Association of Civilian Technicians, Evergreen and Rainier Chapters (Union) and U.S. Department of Defense, National Guard Bureau, Military Department, State of Washington, Camp Murray, Tacoma, Washington (Agency)

[ v57 p475 ]

57 FLRA No. 89

ASSOCIATION OF CIVILIAN TECHNICIANS
EVERGREEN AND RAINIER CHAPTERS
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
MILITARY DEPARTMENT
STATE OF WASHINGTON
CAMP MURRAY, TACOMA, WASHINGTON
(Agency)

0-NG-2483

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

September 21, 2001

_____

Before the Authority: Dale Cabaniss, Chairman;
Carol Waller Pope and Tony Armendariz, Members. [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 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 three proposals. The Agency filed a statement of position and the Union filed a response. [n2] 

      For the reasons that follow, we find that the proposals are within the duty to bargain and order the Agency to bargain on the proposals. [ v57 p476 ]

II.     Proposal 1

      The proposal is set forth at paragraph 1 of the Appendix to this decision.

A.     Positions of the Parties

1.     Agency

      According to the Agency, Proposal 1 "establishes, and requires use of, a point system in the evaluation and ranking of candidates to determine the order in which candidates applying for excepted service technician positions will be referred to the selecting official." [n3]  Statement of Position at 2. The Agency asserts that the proposal identifies specific categories to which rating points must be assigned and also limits the points that can be assigned to each of those categories.

      The Agency claims that the proposal is barred from negotiation by an agency regulation, Requirement 3.c. of Change 10 (C10) to Technician Personnel Regulation (TPR) 300 (335), [n4] for which a compelling need exists under § 2424.11(c) of the Authority's Regulations. [n5]  Specifically, the Agency argues that: (1) Requirement 3.c. mandates that all procedures used to evaluate candidates for selection to positions are to be based on job-related criteria; and (2) the proposal violates Requirement 3.c. because it prescribes the rating points to be given to various categories of evaluation factors without regard to how those factors are related to the job. The Agency contends that the proposal requires all of the knowledges, skills, and abilities (KSAs) needed to perform a job be weighted equally regardless of their relationship to the job and limits the points that can be given for performance, training, and education.

      The Agency claims that excepted service technicians are subject to the merit system principle established in 5 U.S.C. § 2301(b)(1) which provides, as relevant herein, that "selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills." [n6]  According to the Agency, Requirement 3.c. implements in an essentially nondiscretionary manner the mandate of 5 U.S.C. § 2301(c) that agency regulations comply with the merit system principle prescribed in § 2301(b)(1). The Agency asserts that, for that reason, a compelling need exists for Requirement 3.c. under § 2424.11(c) of the Authority's Regulations.

      The Agency also claims that the proposal violates management's rights to select candidates for appointment to positions under § 7106(a)(2)(C) of the Statute and, relying on United States Customs Serv., Region II v. FLRA, 739 F.2d 829 (2nd Cir. 1984) (Region II), to determine the personnel who will conduct agency operations. Specifically, the Agency argues that the proposal interferes with its right to determine the qualifications needed to fill a position and to evaluate the extent to which candidates possess those qualifications. According to the Agency, by determining the weight to be given to various evaluative factors, the proposal prescribes a crediting plan for each position. [n7] 

2.     Union

      The Union asserts, referring to Proposal 2, [n8] that the rankings derived under Proposal 1 are not binding on, but need only be considered by, the selecting official [ v57 p477 ] and that Proposal 1 does not prohibit the Agency from rating and ranking candidates in another way. As such, the Union argues, the proposal "do[es] not restrict the selecting official's discretion," but is "procedural." Union Response at 4.

      The Union contends that the proposal does not violate Requirement 3.c. According to the Union, the KSA point system established by the proposal is identical to that in the Agency's own "Model Merit Placement Plan" (model plan) [n9] and "[o]ther evaluation criteria" are "similar in nature to those" in the model plan. Id. Because the model plan itself states that it reflects the Agency's regulatory requirements, the Union argues that the proposal, which incorporates the KSA point system of that plan, cannot be inconsistent with the Agency's regulations, particularly Requirement 3.c. In addition, the Union notes that the Agency does not claim that other evaluative factors prescribed in Proposal 1, such as training, education, and performance, are not job-related.

