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 |
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and LOCAL 1276, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO |
Case No. 94 FSIP 121
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DECISION AND ORDER
Local 1276, Laborers International Union of North America, 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 Interior, National Park Service, Golden Gate National Recreation Area, San Francisco, California (Employer).
After investigation of the request for assistance, the Panel determined that the dispute, which originally concerned portions of five articles of an initial collective-bargaining agreement, should be resolved through an informal conference between a Panel representative and the parties. If no settlement were reached, the representative was to notify the Panel of the status of the dispute, including the final offers of the parties and the representative's recommendations for resolving the matter. Following notification, the Panel would take whatever action it deemed appropriate to resolve the impasse.
In accordance with this procedural determination, former Panel Member Charles A. Kothe met with the parties on September 26 and 27, 1994, in San Francisco, California. During that proceeding, agreement was reached on one article (Basic Work Week and Hours of Work) and portions of the others; a number of issues, however, remained in dispute. At the conclusion of the meeting, Mr. Kothe requested that each party provide him with two written documents; one was to set forth the party's final offers on the remaining issues and the other, to be submitted a few days later, was to provide arguments in support of the final proposals.
After reviewing the status of the case, which included a report from Mr. Kothe, the Panel determined that two representatives should review the entire case record and, if necessary, conduct a conference call with the parties; following this review, the representatives were to notify the Panel of the status of the dispute and provide recommendations for resolving the matter. Following this notification, the Panel would take whatever action it deemed appropriate to resolve the impasse.(1)
In accordance with this determination, Assistant Executive Director H. Joseph Schimansky and Staff Associate Harry E. Jones reviewed the case documents and conducted a series of conference calls with the parties. During this process, a number of issues were resolved, and the scope of the dispute was narrowed; the parties, however, remained deadlocked on five issues. Messrs. Jones and Schimansky have reported to the Panel, and it has now considered the entire record.
BACKGROUND
The Employer's mission is to operate and maintain Golden Gate National Recreation Area (GGNRA) in San Francisco. At the time the request was filed, the bargaining unit consisted of approximately 220 nonprofessional employees who range in grade from GS-3 through -12 and WG-2 through -10.(2) The Union was certified as the exclusive representative in 1990; prior to that, GGNRA employees were unrepresented. The parties have reached impasse following lengthy negotiations for an initial collective-bargaining agreement.
ISSUES
There are five issues at impasse: (1) whether employees should be classified or compensated on the basis of duties performed; (2) whether the chief steward should be allowed an annual bank of 250 hours of official time; (3) procedures for stewards to follow in using official time; (4) procedures for selecting employees for details and temporary promotions; and (5) merit promotion procedures.
1. Classification and Position Description
a. The Employer's Position
The Employer's proposal is as follows:
Section 4. The Employer agrees that Federal Wage System employees will be classified on the basis of the highest level of duties performed on a regular and recurring basis. General Schedule employees will be classified on the basis of the highest level of duties performed on a regular and recurring basis at least 20 to 25 percent of the time. (Emphasis added.)
Under Office of Personnel Management (OPM) regulations and Comptroller General decisions, employees are compensated at the appropriate level based upon their position classification.(3) Since the proposal is consistent with existing regulatory requirements, it should be adopted.
The Union's proposal, on the other hand, is nonnegotiable, as it conflicts with OPM regulations and Comptroller General case law.(4) It is also unacceptable on the merits, as it could be interpreted to require that the Employer pay employees at a higher rate whenever they are assigned higher graded duties. Since employees could conceivably shift in grade and pay on a daily basis, the Employer would have to keep meticulous records to ensure that employees receive the correct rate of pay. Finally, such a system may require the processing of multiple personnel actions during one 2-week pay period and, therefore, would be overly burdensome to administer.
b. The Union's Position
The Union proposes the following:
Section 4. The Employer agrees that Federal Wage Service employees will be compensated on the basis of the highest level of duties performed on a regular and recurring basis. Federal General Schedule employees will be compensated on the basis of the highest level of duties performed on a regular and recurring basis at least 20 to 25 percent of the time. (Emphasis added.)
