By William Wiley

It’s a new year. We get new questions. Here’s one from a concerned reader that involves a staffing office that may be unfamiliar with a long-standing legal concept:

I recently conducted a labor arbitration case that resulted from a grievance.  The remedy that was negotiated for settlement included a “priority consideration” for the individual, noting that the individual had to be qualified and a vacant position open.  The “priority consideration” stated that “the appellant would be considered first by the selecting official before any of the other candidates, who applied competitively for that vacancy announcement, will be considered.  The Appellant will then be offered the position unless he is no otherwise qualified for the position at that time.”  I have been told by our Civilian Personnel Office that, while they recognize “priority consideration” they do not recognize the authority of the arbitrator to approve the use of priority consideration in the way I have structured it in the facts of this case. They believe that this “priority consideration” violates the merit system principles.   The CBA for the particular union in the grievance uses the “priority consideration” but only in those cases where the government, during a competitive promotion process, has errored against an individual.  The typical case is where the individual has not been referred and should have been.  In that case and only that case, the Civilian Personnel Office recognizes priority consideration and gives the wronged individual a referral in the next vacancy for which he/she is qualified but does not guarantee the job.  I have performed some research under FLRA case law and have not found any cases on point but have found cases where priority consideration was a remedy.  Would greatly value your opinion on this matter. Thank you.

And our occasionally-elucidating response:

Always nice to hear from you. The answer is not in FLRA law, but in MSPB law. “Priority consideration” is a term of art that “generally means that an employee will receive bona fide consideration by the selecting official before any other candidate is referred for consideration, that he will not be considered in competition with other candidates, and that he will not be compared with them,” Lou v. Heckler, 38 FEP Cases 835, 837 n.3 (D.C. Cir. 1985).

Even when there is some question as to how a settlement is to be implemented, the obligation of the agency is to implement it in line with legal authority. Agencies have been offering priority consideration for over 30 years, so we know you have the authority to do it. The only limitation would be that you have to offer it consistent with any legal constraints; e.g., perhaps there is a disabled employee who has the legally superior claim to the vacancy, and has to be offered it as a reasonable accommodation.

Your civilian personnel office is mistaken in where the authority comes from to award priority consideration. It is not the arbitrator who is exercising the authority, but the agency itself through the operation of the settlement it agreed to. We provide training to personnel specialists (OPM does not provide mandatory training, sadly). We’d be delighted to have some of them in our upcoming classes; perhaps save you and Rod further difficulties.

As a footnote, be sure to have your selecting official document his bona fide reasons for not selecting the grievant, if that is the result. You’re going to have to defend that the appropriate consideration was provided if there’s a non-selection.

Hope this helps. Best of luck-  [email protected]

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