FLRA MAKES CREDITING PLANS NEGOTIABLE

But don’t look for a formal FLRA decision stating they are. Look instead at the reasoning FLRA used when ruling union crediting plan proposals were not negotiable. FLRA forces management to negotiate over something in one of two ways.  The most well-known is by declaring a proposal negotiable via a formal negotiability decision.  While many think that is the only way to force management to negotiate, seasoned negotiators know otherwise. FLRA also leaves agencies little choice but to negotiate when it rejects a union proposal because it fails to meet complex regulatory requirements associated with the proposal.  Here is how that has worked with crediting plans.

Let’s begin with a common understanding of what a crediting plan is. Simply stated, it lists the criteria reflecting the knowledge, skills, and other characteristics deemed necessary for a particular job and the devices used to measure whether a candidate satisfies those criteria. Here is an example of one from a federal court EEO decision.

The first part of the Crediting Plan pertains to the screen-out element: “ABILITY TO DO THE WORK OF THE POSITION UNDER NORMAL SUPERVISION.”  In order to pass the screen-out test for MER WG-8, an applicant must score at least a two (2) on this element….In order to earn two points on the Manhattan VA Crediting Plan screen-out element for MER WG-8, an applicant must demonstrate: [a]cceptable ability to perform some of the tasks described above on x-ray processing equipment under close supervision and most common tasks under moderate supervision. Work is generally planned for individual. May have some valuable experience in a related field above the trainee level in that field[.] (See Irving Spivey v. Edward J. Derwinski, SDNY (April 11, 1995))

Crediting plans typically have four elements:

• the narrative description of each criterion,
• gradations of each criterion yielding different levels of points,
• the point spread itself, and,
• the advice or benchmarks agencies give raters to help them decide how many points to award.

Additional examples of plans appear throughout EEOC case law decisions, e.g., Akers v. Gutierrez EEOC No. 01200637231 (2006), Jones v. Jackson EEOC No. 01A45837 (2004), and Roundtree v. O’Neil,  EEOC No. 07A00015 and 01A02650 (2001).

The courts and FLRA have rejected union crediting plan proposals saying that the plans are actually “employment practices” and therefore must comply with 5 CFR 300, which is almost impossible for a union to do.  However, management is also required to comply with the numerous obligations of that regulation, namely, crediting plans must be “practical in character and as far as possible relate to matters that fairly test the relative capacity and fitness of candidates for the jobs to be filled.” (300.102(a))  Those obligations are further supplemented by the “basic requirements” of these employment practices listed in 300.103:

(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….

(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. A minimum educational requirement may not be established except as authorized under section 3308 of title 5, United States Code.

We have added the underlining to highlight that there are at least 10 elements of this regulation that a union could charge management with violating and grieve, such as NTEU did in a single case that ultimately generated 1,400 priority considerations for unit employees.

The Arbitrator also found that the Agency provided no evidence that it had performed the professionally-conducted job analysis required by 5 C.F.R. § 300.103(a) to determine the validity of the Good Potential policy before it was implemented. NTEU, 61 FLRA 226 (225)

The most difficult of all the requirements to meet is that the agency do a job analysis to substantiate all the elements of a crediting plan, right down to the number of points awarded for each factor.

In Department of the Treasury, the court held that a proposal establishing a crediting plan for all unit positions was contrary to 5 C.F.R. § 300.103 because it did not satisfy the regulatory requirement that job requirements “be based on a job analysis to identify . . . [t]he factors that are important in evaluating candidates.” Id. at 1122 (citing 5 C.F.R. § 300.103(a), emphasis in the original). The court stated that the proposal could not constitute the equivalent of a job analysis because “the proposal establishes the number of points to be awarded for each level of the various factors without any reference to the demands of specific occupations.” Id. at 1123 (emphasis in original). NTEU, 55 FLRA 1174 (1999)  (See also NTEU, 61 FLRA 554 (2006) and more than a dozen other cases involving a job analysis.)

