We would. An arbitrator found that an agency failed to follow the contract obligation about the background of those on a promotion “rating panel” and gave two grievants priority consideration.  It did not take a genius to make that call because the agency admitted in its written grievance response that did not follow the contract requirement. Moreover, the “rating panel” members did all those things rating panels do.  They interviewed candidates, they evaluated their response to pre-determined questions, and they gave the candidates scores. Those scores where used to determine who was highly qualified versus best qualified. It was going to be an “easy-peasy” decision against the agency if the agency reps did not do something. So, as best we can tell, the agency reps decided to tell a big fat lie. Apparently, the horrors of having to give two employees priority consideration and the threat to government, if not the free world, priority consideration creates, justified in their mind making up stuff.

The lying began at the arbitration hearing.  A management official took the witness stand to claim that the background requirement for rating panel members did not apply in this case despite the agency’s written admission in its grievance response that it did. The witness essentially said the grievance response was a lie—or what is more recently known as a “fake” response.  The witness claimed that this particular panel was an “interview panel,” not a “rating panel.” He made this claim even though (a) nothing in the contract refers to interview panels, (b) he had no agency regulations distinguishing between rating and interview panels—or even mentioning interview panels, and (c) the work this so-called interview panel did was to “rate” the candidates.  The arbitrator did not buy that story, but very politely decided not to call the witness a liar.

In an apparent homage to White House values, the agency decided to continue to lie by feeding the same 11th hour, Hail Mary line about interview versus rating panels to the FLRA. After all, Kiko and Abbott long ago established they will do just about anything to overturn an arbitration case favorable to a union or employees. Having been appointed by a universally recognized world class faker and eager to please him to get even better jobs for themselves no matter how many federal employees get hurt, buying into a lie was second nature.

But all they seem to have done is make the lie more obvious. The two Trumpian toadies wrote that rating panels deal with determining basic eligibility.  Because the panel in this case did more than that, Kiko and Abbott concluded they could not be a rating panel and hence did not have to meet the contract background requirements.  They chose to ignore the fact that the only contract reference to the actual act of “rating” refers to what is done to the highly qualified candidates to identify those best qualified. “The best qualified group will be identified by comparing the RATINGS of the highly qualified candidates….” There is no mention of the rating panel in the eligibility determination process. The Twin Toadies chose to ignore that hurdle.

Moreover, any fool with even two weeks of HR staffing experience knows that HR Specialist or even computers make basic eligibility determinations. No one assembles panels of line managers to determine whether applicants are basically eligible.

We get it why Kiko and Abbott bought this line of poooooo.  They are biased, narrowly self-interested, and know very, very little about the HR process. But it sure looks like the Agency officials who made these claims knew they were making a false statement to the FLRA and arbitrator. Consequently, one way to get the harm corrected is to now get the Agency to “voluntarily” agree to sustain the original grievance by pointing out that one or more managers lied to win this case. The allegation would be a violation of Title 18, United States Code, Section 1001 which makes it a crime to: 1) knowingly and willfully; 2) make any materially false, fictitious or fraudulent statement or representation; 3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States. If the Agency is smart it should give in and settle the original grievance now before NFFE has time to act. It should then discipline the liars in their midst before OSC has a chance to sink its claws in. (On a personal note, let’s us say that we are very hard liners when it comes to DoD officials telling the truth. Hence, our preference for the nuclear option when it looks like one lies.)

NFFE could ask for a FLRA reconsideration to see if our personal  nominees for “Dumb and Dumber IV” lead roles have enough integrity to admit that they let their rabid anti-union bias and HR ignorance get the better of them. FLRA could have ensured the lie had no impact and protected the integrity of DoD, but why should they do what their president refuses to do. So, bring on the Office of the Special Counsel if need be. Check out Dept. of the Army, MD and NFFE, Local 178, 71 FLRA 54 (2019) for the details

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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