United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
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In the Matter of
DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU TENNESSEE AIR NATIONAL GUARD NASHVILLE, TENNESSEE
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and MUSIC CITY CHAPTERS ASSOCIATION OF CIVILIAN TECHNICIANS
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Case No. 01 FSIP 55 |
DECISION AND ORDER
The Music City Chapters, 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, 5 U.S.C. § 7119, between it and the Department of Defense, National Guard Bureau, Tennessee Air National Guard, Nashville, Tennessee (Employer).
Following an investigation of the request for assistance, which concerns negotiations for a successor collective bargaining agreement (CBA), 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 were reached, the Panel 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 procedural determination, Panel Representative (Staff Attorney) Kenneth E. Moffett, Jr. met with the parties on April 18, 2001, at the Employer’s facility in Nashville, Tennessee. The parties were able to resolve four of the six issues in the dispute. Mr. Moffett has reported to the Panel, and it has now considered the entire record, including the parties’ post-conference statements of position.
BACKGROUND
The Employer’s mission is to provide support to the U. S. Air Force while constantly training to maintain a high degree of readiness in the event of mobilization into active military service. The Union represents approximately 700 civilian technicians who work in such positions as automotive mechanic, aircraft mechanic, electronics inspector, helper, and clerk, at grades ranging from GS-5 through GS-13 and WG-5 through WG-12. By Memorandum of Understanding, the parties agreed to extend the collective bargaining agreement (CBA), which expired on May 13, 1996, until a successor agreement is implemented.
ISSUES AT IMPASSE
The parties essentially disagree over whether: (1) the Union should be notified of unqualified applicants for unit vacancies prior to the selection of an applicant for the position (Article 14, Merit Placement, Section 14-15(1)); and (2) the retention ranking of technicians in the event of a RIF should include seniority as a primary factor (Article 20, Reduction in Force, Section 20-3 B(2)).
1. Union Notification of Unqualified Applicants
a. The Employer’s Position
The Employer proposes:
The HRO remote will notify the appropriate Labor Organization Official when the Adjutant General approves the selection and the appointment. After the selection, applicants who were not interviewed will be notified in writing by the HRO. The HRO will notify the State Chairman of ACT of all unqualified on board bargaining-unit technician applicants.
Under the parties’ practice, in effect since the CBA was executed in 1993, notice to unqualified applicants and the Union is given after the Selecting Official has made the selection. The current process enables the Employer to make merit selections in a timely and efficient manner. Filling positions expeditiously, especially those with a high turnover rate, is necessary to accomplish the mission. The Union proposal would delay by at least 3 days the selection process and, therefore, would hinder the Employer’s ability to carry out its mission. Furthermore, the Union has not shown a need to deviate from the current selection process. While the Union complains that applicants deemed to be unqualified for a position should be given an opportunity to explain their credentials and possibly correct any errors before the selection is made, it cited only two instances in which qualified applicants were mistakenly deemed to be unqualified in the last 7 years. As to these rare instances, a procedure exists to remedy the error: The employee is given "priority consideration" for selection in the next vacancy announcement. In addition, under the current practice, applicants may, on their own initiative, explain their credentials and clarify information contained in their applications before a qualification determination is made. Another reason there is no need to change the existing procedure is because disagreements over qualification determinations are subject to the parties’ negotiated grievance procedure. Finally, the Union’s assertion that an arbitral decision confirms the parties’ alleged "practice" of notifying the Union of unqualified applicants before the selection is made is simply not accurate.(3) In ACT, although the arbitrator held that the Employer had failed to give the Union timely notice as required by Article 5, Section 8(c), he did not address the parties’ practice.
b. The Union’s Position
The Union proposes:
[The] HRO remote representative will notify the Chapter president of unqualified applicants no less than three (3) working days before qualified applicants are forwarded to the selecting official. The Agency will document any delays in staffing the position during an 18-month test program. The parties will revisit the issue in bargaining at the end of the test period.
The intent of Article 5, Section 8(c) and the parties’ past practice should be carried forward in the successor collective bargaining agreement. This practice gives the Union an opportunity to inform applicants that their applications do not meet the criteria established in the vacancy announcement. Notice to employees, made in advance of the completion of the selection process, affords bargaining-unit employees an opportunity to explain their credentials and work experience that a general staffing specialist may not understand. The need for such an opportunity is further warranted because the Employer rarely utilizes subject matter specialists in determining applicant qualifications for a position. The existence of the parties’ practice was recognized by the arbitrator in ACT. An 18-month pilot period would permit the parties to test the Employer’s assertion that providing notice of unqualified applicants to the Union at least 3 days before qualified applicants are forwarded to the selecting official will delay the selection process. Contrary to the Employer’s assertion, a 3-day delay will not impede the Employer’s ability to meet its mission needs, and only minimally affects its right to select a qualified applicant for the position.