      The Union also maintains that Requirement 3.c. does not meet the Authority's compelling need criteria. In particular, the Union argues that § 2301(b)(1) does not impose a nondiscretionary mandate as to the weights that should be assigned to particular evaluative factors or how they should be combined into an overall ranking. According to the Union, such matters are discretionary with the Agency and "[t]here is no compelling need for any particular method." Id. at 6.

      As to the effect of Proposal 1 on the exercise of management's rights, the Union claims that the proposal is a negotiable procedure. According to the Union, the proposal "does not require that the information be used by the selecting official in any particular way; it 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. In addition, the proposal does not prevent the selecting official from asking someone else to prepare a different ranking and submit it to the selecting official. The Union states that the "ranking information provided by Proposal 1 is inherently advisory, not controlling." Id. at 7. The Union asserts that the proposal is distinguishable from the proposal held to be nonnegotiable in Region II because it permits the Agency to evaluate candidates by a crediting plan other than that prescribed by the proposal and to submit the results to the selecting official.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its terms, Proposal 1 prescribes the selective factors, and the points awarded for possession of those factors, to be used in determining the relative qualifications of area 1 candidates for excepted technician positions. [n10]  In essence, the proposal establishes a crediting plan.

      As to the effect of that crediting plan on the Agency's consideration of candidates, the Union relies on Proposal 2. Where a proposal is a subpart of a multi-part proposal, the Authority will read the subpart in the context of the remainder of the proposal in order to determine its meaning. See, e.g., NAGE, Local R14-52, 44 FLRA 738, 741 (1992). Proposals 1 and 2 are subparts of Section 15 and thus should be read together, particularly since Proposal 2 explicitly references Proposal 1.

      Proposal 2 provides that the selecting official will consider the rating information pertaining to candidates prepared under Proposal 1 and that the selecting official is not prohibited from considering other information or analyses concerning the qualifications of those candidates. In other words, by its terms, although the Agency is required to use the crediting plan established by Proposal 1, it is not bound by the ranking of candidates derived therefrom, but is free to develop other rankings in addition for consideration by the selecting official. Interpreted together with Proposal 2, in short, Proposal 1 is not exclusive. As the Union explains, Proposal 1 "does not require that the information be used by the selecting official in any particular way; it 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." Union Response at 6. The Union's explanation of the proposals comports with the wording thereof and is adopted for purposes of resolving the negotiability of the proposal. See, e.g., Nat'l Education Ass'n, Overseas Education Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733,741-42 (1996) (Laurel Bay). [n11]  [ v57 p478 ]

      Moreover, nothing in the proposal prohibits management from submitting alternative information regarding candidates rated and ranked under the proposal to the selecting official at the same time that those candidates are being considered by the selecting official.

2.     The Proposal Does Not Violate the Agency's Regulation

      Proposal 1 is substantively the same as Subsections 5-13.a. and b. which were at issue in ACT, Inc., Heartland Chapter, 56 FLRA 236 (2000) (Heartland Chapter). In particular, the proposal in Heartland Chapter contains an additional subsection, Subsection 5-13.c., which defines the effect of the crediting plan established in Subsections 5-13.a. and b. of that case in the same way that Proposal 2 defines the effect of Proposal 1 in this case.

      In Heartland Chapter, the Authority found that the proposal did not conflict with the Agency's regulation, Requirement 3.c., because it found that the proposal merely restated the Agency's own model plan. The proposals in Heartland Chapter and this case are virtually identical to the model plan, which states that it reflects the Agency's regulatory requirements. As such, neither proposal can be found to conflict with Requirement 3.c.

      Consistent with the analysis in Heartland Chapter, we find that Proposal 1 in this case does not conflict with Requirement 3.c. Therefore, it is not necessary to address whether there is a compelling need for Requirement 3.c. under § 2424.11(c) of the Authority's Regulations. See, e.g., AFGE, Locals 3807 and 3824, 55 FLRA 1, 3 (1998).

