35:1154(127)AR - - Agriculture, Food and Nutrition Service and NTEU - - 1990 FLRAdec AR - - v35 p1154
[ v35 p1154 ]
The decision of the Authority follows:
35 FLRA NO. 127
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF AGRICULTURE
FOOD AND NUTRITION SERVICE
NATIONAL TREASURY EMPLOYEES UNION
May 16, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the interest arbitration award of Arbitrator Jerome H. Ross. In the award, the Arbitrator imposed certain provisions concerning career promotion and merit promotion as part of the parties' collective bargaining agreement.
The Department of Agriculture (the Agency) filed exceptions, on behalf of the Food and Nutrition Service (FNS), to these portions of the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.(1) The Union filed an opposition to the Agency's exceptions.
We conclude that by imposing the disputed provision of the merit promotion article, the award is contrary to management's right to make selections for appointments under section 7106(a)(2)(C) of the Statute and Federal Personnel Manual (FPM) chapter 335, subchapter 1, requirement 4. Accordingly, we will strike the disputed language imposed by the Arbitrator.
II. Background and Arbitrator's Award
During the renegotiation of their collective bargaining agreement, the parties reached an impasse and sought the assistance of the Federal Service Impasses Panel (the Panel). The Panel directed the parties to use an outside arbitrator to resolve their impasse.
In resolution of the parties' impasse over merit promotion, the Arbitrator imposed the following provision as part of the parties' collective bargaining agreement:
Article 12. Merit Promotion. Section C(2).
Consistent with Section C(1) above, all applicants will be rated and ranked, and a best qualified list shall be sent to the selecting official. If, in the judgment of the selecting official, two or more of the applicants are equally qualified for a position, the candidate with the greatest FNS service shall be selected.
Only the underlined sentence is in dispute.
III. Positions of the Parties
The Agency contends that the award is deficient because the imposed provision conflicts with management's right to make selections for appointments under section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1, requirement 4.
The Agency first maintains that pursuant to law and regulation, management has the right to select from any appropriate source and cannot be restricted to making a selection under competitive procedures from the best-qualified list. The Agency argues that the language of the imposed provision precludes management from looking beyond those individuals included on the best-qualified list and precludes management from making a selection from any other appropriate source.
The Agency also maintains that the language of the imposed provision precludes management from making the selection from among the properly ranked and certified candidates for promotion. The Agency notes that the provision imposed by the Arbitrator is an integral part of a merit promotion process that includes the preparation of a best-qualified list under established merit promotion procedures. The Agency argues that in such cases, pursuant to law and regulation, the selecting official is permitted to select any individual from among those on the best-qualified list without restriction. However, the Agency contends that under the clear language of the provision imposed by the Arbitrator's award, the selecting official must select the applicant on the best-qualified list with the greatest FNS seniority. Consequently, the Agency argues that the language of the imposed provision conflicts with rights granted by section 7106(a)(2)(C) and FPM chapter 335, subchapter 1, requirement 4 because the selecting official would not be allowed to make the selection, but must accept only the applicant with the greatest FNS seniority. The Agency contends that its position is supported by the court's decision in Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982) (DoD v. FLRA).
The Union disputes the Agency's contentions. The Union argues that the language of the provision imposed by the Arbitrator does not preclude management from looking beyond the individuals on the best-qualified list. The Union argues that the language does not state, as the Agency claims, that the equally qualified applicants must be on the best-qualified list.
The Union asserts that the language simply requires that when, in the judgment of the selecting official, two or more applicants from whatever source are equally qualified, FNS seniority shall be used as the basis of the selection. Therefore, the Union claims that seniority is a negotiable procedure, consistent with section 7106(b)(2) of the Statute, for breaking ties between equally qualified candidates. The Union contends that the Authority found a similar proposal negotiable in Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 791-93 (1987) (Proposal 46), affirmed as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988) (Overseas Education Association).
IV. Analysis and Conclusion
We conclude that the disputed language is contrary to section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1, requirement 4 and that the award is deficient because it imposes the provision as part of the parties' collective bargaining agreement. We find that the provision conflicts with management's rights under the Statute and the FPM to select from among properly ranked and certified, or best-qualified, candidates and from any other appropriate source.
