BID & ROTATION DYNAMICS
The Panel just issued a decision dealing with the right of AFGE Correctional Officers to bid into various assignments by seniority. (AFGE, 2014 FSIP 48) NTEU CBP Officers and several other law enforcement groups have similar systems. Ideally, more lawyers, accountants, scientists, engineers, and other federal professionals will pursue similar rights. So, we thought this would be a decent time to explain union rights to negotiate over how work is assigned and the power the union has throughout the bid & rotation process.
To begin, as the recent Panel case explains, unions can negotiate which employees assigned to a particular occupation are assigned to perform the duties management assigned to that occupation. In the Panel case Correctional Officers were assigned work in various prison residential units and to perform various roles in each of those units.
Typically, unions have sought contract clauses that assign the tasks or cases of an occupation by seniority among those who volunteer to do the work. That is permissible so long as the union proposal permits management to establish specific qualifications for the task beyond those qualifications endorsed by OPM for the position. (Personally, we doubt the legality and wisdom of giving management this extra right not mentioned anywhere in the statute or even the civil service regulations. But let’s ignore that for now and look at the dynamic all this creates for the parties.)
The Panel imposed the following contract language to balance the union’s quest for a seniority rule with management’s rights and concerns:
Management will determine and post the qualifications for the Case Manager, Counselor, and Unit Secretary positions for each position/assignment in each housing unit (i.e., A1, A2, A3 and A4; B1, B2, B3 and B4; C1, C2, C3 and C4 and the Camp). These qualifications shall be posted at least 30 days in advance of the initial Roster Committee meeting to facilitate the bidding of qualified employees. Any unit staff member wishing to bid on one of the above positions will be given the opportunity to show management that the member meets the qualifications Management has established to do such work. If Management does not find the employee qualified, it will put in writing what the employee needs to improve to become qualified. This can be done after the initial rotation list is established. If the employee believes he or she meets the qualifications, the employee can file a grievance in accordance with the provisions of the Master Collective Bargaining Agreement. All qualified bargaining unit employees in Unit Management—except as noted below in Items 7 & 10— will be allowed to bid on these qualified positions.
The Roster Committee will consider preference requests based on seniority and will make reasonable efforts to grant such requests. A reasonable effort means that Management will not arbitrarily deny such requests. Staff may bid on shifts, days off, and assignments (i.e., A1, A2, A3 and A4; B1, B2, B3 and B4; C1, C2, C3 and C 4 and the Camp) on a yearly basis.
While it is disappointing that unions cannot negotiate over the substance of the extra qualifications management creates to assign a particular task or role, unions can demand to bargain over the impact and implementations issues of a particular qualification as soon as management creates it. For example, management might decide that Correctional Officers must also have a college degree to be a Counselor in a housing unit, however, the union can postpone implementation of that new requirement until bargaining has been completed. It would not surprise us that the delay for bargaining might “motivate” management to let the union jointly set the extra qualifications, albeit informally via a handshake deal.
(In our experience, managers often claim they do not have to bargain when the Panel imposes language authorizing it to “determine qualifications.” However, the Panel does not have the power to waive a union’s statutory right to bargain and nothing in this particular proposal indicates that the union’s I&I bargaining rights were expressly addressed, the easiest way to establish a covered-by defense to bargaining. So, assume that you can bargain and make the demand. If refused, pursue the matter charging a ULP, especially if assignment to the Counselor position would have generated extra overtime pay, boosted promotability, or come with a preferred AWS schedule.)
Once the bargaining starts, the union should demand data showing the impact of the new requirement on various protected classes for employees, i.e., race, gender, color, national origin, age, etc. While management may have a labor law right to determine qualifications, it must still comply with all laws and civil service regulations. If the extra requirement impacts one group more than others the union may have grounds for a grievance. Should the new qualification seems overly restrictive, if not targeted to let only one person have the job, the union should also ask for the documentary basis for the requirement. 5 CFR 300 as well as the Uniform Guidelines on Employee Selection Procedures (UGOESP) requires that agencies not establish qualifications without doing a formal job analysis. These decisions cannot be made out of thin air.
If there is no job analysis or other documentary foundation for the new qualification requirement, the union should be ready to charge management in a grievance with violating the UGOESP as well as some prohibited personnel practices, such as 5 USC 2302–
(b)(4) which prohibits any management action that amounts to “willfully obstructing” an employee’s right to compete for employment,
(b)(5) which similarly bars actions that encourage an employee to withdraw from competing for the assignment, or even
(b)(6) which makes it illegal to grant any preference or advantage to an employee not established by law or regulations.
While assignment to a particular task or role is not specifically listed as a covered action in the prohibited personnel practice statute, 5 USC 2302(a)(2)(A)(xii) protects employees in the matter of “any significant change in duties.” Several federal courts have held that assignments or reassignments can have such substantial impact to be covered by the various civil rights laws. Hopefully, that will persuade an arbitrator that the prohibited practice protections also apply when the assignment is significant enough. By that we mean so long as the assignment or non-assignment to the task or role in question had a tangible impact on the harmed employee.
Labor-management interaction is hardly over just because the Panel imposed language similar to the above, which favors management. The union still has options for pursuing its fundamental goal of a fair and equitable assignment to tasks or roles. Moreover, if unions explain all this to management during negotiations perhaps the agency will find a way to give the union a substantive voice in assignment decisions up front.