DEPARTMENT OF DEFENSE ARKANSAS AIR NATIONAL GUARD LITTLE ROCK AIR FORCE BASE JACKSONVILLE, ARKANSAS and RAZORBACK CHAPTER 117 ASSOCIATION OF CIVILIAN TECHNICIANS

In the Matter of

DEPARTMENT OF DEFENSE

ARKANSAS AIR NATIONAL GUARD

LITTLE ROCK AIR FORCE BASE

JACKSONVILLE, ARKANSAS

 

 

 

 

 

 

Case No. 00 FSIP 31

and

RAZORBACK CHAPTER 117

ASSOCIATION OF CIVILIAN TECHNICIANS

ARBITRATOR'S OPINION AND DECISION

    The Department of Defense, Arkansas Air National Guard, Little Rock Air Force Base, Jacksonville, Arkansas (Employer or Agency) and Razorback Chapter 117, Association of Civilian Technicians (Union or ACT) filed a joint request for assistance in a dispute arising from negotiations over an initial collective-bargaining agreement (CBA). After due consideration of the request, the Federal Service Impasses Panel (Panel) determined that the impasse should be resolved through mediation-arbitration before the undersigned.

    Accordingly, a mediation-arbitration proceeding was held on June 27-28, 2000, at the Employer’s facilities at Little Rock Air Force Base. During mediation, the parties were able to resolve a number of issues in the two outstanding articles concerning disciplinary and adverse actions and merit promotion. On June 28, 2000, an arbitration hearing was held on remaining issues during which the parties presented their final offers, summaries of their positions which had been discussed at length during the mediation phase, and supporting documents. The record is now closed.

BACKGROUND

    The Employer’s mission is to train aircrews for the C-130 aircraft. The facility is larger than most National Guard activities because of its expansive mission to train not only the National Guard, but also foreign nationals and active duty personnel in the Army, Navy and Marine Corps. All 130 employees in the bargaining unit are civilian technicians;(1) National Federation of Federal Employees, Local 1623 v. Federal Labor Relations Authority, 852 F.2d 1349, 1350-51 (D.C. Cir. 1988). approximately 60 percent hold positions as aircraft mechanics and perform maintenance on C-130 aircraft. Other civilian technicians either work on ground maintenance, including cars, trucks, and heavy mobile equipment, or perform clerical duties. In May 1999, pursuant to their ground rules agreement, the parties implemented all of the agreed upon articles in their initial CBA. This award provides the parties with resolution of the two articles remaining in dispute.

ISSUES AT IMPASSE

    In Article 14, Discipline and Adverse Actions, the parties disagree over (1) whether employees should be permitted to have Union representation during counseling and warning sessions with supervisors; (2) whether a supervisor should be required to advise an employee prior to issuing an oral admonishment or presenting a letter of reprimand that the employee may have a Union representative present; and (3) whether the utilization of an advisory arbitration procedure should be by mutual consent of the parties. In Article 26, Merit Promotion, the parties’ dispute centers around the number of qualified applicants for a vacancy that would be necessary to convene review by a rating panel, and whether bargaining-unit employees should receive priority consideration for vacant bargaining-unit positions.

POSITIONS OF THE PARTIES

I. Article 14, Discipline and Adverse Actions

    a. Union Representation Issues

    1. The Union’s Position

    The Union proposes that employees be afforded the opportunity to have a Union representative present during non-disciplinary meetings with supervisors when an employee is to be counseled or issued a warning concerning inappropriate conduct. Additionally, with respect to meetings concerning oral admonishments and the issuance of letters of reprimand by supervisors,(2) which are disciplinary actions, the Union proposes that supervisors should be required to inform employees up front of their right to Union representation during such meetings.

