Association of Civilian Technicians, Volunteer Chapter 103 and U.S. Department of Defense, Tennessee National Guard, Nashville, Tennessee

[ v55 p562 ]

55 FLRA No. 98

ASSOCIATION OF CIVILIAN TECHNICIANS
VOLUNTEER CHAPTER 103
(Union)

and

U.S. DEPARTMENT OF DEFENSE
TENNESSEE NATIONAL GUARD
NASHVILLE, TENNESSEE
(Agency)

0-NG-2404

______

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

June 30, 1999

______

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), [n2] and concerns a single provision of the parties' collective bargaining agreement that was disapproved pursuant to Agency head review under section 7114(c) of the Statute. [n3] The Agency filed a Statement of Position and the Union filed a Response.

      For the reasons that follow, we find that the provision is not contrary to law and order the Agency to rescind its disapproval.

II.     Provision

ARTICLE 15
Merit Promotion

. . . .
Section 17. Selecting Official Actions: Selecting officials have the right to select or not select any of the candidates referred to them. However, at the direction of the agency, he must select only from the well qualified group. The selecting official will:
     (a) Every effort will be made to conduct personal interviews. If not possible, telephone interviews should be conducted. When one of the referred technicians is interviewed, every effort should be made to interview all those on the certificate.
     (b) After interviewing the candidates, make the selection or provide written definitive justification to the HRO for the non-selection of each candidate on the promotion certificate.  [n4] 
          (1) For the purpose of this section, "definitive" means: a reason for non-selection which provides a non-selected area 1 applicant with information as to an area or areas where the applicant needs to improve.
          (2) Once justification has been accepted by the HRO, the remaining basically eligible area 1 candidates will be submitted to the selecting official.
          (3) The selecting official will then complete the action in paragraph (a) for those candidates.
          (4) Should the selecting official conclude that none of the remaining candidates are to be selected, the selecting official will complete the requirements of this paragraph. Provided there are no well qualified candidates and further expansion of the area of consideration is impractical, he may select a candidate from the qualified.  [n5]  [ v55 p563 ]
     (c) Sign and return the certificate to the HRO.
     (d) Insure employees hired in a trainee status will be informed of the approximate duration of the training necessary to become fully qualified.
     (e) If for some administrative reason the selection process cannot be completed, the selection package will be returned to the HRO.
(Only the underlined portions of the provision are in dispute.)

III.     Positions of the Parties

A.     Agency

      According to the Agency, the first paragraph of Section 17 of Article 15 requires it to select only candidates in the "well-qualified" group. Statement of Position at 3. The Agency claims that, because the provision is intended to prevent it from selecting from among qualified candidates, or candidates from any other source, if there are well-qualified candidates, the provision violates its right to select under section 7106(a)(2)(C).

      The Agency claims that, under paragraph (b) of Section 17, if the selecting official decides not to select from among the well-qualified group, that official must provide a written justification for the nonselection of each candidate as a precondition to consideration of other candidates. The Agency contends that this portion of the provision requires the exercise of its right to select under section 7106(a)(2)(C) by mandating a decision not to select, and a written justification of that decision, as a prerequisite to the completion of the selection process. The Agency argues that, under section 7106(a)(2)(C), the only justification needed for the consideration of other candidates is the Agency's discretion pursuant to that right.

      According to the Agency, because management must nonselect the well-qualified candidates, under paragraph (b) of Section 17, before considering other candidates, management is "denied the opportunity to evaluate and compare the qualifications" of the well-qualified candidates and those other candidates. Id. at 5. The Agency asserts that by depriving management of the right to evaluate and compare candidates before making a selection decision, the provision interferes with its right to select under section 7106(a)(2)(C).

      The Agency contends that the provision is not "procedural." Id. The Agency claims that, although cast in procedural terms, the provision not only dictates a selection or nonselection decision as a prerequisite to exercising its rights under section 7106(a)(2)(C), but dictates that the decision be made before the Agency has completely exercised its right under that section to evaluate and compare candidates. Specifically, the Agency asserts that, because the selecting official must nonselect well qualified "area 1" candidates before considering qualified "area 1" candidates, well qualified "area 1" candidates are "effectively removed from further consideration and/or comparison." Id.

