OH HOW LITTLE FSIP MEMBER CARTER KNOWS
One of the predictable things about anti-union zealots, like the current membership of the FSIP, is that they almost never consider the second and third level consequences of their wildly biased decisions. This is usually because they do not know enough about the inner working of a collective bargaining relationship, fed sector labor law, or government personnel policies. Member Carter could be the poster boy for these unthinking zealots as evidenced by his recent decision that an agency will be allowed to change the evaluation plan and procedures each time it fills a vacancy. The union wanted the agency to continue to use a single, standard evaluation plan no matter what the job. Carter probably swelled with pride at yet again ignoring the union’s time-tested view, but what a mess he created. (See Dep’t. of the Army and AFGE Local 15, 20 FSIP 047 (2020).
Now every time the agency exercises its FSIP-bestowed right to use a different evaluation plan and procedures for filling a particular vacancy the union will have the opportunity to do two very significant things that they could not do if the evaluation mechanics stayed the same. First, the union can demand to bargain the impact and implementation of the new scheme and prevent it from being implemented until that bargaining concludes – which can take a very long time, involve lots of information requests, and consume lots of official time. The DC federal circuit court decided back in 2011 that when an agency lacks a standard practice because the policy gives managers the discretion to come up with something new each time a decision is required, management is not engaging in the “application of an existing, established practice…” which would not require negotiations. Rather, the agency’s action is “to change rather than apply existing practices.” And that makes it negotiable.
Second, once the new scheme has passed through the bargaining process, the union can challenge the substance of it. For example, 5 CFR 300 requires that employment practices such as the evaluation plan and procedures for filling jobs must meet a raft full of criteria, such as the following:
(a) Job Analysis. Each employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis to identify: (1) The basic duties and responsibilities; (2) The knowledges, skills, and abilities required to perform the duties and responsibilities; and (3) The factors that are important in evaluating candidates. The job analysis may cover a single position or group of positions, or an occupation or group of occupations, having common characteristics.
(b) Relevance. (1) There shall be a rational relationship between performance in the position to be filled (or in the target position in the case of an entry position) and the employment practice used. The demonstration of rational relationship shall include a showing that the employment practice was professionally developed. (5 CFR 300.103)
The underlined passages seem to be most ripe for challenge if the plan changes each time a vacancy is filled.
Another union option is to wait for the agency to use the new mechanics, request data showing how they impacted employees in protected civil rights categories, and file a grievance or EEO class action if they violated 300.103(c):
(c) Equal employment opportunity and prohibited forms of discrimination. An employment practice must not discriminate on the basis of race, color, religion, sex (including pregnancy and gender identity), national origin, age (as defined by the Age Discrimination in Employment Act of 1967, as amended), disability, genetic information (including family medical history), marital status, political affiliation, sexual orientation, labor organization affiliation or non-affiliation, status as a parent, or any other non-merit-based factor, or retaliation for exercising rights with respect to the categories enumerated above, where retaliation rights are available. Employee selection procedures shall meet the standards established by the ‘‘Uniform Guidelines on Employee Selection Procedures,’’ where applicable.
See also 5 CFR 335.103(a) and (b) for a similar requirement. Generally, if one protected class of employees is selected or rated more highly more than 20% lower than the rate of another protected class, there is good cause to suspect discrimination.
Of course, maybe we have it wrong and Carter’s real intent was to create a full employment program for FLRA regional staff, arbitrators and agency employees involved in labor relations activity. If so, he did a great job. Someone more learned and neutral would probably have taken into account the forces and government expenses he is unleashing by finding for management in order to work out a far, far more reasonable compromise.
We hope this gives Member Carter something to think about as he slinks back to West Virginia to continue to crush unions in those beautiful hills and keep the state as one of the most economically depressed areas in the country.