    In regard to counselings and warnings, the Union maintains that, although they are not formal disciplinary actions, it would be prudent to have a Union representative present at the meetings because he or she could diffuse a potentially confrontational encounter between the supervisor and employee and assist in swift resolution of the problem before it escalates into a grievance. A Union representative may be able to elicit facts about the situation giving rise to the counseling or warning which the employee may be reticent to bring to the attention of a supervisor. Often employees are uncomfortable presenting exculpatory facts or defending themselves before supervisors who have a higher military rank than the employee; thus, the presence of a Union representative may "level the playing field." Union intervention at an early stage of a problem may forestall the need for progressive disciplinary action against the employee which can occur when a conduct problem is not resolved early on. Contrary to the Employer’s assertion, Union representation at counseling and warning sessions is fully negotiable even though such proceedings are not formal disciplinary actions. In this regard, other state components of the National Guard Bureau and ACT chapters have negotiated agreements which provide employees with Union representation during counseling and warning sessions with supervisors. There is nothing preventing the parties from agreeing to similar provisions and, in fact, the agency’s own regulations, Technician Personnel Regulation (TPR) 752, contemplate that the parties may negotiate representation rights with respect to counseling and warning sessions.(3)

    With respect to issuances of oral admonishments and letters of reprimand, the onus should be on supervisors to notify employees of their right to Union representation during those proceedings because employees tend not to initiate requests for Union representation. An employee is more likely to ask for Union representation if the employee knows that the supervisor acknowledges this right and invites the employee to seek assistance from the Union. The annual notice which management issues to employees informing them of their statutory rights to Union representation is insufficient in raising employee awareness about their representational rights. Furthermore, supervisors should be compelled to notify employees of their right to Union representation when disciplinary action is to be taken against employees because evidence exists which demonstrates that some supervisors do not want Union representatives to intervene on behalf of employees during such meetings. In support of this contention, the Union submitted into evidence a document, purportedly notes written by a supervisor, which detail the supervisor’s agenda for a meeting with an employee on a conduct problem. The notes, which state that the employee is to be instructed not to involve the Union in the matter,(4) are offered to show that some supervisors are hostile to the presence of Union representatives during meetings with employees on conduct matters. Finally, the Union notes that since oral admonishments and letters of reprimand can lead to adverse actions which employees cannot challenge through binding arbitration, in order to ensure that employees are provided with due process, the Union should be allowed to intervene on behalf of employees early on before a conduct problem escalates into an adverse action.

2. The Employer’s Position

    The Employer opposes both Union proposals. It maintains that employees do not have a statutory right to Union representation during counseling or warning sessions because those meetings are non-disciplinary in nature and intended to be non-adversarial. Interjecting a Union representative would greatly increase the likelihood of a confrontation, thereby diminishing the purpose of the meetings which is for the supervisor to communicate to the employee that a conduct problem exists which needs to be rectified. Furthermore, allowing employees to be represented by the Union during counseling and warning sessions would be contrary to TPR 752 Chapter 1-1(a) which provides that such meetings are "private matter(s) between the technician and his/her supervisor."

    With respect to disciplinary proceedings, the Employer proposes that a "technician may have a labor organization representative if so desired" and "if the technician requests representation, the supervisor will not proceed until the labor organization representative is present." The Employer, however, objects to requiring supervisors to notify employees of their representational rights during such meetings. The Employer already takes steps annually to notify bargaining-unit employees of their statutory rights to Union representation. Moreover, the Union’s proposal, which would place the notification requirement directly on the supervisor, would create a procedural loophole for an employee to avoid disciplinary action in the event that a supervisor failed to notify the employee of his or her right to be represented during an oral admonishment or when issued a letter of reprimand. While the Employer agrees that a technician may have a Union representative present during such meetings, and that the supervisor will not proceed until the labor organization representative is present, the employee should be required to initiate the request for Union representation without being reminded by management of these rights. As to Union Exh. No. 1, neither the supervisor who allegedly authored the notes nor the employee who attended the meeting are available to verify the contents of the document or what transpired during the meeting. Therefore, the document is inherently unreliable and should be given no weight.

