United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
NEW YORK ARMY AND AIR
LATHAM, NEW YORK
NEW YORK STATE COUNCIL, ASSOCIATION
OF CIVILIAN TECHNICIANS
Case No. 94 FSIP 27
DECISION AND ORDER
The New York State Council, Association of Civilian Technicians (ACT or 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, New York Army and Air National Guard, Latham, New York (Employer).
After investigation of the request for assistance concerning a dispute over a new merit promotion and placement plan, the Panel directed the parties to participate in an informal conference with Panel Member Daniel H. Kruger for the purpose of resolving the outstanding issues in dispute. The parties were advised that if no settlement were reached, Member Kruger would notify the Panel of the status of the dispute, including the final offers of the parties and his recommendations for resolving the issues. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Accordingly, Mr. Kruger met with the parties on March 17, 1994, in Latham, New York, during which time the parties resolved all but one issue. He has reported to the Panel, and it has now considered the entire record.
The Employer's mission is to serve and protect the citizens of New York and the Nation. The Union represents a bargaining unit of approximately 1,700 civilian technicians, most of whom are in the excepted service. They hold a variety of positions in computer, aircraft, and vehicle maintenance, supply, personnel, and civil engineering. The parties' collective bargaining agreement will expire in November 1994.
ISSUE AT IMPASSE
Essentially, the parties are at impasse over whether bargaining-unit employees should receive consideration for vacant bargaining-unit positions prior to nonbargaining-unit and outside candidates.
POSITIONS OF THE PARTIES
1. The Union's Position
The Union's proposal is as follows:
For all bargaining-unit positions, qualified applicants will be referred to the nominating official in the following sequence:
CATEGORY I - All Excepted Service Technicians in the New York Army Guard for Army technician vacancies, and all Excepted Technicians in the New York Air National Guard for Air technician vacancies, working at the location specified in the job announcement where the vacancy exists.
CATEGORY II - All currently employed Excepted Service Technicians in either the New York Army or New York Air National Guard.
CATEGORY III - Qualified members of the New York National Guard (Army or Air), to include AGR personnel, or other individuals who are willing to become members of the New York Army or New York Air National Guard.
CATEGORY IV - Applicants from outside the organization, including individuals on an OPM certificate, and those eligible for reinstatement due to prior Competitive status.
If there are fewer than three candidates/applicants under this proposal, the Employer could then expand the pool pursuant to its proposal.
Its proposal would give bargaining-unit employees "some measure of confidence that they will be considered for available promotional opportunities prior to nonbargaining-unit employees or other applicants who are not currently employed by the Federal Government." Furthermore, it does not restrict the Employer from seeking applicants from all available sources, but simply prescribes a method by which qualified applicants would be referred to the selecting official. Finally, the last sentence of its proposal is intended to address the Employer's concern that its method of referral may not be viable where a particular job announcement generates too few applicants. In this regard, if there are fewer than three applicants, the Employer would be permitted to proceed in accordance with its own proposal.
2. The Employer's Position
The Employer proposes the following:
3-5. Area of consideration. The area of consideration for each position vacancy announcement will be the entire State of New York, to ensure the receipt of sufficient, highly-qualified candidates. Management can extend the established area of consideration to nationwide for a particular placement action when it has been determined the initial area did not produce a sufficient number of qualified candidates. The category of candidates being sought must be indicated on the SF 52, Request for Advertisement, from those listed below:
(1) All military technicians in New York Army or Air National Guard.
(2) All members of the New York Army and Air National Guard (AGR).
(3) Personnel eligible for membership in the New York Army or Air National Guard.
(4) All competitive technicians of the New York Army and Air National Guard. (*See note.)
(5) Applicants from outside the agency, including individuals with an OPM certificate and those eligible for reinstatement.
*Note: For positions that can be filled by either military or competitive technicians, the position will not be advertised both ways. The submitting official must decide which type of appointment and indicate on the SF 52.
This proposal would expand competition to a larger group, thus encouraging "self development," and help provide the organization with the best qualified applicants. Further, by including all applicants for initial consideration, minority employment within the National Guard should increase, enabling it to reach its affirmative action goals. By contrast, the Union's proposal "initially restricts the number of applicants to choose from and competition between the applicants." By limiting competition to coworkers, of whom there may be a very limited number within the immediate organization, the competitive edge would be lost, and the best qualified candidates would not be provided for selection.
Having considered the evidence and arguments presented, we conclude that the dispute should be resolved on the basis of the Union's proposal. At bottom, the parties' disagreement involves the traditional union concern that promotional opportunities for bargaining-unit employees be enhanced to the maximum extent possible. After weighing the importance of this concern to the Union against the arguments raised by the Employer, we are persuaded that the modest benefit of first consideration for vacant bargaining-unit positions should be given to bargaining-unit applicants. In this regard, the Union's proposal would apply only after the Employer determines to fill a position, and would not affect management's right to determine the initial area of consideration, or to expand the area should it fail to produce a sufficient number of highly-qualified candidates. It addresses only the order in which candidates are referred to the selecting official, and would do little to delay an ultimate decision to select from any source management prefers. Moreover, it is unclear what impact, if any, either party's proposal would have on the Guard's minority recruitment efforts. Finally, because the Union's proposal permits the Employer to use its own referral procedure if a vacancy announcement should generate fewer than three applicants, any negative impact it may have on the selection process would be further limited. Accordingly, we shall order its adoption.
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 pursuant to 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 Union's proposal.
By direction of the Panel.
Linda A. Lafferty
April 20, 1994