Unfortunately for agencies, a “job analysis” is not some vague, undefined HR “thingee,” nor can they claim that simply because they drew the plan read from  the position description they have met the requirements.  OPM believes there are 12 steps to a job analysis.  (See page 275 of the OPM Delegated Examining Operations Handbook )  It has even prepared a 45-slide PowerPoint presentation explaining what a proper job analysis is.  The Uniform Guidelines on Employee Selection Procedures offer the opinions of the Departments of Justice and Labor as to what they consider necessary elements of a legitimate job analysis.  MSPB has also weighed in on what it expects of a job analysis in cases such as Sauser, Mapstone, and Morris.  And the courts have issued numerous decisions describing the requirements for a valid job analysis.  Federal agencies went to great lengths, often hysterical lengths, to convince FLRA and the courts that unions could not negotiate crediting plans because they could not meet the job analysis and other requirements of 5 CFR 300.  By turning the tables on management and now demanding, through arbitration if necessary, that agencies also meet those requirements unions will force agencies to reach agreement with them just to avoid countless arbitration orders to vacate defective selections, rerun the promotion action, grant priority considerations, award retroactive promotions, distribute back pay, reimburse attorney fees, and perhaps even implement an order from the Office of the Special Counsel that an agency executive be disciplined and fined for a chronic failure to comply with 5 CFR 300.

If your union wants to pursue this strategy, here are some steps you might follow.  First, ask for a copy of the job analysis underlying the crediting plan used in a particular promotion action.  Given how crucial the courts, FLRA and arbitrators have said these plans are to the basic merit system, a proper particularized need request should get it.  In one court decision they were referred to as the, “Rosetta stone, ‘without which’ [a] union could not hope to make an intelligent decision as to whether a selection action was properly conducted by management.”  (Check out “FEDSMILL’S Particularized Need Form.” Also check out the following FLRA decisions specifically addressing the particularized need criteria for crediting plans.  AFGE, 56 FLRA 156 (2000), AFGE, 64 FLRA 106 (2009), and AFGE, 63 FLRA 45 (2009)

Second, once you get it, look it over to see if meets the requirements described by OPM, Justice, Labor, MSPB and the courts.  For example, does it justify not just the narrative criteria, but also the number of grading levels of that criterion, the total points allowed for that criterion and the point difference between levels.  Don’t assume that a plan yielding 1 point for possessing the first level of the criterion, four for the second level and 12 for the third level is supported by any rational, professionally developed foundation. Also ask for a meeting to discuss it and ask questions. If you are refused the plan, consider expanding your request so that everything you will need to win the grievance over the promotion action is addressed in a single decision, e.g., the crediting plan, the promotion package, etc.

Third, that meeting should inevitably give you the right to see the crediting plan itself to determine if it is consistent with the job analysis.  If the job analysis is defective, you need the plan to see precisely how that hurt your members who applied for that promotion. For example, if one evaluative factor of the crediting plan was not supported by the job analysis, does dropping any points awarded based on that defective factor change the promotion scoring?

Fourth, ask for corrective action.  That could include not just remedies for specific employees harmed by defective plans, but just as importantly it should include a demand that the plan be modified to meet what the union considers to be one that complies with 5 CFR 300 on its face.  Getting union buy-in to a crediting plan is invaluable to management because it means that the union will likely never ask an arbitrator, FLRA, MSPB, Special Counsel, OPM or the courts to get overturn it.

Fifth, as mentioned at step two plan any grievance wisely.  If your request focused on a specific promotion action where you thought employees had been harmed, don’t just grieve that action alleging that they were harmed and that all appropriate remedies should be provided.  Also include in the same grievance any denial of the job analysis and crediting plan material as a violation of your contract and/or your statutory right to information.  Separating the allegations into individual grievances will only delay resolution because you will have to litigate one grievance before the other can be moved to arbitration.

***

The union has a massive amount of bargaining power here thanks largely to the hyper-manic management labor lawyers who could only think about defeating the union without any concern for what that defeat would do to HR.  It is time that unions brought to an end this absurd mind-set about the need to keep crediting plans secret from employees.  After all, a core job of any manager is to develop employees so that they can move up in the organization.  How does one do that if you do not tell them the criteria used to measure whether they are ready to move up? These criteria should be plastered on walls and broadcast through the hallways so that employees know how to make themselves more valuable to an agency