DEPARTMENT OF THE INTERIOR NATIONAL PARK SERVICE GOLDEN GATE NATIONAL RECREATION AREA SAN FRANCISCO, CALIFORNIA and NATIONAL PARKS AND PUBLIC EMPLOYEES LOCAL 1141, LIUNA, SEIU, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
GOLDEN GATE NATIONAL RECREATION
  AREA
SAN FRANCISCO, CALIFORNIA

and

NATIONAL PARKS AND PUBLIC
  EMPLOYEES LOCAL 1141,
     LIUNA, SEIU, AFL-CIO

Case No. 02 FSIP 138

DECISION AND ORDER

    The Department of the Interior, Golden Gate National Recreation Area, San Francisco, California (Employer), 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 National Parks and Public Employees Local 1141, LIUNA, SEIU, AFL-CIO (Union).

    Following investigation of the Employer’s request for assistance in the case, which arose during negotiations over a successor collective bargaining agreement (CBA), the Panel determined that the dispute should be resolved through an informal conference with Panel Member John G. Cruz. The parties were advised that if no settlement was reached, Member Cruz would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.

    Pursuant to this procedural determination, Member Cruz met with the parties on October 29, 2002, at the Park Headquarters in San Francisco, California. During the procedure, the parties were unable to resolve the issue in dispute. They subsequently were permitted to submit brief statements and rebuttals in support of the final offers they provided at the conclusion of the informal conference. Member Cruz has reported to the Panel and it has now considered the entire record, including the parties’ statements and the Employer’s rebuttal.

BACKGROUND

    The Employer is responsible for preserving and protecting the scenery, resources, wildlife, and natural historic objects at the Golden Gate National Park for the enjoyment, education, and inspiration of this and future generations. The Union represents approximately 250 bargaining-unit employees who mainly work as Park Rangers (GS-5 through -9) and maintenance workers (GS-5 through -10); a few bargaining-unit employees work in human resources, administration, and in specialized trades, education, and interpretation. The parties are covered by the terms of a basic CBA, which expired on June 14, 2000, until the successor agreement is implemented. This request concerns the last item for the successor agreement, and the Panel’s decision will be incorporated into the Merit Promotion Article.

ISSUE AT IMPASSE

    The parties essentially disagree over whether the Employer should continue to be required to solicit internal candidates using a Merit Promotion Procedure (MPP) whenever it announces a vacancy using delegated examining authority (DEA).(1)

POSITIONS OF THE PARTIES

1. The Union’s Position

    The Union proposes that the following wording be added to Section 1 of the existing Merit Promotion Article as paragraphs 2 and 3:

When filling permanent vacancies for which the Employer wishes to use a delegated exam certification, the Employer will concurrently advertise and create a Merit Promotion Certificate.

If three Park Employees covered by the C.B.A. appear on the Merit Promotion Certification, Section four of this Article applies unless a certified applicant has an overriding preference.

Maintaining the dual procedures ensures that unit employees receive the benefit of "first consideration." It also avoids "[t]he perception that management has the ability to manipulate the certification and selection process." Instead, continuing the status quo "would show that senior Park employees can be given due consideration in the selection process." In this regard, it is fair for selecting officials to look first at experienced, senior unit employees, before considering outside applicants for promotions. At the same time, the proposal recognizes the Employer’s discretion to select outside candidates from the DEA list after interviewing employees on the MPP certificate. As a result, the balance the Panel sought in 1995 between management’s need for flexibility in hiring and the obligation to treat bargaining-unit employees fairly is not disturbed. In addition, priority consideration will not interfere with management’s right to fill a vacancy from any available source, nor with the rights of individuals who may have "overriding preferences."

    The Employer’s proposal, by contrast, should not be adopted because it would not maintain this balance. Furthermore, it "would make Section 4 meaningless because the [DEA] selection method could be used to circumvent the Merit Promotion opportunity of bargaining unit employees who are not voted as one of the top three of the [DEA] certificate." Finally, a review of job announcements in the Western Region of the National Park Service for August 2002 confirms that "the Agency regularly and routinely advertises vacancies through both the [DEA] procedure and through [MPP]." In that month, "five were joint listings through [DEA] and MPP, four were MPP and only two were [DEA] exclusively"; the prevalence of dual announcements refutes the Employer’s position that the practice is burdensome.