CONCLUSIONS

    Having carefully considered the parties’ proposals and positions, I find that the dispute over representational rights and responsibilities should be resolved on the basis of the Employer’s position on the merits.(5) As the Agency regulations indicate, and the parties do not dispute, meetings between employees and supervisors for the purpose of providing counseling or a warning about inappropriate employee conduct are not intended to be adversarial in nature but, rather, to convey information in a "friendly" and/or "business-like" way that may lead to the elimination of the problem.(6) Interjecting the presence of a Union representative would, in my view, potentially change the intended tenor of these meetings into more confrontational encounters. No evidence was provided by the Union that counselings or warnings have been the subject of any employee grievances. Nor is there any indication in the record that counselings or warnings have been part of a progressive disciplinary process against any employee which, otherwise, might indicate a need for Union representation during non-disciplinary meetings to correct alleged employee misconduct. With respect to the Union’s proposal that supervisors inform employees of their right to Union representation during oral admonishments and the presentation of letters of reprimand, there is no indication in the record that employees have been reluctant to request the presence of a Union representative during disciplinary meetings with management or that employees have been denied requests for Union representation in those circumstances. Finding that no demonstrated need exists for the imposition of the Union’s proposals, the parties shall resolve their impasse on the basis of the Employer’s position.

    b. Advisory Arbitration

    1. The Union’s Position

    The Union proposes that employees be permitted, without concurrence of the Employer, to use advisory arbitration as an appeal procedure for review of an adverse action.(7) The State Adjutant General would continue to retain final decision-making authority on the adverse action, as the National Guard Technicians Act so requires.(8) An employee who is the recipient of an adverse action should have the right to seek review through advisory arbitration because it is unlikely that the Employer would ever mutually agree to utilize the procedure.(9) Thus, although the parties have agreed that advisory arbitration is one of three procedures available to employees for review of an adverse action, the "option" of using advisory arbitration would be meaningless if, as a condition precedent to its use, the Employer must concur. Employees do not perceive that the other two procedures available to them for challenging adverse actions, either direct review by the State Adjutant General or through an administrative hearing conducted by an employee of the National Guard Bureau, are fair and equitable. Employees should have available to them a procedure where a record could be developed and a recommendation for resolution issued by an outside neutral, that is, someone who is not affiliated with the National Guard Bureau and has "no preconceived interpretation of the Agency’s regulations." Moreover, the Union is willing to share the expenses for advisory arbitration so the financial burden would not belong solely to the Employer as it is when an appeal is through an administrative hearing conducted by a National Guard hearing examiner. The Employer should be assured that the Union would not over-use advisory arbitration as the procedure for appealing adverse actions because the Union has certain financial constraints; rather, it is likely to advocate use of advisory arbitration particularly when the adverse action involves an underlying dispute over the interpretation and application of regulations.

2. The Employer’s Position

    The Employer proposes that "advisory arbitration [] be used if agreed to by both parties." Although Agency regulations do not contemplate the use of advisory arbitration, the Employer is willing to allow the procedure to be used under limited circumstances; that is, when both parties consent to use it. Advisory arbitration should be used infrequently because it tends to dilute the State Adjutant General’s authority and merely adds another appeals option which can create confusion among employees. There is no need to give the Union and employees carte blanche to use advisory arbitration because, since 1997, when the Union was certified as the exclusive representative of bargaining-unit employees, there have not been any appeals of adverse actions through the existing administrative hearing examiner procedure; this demonstrates that since employees do not use the existing process, there is little need to add yet another one to the mix. Contrary to the Union’s contention, the administrative hearing appeals procedure provided for in the TPR is a fair process; hearing examiners are well trained in administrative hearing procedures and, to help ensure their neutrality, they always are assigned from a National Guard activity outside of Arkansas.

