WHEN ROBOTS MAKE PROMOTION DECISIONS

About a decade ago, IRS proposed to NTEU that they automate the promotion system. After all, it would save gobs of time managers then spent rating candidates’ paperwork, remove the subjectivity of rating panels, and speed the process up so that promotions could be given earlier. Moreover, automation was the wave of the federal future with vendors offering several different systems, e.g., QuickHire, CareerConnect, etc. NTEU agreed to try it. After all, less subjectivity and faster promotions were great employee benefits. But here is what happened that resulted in probably a thousand IRS employees just getting priority consideration last week with FLRA’s blessing.

In order to automate the process of determining whether applicants met minimum qualifications and then rating/ranking all qualified candidates, IRS had to adopt criteria that were easily identified from a computer review of someone’s application papers. That meant losing the sophistication that a rating panel of experienced managers previously applied before they were automated out of the process. For example, whereas a manager panel may have been able to look at the complexity of cases an applicant may have worked over recent years, all the computer could do was ask the employee if s/he worked certain kinds of cases. Yes or no. As a result, the Selecting Officials were getting Best Qualified lists that in some or many cases were the product of a near-valueless rating/ranking process. (Under the NTEU-IRS contract the Selecting Officials only gets the top four candidates on the BQ list for a single vacancy and one additional candidate for each additional vacancy to be filled off that promotion certificate.)

We are speculating here, but it seems that the IRS Selecting Officials, who were normally second or third line managers, did not like that. Interviewing everyone on a BQ list took up too much of their time, they often had very little knowledge of the front-line job to be filed, and they wanted to hear what their managers thought of the candidates. To solve those problems, IRS allowed Selecting Officials to appoint ranking/rating panels of generally first-line managers to review and interview the BQ candidates for them and give the Selecting Officials their recommendations as to who among the “best qualified” should be selected. In other words, top management decided it needed more human input than any of the allegedly high-powered, automated promotion systems could provide.

Despite some words in the contract that suggested IRS had a right to do what it did, the NTEU negotiators had the institutional knowledge as to what was said in negotiations, what proposals were passed on the way to crafting the final language, and why those words were still in the contract. Knowing the entire IRS promotion system as well as related laws and regulations, the negotiators also saw that what IRS was doing was probably a prohibited personnel practice. So, the union filed a national class action grievance challenging the reintroduction of rating/ranking panels of managers, and asked that where ever they were used that every non-selected person on a BQ list who had a higher promotion score than anyone selected off that certificate be given priority consideration.

The arbitrator decided management had violated the contract as well as law and regulation, e.g., by creating a bootleg promotion rating process without any systemic rules or job analysis foundation IRS had committed a prohibited personnel practice in violation of 5 CFR 335 and 300.101. The arbitrator also adopted virtually all of the remedy NTEU negotiators said was appropriate. Our estimate is that about 1,000 unit employees will get a priority consideration leg up on the next promotion as a result. The arbitrator also gave employees 60 days to file a claim for retroactive promotion and back pay if they can prove that the harm done them particularly meets the Back Pay Act test.

When IRS filed exceptions with FLRA, the Authority dismissed them. It rejected the agency’s claim that it had a management right to have other managers assist the Selecting Official because the agency failed to raise the claim with the arbitrator. (Even if it had and the arbitrator had agreed, the agency still would likely have been required to give NTEU advance notice of the change and bargain over it.) The NTEU-IRS Promotion article is likely the most detailed in any collective bargaining agreement with over 6,500 words establishing rules the agency must follow. Twenty years ago this kind of grievance might have been filed on behalf of one or two employees on a single promotion list, which would have vastly reduced management’s liability if it lost, but with NTEU’s development of a nationwide class action grievance strategy, sometimes filed on behalf of tens of thousands of potentially harmed employees, it has greatly increased the agency’s liability when it loses. See NTEU, 68 FLRA 945 (2015)

This experience and case also shines a light on the issues both parties need to address before they buy into some software system. We promise more on that shortly.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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