As part of the merit promotion article of the collective bargaining agreement and without an express exclusion of competitive selection procedures, the provision imposed by the Arbitrator encompasses competitive selection procedures within its coverage and application. Further, it provides for seniority as the determining factor in the selection between or among equally qualified applicants. Therefore, the provision precludes management from exercising its discretion under section 7106(a)(2)(C) and FPM chapter 335 to select under competitive promotion procedures from properly ranked and certified, or best-qualified, candidates and from any other appropriate source without restriction.
In American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603 (1980) (Proposals III-VI), the Authority was presented with four proposals that established procedures for the selection of individual employees for assignment by the agency on the basis of seniority. The Authority determined that Proposals IV, V, and VI conflicted with section 7106(a)(2)(A) of the Statute. The Authority explained that a procedure for selecting an employee for assignment solely on the basis of seniority removes from the agency the discretion to determine the personnel requirements of the work of the position that is an essential part of the decision to assign employees.
The Authority found that Proposal III was distinguishable from the other proposals because the proposal applied only when the agency chose not to use competitive selection procedures. The Authority noted that under FPM chapter 335, subchapter 1, requirement 4, use of competitive selection procedures preserves the agency's right to select the employee for promotion or assignment from among those available from any appropriate source. Consequently, the Authority concluded that because the proposal permitted the agency to use competitive selection procedures without the restriction of the proposal's procedure for selection, the proposal preserved the agency's discretion to select a particular employee for assignment and did not conflict with management's rights to assign employees under section 7106(a)(2)(A) and to make selections for appointment under section 7106(a)(2)(C).
In DoD v. FLRA, the court reviewed the Authority's determination (among others) in Wright-Patterson Air Force Base that Proposal III did not conflict with section 7106(a)(2)(A) and (C) and held that the Authority properly determined that the proposal was negotiable. The court agreed with the Authority that this proposal was negotiable "because it reserved to the agency the option of using 'competitive procedures' to make its selections." 659 F.2d at 1161. The court specifically noted that under the FPM, competitive procedures retain for the agency the right to "select or not select from among a group of best qualified candidates." Id. (quoting from FPM chapter 335, subchapter 1, requirement 4; footnote omitted). In agreement with the Authority, the court noted that "this reserved discretion made a crucial difference," and quoted the Authority's conclusion that under Proposal III, the agency retained the option of exercising its discretion to select a particular employee for assignment. Id.
The court upheld the Authority's decision, finding that the Authority's interpretation of section 7106(a)(2)(C) "as reserving a limited management discretion in employee selection" was consistent with the Statute and its legislative history. Id. at 1162. The court noted that the legislative history indicated that the intent of section 7106(a)(2)(C) was to make the standards, criteria, and procedures for establishing promotion certificates negotiable "while ensuring management's right to make the actual selection from the certificate, or to make the appointment from any other appropriate source." Id. (quoting with added emphasis 124 Cong. Rec. H9634 (daily ed. Sept. 13, 1978); footnote omitted). In the court's view, because Proposal III preserved management's right to choose among candidates ranked according to competitive procedures, the proposal was negotiable.
The provision imposed by the Arbitrator in this case does not preserve the Agency's discretion to select under competitive procedures from among properly ranked and certified candidates for promotion or among best-qualified candidates. The provision also does not preserve the Agency's discretion to select under competitive procedures the employee for promotion from among those available from any other appropriate source. Instead, by mandating seniority as the determining factor in the selection among equally qualified applicants even when management chooses to select under competitive selection procedures, the provision directly interferes with management's right to make the actual selection from a merit promotion certificate or to make the appointment from any other appropriate source.
The Authority's decision in Overseas Education Association cited by the Union does not provide otherwise. In finding Proposal 46 negotiable, the Authority expressly noted that the proposal applied only after management had decided to fill the position with a candidate from certain specified categories. Thus, in Overseas Education Association, the agency had at least four other sources from which it could choose without being bound by seniority. Only if it chose to select from categories 1 or 2 and several applicants were equally qualified would seniority be used to break the tie. In the Authority's view, this application was to the same effect as Proposal III in Wright-Patterson Air Force Base and maintained management's right to select. 29 FLRA at 793. In contrast, the provision in this case requires that seniority be used to select between equally qualified applicants, regardless of the source from which the Agency chooses to select, and does not maintain management's right to select.
Similarly, the Union's reliance on cases involving management's right to assign employees and to assign work is misplaced. In these cases, the Authority has found procedures governing the assignment of employees to be negotiable provided the procedures apply to employees p