CONCLUSIONS

    After carefully evaluating the arguments and evidence presented on this issue, I conclude that the parties’ impasse should be resolved on the basis of a modified version of the Union’s proposal, which would make it clear that while employees may "file for" or request advisory arbitration, the Union would ultimately determine whether to utilize the procedure. It is understandable that employees may have a perception that the State’s administrative procedure for appealing adverse actions is skewed in favor of the Employer because the hearing examiner is an employee of the National Guard Bureau and the State Adjutant General is the final arbiter of the appeal. In my view, in order to instill employee confidence in an appeals process, they should be provided with the option of requesting a procedure, conducted by a neutral from outside the Agency, who has no pre-existing allegiance to either party to the proceeding. As the record testimony discloses, since at least 1997, bargaining-unit employees have not used the State’s administrative hearing examiner procedure to appeal adverse actions. This may be because, as the Union contends, employees lack confidence in the process. Providing employees with access to a procedure where the designated neutral has no affiliation with the National Guard Bureau, may help assure employees that the procedure is likely to lead to a fair and equitable outcome and encourage employees to exercise due process rights which, heretofore, they have not pursued. With respect to the Employer’s argument that the financial burden on the parties for advisory arbitration is likely to be significant if employees have unfettered discretion to invoke that procedure,(10) I shall modify the Union’s proposal to permit the Union, rather than employees, to make the final determination on whether to invoke advisory arbitration on behalf of employees who "file for" or have "requested" to utilize the procedure. This adjustment may provide a "check" on any excessive use of the procedure because the Union, ultimately, would determine whether to use advisory arbitration after weighing whether it has the financial resources to commit to the proceeding.

II. Article 26, Merit Placement(11)

    a. Areas of Consideration for Vacancies

    1. The Union’s Position

    The Union proposes the following:

    Section 8: Areas of Consideration

The areas of consideration for each position vacancy announcement will be in the following manner and sequence:

a. Bargaining-unit positions:

(1) Area one: All civilian excepted (service) and/or competitive (service) technicians currently employed.

(2) Area two: All members of the Arkansas Air National Guard or those eligible for membership.

b. For vacant bargaining-unit positions, the initial area of consideration will be all civilian technicians (excepted and/or competitive) in the bargaining unit, specifically excluding all AGR(12) personnel. Vacant bargaining-unit positions made (sic) be announced concurrently. In the event the announcement is concurrent, non-bargaining unit candidates, including any AGR personnel, will not be submitted to the selection official for consideration until those qualified bargaining-unit employees, if any, have been given first consideration and not selected.

c. For vacant competitive positions, the initial area of consideration will be currently employed employees (sic) technicians (excepted and/or competitive). In the event there are no qualified applicants, the DOD stopper list must be cleared prior to any announcements outside the current workforce. Competitive employees who qualify for positions advertised as area one, will be considered as area one candidates for the purposes of initial competition as provided in Section 8b above.

According to the Union, for purposes of Section 8, the "area of consideration" means the order in which the Employer would consider particular groups of applicants for vacancies. For purposes of the merit placement plan in general, however, the "area of consideration" refers to the source from which the Employer determines to seek candidates for a vacancy. The Union maintains that its proposal would allow the Employer to determine how expansively a vacancy would be announced and, therefore, it would not interfere with the Employer’s right under 5 U.S.C. § 7106(a)(2)(C)(ii) to select from any appropriate source. Rather, the proposal would prescribe only the order in which groups of qualified candidates would be referred to the selecting official, with bargaining-unit employees granted "first consideration" for vacant bargaining-unit positions. The proposal does not limit the sources from which the Employer may seek candidates, and it specifically addresses situations where the Employer determines to announce vacancies "concurrently," as open to both bargaining-unit and non-bargaining unit candidates. The proposal is similar to one found negotiable by the Federal Labor Relations Authority (FLRA) in American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Navy Resale Activity/Navy Exchange Naval Weapons Station, Charleston, South Carolina, 35 FLRA 1128, 1132 (1990) (Proposal 2), ("a proposal which requires first consideration of employees within a bargaining unit when filling vacancies, but does not prevent management from timely considering other applicants or expanding the area of consideration once bargaining-unit employees have been considered, does not directly interfere with management’s right to select from any appropriate source.") See also National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422 (1987) (provision 1, requiring the agency to give first consideration to its employees, held to be a negotiable procedure); Association of Civilian Technicians, New York State Council and State of New York, Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475, 477 (1983) (proposal requiring "full consideration" of bargaining-unit applicants does not preclude the agency from expanding the area of consideration or making a selection from any appropriate source); and Association of Civilian Technicians, Inc., Pennsylvania State Council and Adjutant General, Department of Military Affairs, Pennsylvania, 4 FLRA 77 (1980) (proposal that defines the initial area of consideration and permits an expansion of that area of consideration when filling vacancies, does not conflict with section 7106(a)(2)(C)).