B.     Union

      The Union contends that the Agency has misinterpreted the first paragraph of Section 17. Noting that the first paragraph states that "at the direction of the [A]gency" the selecting official must select only from the well-qualified group, the Union argues that, under the provision, "the selecting official must select from the well qualified group only if the agency directs the official to do so," and that "[t]he [A]gency has total discretion to determine, in any particular case, whether to direct the [A]gency's selecting official to select only from this group." Response at 1 (emphasis in original). The Union claims that, interpreted in this manner, the provision does not interfere with the right to select under section 7106(a)(2)(C).

      As to paragraph (b) of Section 17, the Union contends that the selecting official's decision not to select from among the well-qualified candidates is not "totally irrevocable." Response at 2. The Union states that, under the paragraph, "[i]f the selecting official initially non-selects all of the area 1 better qualified applicants, and prepares the required written justifications, and then on review of the next group of applicants changes her or his mind and decides to select one of the applicants in the group of area 1 better qualified candidates, nothing prohibits the selecting official from selecting that applicant." [n6] Id. [ v55 p564 ]

      The Union claims that the requirement for a written justification of nonselection of candidates is "purely procedural." Id. at 3. According to the Union, a requirement that management provide a written explanation of a decision to select or nonselect prior to considering another group of candidates does not interfere with the right to select under section 7106(a)(2)(C).

      The Union maintains that the Agency's argument that the provision interferes with section 7106(a)(2)(C) because it requires a nonselection decision before the selecting official has been able to evaluate and compare other candidates is based on the mistaken assumption that the decision to nonselect under the provision is irrevocable. According to the Union, the provision is consistent with section 7106(a)(2)(C) because once the requirements of the provision are fulfilled, and the selecting official has considered other candidates, the official can select from the well-qualified group initially considered.

      As to the last sentence of Section 17(b)(4), the Union states that, read in conjunction with the first sentence of Section 17(b) and the first sentence of Section 17 itself, the last sentence of Section 17(b)(4) does not restrict the discretion: (1) of the selecting official to determine which candidates are well qualified; or (2) of the Agency to expand the area of consideration. According to the Union, "the last sentence of Section 17(b)(4) means, '[P]rovided [the selecting official concludes that] there are no well qualified candidates and [that] further expansion of the area of consideration is impractical, he may select a candidate from the qualified.'" Id. at 3 n.1.

      The Union refers to Section 17 as "entirely procedural," Petition for Review at 2, or "purely procedural," Response at 3. The Union claims, in its Petition for Review, that the proposal is a procedure within the meaning of section 7106(b)(2) of the Statute.

IV.     Analysis and Conclusions

A.     Meaning of the Provision

1.     First Paragraph of Section 17

      By its terms, [n7] the first paragraph of Section 17 provides that, at the direction of the Agency, the selecting official must select only from among well-qualified candidates. [n8] Therefore, we will adopt that interpretation for purposes of this decision. [n9] 

2.     Section 17(b)

      Paragraph (b) of Section 17 prescribes the mechanics of the selection process and the order in which the selecting official will consider candidates. Specifically, after interviewing and considering candidates referred by the HRO, the selecting official will either make a selection or provide written definitive justification to the HRO for nonselection of each candidate. Such justification must provide information as to the ways in which the candidate needs to improve. Once the HRO accepts the justification submitted, the remaining basically eligible candidates will be referred to the selecting official. The selecting official will interview and consider those candidates and either select one of the candidates or nonselect each of them, providing written definitive justification to the HRO for the nonselection of each. If there are no "well qualified" candi- [ v55 p565 ] dates, and it is impractical to expand the area of consideration, the selecting official may select a qualified candidate.

