File 2: Opinion of Chair Segal

[ v55 p568 ]

Chair Phyllis N. Segal, Dissenting in part

      I write separately to state why I do not join the majority in its interpretation of the meaning of subsection (b) of the disapproved provision at issue in this case.

      It is axiomatic that ascertaining the meaning of a contract provision can be crucial in determining whether it has been properly disapproved by an agency head under section 7114(c) of the Statute. Indeed, cases are legion in which the Authority has refused to uphold an agency head's disapproval on the ground that the disputed provision did not have the meaning attributed to it by the agency. [n1]  Where the meaning of a disputed provision is dispositive, the critical threshold challenge for the Authority is to correctly ascertain that meaning. This is precisely the challenge presented in this negotiability case.

      The Agency and Union disagree about whether subsection (b) requires the Agency to irrevocably reject certain candidates for vacant positions before it can examine the applications of other candidates. In its statement of position, the Agency argues, among other things, that the disputed provision would impair its right to make selections because it would require the Agency to irrevocably nonselect certain candidates prior to considering other candidates. That is, according to the Agency, once it has determined not to select a particular applicant ("Candidate A" for these purposes), it may not revoke its determination even if its subsequent consideration of other candidates yields no selection and it believes that Candidate A should be selected. In the Agency's words:

[T]he provision prevents management from evaluating and comparing qualifications of applicants both from within and outside the same area of consideration, even after management has provided first consideration in accordance with the contract. By requiring that management must nonselect and justify nonselection of first/ priority consideration applicants before it can consider other Area 1 candidates or applicants from other areas of consideration, Area 1 candidates are effectively removed from further consideration and/or comparison. . . . [T]his provision interferes with [the right to make selections] by removing first consideration candidates and other applicants from further consideration by requiring their nonselection as a prerequisite to considering other candidates[.]

Statement of Position at 5.

      The Union posits a different interpretation of the disapproved provision. Specifically, the Union asserts that:

Nothing in [the provision] prohibits a selecting official from changing her or his mind about a prior non-selection decision. If 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.

Union Response at 2.

      If the provision means what the Union posits, then I agree with the majority that it does not affect the Agency's right to make selections. By the same token, however, if the Agency is correct that the provision requires it to make selection decisions on particular candidates without evaluating others, then Authority precedent requires finding that the provision affects the Agency's right to select. [n2]  In addition, unchallenged precedent would result in finding that the provision is not a procedure within the meaning of section 7106(b)(2). See, e.g., National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886, 890 (1990). As the Union makes no claim that the provision is bargainable under any other subsection of section 7106(b), this would, in turn, lead to holding that the provision is contrary to law. In sum, this is a case where the meaning of the disapproved con- [ v55 p569 ] tract provision is dispositive of whether it is contrary to law.

      The majority resolves the parties' dispute over the provision's meaning based on what it characterizes as the "plain terms" of the final sentence in subsection (b)(4), which it reads as supporting the Union's view. Majority at 9. The sentence relied on to confirm that a nonselection decision is revocable states: "Provided there are no well qualified candidates and further expansion of the area of consideration is impractical, [the selecting official] may select a candidate from the qualified." The majority somehow reads these words to mean that the Agency would be permitted to change its prior decision not to select a candidate -- in effect, making the Agency's nonselection decisions revocable.

      Contrary to the majority, I see no basis for finding this construction "plain" in the terms of the final sentence in subsection (b)(4), or anywhere else in the provision. Nor, apparently, does the Union -- which does not rely on the final sentence in subsection (b)(4) to support its claim that the provision allows a selecting official to "chang[e] her or his mind" about a previous non-selection. Rather, the Union merely asserts that "[t]here is no contrary language in the Section," and claims deference to its interpretation. Union Response at 2.

      The Union is correct: nothing in the provision's wording is contrary to the Union's interpretation. However, there also is no language in the provision contrary to the Agency's interpretation. In short, the only thing "plain" here is that the provision is ambiguous on whether nonselections by the Agency, pursuant to the terms of the provision, are revocable.

      If this negotiability appeal involved a contract proposal this ambiguity would properly be resolved in favor of the Union. The Authority has long held that, when a union's proposed contract term is in dispute, the Authority will defer to the union's interpretation of the proposal's meaning, provided that its words can be read in a manner that is not inconsistent with the asserted interpretation. [n3]  This makes good sense because a union proposal is, after all, the union's creation. Although an agency's view of the effect the proposal will have on its operations is relevant in determining whether the proposal is within the duty to bargain, only the union, as the drafter, can know what it intended the proposal to require -- what it means. Accordingly, if this case involved a contract proposal, rather than a negotiated provision, I would find ample support, in the absence of unambiguously contradictory language, for deferring to the Union's view of what the proposal means.