3.     The Proposal Does Not Affect Management's Rights

      The proposal in this case has the same effect as the proposal in Heartland Chapter. That is, although both proposals require the Agency to use the crediting plans prescribed therein, both proposals also provide that those crediting plans are not exclusive and do not prohibit the Agency from using other crediting plans and presenting the rankings derived therefrom to the selecting official while the candidates are being considered. In Heartland Chapter, the Authority found that the proposal in that case did not affect management's right to select from among candidates for appointment to a position under § 7106(a)(2)(C) because it preserves management's discretion to establish a crediting plan reflecting its own view of the requirements 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, because Proposal 1 has the same effect as the proposal in Heartland Chapter, we find, consistent with Heartland Chapter, that Proposal 1 does not affect management's right to select under § 7106(a)(2)(C).

      The Authority also found, in Heartland Chapter, that the proposal did not affect management's right to determine personnel under § 7106(a)(2)(B). Specifically, the Authority noted that it has rejected the rationale of Region II, which held that the establishment of crediting plans constitutes an exercise of management's right to determine personnel under § 7106(a)(2)(B). The Authority also noted that it has consistently treated proposals concerning the establishment of crediting plans under § 7106(a)(2)(C), and that the Agency provides no explanation of its claim that the proposal interferes with management's right to determine the personnel who will conduct the Agency's operations.

      Consequently, we conclude, consistent with Heartland Chapter, that § 7106(a)(2)(B) does not apply to Proposal 1. Accordingly, we find that Proposal 1 is within the duty to bargain.

III.     Proposal 2

      Proposal 2 is set forth at paragraph 2 of the Appendix to this decision.

A.     Positions of the Parties

1.     Agency

      The Agency claims that Proposal 2 directly interferes with management's rights to determine the personnel who will conduct the Agency's operations under § 7106(a)(2)(B) and select from among candidates for appointment to positions under § 7106(a)(2)(C). The Agency cites Dep't of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) (BATF), wherein the court found that a proposal requiring management to consider bargaining unit candidates before soliciting and rating candidates from outside the unit violated management's right to select under § 7106(a)(2)(C). According to the Agency, the court held that the delay involved in soliciting and rating additional candidates created pressure to select from among the unit candidates referred to the selecting official first.

      The Agency notes that Proposal 2 requires the selecting official to provide written definitive justification to the Human Resources Office (HRO) for deciding not to select any of the area 1 candidates who are referred first, and the HRO to approve those written justifications, [ v57 p479 ] before the selecting official can see area 2 candidates. [n12]  In this regard, the Agency argues that the proposal, in effect, "requires selection unless all area one candidates are definitively found to be 'unacceptable,' and violates [s]ection 7106(a)(2)(C) on that basis alone." Statement of Position at 8 (emphasis in original). The Agency also notes that if the selecting official determines, after considering area 2 candidates, that an area 1 candidate would best fill the position, the selecting official must explain why the initial justification for nonselecting that candidate was insufficient.

      The Agency contends that, like the proposal in BATF, wherein the court found that the effect of the proposal was "to delay the employment process for only part of the applicants," the proposal in this case "attempts to prohibit, not simply delay, the consideration of other candidates management has determined to be best qualified or highest ranking, until it has considered and provided written justification that the candidates on the referral list, ranked [under the proposal] are 'unacceptable.'" Id. at 7-8. The Agency asserts that the proposal creates "pressure" on the selecting official to select a unit employee referred under the proposal rather than take the time to provide the written definitive justification for nonselection of all area 1 candidates, knowing that the nonselection decision as to one of those candidates might later need to be retracted. Id. at 8.

2.     Union

      The Union claims that Proposal 2 is procedural, requiring that: (1) area 1 candidates, that is, unit employees, be considered before other candidates; (2) reasons be given if all area 1 candidates are nonselected; and (3) if, after considering other candidates, the selecting official decides to select an area 1 candidate, reasons be given for the decision to retract nonselection of that candidate.

      The Union states that proposals requiring priority consideration for unit employees are procedural, citing NTEU, 43 FLRA 1279, 1285 (1992). In addition, the Union asserts that a proposal requiring a selecting official to provide justification for nonselection, providing the nonselected candidate 7 days to rebut those reasons, and the selecting official 7 days to respond has been held to be within the duty to bargain, citing AFSCME, Local 2027, 27 FLRA 191, 194-97 (1987) (Chairman Calhoun concurring) (AFSCME, Local 2027). The Union claims that the requirements of Proposal 2 are "indistinguishable" from the requirements of the proposals in those cases. Union Response at 9.