This proposal is fully negotiable, and does not mean, as the Employer suggests, that employees would receive a higher rate of pay whenever they perform higher level duties. Instead, the proposal would merely ensure that an employee's compensation level corresponds to the duties that he or she performs. It would also underscore the Employer's obligation to properly compensate employees for the work they perform, and would allow the Union to pursue a remedy under the grievance procedure if an employee is underpaid. The Employer's proposal, on the other hand, could be unfair to employees, as there is likely to be a lag between the time that an employee begins performing higher level duties and the date when the position is reclassified. Since classification actions cannot be applied retroactively, employees may end up being shortchanged.
CONCLUSIONS
In examining the duty-to-bargain question, we conclude that there is no need to address the parties' arguments, as we believe that the Employer's proposal provides the better resolution to the impasse. The Comptroller General has held that "employees are entitled only to the salaries of the positions to which they are appointed, regardless of the duties they actually perform," and the Employer's wording is consistent with that ruling. In addition, because the Employer's proposal clearly states that classification "will" be linked to the duties performed, the Employer appears to have accepted the burden of monitoring employees' assignments to ensure that positions are properly classified. While we recognize that there may, in fact, be a lag between the point at which the employee performs the requisite level of higher graded duties and the date of the classification action, we cannot disregard existing law and require that an employee be paid at a higher rate prior to his or her position being reclassified. We note that the Union's proposal, by requiring that compensation be based on the highest level of duties performed, appears to be an attempt to provide a remedy for delay in the processing of classification actions. Although this approach may, at first blush, appear to be reasonable, closer examination reveals that it directly conflicts with existing case law.(5) For these reasons we shall order the adoption of the Employer's proposal.
2. Union Rights and Representation -- Amount of Official Time
a. The Employer's Position
The Employer proposes the following:
. Union stewards shall be authorized a reasonable amount of official time during working hours, without a loss of leave or pay, for all representation matters. This shall include discussing, preparing, and researching grievances or potential grievances with employees or other Union representatives investigating grievances, preparing for meeting with the Employer, attendance at Weingarten meetings, preparing bargaining proposals, and preparing replies to proposed disciplinary or adverse actions.Section 2(b)
The "reasonable time" standard should provide a sufficient amount of official time for Union stewards to perform representational duties. This standard has been utilized, without any significant problems, during the 3-year period since the Union was certified as the exclusive representative. Since the proposal would allow official time for a wide range of activities, it provides a suitable way of addressing the issue. With respect to the Union's proposal, there is no demonstrated need for an additional 250 hours for the chief steward; neither past usage nor an increase in the size of the unit support such a proposal.
b. The Union's Position
The Union proposes that:
Each year, commencing with the signing of this agreement (anniversary date) the Employer shall establish a bank of 250 hours for the use of the chief steward in the performance of representational activities. Union stewards shall be allowed a reasonable amount of official time for representational activities. This shall include discussing, preparing, and researching grievances or potential grievances with employees or other Union representatives investigating grievances, preparing for meeting with Management, preparing bargaining proposals, and preparing replies to proposed disciplinary or adverse actions.
This proposal would provide an additional amount of official time for the chief steward to perform non-specific representational duties. A bank of 250 hours is necessary in the event that unanticipated issues arise which require the chief steward's attention. Moreover, as the unit has gained employees since the Union was certified, more official time for the chief steward is justified. The Employer's proposal is unacceptable because it fails to recognize the additional responsibilities of the chief steward. Finally, repeated requests for official time could be disruptive to the workplace and may cause friction between the chief steward and his or her supervisor; this, in turn, could have a negative impact on the parties' overall relationship.
CONCLUSIONS
Having carefully considered the evidence and arguments presented on this issue, we conclude that the Employer's proposal should serve as the basis for resolving the impasse. In our view, the "reasonable time" standard should provide sufficient time for all Union representatives, including the chief steward, to perform necessary representational duties. Given that this is an initial agreement, there is little in the way of history to justify an additional 250 hours for the chief steward. In implementing this approach, the parties will have the opportunity to track official time usage and, if necessary, modify the arrangement in the future. Accordingly, we shall order the adoption of the Employer's proposal.
