DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU IOWA ARMY NATIONAL GUARD JOHNSTON, IOWA and HEARTLAND CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of

DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

IOWA ARMY NATIONAL GUARD

JOHNSTON, IOWA

and

HEARTLAND CHAPTER, ASSOCIATION OF

CIVILIAN TECHNICIANS

 

Case No. 00 FSIP 148

DECISION AND ORDER

   The Heartland Chapter, Association of Civilian Technicians (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Defense, National Guard Bureau, Iowa Army National Guard, Johnston, Iowa Employer).

   Following an investigation of the request for assistance, arising from negotiations over procedures for filling vacancies, the Panel determined that the dispute should be resolved on the basis of written submissions from the parties. After considering the entire record, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a Decision and Order. Written submissions and rebuttal statements were made pursuant to this procedure, and the Panel has now considered the entire record.(1)

BACKGROUND

   The Employer provides operational military units to support the United States Army. The bargaining unit consists of approximately 335 Wage Grade (WG) and General Schedule (GS) civilian technicians.(2) Bargaining-unit employees, who are stationed at approximately 20 installations throughout the state of Iowa, perform maintenance work on military weapons, aircraft, and vehicles. Representative occupations include automotive mechanic, aircraft mechanic, electronics inspector, armament repairman, helper, and clerk, ranging in grades from GS-4 through -11 and WG-5 through -12. The dispute herein arose during negotiations over a successor collective-bargaining agreement (CBA). The parties have reached agreement on all provisions with the exception of Article 5, Merit Promotion and Internal Placement, where they disagree over Section 5-13(c), concerning "Evaluating and Rating Applicants for Excepted Service Positions."(3)

   Article 5 has been the subject of two previous requests for Panel assistance from the parties. In 1997, with the Panel’s assistance, the parties implemented their first CBA. In this regard, in Department of Defense, National Guard Bureau, Iowa Army National Guard, Johnston, Iowa and Heartland Chapter, Association of Civilian Technicians, Case No. 97 FSIP 50, former Panel Chair Betty Bolden, acting as a mediator-arbitrator, met with the parties in Johnston, Iowa, to assist them in the resolution of their Merit Promotion Article; the issues concerned priority consideration for bargaining-unit employees when applying for vacant positions and the use of rating and ranking panels for evaluating candidates for vacant positions. With Chair Bolden’s assistance, the parties reached a voluntary resolution of all issues. Upon review under 5 U.S.C. § 7114(c), however, the Agency Head declared nonnegotiable Section 5-13 of the Merit Promotion and Internal Placement Article, contending that it interfered with management’s right under 5 U.S.C. § 7106(a)(2)(C) to fill positions from any appropriate source.

   The Union then filed with the Federal Labor Relations Authority (FLRA) a request for review of the Employer’s allegation of nonnegotiability. The FLRA scheduled a fact-finding hearing but, before it was held, the Union withdrew its request for review. The parties then resumed negotiations, with the Union proposing additional wording in Section 5-13 which it believed would cure the Employer’s negotiability concerns. When the parties still were unable to reach agreement, the Union filed a request for assistance with the Panel in Department of Defense, National Guard Bureau, Iowa Army National Guard, Johnston, Iowa and Heartland Chapter, Association of Civilian Technicians, Case No. 99 FSIP 78. During the Panel’s investigation of the case, the Employer declared the Union’s proposal nonnegotiable. Ultimately, the Union withdrew its request for Panel assistance and submitted to the FLRA another request for review of an Employer allegation of nonnegotiability. Subsequently, the FLRA determined in Association of Civilian Technicians, Inc., Heartland Chapter and U.S. Department of Defense, National Guard Bureau, Iowa National Guard (Iowa National Guard), 56 FLRA No. 30 (March 31, 2000), that the Union’s proposal was within the duty to bargain, essentially relying on the newly-added provision in the Union’s proposal which would give management the authority to select, or not to select, the candidate who emerges as the best qualified by utilizing the selection procedure proposed by the Union.