      The Union argues that the Agency "erroneously relies" on BATF. Id. at 10. According to the Union, the proposal in that case precluded the agency from soliciting and evaluating applicants simultaneously with the solicitation and evaluation of unit employees. The Union contends that Proposal 2 would not have that effect. Rather, the Union asserts, lists of properly rated and ranked candidates from outside the unit could be presented to the selecting official immediately after written definitive justification for nonselection of unit employees is completed.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      Proposal 2 provides that the selecting official will interview and consider Area One candidates, and if the selecting official does not select one of the Area One candidates, then the selecting official will submit to HRO a statement of reasons that the individual candidates were not selected. Proposal 2 further provides that after that statement of reasons has been "accepted" by HRO, Area Two candidates will be submitted to the selected official, who will then interview and consider those candidates. If after considering the Area Two candidates the selecting official determines that an Area One candidate previously non-selected should be selected, then the proposal provides that the selecting official will submit to HRO a statement of reasons for changing the initial statement submitted by the selecting official justifying that candidate's prior non-selection. The proposal also provides that if an employee is not selected for re-promotion, then the employee will have 7 days, during which the position will remain unfilled, to rebut the written justification for non-selection.

      The Agency asserts, and the dissent agrees, that Proposal 2 requires the selecting official to have its reasons for non-selection "approved" by HRO before additional candidates can be provided to the selecting official. Statement of Position at 7. The Union explains, however, that Proposal 2 provides only that (1) if all Area One candidates are non-selected, then reasons must be given; and (2) if after non-selection of all Area One candidates, the selecting official changes her or his mind and decides to select an Area One candidate, then reasons be given for that change. Union Response at 8-9. Because the Union's explanation of the proposal is consistent with its plain wording -- which provides only for the reasons to be "accepted" by HRO -- it is adopted for [ v57 p480 ] the purposes of this decision. [n13]  See Laurel Bay, 51 FLRA at 741-42. See also n.10, supra. As nothing in the Union's explanation, or the plain wording of the proposal, supports a conclusion that Proposal 2 permits HRO to approve or disapprove the reasons for non-selection, we reject the Agency's assertion to the contrary.

2.     Proposal 2 Does Not Violate Management's Rights

      The Authority has consistently held that 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 § 7106(a)(2)(C) of the Statute. See ACT, Volunteer Chpt. 103, 55 FLRA 562, 565 (1999) (Volunteer Chpt.) (Chair Segal dissenting on other grounds); Laurel Bay Teachers Ass'n OEA/NEA, 49 FLRA 679, 687 (1994) (citing NTEU, 43 FLRA 1279, 1287-88 (1992)); AFGE, Local 1923, 44 FLRA 1405, 1493-94 (1992). Cf. AFGE, Local 738, 39_FLRA_872, 875 (1991) (proposal precluding management from soliciting, processing, and considering applications from candidates outside the unit held to directly interfere with management's right to select from any appropriate source). The Authority has also consistently held that a proposal that requires an agency to provide a statement setting forth the reasons for the agency's action does not directly interfere with management's rights. See ACT, Volunteer Chpt. 103, 55 FLRA at 565-66; POPA, 47 FLRA 10, 65-66 (1993); NTEU, 43 FLRA at 1293; AFGE, Local 446, 43 FLRA 836, 845 (1991). Accordingly, in ACT, Volunteer Chpt. 103, 55 FLRA at 565-66, the Authority found that a proposal nearly identical to Proposal 2 in this case -- requiring a selecting official to consider and reject qualified unit employees prior to considering other candidates and to provide the agency's HRO with written justification for the decision not to select each unit candidate -- did not directly interfere with management's right to select.

      Applying this well-settled precedent here, we conclude that Proposal 2 does not violate management's right to select. As set forth above, Proposal 2 provides for the selecting official to consider Area One -- 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. Once that written justification is accepted by the Agency's HRO, the selecting official is free immediately to consider other candidates. Because the proposal permits the selecting official to consider other candidates once that official has rejected those first considered and provided the requisite written justification, and because the proposal merely requires the selecting official to document the reasons for non-selection, it does not violate management's right to select under section 7106(a)(2)(C) of the Statute. See id.

