Association of Civilian Technicians, Wichita Air Capitol Chapter (Union) and U.S. Department of Defense, Civilian Personnel Management Service (Agency)

[ v56 p1027 ]

56 FLRA No. 180

ASSOCIATION OF CIVILIAN TECHNICIANS
WICHITA AIR CAPITOL CHAPTER
(Union)

and

U.S. DEPARTMENT OF DEFENSE
CIVILIAN PERSONNEL
MANAGEMENT SERVICE
(Agency)

0-NG-2525

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUE

December 28, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, 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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2424 of the Authority's Regulations. The appeal concerns a single provision, establishing a crediting plan, that was disapproved by the agency head pursuant to review under section 7114(c) of the Statute. The Agency filed a statement of position and the Union filed a response. The Authority subsequently ordered the parties to address questions related to the interpretation of the provision at the bargaining table and its relation to the proposal in ACT, Heartland Chapter, 56 FLRA 236 (2000). Both parties filed submissions responding to the Authority's order.

      For the reasons that follow, we find that the provision is consistent with law under section 7117(a)(1) of the Statute and order the Agency to rescind its disapproval.

II.     Provision

      The text of the provision is set forth at 1 of the Appendix to this decision.

III.     Positions of the Parties

A.     Agency

      The Agency interprets the provision as precluding the selecting official "from receiving or considering any other information or analyses" of candidates for positions other than that provided under the provision. Statement of Position at 3. In its supplemental submission in response to the Authority's order, the Agency stated that: (1) in local bargaining, the Union expressed concerns about pre-selection and viewed the proposal there at issue as a way of improving the predictability of the selection process; (2) the Union indicated the disputed proposal would govern the selection process; (3) Agency representatives argued that the proposed crediting plan would benefit employees who could prepare good applications; (4) there is no dispute as to the bargaining history; and (5) the provision here differs from the proposal in ACT, Heartland Chapter because it does not have the same "'escape clause.'" Agency Supplemental Submission at 4.

      The Agency contends that the provision violates Requirement 3(c) of Change 10 (C10) to Technician Personnel Regulation (TPR) 300 (335), dated July 1, 1991, a regulation for which a compelling need exists under section 2424.50(c) of the Authority's Regulations. [n2] In particular, the Agency claims that the requirement of one point per year for "directly related" job experience "without regard to any selective placement factors" violates Requirement 3(c). As to a compelling need for Requirement 3(c), the Agency contends that 5 U.S.C. § 2301(c) requires agencies to prescribe regulations implementing merit systems principles and that Requirement 3(c) implements § 2301(b)(1) in an essentially nondiscretionary manner so as to fulfill the compelling need criterion set forth in § 2424.50(c) of the Authority's Regulations. [n3] 

      The Agency contends that the Agency head properly disapproved the provision because it affects management's right to select candidates for appointment to a position under § 7106(a)(2)(C) of the Statute. According to the Agency, the provision requires the selecting official to use only the crediting plan established therein and would not allow management to develop any other information with respect to the same knowledge, skills [ v56 p1028 ] and abilities (KSAs) to be provided to the selecting official for the evaluation of those candidates. Therefore, the Agency asserts, the provision interferes with "management's right to determine personnel and its right to select." Statement of Position at 7.

B.     Union

      According to the Union, the evaluation and ranking process prescribed by the provision "merely provides the selecting official with information to consider." Union Response at 4. The Union contends that "the ranking information" provided under the provision "is inherently advisory, not controlling." [n4] Id. In its supplemental submission in response to the Authority's order, the Union stated that: (1) it "did not explain the meaning and effect of the disputed provision during bargaining at the local level preceding the parties' agreement to the provision;" (2) "the agency's bargaining representatives did not describe their understanding of the meaning and effect of the provision when they agreed to it;" (3) there is no dispute between the parties as to bargaining history; and (4) the provision in this case has the same meaning and effect as the proposal in ACT, Heartland Chapter. Union Supplemental Submission at 1.

