Association of Civilian Technicians, Inc., Heartland Chapter (Union) and U.S. Department of Defense, National Guard Bureau, Iowa National Guard (Agency)

[ v56 p236 ]

56 FLRA No. 30

ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
HEARTLAND CHAPTER
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
IOWA NATIONAL GUARD
(Agency)

0-NG-2491

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUE

March 31, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and part 2424 of the Authority's Regulations. The appeal concerns the negotiability of a single, multi-part proposal.

      For the reasons that follow, we find that the proposal is within the duty to bargain and order the Agency to negotiate on the proposal.

II.     Proposal

      The proposal is set forth at 1 of the Appendix to this decision. [n1] 

III.     Background

      This case has its origins in the Agency head's disapproval, pursuant to section 7114(c) of the Statute, of a contract provision. The disapproved contract provision was identical to the first two subsections, Subsections 5-13.a. and b., of the proposal in this case. The Union filed a negotiability appeal pertaining to the disapproval of the provision, Association of Civilian Technicians, Heartland Chapter and U.S. Department of Defense, Iowa National Guard, Johnston, Iowa, Case No. 0-NG-2398 (Dec. 1, 1998). Given the parties' conflicting interpretations of the disputed provision, the Authority referred the question of the proper interpretation of the provision to an Administrative Law Judge (ALJ). Authority Order dated September 30, 1998. The Union filed a request to withdraw its negotiability appeal prior to the hearing before an ALJ and the Authority granted that request. [n2]  Authority Order dated December 31, 1998. See also Agency Summary of Bargaining History dated April 7, 1999; Attachment to Statement of Position.

      The Union subsequently offered a revised Section 5-13 and the parties bargained on that proposal. As relevant herein, the revised proposal contained both Subsections 5-13a. and b., and a newly added Subsection 5-13.c., which had not been included in the disapproved provision. During the course of negotiations on the revised proposal, the Union requested the assistance of the Federal Service Impasses Panel (Panel). In its April 7 submission to the Panel concerning the parties' bargaining history, the Agency stated its position that the revised proposal interfered with management's rights under section 7106(a)(2)(B) and (C) of the Statute. The Union requested an allegation of nonnegotiability from the Agency concerning that proposal. Union Letter to Agency dated April 15, 1999; Attachment to Petition for Review. The Agency did not directly respond to that request. Agency Letter to Union dated April 30, 1999; Attachment to Petition for Review. The Union thereupon withdrew its request for Panel assistance, noting that if the Agency intended to argue the negotiability of the proposal, the proper forum was the Authority, not the Panel. Union Letter to Panel dated May 5, 1999; Attachment to Petition for Review. The Union then filed the Petition for Review in this case. [ v56 p 237 ]

IV.     The Petition for Review in this Case was Timely Filed

A.     Positions of the Parties

1.     Agency

      The Agency contends that the petition for review as to Subsections 5-13.a. and b. was not timely filed. Specifically, the Agency notes that the Union previously appealed the Agency's allegation that those subsections were nonnegotiable, citing Case No. 0-NG-2398, and that the revised proposal is "identical," except for the addition of subsection 5-13.c. Citing National Federation of Federal Employees, Local 284 and U.S. Department of Defense, Naval Air Engineering Center, Lakehurst, New Jersey, 39 FLRA 973, 974 (1991) (Lakehurst), [n3] the Agency argues that, because the disputed proposal is not substantially different from the disapproved provision in Case No. 0-NG-2398, the Union's petition for review in this case is an untimely attempt to appeal the disapproval.

      According to the Agency, Subsection 5-13.c. "clarifies the intent of the entire selection process of Article 5, Merit Promotion, but is not solely tied in with [Subsections 5-13.a. and b.]" Statement of Position at 8. The Agency interprets Subsection 5-13.c. "to mean the selecting official can choose from whatever list he/she desires after considering each referral list in turn" and that the selecting official can "consider any other information he/she deems necessary for the selection choice." Id. The Agency asserts that Subsection 5-13.c. restates management's right under section 7106(a)(2)(C) of the Statute and that it "has no objections to [Subsection 5-13.c.] as it stands alone." Id.

      The Agency claims that Subsections 5-13.a. and b. "are a different matter." Id. The Agency maintains that those subsections "mandate a crediting plan" and provide no "flexibility in the weight assigned to the Knowledge, Skills, and Abilities (KSAs)" established by the Agency. Id. The Agency maintains that the proposal is not amended by the addition of Subsection 5-13.c. to form a new proposal. The Agency contends that the Union's petition as to Subsections 5-13.a. and b. is untimely and as to Subsection 5-13.c. is moot, because it has not alleged that that subsection is nonnegotiable.