      In our view, nothing in Dep't of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) (BATF) compels a different conclusion. The court in BATF found that a proposal requiring the agency to rank and consider current employees for promotion before soliciting or considering outside candidates was outside the agency's duty to bargain. The court concluded, in this regard, that by providing that "management may not consider or even solicit" outside applicants until it had finished rating and ranking internal candidates, the proposal "would create pressure . . . to promote a reasonably competent agency employee rather than leave a position unfilled during the time it would take to initiate and complete a late-starting search for a more qualified outside candidate." Id. at 822. The court found this result inconsistent with management's right to select under § 7106(a)(2)(C) of the Statute. Id.

      In sharp contrast to the proposal in BATF, Proposal 2 permits the simultaneous solicitation of applications from unit and non-unit employees. Further, to the extent there is a time lag between consideration of the two groups, the length of it is within the control of the Agency. In this regard, the Agency is free under the proposal to determine the form of the written justifications and the amount of time it takes to accomplish them. In addition, the Agency would be free to establish a system for expediting the selection process, such that immediately after HRO receipt of the selecting official's written justification for non-selection of Area One candidates, the official would receive the list of Area Two candidates for consideration and be able to make a selection therefrom. This differs markedly from the BATF proposal. Indeed, the court in BATF described as "significantly different" a proposal that provided internal candidates a "ten-day head start" but "did not prevent management from soliciting outside applicants [ v57 p481 ] during the ten-day waiting period." Id. at 823. If a 10-day "head start" proposal is "significantly different" from the one in BATF, then Proposal 2 -- which imposes no particular "head start" at all -- is even more so. As such, BATF does not support a conclusion that Proposal 2 violates the Agency's right to select.

      Moreover, even if BATF were to be read broadly as rendering nonnegotiable any proposal whose "practical effect" is to "create pressure on the selecting official to select a unit employee," we do not view this proposal, as construed above, as fitting within that rationale. We do not believe that requiring a selecting official to state his or her reasons for nonselection of unit employees places any undue pressure on that official. See ACT, Volunteer Chpt. 103, 55 FLRA at 566.

      The Agency further argues that Proposal 2 violates its right to determine the personnel who will conduct the Agency's operations under § 7106(a)(2)(B). However, as with Proposal 1, the Agency provides no arguments or explanation of its claim. As such, we reject the claim.

      Based on the foregoing, we find that Proposal 2 does not violate management's rights to select under § 7106(a)(2)(C) and determine the personnel by which Agency operations shall be conducted under § 7106(a)(2)(B) of the Statute.

IV.     Proposal 3

      Proposal 3 is set forth at paragraph 3 of the Appendix to this decision.

A.     Positions of the Parties

1.     Agency

      The Agency cites Pub. L. 104-106, sec. 1038(a), 110 Stat. 432; Pub. L. 104-201, sec. 654, 110 Stat. 2583 (the National Defense Authorization Act for Fiscal Year 1996, hereafter "the Authorization Act of 1996"), which, among other things, amended 32 U.S.C. § 709 (the Technician Act), governing the employment of civilian technicians of the National Guard. [n14]  The Agency argues that, taken as a whole, these provisions demonstrate that Congress intended that the subject of uniforms be a military matter for National Guard technicians. Specifically, according to the Agency, these provisions: (1) require that technicians wear the military uniform while performing technician duties; (2) defray the cost of the uniforms under statutory provisions applicable to military members of the Guard; and (3) eliminate loopholes in the law which might otherwise permit double compensation for the cost of uniforms under laws applicable to civilian employees. According to the Agency, § 1038(a) of the Authorization Act of 1996 requires technicians to wear the uniform appropriate to the member's grade. By use of the term "member," instead of the term "employee," the Agency contends, Congress linked the matter of the uniform to the technicians' military status, rather than their civilian status.

      The Agency notes that the purpose of title 37 of the United States Code is to codify laws relating to the pay and allowances of the "uniformed services" of the United States. The Agency also notes that § 7103(a)(2)(B)(ii) of the Statute excludes members of the uniformed services from the definition of "employee." The Agency claims that, by placing provisions regarding uniforms for technicians under title 37 pertaining to the uniformed services, Congress emphasized that matters pertaining to uniforms concerned the military membership of technicians. The Agency cites Authority cases [n15] in which proposals were found to pertain to the military aspects of technician employment, despite the fact that those proposals did not refer to military statutes. The Agency argues that, by contrast, the subsections of Proposal 3 concern matters covered in the Authorization Act of 1996.

