FEDSMILL CAN IMPROVE NATIONAL STAFF HELP, BUT WE NEED A SPONSOR FIRST
Have you ever tried to get in touch with the national union staff person assigned to your local to deal with an urgent matter, but not been able to connect for several days? Have you ever had a national staff representative assigned to your local who is new to the job, knows very little, or just is not very good at what she does? Have you ever gotten an answer from the national staff person assigned to your local that you feel certain is wrong, but you have not had the knowledge of regulations and case law to argue with him? We at Fedsmill.com have seen those situations and think we just might have the answer. We want to build an on-line data base that would give local reps the answer to hundreds of common ER/LR problems with less than a half dozen taps on their I-Pad, laptop, PC, or phone. BUT WE NEED A UNION TO SPONSOR (FUND) THIS WORK, AND IF IT FULLY SPONSORS THE WORK, IT ALONE WILL OWN IT. NO OTHER UNIONS OR AGENCIES WILL HAVE ACCESS.
For example, imagine a union member approaches you, the union rep, asking if her rights were violated when she was not selected for a job, and according to the counseling she received afterwards it was because she did poorly in a rating interview. Do you know the rules or case law precedents related to promotion interviews, e.g., what OPM regulations and handbooks say, what is grievable, what remedies FLRA will allow an arbitrator to impose, what an federal agencies will investigate poorly done interviews, etc.? Here is how our Automated Representational Assistance System (ARAS) will work.
Once the user clicks into ARAS, he will see an alphabetical list of key words that reflect the wide range of representational issues with which union reps get involved. It might look like this under the letter “P.”
(P) (Screen 2)
- PART-TIME CAREER ACT
- PAST PRACTICE
- PAY RETENTION
- PENALITIES, TABLES OF
- PERFORMANCE APPRAISAL
- PERFORMANCE STANDARDS
- PERSONNEL RECORDS
- POSITION CLASSIFICATION
- PRECEDENCE OF LAW AND REGULATION
- PREMIUM PAY
- PREGNANCY DISCRIIMINATION ACT
- PRIORITY PLACEMENT
- PROBATIONARY PERIOD
- PROHIBITED PERSONNEL PRACTICES
- PUBLIC TRANSIT SUBSIDIES
If the union rep was looking into a promotion dispute, he would click on that key word and be taken to a list of sub-headings under promotion, which might look like this.
PROMOTION (Screen 3)
- Area of Consideration
- Career Ladders
- Crediting Plans & Competencies
- Effective Dates
- Information Access
- Minimum Qualifications
- Non-selection Counseling
- Order of Consideration
- Pay Upon Promotion
- Priority Consideration
- Selective Placement Factors
- Vacancy announcements
If the union reps was particularly interested in what can be done to deal with a problem related to promotion interviews, he would click on the word “Interviews” and be taken to this screen.
PROMOTION: INTERVIEWS (Screen 4)
- Data Access (Particularized Need)
- EEOC Material
- FLRA Grievance Material
- FLRA Negotiations Material
- MSPB Material
- OPM Material
- OSC Material
- 5 CFR 300
- 5 CFR 335
Clicking on the ADVICE section of level #3 would provide a brief overview, with hyperlinks, of how to approach a grievance dealing with a promotion interview as well as how to approach a mid-term negotiation involving interview questions. For example, this might be the comment for GRIEVANCES:
If you suspect a problem with the promotion interviews, you can target them through a grievance. (It always pays to draft the grievance broadly, e.g. “The local alleges the rating/ranking process violated regulation as well as the following Articles and sections of the contract.” But nothing stops you in the grievance discussion from pointing specifically to the interview process as “an example” of a violation.)
Naturally, look first to your contract for any standards interviews (and any other part of the promotion process) must meet, e.g., uniform, systematic, fair, etc. Then consider the OPM regulatory criteria. Under OPM Material in this index you will find discussions of 5 CFR 300 and 5 CFR 335 which require that virtually every part of the promotion process be “systematic,” “based on merit,” “based solely on job-related criteria,” etc. Those requirements are also enforceable through the grievance procedure.
Another helpful requirement is discussed under FLRA Material in this Index. Even if the interview met all the contract and regulatory standards, the agency cannot change the interview process past practice without advance notice to the union, e.g., the scoring process, the criteria, etc. That would be a ULP, which enable FLRA and arbitrators to order the agency to go back to the old interview method, rescore the candidates if necessary and give priority consideration or even retroactive promotion to those harmed by the illegal unilateral change.
