UNION REP TEST #10 (Crediting Plans) 

We just read a Dept. of Treasury case where it was ordered to retroactively promote an accountant because the selecting officials on two promotions packages stumbled all over themselves (aka made stuff up) on the witness stand trying to explain how they made their selection decisions. They contradicted the written record, their agency attorney’s position, the agency’s final decision, and themselves. (See Rigoberto A., v. Mnuchin, Dep’t. of the Treasury, EEOC No. 2019003131 (2020).  By the end of the case, the agency had four different explanations on the record for why it did not select the employee.  It is a great example of why a union should get a copy of the agency’s crediting plans that tell ranking panels how to rate applicants whenever grieving non-selection.  Unfortunately, FLRA allows agencies a lot of discretion to keep the plans out of bargaining unit hands.  That means union reps have to be very precise when making a demand for the plan.  See if you can identify which one or ones of the following situations gives the union rep the best chance of getting the plan: 

1. Request for a copy of the crediting plan that states, “the plan is needed to investigate non-selection of two unit employees and potentially file a ULP or grievance over union animus.”
2. File a grievance on behalf of a specific employee alleging the agency violated the agreement’s obligation “to rank promotion applicants systematically” and then request a copy of the plan to help the union demonstrate that.
3. Request a copy of the plan to conduct a semi-annual audit of promotion action to ensure compliance with merit system principles and monitor contract compliance.
4. Request a copy of the plan for a specific vacancy announcement stating that it is needed, “(1) to determine whether the agency had misapplied and/or violated established merit principles, policies and procedures in the rating and ranking of applicants under the vacancy announcements; and (2) to determine whether or not to file a grievance on behalf of the complaining employees.” Also allege that unit employees believed that they had not been given fair and proper consideration for the vacancy announcements.
5. File a grievance alleging violations of specific agreement provisions in an identified promotion action and address the three particularized need questions.  Also allege a violation of civil rights regulations, e.g., race or age discrimination based on disparate treatment and impact.

ANSWER 

1. The union has no chance of getting the crediting plan because it has not given the agency any details so that it can determine whether the plan is “necessary” to investigate or process the grievance. Although it helped that the union noted the theory of the potential ULP, FLRA has said that is not enough. (See Federal Bureau of Prisons,  Montgomery, PA and AFGE,51 FLRA 650 (1995) Case law long ago required that to get the crediting pan the union must demonstrate a “particularized need,” which requires specific information from the union.
2. It is still not enough to file an actual grievance and identify the specific contract issue. Particularized need requires that a union to address three things to justify an information request, i.e., by articulating, with specificity, (1) why it needs the requested information, (2)  the uses to which the union will put the information, and the connection between those uses and (3) the union’s representational responsibilities under the Statute. Check out the Fedsmill.com posting entitled Fedsmill’s Particularized Need Form for a step-by-step guide for making a good request.
3. Although conducting audits of or just monitoring major agency actions like promotions to ensure compliance with law and regulation sounds like something that would promote efficient and effective government, FLRA does not care.  It is not a particularized need. (See Dep’t of the Air Force, New Mexico and AFGE, 60 FLRA 791 (2005)) So, if a union wants the crediting plans to monitor and audit, it should use its right to negotiate for them, even if it means a union-initiated mid-term request.
4. This worked at one time, at least in one FLRA case. (See Health Care Financing Administration and AFGE, 56 FLRA 503 (2000). But FLRA case law since then has been getting more and more hostile toward releasing crediting plans.  In fact, it has allowed agencies to rebut even a union’s particularized need request by raising Privacy Act concern. See Dep’t of the Navy, Jacksonville, Fla. and AFGE, Local 1943, 63 FLRA No. 133 (2009)
5. Addressing the three particularized need questions is the minimum a union must achieve. If the agency raises the Privacy Act defense, the union needs to (1) identify a public interest cognizable under FOIA; and (2) demonstrate how disclosure of the requested information will serve the public interest. For example, the union alleges requested information, “would she[d] light on an agency’s performance of its statutory duties,” or otherwise inform citizens “what their government is up to.” If the public’s interest outweighs the privacy interest, the information must be disclosed. (See Dep’t of Veterans Affairs, Decatur, Ga. and NFFE, 71 FLRA 428 (2019); (See Health Care Financing Administration and AFGE, 56 FLRA 503 (2000)).

But also raising a specific civil rights allegation, e.g., disparate treatment based on race, greatly increases the union’s chance of getting the plans because EEOC civil rights case law is much more favorable to employees on this issue.  EEOC has stated that the plan must be put into the record  with statements such as, “although we have upheld the confidentiality of crediting plans, we have only done so when the record adequately provided enough information to sufficiently determine the Agency’s legitimate, nondiscriminatory explanation for the non-selection. See Fausto v. Dept of the Interior, EEOC Appeal No. 01941292 (Oct. 28, 1994)” See Bakken v. LaHood, EEOC No. 0120093529 (2011).  Also check out the following Fedsmill.com post on EEOC’s position on disclosing crediting plans:  EEOC Normally Orders Crediting Plan Disclosure, EEOC Lays Out Path To Winning Promotion Grievances, and EEOC Body Slams Arrogant/Ignorant Agency.  If the agency refuses to provide the form once the arbitrator finds the EEOC test has been met, the arbitrator can rule there has been discrimination without any further evidence. In other words, an agency decision to withhold the crediting plan in an arbitration where an EEO claim has been made makes it much easier to win the case.