DECISION AND ORDER
This request for assistance, filed by the Georgia Army National Guard (the Agency or Management) under the Federal Service Labor Management Relations Statute (the Statute), involves bargaining over a successor collective bargaining agreement (CBA). There is one remaining article at issue: Article 12 – Merit Placement and Promotion.
The Georgia Army National Guard enables the State of Georgia to respond to domestic emergencies, combat missions, counter-drug efforts, and reconstruction missions. Whether the call is coming from the Georgia State Governor or directly from the President of the United States, Georgia Army National Guard Soldiers are ready to provide the Governor and the President with ready forces in support of state and federal authorities at home and abroad. The Association of Civilian Technicians (ACT or the Union) represents 1,034 Title 32 Technicians. The current CBA expired April 2017, but the terms continue to roll over until the parties have negotiated a new CBA. The parties are currently bargaining a successor CBA, which is the subject of this impasse dispute.
BACKGROUND, BARGAINING AND PROCEDURAL HISTORY
Bargaining began over the successor CBA initially at the local level. Agreement was reached at the local level on all but 3 articles (Article 12 – Merit Placement and Promotion; Article 17 – Grievance and Arbitrations; and Article 19 – Appropriate Bargaining). The parties met on a number of days in September, October, and November 2017 to negotiate. They were able to resolve most of the issues. The parties engaged with the Federal Mediation and Conciliation Services (FMCS) in August 2018. The Mediator released the parties in August 2018. The Agency filed this request for FSIP assistance in May 2019. In August 2019, the Panel asserted jurisdiction over the matter. The Panel directed the parties to resolve the remaining issues through written submissions, with an opportunity to submit rebuttal statements.
Pursuant to the order of the Panel, the Union provided a timely submission to both the Panel and the Agency representative. Due to a family emergency, the Agency’s submission was submitted past the submission deadline. In accordance with the Panel’s Determination Letter, the Agency submitted a timely rebuttal. The Union submitted its rebuttal past the submission deadline.
ISSUES AND POSITIONS OF THE PARTIES
Issue 1 – Areas for Consideration (Section 12.10)
First, the law is clear that it is a management right to ultimately hire or select from any appropriate source. 5 U.S.C. 7106 (a)(2)(C). Under the current CBA (which is also the Union’s proposal; attached), the parties agree that the area of consideration for each vacancy announcement will be that which is deemed most appropriate by Human Resources (HR). The parties are in dispute over the timing in which each of the areas of applicants will be considered for a position (Section 12.10). In the current CBA, there are three categories of applicants for positions:
Area 1 – current, onboard Georgia National Guard full time permanent Technicians
Area 2 – current, temporary reservists (Airman or Army National Guard)
Area 3 – general public
The Agency’s proposal states that management may extend the area of consideration beyond Area 1 to Area 2 or Area 3 when HR, after reviewing the Area 1 applicants, determines that sufficient Area 1 applicants are not available. The Union argues that the additional language proposed by the Agency should not be adopted because the additional language does not make sense. Under Section 12.5, the parties agree that the posting of the vacancy announcement must include “the area of consideration” that will be considered for the position. This is so interested applicants will know if they qualify for the position or not before they apply. If the Agency intends to expand the area of consideration, it would have to state that in the vacancy announcement in the posting phase. The Panel believes that this concern of the Union is addressed in the combination of Sections 12.5 and 12.10. If the Agency wants to preserve the opportunity to extend the area of consideration, it will need to state that in the posting itself.
Issue 2 – Procedures for Consideration (Section 12.12)
The parties are in disagreement over the procedures for considering applicants for the vacancy. Under the current contract procedures, Section 12.12, HR provides the selecting official the list of Area 1 applicants first. The selecting official considers those applicants. Should the selecting official choose not to select from among the Area 1 applicants, the selecting official must provide a written justification for non-selecting from Area 1 to HR. HR will review that justification, provide it to the Union for input, then HR will make a final decision regarding the merit of the non-selection. HR will then provide the selecting official the Area 2 then the Area 3 list of applicants.