    On the merits of its proposal, the Union maintains that bargaining-unit employees should be afforded priority when the Employer is filling positions within the bargaining-unit. Because the Employer has been considering bargaining-unit applicants and AGR applicants concurrently for positions, AGR employees more often than not are being selected for the positions. According to the Union, the reason for this is that AGRs do not have to meet the higher qualification standards which civilian technicians are required to meet. Moreover, AGRs tend to have a certain "gratis" among those selecting officials who are military personnel which unfairly increases the chances of their selection for positions. Separating the order in which categories of applicants are considered should interject fairness into the process and level the playing field between bargaining-unit civilian technicians and AGRs when competing for positions. Furthermore, many other collective-bargaining agreements between state National Guard Bureaus and labor organizations contain similar provisions to those proposed by the Union which demonstrates that the Employer’s negotiability allegations are without merit because the Department of Defense has approved similar wording.

2. The Employer’s Position

    The Employer proposes the following:

    Section 8. Areas of Consideration:

The areas of consideration for each specific position vacancy announcement will be in the following manner and sequence:

a. Bargaining-unit positions:

1. Arkansas Air National Guard Technicians at Little Rock AFB

2. Arkansas Air National Guard Technicians

3. Arkansas Army National Guard Technicians

4. All members of the Arkansas ANG/ARNG

5. Individuals who are not members of the National Guard but who are eligible to acquire membership in an available and compatible military grade for excepted technician positions.

b. For vacant bargaining-unit positions the initial area of consideration will be all Technicians in the bargaining unit. Vacant bargaining-unit positions may be announced concurrently as Technician and AGR.

The Employer states that under its proposal bargaining-unit employees would be among those in the first area of consideration. However, because AGR personnel constitute about one half of the workforce within the Arkansas Air National Guard, the Employer has an obligation to provide them with career enhancing opportunities as well as fair and equitable treatment when filling vacancies. Therefore, the proposal would allow the Employer to advertise positions simultaneously as a technician position or an AGR position, giving the Employer the option of filling the job with either military or civilian personnel. Having a larger area of consideration is more likely to help provide the Employer with the best qualified applicants for a position.

    The Union’s proposal, on the other hand, which would exclude AGR personnel from receiving priority consideration for vacancies within the bargaining unit, is contrary to law because the Union is attempting to negotiate working conditions on behalf of military personnel. The effect of the Union’s proposal for priority consideration for bargaining-unit employees would be to exclude others from initial consideration thereby delaying the selection process and interfering with the Employer’s substantive rights to select employees from any appropriate source. The Employer cites, as presenting an analogous situation, Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) (BATF), where the court determined that a proposal, which would require the agency to rank and consider current employees for promotion before soliciting outside applications, was nonnegotiable because not only would the proposal delay the exercise of the employer’s right to select employees from any appropriate source, the practical consequent of the proposal is that management "may not consider or even solicit applications from outside the agency until it has finished ranking and considering eligible agency applications." Id. at 822. The court determined that "(w)hile it is true that the proposal does not prevent management from ultimately considering candidates from beyond the agency, [] it would create pressure on even the most careful managers to promote a reasonably competent agency employee rather than leave a position unfilled during the time it would take to initiate and complete a late-starting search for a more qualified outside candidate." Id. The result, the court determined, "is inconsistent not only with section 7106(a)(2)(C), but also the (Statute’s) larger goal of promoting ‘an effective and efficient Government.’" Id. The Employer also argues that, to the extent the Union’s proposal would require management to evaluate military technicians (AGRs) for bargaining-unit positions under the identical qualifications criteria used to evaluate civilian technician applicants, the proposal concerns the military aspects of AGR service and, therefore, is outside the duty to bargain. See American Federation of Government Employees, Local 3013 and U.S. Department of Defense, National Guard Bureau, Maine Air National Guard, Augusta, Maine 40 FLRA 203 (1991) (where Proposal 3, which would require all applicants to be evaluated using identical criteria, was found to be outside the duty to bargain because it would require that military technician applicants be evaluated for bargaining-unit positions under the identical criteria used to evaluate civilian technicians; the proposal encompassed matters solely within the purview of the military).

