GRIEVING NON-SELECTION FOR PROMOTION (Part 1)
Ask a manager if you can grieve non-selection from a BQ list and you are likely to hear that you can’t. Some of them will even quote part of a federal regulation that bars grievances over non-selection from a “group of properly ranked and certified candidates.” (5 CFR 335.103(d)) But, there are ways to get around that, e.g., allege that the list was not properly ranked, certified, or considered. That may sound like hair-splitting, but it gets the union the right to grieve. There are five ways to do that successfully.
1. The most common approach claims that the non-selected candidate was not properly ranked or rated. Perhaps he ranked as the third highest on the list, but had he been properly ranked he would have been the second highest. Typically, this requires that the union go into the details of the ranking process and demonstrate how the grievant’s score should have been higher. The union may show that some relevant experience was not credited, someone made a math error in adding the promotion points, or that the grievant was not treated the same as other candidates. If the union can show the employee was entitled to more points and/or a higher ranking, the arbitrator is free to impose a remedy of priority consideration or even retroactive promotion.
In each case, however, the union needs access to the crediting plan, a document that generally not only lists the criteria applicants were ranked upon, but also the points awarded for each level of knowledge, skill, or ability. Once it has the plan, the union can examine whether it was applied properly to the grievant. Without it, the union is left to compare the grievant’s application with that of other candidates who received more points and argue the grievant was treated disparately and unfairly.
But crediting plans are hard to get. Management typically acts like it is the HR equivalent of the nuclear launch codes and opposes release. FLRA recently refused to release a copy to the union for two reasons. First, the union’s assertion that it needed the information to determine whether the Agency complied with all applicable laws and merit promotion principles in its selection procedures did not amount to the legally required particularized need a union must show to get the documents. FLRA was also influenced by the fact that management gave the union “upwards of several hundreds of pages” from the promotion file and provided it the opportunity to review the entire promotion file, except the crediting plan. That gave the union the opportunity to explain why those documents did not satisfy its needs, which the union did not do.(64 FLRA 106)
Ironically, the EEOC routinely orders the complete plan disclosed in the complaint investigation files and often second guesses the agency’s application of the plan. (See EEOC cases Edward Jones v. Dept. HUD, Woodfolk v. Cohen, and a federal district court decision known as Morgan v. Regan, upheld by the DC Circuit, which explained the inner working of the crediting plan it had in the record. Perhaps union representatives should file parallel EEO changes when grieving non-selection simply to get access to the plan.
2. Another way to challenge non-selection is to examine the number of people on the BQ list. Many contracts call for a specific number of employees per vacancy, while others require that management put a reasonable number on the BQ list or break it off at the “natural break” in the employees’ scores.
You might think that where the contract specifies how many candidates must be on the BQ list for each vacancy, e.g., 4, it would be nearly impossible to violate that. But it happens in one of two ways. Sometimes management just forgets the rule. Perhaps it puts five on the list when the contract’s limit is four. If that extra person is selected, when she is not eligible to even be on the list, an arbitrator can void the selection and impose a substantive remedy, even retroactive selection.
A more complex violation of this rule would be where the agency announces two vacancies, follows the contract by putting eight people on the list and then chooses to only fill one vacancy—and with the eighth ranked BQ candidate. An arbitrator can overturn the eight-person list and order the agency to vacate the selection because the eighth ranked person could not have been on the list if it was constructed to fill only one vacancy.
3. A third grievance approach would be to have the person who was selected ruled ineligible to even compete for the position. For example, in one case the Arbitrator ruled that the application of one of the non-unit employees selected for the position over the grievant was untimely. As a remedy, but without any additional elaboration, the Arbitrator ordered the Agency to remove the employee whose application was untimely from the position and to promote the grievant to the position retroactively with backpay and benefits. (Had the arbitrator properly explained a basis for this, he likely would have not had this portion of his award rejected by FLRA.) (58 FLRA 124) In another case, the grievant showed that the selectee was not qualified for selection. The Arbitrator ordered the Agency to rerun the selection process, excluding the applicant who declined and the selectee, using the same criteria. If the grievant was selected, to pay him back pay from the date of the original selection to the date of his retirement. FLRA upheld that decision. (56 FLRA 637)
4. A fourth grievance claim is that the selecting official improperly considered the grievant. Perhaps the selecting official held the employee to a higher standard, perhaps she put the grievant through a different interview, or perhaps she did not give the employee bona fide consideration.
In one case, the Arbitrator concluded that the selecting officials “had engaged in prohibited ‘information gathering’ during their review and assessment of applicants.” The Arbitrator also found that the testimony of the selecting officials concerning their rationale for selecting specific individuals was suspect, given the description of the placement factors and their assigned point values. He ordered the grievant selected for the vacancy, but failed to adequately justify that decision. FLRA voided the remedy. (61 FLRA 315)
In another case, the parties’ agreement required the selecting official to “seriously consider” the grievant for the vacant positions. The Agency contended she was less qualified than the employees who had been selected to fill the vacancies. The Arbitrator concluded that the selecting officials were required to “seriously consider” the grievant for vacancies, but that both selecting officials provided the grievant’s candidacy “only the most cursory and therefore, unreasonable, review.” As a remedy, the Arbitrator ordered the Agency to promote the grievant retroactively to the date of promotion of the employee initially promoted full back pay and benefits, together with interest at the appropriate rate. (64 FLRA 259)
A final example of improper selecting official consideration arises when the grievant has “priority consideration” rights to a vacancy, but is not selected. One arbitrator found a priority candidate was rejected based on a factor that was not listed on the vacancy announcement. Heordered that the grievant “shall be promoted to the next open GS-14 Senior Team Coordinator position,” and he directed the Agency “to begin paying [the g]rievant at the appropriate GS-14 level of pay retroactive to the date the successful competitive applicant assumed the position. FLRA upheld that remedy. (60 FLRA 742)
5. Another common grievance claim stems from the selecting official passing over anyone on the BQ list to select someone from outside the agency—when the contract requires that current agency employees be considered before other candidates. All the union need do here is get the various promotion documents to see when the selection decisions were made. While that will often be stated on the promotion or appointment certificates, the union should also request any document that shows dates, e.g., when did management contact the outside applicant with an offer, when did it interview that candidate, etc. FLRA will uphold remedies when this kind of violation is demonstrated. (63 FLRA 274)
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When representing an employee who was non-selected in any of the situations listed above, it is important to at least ask for retroactive promotion with back pay, benefits, and interest. The Authority has said that an arbitrator may award that in these situations so long as he/she reconstructs what the selecting official would have done had he/she not violated the contract. The arbitrator must explain in the decision how he/she did that; otherwise, the remedy will be rejected. (54 FLRA 487)
(Tomorrow, FEDSMILL will explain how adding charges of civil rights violations substantially boosts the union’s chance of winning the grievance.)