Finally, check out the cases under EEOC Material which describe the kind of errors made in promotion interviews. Although they involve allegations of civil rights discrimination, EEOC criticism an interview technique as contributing to discrimination that often amounts to a decision that the technique was not merit-based. That linkage bolsters any claims raised under contract or regulatory standards. While they are not binding precedent, agencies would be foolish to ignore them and arbitrators should find them highly persuasive because if the user returned to the Level #3 list and clicked on EEOC MATERIAL s/he could be provided with a list of EEOC case decisions that would provide examples of improper INTERVIEW behavior and documents to use in a hearing.
If the union rep follows that last advice and goes back to the EEOC Material he might find something like this.
EEOC has identified a number of mistakes managers make in the interview process. If you have any of them in your case you can use EEOC case decisio0ns to argue that the agency’s action violated the high-level requirements of a promotion interview found in 5 CFR 300.101 and 5 CFR 335., e.g., it is not systematic, job-related, etc..
EVIDENCE INCONSISTENCIES– EEOC frowns on conflicts in the evidence, “The AJ concluded that OM provided different explanations for his actions during the investigation and at the hearing, so his testimonies were not credible. . . . OM testified during the investigation that his decision was made based solely ‘on the assessments, the interviews, and the numerical rankings.’ However, at the hearing OM testified that S1 was selected because ‘He [S1] had a detail to the operational supervisor’s position for at least 120 days,’ this explanation was not provided during the investigation. . . . the AJ noted that during the EEO investigation, management stated that they used the previous assessments for their selection. On the other hand, at the hearing, OM testified that ‘I’m unclear as to whether we actually used assessments’ for the selection.” Denise Bergren v. Norman Y. Mineta, Department of Transportation, OFO EEOC No. 0720060007(2007) The lesson for unions is that they should call as witnesses each member of the promotion panel and selecting official to see if their stories line up.
IMPROPER QUESTIONS– Managers cannot ask questions that require applicants to talk about how they have exercised their statutory rights. EEOC has ruled that an agency may not make pre-employment inquiries as to whether an applicant is an individual with a disability, needs a reasonable accommodation, or as to the nature or severity of a disability. The Commission has held that an employer’s improper pre- employment questions constitute disability discrimination. (An agency may, however, make a pre-employment inquiry into whether an applicant can perform any or all job functions.) Even questions that solicit this information indirectly are wrong, e.g. EEOC found that questions about whether a candidate could travel are wrong. Bette Voss v. Janet Napolitano, Department of Homeland Security, EEOC No. 0720100001(2011) Consequently, if interviewers ask about FMLA leave taken, marital status, national origin, age, physical fitness, religion, discrimination charges, ULP complaints, etc., union representative should challenge the legality of the question and assume that there is a good chance of proving discrimination.
INTERVIEWER RELATIONSHIPS– Look into the kind of relationships each interviewer had with the candidates. EEOC has been quick to overrule agency interview actions because of an interviewer’s foreknowledge of candidate complaints. “The record shows that in January 2003, only a month before the interview process at issue, M2, who assembled the interview panel, approached complainant in a hostile manner, to confront her about an EEO complaint she had recently filed. The Commission has held that a prima facie of reprisal can be established by showing that supervisors involved in primary stages of the selection process harbored animus.” Julie A. Ragsdale v. John E. Potter, United States Postal Service, EEOC No. 07200500291 (2006).
RECORDS INTEGRITY– EEOC often finds against an agency simply because it failed to keep complete records of the interview. “The Commission has long held that once an EEO complaint is filed in connection with a non-selection, the agency is obligated to retain all relevant records concerning the selection process for that position. Sampson v. Department of Justice, EEOC No. 05960435 (1998). See also Alexander Koudry v. Arne Duncan, Department of Education, EEOC No. 0120080343 (2009).Title 5 CFR 335.103(b)(5) creates the same obligation.