2.     Union

      The Union contends that Subsection 5-13.c. "does not stand alone" and "is not severable" from Subsections 5-13.a. and b. Response at 4. According to the Union, Subsection 5-13.c. is "an explanation of the meaning and effect" of Subsection 5-13.b. Id. The Union maintains that the disputed proposal is "substantively changed from the [provision] at issue in Case No. 0-NG-2398[.]" Id. The Union notes the Authority's Order referring the disapproved provision in Case No. 0-NG-2398 to an ALJ to resolve the meaning of Subsections 5-13.a. and b. The Union argues that in that Order the Authority held that those subsections were ambiguous, but that the proposal at issue in this case, which includes Subsection 5-13.c. is "not ambiguous." Id. The Union asserts that "[a]n ambiguous proposal that has been rendered unambiguous by the addition of an explanatory paragraph is a proposal that has been substantively changed." Id.

B.     Analysis and Conclusions

      Where a union has withdrawn its appeal as to a disputed provision, substantively revised it and resubmitted it to the agency as a proposal, and timely appealed after an agency's refusal to provide, as requested, an allegation of nonnegotiability as to the revised proposal, the appeal as to the revised proposal is properly before the Authority. [n4]  See Lakehurst. See also National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Hyattsville, Maryland, 48 FLRA 599, 602-03 (1993) (appeal timely, although agency only objected to sentence previously declared nonnegotiable, because modified proposal was substantively different from previous proposal); National Federation of Federal Employees, Local 15 and U.S. Department of the Army, Rock Island Arsenal, Illinois, 43 FLRA 1165, 1167-68 (1992) (Rock Island Arsenal). Accordingly, the issue with respect to the disputed proposal is whether the addition of Subsection 5-13.c. constitutes a substantive modification of Subsections 5-13.a. and b., previously disapproved by the Agency. See Lakehurst. See also American Federation of Government Employees, AFL-CIO, Local 2303 v. FLRA, 815 F.2d 718 (D.C. Cir. 1987). [ v56 p 238 ]

      The addition of Subsection 5-13.c. to Subsections 5-13.a. and b. constitutes a substantive modification of the disapproved provision that was the subject of the appeal in Case No. 0-NG-2398. It is not a "stand alone" provision, as alleged by the Agency. Not only does Subsection 5-13.c. expressly refer to Subsection 5-13.b., it addresses precisely those ambiguities in Subsections 5-13.a. and b. that prompted the Authority's September 30, 1998 Order referring Case No. 0-NG-2398 to an ALJ. Subsection 5-13.c. is a substantive modification of Subsections 5-13.a. and b. because it clarifies the meaning of those subsections.

      Specifically, in its September 30 Order the Authority stated that it was "unable to determine whether the provision is merely informational, establishes the exclusive system for rating and ranking candidates for promotion, or requires selection of candidates rated and ranked pursuant to the provision." As worded, Subsection 5-13.c. states that the rankings determined under Subsection 5-13.b. "shall be considered by, but are not binding on, the selecting official." The subsection also provides that nothing in Article 5 "prohibits the selecting official from receiving or considering other information or analyses regarding the qualifications of candidates." In sum, Subsection 5-13.c. clearly indicates that Subsection 5-13.b. is informational and that it does not establish an exclusive system for rating and ranking candidates or require the selection only of candidates rated and ranked thereunder.

      Because the petition for review in this case concerns a proposal that is a substantive modification of the provision that was disapproved by the Agency and appealed in Case No. 0-NG-2398, consistent with Rock Island Arsenal, the petition for review is properly before the Authority. The case relied on by the Agency, Lakehurst, is distinguishable. There, the union did not appeal the agency's disapproval and the subsequent appeal of a substantively identical proposal was held to be an untimely filed appeal of the disapproval.

      Moreover, because Subsection 5-13.c., which is not in dispute as a separate subsection, constitutes a substantive modification of Subsection 5-13.b., which is in dispute, the appeal is not moot as to Subsection 5-13.c.

      Accordingly, we find that the Union's petition for review in this case is properly before the Authority.