CONCLUSION
Having reviewed the evidence and arguments presented by the parties, we shall order the adoption of the Employer’s proposal. In this regard, we are persuaded that since the adoption of the CBA in 1993, the Employer’s practice has been to notify the Union of unqualified applicants after the selecting official has made the selection, and that the Union has not demonstrated any need to change this practice. The record establishes that very few qualified applicants have been erroneously determined to be unqualified, and in those instances, applicants have been granted priority consideration for the next comparable vacancy. In the event that the Union believes that a particular selection deviates from the requirements in the CBA, it may grieve such action under the negotiated grievance procedure. The chief evidence cited by the Union to support its allegation of a different practice is the arbitrator’s decision in ACT. Not only do arbitration awards have no precedential value, but our review of that decision reveals that the arbitrator’s interpretation of the notice provision of Article 5, Section 8(c), was based on the parties’ bargaining history, not their practice after the CBA was implemented in 1993. The facts of the ACT case also appear to undercut, rather than support, the Union’s contention that notice of unqualified applicants ought to be provided to the Union because of errors committed by the Employer’s HR staffing specialists.(4)
2. Retention Registers for Reductions in Force(5)
a. The Employer’s Position
The Employer proposes that the retention register "be established in accordance with TPR 351 ‘Reorganizations, Realignments, and Reduction in Force (RIF)’." In this regard, TPR 351, which ranks employees for RIF purposes based on performance appraisal scores, provides a standard method of conducting RIF actions and is utilized agency-wide, i.e., most of the State National Guards follow its instructions. Application of the regulations has worked very well in Tennessee: the Employer has conducted four RIF actions under the 1993 CBA (two on the Air side and two on the Army side), and no tenured technicians, bargaining unit or otherwise, were involuntarily terminated, and all displaced technicians were successfully placed. The Union simply has failed to demonstrate any need to deviate from the current retention ranking policy. The Union’s general assertion of unfairness in the current retention policy, assertedly because supervisors give "favored" employees higher performance appraisal scores, and thus ensure that those employees are retained in a RIF action, is unsubstantiated. Moreover, the Union may challenge allegedly biased performance appraisals through the negotiated grievance-arbitration procedure. Finally, the Union’s reliance on the tentative agreement reached in the informal conference is misplaced; the parties and the Panel representative were advised that the Employer’s ultimate assent to the agreement was conditioned on approval by an officer who was not then present, and assent to effectuate the agreement was not given.
b. The Union’s Position
The Union’s proposal is as follows:
Section 20-3 D: Retention Registers: A record that lists technicians in descending order, within their competitive levels, starting with the technician with the most points. They shall be classified on a retention register on the basis of their tenure of employment, length of service and performance in descending order as follows: 1. By tenure Group I, Group II, and Group III, and; 2. Within each group by years of service as augmented by credit for performance beginning with the earliest service date (Service, Computation Date). Tiebreaker will be the (3) three latest performance appraisals. Outstanding receives two (2) points; fully acceptable will receive one (1) point; and unsatisfactory, zero points.
The current retention ranking policy set forth in TPR 351 has disadvantaged bargaining-unit employees with seniority and has been abused by supervisors. Supervisors frequently give higher performance appraisals to technicians they favor for personal, non-work-related reasons, and thus indirectly increase the likelihood that those technicians will be retained during a RIF action. A retention ranking policy which accords weight to both performance and seniority is fairer and less subject to manipulation. The current policy has also caused a decline in morale among the technician workforce: in a recent RIF action, a Vietnam veteran with approximately 20 years of service was downgraded while less senior technicians with higher performance appraisal scores were able to retain their positions. In practice, the current retention policy may be viewed as punishing dedicated, long-serving technicians who have satisfactory performance ratings. In addition, the Union’s proposal should be adopted because the parties reached agreement on a compromise proposal during the Panel’s informal conference procedure, but the agreement was disavowed by the Employer in violation of the parties’ ground rules.
CONCLUSION
After carefully considering the record presented by the parties on this issue, we are persuaded that the impasse should be resolved on the basis of the compromise they tentatively agreed to during the informal conference. While cognizant of the Employer’s concern regarding its desire to retain excellent performers, we nevertheless believe that a policy which accords weight to both performance and seniority, similar to OPM regulations on retention standing applicable to other Federal civilian employees,(6) strikes the proper balance. This is particularly true in the circumstances of the instant case, where technicians receive credit for their service to the agency only when it is necessary to break ties between employees. Although it is unclear whether the compromise wording we shall impose strikes the perfect balance between performance and seniority, the willingness of the Employer’s representatives to agree to it is enough to overcome any uncertainty in this regard. Our decision is also influenced by evidence that the current policy has been subject to manipulation by supervisors. We refer here to the instance cited by the Union in which performance appraisals were given by supervisors to certain technicians after management learned of an upcoming RIF. The Union grieved the issuance of those performance appraisals and they were ultimately rescinded. Finally, the Employer’s reliance on the fact that recent RIF actions have not resulted in the displacement of employees is unavailing. Employees should not have to rely on the Employer’s professed good intentions alone concerning a matter where so much is at stake.
