WHY DOESN’T FSIP GET IT ABOUT DECISION FALLOUT?
One of our continuing beefs with the Panel is that it regularly fails to consider the long-term fallout of its decisions. For example, it recently rejected a union proposal that assignments to long-term travel TDY be given to the least senior employee when ”… there are two or more employees equally qualified for the assignment and there are no volunteers.” The Panel employee chose instead this agency proposal, “the decision to assign an employee to long-term TDY will not be based on criteria unrelated to mission.” The Panel chose the agency’s offer because the union failed to demonstrate a need for its rule and because it thought that management should have the discretion to select an employee with specialized skills and experience. Let’s put aside the fact that the union’s proposal allowed management to consider specialized skills and experience when determining qualifications, and focus on what can happen next when management tries to implement this clause.
First, while Panel decisions are not precedential nor are there many of them, its previous decisions involving seniority and assignments both favored requiring selection by seniority when qualifications are equal. (See Department of Veterans Affairs, Samuel S. Stratton VA Medical Center, Albany, N.Y. and Service Employees International Union, Local 200, 15 FSIP 28 (2015) and Federal Communications Commission, Washington, D.C. and NTEU, Chapter 209, 99 FSIP 168 (2000). The latter was issued by the Becky Norton Dunlop Panel that beat unions like a band of Pinkertons.) Those helped push employers around government to often voluntarily agree to such clauses without taking a gamble on a favorable FSIP decision. Now, it could be argued that the Panel has sent a message that agencies might want to fight seniority selection even where they have the right to limit selection to those who are equally qualified. Great, more conflict and longer delays before mid-term changes can be made.
Second, selection by seniority is one of the few ways employers have to avoid discrimination disputes. The Civil Rights statute gives the employers virtual immunity from allegations of disparate treatment when they make selection decisions by seniority under a contract. Ignoring that benefit, the Panel has blessed an agency proposal here that will allow the union to claim disparate treatment every time it applies this clause. If it selects a woman over equally qualified men, the woman will have a claim unless the employer can prove the very faint difference it saw in qualifications was legitimate. Ditto if it selects a man, especially one over 40. This might sounds marginally significant to someone who has not actually managed, but imagine what happens if the union decides to file EEO charges and complaints every time the agency selects the someone other than the least senior. A while ago we saw an estimate that the average EEO charge and complaint costs an agency over $7,000 even if the employee drops it before a hearing.
Third, selecting the union clause would have given the agency an air tight covered-by defense to any more bargaining demands over assignments to long-term TDY. However, under the agency’s clause which leaves it free to dream up new examples of “specialized skills and experience,” the union has a pretty good case to demand to bargain every time a new one is used. That means that if the agency implements the new qualification wrinkle without bargaining it commits a ULP. In other words, more time and money out the door even if it the union loses the case. And if it wins, it could get gobs of back pay and attorney fees. For example, if the more senior equally qualified person was chosen and the assignment resulted in him losing out on ANY overtime pay he would have received back at his regular office, he gets back pay and the union attorney likely gets tens of thousands more.
The Panel is a creature of the statute which is supposed to boost efficient and effective government. When it ignores the labor, civil rights and personnel laws, even if the parties do not raise them, they do a disservice to government efficiency and effectiveness. The Panel needs to recognize that human resources management is a very complex area where, like the rest of the universe, for every action, there is an equal and opposite reaction. (See Dept. of the Army, Buffalo, NY and AFGE, Local 2930, 16 FSIP No. 22 (2016) if you want to know more about the case.)