3. Union Rights and Representation -- Use of Official Time
a. The Employer's Position
The Employer's proposed wording is:
Section 2(c). The steward will inform the Employer of the approximate amount of official time that will be needed and the general location where the steward will be performing the representational duties. If the steward requires more official time than originally approved by the Employer, he/she will contact the Employer to obtain approval for additional time. When a steward has completed the use of official time, he/she will check in with the Employer when returning to the work area.
This proposal sets forth the same procedure for use of official time as the one contained in nearly all other labor agreements between National Park Service activities and their local unions; at those installations, the procedure has worked well. In essence, it prescribes for Union representatives the same process that supervisors observe whenever any employee leaves the work site. The requirements would not be burdensome to the stewards and should allow supervisors to plan around their absences. In the Employer's view, the procedure would accommodate the Union's interest in fulfilling its obligations to unit members.
b. The Union's Position
The Employer should be ordered to withdraw its proposal because other agreed-to provisions cover the same subject.(6) In this connection, if the procedure for using official time becomes too cumbersome, there may be a chilling effect on stewards' willingness to undertake representational duties.
CONCLUSIONS
After thoroughly reviewing the evidence and arguments presented by the parties on this issue, we are persuaded that the Employer's proposal is unnecessary. In our view, the other contractual provisions already agreed to by the parties provide an adequate balance between their competing interests. Any additional contractual requirements would be mere surplusage and would only serve to complicate administration of the agreement. For these reasons, we shall order the Employer to withdraw its proposal.
4. Details and Temporary Promotions -- Procedures
a. The Employer's Position
The Employer's proposal is as follows:
Section 2. It is agreed that details and temporary promotions(7) are generally intended to meet temporary work program and operational needs of the agency. To this end, the parties recognize the need of the Employer to maintain the ability to make details based upon the Employer's needs in order to carry out the mission of the organization.
"Acting" assignments to supervisory and leader positions under 30 days will normally be made on a rotation basis among the qualified employee[s] at the next lower grade in the work unit.
When it is anticipated that a detail to a classified position of higher grade will exceed 30 calendar days, the employee will be given a temporary promotion, however employees must satisfy requirements of law and/or appropriate regulations for temporary promotions.
Details and temporary promotions may be announced to provide an opportunity for employees to express interest in such assignments. When this is done, selection for the detail and/or temporary promotion will be made [from] among the employees responding.
There is no obligation for the Employer to give consideration to detailing or temporarily promoting an employee as a result of the employee being in one or more of the following categories: (1) an employee who fails to meet X-118 Qualification Requirements (applicable only to temporary promotions); (2) an employee in light duty status as the result [of] an examination by a competent medical authority; (3) an employee who has been issued a proposed disciplinary action which is pending; (4) an employee whose last rating of record is below fully successful; (5) an employee under the terms and conditions of a settlement agreement of a disciplinary or adverse action; (6) an employee who has been notified that her/his attendance is unsatisfactory.
Section 3. Acting assignments and details to positions for less than 30 days will be notated in an official memorandum issued to the employee. Details and temporary promotions will be recorded on a Standard Form 50 and maintained as a permanent record in the employee's Official Personnel File (OPF).
Its proposal provides a fair procedure for determining how employees will be selected for "acting" supervisor and leader positions. In this regard, the proposed rotational system would provide supervisory experience to a greater number of individuals, while allowing work to continue under the direction of capable employees. With respect to all other details, as well as temporary promotions, management should be allowed to select the employee of its choice, without being required to follow any formal procedure. If, however, it decides to announce a detail or temporary promotion, management would be required to select from those employees who express interest; this is a reasonable approach which should provide expanded opportunities for some unit employees. Moreover, the requirement that an employee be given a temporary promotion whenever a detail to a higher graded position is expected to last more than 30 days is appropriate, since the assignment would be for an extended period, and the employee would more than likely be expected to perform the full scope of duties. Furthermore, the proposed exceptions are reasonable and should assist the Employer in selecting the most qualified candidates. Finally, the recordkeeping provision of Section 3 addresses the Union's interest in documenting details and temporary promotions so that employees may make reference to their experience when applying for promotional opportunities.
