File 2: Opinion of Chairman Cabaniss and Appendix

[ v57 p483 ]


Dissenting opinion of Chairman Cabaniss as to Proposal 2:

      By its terms, Proposal 2 requires the selecting official to prepare written definitive justification for each area 1 candidate nonselected and to submit such justification to the HRO. When the HRO accepts that justification, the list of area 2 candidates will be submitted to the selecting official. If, after considering those candidates, the selecting official decides to select an area 1 candidate, that official shall submit to the HRO an explanation for changing the initial nonselection of that candidate.

      I agree with my colleagues that, under Authority precedent, a provision 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, e.g., ACT Volunteer Chapter 103, 55 FLRA 562 (1999) (Chair Segal dissenting on other grounds) (Volunteer Chapter). I agree also that the Authority has held that by requiring the selecting official to provide written definitive justification for nonselecting unit employees prior to considering other candidates, and the HRO to determine whether such justification is acceptable, a provision also does not directly interfere with management's right to select. Id. (citing AFGE, AFL-CIO, Local 446, 43 FLRA 836, 845 (1991) (AFGE, Local 446).

      However, the Agency did not argue BATF in Volunteer Chapter. Although the Union is correct that the proposal at issue in BATF only required that management consider unit employees before soliciting and evaluating candidates from other sources, and contained no written justification requirement, the court's rationale was broader than the particular proposal involved. The Authority has applied BATF to priority consideration proposals, but has not explicitly adopted or rejected that broader rationale. See, e.g., NAGE, Local R5-165, 35 FLRA 886 (1990). Nevertheless, elements of that rationale raise issues directly affecting the Authority's consideration of the proposal in this case. In particular, the Agency's arguments regarding Proposal 2 are based on that rationale.

      As noted, the proposal involved in BATF required priority consideration of unit employees before management could solicit and evaluate candidates from other sources. The Authority had held that the proposal [ v57 p484 ] constituted a procedure under § 7106(b)(2) because the delay involved in soliciting and evaluating candidates from other sources did not amount to direct interference with the right to select. NTEU, 26 FLRA 497 (1987). The court disagreed.

      The court began its analysis by noting that it was difficult to draw a line between procedure and substance and that it had approved the use of the "direct interference" test to separate the one from the other. BATF, 857 F.2d at 821. The court stated, however, that the test did not "exist in a theoretical vacuum." Id. The court explained that the test

must be assessed not only in terms of the specific requirements a particular proposal would impose on management in the exercise of its protected rights, but on the circumstances which in real life allow it to exercise them. When a proposal stipulates procedures that so affect the environment within which an agency is allowed to act that it places the equivalent of a substantive restraint on its ability to act, that proposal has forfeited its claim to procedural purity.

Id.

      The court indicated that it accepted the principle that "proposals do not forfeit their procedural status simply by delaying the exercise of a management right." Id. at 822 (citing Dep't of Defense v. FLRA, 659 F.2d 1140, 1153 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982). [n1]  The court also stated, however, that "the practical implications" of the proposal at issue in BATF "go beyond mere delay." Id. Specifically, the court found that by delaying "only one part of the hiring process," namely, the soliciting and evaluating of candidates other than bargaining unit applicants, the proposal inhibited "management's ability to look beyond the agency for potential employees," and stated that "it would be naive to believe it had any other purpose." Id. According to the court,

[t]he practical consequence of the proposal is clear: . . . the agency will make its initial employment decisions before it is permitted to inform itself of the qualifications of the full range of potential candidates for the position it seeks to fill. . . . [The proposal] would create pressure on even the most careful managers 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. This result is inconsistent not only with § 7106(a)(2)(C), but also with the [Statute's] larger goal of promoting 'an effective and efficient Government.'

Id. The court concluded that the proposal "would constitute a direct and substantive impediment to management's exercise of its statutory right to select employees from any appropriate source." Id. at 823.