V.     Positions of the Parties

A.     Agency

      The Agency claims that negotiation of Subsections 5-13.a. and b. is barred by a conflicting Agency regulation, Requirement 3 of Change 10 (C10) to Technician Personnel Regulation (TPR) 300 (335) (Requirement 3), [n5] for which a compelling need exists under section 2424.50(c) of the Authority's Regulations. [n6]  Specifically, the Agency contends that those subsections are inconsistent with the regulatory requirement that all procedures used to evaluate candidates for selection be based on job-related criteria because the subsections prescribe a point system "that is based on arbitrary criteria established across-the-board," instead of being based on the particular jobs to be filled. Statement of Position at 9. According to the Agency, "[a]cross the board limits on points and consequently weight values of each evaluation factor for a multitude and variety of both general schedule and wage grade jobs do not and cannot reflect job analyses of the position to be filled." Id. at 10. In this regard, the Agency states that Subsection 5-13.b. provides equal weight for each KSA, prescribes the maximum point values that can be awarded for performance evaluations, training, and education, and limits the kind of training and education that can be credited.

      As to compelling need under section 2424.50(c) of the Authority's Regulations, the Agency argues that Requirement 3 implements a nondiscretionary mandate imposed by the merit system principle set forth in 5 U.S.C. § 2301(b)(1) (section 2301(b)(1)). [n7]  In this regard, the Agency emphasizes that section 2301(b)(1) requires that selection be based "solely on the basis of relative ability, knowledge, and skills[.]" Id. at 11 (quoting section 2301(b)(1); emphasis in original). The Agency claims that Requirement 3, specifically paragraph c., implements the mandate of section 2301(b)(1) [ v56 p 239 ] in a nondiscretionary manner and that there is a compelling need for Requirement 3 within the meaning of section 2424.50(c) of the Authority's Regulations and section 7117(a)(2) of the Statute. [n8] 

      The Agency claims that management's right to select under section 7106(a)(2)(C) includes the right to determine the qualifications needed to fill a position and to evaluate candidates' relative qualifications. According to the Agency, "inasmuch as ranking and certification of candidates for promotion is a function of determining and evaluating qualifications, and measuring the degree to which a candidate possesses a required KSA, it is management's right to determine the criteria for proper ranking and certification of applicants for promotion." Statement of Position at 13.

      The Agency contends that Subsections 5-13.a. and b. establish a point system for evaluating candidates for excepted service positions and that the system is so "universal in its assignment of points[] that it is not responsive to analysis of the requirements of the specific job to be filled." Id. at 14. The Agency maintains that in order to evaluate candidates in a manner that reflects the relative importance of various aspects of the job, management would have to establish another ranking and evaluation system using a different point and weight system. According to the Agency, such a system would be precluded by Subsections 5-13.a. and b. For this reason, the Agency asserts, Subsections 5-13.a. and b. directly interfere with management's right, under section 7106(a)(2)(B), to determine the personnel by which Agency operations shall be conducted, citing Customs Service, Region II v. FLRA, 739 F.2d 829 (2d Cir. 1984) (Region II), and, under section 7106(a)(2)(C), to make selections from among properly ranked and certified candidates for promotion. The Agency states that it has "no objections" to Subsection 5-13.c. "as it stands alone." Id. at 8.

B.     Union

      The Union asserts that the proposal does not violate the Agency's regulation. The Union notes that the KSA point system established by the proposal is "identical" to the system set forth in the Agency's own Model Merit Placement Plan (model plan) and that other evaluation criteria in the proposal are similar in nature to the Agency's model plan. [n9]  The Union rejects the Agency's claim that the model plan requires adjustments to conform to basic regulatory criteria, noting that the model plan itself states that it reflects established Agency regulatory requirements.

      As to the Agency's claim that the proposal violates the regulatory requirement for evaluation of candidates based on job-related criteria, the Union argues that the Agency does not deny that the criteria used by the proposal, that is, KSAs, training, education, awards, and performance, are job-related. According to the Union, the Agency's objection to the proposal concerns only the "method of weighting and combining ratings" established by the proposal. Response at 7. In this regard, the Union claims that "nothing in the agency regulation imposes any requirement at all about how ratings under the criteria must be weighted or combined." Id. at 8.

      The Union asserts that there is no compelling need for the regulation relied on by the Agency. The Union maintains that section 2301(b)(1) requires that selection of a candidate to fill a position be determined "solely on the basis of relative ability, knowledge, and skills[.]" Id. at 8 (quoting section 2301(b)(1); emphasis in original). According to the Union, section 2301(b)(1) does not mandate the particular basis that must be used or "how ratings of candidates under the statutory attributes should be weighted or combined in determining an overall ranking." Id. The Union claims that weighting [ v56 p 240 ] and combining ratings is discretionary with the Agency under section 2301(b)(1).