      Finally, the Agency maintains that all the subsections of Proposal 3 are inconsistent with 37 U.S.C. §§ 415-418, as amended by the Authorization Act of 1996. [n16]  Specifically, according to the Agency, under the amendments to title 37, personnel who receive uniforms under the requirement that technicians wear the military uniform while performing technician duties are prohibited from receiving uniforms under provisions relating to civilian employees. The Agency asserts that Proposal 3 is inconsistent with 37 U.S.C. §§ 415-416, which prescribe the maximum uniform allowance for officers and permit no discretion for bargaining. The Agency also asserts that 37 U.S.C. § 418 provides the President with discretion to prescribe conditions governing the issuance of uniforms to enlisted personnel and that discretion is not subject to bargaining. The [ v57 p482 ] Agency claims that 37 U.S.C. §§ 415-418 do not authorize expenditures for maintenance of uniforms and, "under the terms of the Purpose Statute, any disbursement of funds not specifically authorized is a violation of the Anti-Deficiency Act." Statement of Position at 9.

2.     Union

      The Union claims that the negotiability of subsections 1 and 2 of Proposal 3 is controlled by NFFE, Local 1669, 55 FLRA 63 (1999), aff'd mem sub nom. Arkansas National Guard v. FLRA, Case Nos. 99-1563, 99-1974 (8th Cir. Oct. 14, 1999). According to the Union, those subsections are "indistinguishable" from the proposal in NFFE, Local 1669 and, in that case, the Authority "squarely rejected" all of the arguments that the Agency makes in this case. Union Response at 11.

      As to subsection 3 of Proposal 3, the Union argues that under 37 U.S.C. §§ 415-416 the Agency has discretion to provide less than the designated maximum. The Union also argues that, even if those statutory provisions require the payment of the amounts specified, the proposal is not inconsistent with 37 U.S.C. §§ 415-416 because it provides only "what the laws, themselves, require." Id. at 12.

      The Union claims that the Agency's argument that subsection 4 pertaining to cleaning services for uniforms violates the Anti-Deficiency Act is "frivolous." Id. at 11. The Union argues that laws generally authorizing the expenditure of funds for the operation of the agency are, absent "specific prohibitions," available for specific expenditures such as cleaning services. Id. at 12.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      Subsection 1 of Proposal 3 requires the Agency to provide unit employees with an adequate number of uniforms with all appropriate insignia and patches properly sewn on. Subsection 2 of Proposal 3 requires that the Agency provide unit employees, other than officers, with two pair of regular or safety footwear as required and to co-pay the maximum rate for such footwear that is allowed by regulation. Subsection 3 of the proposal requires the Agency to provide the maximum uniform allowance authorized under 37 U.S.C. §§ 415-417 for officers who are unit employees. Subsection 4 of the proposal requires that the Agency provide unit employees cleaning services for uniforms that employees must wear in the performance of their duties.

2.     Proposal 3 concerns a civilian, rather than a military, aspect of technician employment and is, therefore, a matter pertaining to conditions of employment.

      Background concerning the Technician Act and the Authorization Act of 1996 is set forth in ACT, Inc., Rhode Island Chapter, 55 FLRA 420, 421 (1999) (Rhode Island Chapter) and NFFE, Local 1699, 55 FLRA 63 and will not be repeated here. In particular, the arguments raised by the Agency in this case concerning the effect of the Authorization Act of 1996 were addressed, and rejected, by the Authority in NFFE, Local 1669. Consistent with NFFE, Local 1669, therefore, we find that Proposal 3 does not concern the military aspects of technician employment, but matters pertaining to the civilian aspects of technician employment.

3.     Proposal 3 is not inconsistent with 37 U.S.C. §§ 415-418.

      The Agency's arguments do not demonstrate that Proposal 3 is inconsistent with 37 U.S.C. §§ 415-418. Specifically, the fact that the Authorization Act of 1996 amended 37 U.S.C. §§ 415-418 to prohibit technicians from receiving uniforms under statutory provisions relating to uniforms for civilian employees does not provide a basis for finding Proposal 3 nonnegotiable. Nothing in the proposal requires the Agency to provide uniforms for unit employees under any other statutory provisions than 37 U.S.C. §§ 415-418.