The Union proposes to maintain the current contract language in Section 12.12. The Agency proposes that the selecting official receives all three area of consideration lists simultaneously. As the Agency has committed to priority consideration, under the Agency’s proposal, the selecting official would still need to clear Area 1, by providing a written reason for non-selection, before they move onto considering Area 2 and Area 3. However, the selecting official would have the benefit of seeing the Area 1, 2 and 3 applicants simultaneously when considering the best applicant. The Panel agrees with the Agency that simultaneous review will promote the selection of the best candidate. Where the current process promotes selecting an applicant that is at least minimally qualified, the proposed process would ensure that the Agency selects the best candidate based upon merit.
Issue 3 – Union Time to Comment on the Proposed Selection (Section 12.12)
The current contract, under Section 12.12, provides for the opportunity for the Union to consider the written justification for non-selection from among the Area 1 candidates before HR will issue the Area 2 or Area 3 lists to the selecting official. The current CBA language is silent on how much time the Union will be provided to review the written justification for non-selection of any Area 1 candidate. The Union proposes to maintain the current language. The Agency proposes to add a five-working-day time frame for the Union to consider the written justification for non-selection from among the Area 1 list before HR will move forward with announcing the final selection. The Panel believes 5 work days is a reasonable period of time for the Union to receive notice on the non-selection of a current bargaining unit employee, and, if they choose, to provide comment to HR. Management maintains the right to make its final selection. There is no need to delay the selection any more than necessary. The Union is free to challenge that selection through other procedures (e.g., grievance) should it believe there has been some sort of violation or misstep in the process.
Issue 4 – Referral List (Section 12.11)
Under the current contract Section 12.11, the selecting official receives the list of the top 10 Area 2 and top 5 Area 3 candidates, but not until after they first review and clear the Area 1 applicants with HR. Under the Agency’s proposal, the selecting official would receive the referral list for Area 1 applicants at the same time it receives the lists for Area 2 and Area 3 applicants. The Union proposes to maintain the current first consideration process under the current contract language. The Union argues that the Agency’s proposed simultaneous procedures would essentially eliminate priority consideration and will result in workforce instability, as internal candidates would not likely receive appropriate consideration for internal vacancies. The Union argues that the current process is more effective in promoting workforce stability and career development, and is more effective in rewarding employee loyalty. As for the point of the value of stability, the Union references a 2008 RAND Report that notes the difference in productivity with the promotion of team stability. The Union argues that the Agency proposed procedure, by devaluing loyalty and stability, is subjecting the workforce to reduced productivity. The Agency argues that their proposal would cause no more turbulence to the workforce because once personnel are hired they tend to stay in place. The Agency argues that the 2008 RAND report doesn’t support the Union’s argument that internal hiring promotes stability in the workforce. The Agency argues that the stability seen in their unit comes from the fact that the Agency doesn’t pay for people to move geographically to other areas of the country to change jobs. Additionally, once people become a uniformed member of the Agency, the Agency ensures continuity because they can then control assignments.
The panel believes that workforce stability and career development continue to be valued by these parties through their continued commitment to first consideration of internal applicants (Section 12.1). The Panel also agrees that a more efficient, more timely hiring process aids the Agency in finding and quickly onboarding the best candidate for the position. The Agency’s proposed amendments to the process meet both needs.
The Panel has determined that the Agency proposed changes to the merit promotion process is more timely and efficient, and it provides the Agency the opportunity to select the best candidate for the vacancy. In effectuating the process, the parties continue to adhere to the principles of first consideration of internal candidates, management’s right to select the best candidate, and adherence to merit principles. As such, the Panel is ordering the parties to adopt the Agency’s Article 12 (attached), including the disputed proposals in Sections 12.1(d), 12.3 (k), 12.10, 12.11, and 12.12.
Pursuant to the authority vested in the Federal Service Impasses Panel under 5 U.S.C. §7119, the Panel hereby orders the parties to adopt the provisions as stated above.
Mark A. Carter
September 26, 2019