Association of Civilian Technicians, Treasure State Chapter #57 (Union) and United States Department of Defense, National Guard Bureau, Montana National Guard, Helena, Montana (Agency)

[ v56 p1046 ]

56 FLRA No. 185

ASSOCIATION OF CIVILIAN TECHNICIANS
TREASURE STATE CHAPTER #57
(Union)

and

UNITED STATES DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
MONTANA NATIONAL GUARD
HELENA, MONTANA
(Agency)

0-NG-2552

_____

DECISION AND ORDER ON
A NEGOTIABILITY ISSUE

January 23, 2001

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, 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)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one provision disapproved by the Agency head under section 7114(c) of the Statute. [n1] For the reasons that follow, we dismiss the petition for review.

II.     Provision

      Section 7-1. General Provisions:

a.     Purpose: This article provides procedures that will insure that each technician in the bargaining unit receives full consideration for all bargaining unit vacancies and that the best qualified technician will be forwarded to the selecting official.
b.     Scope: This article will be used for filling all Area I & III bargaining unit vacancies within the Montana Army National Guard, and will be used for all promotions, reassignments, and transfers.
. . . . [ v56 p1047 ]

      Section 7-3. Actions Exempt From Competition: Conditions when this article will not be utilized to fill a vacancy are:

a.     Promotions resulting from a technician's position being reclassified at a higher grade because of additional duties and responsibilities.
b.     Placement of over graded technicians entitled to grade retention as a result of RIF or reclassification.
c.     Promotion when competition was held earlier (i.e., position is advertised with known promotion potential).
d.     Re-promotion to grade or an intervening grade or position from which a technician was demoted without personal cause and not at their own request, if the downgrading has occurred within two (2) years or less.
e.     Trainees to the full grade of the position if the trainee has received the position through previous competition.
f.     Position changes required by Article 11 (RIF) of this agreement.
g.     Selection of a former technician from the reemployment priority list to a position at the same or lower grade than the one last held. This provision is applicable to those who have lost employment at the Montana Army National Guard within the past two (2) years.
h.     Temporary promotion of 30 days or less. (See Article 16, Section 4.)

III.     Positions of the Parties

A.     Agency

      According to the Agency, with the exception of the actions set forth in Section 7-3, Section 7-1 would require that all Area I and Area III bargaining unit vacancies in the Montana Army National Guard "be filled competitively." [n2] Statement of Position at 3. The Agency claims that this requirement violates its right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. As an example, the Agency claims that the provision would preclude it from filling a position "by other appropriate noncompetitive means, such as through reassignment." Id. at 4. The Agency contends that, although provisions that "merely establish procedural requirements" may be negotiable, "when those procedures substantively interfere with the exercise of reserved management rights, such provisions are nonnegotiable." Id. at 3 (citations omitted).

B.     Union

      The Union asserts that the Agency's statement of position "appears to raise, for the first time, the objection that [the provision] requires the [A]gency to fill vacancies." Response at 1. The Union contends that the provision does not require the Agency to fill vacancies and, instead, requires that "if the [A]gency in exercise of unfettered discretion decides to fill a vacancy, the [A]gency must use the negotiated competitive procedure to fill that vacancy unless one of the contractual exceptions to use of the competitive procedure applies." Id. at 2-3.

      The Union states that the Agency disapproved the provision based on its belief that "no contractual selection procedure ever can be mandatory." Id. at 3. The Union asserts that the Agency's argument is contrary to the plain wording of section 7106 of the Statute: "Section 7106 states that . . . `[n]othing in th[e] section shall preclude . . . negotiati[on of] procedures which management officials . . . will observe in exercising any authority under th[e] section.'" Id. (Brackets, ellipses, and emphasis in original.) The Union also claims that, contrary to the Agency's argument, the provision would permit the filling of a position through reassignment because, under the provision, employees "may be reassigned to fill vacancies through the competitive procedure." Id. at 3-4 (emphasis in original).

IV.     Meaning of the Provision

      The Union and the Agency agree that, with the exceptions listed in section 7-3, the provision would require the Agency to use competitive procedures to fill all Area I and III bargaining unit vacancies. See Response at 2-3 (Union states that, unless an exception in section 7-3 applies, the Agency "must use the negotiated competitive procedure" to fill relevant vacancies); Statement of Position at 3 (Agency states that, unless an exception in section 7-3 applies, section 7-1 requires that all relevant vacancies "be filled competitively."). [ v56 p1048 ] Thus, unless one of the exceptions applies, if the Agency decides to fill a vacancy and the competitive selection procedures result in at least one candidate, then the Agency would be required to: (1) select a candidate; (2) reannounce the position and again use competitive procedures; or (3) decline to fill the vacancy.

      The Union contends that the provision does not require the Agency to actually fill vacancies. We do not read the Agency's Statement of Position as contending to the contrary. In fact, the Agency states that it agrees with the Union's characterization of the provision's meaning. That characterization is plainly consistent with the wording of the provision. As such, even though the Agency discusses AFGE, Local 3354, 54 FLRA 807 (1998) -- which involved a proposal requiring the agency to actually fill positions -- we conclude, based on the record as a whole, that the provision does not require the Agency to do so.

V.     Analysis and Conclusions

A.     The provision affects management's right to select from any appropriate source.

      Under section 7106(a)(2)(C) of the Statute, management has the discretion to select candidates for positions from any appropriate source. See ACT, Pa. State Council, 54 FLRA 552, 558 (1998). A proposal requiring an agency to use competitive procedures to fill vacant positions affects management's right to select under section 7106(a)(2)(C), even where the proposal provides management with an exception in certain circumstances. See NAGE, Local R14-52, 9 FLRA 1042, 1043-44 (1982).

      Unless one of the exceptions in section 7-3 applies, the provision in this case would preclude the Agency from selecting an individual for a vacant position unless that individual is available for selection through competitive procedures. As such, the provision would not preserve management's right to ultimately select from a different source, including noncompetitive reassignment. In these circumstances, we conclude that the provision affects management's right to select from any appropriate source.

B.     The provision does not constitute a procedure.

      The Authority has found that proposals requiring the use of competitive procedures in considering employees for vacancies constitute negotiable procedures only when the proposals do not "prevent management from considering other applicants, or expanding the area of consideration once bargaining unit employees were considered, or using any other appropriate source" in actually "filling such vacancies." NTEU, 7 FLRA 275, 284-85 (1981) (quoting ACT, Del. Chapter, 3 FLRA 57, 59 (1980)). Accord NTEU, Chapter 55, 15 FLRA 820, 822-23 (1984) (proposals requiring management to first use competitive procedures, but which did "not require the [a]gency to fill the positions in question through the competitive procedures," constituted a negotiable procedure). Consistent with these decisions, a proposal requiring us