   Following the FLRA’s negotiability determination, the parties resumed bargaining over Section 5-13. In Section 5-13(a) and (b), the parties have agreed to a point system for rating the knowledge, skills and abilities (KSAs) of applicants. Ultimately, they reached an impasse over Section 5-13(c), and the Union submitted this third request for Panel assistance.

ISSUES AT IMPASSE

   Within Section 5-13(c), the parties essentially disagree over: (1) whether the rating and ranking process should be used to narrow the field of qualified applicants; (2) the extent to which the selecting official must justify, in writing, the non-selection of any Area 1 candidate(4) for a position before considering Area 2 candidates; and (3) whether any subsequent reconsideration and selection of a bargaining-unit candidate previously rejected by the selecting official also must be justified in writing by the selecting official.

POSITIONS OF THE PARTIES

1. The Employer’s Position

The Employer proposes the following wording:

When six or more Area 1 applicants are qualified for a vacant position, the field will be narrowed through rating and ranking in accordance with the National Guard Bureau Technician Personnel Regulation (NGB TPR) 300.335 A-12 and A-14. Rating and ranking of Area 1 candidates constitutes first consideration of Area 1 candidates. The rankings shall be considered by, but are not binding on, the selecting official. Nothing in this Article prohibits the selecting official from receiving or considering other information or analyses regarding the qualifications of the candidates. At any point in the process of considering candidates, the selecting official may make a selection.(5)

The proposal would provide a procedure for narrowing the field of Area 1 candidates to be considered by the selecting official. It is consistent with the purpose for using a rating and ranking process; that is, to refine the list of qualified candidates to help ensure that the best suited is selected for the position. The Employer maintains that its proposal does not conflict with other agreed-upon sections of Article 5, but merely gives meaning to the rating and ranking process. Furthermore, it would provide bargaining-unit employees with "first consideration" for the position while allowing management to retain its right, after considering the ratings and rankings, to select a candidate from any appropriate source.

    The Union’s proposal, on the other hand, would expand the agreed-upon requirements set forth in Section 5-16, that selecting officials provide "written reasonable justification" to the Human Resources Office (HRO) before moving on to consider Area 2 candidates. Moreover, under Section 5-16, an Area 1 candidate already is permitted to request and receive information from the selecting official regarding potential areas of improvement. Therefore, the detail and amount of "reasonable justification" that the selecting official would be required to provide under the Union’s proposal is redundant and unnecessary. Furthermore, it is not supported by evidence of a demonstrated need because during the past 4 years, a rating and ranking process was used only three times and, in all instances, an Area 1 candidate was selected for the position even though Area 2 candidates also were considered. The proposal is only intended to create a "paper trail" to enable the Union to "audit" and second guess the Employer’s selection of candidates to fill positions. Its implementation would be burdensome and delay the expeditious filling of vacancies.

2. The Union’s Position

The Union proposes the following:

The rankings determined under paragraph (b) shall be considered by, but are not binding on, the selecting official. Nothing in this Article prohibits the selecting official from receiving or considering other information or analyses regarding the qualifications of candidates. Although under Articles 5-9 and 5-15 rankings and areas of consideration determine the order in which lists of candidates are presented to the selecting official, rankings do not prohibit the selecting official from receiving any candidate list. After considering the Area 1 candidates and preparing a written reasonable justification for going forward to consider the Area 2 candidates–-including statement of the area or areas in which each Area 1 candidate could improve–-the selecting official may receive the list of Area 2 candidates. At any point in the process of considering candidates, the selecting official may make a selection. The candidate selected may be a candidate whom the official had considered during an earlier phase of the consideration process. If an Area 1 candidate is selected after Area 2 candidates have been considered, the selecting official shall submit to the HRO (Human Resources Office) a written statement of reasons addressing, and making any changes deemed appropriate to, the reasonable justification previously written concerning the candidate.

