DEPARTMENT OF THE ARMY ARMY RESERVE PERSONNEL CENTER ST. LOUIS, MISSOURI and LOCAL 900, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF THE ARMY
ARMY RESERVE PERSONNEL CENTER
ST. LOUIS, MISSOURI
LOCAL 900, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 94 FSIP 79
DECISION AND ORDER
Local 900, American Federation of Government Employees, AFL-CIO (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 the Army, Army Reserve Personnel Center, St. Louis, Missouri (Employer).
After investigation of the request for assistance, the Panel directed the parties to participate in a telephone conference with Staff Associate Gladys M. Hernandez for the purpose of resolving their dispute over the Employer's use of interview panels for merit promotions.(1) The parties were advised that if no settlement were reached, Ms. Hernandez would report to the Panel on the status of the dispute, including the parties' final offers, and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Ms. Hernandez held a telephone conference with the parties on May 4, 1994. With her assistance the parties were able to resolve their dispute over one of nine outstanding Union proposals. She has reported to the Panel on those remaining proposals based on the record developed by the parties. The Panel has now considered the entire record.
The Employer's primary mission is to plan and implement the mobilization of U.S. Army Reserve personnel should such action become necessary. The Union represents a bargaining unit of approximately 1,333 GS-2 through -12 employees, the majority of whom are military personnel clerks. The parties are covered by a collective-bargaining agreement due to expire on September 20, 1997.
ISSUES AT IMPASSE
The parties basically disagree over: (1) when panels may be used to interview candidates for merit promotions; (2) who should make up interview panels and what documents, if any, to be provided; (3) whether all referred internal candidates for merit positions should be entitled to be interviewed; (4) who should conduct interviews of candidates; (5) how interviews are to be conducted; and (6) whether the Employer should be required to notify the Union whenever it convenes interview panels and, if so, what information to be included in the notice.
POSITIONS OF THE PARTIES
1. The Union's Position
Essentially, the Union proposes that interview panels are: (1) to be used "only when there are 10 vacancies or more to select from 1 vacancy announcement;" (2) to "consist of only selecting officials" who are to be provided with copies of the "Affirmative Action Plan, Handicapped Act, and Repromotion Eligible Employee Program;" and (3) to "interview all referred internal candidates" preferably face to face and, if not, by telephone. Also, interviews are to be conducted only by selecting officials.(2) Finally, the Employer is to notify the Union whenever it convenes an interview panel; the notice is to include, "i.e.," the Directorate and Section convening the panel, and date and time it will meet, as well as the names of those who make up the panel, their grades and positions.
Contrary to the Employer's argument, the restrictions it proposes on the use and composition of interview panels do not excessively interfere in the selection process for merit promotions because selecting officials remain free individually to interview referred candidates and, therefore, are negotiable as "appropriate arrangements." On the merits, it admits that the last time the Employer had 10 or more vacancies to fill at once from a single vacancy announcement was before the hiring freeze was implemented in 1991. Nonetheless, restricting the Employer's use to those circumstances is appropriate because (1) employees are intimidated when interviewed by "clusters of managers" and (2) selecting officials have been unduly influenced by managers to choose the candidates they want for the positions. If interview panels are made up of only management officials with "authority to select," it is likely that more employees will be "properly considered and treated equally." In this regard, selecting officials have used panels of nonselecting officials to "mask" discrimination on their part, as is evidenced by the great number of nonselection-related Equal Employment Opportunity (EEO) complaints and grievances. Those complaints and grievances have also brought to light the "program procedures and regulatory errors" made by unit and other nonsupervisory employees unfamiliar with "the MPP and its procedures," who at times have been "tasked" to serve on interview panels by the Employer. Yet, the only relief granted employees hurt by their actions has been priority consideration for future job vacancies. Since the Employer also has at times assigned to employees not on interview panels the "task" of interviewing candidates, it is important specifically to require that only selecting officials interview candidates.
With respect to the information it is proposing be provided to selecting officials, they already receive written guidance along with referral lists. Such guidance is, however, a "routine package" which they do not look at because it is "not extensive enough." In "hundreds of grievances and EEO complaints" that have been filed by minority, handicapped, and repromotion eligible employees not selected for merit promotions, selecting officials contended that they did not "consider" the Employer's affirmative action plan, the Rehabilitation Act, and the "repromotion eligible employee program" when making their selections. In order to prevent that from happening again in the future, they should be provided with copies of these documents.
Under the negotiated MPP, candidates for positions in grades GS-6 and above are entitled to be interviewed. Fairness demands that that entitlement be extended to internal candidates for positions in grades GS-5 and below.(3) Finally, the Union requires specific notice whenever management convenes interview panels so as to prevent additional "flagrant violations" of laws and/or regulations prohibiting nepotism and favoritism in the selection process as well as to ensure that the Employer complies with other applicable laws and regulations. Specific notice would also allow the Union to point out to management early on improprieties in the composition of panels which may avoid future grievances and complaints.