ORDER
Pursuant to the authority vested in it by the Federal Service Labor-Management 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 § 2471.11(a) of its regulations hereby orders the adoption of the following wording:
1. Union Notification of Unqualified Applicants
Section 14-15 HRO Action (Notification) The HRO remote will notify the appropriate Labor Organization Official when the Adjutant General approves the selection and the appointment. After the selection, applicants who were not interviewed will be notified in writing by the HRO. The HRO will notify the State Chairman of ACT of all unqualified on board bargaining-unit technician applicants.
2. Retention
Registers for Reductions in Force(7)
Section 20-3 D
:
Retention Registers:
A record that lists technicians in descending order, within their competitive levels, starting with the technician with the most points. Technicians shall be classified on a retention register on the basis of their tenure of employment, performance, length of service, and in descending order as follows:
1. By tenure Group I, Group II, and Group III, and
2. Within each Group, add the points obtained based on the following criteria, to obtain a RIF Order of Merit List (OML). Add the points obtained in (a) and (b) for a RIF score: (a) The average score of the points of the last three (3) official performance appraisals: Unsatisfactory equals zero points; fully satisfactory equals four (4) points; and outstanding equals eight (8) points. (b) One (1) point for each year of the service computation date (SCD). (c). RIF actions would be performed on the lowest scores from this OML. (d). The tiebreaker will be the employee with the earliest technician service date.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
June 4, 2001
Washington, D.C.
1. Article 5, Section 8(c), of the CBA, currently provides:2. Under the CBA, retention ranking is governed by Technician Personnel Regulation (TPR) 351. Under TPR 351, technicians are divided into three tenure groups and a technician’s retention ranking is computed by taking "the average score of the last three official performance appraisals." The employee’s service computation date (SCD) is used as a tie-breaker if two or more technicians in the same tenure group have the same retention score. If necessary, technician service date is used as a second tie-breaker.All technician applicants who have been designated as "Unqualified" by the staffing section of SPMO will be notified by SPMO by mail. The Union will be notified of all applicants who are deemed unqualified.
3. The parties refer to Association of Civilian
Technicians and Tennessee Air National Guard, (ACT), FMCS No. 99-08705 (Goldie, Arb. 1999), where the
Arbitrator addressed a Union grievance that the Employer had failed to abide by the notice requirements
of Article 5, Section 8(c), and that the selection of an employee deemed to be qualified should be set
aside on the ground that the employee did not possess the necessary qualifications for the position. In
his ruling, the Arbitrator found that Article 5, Section 8(c) was intended to
provide notification to applicants who are deemed to be not qualified and to the Union so that they can prepare and ‘plead their cases’ to the appropriate Agency Representative for further consideration . . . before the vacancy is filled. 4. In ACT, 13 technicians applied for a position, two were deemed to be qualified, and one of those deemed to be qualified was selected. In grieving the selection, the Union challenged generally the “hiring methods employed [by the Employer] during the selection process.” The arbitrator found that the Employer violated the CBA by improperly determining that the selectee had met the specialized experience requirements listed in the vacancy, and he ordered the position vacated on that basis. The arbitrator did not find that any of the applicants deemed to be unqualified were, in fact, qualified for the position.
5. The parties have agreed to divide technicians into three tenure groups as follows:
Group I - Technicians under permanent appointment who are not serving on probation or trial periods;
Group II - Technicians serving on probation or trial periods; and
Group III - Technicians who have been given indefinite appointments in the excepted service.
6. 5 C.F.R. § 351.501 establishes an order of retention based on tenure groups, and within each tenure group “by years of service augmented by credits for performance under § 351.504, beginning with the earliest service date.” Section 351.504 grants additional retention service credit, based on the last three performance appraisals in a 4-year period, “expressed in additional years of service.” For example, if the employer utilized a single rating pattern, an employee would receive the following additional credit: 20 additional years of service for each rating of record with a Level 5 (Outstanding or equivalent) summary; 16 additional years of service for each rating of record with a Level 4 summary; and 12 additional years of service for each rating of record with a Level 3 (Fully successful or equivalent) summary.
7. The parties have agreed to divide technicians into three tenure groups as follows:
Group II - Technicians serving on probation or trial periods; and
Group III - Technicians who have been given indefinite appointments in the excepted service.
Group I - Technicians under permanent appointment who are not serving on probation or trial periods;