SCORING INCONSISTENCIES– Another discrepancy that undermines the interview scores is one in which points are awarded inconsistently. EEOC has shown little tolerance for different scores being awarded for similar answers. “We cannot ignore, however, the unorthodox manner by which the two panels evaluated Complainant. On two interview questions, Complainant received zero points even though she gave substantive answers. On another, Complainant only received two points while one of the selectees was given six points for the same question and a similar answer.” Pamela Watson v. Janet Napolitano, Department of Homeland Security, EEOC No. 0720090029 (2010). In the same case EEOC highlighted its suspicion about scoring changes after the interview. “We find substantial evidence in the record supports the AJ’s finding that Complainant would have been. . . selected for the position if it were not for the fact that the panel changed her interview scores. The AJ found the testimony from P1 and P2 that interview scores were constantly changed due to later interviews was not credible. As the AJ noted, the Agency failed to provide evidence that other applicants had their scores altered. As such, . . . we concur with the AJ that Complainant established that the Agency’s nondiscriminatory reasons were pretext for discrimination based on sex.” Finally, the Commission has advised grievants to look for patterns in the scores. Did every candidate from a certain office get higher scores than others not from there? Was there a racial, gender, national origin or age difference in the average scores?
SELECTING OFFICIAL SILENCE– This absence of interview questions by the selecting official is evidence that he substituted age for qualifications in making his selection choice.” Ralph G. Bartolomucci v. Runyon, EEOC No. 01923826 (1993). See also Robert Fox v. Runyon, EEOC No. 01913439 (1992) OPM regulations require that any measurement criteria used in a promotion action be job-related and that must be based on evidence, not opinion.
TREATMENT DISPARITIES-Any disparity in how candidates are interviewed, even in the questions asked, is often seen as a sign that there was bias or at least a lack of fairness. For example, was one candidate interrupted when answering while others were not? Was one candidate insulted, diminished or embarrassed while others were not? Was one interviewed in far greater depth than another? Here is how EEOC treated one set of such facts, “. . . complainant was not afforded the same opportunity to prepare for the interview as the selectee, and as such, the comparison between their interview performances was not justified. Elizabeth Williamson v. John W. Snow, Department of the Treasury, EEOC No. 01A33728(2004)
In another case, EEOC ruled against an agency because, “the selectee had a suspiciously unfair advantage in the selection process. The record reflects that the selectee previewed the KSAs for the position and signed the recruitment checklist before the vacancy announcement was issued while she was the Acting Chief. Complainant did not have the opportunity to preview the KSAs and other selection materials before the vacancy announcement was issued.” Tony L. Calloway, v. Eric K. Shinseki, Department of Veterans Affairs, Agency, OFO EEOC No. 0120080458 (2009)
The Automated Representational Assistance System (ARAS) would be superior to anything else that is out there today. For example, several federal agencies have developed on-line, alpha- organized search systems to provide users an easy path to the information most relevant to their topic, but they do not pull together case law, regulations and advice under as many or as specific a list of topics as we plan to. Check out a few. As far as we know they are better than any union offers its local officers and stewards, but not targeted at the type of problems federal sector union reps often encounter.
- Dept. of Laborhttps://www.dol.gov/general/siteindex
- OPM: https://www.opm.gov/a-z-index/
- Dept. of the Army: http://cpol.army.mil/library/permiss/p_index.html
Some privately owned on-line databases also have wonderful key word search tools, but they typically bring up dozens, if not hundreds, of cases that you have to read to find the key passages she needs. Moreover, they can charge over $1,000 for each person who has access to their systems. Imagine the annual cost if your union wanted to give this to all its locals. Finally, none of these private databases is written for union reps. What we have in mind will be written for them and contain advice on tactical options the union has to solve the problem.
If what we describe looks interesting to you, contact whoever in your union makes decisions and have them e-mail us. We will set up a meeting and talk about what this might cost. Hopefully, we can find a sponsor that will work with us to create an extremely valuable automated tool that will put that union at the forefront of excellent representational service to its locals. Like it or not the most powerful asset a union rep can have is expertise in the full range of federal sector HR matters. Expertise enables the rep to identify a valid employee grip, box an agency LR/ER Specialist in with regulations or case decisions on point, and recognize what is a good corrective action—as opposed to selling the employee short when something better was available under the law.
P.S. And if you think we are against human staff, eager to automate them out of existence, you are wrong. We are trying to not only establish a floor for the quality of representational help a local gets from its national union, but also make up for the fact that national staff are sometimes unavailable, sometimes less experienced than you need, and sometimes too rushed. They also would benefit from a system like this..