      In the context of Article 15 as a whole, Section 17(b) requires the Agency to first consider well qualified candidates from "area 1"--technician members of the Tennessee National Guard--to select from among those candidates, or nonselect each candidate and provide a written justification for the nonselection. After the HRO accepts the justification for the nonselection of each candidate, the selecting official will receive a list of all "area 1" qualified candidates for consideration. If the selecting official decides not to select from among the qualified "area 1" candidates, he or she may reconsider the nonselected well qualified "area 1" candidates or expand the area of consideration. In this regard, the plain terms of the last sentence of Section 17(b)(4) provide that the Agency is limited to selecting from among qualified "area 1" candidates or expanding the area of consideration only if there are no well qualified "area 1" candidates. Because Section 17(b), as worded, allows the selecting official to select from among well-qualified "area 1" candidates after considering qualified candidates, we adopt that interpretation for purposes of this decision. [n10] 

B.     The First Paragraph of Section 17 Is Not Contrary to Law

      Under section 7106(a)(2)(C) of the Statute, agencies have the discretion to fill positions by selecting candidates from any appropriate source without restriction. See, e.g., Association of Civilian Technicians, Pennsylvania State Council and U.S. Department of Defense, Adjutant General of Pennsylvania, Fort Indiantown Gap, Annville, Pennsylvania, 54 FLRA 552, 558 (1998). Proposals that preserve management's discretion to decide the source from which a candidate will be selected do not directly interfere with management's right to select under section 7106(a)(2)(C). See, e.g., id.; Stateside Dependents Schools, 49 FLRA at 686-88. Cf. Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 135-36 (1988) (provision requiring hiring from a particular group, unless none of the group is highly qualified, directly interferes with right to select); Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 326-27 (1987) (proposals requiring agency to select only particular type of employees for specified vacancies, unless none were qualified or eligible, directly interferes with right to select).

      By providing that the selecting official must select, only at the direction of the Agency, a candidate from among well qualified "area 1" candidates, the first paragraph preserves the Agency's discretion to consider sources other than that group of candidates. Under that paragraph, the selecting official will select from those candidates only if the Agency decides to do so.

      Accordingly, we find that the first paragraph of Section 17 is not contrary to law.

C.     Section 17(b) Is Not Contrary to Law

      A proposal that requires an agency to give first consideration to bargaining unit employees when filling vacant positions, but does not prevent management from timely considering other applicants or expanding the area of consideration once bargaining unit employees are considered, does not directly interfere with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. See, e.g., Laurel Bay Teachers Association, OEA/NEA and U.S. Department of Defense, Stateside Dependents Schools, Laurel Bay Schools, Laurel Bay, South Carolina, 49 FLRA 679, 687 (1994) (Stateside Dependents Schools) (citing National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1287-88 (1992) (Nuclear Regulatory Commission)); American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1493-94 (1992)(HCFA).

      In addition, consistent with existing precedent, proposals that require an agency to provide a statement setting forth the reasons for the agency's action do not directly interfere with management's rights. See, e.g., Patent Office Professional Association and U.S. [ v55 p566 ] Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10, 65-66 (1993)(PTO, Washington); Nuclear Regulatory Commission, 43 FLRA at 1293. Specifically, a proposal requiring a management official to document the reasons for an action and secure the approval of the next higher level of management prior to taking that action does not directly interfere with management's rights. American Federation of Government Employees, AFL-CIO, Local 446 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, Asheville, North Carolina, 43 FLRA 836, 845 (1991) (Blue Ridge Parkway).

      Section 17(b) provides for the selecting official to consider well qualified "area 1," i.e., bargaining unit, candidates first and then, if the selecting official decides not to select any of those candidates, requires that official to provide written justification for the decision not to select each candidate. If that written justification is accepted by the Agency's HRO, the selecting official will then be able to consider other candidates. By permitting the selecting official to consider other candidates, once that official has rejected those first considered and provided the requisite written justification, Section 17(b) does not directly interfere with management's right to select under section 7106(a)(2)(C). This conclusion is consistent with the Authority precedent set forth above.

