NEGOTIABILITY: FIRST, THE GOOD NEWS
A new FLRA negotiability decision (NTEU, 68 FLRA 334 (2015) makes it a little bit easier for unions to enforce merit-based promotion decisions—if they can convince management to include the concepts in their collective bargaining agreement.
The first proposal addressed the selecting official’s obligation to explain his/her decision with something more detailed than a few hollow words, such as, “The other candidate was just a better fit” or “The selectee had some qualities you did not.” This is something we have written about often because under law those employees who file EEO charges are legally entitled to a more specific explanation from selecting officials than those who simply file a grievance. That makes no sense. It just encourages employees with promotion grievances to file EEO allegations/charges simply to force disclosure of the actual reason for his/her non-selection. Here are some articles we have posted on the topic.
- WHAT DO SELECTING OFFICIALS OWE BQ CANDIDATES
- WHAT DO SELECTING OFFICIALS OWE BQ CANDIDATES? A LOT
- WATERBOARDING SELECTION OFFICIALS II
- WATERBOARDING SELECTING OFFICIALS
The proposal held negotiable merely obligates the agency to disclose the same level of detail to non-selected employees whether they are alleging EEO violations or not. It mirrors the words of several federal courts of appeals which have described the obligation when the employee has alleged civil rights violations. The precise wording is as follows:
If the selecting official chooses to fill a unit position with an applicant who is not presently a federal employee, e.g., via an OPM appointment certificate, it will upon request of any bargaining unit employee who was rated Best Qualified, but not selected, articulate in writing a nondiscriminatory, merit‑based reason with sufficient clarity to afford the employee a realistic opportunity to show that the reason is pretextual.
A small BQ list and obligation to explain the selection decision in detail actually promote merit.
Unions should be reviewing recent selection packages to see how often the agency passed over the top ranked person to select someone else. For example, if the union finds that on the last fifty selections the top ranked person was selected only 10% of the time, the second and third ranked only 15%, and the fourth highest 60%, it has a good argument why the ranking system should either be sharpened or the explanation for the selection more specific.
The next piece of good news in this decision upheld the negotiability of a proposal that will bring a little more sunshine to the crediting plan process. It asks the agency to reveal all the job analysis and other validation data that federal regulations and law require it to have, but which in our experience it rarely does. In other words, if the crediting plan is going to give an applicant 5 points for having written complex reports and only 1 point for writing a “moderately complex” report, there should be job analysis data validating the linkage between report writing and success in the vacant job, the total number of points awarded for report writing, the basis for a five point spread, and an explanation of the difference between “complex” and “moderately complex.
A quick look at the evaluation factors used by different agencies for the same jobs makes it clear why professional validation is required. As we write this, three agencies have posted GS-12 LR Specialist vacancies—the Army, the Archives, and HHS. Here are the evaluation factors each allegedly found validated via a job analysis:
- Knowledge of Labor and Management/Employee Relations
- Ability to resolve Management and employee issues.
- Skill in Oral Communication
- Skill in written communication
- Ability to research
- Skill in Technical Writing
- Knowledge of existing ER/LR laws
- Ability to communicate
- Knowledge of Employee Relations
- Influences / Negotiates with Others
- Problem Solving
- Interpersonal Skills
- Execution and Results
- Customer Service
- Written Communications / Presentations
- Manages Projects
- Utilizes Computer Technology
At a minimum, the substantial differences in the crediting plan factors suggests the need for professional and rigorous validation.
Here is the proposal FLRA held negotiable.
Upon request, the Employer will give the Union a copy of the documentation showing the 5 CFR Part 300 validation of the plan/guide, as well as any analysis of the impact of the plan/guide under the Uniform Guidelines on Employee Selection Procedures (1978): 43 Federal Register 38295 (August 25, 1978). All information that is collected in the application process will conform to 5 CFR Part 300. In addition, the Employer will ensure that this process is consistent with and follows the guidelines outlined in Part 60‑3, Uniform Guidelines on Employee Selection Procedures.
Getting access to the job analysis data is something we have also written about before. If a union is going to pursue this at the bargaining table, it should probably ask for the documentation for several commonly filled jobs to see what is there today. If an agency is wise, it offers to let the union reviewing the crediting plans and perhaps even present some proposed modifications rather than subject its compliance with the cited regs to litigation.
- HOW TO HACK INTO THE FEDERAL PROMOTION PROCESS
- FLRA MAKES CREDITING PLANS NEGOTIABLE
- GRIEVING NON-SELECTION FOR PROMOTION
The final proposal held negotiable in this case deals with the age-old practice of managers assigning employees higher graded work and then denying them a temporary promotion on the grounds that they were not technically qualified for the promotion. Obscure federal regs permit agencies to waive the qualifications for temporary promotions. This proposal obligates them to do so when those formal qualifications are the only remaining obstacle for a temporary promotion. We have no idea how agencies can refuse to issue the waiver to allow a promotion when the employee has already performed the higher graded work satisfactorily. Here is the proposal.
The Employer shall waive time‑in‑grade requirements to the full extent of its authority for any employee already assigned or detailed to higher graded work when considering her or him for the temporary promotion.
For those union reps responsible to drafting negotiable proposals there is one additional message in this case. Each of these proposal used existing case law and regulations to advance union bargaining rights. It is something all negotiators should consider whenever faced with a string of adverse FLRA negotiability decisions protecting management from greater accountability. Don’t just try to break through the wall of precedent, no matter how nonsensical. Look for a free ride around it on the back of some statutory or regulatory obligation the agency already has.