The proposal would add two procedural requirements to the selection process that are intended to ensure "rational, meaningful priority consideration of bargaining-unit applicants." The parties already have agreed in Section 5-16(b) that the selecting official, after interviewing the Area 1 candidates, must "provide written reasonable justification" for the forwarding of Area 2 candidates for consideration. The Union’s proposal merely would define what is to be included as part of the selecting official’s "reasonable justification." Wording that would require the selecting official to state in writing the areas where a non-selected Area 1 candidate could improve is merely incidental to a meaningful consideration of the bargaining-unit candidate. Moreover, it is neither onerous nor administratively burdensome on the selecting official because the written assessment could be accomplished just after the candidate has been interviewed when the matter would be fresh in the recollection of the selecting official.

    The second proposed requirement, that if the selecting official ultimately selects an Area 1 candidate after considering Area 2 candidates, the official prepare "a written statement of reasons addressing, and make any changes deemed appropriate to the reasonable justification previously written concerning that candidate," also is reasonable because it is appropriate for the selecting official to explain the decision. It is "not too much to ask that the official explain which desired improvements were not significant enough to preclude selection but were significant enough to warrant consideration of Area 2 candidates." Again, the written explanation would help ensure meaningful priority (first) consideration of bargaining-unit applicants. It also would require the creation of documentation which the Union could review in assessing whether better qualified bargaining-unit employees were bypassed for positions. The intent of the Union’s proposal is to elicit information which demonstrates that a selecting official has given serious consideration to bargaining-unit candidates, and that a structured thought process was used by the selecting official which led to a decision not to select a particular bargaining-unit candidate.

    The Employer’s proposal should not be adopted by the Panel because it conflicts with other provisions in Article 5, previously agreed to by the parties. In this regard, it seeks to utilize the rating and ranking process to narrow the field of Area 1 candidates who are to be considered by a selecting official. The parties, however, already have agreed in Section 5-15 that all qualified Area 1 candidates are to be referred to the selecting official.(6) Furthermore, the parties’ agreement in Section 5-15, that "candidates will be listed in order of ranking" indicates that the purpose of the rating and ranking process is to create a rank order of all qualified applicants rather than to eliminate lower ranking qualified candidates from the selection process. Also, that portion of the Employer’s proposal which provides that the "rating and ranking of Area 1 (bargaining unit) candidates constitutes first consideration of Area 1 candidates" is ambiguous because it does not provide any assurance that the selecting official is to give actual consideration to bargaining-unit applicants. The process of rating and ranking alone is not sufficient to constitute "first consideration" of bargaining-unit applicants and, in fact, "would eviscerate the accepted understanding of first consideration." Finally, contrary to Section 5-16(a), the Employer’s proposal could be interpreted to eliminate interviews as part of the selection process. That section requires that a personal or telephone interview be part of the evaluation process.

CONCLUSIONS

    Upon careful review of the evidence and arguments presented, we conclude that neither party’s proposal would provide a satisfactory resolution of the impasse. In our view, there appear to be aspects of both which may conflict with, or render ambiguous, other provisions in Article 5 which already have been agreed to. In this regard, the portion of the Employer’s proposal that contemplates a narrowing of the field of qualified Area 1 applicants through the rating and ranking process, appears to create a conflict with previously agreed-upon wording in Section 5-15, that all Area 1 applicants are to be referred to the selecting official. Furthermore, the parties have agreed in Section 5-16(a) that an "impartial interview of each eligible candidate listed on the referral and selection certificate" is one of the functions to be performed by the selecting official. Presumably, this was intended to be part of the process of providing first consideration to qualified bargaining-unit applicants, and would be inconsistent with the wording proposed by the Employer that mere rating and ranking "constitutes first consideration." Thus, the proposed wording would call into question what the parties meant by "first consideration" when they agreed to it in Section 5-9,(7) and whether the interview would be part of the process of providing first consideration for bargaining-unit candidates.