      The Union asserts that Section 5-13 "merely provides the selecting official with information to consider." Response at 9. According to the Union, Section 5-13 "does not prohibit or restrict the selecting official's use of other information or criteria that the official may choose to use; and it does not control the selecting official's filling of a position." Id. The Union maintains that the information derived under Section 5-13 "is inherently advisory, not controlling." Id. The Union states that Section 5-13 does not prevent the Agency from preparing some other ranking of candidates and submitting it to the selecting official. The Union claims that Section 5-13 is "procedural." Id.

      The Union distinguishes cases holding that proposals prescribing qualifications for positions, and the weights for those qualifications, directly interfere with management's rights. According to the Union, those cases found that the proposals at issue prohibited a selecting official "from assessing candidates' knowledge, skill, or ability by any means other than the ranking provided in the union's proposal." Id. at 10. The Union claims that Section 5-13 would not have that effect and is within the duty to bargain under section 7106(b)(2) of the Statute.

VI.     Meaning of the Proposal

      Section 5-13 is proposed as part of a broader provision detailing the process for filling vacant bargaining unit positions. [n10]  Section 5-13 generally concerns the steps in that process at which criteria for measuring the qualifications of candidates and a method for scoring are established. [n11]  Thus, Section 5-13 applies after the step at which the KSAs and other characteristics needed for successful performance of the position have been identified. Section 5-10 provides that the Agency will identify the KSAs and other characteristics that are to be evaluated. [n12] 

      Section 5-13 prescribes the criteria that the Agency will use to evaluate the qualifications of candidates for bargaining unit positions and the method of combining scores to determine the relative ranking of those candidates. In particular, Subsection 5-13.a. prescribes the candidates who are to be evaluated when a rating and ranking panel is required under Subsection 5-11.c. Subsection 5-13.b.1. prescribes the criteria to be applied in evaluating the experience candidates possess with respect to the various KSAs and other characteristics that the Agency has identified under Section 5-10 and the weight to be given to the scores received by the candidate on those factors, depending upon the number of factors. Subsection 5-13.b.2. prescribes the points to be awarded a candidate based on awards received and performance evaluations. Subsection 15.b.3. prescribes the maximum number of points that can be awarded a candidate for training and education, other than the training and education that is credited for purposes of determining basic eligibility for the position. A candidate's overall rating is derived by combining that candidate's scores in each of the evaluation categories, for example, experience, awards and performance evaluations. Where candidates receive the same overall score, those candidates will be ranked according to technician seniority.

      Subsection 5-13.c. explicitly references Subsection 5-13.b. and, by its terms, prescribes the effect of the rating and ranking of candidates derived under Subsection 5-13.b. on the selection process. Specifically, the ratings and rankings of candidates determined under Subsection 5-13.b. may be considered by the selecting official, but are not binding on that official. The selecting official may also receive different analyses of the qualifications of the candidates than those derived under Subsection 5-13.b. and, although the order in which candidate lists are presented to the selecting official are prescribed by other parts of Section 5-13, nothing prevents the submission of other lists of candidates to that official. The Union concedes that under Subsection 5-13.b. the weights assigned to KSAs would be applied "across the board," but contends that Subsection 5-13.c. also permits the Agency "to use a ranking process that weights KSAs differently because the ranking procedure [ v56 p 241 ] provided by [Subsection 5-13.b.] is neither binding nor exclusive." Response at 2 and 3. The Union's interpretation of Subsections 5-13.b. and c. comports with the wording of those subsections and is adopted for purposes of this decision. See, e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Dependents Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 741-42 (1996) (Laurel Bay). [n13] 

      Under subsection 5-9, the initial list submitted to the selecting official will contain the rating and ranking of all area 1 candidates. [n14]  The Union states that, under Subsection 5-13.c., the Agency "is free . . . to prepare and submit to the selecting official another list of [area 1] candidates, ranked according to a ranking procedure that does weight the KSAs differently." Response at 3. The Union's interpretation comports with the wording of Subsection 5-13.c. and is adopted for purposes of this decision. See Laurel Bay, 51 FLRA at 741-42. [n15] 

      Subsection 5-13.c. also further refines the selection process set forth in Section 5-16. Specifically, at any point in the process of considering candidates prescribed in that section, the selecting official may make a selection and the selection may be a candidate previously considered but not selected. In this regard, the Union's explanation, Response at 2, that, under the proposal, "non-selection 'prior to getting another list' is not irrevocable" comports with the wording of Subsection 5-13.c. and is adopted for purposes of this decision. Id.