CONCLUSIONS

    With respect to the obligation-to-bargain contentions raised by the Employer, interest arbitrators (and the Panel) are guided by the FLRA’s decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell). Under Carswell, interest arbitrators have the authority to resolve an impasse relating to a proposal where a duty-to-bargain question has been raised by applying existing FLRA case law. That is, where the FLRA has previously decided that a proposal which is substantively identical to one before an interest arbitrator is negotiable, the arbitrator may apply that precedent to the proposal before him or her and resolve the dispute. With respect to the Employer’s allegation that the Union’s proposal is outside the duty to bargain because it interferes with management’s rights under 5 U.S.C. § 7106(a)(2)(C) to fill positions and make selections for appointments from any appropriate source, the FLRA has found proposals, substantially similar to the one offered by the Union, to be within the duty to bargain. In addressing the negotiability of a proposal that would require the selecting official to consider well qualified "area 1," i.e., bargaining unit, candidates first, the FLRA stated in Association of Civilian Technicians, Volunteer Chapter 103 and U.S. Department of Defense, Tennessee National Guard, Nashville, Tennessee, 55 FLRA 562 (1999), that a "proposal that requires an agency to give first consideration to bargaining-unit employees when filling vacant positions, but does not prevent management from timely considering other applicants or expanding the area of consideration once bargaining-unit employees are considered, does not directly interfere with management’s right to select from any appropriate source under section 7106(a)(2)(C) of the Statute." See, e.g., Laurel Bay Teachers Association, OEA/NEA and U.S. Department of Defense, Stateside Dependents Schools, Laurel Bay Schools, Laurel Bay, South Carolina, 49 FLRA 679, 687 (1994) (citing National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1287-88 (1992); and American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1493-94 (1992). The Employer’s reliance on the Court of Appeals decision in BATF is inapposite because in BATF the proposal would have prohibited management from even soliciting applications from outside the agency until it had finished ranking and considering eligible agency applications. As the court stated, the "proposal inhibits management’s ability to look beyond the agency for potential employees, and it would be naive to believe it had any other purpose." BATF at 822. The Union’s proposal, however, presents a different situation. While it may result in some delay of the Employer’s consideration of applicants outside of Area 1, it would not prohibit the Employer from simultaneously soliciting candidates from outside Area 1. The proposal offered by the Union, therefore, is merely procedural in nature and only would delay the submission to the selecting official of non-bargaining unit candidates until those qualified bargaining-unit employee candidates have been considered first. Thus, there are no apparent substantive limitations on the Employer’s ability to solicit applicants from other sources as there are in BATF.

    Also unconvincing is the Employer’s argument that the Union’s proposal may be nonnegotiable to the extent that it would require military technicians to be evaluated for bargaining-unit positions under the identical criteria used to evaluate civilian technicians. Nowhere in the Union’s proposal in Section 8 is there any indication of such a requirement, nor can one reasonably be inferred from the plain meaning of the section. Accordingly, since there is no factual support in the record that would give credence to the Employer’s allegation, and under the authority granted to interest arbitrators under Carswell, I shall proceed to resolve the dispute on the merits of the parties’ proposals.

