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File 2: Opinion of Member Armendariz

[ v61 p230 ]

Dissenting Opinion of Member Armendariz:

      For the reasons explained below, I would find the award deficient as contrary to management's right to select under § 7106(a)(2)(C) of the Statute. Accordingly, I dissent.

      The only contract provisions that are at issue in this case are those found in Article 13, which addresses "Promotions/Other Competitive Actions." In pertinent part, Section 5.D.1.(f) states that, "[i]n accordance with applicable laws, rules and regulations, the four applicants who rate at the top will be designated as Best Qualified (BQ)." The Agency maintains that it developed the "Good Potential Policy" in accordance with applicable laws, rules and regulations and "to meet the OPM requirement to establish qualitative meaningful distinction[s] from among minimally qualified applicants." Exceptions at 6. [n1]  The Agency asserts, and the Union does not dispute, that the Good Potential Policy would operate so as to "impose an average rating threshold of 3.0 or higher to screen out applicants in competitive actions[,]" and that "[a]pplicants who did not qualify at the 3.0 threshold would not be forwarded to the BQ list, even if they were among the top four applicants." Id.

      The Arbitrator found that the Agency unilaterally implemented the policy and ordered the Agency to rescind it in full. The Agency did not, in my view, change the "agreed-upon procedures." Majority at 7. Instead, the Agency complied with those procedures, which, as stated above, require that the designation of applicants as "best qualified" be made "in accordance with applicable laws, rules and regulations[.]"

      Section 7106(a)(2)(C)(i) of the Statute, which is indisputably an applicable law, states, in relevant part, that an agency has the right "with respect to filling positions, to make selections for appointments from . . . among properly ranked and certified candidates for promotion[.]" Under well established Authority precedent, the right to select encompasses the right to determine the criteria by which an agency will assess whether candidates possess the requisite qualifications, skills, and abilities, see, e.g., Assn. of Civ. Technicians, New York State Council, 45 FLRA 17, 20 (1992) (ACT), and the weight to be given to those factors. See, e.g., AFGE, Local 31, 49 FLRA 957, 963 (1994). Proposals that prescribe the criteria to be used in assessing the extent to which candidates possess the requisite qualifications, skills, and abilities, and the weights to be given such factors, affect management's right to select. See ACT, 45 FLRA at 20.

      It is also well established that management's right to take actions pursuant to § 7106(a) of the Statute includes the right to decide not to take such actions and, therefore, proposals obligating an agency to use particular criteria and weights in determining the extent to which candidates possess the requisite qualifications run afoul of § 7106(a)(2)(C). See, e.g., AFGE, Local 3354, 54 FLRA 807, 812 (1998). See also NFFE, Local 1482, 45 FLRA 52, 73-74 (1992) (proposal prescribing two criteria as sole criteria governing selection directly interfered with management's right to select because it precluded management from establishing additional or different criteria for the positions). In addition, proposals that prevent management from establishing particular assessment criteria and weights also affect management's right to select. See, e.g., AFGE, AFL-CIO, Local 1940, 16 FLRA 816, 823-34 (1984) (proposal prohibiting establishment of promotion criteria affected right to select).

      In contrast, where a proposal prescribes a particular selection criterion but also provides management an option that preserves the full range of the right to select, the proposal does not affect the exercise of that right. See, e.g., Assn. of Civ. Technicians, Inc., Heartland, Chapter, 56 FLRA 236, 243 (2000) (proposal that prescribed a crediting plan but allowed the agency to develop and use its own crediting plan held not to violate right to select).

      Applying the precedent above to arbitral interpretations of collective bargaining agreements, the Authority has found that an award affected the right to select where, for example, the award directed the agency to reallocate the weight assigned to various factors. See United States Dep't of the Navy, Supervisor of Shipbuilding, Conversion & Repair, Newport News, Va., 56 FLRA 339, 343 (2000) (Chairman Wasserman dissenting in part), decision on remand, 57 FLRA 36 (2001) (Chairman Cabaniss dissenting in part). Similarly, in AFGE, Local 31, 49 FLRA at 963-64, the Authority set aside an award, as affecting the right to select, where the arbitrator changed the agency's determination of the relative weights of selective factors for a particular position. [ v61 p231 ]

      In this case, the award effectively prevents the Agency from utilizing a method to determine whether candidates possess the requisite qualifications, skills and abilities to perform the position to be filled. In this regard, the Agency states that the ratings derived from the good potential policy would be used to identify applicants "who were expected to perform at a fully successful level in the new position . . . ." Exceptions at 17. Whether viewed as a new criterion or the imposition of a weighting process for existing factors, the "good potential" policy would allow the Agency to differentiate among the candidates in order to rank and certify the best qualified candidates for promotion. Agencies have an affirmative requirement, under Government-wide regulations, to establish selection procedures that "provide for management's right to select or not select from among a group of best qualified candidates." 5 C.F.R. § 335.103(b)(4) (emphasis added). The Arbitrator's rescission of the policy in this case clearly runs afoul of this requirement.