VII.     Analysis and Conclusions

A.     The Proposal Does Not Conflict with an Agency Regulation

1.     Framework for Analyzing Application of the Authority's Compelling Need Criteria

      The Authority has identified three conditions precedent to establishing a compelling need for an agency regulation to bar negotiation under section 7117(b) of the Statute. In order to demonstrate that a proposal is outside the duty to bargain because it conflicts with an agency regulation for which a compelling need exists, an agency must: (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need within the meaning of section 2424.50 of the Authority's Regulations. See American Federation of Government Employees, Locals 3807 and 3824 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 55 FLRA 1, 3 (1998).

2.     The Proposal Does Not Conflict with Requirement 3

      With respect to the first condition in the Authority's compelling need framework, there is no dispute that Requirement 3 is a regulation to which the compelling need criteria apply.

      As to the second condition, the Agency has not demonstrated that Subsections 5-13.a. and b. conflict with Requirement 3. [n16]  The Agency relies on the portion of Requirement 3 requiring that all procedures used to identify, qualify, evaluate, and select are based on job-related criteria. The Agency interprets that portion of the requirement as mandating not only that the KSAs and other qualifications used to evaluate candidates be job-related, but also that the weights given to the KSAs should reflect the importance of those factors to the job. The Agency claims that, because the proposal requires all KSAs to be weighted alike, depending on the number of factors used, the proposal precludes weighting reflecting the fact that some factors are more important than others and, thus, conflicts with the regulation.

      The record does not support the Agency's broad interpretation of the relevant portion of Requirement 3. [ v56 p 242 ] Subsection 5-13.b. incorporates the weighting scheme set forth in the Agency's "Model Merit Placement Plan." Moreover, the "Model Merit Placement Plan" expressly states that it "reflects established [Agency] regulatory requirements." See "Model Merit Placement Plan" at 8 of the Appendix. Taken together, the Agency's selection regulations and the Model Merit Placement Plan constitute the Agency's guidance on selection procedures. Because the Agency's own suggested selection procedures expressly state that they reflect the Agency's regulatory requirements, it is not reasonable to interpret Requirement 3 as precluding those selection procedures. Cf. Phipps v. Department of Health and Human Services, 767 F.2d 895, 897 (Fed. Cir. 1985) (principle of statutory construction that provisions of a unified statutory scheme should be read in harmony, leaving no provision inoperative or superfluous or redundant or contradictory, applied to federal personnel regulations). Cf. also Silverman v. Eastrich Multiple Investor Fund, 51 F.3d 28, 31 (3d Cir. 1995) (there is "a basic tenet of statutory construction, equally applicable to regulatory construction, that a statute 'should be construed so that effect is given to all of its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.'" (citation omitted)). Consequently, Requirement 3 will be interpreted more narrowly as applying only to the KSAs and other qualifications used to evaluate employees and not also to the weights to be assigned those factors. [n17]  To do otherwise would render the Agency's regulatory scheme internally inconsistent.

      Under Section 5-10, as noted above, the Agency has discretion to identify the KSAs and other qualifications to be used. Thus, Subsections 5-13.a. and b. do not in and of themselves prescribe factors that are not job related. As to performance evaluations, training, and education, while the Agency has other objections to the requirements of Subsections 5-13.a. and b. with respect to each of those factors, the Agency does not contend that those factors are not job related. Accordingly, Subsections 5-13.a. and b. do not conflict with Requirement 3. See, e.g., Professional Airways Systems Specialists and U.S. Department of the Navy, Marine Corps Air Station, Cherry Point, North Carolina, 38 FLRA 149, 156-58 (1990) (because agency has discretion under regulation to determine whether phone use is in the interest of the Government, proposal concerning use of phone for personal business while in travel status does not conflict with regulation).

      Accordingly, we do not need to reach the issue of whether a compelling need exists for Requirement 3 under section 2424.50(c) of the Authority's Regulations.

B.     The Proposal Does Not Affect Management's Rights under section 7106(a)(2)(B) and (C) of the Statute

1.     Section 7106(a)(2)(C)

      Management's right to select candidates for appointment to positions under section 7106(a)(2)(C) of the Statute includes the right to determine the qualifications, skills, and abilities needed to perform the work of a position and to determine whether applicants possess such qualifications, skills, and abilities. See, e.g., American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 195 (1993). In particular, the right to select encompasses management's right to determine the criteria by which it will assess the extent to which candidates possess the requisite qualifications, skills, and abilities, see, e.g., Association of Civilian Technicians, New York State Council and U.S. Department of Defense, National Guard Bureau, State of New York, Division of Military and Naval Affairs, 45 FLRA 17, 20 (1992) (Division of Military and Naval Affairs), and the weight to be given to those factors in any such assessment, see, e.g., American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Wade Park Unit, Cleveland, Ohio, 49 FLRA 957, 963 (1994) (VAMC, Cleveland).