2. The Employer’s Position

    The Employer essentially proposes that it retain the discretion to determine whether to announce a vacancy using DEA,(2) MPP, a combination of the two, or some other alternative procedure.(3) The ability to choose the announcement procedure or procedures makes it easier to produce a suitable pool of applicants for a particular opening; that is the flexibility that the Panel intended in its 1995 decision. Such a pool can "enhance the park experience for visitors" because it may "produce greater diversity within the Agency and . . . create a workforce that ‘looks like America’ (or more realistically or importantly ‘looks like the San Francisco Bay Area’)." A single announcement procedure is also less likely to cause confusion among potential applicants. For example, employees have applied under the wrong announcement, a mistake that results in the Employer’s being unable to consider those candidates. Moreover, it is inefficient to continue to require two announcement procedures, governed by different sets of regulations, each time a vacancy is being filled, particularly where experience shows that the practice is not meeting the Union’s interests. Furthermore, based on charges at a different bureau within the Department of the Interior, a second announcement can cost an additional $750.

    Even if DEA were to become the exclusive method for filling vacancies, both full-time permanent and temporary/term unit employees will still be eligible to compete along with outside applicants for open positions. An added advantage is that "unit members . . . [who are] on term or temporary appointments and do not have civil service status to apply under Agency Merit Promotion Procedures," can apply under the DEA announcement. Between July 27, 2000, and March 20, 2001, 12 dual announcements were issued. Among those, no qualified bargaining-unit employees applied under seven of the MPP announcements, and the remaining five "produced no more than two qualified bargaining unit employee responses per vacancy." Despite this, "the Agency promoted one unit employee through [MPP] and selected five bargaining unit employees through [DEA]."(4) The vacancy announcements that the Union cites "are for other parks within the Pacific West Region of the Agency." That mixed group of announcement procedures "is precisely the discretion sought under the Agency’s proposal."

CONCLUSIONS

    Having carefully considered the evidence and arguments presented by the parties on this issue, we shall order the adoption of the Employer’s proposal. In our view, the parties’ recent experience with dual announcements, DEA and merit promotion, has not demonstrated an advantage to the interests of either side that justifies continuing a practice that appears unnecessarily burdensome. In this regard, the data presented reveal that despite the consistent use of MPP announcements, in the 8-month period the Employer addressed, the criteria for invoking priority consideration (three certified promotion eligibles) were not met even once. At the same time, however, five qualified bargaining-unit employees were selected under DEA announcements, suggesting that they were not disadvantaged by that procedure, where they compete directly with outside candidates. As to the continued relevance of Section 4, when the Employer chooses to use MPP, it will remain obligated to grant unit employees priority consideration. Based on these facts, we conclude that the Employer should have the flexibility to choose from among a variety of announcement methods when filling vacancies without being required to advertise internally whenever it decides to use DEA.

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 failure of the parties 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 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:

    The parties shall adopt the Employer’s proposal.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

March 11, 2003
Washington, D.C.

1.In Department of the Interior, National Park Service, Golden Gate National Recreation Area, San Francisco, California and Local 1276, Laborers International Union of North America, AFL-CIO, Case No. 94 FSIP 121 (January 11, 1995), Panel Release No. 370, the Panel adopted a modified version of the Employer’s proposal that granted bargaining-unit employees priority consideration whenever three or more unit employees, applying under a MPP, were certified to the selecting official as promotion eligibles. When the Employer began to fill vacancies using DEA, the Union filed a grievance over the Employer’s interpretation of the Panel-ordered provision. On July 27, 2000, the parties settled the grievance by agreeing that, for the life of the current basic CBA, when the Employer decides to fill a vacancy through DEA, it would concurrently advertise the position to potential internal and external “status” applicants using the MPP.

2. After 1994, the Office of Personnel Management certified the Employer as a Delegated Examining Unit with the right to issue vacancy announcements under that authority.

3. The Employer proposes to add