    Upon careful review of the parties’ proposals and positions on this issue, I have determined that the dispute should be resolved on the basis of a modified version of the Union’s proposal. The Union articulates the traditional union interest that promotion opportunities for bargaining-unit members be enhanced to the maximum extent possible. Having weighed the importance of this concern, along with the Union’s assertions that current procedures for filling positions may be tilted in favor of other groups of applicants, against the Employer’s interest in finding the best qualified candidates for vacancies, I am persuaded, on balance, that bargaining-unit applicants should be given the benefit of first consideration for vacant bargaining-unit positions. Adoption of the Union’s proposal would provide a procedural benefit to bargaining-unit employees that may help bolster their confidence that the selection process is fair and equitable. Moreover, it would not interfere with the Employer’s substantive right to determine to fill a position or the appropriate source of applicants for it. The provision addresses only the order in which candidates are referred to the selecting official, and would do little to delay the ultimate decision to select a candidate from any source management prefers. I shall modify the Union’s proposal, however, to eliminate the requirement in section (b) that the Employer make a determination not to select qualified bargaining-unit candidates for the position before non-bargaining-unit candidates are submitted to the selection official for consideration. Requiring bargaining-unit applicants to be rejected before the Employer is permitted to consider other candidates, as the Union proposes, could be perceived as an impediment to the Employer’s right to select employees from any appropriate source. This modification is to make it clear that the Employer is not prohibited from reconsidering applicants who were initially rejected after being afforded first consideration for the position. Ultimately, this change could prove to be a benefit to bargaining-unit employees because there would not be any restriction on the Employer from reconsidering and selecting them for positions even after an initial rejection. Accordingly, for these reasons, the parties shall adopt the Union’s proposal, modified in section 8(b) to eliminate the phrase "and not selected."

    b. Processing Applications

    1. The Union’s Proposal

    The Union proposes the following wording for Section 12(b):

If there are five (5) or more qualified applicants,(13) the HRO will appoint a rating panel for the purpose of rating the candidates to determine the best qualified candidates. If there are less than five (5) applicants, the HRO will provide the selecting official with the applications and selection certificate for evaluation.

The Union contends that when the Human Resources Office (HRO) determines that there are at least five qualified applicants for a position, a rating panel should be convened to assess and determine the best qualified applicants. While there may be some administrative burden on the Employer to convene the panels, having a panel rate applicants is the fairest way to evaluate them. When a single individual, instead of a panel, rates applications, there may be a tendency to overlook certain information or focus on a favored applicant. The Union is not proposing that it have any involvement on the panel; nor would the proposal interfere with the Employer’s discretion to determine the composition of the panel, within the parameters previously agreed upon by the parties. Furthermore, the proposal would not interfere with the Employer’s decision-making but, rather, it would promote the use of a "competent process" to help ensure that fair and equitable determinations are made with respect to the rating of candidates.

2. The Employer’s Position

    The Employer proposes the following wording for Section 12(b):

If there are more than five (5) qualified applicants (new hire) or ten (10) qualified applicants (onboard), the HRO will appoint a rating panel for the purpose of rating candidates to determine the best qualified candidates. If there are less than three (3) onboard qualified applicants for an advertisement designated as new hire, the HRO will automatically extend to the next area of consideration to provide the selecting official with the number of candidates indicated above.

The Employer contends that it lacks the personnel resources to convene rating panels as frequently as the Union’s proposal would require. The Employer estimates that each year there are approximately 80 bargaining-unit positions advertised,(14) not to mention all of the non-bargaining unit positions; in fact, thus far in Fiscal Year 2000, there have been 176 positions advertised state-wide in both bargaining unit and non-bargaining-unit categories. Using a panel to rate qualified applicants is a "valued process," but the number of qualified applicants specified in the Union’s proposal is "too restrictive" to trigger convening a panel. There should be a "broader representation of current onboard employees" before a panel is used in the rating process; ten qualified "onboard" applicants for a position is a more reasonable number than that proposed by the Union.

CONCLUSIONS

    Having considered the parties’ proposals, evidence and arguments with respect to this issue, I shall order that it be resolved on the basis of a compromise solution. In my view, there are aspects of both parties’ positions which have merit. The Union makes a compelling argument that a fairer assessment of applicants to determine the best qualified is more likely to be made through an evaluation conducted by a panel rather than by a single individual. While the Employer, too, recognizes the "value" of utilizing a panel process, it persuasively argues that having to convene a rating panel to assess as few as five qualified applicants for a position could be administratively burdensome on the Employer because it lacks the manpower that would be necessary to assemble panels as often as the Union’s proposal would require. One of the key distinctions between the parties’ proposals is that the Employer’s proposal differentiates between applicants who would be "new hires" and applicants who already are "onboard." The only rationale provided by the Employer is that it believes there should be a "broader range" of onboard applicants (10) before a rating panel is used to assess the knowledge, skills and abilities of those applicants. In my view, the Employer has not provided sufficient support for the distinction it is attempting to make between onboard applicants and those who would be "new hires." I find, therefore, that a better resolution would be to require the Employer to convene a rating panel whenever there are at least seven qualified applicants for a position, regardless of the applicant source. Increasing from five to seven the number of qualified applicants that would be needed for the convening of a panel to rate applicants should help to alleviate some of the Employer’s administrative burden in this regard.