      Proposals that prescribe the criteria to be used in assessing the extent to which candidates possess the requisite qualifications, skills, and abilities, and the weights to be given such factors, affect management's right to select. See Division of Military and Naval Affairs, 45 FLRA at 20; VAMC, Dayton, 28 FLRA at 456. Management's right to take actions pursuant to section 7106(a) of the Statute includes the right to decide not to take such actions, and, therefore, proposals obligating an agency to use particular criteria and weights in determining the extent to which candidates possess the requisite qualifications run afoul of section 7106(a)(2)(C). See, e.g., American Federation of Government Employees, Local 3354 and U.S. Department of Agriculture, Farm Services Agency, Kansas City Management Office, 54 FLRA 807, 812 (1998). See also National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 45 FLRA 52, 73-74 (1992) (proposal [ v56 p 243 ] prescribing two criteria as the sole criteria governing selection directly interfere with management's right to select because it precludes management from "establishing additional or different criteria for the positions.")

      Conversely, proposals that prevent management from establishing particular assessment criteria and weights also affect management's right to select. See, e.g., American Federation of Government Employees, AFL-CIO, Local 1940 and Department of Agriculture, Plum Island Disease Center, 16 FLRA 816, 823-24 (1984) (proposal prohibiting the establishment of promotion criteria that could not be satisfied by skills and knowledge normally acquired at lower grade levels directly interferes with right to select). Where a proposal preserves management's ability to act pursuant to a right under section 7106 of the Statute, however, it does not affect the exercise of the right. See, e.g., 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, 1477 (1992) (HCFA) (proposal requiring management to waive experience requirement where it is deemed appropriate preserves agency's ability to determine which employees meet qualifications for positions and does not directly interfere with management's right to select).

      Moreover, where a proposal prescribes a particular selection criterion, but also provides management an option that preserves its right to select, the proposal does not affect the exercise of that right. See, e.g., American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), affirmed Department of Defense v. FLRA, 659 F.2d 1140, 1161-62 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982) (Wright-Patterson) (Proposal III providing for use of seniority as criterion to select candidates for assignment to a position, but allowing management to use competitive procedures instead, does not directly interfere with rights to assign and to select).

      Subsections 5-13.a. and b. prescribe the criteria to be used in assessing the extent to which area 1 candidates possess the qualifications, skills, and abilities to perform the work of a position, and the weights to be given those factors. Subsections 5-13.a. and b. are modified by Subsection 5-13.c. As modified, the Agency would be able to establish its own alternative crediting plan, apply it to the same candidates' qualifications, and forward the results therefrom to the selecting official as well.

      Thus, under Section 5-13, even though management must use the prescribed crediting plan, in doing so, and in contrast to Proposal III in Wright-Patterson, it does not lose the ability to develop its own crediting plan and provide the selecting official with information about the candidates that reflects its own priorities. Because management could develop its own crediting plan, consistent with the disposition of Proposal III in Wright-Patterson, Section 5-13 would not affect management's right to select under section 7106(a)(2)(C). See also HCFA.

      Consequently, we find that Section 5-13 does not affect management's right to select candidates for appointment to positions under section 7106(a)(2)(C) of the Statute.

2.     Section 7106(a)(2)(B)

      The Agency's claim that the crediting plan set forth in Section 5-13 affects management's right to determine the personnel by which Agency operations shall be conducted is based on the decision of the United States Court of Appeals for the Second Circuit in Region II. However, in Department of the Treasury, U.S. Customs Service, Washington, D.C. v. FLRA, 762 F.2d 1119 (D.C. Cir. 1985) (Customs Service), the United States Court of Appeals for the District of Columbia Circuit disagreed with the Second Circuit. Specifically, the D.C. Circuit held that the "proper analysis of the application of § 7106(a) to [crediting plans] should proceed under § 7106(a)(2)(C) alone[.]" Id. at 1121. In The Montana Air Chapter of Association of Civilian Technicians and U.S. Department of the Air Force, Montana Air National Guard, 19 FLRA 946 (1985), the Authority adopted the "rationale" of Customs Service. See National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 23 FLRA 681, 682 n.2 (1986).