      Given the rationale of the court's decision in BATF, the Union's narrow distinction of that decision on the ground that the proposal in this case would not prevent simultaneous solicitation and evaluation of unit employees and applicants from outside the unit would not be sufficient to mitigate against the court's holding. The focus of the Agency's argument is not the effect discussed by the Union. Rather, the Agency's claims concern the practical consequence of the requirements for written justification of nonselection of unit employee candidates, HRO's acceptance of that justification, and explanation of the selecting official's retraction of a nonselection decision. According to the Agency, the practical effect of those requirements would create pressure on the selecting official to select a unit employee candidate. In effect, the Agency is arguing that the decisional environment created by the proposal involves more than mere delay; that is, its argument amounts to a claim that Proposal 2 "places the equivalent of a substantive restraint on its ability to act." Id. at 821.

      Simple priority consideration of unit employees, where other candidates have simultaneously been rated and ranked, may not result in pressure to select from among the unit employees initially referred. Similarly, a requirement that the selecting official explain his or her decision to the candidate may not, in and of itself, provide sufficient incentive for that official to select from the initial group. Thus, it is not clear that BATF requires overturning existing precedent in that regard.

      However, a requirement that the selecting official explain his or her decision, in conjunction with a provision for acceptance of that explanation by the HRO, and a requirement of further explanation if the selecting official reverses his or her decision to nonselect from the initial group, is a different matter. I decline to accept my colleagues' interpretation of the portion of the proposal providing for the HRO's "acceptance" of the selecting official's reasons for nonselection. I do not believe that the Union intends, in that portion of the proposal, [ v57 p485 ] for the selecting official's justification merely to be transmitted to the HRO as a pro forma act and for the HRO to function as a mere repository of documents. If the Union had intended such a result, it would have chosen a different word, such as "transmitted" or "submitted" or "filed." As the Authority has consistently emphasized, it is the plain wording of the proposal that governs in the absence of any clarifying explanation. See, e.g., NAGE, Local R1-100, 56 FLRA 268, 271 (2000).

      The proposal provides for the "acceptance" of the selecting official's justification by the HRO, which implies the possibility of rejection. Practically speaking, the possibility that the selecting official's explanation may be questioned by the HRO and, as a result, need further justification, means that additional time will be needed for HRO review and selecting official revision. See Statement of Position at 7 (Agency interprets Proposal 2 as requiring the selecting official to submit the written justification for nonselection "and have it approved by the HRO.") In this regard, I believe that my colleague's claim that the Agency can expedite the process, because it controls whatever is done, undersells the impact of the proposal as a whole. The requirement that the selecting official prepare a written justification for nonselection of a candidate from the initial group clearly provides a potential basis for a grievance. As a result, the HRO has no incentive, under the proposal, to quickly review and ratify the selecting official's justification. The additional explanation required, if the selecting official retracts an initial nonselection decision, adds further time to the process. The administrative burden of these requirements, taken together, creates significant pressure on the selecting official to choose from among the initial list containing unit candidates and forgo consideration of nonunit applicants.

      All in all, that is, Proposal 2, like the proposal in BATF, imposes a burden on the selecting official's consideration of the full range of potential candidates. I believe that "the practical implications" of the proposal "go beyond mere delay," 857 F.2d at 822, and that the requirements provided therein would "so affect the environment within which [the] [A]gency is allowed to act that [they place] the equivalent of a substantive restraint on its ability to act." Id. at 821. Because the cumulative effect of the proposal is to pressure the selecting official to make a selection from the list of unit employees initially referred, consistent with BATF, I find that the proposal directly interferes with management's right to select candidates for appointment to positions under § 7106(a)(2)(C) of the Statute.

      Because I find that Proposal 2 directly interferes with management's right to select under § 7106(a)(2)(C) of the Statute, consistent with Authority precedent, I reject the Union's claim that the proposal is a negotiable procedure. Consequently, I would find, consistent with BATF, that Proposal 2 is outside the duty to bargain.


APPENDIX

1.     Proposal 1 provides as follows:

SECTION 15-14A. EVALUATING AND RANKING APPLICATIONS FOR EXCEPTED CIVIL SERVICE POSITIONS
If a panel is required, all 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.
A point system will be utilized to establish the order in which the Area One candidates are listed on NGB Form 300-4. Items to receive ratings are as follows:

KSA Ratings (All Factors):

"A" level experience: Candidate possesses type and quality of work 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" 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" 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 used for all applicants evaluated. [ v57 p486 ]
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 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.

