DEPARTMENT OF DEFENSE COLD REGIONS RESEARCH AND ENGINEERING LABORATORY ARMY ENGINEERING RESEARCH AND DEVELOPMENT CENTER HANOVER, NEW HAMPSHIRE and LOCAL 4, CHAPTER 1, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF DEFENSE
COLD REGIONS RESEARCH AND
ARMY ENGINEERING RESEARCH AND
HANOVER, NEW HAMPSHIRE
LOCAL 4, CHAPTER 1, INTERNATIONAL
FEDERATION OF PROFESSIONAL AND
Case No. 01 FSIP 65
DECISION AND ORDER
The Department of Defense, Cold Regions Research and Engineering Laboratory (CRREL), Army Engineer Research and Development Center (ERDC), Hanover, New Hampshire and Local 4, Chapter 1, International Federation of Professional and Technical Engineers, AFL-CIO (Union) filed a joint request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119.
Following an investigation of the dispute, arising from negotiation over the implementation of the ERDC regulation on noncompetitive promotions, the Panel determined that the dispute should be resolved through an informal conference with a Panel representative. The parties were informed that if no settlement was reached, the representative would notify the Panel of the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. The Panel would then resolve the dispute by taking whatever action it deemed appropriate, including the issuance of a binding decision.
In accordance with the Panel’s determination, Panel Member John G. Wofford conducted an informal conference with the parties on June 14, 2001, at the CRREL facility in Hanover, New Hampshire. The parties were able to resolve all but one issue concerning the responsibilities of technical panels that review promotion applications.(1) Member Wofford has reported to the Panel, and it has now considered the entire record, including the parties’ positions and his recommendations for how the dispute should be resolved.
The mission of the CRREL is to gain knowledge of cold regions through scientific and engineering research. The Union represents approximately 100 professional employees at the CRREL who work as engineers and scientists in the DB-IV pay band (equivalent to grades GS-12 through -14). The unit is about a year old, and the parties have not yet negotiated an initial collective bargaining agreement.
The ERDC was established in 1998, as a consolidated entity consisting of four previously independent laboratories: the Waterways Experiment Station (WES), Vicksburg, Mississippi; CRREL, Hanover, New Hampshire; the Topographic Engineering Center, Alexandria, Virginia; and the Construction Engineering Research Laboratory, Champaign, Illinois. The laboratories participate in a demonstration project implemented in 1998 which essentially exempted them from the requirements of Title 5, creating a new personnel system for these components of the Army Corp of Engineers (ACE).(2) Under the demonstration project: (1) automatic within- grade pay increases are replaced by pay linked to performance; (2) the General Schedule is replaced by pay-banding, which establishes a wider pay range for a position; and (3) managers are provided broader discretion with regard to the distribution of performance awards.
New ERDC-wide regulations were promulgated on October 17, 2000, but were not applied to CRREL because the instant negotiations were still pending between the CRREL Union and ERDC management. Under those regulations, two ERDC-wide panels were created to evaluate candidates for noncompetitive promotions and make recommendations to the ERDC Director. The new regulations require that one of those panels is to be composed of all directors of the previously independent laboratories (called the Technical Management Panel under the regulations) and the other panel (called the Factor IV panel) is composed of a majority of non-supervisory researchers. These two panels were convened earlier in 2001, and reviewed applicants from all ERDC laboratories except CRREL, made recommendations with respect to such applicants to the ERDC Director, and promotions were granted. CRREL researchers who might have been eligible for and applied for promotions were excluded from consideration in the "first wave" of promotions under the new regulations.
ISSUES AT IMPASSE
The parties essentially disagree over two matters relating to the roles of the two ERDC-wide evaluation panels used to evaluate candidates for noncompetitive promotions:(3) (1) whether the Factor IV panel should also recommend scores for Factors I through III, and (2) whether applicants should be given written summary reasons if management alters the scores for Factors I through III.
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union’s proposal is as follows:
A technical panel (called a Factor IV panel in CR [Center Regulation] 690-1-4) consisting of a majority of non-supervisory researchers will review all material submitted by the applicant, determine the score for Factor IV and recommend to management the scores for Factors I-III. Management will audit the scores for Factors I-III. If management alters the scores for Factors I-III, it will provide written feedback to the applicant summarizing its reasons for doing so.