2. The Employer's Position
For the following reasons, the Employer proposes that the Panel order the Union to withdraw all of its proposals. With respect to the Union's proposed provisions requiring that interview panels be made up only of selecting officials, and that only selecting officials conduct interviews, they are nonnegotiable because they excessively interfere with management's right to assign work. In this regard, they would prohibit management from continuing to assign nonbargaining-unit employees to panels regardless of whether they are selecting officials. The Union has brought to management's attention only "one incident" of a bargaining-unit employee being assigned to an interview panel, which was satisfactorily resolved. As for the Union's argument that these provisions are necessary to correct ongoing EEO problems with the selection process, the Employer is unaware of any such problems. Moreover, selecting officials are (1) "typically" members of interview panels and (2) ultimately responsible for selections (including the composition of interview panels, the questions the panels ask of candidates, etc.), as is evidenced by their signing of selection documents. They do not delegate their selection authority to other members of the panels who are simply participants in the interview.
The Union's proposal restricting management's use of interview panels excessively interferes with management's right to select because it would "seldom, if ever," permit management to use them. In this regard, "[h]istorically, there are not 10 requests to fill identical positions . . . at one time." Management should be able to use interview panels to fill merit positions at its discretion. Nonetheless, it does so "judiciously" because they are "expensive." The Union's proposal guaranteeing an interview to all internal candidates is inappropriate because the MPP in par. 51.c. specifies which candidates for merit promotion are entitled to interviews.
It is unnecessary to require the Employer to provide selecting officials with copies of the documents listed by the Union. In this regard, the Civilian Personnel Office's Recruitment and Replacement Branch already provides them verbal and written guidance which "address[es] the supervisor's responsibility for making selections based on merit (job-related) reasons," along with the referral lists. In addition, selecting officials are already (1) "required to provide documentation on selection of promotion candidates with regard to the merit factors of the positions;" and (2) prohibited by law or regulation from (a) promoting employees to positions for which the Employer does not have in place a plan "designed to ensure a systematic means of selection" based on merit; (b) selecting employees for promotion other than for merit (5 U.S.C. § 2301(b)); and (c) discriminating in the selection process based on race, color, creed, marital status, religion, or handicapping condition. Moreover, it is undisputed that management personnel have already received training on EEO matters. The Employer's EEO Office, for example, advises management on its affirmative action plan, and each Directorate also has its own plan addressing its "unique problems." The EEO Office also monitors the selection process to ensure that management complies with the affirmative action plans throughout the selection process, as it is required to under par. 4.b.(2) of the MPP. As for repromotion eligible employees, their consideration for merit promotion is already addressed under the MPP, which requires that they be referred to selecting officials for consideration before other candidates. There are no other negotiated plans addressing the matter.
Finally, the Union has not shown a "particularized need" for the information for which it requests notification as a matter of course; however, it is free to request the information under the Statute. As for the Union's argument that it requires the information to protect employees against nepotism in the selection process, such protection is already provided under 5 U.S.C. § 3110 (pertaining to restrictions on the employment of relatives). Also, ranking panels weed out relatives of selecting officials as candidates.
We have reviewed the entire record and conclude that the Union has failed to demonstrate a need for its proposals. In this regard, the "evidence" offered by the Union to prove that selecting officials have been using interview panels to discriminate in the selection process consists only of general statements that this is happening. It was unable to cite specifically even a single unit employee-filed grievance or EEO complaint on the matter. There is also no evidence in the record that the alleged incidents of nepotism and favoritism cited by the Union involved interview panels or that management failed to investigate and take appropriate action when they were brought to its attention. Furthermore, it is unclear how selecting officials can effectively use interview panels to discriminate when they are directly answerable for the selections. It is also unclear how the Union's proposed restrictions on the use and composition of panels and on who may conduct interviews would do away with higher level management personnel exerting pressure on selecting officials to select specific candidates. In our view, these restrictions are not intended to safeguard employees against discrimination, nepotism, or favoritism but instead, are a back door approach to prevent the use of interview panels altogether. Moreover, the Union also has not shown a need for selecting officials to get the listed documents as a matter of course. It is undisputed that (1) management personnel have already received training on affirmative action and other EEO matters, and (2) written guidance is provided to selecting officials along with referral lists, indicating that selections must be based on merit principles, among other things. As for the proposed notice provisions, in our view they are unnecessary because § 7114(b)(4) of the Statute permits the Union to request such information whenever employees challenge their nonselection where interviews were conducted by panels. The Union has not convinced us that it