NEGOTIABLITY: NOW, THE BAD NEWS

FLRA just had a chance to apply a big chunk of common sense to federal sector labor relations, but took a pass. See NTEU, 68 FLRA 334 (2015). Here is the situation.  Agencies have the right to detail employees to higher graded positions for months and even years. They are allowed to give them temporary promotions to the higher grade while they do the work.  But, if the agency fails to run a vacancy announcement competition to fill the temporary promotion slot, it cannot pay the employee the higher pay for more than 120 days over a 12 month period, no matter how long the employee stays in the job or how well she performs. According to the FLRA, it cannot pay her even if it wants to or whether she was the only person available to do the work.  Why did it make such an unjust decision?  Because it listened to OPM during one of its very dark, anti-employee periods.

Several years ago, after decades of allowing agencies to temporarily promote employees for periods far greater than 120 days and permitting arbitrators to order back pay for the employees when they did not, FLRA decided to ask OPM what it thought of that.  OPM obliged by sending over an advisory opinion stating that the promotion regulations barred a temporary promotion of more than 120 days a year unless the agency ran a competitive action. NAGE, 60 FLRA 46 (2004). That decision has been ricocheting around the federal sector for a decade now because it was decided as part of a review of an arbitrator’s decision and not appealable to court.

Over a year ago, NTEU set up a negotiability case to allow FLRA to reconsider the previous decision to blindly follow OPM’s advice.  It proposed, and an agency declared non-negotiable, the following:

In the event that the Employer fails to conduct a competitive promotion action in accordance with Section 13.04(1), employees detailed to or assigned higher graded work for more than forty‑five (45) consecutive calendar days in a twelve (12) month period will be temporarily promoted to the higher grade and will continue with that temporary promotion for the entire duration that the employee remains detailed to or assigned the higher graded work. The employees assigned the higher graded work will not be penalized for the Employer’s failure to conduct a timely competitive promotion

FLRA had all the reasons in the world to reverse its previous decision that punished the employee, not the agency for failing to comply with regulations.  First, it is wildly unjust to have someone do higher graded work and not pay her or to terminate her temporary promotion after an arbitrarily selected 120 days.  The failure to have conducted a competitive promotion action was not the employee’s fault, but the agency’s.  It is conceivable that the employee and union could have begged the agency to conduct a competitive promotion action and been refused by the Agency—and still the FLRA decision would make the employee pay the penalty.  Second, while OPM’s reg may require that temporary promotions of more than 120 days be competitively made, that does not bar an arbitrator from awarding back pay to cover a longer period if the Agency made the mistake.  After all, there is a statute, a freaking federal law, which provides that employees are to get back pay when the victim of an unjust or unwarranted personnel action. OPM’s advisory opinion ignored that law.  Third, FLRA authorized back pay for long details to higher graded work for decades before someone bothered to ask OPM its opinion. Fourth, (and this is where it gets real crazy for practitioners) if the agency keeps the employee in the job beyond 120 days, the union can file a grievance demanding a retroactive promotion action be run, will likely win, and thereby force the agency to do the work required of a competitive action.  If the employee already in the job winds up on the BQ list, the union can ask for an order that it promote her retroactively, with interest and oodles of attorney fees.  If the employee who has been doing the job does not get on the BQ list, then someone else must be selected and given the money that the grievant earned, along with interest and oodles of attorney fees. Imagine how happy that will make the employee.  It is hard to imagine OPM establishing a more absurd reality for practitioners, but we are sure OPM can if it tries.  (Check out “How to Grieve Temporary Promotion Denials” for more details on how to unleash a litigation storm on the agency.)  Fifth, if the employee had filed an EEO charge alleging the failure to continue her temporary promotion was a discriminatory act and won, EEOC would not spend three seconds considering OPM’s opinion. The employee would get the back pay, compensatory damages, interest and oodles of attorney fees.

Here is hoping that NTEU appeals this decision to the federal courts and restores sanity to this area of HR.   It risks nothing if it loses because we already have the worst situation that could be imposed. Or, perhaps President Kelley will tap the personal relationship she has built up with the OPM director to get it to change its advisory opinion.  After all, it was issued without giving any unions the chance to comment on this issue.  It wouldn’t hurt for NTEU to team up with AFGE and some other union leaders to ask for the change either. Some thought should also be given to asking the U.S. Special Counsel to get into this issue. We suspect a good argument can be made that OPM is setting agencies up for a prohibited personnel action because its rule is a willful obstruction of the job-holders right to a temporary promotion simply because some agency official decided not to run a competitive action.