      The Union claims that the provision does not violate Requirement 3(c). The Union notes that the provision is "identical" to the Agency's Model Merit Promotion Plan, which expressly states that it is consistent with Agency regulations. [n5]  Union Response at 2. The Union also contends that the Agency has not established a compelling need for Requirement 3(c). Specifically, the Union notes that § 2301(b)(1) requires that selection be determined solely "on the basis of" relative ability, knowledge, and skills, but does not impose any mandate as to the particular basis that must be used.

      The Union argues that the provision does not affect management's right to select under § 7106(a)(2)(C) because it does not limit management to the crediting plan prescribed.

IV.     Meaning of the Provision

      The parties dispute the meaning and effect of the provision. On occasion, when parties disputed the meaning of a provision, the Authority remanded the case to an Administrative Law Judge (ALJ) to resolve the dispute. See, e.g., NTEU, 55 FLRA 1174 (1999). In this case, however, based on the record as a whole, we do not believe that such a step is necessary because sufficient explanation has been provided regarding the meaning and operation of the provision.

      The Agency's statement that the Union indicated the proposal would "govern" the selection process is consistent with the Union's expressed desire to provide predictability by having the proposal apply to all selection actions for unit positions. However, this expressed desire does not signify that the provision is intended to be the exclusive crediting plan and nothing in the Agency's submissions indicates that it took a contrary view during bargaining. In fact, we note that the parties are in agreement that there is no dispute as to bargaining history.

      We believe that the record in this case as a whole supports the Union's description of the meaning and effect of the provision. In particular, we note the Union's claim, in response to a question in our order, that the provision in this case has the same meaning as the almost identically worded proposal in ACT, Heartland Chapter. In each case, the Union has explained the meaning and effect of the same wording the same way. Consistently, the Union has maintained that, as worded, the proposal and provision are not intended to provide an exclusive crediting plan. In ACT, Heartland Chapter, for example, after the Authority had raised doubts concerning the Union's explanation of the meaning of that wording, the Union withdrew the provision then before the Authority and added a section clarifying and confirming that the wording meant exactly what the Union claimed it meant. [n6] We are not troubled in this regard by the fact that, as the Agency points out, the proposal in ACT, Heartland Chapter contains the additional [ v56 p1029 ] section and the provision in this case does not. The section was added, and a new proposal created, to address the Authority's doubts as to the meaning of the provision then before it. There is nothing in the wording of the provision at issue herein which is inconsistent with the Union's interpretation. Unless the proposal or provision so states, merely providing for a crediting plan does not in and of itself rule out other plans.

      Therefore, consistent with the Union's statements as to the meaning of the provision in this case, we find that the provision would establish a crediting plan for use by the Agency in rating and ranking unit candidates for vacant unit positions. The crediting plan prescribes the weights to be assigned to the KSAs identified by the Agency as needed to perform the position to be filled. While the provision requires that the rating and ranking information derived under the crediting plan established therein be provided to the selecting official, it does not preclude the Agency from developing a different crediting plan using different weights for the KSAs identified and providing rating and ranking information derived thereunder to the selecting official at the same time and for the same candidates as the information developed under the provision. [n7] See generally ACT, Heartland Chapter, 56 FLRA 236.

V.     Analysis and Conclusions

A.     The Provision Does Not Conflict with the Agency's Regulation

      The disputed provision in this case is substantively the same as Subsection 5-13.b. which was at issue in ACT, Heartland Chapter. In ACT, Heartland Chapter, we found that the proposal did not conflict with the Agency's regulation, Requirement 3(c), because the Agency's interpretation of that regulation as requiring that the weights assigned to evaluative factors be job-related was inconsistent with the Agency's model promotion plan. The proposal in ACT, Heartland Chapter and the provision in this case are virtually identical to the model promotion plan, which states that it reflects the Agency's regulatory requirements. Thus, as the proposal could not, neither can the provision, be found to conflict with Requirement 3(c).

      As to the points to be awarded for "directly related" experience, it is only reasonable, in context, to interpret that phrase as relating to experience directly related to the position being filled. Such experience would clearly be job-related. Moreover, because the Agency has failed to demonstrate that Requirement 3(c) extends to the weights to be assigned evaluative factors, there is no basis for concluding that the portion of the provision pertaining to "directly related" experience violates Requirement 3(c).

