disputants. Advisory -Where a neutral reviews defined aspects of a dispute and gives an opinion as to the likely outcome. 6) Imposed -Where a neutral makes a binding decision regarding the merits of a dispute. Disputes are usually over a possible breach of contract or agreement. The neutral party may be an individual or panel. This type of ADR is closest to traditional dispute resolution.

    20. August 2008 20 Questions? Labor Relations Issues – Union Organizing Managing Performance Performance Reconsideration Process Equal Employment Opportunity Issues Alternative Dispute Resolution CarolynCarolyn

    21. August 2008 21 Backup Slides

    22. August 2008 22 Reconsideration Process Definitions: Pay Pool Manager (PPM): The individual designated to manage the pay pool, resolve discrepancies, and ensure consistency. Pay Pool Panel: Usually senior management officials, including the PPM, of the organizations or functions represented in the pay pool that assist the PPM in the exercise of his/her responsibilities. Performance Review Authority (PRA): Senior management official or an organization unit or group that manages and oversees the payout process, payout funds and pay pool decisions.

    23. August 2008 23 Reconsideration Process Challenging the Rating of Record Written request for reconsideration must be submitted to Pay Pool Manager within 10 calendar days of receipt of rating Employee may identify representative Request must include a copy of the rating, state what change is being requested and the basis for the change Employee may request opportunity to personally address the Pay Pool Manager and/or Pay Pool Panel Pay Pool Manager must render written decision within 15 calendar days Determine if request for communication will be accomplished May confer w/rating official and/or conduct further inquiry Decision must include brief explanation of the basis of the decision Decision is final, unless employee seeks further reconsideration from the Performance Review Authority

    24. August 2008 24 Reconsideration Process Employee’s Dissatisfaction with Decision Employee must submit written request for final review by the PRA or PRA designee within 5 calendar days PRA or PRA designee must render written decision within 15 calendar days May confer w/Pay Pool Manager and/or conduct further inquiry Decision of PRA or PRA designee is final

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