Association of Civilian Technicians, Wichita Air Capitol Chapter (Union) and U.S. Department of Defense Civilian Personnel Management Service (Agency)
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57 FLRA No. 17
ASSOCIATION OF CIVILIAN TECHNICIANS
WICHITA AIR CAPITOL CHAPTER
U.S. DEPARTMENT OF DEFENSE
CIVILIAN PERSONNEL MANAGEMENT SERVICE
(56 FLRA 1027 (2000))
ORDER DENYING MOTION
March 30, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1]
I. Statement of the Case
This case is before the Authority on the Agency's motion for reconsideration of the Authority's decision in Association of Civilian Technicians, Wichita Air Capitol Chapter, 56 FLRA 1027 (2000) (Wichita Air Chapter). The Union filed an opposition to the Agency's motion.
For the reasons that follow, we deny the Agency's motion.
II. Decision in Wichita Air Chapter
In Wichita Air Chapter, the Authority found that a provision establishing a crediting plan to be used in the process of selecting among candidates for bargaining unit positions was not contrary to law. Prior to issuing its decision, and in view of the fact that the parties disputed the meaning of the provision, the Authority ordered the parties to supplement the record with an explanation of how they had interpreted the provision when they bargained on, and agreed to, it. Considering the parties supplemental submissions, and the record as a whole, the Authority adopted an interpretation of the provision and resolved the negotiability dispute. In particular, the Authority noted that the parties agreed that there was no dispute as to bargaining history. The Authority also noted that the Agency provided no evidence that the interpretation of the provision it had adopted in disapproving the provision was the same interpretation it adopted when it bargained on, and agreed to it, at the local level.
Moreover, the Authority noted that the Union's interpretation of the disputed provision in this case was consistent with the interpretation it had adopted for a substantially similar proposal in Association of Civilian Technicians, Heartland Chapter, 56 FLRA 236 (2000) (Heartland Chapter). [n2] Although the proposal in Heartland Chapter contained an additional subsection, the Authority noted that the subsection, differentiating the proposal in Heartland Chapter from the provision in this case, had been adopted by the Union to clarify for and confirm to the Authority that "the wording meant exactly what the Union claimed it meant." Wichita Air Chapter, 56 FLRA at 1028.
Based on the record, the Authority found that the crediting plan established by the provision "does not preclude the Agency from developing a different crediting plan using different weights for the KSAs [knowledge, skills, and abilities] 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." Wichita Air Chapter, 56 FLRA at 1029. As such, the Authority found that the provision did not conflict with an Agency regulation for which a compelling need was alleged to exist and that the provision was not barred by § 7117(b) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2424.50 of the Authority's Regulations. The Authority also found, consistent with the analysis in Heartland Chapter, that the provision did not affect management's right to select under § 7106(a)(2)(C) of the Statute. Consequently, the Authority ordered the Agency to rescind its disapproval of the provision.
III. Agency's Motion for Reconsideration
The Agency requests reconsideration on the basis that the Authority: (1) "misread/misapplied the Agency's statement in the Post-Petition Conference"; and (2) "departed from its precedent in determining the meaning of contractual language without clearly articulating its reason for doing so." Motion for Reconsideration at 1 (Motion). [ v57 p51 ]
As to the first ground for reconsideration, the Agency contends that the Authority mistakenly stated, in Wichita Air Chapter, that the Agency did not challenge the Union's explanation of the provision during the Post-Petition Conference. In support of its contention, the Agency cites the Record of the Post-Petition Conference as stating: "In the Agency's view, since the provision is silent on this point, the provision contains the only plan that the Agency could use to fill positions covered by the provision." Motion at 2, citing the Record of the Post-Petition Conference at 2. The Agency contends that the quoted statement demonstrates that it claimed that the provision would "preclude any other crediting plans from being used to rank candidates." Motion at 2.
With respect to the second ground for reconsideration, the Agency claims that the Authority "departed from its precedent which provides that a union statement clarifying a matter about which a proposal is silent will be adopted provided the statement comports with the wording of the proposal." Id. at 3. The Agency notes that in Heartland Chapter, the Union withdrew the disputed provision and modified it by developing a proposal that made clear its intent not to preclude the use of other crediting plans. The Agency asserts that the Union could have done, but did not do, the same thing in this case. According to the Agency, the "wording of th[e] provision as it stands . . . would lead a third party to interpret the [provision] as indicating that th[e] crediting plan [set forth therein] is the exclusive means of filling vacancies." Motion at 4. The Agency concludes that "[t]he Authority's decision in this case is inconsistent with the plain and unambiguous meaning of the provision." [n3] Id.
IV. Analysis and Conclusions
Under § 2429.17 of the Authority