Suggestion Awards and Performance Ratings:

Credit is awarded for pertinent suggestion awards and satisfactory performance ratings. The HRO will analyze the applicant's 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:
1st Year     2nd Year     3d Year
Satisfactory     1     0     0
Suggestion Award     1     0     0

Training and Education Ratings:

A maximum of three (3) points will be awarded for this factor. This refers to training and education, other than that credited for basic eligibility, which was not considered elsewhere in the evaluation process, and which is relevant to the position being filled.
1.0   --   High school diploma or equivalent
1.1 to 2.9   --   College (no degree) or Voc Tech
3.0   --   College degree
Overall Rating:
The overall rating for each category (KSA Ratings, Suggestion Awards and Performance Ratings, and Training and Education Ratings) will be combined and the total score for all categories will be recorded on NGB Form 300-4 for each Area 1 candidate. Each Area One candidate will be listed. Candidates will be listed in order according to score, with the highest-scoring candidate listed at the top. If two or more candidates have the same score, they will be listed in order according to their technician seniority, with the most senior technician listed above those with lesser seniority.

2.     Proposal 2 provides as follows:

15-17.  SELECTING OFFICIAL ACTIONS:
Upon receipt of the NGB Form 300-4 listing the Area One candidates, the selecting official will interview each candidate on the certificate. After interviewing the candidates, the selecting official shall either make the selection or provide to HRO a written definitive justification for non-selection of each candidate on the certificate. In making this decision, the selecting official shall consider the rating information prepared under Section 15-14A for applicants on the certificate. The selecting official is not prohibited from considering other information or analyses regarding the qualifications of these applicants, provided consideration of the other information or analyses is consistent with law, rule, and regulation.
For the purpose of this section, "definitive justification" means reasons why each Area One candidate is unacceptable.
After the justification has been accepted by the HRO, the Area Two candidates will be submitted to the selecting official. The selecting official will then interview and consider those candidates. If upon consideration of the Area Two candidates the selecting official determines that a previously non-selected Area One candidate should be selected, the selecting official may select that Area One candidate after submitting to the HRO a statement of reasons for changing the "definitive justification" for the initial non-selection of that candidate.
Should an employee not be selected for re-promotion, the employee may be given seven (7) days to rebut the written justification given for non-selection, and the vacancy will remain unfilled through the rebuttal phase.

3.     Proposal 3 provides as follows:

22-XX  DUTY UNIFORMS
1.     The Employer will furnish at no cost to the employee (to include indefinite appointment employees, but not including employees who are officers) a number of ready-to-wear duty uniforms that is adequate considering the frequency of and time required for cleaning to enable the employee to comply with the employer's requirement for wear of the uniform while on duty. The phrase "ready-to-wear" means with all appropriate rank [ v57 p487 ] insignia and patches, and any other required cloth attachment properly sewn on.
2.     Each employee (who is not an officer) will receive two (2) pair of safety or regular footgear as required. The employer agrees to allow employees who are required to wear safety footgear or have a demonstrated medical foot problem to locally purchase suitable footgear. The employer agrees to co-pay the maximum allowable rate by regulation.
3.     Members of the bargaining unit who are officers shall receive the maximum allowances authorized by 37 USC, § 415 through 417.
4.     Cleaning services for any clothing that the employer requires to be worn in the performance of technician duties will be provided by the employer. This cleaning service will be at no cost to the employee.

4.     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
. . . .
     c.     Ensure that all procedures used to identify, qualify, evaluate, and select are based on job-related criteria.

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:
a.     "A" level experience.  Candidate possesses type and quality of experience that substantially exceed 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 [ v57 p488 ]
     (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 Rating

_____________________________________________
Three     Four     Five     Six     Seven     Eight
KSA     KSA     KSA     KSA     KSA     KSA
Factors     Factor     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 five KSA factors, a candidate's combined category rating of AABBC (20, 20, 17, 17, 14) converts to 88.)