The Union's proposal is confusing, as it sets forth two inconsistent approaches for selecting employees for details and temporary promotions. Initially, it proposes that selections be made on a "fair and equitable basis from among qualified unit employees;" it also proposes, however, that a seniority-based system be utilized in filling details to same or lower graded positions. The proposed provision that employees be paid at the higher rate, from the first day of "an assignment" to a higher graded position, when the assignment is expected to last for 2 weeks or longer, appears to conflict with the proposed provision that allows management to detail an employee to a higher graded position for a period of 15 days before the assignment is converted to a temporary promotion. Finally, the Union's exceptions appear to be less restrictive than those proposed by management, which could result in an undeserving employee receiving the benefit of a detail or temporary promotion.
b. The Union's Position
The Union proposes the following:
. (a). When the Employer decides to fill a temporary opening, within or outside the bargaining unit, with a unit employee, such detail or temporary promotion will be made on a fair and equitable basis among qualified unit employees, especially where it is known that the detail will provide experience which will enhance qualification or promotion possibilities, unless a voluntary agreement has been reached.Section 2
(b). A temporary promotion of a unit employee for a period of three (3) to fourteen (14) calendar days will be filled in accordance with section 2a. A letter of designation shall be placed in the employee's OPF to document the detail.
(c). A detail to a higher graded position or duties for 15 days or longer shall be considered a temporary promotion and filled as described above if a voluntary agreement is not reached. Management shall effectuate temporary promotions at the start of an employee's assignment to a higher graded position when the higher grade assignment will last for two (2) consecutive weeks or longer.
(d). A temporary promotion for a period of 120 days or longer will be filled competitively in accord with all applicable laws, rules, and regulations. NOTE: EXCEPTIONS TO PROCEDURES: It is agreed and understood that there is no obligation for the Employer to give any consideration to detailing or temporarily promoting an employee utilizing either seniority or rotation as a result of the employee being in one or more of the following categories: (1) failure to meet X-118 Qualification Requirements (applicable only to temporary promotions); (2) employee is in light duty status as a result of a competent medical authority; (3) there is a proposed suspension/removal action or a decision to demote in official progress; (4) a preliminary warning of unsatisfactory performance is in official progress; (5) the employee is under the terms and conditions of a settlement agreement; (6) the employee is under a notice of unsatisfactory absenteeism.
(e). In the absence of volunteers, the detail of a unit employee to a lower graded unit position shall be on the basis of inverse seniority among employees in the losing work site.
(f). The Employer agrees to solicit volunteers from among qualified employees when detailing employees to a unit position for more than thirty (30) calendar days at the same grade level, but in a different title series. If there are too many volunteers, the most senior employee will be detailed; if too few volunteers, then inverse seniority prevails.
Under this plan, management is required to select employees for details and temporary promotions on a "fair and equitable basis." More specifically, the provision, which requires that details to unit positions at the same grade level, but in a different title series, be filled with the most senior volunteer, pays deference to employees' length of service with the organization; this is also true with respect to those provisions which require that the least senior employee be detailed to a same or lower graded position in the absence of volunteers. The requirement that details to higher graded positions be converted to temporary promotions, when they last for 15 days or longer, is fair to employees, as at that point, they are likely to be performing the full scope of duties of the higher graded position. In this same vein, when the Employer knows in advance that an assignment to a higher graded position will last for 2 weeks or longer, it is reasonable for the assignment to be considered a temporary promotion from the beginning, thereby allowing the employee to receive the higher rate of pay from the first day. Furthermore, specifying that temporary promotions which last more than 120 days be filled competitively is consistent with statutory requirements.(8) Finally, that portion of the proposal which requires that a letter documenting an employee's detail be placed in his or her Official Personnel File should be useful to employees in applying for higher graded positions.