Participation by fellow researchers comports with the "long-standing, management supported [p]ast [p]ractice at CRREL and has been central to the development of CRREL as a world-class research organization." Factors I through III are interrelated with Factor IV; thus, the proposal would result in a "superior application of the RGEG/EDGEG" and is "in the spirit of those guidelines."(4) Adoption of the proposal would strengthen the importance of "the peer-review component of the evaluation process", thereby ensuring that the scientists and engineers who work at CRREL "buy-in" to the promotion program which is "fundamental to the scientific process." It was undisputed that expert witnesses agreed during the informal conference that the technical [Factor IV] panel "must consider contributions toward Factors I-III to evaluate Factor IV[,] and that it would not be a large additional burden to recommend scores [for Factors I-III]." Furthermore, the technical panel also includes management personnel who would ensure that issues important to management are considered. These officials could ensure that the CRREL Director is contacted to "solicit input on Factors I-III without imposing an undue burden" upon him.
2. The Employer’s Position
The Employer proposes that:
The Factor IV panel will score only factor IV and a separate panel consisting entirely of managers will score factors I-III without recommendations from the Factor IV panel.
If the Union’s proposal is adopted, it would be a change "in the current, corporate promotional panel process in effect for the remainder of the ERDC Laboratories." In addition, the Employer has no duty to bargain over the Union’s proposal because it violates management’s right to assign work. On the proposal’s merits, while all four factors are related, the RGEG states that "each factor should be evaluated separately to ensure clarity, and precision of evaluation." While peer review panels are capable of evaluating the technical aspects of the four factors, they do not have the "management perspective or background to evaluate the management components of Factors I, II, and III." Laboratory Directors are technical experts in their respective fields and, therefore, have both "the technical background and the managerial perspective to appropriately evaluate all four factors together, with full cognizance of their relationship to each other." Contrary to the Union’s view, since the role of these panels lies at the heart of the promotion process, there is no apparent way to develop a CRREL-specific evaluation process. It would be "inappropriate and inequitable to have a separate process for this phase of the promotion process for CRREL that is different from the rest of the ERDC Laboratories."
We turn first to the Employer’s duty-to-bargain allegation. In such circumstances, the Panel is guided by the Federal Labor Relations Authority’s (FLRA) decisions in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell) and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3 (1991) (Bureau of Reclamation), which establish the obligations and limitations relating to the Panel’s authority to resolve impasses where duty-to-bargain issues are raised.(5) While the basis of the Employer’s contention that the Union’s proposal interferes with management’s right to assign work is not totally clear, in National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362 (1990), the FLRA determined that the establishment of ranking panels to determine best qualified candidates does not interfere with management’s right to assign work. In rejecting the employer’s contention, the FLRA found that the provision "only requires the panel perform the ranking function and the Agency retains the ability to designate which employees will be on the ranking panel." Because the Employer has the same degree of discretion in the instant case, we find that the Panel has the legal authority to address the merits of the parties’ proposals.
Having carefully reviewed the evidence and arguments presented in support of the parties’ positions, we conclude that the Union’s proposal should be adopted to resolve the impasse. In our view, it provides a more collaborative approach for evaluating an employee’s promotion application, consistent with the standards of the scientific community, while maintaining the ERDC Director’s ultimate decision-making authority. It is undisputed that the Factor IV panel considering the first-wave of promotions was instructed by the panel chair to consider all material submitted by the applicants, including material relating to Factors I, II, and III, so the Union’s proposal represents a natural extension of the current process. Nor do we believe that such participation would compromise the evaluation process, particularly in light of the fact that management officials would also be on the Factor IV panel.
Given our conclusion concerning the key aspect of the dispute, we see no reason why applicants should not be provided with a written explanation if the panel’s recommended scores are changed by management. Moreover, while the Employer has failed to persuade us that the Union’s approach should be rejected because it is inconsistent with the practices in effect at the other ERDC Laboratories, we shall modify the Union’s proposed wording only slightly to make it clear that its reach is limited to CRREL applicants.
Pursuant to the authority vested in it by the Federal Service Relations Labor-Management Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of the 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 regulation hereby orders the adoption of the following wording:
The technical panel (called Factor IV panel in CR 690-1-4) consisting of a majority of non-supervisory researchers will review all materials submitted by the CRREL applicant, determine the score for Factor IV and recommend to management the scores for Fa