      The Agency's argument that the proposal directly interferes with its right to select because it requires the selecting official to decide not to select as a prerequisite to consideration of other candidates is not convincing. The selecting official would not need to consider other candidates if he or she had not already decided to select from the "area 1" well qualified candidates initially considered. The selecting official would request other candidates, that is, only if he or she had decided not to select from the candidates considered first. In referring to nonselection by the selecting official, Section 17(b) simply recognizes the options that the official confronts in considering candidates and exercising the right to select: either select from the initial list, and end the process, or don't select from that list and request to see other candidates. By recognizing those options, Section 17(b) does not directly interfere with management's right to select under section 7106(a)(2)(C).

      The Agency also argues that, by requiring a written justification of the decision not to select each of the candidates as a prerequisite to considering other candidates, Section 17(b) interferes with its right to select. However, Section 17(b) does not prescribe a substantive criterion by which the selecting official's decision not to select candidates can be evaluated. Rather, Section 17(b) requires the selecting official to explain to a nonselected candidate the area or areas in which the candidate would need to improve in order to warrant possible selection. [n11] See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 48 FLRA 129, 155-58 (1993) (proposals requiring the agency to provide guidance to employees, which does not limit the agency's ability to find an error in employees' performance, held not to directly interfere with management's rights to direct employees and assign work); PTO, Washington, 47 FLRA at 34 (1993) (proposal requiring written explanation of any deviations from expected practices in establishing performance standards held negotiable); Blue Ridge Parkway, 43 FLRA at 845. Consequently, consistent with existing Authority precedent, by requiring the selecting official to provide information to nonselected candidates, Section 17(b) would not directly interfere with management's right to select.

      As to the Agency's argument that Section 17(b) would preclude management from comparing candidates before making a selection, that argument is based on a misunderstanding of the proposal. The selecting official's decision is not irrevocable. Thus, that official can decide initially not to select from among the well qualified "area 1" candidates referred for first consideration, noting the reasons that he or she declines to select each candidate, and then examine qualified "area 1" candidates. After examining those candidates, the [ v55 p567 ] selecting official may choose from among the well qualified, or the qualified, "area 1" candidates, or expand the area of consideration. [n12] 

      Consistent with existing Authority precedent, therefore, we find that Section 17(b) is not contrary to law. See, e.g., Stateside Dependents Schools, 49 FLRA at 686-88 (1994); HCFA, 44 FLRA at 1493-94. Accordingly, we will order the Agency to rescind its disapproval of the provision.

V.     Order

      The Agency shall rescind its disapproval of the provision.


APPENDIX

1.     Article 15, Section 9 provides as follows:

Section 9. Area of Consideration: The areas of consideration for each specific position vacancy announcement will be in the following manner and sequence.
     (a) Bargaining unit positions:
          (1) Area one; all permanently employed technicians in the Tennessee National Guard.
          (2) Area two; all qualified members of the Tennessee National Guard.
          (3) Area three; those eligible for membership in the Tennessee Army National Guard.
NOTE: Although positions may be advertised to area 1 and 2 simultaneously the intent of this section 9, is that Bargaining Unit Technicians will receive first consideration for internal placement or merit promotion.

2.     Article 15, Section 13(b) provides, in relevant part, as follows:

Section 13. Processing Applications:
. . . .
     (b) If there are more than seven (7) qualified applicants, the HRO will appoint a rating panel for the purpose of rating the candidates to determine the seven (7) better qualified candidates. In the event there are seven (7) or less qualified candidates, the HRO will provide the selecting supervisor with the application and selection certificate. . . .

3.     Article 15, Section 16 provides as follows:

Section 16. Referral of Candidates: Following the evaluation of candidates, the HRO will refer the seven (7) better qualified candidates to the selecting official. Applications and supporting documents submitted by those candidates will also be forwarded to the selecting official.


File 1: Authority's Decision in 55 FLRA No. 98
File 2: Opinion of Chair Segal


Footnote # 1 for 55 FLRA No. 98 - Authority's Decision

   Chair Segal's dissenting opinion is found at the end of this decision.