      Recently, the Authority issued a decision in United States Dep't of the Treasury, IRS, Houston, Tex., 60 FLRA 934 (2005), which involved the same parties as the instant case and a grievance concerning the parties' prior collective bargaining agreement. That agreement required the Agency to use a cut-off score in developing a highly qualified list of candidates for promotion. I found that the award, in which the arbitrator determined that the cut-off score was improper, was deficient as contrary to Government-wide regulations, which, as quoted above, provide agencies with the right to determine the methods for establishing groups of best qualified candidates from which to make selections. Section 7106(a)(2)(C) of the Statute mirrors the requirement to establish the methods to be used in ranking and certifying best-qualified candidates from which to make selections.

      I am aware that in AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171 (1998) (HUD Council), the Authority found negotiable a proposal that required the agency "to announce, and permit field office employees to apply for, vacancies on the Critical Vacancies List through whatever competitive procedures apply." The Authority determined that the proposal did not limit the agency's selection options but, instead, expanded the applicant pool from which the agency could make its selections. I note that the agency argued, and the Authority rejected the claim, that the proposal affected management's ability to select from any appropriate source -- a different subsection of § 7106(a)(2)(C) than is argued in this case. The Authority did not address the statutory requirement that selections be made from among properly ranked and certified candidates.

      Nonetheless, even if the Authority's decision in HUD Council could be read to apply to § 7106(a)(2)(C) in its entirety, a reasonable interpretation of the award here would lead to the conclusion that the award contracts, rather than expands, the Agency's selection options. For example, by including in the group of four candidates, who are referred to the selecting official, applicants who lack the requisite potential to perform in the new position, the selecting official effectively is given a choice of fewer than four qualified applicants from whom to select. The reference to the referral of "minimally qualified" candidates to the selecting official, slip op. at 5, and the award's requirement "to submit names of candidates that it would not otherwise submit[,]" id. at 7, reinforce the conclusion that the selecting official could have fewer than four qualified applicants to consider and from whom to choose -- clearly, a limit that is being placed on the exercise of management's right to select. Even assuming, however, that the award in this case could be viewed as expanding the pool of candidates from which the Agency would make a selection, such an expansion, as indicated above, would require the Agency to submit to the selecting official candidates who do not meet the requisite selection criteria and, as such, candidates who have not been "properly ranked and certified." 5 U.S.C. § 7106(a)(2)(C)(i). As such, the award affects the right to select.

      As the award affects a management right, it is necessary to apply the framework set forth in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Under that framework, the Authority first examines whether the award provides a remedy for a violation of either an applicable law, under § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRA at 153. If it does, then the Authority examines whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154.

      The parties dispute whether the award pertains to a matter that was negotiated under § 7106(b)(2) or § 7106(b)(3). Noting the absence of any support for the Union's position, I find that the award was not enforcing provisions that were negotiated under § 7106(b)(2) of the Statute. Assuming that the rating and ranking provisions, instead, were negotiated under § 7106(b)(3), I would find, on balance, that the Arbitrator's interpretation of the provisions excessively interferes with § 7106(a)(2)(C)(i). In this regard, the award would [ v61 p232 ] totally preclude the Agency from utilizing the method that it has deemed essential for determining whether candidates possess the requisite qualifications, skills and abilities to perform in the positions to be filled. As the award presents a total ban on the exercise of a management right, I find, on balance, that it excessively interferes with the exercise of the right to select. In view of this result, there is no need to address the remainder of the BEP analysis.

      In sum, I would find the award deficient and set it aside. [n2] 

File 1: Authority's Decision in 61 FLRA No. 41
File 2: Opinion of Member Armendariz

Footnote # 1 for 61 FLRA No. 41 - Opinion of Member Armendariz

   The "good potential" criterion is not new, nor is the rating of "3" for that criterion. Both are already contained in the parties' agreement as scores (which range, respectively, from "5" equating to "Excellent Potential" to "1" constituting "Limited Potential") that may be assigned "to an applicant for each critical job element of the position to be filled." See Exceptions, Attachment C at 47 (quoting Section 5.C.3 of Article 13). As I understand the application of the good potential policy here, it would apply to the procedure in Section 5.D., which not only aggregates scores but also factors in additional criteria for applicants, such as added points for performance awards.

Footnote # 2 for 61 FLRA No. 41 - Opinion of Member Armendariz

   In so concluding, I find it unnecessary to address the other issues raised by the exceptions.