The Employer's proposal is deficient since the circumstances under which employees detailed to higher graded positions would be eligible to be paid at the higher rate are too restrictive; in this regard, such payment would be required only when management anticipates that the length of the detail will exceed 30 days. Because the Employer's proposed procedure contains no requirement that details or temporary promotions be announced, its proposed selection procedures for details and temporary promotions allow it too much discretion. That is, even if a detail or temporary promotion is announced, at management's discretion, the only requirement is that the selection be made from among those employees who respond; this approach ignores seniority and could, quite possibly, result in favoritism. Finally, the Employer's proposal contains no provision as to how details to lower graded positions should be handled.
CONCLUSIONS
Upon careful consideration of the evidence and arguments presented in support of the parties' respective positions on this issue, we conclude that neither would provide an adequate resolution to the dispute. In this regard, both proposals lack clarity and fail to balance the interests of management and the Union sufficiently. Although it is with some reluctance that we impose our own wording, we nevertheless shall direct the adoption of a compromise, as set forth in our Order, which, in our view, provides a more reasonable approach to the subject of details and temporary promotions.
Our wording should sharpen the distinction between details and temporary promotions and provide consistency with the definitions of these terms which were agreed upon by the parties. It requires that selections for short-term details be made through a seniority-based rotation system and, thus, is deferential to employees' length of service to the organization. Furthermore, it prescribes that details which are expected to last longer than 15 work days be announced. We believe that this will not be overly burdensome to the Employer and should provide greater opportunities for all unit employees. With respect to lengthier details, the compromise establishes reasonable procedures for details to same and lower graded positions, while allowing management some flexibility in selecting employees for higher graded positions. In addition, it mandates that details to higher graded positions be converted to temporary promotions after 15 work days, a requirement which is fair and one that should not be costly to the Employer. Moreover, the exceptions listed in our wording are appropriate and will assist the Employer in obtaining the best possible candidate for a detail or temporary promotion. Finally, the recordkeeping portion of the compromise should address the Union's interest in documenting details and temporary promotions without creating a major administrative burden for the Employer. For these reasons, we shall order adoption of the wording set forth in paragraph 4 of our Order.
5. Promotions and Assignment/Merit Promotion
a. The Employer's Position
The Employer proposes the following:
Section 1. This article pertains to assigning and promoting unit employees to duties and positions within the bargaining unit. Promotions within the park will be processed in accordance with merit principles, which provide for placement or promotion from among the best qualified candidates available, and the National Park Service's Merit Promotion Plan. Selections shall be made without regard to political, religious or labor organization affiliation or non-affiliation, marital status, race, color, sex, national origin, non-disqualifying physical handicap or age and shall be based solely on job-related criteria.
The Employer also has the right to fill positions by promotion or by selection from other appropriate sources, such as reemployment priority lists, veterans readjustment appointments, transfers from other Federal agencies, reassignments, reinstatement of former Federal employees, appointment or conversion of cooperative education students, employment of the handicapped, or competitive appointment from appropriate Office of Personnel Management certificates of eligibles. In deciding which source or sources to use, selecting officials have an obligation to determine which would best meet the Park's mission objectives, contribute fresh ideas and viewpoints, meet affirmative action goals, and provide opportunities for advancement among unit employees.
Section 4. The Employer and the Union recognize that promotion opportunities for current unit employees are important to continued job satisfaction and employee morale. The Employer agrees to provide priority consideration to unit employees for promotion opportunities within the bargaining unit when five (5) or more unit employees are certified to the selecting official as promotion eligibles. Priority consideration is defined as the consideration of those five [or] more unit employees for the vacancy by the selecting official before the consideration of any other applicants. Priority consideration shall provide that the five (5) or more unit employees shall be interviewed for the promotion opportunity in cases where interviews are conducted and that additional interviews shall only be conducted if the selecting official is not satisfied with the findings of the interviews of the five or more unit employees.