      A different situation is presented, however, when a negotiability case concerns a contract provision, because the terms of the provision have, by definition, been not only proposed by one party, but also agreed upon by both parties. This agreement is, of course, based on the parties' respective understanding of what those terms mean. As is evident in this case, their understandings may differ. Where the wording of a provision is clear, it is relatively easy to resolve such a dispute. [n4]  However, where the wording of a disapproved provision is susceptible to both parties' differing interpretations, it is not appropriate, in my view, to defer to the meaning asserted by the union, as we do in cases concerning contract proposals. Indeed, there appears to be solid support for employing an entirely different principle and construing any ambiguity in a provision against the party who drafted its words. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62-63 (1995) ("[R]espondents cannot overcome the common-law rule of contract interpretation that a court should construe ambiguous language against the interest of the party that drafted it"), citing, inter alia, Restatement (Second) of Contracts § 206. In Mastrobuono, the [ v55 p570 ] Court quoted the justification for this principle, as provided by the drafters of the Second Restatement:

Where one party chooses the terms of a contract, he is likely to provide more carefully for the protection of his own interests than for those of the other party. He is also more likely than the other party to have reason to know of uncertainties of meaning. Indeed, he may leave meaning deliberately obscure, intending to decide at a later date what meaning to assert. In cases of doubt, therefore, so long as other factors are not decisive, there is substantial reason for preferring the meaning of the other party.

Mastrobuono, 514 U.S. at 63 n.10 (quoting Restatement (Second) of Contracts § 206, Comment a (1979).

      The record on which the majority bases its construction that the nonselection decisions are revocable consists solely of the provision itself and the parties' contradictory assertions in their written submissions to the Authority. Neither the Union nor the Agency has provided, or been asked to provide, any evidence concerning the negotiation of this provision, such as affidavits or testimony from their representatives at the bargaining table, or bargaining notes, to support the views each asserts in this litigation. As the provision is susceptible to either party's interpretation, this is not an adequate record on which to decide the dispositive question of what the provision means.

      Rather than reach a decision based on this inadequate record, the Authority should, in my view, conduct a proceeding designed to ascertain, based upon evidence, what the provision means. Put simply, the fact of what the provision means should be resolved through fact-finding. I do not believe that it serves the parties' interests, or shows sufficient fidelity to their bilateral negotiations, for the Authority to determine whether this provision, construed to mean what the Union alone asserts was negotiated, will be included in their contract based on the meager record before us. The Authority indisputably has the ability to require a more fully-developed record, including evidence to establish the meaning of the provision the Agency and Union agreed to at the bargaining table. [n5] See 5 U.S.C. §§ 7105(a)(2)(I); 7117(b)(3) and (c)(5) (Authority may take such actions as are appropriate to administer the Statute, including holding hearings in negotiability cases). Accord 5 C.F.R. § 2424.31 (in resolving negotiability petitions filed after April 1, 1999, disputed issues of material fact may be resolved through several, different procedures, including hearings). I believe that the Authority has an obligation to do so prior to reaching its decision, and see no basis to disparage taking steps to find facts as a "academic exercise." Majority at 9 n.10. Accordingly, I respectfully dissent from the majority's finding on what the provision means, which forms the basis for its conclusion that the provision is not contrary to law and therefore was improperly disapproved.

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

Footnote # 1 for 55 FLRA No. 98 - Opinion of Chair Segal

   See, e.g., National Education Association, Overseas Education Association, Fort Rucker Education Association and U.S. Department of Defense, Domestic Dependent Elementary and Secondary Schools, Fort Rucker Dependents Schools, Fort Rucker, Alabama, 53 FLRA 941, 949-50 (1997) (agency claim that provision affected right to assign work by providing a duty-free lunch period rejected on ground that "the provision does not require . . . a duty-free time during the lunch period"); National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265, 1277-78 (1997) (agency arguments based "solely on its view that the provision would prevent management from maintaining documentation on denials of within-grade increases" rejected on ground that "[t]he provision would not have that effect"); National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 367 (1990) (agency claim that provision affected right to assign work by requiring it to assign work to employees not chosen by management rejected on ground that "[n]othing in the wording of the provision contains such a requirement.").

Footnote # 2 for 55 FLRA No. 98 - Opinion of Chair Segal

   Compare U.S. Department of Veterans Affairs, Regional Office, Boston, Massachusetts and American Federation of Government Employees, Local 2772, 51 FLRA 1769, 1774-75 (1996) (an arbitral award directing an agency to select from among a specified group of candidates is deficient under section 7106(a)(2)(C) of the Statute because it denies the agency's right to select from any other appropriate source) with American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 179 (1998) (because a proposal requiring the agency to accept and consider applications from a certain group of candidates did not "limit the Agency's selection options and neither require[d] nor preclude[d] selection of any candidate, it [did] not affect management's right to select").

Footnote # 3 for 55 FLRA No. 98 - Opinion of Chair Segal

   See, e.g., National Education Association, Overseas Education Association, Fort Bragg Association of Educators and U.S. Department of Defense, Department of Defense Domestic Dependents, Elementary and Secondary Schools, Fort Bragg, North Carolina, 53 FLRA 898, 907-08 (1997); National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 32 FLRA 544, 547 (1988).

Footnote # 4 for 55 FLRA No. 98 - Opinion of Chair Segal

   For example, the wording in the first paragraph of Section 17 of the provision at issue in this case explicitly states that selections are limited to the well-qualified group "at the direction of the agency." In view of this clear wording, I agree with the majority's apparent rejection of the Agency's claim that the first paragraph of the provision "requires" it to select only from the well- qualified group. See Majority at 4; 6-7; 8-9. However, I do not agree with the majority's apparent conclusion that the limitation in subsection (b)(4) is necessarily dependent on the "agency direction" in the first paragraph. See id. at n.11. The provision is, in my view, ambiguous on this point and, as a result and for the reasons stated in the body of this dissent,its meaning should be determined through factfinding rather than imposed by the Authority.

Footnote # 5 for 55 FLRA No. 98 - Opinion of Chair