Footnote # 2 for 55 FLRA No. 98 - Authority's Decision

   The Authority's regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.


Footnote # 3 for 55 FLRA No. 98 - Authority's Decision

   The Union's petition for review contained 3 other provisions. The parties agreed to revisions of the 3 provisions and the Union withdraws its petition for review as to those provisions. They will not be considered further in this decision.


Footnote # 4 for 55 FLRA No. 98 - Authority's Decision

   The text of this portion of paragraph (b), as submitted with the Petition for Review, and as referenced in the Agency's Statement of Position, included a duplicate of the phrase "or provide written definitive justification to the HRO for the non-selection." As set forth above, the paragraph eliminates that duplication. According to the Agency, "HRO" means the "Human Resource or Personnel Office." Statement of Position at 1.


Footnote # 5 for 55 FLRA No. 98 - Authority's Decision

   The Union indicates that this subsection of the provision as submitted in the petition for review contained a punctuation and a capitalization error. Union Response at 2. As stated above, the provision reflects the corrected wording.


Footnote # 6 for 55 FLRA No. 98 - Authority's Decision

   The term "area 1" used by the Union in its explanation refers to the areas of consideration specified in Article 15, Section 9, which is set forth in the Appendix to this decision. Section 9 provides that, in filling bargaining unit positions, the first area of consideration, or "area 1," includes "all permanently employed technicians in the Tennessee National Guard." "Area 2" includes all qualified members of the Tennessee National Guard and "area 3" includes all those eligible for membership in the National Guard. Section 9 permits the Agency to solicit from areas 1 and 2 simultaneously, but requires "area 1" candidates to receive first consideration.


Footnote # 7 for 55 FLRA No. 98 - Authority's Decision

   While the Agency raised concerns about the discretion afforded it regarding the selection of a well qualified candidate, the Union has expressly conceded that the Agency retains that discretion.


Footnote # 8 for 55 FLRA No. 98 - Authority's Decision

   The term "well qualified" does not appear elsewhere in Article 15. Section 13(b) set forth in the Appendix to this decision provides for a rating and ranking process to determine the "better qualified" candidates if there are more than seven (7) qualified candidates. Section 16, which is also set forth in the Appendix, provides that after the rating and ranking process is completed, the HRO will refer the seven (7) "better qualified" candidates to the selecting official. Sections 13(b) and 16 distinguish between "better qualified" candidates and "qualified" candidates. Section 17 distinguishes between "well qualified" candidates and "qualified" candidates. In this context, it appears that the "better qualified" candidates referenced in Sections 13(b) and 16 and the "well qualified" candidates referenced in Section 17 constitute the same group. This interpretation is consistent with the Union's explanation of the provision. See supra at 4.


Footnote # 9 for 55 FLRA No. 98 - Authority's Decision

   The meaning we adopt for the disputed portions of this provision would apply in other proceedings, unless modified by the parties through subsequent agreement. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 741-42 n.8 (1996).


Footnote # 10 for 55 FLRA No. 98 - Authority's Decision

   We note that our dissenting colleague finds the proposal ambiguous and would refer the matter to fact-finding. Aside from our different views of the clarity of the proposal, we believe that such a referral would be an academic exercise. Our determination of the meaning reserves to management its right to select. If a Union-initiated grievance about the application of this provision were to be arbitrated, the Agency would no doubt submit this decision and the Union's explanation of the meaning so as to inform the arbitrator about the way in which this selection procedure was designed to work. We are confident that our decision is faithful to the requirements of the Statute.


Footnote # 11 for 55 FLRA No. 98 - Authority's Decision

   In this regard, Section 17(b) seems to provide an internal management check on the selecting official's explanation for a nonselection decision, if not also on the decision to nonselect, because it provides for the HRO to review the written justifications prepared by the selecting official.


Footnote # 12 for 55 FLRA No. 98 - Authority's Decision

   The last sentence o