6.     Pub. L. 104-106, § 1038(a), the Authorization Act of 1996, amended 32 U.S.C. § 709(b) to read as follows:

(b)     Except as prescribed by the Secretary concerned, a technician employed under subsection (a) shall, while so employed--
(1)     be a member of the National Guard;
(2)     hold the military grade specified by the Secretary concerned for that position; and
(3)     wear the uniform appropriate for the member's grade and component of the armed forces while performing duties as a technician.

7. 37 U.S.C. §§ 415-416, which sections were not changed by the Authorization Act of 1996, provide as follows:

§ 415.     Uniform allowance; officers; initial allowance

(a)     Subject to subsection (b), an officer of an armed force is entitled to an initial allowance of not more than $400 as reimbursement for the purchase of required uniforms and equipment.
(b)     An officer who has received an initial uniform reimbursement or allowance under any other law is not entitled to an initial allowance under subsection (a) . . . .

§ 416.     Uniform allowance; officers; additional allowance

(a)     In addition to the allowance provided by § 415 of this title, a reserve officer of an armed force . . . is entitled to not more than $200 as reimbursement for additional uniforms and equipment required on that duty, for each time that the officer enters on active duty for a period of more than 90 days.
(b)     Subsection (a) does not apply to a tour of active duty if--
(1)     the officer, during that tour or within a period of two years before entering on that tour, received, under any law, an initial uniform reimbursement or allowance of more than $200; or
(2)     the officer enters on that tour within two years after completing a period of active duty of more than 90 days' duration.

37 U.S.C. § 417 was amended by the Authorization Act of 1996 as follows:

§ 417.     Uniform allowance; officers; general provisions
. . . .
(d)(1)     For purposes of sections 415 and 416 of this title, a period for which an officer of an armed force, while employed as a National Guard technician, is required to wear a uniform under section 709(b) of title 32 shall be treated as a period of active duty (other than for training).
(2)     A uniform allowance may not be paid, and uniforms may not be furnished, to an officer under section 1593 of title 10 or section 5901 of title 5 for a period of employment referred to in paragraph [ v57 p489 ] (1) for which an officer is paid a uniform allowance under section 415 or 416 of this title.

37 U.S.C. § 418 was amended by the Authorization Act of 1996 by the addition of sections (b) and (c):

§ 418.     Clothing allowance; enlisted members
(a)     The Secretary of Defense and the Secretary of Transportation, with respect to the Coast Guard when it is not operating as a service in the Navy, may prescribe the quantity and kind of clothing to be furnished annually to an enlisted member of the armed forces or the National Guard, and may prescribe the amount of a cash allowance to be paid to such a member if clothing is not so furnished to him.
(b)     In determining the quantity and kind of clothing or allowances to be furnished pursuant to regulations prescribed under this section to persons employed as National Guard technicians under section 709 of title 32, the Secretary of Defense shall take into account the requirement under subsection (b) of such section for such persons to wear a uniform.
(c)     A uniform allowance may not be paid, and uniforms may not be furnished, under section 1593 of title 10 or section 5901 of title 5 to a person referred to in subsection (b) for a period of employment referred to in that subsection for which clothing is furnished or a uniform allowance is paid under this section.

[Note: This is the form of section 418(c) as a result of the 1997 DOD Authorization Act, clarifying that section by the substitution of new language at the end of the section. Previously, under the Authorization Act of 1996, § 418(c) ended with the words "section 415 or 416 of this title."]


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 - Opinion of Chairman Cabaniss

   I note, in this regard, however, that the same court has indicated that the timing of the exercise of a management right under § 7106 is a substantive part of the right. See Dep't of the Treasury, IRS v. FLRA, 862 F.2d 880, 882 (D.C. Cir. 1988), rev'd and remanded as to other matters, 494 U.S. 922 (1990); United States Customs Service v. FLRA, 854 F.2d 1414, 1419 (D.C. Cir. 1988). I also note that the Authority has adopted this view of management's rights. See AFGE, Local 1345, 48 F