      Consequently, consistent with the analysis of the compelling need issue in ACT, Heartland Chapter, we find that the provision does not conflict with Requirement 3(c). Agency regulations only bar negotiation of conflicting proposals, and then only if there is a compelling need for the regulation. Since we have determined that no conflict exists between the provision and the regulation, it is not necessary to address whether there is a compelling need for Requirement 3(c) under section 2424.50 of the Authority's Regulations. See, e.g., AFGE, Locals 3807 and 3824, 55 FLRA 1, 3 (1998).

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

      The provision in this case and the proposal in ACT, Heartland Chapter have the same effect. That is, although both require the Agency to use the crediting plans prescribed therein, both also are not exclusive and do not prohibit the Agency from using other crediting plans and presenting the ratings and rankings derived thereunder to the selecting official while the candidates are being considered. In ACT, Heartland Chapter, we found that the proposal did not affect management's right to select among candidates for appointment to a position under § 7106(a)(2)(C) because it preserved management's discretion to establish a crediting plan that reflected its own view of the position to be filled and to present the results of the rating and ranking thereunder to the selecting official as those candidates are being considered.

      Consequently, consistent with ACT, Heartland Chapter, we find that the provision does not affect management's right to select under section 7106(a)(2)(C).

      We also found in ACT, Heartland Chapter that section 7106(a)(2)(B) did not apply to the proposal in that case. Specifically, we noted that the Authority had rejected the rationale of Customs Serv., Region II v. FLRA, 739 F.2d 829 (2d Cir. 1984), which held that crediting plans constitute an exercise of management's right to determine its personnel; that the Authority has consistently treated proposals concerning the establishment of crediting plans under § 7106(a)(2)(C); and that the Agency in that case provided no explanation of its [ v56 p1030 ] claim that the proposal interfered with management's right to determine the personnel who will conduct the Agency's operations.

      Moreover, in this case, the Agency does not specifically cite § 7106(a)(2)(B) or, compared to its arguments under § 7106(a)(2)(C), specifically explain how the provision would affect the right to determine personnel under § 7106(a)(2)(B). The Agency simply concludes, after its analysis under § 7106(a)(2)(C), that the provision affects management's rights to determine personnel and select.

      Consequently, for the reasons stated in ACT, Heartland Chapter, and including the fact that the Agency has provided no support for its § 7106(a)(2)(B) claim, we find that the provision does not affect management's right to determine the personnel who will conduct the Agency's operations.

VI.     Order

      The Agency shall rescind its disapproval of the provision.


APPENDIX

1.      The disputed provision in this case provides as follows:

ARTICLE 19
MERIT PROMOTION AND
INTERNAL PLACEMENT

. . . .
19-15 EVALUATING AND RANKING APPLICANTS
. . . .
     b.     A point system will be utilized to establish the grouping of candidates. Items to receive ratings are as follows:
          1.     Experience: For directly related experience one (1) point per year (NGB Form 300-4).
          2.     Potential (based on KSA ratings) NGB Form 300-3.
               (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 a 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 (3) to six (6) months).
               (c)     "C" level experience: Candidate satisfies the basic requirement of 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's used for the rating. KSA's will be the same for all applicants evaluated.
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     A 14.2     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's, 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.
OVERALL RATING: The overall rating for each category (experience, KSA's) will be combined and the total score for all categories will be recorded on HRO Form 300-4. [ v56 p1031 ]

2.     Change 10 (C10) to Technician Personnel Regulation 300 (335) provides in relevant part as follows:

MERIT PLACEMENT
FOR
NATIONAL GUARD TECHNICIANS

. . . .

PART I - BASIC REQUIREMENTS

. . . .
REQUIREMENT 3
     a.     Use the qualification requirements issued by the National Guard Bureau "to evaluate for excepted service positions."
     b.     Ensure that candidates meet the minimum qualification standards prescribed for the position.
     c.     Ensure that all procedures used to identify, qualify, evaluate, and select are based on job-related criteria.

3.     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.

4.     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.