      Subsequent to Customs Service and Montana Air National Guard, the Authority has consistently analyzed the negotiability of crediting plans with respect to management's rights by applying section 7106(a)(2)(C). See, e.g., VAMC, Cleveland, 49 FLRA at 963-64 (1994); Division of Military and Naval Affairs, 45 FLRA at 20 (1992); U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 36 FLRA 28, 31 (1990); National Federation of Federal Employees, Local 29 and Kansas City District, Corps of Engineers, Kansas City, Missouri, 23 FLRA 569, 571-77 (1986). Other than citing to Region II, the Agency makes no other argument and [ v56 p 244 ] offers no other explanation for the conclusion that the crediting plan set forth in Section 5-13 affects management's right to determine personnel under section 7106(a)(2)(B). Given the Authority's adoption of the rationale of Customs Service, its consistent practice of analyzing proposals similar to Section 5-13 under section 7106(a)(2)(C), and the absence of any other basis in the record, there is no reason to find that section 7106(a)(2)(B) applies to the analysis of the proposal in this case.

      Consequently, we find that section 7106(a)(2)(B) of the Statute does not apply to Section 5-13.

VIII.     Order

      The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate on the proposal.


APPENDIX

1.     The disputed proposal in the instant case provides as follows:

5-13     EVALUATING AND RANKING APPLICANTS FOR EXCEPTED SERVICE POSITIONS

a.     Excepted Technicians: If a panel is required, reference 5-11c, all Area one candidates applications meeting basic eligibility for promotion or internal placement from within the first area of consideration will be presented for evaluation by the rating panel.

b.     A point system will be utilized to establish the grouping of candidates. Items to receive ratings are as follows:

1.     KSA Ratings (All Factors):
a.     "A" level experience.     Candidate possesses type and quality of experience that substantially exceeds the basic requirements of the position, including selective placement factors, and that would allow the candidate to perform effectively in the position almost immediately or with a minimum of training and/or orientation.
b.     "B" level experience.     Candidate possesses type and quality of experience that exceeds the basic requirement of the position, including selective placement factors, and that would allow the candidate to perform effectively in the position within a reasonable period of time (i.e., three to six months).
c.     "C" level experience.     Candidate satisfies the basic requirement of the position with respect to experience, including selective placement factors. However, type and quality of experience beyond that which is basically required are minimal, and/or extensive additional training/orientation may be required to enable the candidate to satisfactorily perform the duties of the position.
NOTE: The point value assigned for A, B and C level experience will be based on the following knowledge, skills and abilities (KSA) table. The point values vary depending on the number of KSA factors used for the rating. KSA factors will be the same for all applicants evaluated. [ v56 p 245 ]
Knowledge, Skills and Abilities (KSA) Table
3 KSA     4 KSA     5 KSA     6 KSA     7 KSA     8 KSA
Factors     Factors     Factors     Factors     Factors     Factors
A 33.3     A 25.0     A 20.0     A 16.6     A14.2     A 12.5
B 28.3     B 21.2     B 17.0     B 14.1     B 12.1     B 10.6
C 23.3     C 17.5     C 14.0     C 11.6     C 10.0     C 8.7
EXAMPLE:     Using five KSA factors, a candidate's combined category rating of AABBC [20, 20, 17, 17, 14] converts to 88. Also, if a candidate was found to rate a 'C' in all KSA categories, the rating would be 70. If the rating was 'A' in all categories the total would be 100.
     2.     Credit is awarded for pertinent honorary and monetary awards and outstanding/excellent/fully acceptable performance ratings. The HRO will analyze the applicants awards record and document qualifying awards on NGB Form 300-4. Awards that are more than three (3) years old will not be considered. A maximum of six (6) points may be credited for this factor. Points are assigned as follows:

Footnote # 1 for 56 FLRA No. 30

   In the post-petition conference, held pursuant to section 2424.23 of the Authority's Regulations, the Union clarified Subsection 5-13.a. by adding the following sentence: "If a panel is not required, [the] selecting official will conduct [the] evaluation." Record of post-petition conference at 3. In the absence of any objection by the Agency, the proposal will be considered as clarified.


Footnote # 2 for 56 FLRA No. 30

   In its withdrawal request to the Authority, the Union indicated the course of action it intended to pursue. Specifically, the Union stated as follows:

[T]he union will propose a new provision. The new provision will be identical to the provision at issue in this case, except it will include a new paragraph c (with the current paragraph C [sic] being redesignated as paragraph d.
.     .     .     .
If the agency declares the union's new, clarified proposal nonnegotiable, the union will file a new petition for review.