      In addition, the fact that 37 U.S.C. §§ 415-416 prescribe the maximum uniform allowance for officers does not demonstrate that Subsection 3 of Proposal 3 concerns an area of discretion under those statutory provisions that is prohibited from bargaining. In this regard, the Authority has held that statutory provisions providing an agency "sole and exclusive discretion" with respect to a matter preclude bargaining over that matter, see, e.g., Int'l Assoc. of Machinists and Aerospace Workers, Franklin Lodge No. 2135, 50 FLRA 677, 691 (1995) (Franklin Lodge), aff'd mem. sub nom. Dep't of the Treasury v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996). However, the Agency has neither argued nor demonstrated any basis for concluding that 37 U.S.C. §§ 415-416 establish such discretion. [n17]  [ v57 p483 ]

      Finally, the Agency has not demonstrated that Subsection 4 of Proposal 3 is inconsistent with the Anti-Deficiency Act, 31 U.S.C. § 1341. The Anti-Deficiency Act precludes an agency from expending funds: (1) in excess of those appropriated for the fiscal year in which the expenditure is made; and (2) prior to their appropriation. 31 U.S.C. § 1341(a)(1)(A) and (B). See, e.g., Ft. Knox Teachers Ass'n, 27 FLRA 203, 216 (1987). Nothing in Proposal 3, however, requires the expenditure of funds in excess of, or prior to, an appropriation covering uniforms.

      Moreover, to the extent the Agency is claiming that funds appropriated for the purpose of providing uniforms under 37 U.S.C. §§ 415-418 cannot, as a matter of law, be used for cleaning those uniforms, the Agency has provided nothing in support of that claim. In particular, the Agency has provided no statutory reference for its citation of the "Purpose Statute" and has cited no case law under such a statute demonstrating that 37 U.S.C. §§ 415-418, by authorizing the Agency to provide uniforms to technicians, could not also cover the cost of cleaning those uniforms. As a general matter, however, where an appropriation does not specifically cover an activity, funds may be expended to pay for that activity as a "necessary expense" if it is not otherwise prohibited and a proper agency official determines that the activity has a direct connection with, and is essential to carrying out, the general purpose for which the funds were appropriated. Such determinations are within the discretion of the agency. See, e.g., Unpublished Comptroller General Decisions, B-277678 (January 4, 1999) and B-210433 (April 15, 1983). See also United States Dep't of Labor, Washington, D.C. and United States Dep't of Labor, Employment Standards Admin., Boston, Mass., 37 FLRA 25, 34-36 (1990). In this regard, the Agency cites no statutory prohibition against the use of appropriated funds to pay for cleaning technician uniforms and makes no attempt to demonstrate that such a use would not be a "necessary expense" in carrying out the purposes of the Technician Act or 37 U.S.C. §§ 415-418.

      Consequently, we find that Proposal 3 is not inconsistent with law within the meaning of § 7117(a)(1) and is within the duty to bargain.

V.     Order

      The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate on Proposals 1, 2 and 3. [n18] 


File 1: Authority's Decision in 57 FLRA No. 89
File 2: Opinion of Chairman Cabaniss and Appendix


Footnote # 1 for 57 FLRA No. 89 - Authority's Decision

   The opinion of Chairman Cabaniss, dissenting as to Proposal 2, follows this decision.


Footnote # 2 for 57 FLRA No. 89 - Authority's Decision

   The Union filed a motion requesting leave to supplement its response to the Agency's statement of position. The Union's motion references Authority decisions that were issued subsequent to the filing of the parties' submissions. Section 2424.27 of our Regulations provides that the Authority may, in its discretion, grant permission to file an additional submission based on a written request showing extraordinary circumstances by any party. We find no circumstances warranting our consideration of the Union's unsolicited supplemental submission in this case. However, we are cognizant of the case law cited by the Union and, where appropriate, will address those decisions in our analysis of the proposals in this case. See U.S. Dep't of the Interior, Bureau of Reclamation, Grand Coulee Project Office, 42 FLRA 166, 166-67 (1991).