5.     Technician Personnel Manual 300 (335), Appendix B, "Model Merit Placement Plan." provides, in relevant part, as follows:

APPENDIX B (ADDED)

MODEL MERIT PLACEMENT PLAN

This appendix is a model of a State merit placement plan. It is not regulatory but does reflect established National Guard Bureau regulatory requirements. Users should consult the applicable regulatory references and guidance shown in this regulation.
. . . .

"CHAPTER 5"

EVALUATING CANDIDATES

. . . .
5-2.     Evaluating Experience. After the KSAs needed for successful performance on the job have been identified through the job analysis, the applications and OPFs will be used to gather job-related background data to be used in the evaluation process. Experience will be evaluated in terms of type and quality in relation to the requirements of the position. Length of service or experience will only be used when there is a clear relationship with quality of performance or when necessary to break ties when all other things are equal. Experience will be rated in categories as shown below on each KSA determined in the job analysis. [ v56 p1032 ]
a.     "A" level experience. Candidate possesses type and quality of experience that substantially exceeded 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 exceed the basic requirements of the position, including selective placement factors, and that would allow the candidate to perform effectively in the position with a reasonable period of time (e.g., 3 to 6 months).
c.     "C" level experience. Candidate satisfies the basic requirement of the position with respect to experience, including placement factors, but:
     (1)     Type and quality of experience beyond that which is basically required are minimal, and/or
     (2)     Extensive additional training and/or orientation would be required to enable the candidate to satisfactorily perform the duties of the position.
The point values assigned to A, B, and C levels is determined by the number of KSA factors used. (See Table 5- 1.) Points are then totaled for each candidate and transferred to NGB Form 300-4.

_____________________________________________

Table 5-1
Point Values of Category Ratings

_____________________________________________

Three KSA     Four KSA     Five KSA     Six KSA     Seven KSA     Eight KSA
Factors     Factors     Factors     Factors     Factors     Factors

_____________________________________________

A 33.3     A 25.0     A 20     A 16.6     A 14.2     A 12.5
B 28.3     B 21.2     B 17     B 14.1     B 12.1     B 10.6
C 23.3     C 17.5     C 14     C 11.6     C 10.0     C 8.7
_____________________________________________

(Using the five KSA factors, a candidate's combined category rating of AABBC (20, 20, 17, 17, 14) converts to 88.)



Footnote # 1 for 56 FLRA No. 180

   Member Pope did not participate in this decision.


Footnote # 2 for 56 FLRA No. 180

   Change 10 (C10) to Technician Personnel Regulation (TPR) 300 (335), dated July 1, 1991, is set forth at 2 of the Appendix to this decision. Section 2424.50 of the Authority's Regulations is set forth at 3 of the Appendix.


Footnote # 3 for 56 FLRA No. 180

   The text of 5 U.S.C. § 2301(b)(1) is set forth at 4 of the Appendix to this decision.


Footnote # 4 for 56 FLRA No. 180

   In the post-petition conference the Union stated that, under the provision, at the same time that the first group of candidates derived under the provision is considered by the selecting official, information concerning that group that is derived from other sources could also be presented to the selecting official. See Report of Post-Petition Conference at 2. The Agency did not specifically challenge that explanation of the provision.


Footnote # 5 for 56 FLRA No. 180

   The relevant text of the Agency's Model Merit Placement Plan is set forth at 5 of the Appendix to this decision.


Footnote # 6 for 56 FLRA No. 180

   Section 5-13.c. of the proposal at issue in ACT, Heartland Chapter was included by the Union to clarify the intent of the wording of that proposal, and stated, in pertinent part, as follows:

c. The rankings determined under paragraph b shall be considered by, but are not binding on, the selecting official. Nothing in this Article prohibits the selecting official from receiving or considering other information or analyses regarding the qualifications of candidates. Although under [other sections] rankings and areas of consideration determine the order in which lists of candidates are presented to the selecting official, rankings do not prohibit the selecting official from receiving any candidate list. . . .

Footnote # 7 for 56 FLRA No. 180

   The meaning that the Authority adopts for this provision, unless modified by the parties, would apply in other disputes, such as arbitration proceedings, where the construction of this provision is at issue. See NEA, Overseas Educ. Ass'n., Laurel Bay Teachers Ass'n., 51 FLRA 733, 741-