    Similarly, the Union’s proposal, which addresses the justification requirements that must be met by a selecting official who moves on to Area 2 candidates, or selects an Area 1 candidate after considering Area 2 candidates, also raises concerns that it would create conflict with other agreed-upon wording in Article 5. The parties already have agreed in Section 5-16(b) that "written reasonable justification" is to be provided to HRO in the event that the selecting official wants to move on to the consideration of Area 2 candidates. Moreover, the proposed wording appears redundant because the parties also have agreed in Section 5-16(c) that, upon request, a bargaining-unit applicant who was not selected for the vacancy "may request and will be provided by the selecting supervisor information as to an area or areas which could be improved." As to the proposed requirement that management justify in writing the rationale for selecting a bargaining-unit candidate for a position after initially failing to do so, we believe it could dissuade selecting officials from reconsidering Area 1 candidates. In this connection, the parties have agreed in Section 5-21 that non-selection for a position is non-grievable unless accompanied by a collateral claim of a procedural violation in the selection process. Since non-selection grievances generally are excluded from the grievance procedure, creating additional, more explicit documentation concerning areas where a non-selected bargaining-unit candidate could improve qualifications is not likely to change the outcome of the selecting official’s decision. Finally, the Union has not offered any evidence or argument to demonstrate a need for its proposal in light of the Employer’s unrebutted contention that since 1996, only bargaining-unit candidates have been selected for positions that were subject to a rating and ranking process, and no grievances ensued from those selections.

    Consistent with the foregoing analysis, we are persuaded that adopting either of the proposals would perpetuate, rather than bring to closure, the parties’ long-running dispute over Article 5. Accordingly, we shall resolve their impasse by imposing wording which contains those aspects of the proposals that are essentially undisputed and not redundant. This would maintain management’s rights under 5 U.S.C. § 7106(a)(2)(C) to select employees for positions. The inclusion of such wording also appears to be necessary, given the FLRA’s decision in Iowa National Guard, to preserve the negotiability of Section 5-13(a) and (b), where the parties have agreed on the numerical points that are to be allotted applicants in the assessment of their knowledge, skills and abilities for a position.(8)

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the parties’ failure to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under § 2471.11(a) of its regulations, hereby orders the following:

    The parties shall adopt the following wording for Section 5-13(c):

Although under Articles 5-9 and 5-15 rankings and areas of consideration determine the order in which lists of candidates are presented to the selecting official, rankings do not prohibit the selecting official from receiving any candidate list. The rankings shall be considered by, but are not binding on, the selecting official. The candidate selected may be a candidate whom the official had considered during an earlier phase of the consideration process. Nothing in this Article prohibits the selecting official from receiving or considering other information or analyses regarding the qualifications of the candidates. At any point in the process of considering candidates, the selecting official may make a selection.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

December 22, 2000

Washington, D.C.

 

1. During the course of the written submissions procedure, both parties modified their respective proposals. A Panel representative conducted two teleconferences with the parties in an effort to clarify their positions and explore settlement. Ultimately, the parties were unable to agree upon a resolution for their impasse.

2. Under the National Guard Technicians Act, 32 U.S.C. § 709 (1988), civilian technicians must maintain military membership in a National Guard unit and their military and civilian jobs must be compatible.

3. In July 2000, pursuant to the terms of the parties’ ground rules agreement, all agreed upon provisions in a successor CBA were implemented with the exception of Article 5.

4. Area 1 candidates are applicants from the bargaining unit; Area 2 candidates are all other applicants.

5. The last three sentences in the Employer’s proposal are substantively similar to wording in the Union’s proposal.

6. In this regard, Section 5-15, “Referral of Candidates,” provides that Following the evaluation of candidates, the HRO will refer all Area 1 candidates to the selecting official. Candidates will be listed in order of ranking on the NGB Form 300-6 (Selection Certificate.) Applications and supporting documents submitted by candidates will also be forwarded to the selecting official for each promotion certificate submitted to him. (Emphasis added.)

7. The parties have agreed in Section 5-9(b), “Area of Consideration,” that “(i)n the event the announcement is concurrent, non-bargaining unit candidates, will not be submitted to the selecting official for consideration until those qualified bargaining-unit employees, if any, have been given first consideration.”

8. See Iowa National Guard, 56 FLRA at 243, where the FLRA stated that “where a proposal prescribes a particular selection criterion, but also provides ma