Footnote # 3 for 57 FLRA No. 89 - Authority's Decision

   The Agency states that the phrase "excepted service technician" is interchangeable with the phrases "military technician" and "dual status technician" and refers to personnel employed pursuant to 32 U.S.C. § 709. Those technicians are required by law, as a condition of employment, to hold military membership in the National Guard and are excepted from Office of Personnel Management (OPM) regulations governing merit selection.


Footnote # 4 for 57 FLRA No. 89 - Authority's Decision

   Requirement 3.c. is set forth at paragraph 4 of the Appendix to this decision.


Footnote # 5 for 57 FLRA No. 89 - Authority's Decision

   § 2424.11(c) of the Authority's Regulations provide, in relevant part, as follows:

§ 2424.11 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.

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


Footnote # 6 for 57 FLRA No. 89 - Authority's Decision

   The Agency states that excepted service technicians are not subject to OPM regulations that implement § 2301(b)(1), namely, 5 C.F.R. § 300.101 et seq., but, under 5 U.S.C. § 2105(a)(1)(F), as Federal employees, are subject to the statutory merit system principles.


Footnote # 7 for 57 FLRA No. 89 - Authority's Decision

   KSAs and other qualifications, and the criteria and weights used to assess the extent to which candidates possess those KSAs and qualifications, are combined in what is known as a "crediting plan." See, e.g., NTEU v. United States Customs Serv., 802 F.2d 525, 529 n.12 (D.C. Cir. 1986); NTEU and NTEU Chapters 153, 161, and 183, 11 FLRA 209, 210 (1983), rev'd on other grounds, Region II.


Footnote # 8 for 57 FLRA No. 89 - Authority's Decision

   See, in particular, the first paragraph of Proposal 2 as set forth at 2 of the Appendix to this decision.


Footnote # 9 for 57 FLRA No. 89 - Authority's Decision

   The relevant text of the "Model Merit Placement Plan" is set forth at paragraph 5 of the Appendix.


Footnote # 10 for 57 FLRA No. 89 - Authority's Decision

   By its terms, the proposal applies when a panel is required to evaluate area 1 candidates. According to the Union, "[a]rea 1" candidates are those who are "current bargaining unit employees." Union Response at 9. The Agency does not dispute this definition.


Footnote # 11 for 57 FLRA No. 89 - Authority's Decision

   The meaning that the Authority adopts for this proposal, and the other proposals in this case, 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 # 12 for 57 FLRA No. 89 - Authority's Decision

   The term "definitive justification" is defined in Proposal 2 as "reasons why each Area One candidate is unacceptable." The record does not explain the source for area 2 candidates, but all such candidates would be outside the bargaining unit.


Footnote # 13 for 57 FLRA No. 89 - Authority's Decision

   We adopt the Union's interpretation of the proposal's reference to "accept[ance]" by HRO as meaning the ministerial act of receipt, as opposed to approval, based on the Union's omission, in its statement of meaning for the proposal, of any reference to the referral as constituting a substantive step in the selection process. Petition for Review at 5.


Footnote # 14 for 57 FLRA No. 89 - Authority's Decision

   The text of section 1038(a) of the Authorization Act of 1996 is set forth at paragraph 6 of the Appendix to this decision.


Footnote # 15 for 57 FLRA No. 89 - Authority's Decision

   The Agency cites ACT, Pennsylvania State Council, 29 FLRA 1292, 1295, 1299 (1987); NAGE, SEIU, AFL-CIO, 29 FLRA 1231, 1234 (1987); NAGE, SEIU, AFL-CIO, 26 FLRA 515, 517-18 (1987); NFFE, Local 1655, 20 FLRA 829, 831 (1985).


Footnote # 16 for 57 FLRA No. 89 - Authority's Decision

   The relevant portions of 37 U.S.C. §§ 415-418 are set forth at 7 of the Appendix to this decision.


Footnote # 17 for 57 FLRA No. 89 - Authority's Decision

   To the extent that the Agency's argument that it has no discretion as to the amount of a uniform allowance for officers is intended as a claim that the proposal concerns a matter that is specifically provided for by Federal statute, see, e.g., BEP, that claim was rejected in NFFE, Local 1669, 55 FLRA at 67.


Footnote # 18 for 57 FLRA No. 89 - Authority's Decision

   In finding these proposals negotiable, we ma