The proposed wording of Section 1, which would require that vacancies be filled in accordance with established merit principles, should provide assurances to employees that they will receive fair treatment. In this same vein, the proposed nondiscrimination provision is consistent with existing civil rights protections. Moreover, that portion of the proposal which describes the sources from which the Employer may select is consistent with the management rights section of the Statute.(9) Also, unit employees should benefit from the priority consideration plan proposed in Section 4, as it will allow them to have an advantage over external candidates for promotional opportunities.
The Union's proposed introductory wording in Section 3, as well as paragraph 3a., are nonnegotiable, because they conflict with management's right, under section 7106(a)(2)(C) of the Statute, to select from "any other appropriate source." On the merits, restricting the pool of candidates for initial consideration to GGNRA employees, or employees entitled to concurrent consideration under OPM regulations, would prevent management from adding more talented employees to the agency. Finally, the requirement that each candidate referred to the selecting official be interviewed would be overly burdensome.
b. The Union's Position
The Union's proposed wording is:
Section 3. The Employer agrees to limit the area of initial consideration for promotion to GGNRA employees and employees entitled to concurrent consideration under conditions prescribed by the Office of Personnel Management regulations, or as otherwise required by law, and the provisions of this agreement.
a. The selecting official shall make his choice from among the names of the best qualified list referred by the Personnel Office.
b. The best qualified list will be established as follows: (1) where the vacancy is not a series and grade identified as under-represented, the referral shall include the names of the five (5) best qualified candidates; (2) where the vacancy is in a series and grade identified as under-represented, the referral list shall contain at least one member of the under-represented groups.
Section 4. Each available applicant referred to the selecting official will be interviewed by the selecting official before the selection is made, unless the applicant was interviewed by the same selecting official for the same position within the previous sixty (60) days.
This proposal is fully negotiable, and, therefore, the Panel should proceed to the merits of the issue.(10) The introductory wording of Section 3, which would limit the area of initial consideration to GGNRA employees, or employees entitled to concurrent consideration under OPM regulations, should provide greater promotional opportunities for these employees. Moreover, requiring that minorities be included on the best qualified list, when the vacant position is in a series and grade that has been identified as under-represented, should help to achieve diversity in the workplace. Further, the requirement that applicants referred to the selecting official be interviewed would allow candidates to provide additional information in a face-to-face setting, thereby allowing management to make a well-founded selection. Finally, the Employer's proposal is unnecessarily restrictive as it would limit priority consideration to instances where only five or more unit employees are certified as eligible.
CONCLUSIONS
Preliminarily, we need not address the allegation that portions of the Union's proposal are nonnegotiable, as we are persuaded that a slightly modified version of the Employer's proposal should provide the best resolution to the dispute. In our view, its proposal, for the most part, strikes the proper balance between management's need for flexibility in hiring and its obligation to unit employees that they be treated fairly. The only modification we find necessary is a reduction in the threshold point at which priority consideration of unit employees is required. In this regard, we believe that priority consideration should be given to unit employees for promotional opportunities within the bargaining unit when three or more are certified to the selecting official as promotion eligibles. This should maximize promotional opportunities for unit employees without placing undue administrative burdens on the Employer. Accordingly, we shall order the adoption of wording consistent with this approach.
ORDER
Pursuant to the authority vested in it by section 7119 of 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 § 2471.11(a) of its regulations hereby orders the parties to adopt the following:
1. Classification and Position Description
The parties shall adopt the Employer's proposal.
2. Union Rights and Representation -- Amount of Official Time
The parties shall adopt the Employer's proposal.
3. Union Rights and Representation -- Use of Official Time
The Employer shall withdraw its proposal.
4. Details and Temporary Promotions -- Procedures
The parties shall adopt the following wording:
Section 2. It is agreed that details and temporary promotions are generally intended to meet temporary work program and operational needs of the agency.
