GRIEVING NON-SELECTION FOR PROMOTION (Pt. 4 – Regs)

At this point, the union has built a grievance that levels allegations of contract violations, probably a discrimination charge, and perhaps a ULP.  But there is at least one more claim it can make, i.e., that federal promotion regulations were violated.  There are at least three parts of the Code of Federal Regulations (CFR) worth examining for violations. 

First, there is Part 335, which is the primary source of promotion rules management must follow.  It requires– 

1.    that vacancies be filled by “a systematic means of selection for promotion.”  (335.103(a)),

2.       that all promotion procedures be in writing (335.103(b)(1)),

3.       that all promotions be based solely on job-related criteria (335.103(b)(1)),

4.       that all selectees meet the federal qualifications standards (335.103(b)(2)),

5.       that “due weight” be given to performance appraisals and awards (335.103(b)(3)), and

6.       that the promotion file be sufficiently detailed to reconstruct how decisions were made (335.103(b)(5)).

An experienced union representative should see that several of those rules might be difficult for management to follow, e.g., what is the “due weight” of #5, did a selection turn on some consideration other than the “job-related” one of #3, and was everything done “systematically” as #1 requires?  Those are charges the union should probably include in the grievance until it has had a chance to review the file and see for itself that they were followed.

Second, there is Part 7.1 which requires that promotion officials exercise whatever discretion they can exercise in an action “solely on the basis of merit and fitness.”  For example, if management sets an area of consideration solely based wanting to avoid the work involved with processing many, may applications, is that a merit decision or something else?

But we have saved the best and most powerful regulation for last. Third, there is Part 300. It applies to any “measurement instrument” used in a promotion, which it considers to be an “employment practice.”  (300.101)  in order to use any employment practice management must have done a “job analysis” which is a rigorous, objective study that identifies which factors are important in filling and job and which are not (300.103(a)).  It goes on to require that there be a “rational relationship between performance in the position to be filled and the employment practice.” (300.103(b)(1))  In other words, management cannot pick interview questions, rating criteria or even application requirements that it cannot demonstrate have this rational relationship—and demonstrate that through a formal, “professionally developed” job analysis  (300.103(b)) It is unlikely that some HR specialist could take the stand and say that in her opinion the credit plan had a rational relationship.  If you doubt that take a look at what MSPB decide when some agency tried that. (xxxx)

As an example, we suggest you read over xx FLRA xxx.  In that case the IRS management added an extra qualification requirement applicants had to meet to compete for promotion.  So, NTEU not only charged management with violating the contract, a prohibited personal practice, and adding this requirement unilaterally without bargaining, but it also asserted that the chosen requirement violated the 5 CFR 300 rules.  The arbitrator agreed with NTEU and FLRA did too.

Further, the Arbitrator found that the Good Potential policy could result in an arbitrary action that would violate 5 U.S.C. § 2301(b)(8) because it could eliminate the comparison of relative knowledge and skills “by arbitrarily removing from the pool any candidate” who fails to meet the 3.0 cut-off on either of the rated factors.³ Id. at 17. The Arbitrator also found that the Agency provided no evidence that it had performed the professionally-conducted job analysis required by 5 C.F.R. § 300.103(a) to determine the validity of the Good Potential policy before it was implemented.

NTEU forced management to redo hundreds of promotion action in this one grievance, producing over 1,400 priority considerations for its members. 61 FLRA 226  Also check out 60 FLRA 934 where NTEU used this argument successfully in another case.  

So if the union wants to level this charge it will need to know the details of the promotion action, particularly all the ranking and rating criteria used, even those used by the selecting official.  Once it has them identified, it should ask for the job analysis supporting the rational relationship each has to predicting successful performance as well as the credentials of the person who developed that analysis.  If the agency cannot produce them, then the criterion was used invalidly, it was not job-related, merit-based, or systematic.

(We have had so much fun laying out a very thorough approach to helping members not selected for promotion that in a week or so we are going to return to this subject with a couple of more articles.  These will be aimed at members rather than union reps to explain how much help the union can give them, and provide one or two things to help the union rep through this approach.  If you have questions or related issues you would like to see us address, just add them below in the blog box.  And remember, if you want to do any of the fancy legal stuff, we are not lawyers and you should see one.)