Response at 5-6 (quoting Union withdrawal request).


Footnote # 3 for 56 FLRA No. 30

   The Agency actually cites Department of the Air Force, Langley Air Force Base, Hampton, Virginia, 39 FLRA 966 (1991). However, that case is an unfair labor practice case and does not concern negotiability appeal procedures. The material quoted by the Agency, Statement of Position at 7, comes from the next case in Volume 39, Lakehurst.


Footnote # 4 for 56 FLRA No. 30

   There is no dispute that the petition for review as to the proposal in this case is timely filed from the date of the Agency's response to the Union's request for an allegation of nonnegotiability. The Agency's response was dated April 30, 1999, and the Union's petition for review was filed on May 10, 1999.


Footnote # 5 for 56 FLRA No. 30

   The relevant portions of Change 10 to TPR 300 (335) are set forth at 7 of the Appendix to this decision.


Footnote # 6 for 56 FLRA No. 30

   Section 2424.50(c) of the Authority's Regulations provides as follows:

§ 2424.50 Illustrative criteria.
A compelling need exists for an agency rule or regulation concerning any condition of employment when the agency demonstrates that the rule or regulation meets one or more of the following illustrative criteria:
.     .     .     .
     (c)     The rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature.

Footnote # 7 for 56 FLRA No. 30

   5 U.S.C. § 2301(b)(1) provides as follows:

§ 2301. Merit system principles
.     .     .     .
     (b)     Federal personnel management should be implemented consistent with the following merit system principles:
     (1)     Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.

It is undisputed that the civilian technicians who are covered by the proposal are, under 5 U.S.C. § 2105(a)(1)(F), Federal employees who are covered by 5 U.S.C. § 2301(b)(1). It is also undisputed that the TPRs contain regulations that, consistent with 5 U.S.C. § 2301(c), reflect the merit system principle set forth in 5 U.S.C. § 2301(b)(1) and other merit system principles.


Footnote # 8 for 56 FLRA No. 30

   The Agency notes that, because civilian technicians of the National Guard are excepted service employees, they are not covered by Office of Personnel Management regulations, 5 C.F.R. § 300.101 et seq., that implement merit system principles for the remainder of the Federal work force. Statement of Position at 12.


Footnote # 9 for 56 FLRA No. 30

   Relevant portions of the Model Merit Placement Plan, Appendix B to Change 10 of TPR 300 (335), Attachment to Union Response, are set forth at 8 of the Appendix to this decision.


Footnote # 10 for 56 FLRA No. 30

   The parties have agreed to the other provisions of Article 5. As needed, the analysis will refer to those other subsections.


Footnote # 11 for 56 FLRA No. 30

   The KSAs and the criteria and weights used to assess the extent to which candidates possess those KSAs are combined in what is known as a "crediting plan." See, e.g., National Treasury Employees Union v. U.S. Customs Service, 802 F.2d 525, 529 n.12 (D.C. Cir. 1985); National Treasury Employees Union and NTEU Chapters 153, 161, and 183 and U.S. Customs Service, Region II, 11 FLRA 209, 210 (1983).


Footnote # 12 for 56 FLRA No. 30

   Section 5-10 is set forth at 3 of the Appendix. As noted above, the Agency states that the unit employees covered by the proposal are not subject to 5 C.F.R. § 300.101 et seq., including 5 C.F.R. § 300.103, which requires that crediting plans be based on a job analysis. For that reason, this case is distinguishable from National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., 55 FLRA 1174, 1181-83 (1999), petition for review pending U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C. v. FLRA, No. 00-1058 (D.C. Cir. Feb. 22, 2000) (provision awarding points for seniority under a crediting plan is contrary to 5 C.F.R. § 300.103(a) because it is not based on job analysis that links seniority to requirements of positions).


Footnote # 13 for 56 FLRA No. 30

   The meaning that the Authority adopts for this proposal, unless modified by the parties, would apply in other disputes, such as arbitration proceedings, where the construction of the proposal is at issue. See Laurel Bay, 51 FLRA at 741-42.


Footnote # 14 for 56 FLRA No. 30

   Area 1 includes all bargaining unit technicians. See the text of Section 5-9 at 2 of the Appendix.


Footnote # 15 for 56 FLRA No. 30

   Under Sections 5-9 and 5-16, the text of which is set forth at 6 of the Appendix, if the selecting official decides not to select a candi