(a). Details. The parties recognize the need of the Employer to maintain the ability to make details based upon its needs in order to carry out the mission of the organization. Details which are expected to last for a period of 15 working days or less will normally be made on a rotation basis among the qualified employees in the work unit. Details which are expected to last for more than 15 working days will be announced to provide an opportunity for employees to express interest in such assignments. When a detail is announced which is expected to last more than 15 working days and it involves either a lower graded unit position or a unit position at the same grade level, the most senior volunteer will be detailed; if there are no volunteers, the detail shall be filled on the basis of inverse seniority among employees in the losing work site. When a detail is announced which is expected to last more than 15 working days and it involves a higher graded position, such detail will be filled on a fair and equitable basis from among qualified unit employees.
(b). Temporary Promotions. When a detail to a higher graded position lasts longer than 15 working days, the assignment will become a temporary promotion, and the employee will be compensated at the higher grade rate of pay. A temporary promotion which lasts for a period of 120 calendar days or longer will be filled competitively in accord with all applicable laws, rules, and regulations. Employees must satisfy requirements of law and/or appropriate regulations for temporary promotions.
(c). Exceptions. There is no obligation for the Employer to give consideration to detailing or temporarily promoting an employee as a result of the employee being in one or more of the following categories: (1) an employee who fails to meet X-118 Qualification Requirements (applicable only to temporary promotions); (2) an employee who has been placed in light duty status as the result of an examination by a competent medical authority; (3) an employee who has been issued a proposed disciplinary action which is pending; (4) an employee whose last rating of record is below fully successful; (5) an employee under the terms and conditions of a settlement agreement of a disciplinary or adverse action; or (6) an employee who has been notified that her/his attendance is unsatisfactory.
Section 3. Details and temporary promotions which last for less than 30 days will be notated in an official memorandum issued to the employee. Details and temporary promotions which last 30 days or more will be recorded on a Standard Form 50 and maintained as a permanent record in the employee's Official Personnel File (OPF).
5. Promotions and Assignment/Merit Promotion
The parties shall adopt the following wording:
Section 1. This article pertains to assigning and promoting unit employees to duties and positions within the bargaining unit. Promotions within the park will be processed in accordance with merit principles, which provide for placement or promotion from among the best qualified candidates available, and the National Park Service's Merit Promotion Plan. Selections shall be made without regard to political, religious or labor organization affiliation or non-affiliation, marital status, race, color, sex, national origin, non-disqualifying physical handicap or age and shall be based solely on job-related criteria.
The Employer also has the right to fill positions by promotion or by selection from other appropriate sources, such as reemployment priority lists, veterans readjustment appointments, transfers from other Federal agencies, reassignments, reinstatement of former Federal employees, appointment or conversion of cooperative education students, employment of the handicapped, or competitive appointment from appropriate Office of Personnel Management certificates of eligibles. In deciding which source or sources to use, selecting officials have an obligation to determine which would best meet the Park's mission objectives, contribute fresh ideas and viewpoints, meet affirmative action goals, and provide opportunities for advancement among unit employees.
Section 4. The Employer and the Union recognize that promotion opportunities for current unit employees are important to continued job satisfaction and employee morale. The Employer agrees to provide priority consideration to unit employees for promotion opportunities within the bargaining unit when three or more unit employees are certified to the selecting official as promotion eligibles. Priority consideration is defined as the consideration of those three or more unit employees for the vacancy by the selecting official before the consideration of any other applicants. Priority consideration shall provide that the three or more unit employees shall be interviewed for the promotion opportunity in cases where interviews are conducted and that additional interviews shall only be conducted if the selecting official is not satisfied with the findings of the interviews of the three or more unit employees.
By direction of the Panel.
Linda A. Lafferty
Executive Director
January 11, 1995
Washington, D.C.
1.Shortly after this second procedural determination was made, Mr. Kothe was replaced as a member of the Panel.
2.On October 1, 1994, management of the Presidio was transferred from the Department of the Army to GGNRA. Following this transfer, the size of the unit increased because a number of former Presidio employees were added through accretion. The record does not reveal the precise size of the bargaining unit at the current time.