DECISION

    In resolution of the issues, the parties shall adopt the following:

I. Article 14, Discipline and Adverse Actions

    a. Union Representation Issues

The parties shall adopt the Employer’s proposal on the merits.

    b. Advisory Arbitration

    The parties shall adopt the Union’s proposal modified to include a statement that "the Union has sole authority to invoke advisory arbitration if that procedure is requested by a bargaining-unit employee."

II. Article 26, Merit Placement

    a. Section 8, Areas of Consideration

    The parties shall adopt the Union’s proposal, with the following modification to the last sentence in section 8(b):

In the event the announcement is concurrent, non-bargaining-unit candidates, including any AGR personnel, will not be submitted to the selection official for consideration until those qualified bargaining-unit employees, if any, have been given first consideration.

    b. Section 12(b), Processing Applications

    The parties shall adopt the following compromise wording:

If there are seven (7) or more qualified applicants, the HRO will appoint a rating panel for the purpose of rating the candidates to determine the best qualified candidates. If there are less than seven (7) applicants, the HRO will provide the selecting official with the applications and selection certificate for evaluation.

 

Donna M. DiTullio

Arbitrator

August 3, 2000

Washington, D.C

 

1.National Guard civilian technicians are unique, dual-status employees who must, as a condition of their civilian employment, become and remain members of the National Guard. See National Guard Technicians Act, 32 U.S.C. § 709(b), (d), and (e). As the U.S. Court of Appeals for the District of Columbia Circuit explained:

National Guard technicians are both civilian employees and enlistees in National Guard units. The two worlds they simultaneously inhabit are understandably governed by very different rules of employee-employer relations. As members of the Guard, technicians are subject to military authority; as civilian employees, they are covered by the . . .[labor Statute], which permits them to bargain over conditions of their employment. . . .

National Federation of Federal Employees, Local 1623 v. Federal Labor Relations Authority, 852 F.2d 1349, 1350-51 (D.C. Cir. 1988).

2.The parties agree that an employee may have a Union representative present during an oral admonishment or the presentation of a letter of reprimand by a supervisor.

3.In support of this contention, the Union cites TPR 752, Chapter 1-1(b) which provides, in pertinent part, that:

(c)ollective bargaining agreements and/or State supplements to this TPR may contain additional procedures/requirements (e.g., representation rights) and should be reviewed before counseling or warning a technician.

4.The supervisor’s notes, apparently concerning what he would say to the employee during their meeting, state:

Do not allow the Union rep to get involved; it is their time to listen and your time to talk. Let him (the Union representative) know this is not the time for it and he can make an appointment at a later time to discuss whatever he would like to discuss.

(Union Exh. No. 1.)

5.Having directed the adoption of the Employer’s proposal on the merits there is no need to address the Employer’s allegations that the Union’s proposal for Union representation at counseling and warning sessions with supervisors is outside the duty to bargain.

6.See TPR 752, Chapter 1-1, which describes a counseling as “a friendly business-like exchange of information guided by a supervisor” and a warning as also providing a “business-like exchange of information” but with a “more serious intent.”

7.The parties have agreed that advisory arbitration is one of three procedures available to employees for review of adverse actions. They disagree, however, over whether the use of advisory arbitration should require their mutual concurrence.

8.See National Guard Technicians Act, 32 U.S.C. § 709(e)(4).

9.The Union’s proposal would permit employees to “file for” advisory arbitration. It also refers to advisory arbitration as a procedure “requested” by an employee.

10.The parties agreed to share the expenses associated with advisory arbitration.

11.The parties have agreed that the Merit Placement article “will be used for filling bargaining-unit vacancies in the excepted and competitive service of the technician work force [].”

12.