3.The Comptroller General has held:
Federal government employees are entitled only to the salaries of the positions to which they are appointed, regardless of the duties they actually perform. Thus, even if a position to which an employee is appointed is subsequently reclassified to a position of higher grade, entitlement to the pay of the higher grade does not commence until the employee is actually appointed to the higher grade. Steven M. Seyfried, B-243818 (June 7, 1991).
In addition, OPM regulations provide that the effective date of a change in the classification of a position is not earlier than the date of the decision. 5 C.F.R. § 511.701(b)(1994). Taken together, these two principles support the argument that an employee is to be compensated for a higher level of duties only when the position in which he or she is performing is reclassified -- not at the point when the employee performs the higher graded duties.
4.See supra note 1.
5.In addition to the case and regulation cited at note 1, supra, the Union's proposal appears to be inconsistent with the U.S. Supreme Court's holding in United States v. Testan, 424 U.S. 392 (1976). In that case, the court held that the Back Pay Act does not provide a substantive right to backpay for periods of wrongful position classification.
6.The following provision, which was the Union's proposed Article IV, Section 3(a), was previously agreed to by the parties. It provides as follows:
An employee desiring to see a steward shall notify his supervisor. The employee shall then contact the steward. A tentative appointment shall be made in that discussion. The steward shall then notify his supervisor of the request and confirm the arrangements. Any employee seeking to see a steward during duty hours shall be released as soon as possible, but in no event later than two (2) hours prior to the end of the employee's next shift unless a compelling need would preclude the employee or steward's release.
In addition, the parties have agreed to the following provision, which was submitted as the Union's proposed Article IV, Section 7. It reads as follows:
The Union and the Employer recognize and firmly endorse that use of official time by stewards and the chief steward must be accurately recorded on [an] official document or a Union steward log which will be used for this purpose. Each steward and the chief steward will be required to make proper and complete entry on the log after each use of official time for representational purposes. Each entry will be initialed by the representative of the Employer who has authorized the use of official duty time for the purpose which is stated on the
log. At the end of each month, each supervisor and steward shall jointly properly tabulate the number of hours used in each category specified on the log and send the original to the Labor Relations
Officer with copies to the Union's Business Manager by the 5th of the following month.
Finally, the parties have also agreed to the following provision, which was submitted as the Union's proposed Article IV, Section 9. It provides:
If there is a question of the abuse of official release time by the chief steward or the area stewards, the Employer will bring it to the attention of the Union for resolution.
7.The parties have agreed to the following definitions:
Detail. For the purpose of this agreement, a detail is defined as the temporary assignment of an employee without change in status or pay to a different position or set of duties for a specified period of time with the employee returning to his/her regular duties at the end of the temporary assignment. Employees may be detailed to the same
grade, lower grade, or an unclassified position for an initial period of 120 days with extensions, in 120-day increments, up to one year. Details to higher graded positions which are expected to exceed 120 days must be filled through merit promotion procedures.
Temporary Promotions. For [the] purpose of this agreement, a temporary promotion is defined as the temporary assignment of an employee to a higher graded position. To hold a temporary promotion, an employee must meet all qualification requirements for the higher graded position and will be compensated at the higher grade rate of pay. Temporary promotion which exceeds 120 days must be filled through merit promotion procedures.
8.See 5 U.S.C. § 3341(b)(1988).
9.Section 7106(a)(2)(C) provides:
(a) Subject to subsection (b) of this section, nothing
in this chapter shall affect the authority of any management official of any agency--
(2) in accordance with applicable laws--
(C) with respect to filling positions, to make selections for appointments from--
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source[.]
10.It is well-established that union proposals which narrow the area of consideration for employee vacancies are within the scope of bargaining.
See National Treasury Employees Union and Internal Revenue Service, 7 FLRA 275 (1981);
Association of Civilian Technicians, Delaware Chapter and National Guard Bureau, Delaware National
Guard, 3 FLRA 57 (1980); and American Federation of Government Employees, AFL-CIO, Local 331 and Veterans Administration Hospital, Perry Point,
Maryland, 2 FLRA 428 (1980).