Association of Civilian Technicians, Volunteer Chapter 103 and U.S. Department of Defense, Tennessee National Guard, Nashville, Tennessee (Authority decision, June 30, 1999)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Tennessee National Guard disapproved a negotiated promotion provision requiring first consideration of existing technicians and written reasons for rejecting candidates. The Authority ordered the agency to rescind its disapproval. It read the provision as allowing the agency to reconsider initially rejected applicants and to choose from other sources after the required steps. Written explanations did not impose a substantive standard controlling selection. Chair Segal dissented in part because she considered the negotiated language ambiguous and wanted fact-finding on its meaning before deciding legality.

Decision snapshot

• Authority: Management’s selection right and negotiated promotion procedures.
• Outcome: Agency ordered to rescind its disapproval of the disputed provision.
• Key point: First consideration and written explanations preserve selection discretion under the majority’s interpretation.

Full text (FLRA public release)

[ v55 p562 ]

55 FLRA No. 98

ASSOCIATION OF CIVILIAN TECHNICIANS

VOLUNTEER CHAPTER 103

(Union)

and

U.S. DEPARTMENT OF DEFENSE

TENNESSEE NATIONAL GUARD

NASHVILLE, TENNESSEE

(Agency)

0-NG-2404

______

DECISION AND ORDER ON A

NEGOTIABILITY ISSUE

June 30, 1999

______

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]

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), [n2] and concerns a single provision of the parties' collective bargaining agreement that was disapproved pursuant to Agency head review under section 7114(c) of the Statute. [n3] The Agency filed a Statement of Position and the Union filed a Response.

For the reasons that follow, we find that the provision is not contrary to law and order the Agency to rescind its disapproval.

II. Provision

ARTICLE 15

Merit Promotion

. . . .

Section 17. Selecting Official Actions: Selecting officials have the right to select or not select any of the candidates referred to them. However, at the direction of the agency, he must select only from the well qualified group. The selecting official will:

(a) Every effort will be made to conduct personal interviews. If not possible, telephone interviews should be conducted. When one of the referred technicians is interviewed, every effort should be made to interview all those on the certificate.

(b) After interviewing the candidates, make the selection or provide written definitive justification to the HRO for the non-selection of each candidate on the promotion certificate. [n4]

(1) For the purpose of this section, "definitive" means: a reason for non-selection which provides a non-selected area 1 applicant with information as to an area or areas where the applicant needs to improve.

(2) Once justification has been accepted by the HRO, the remaining basically eligible area 1 candidates will be submitted to the selecting official.

(3) The selecting official will then complete the action in paragraph (a) for those candidates.

(4) Should the selecting official conclude that none of the remaining candidates are to be selected, the selecting official will complete the requirements of this paragraph. Provided there are no well qualified candidates and further expansion of the area of consideration is impractical, he may select a candidate from the qualified.
[n5] [ v55 p563 ]

(c) Sign and return the certificate to the HRO.

(d) Insure employees hired in a trainee status will be informed of the approximate duration of the training necessary to become fully qualified.

(e) If for some administrative reason the selection process cannot be completed, the selection package will be returned to the HRO.

(Only the underlined portions of the provision are in dispute.)

III. Positions of the Parties

A. Agency

According to the Agency, the first paragraph of Section 17 of Article 15 requires it to select only candidates in the "well-qualified" group. Statement of Position at 3. The Agency claims that, because the provision is intended to prevent it from selecting from among qualified candidates, or candidates from any other source, if there are well-qualified candidates, the provision violates its right to select under section 7106(a)(2)(C).

The Agency claims that, under paragraph (b) of Section 17, if the selecting official decides not to select from among the well-qualified group, that official must provide a written justification for the nonselection of each candidate as a precondition to consideration of other candidates. The Agency contends that this portion of the provision requires the exercise of its right to select under section 7106(a)(2)(C) by mandating a decision not to select, and a written justification of that decision, as a prerequisite to the completion of the selection process. The Agency argues that, under section 7106(a)(2)(C), the only justification needed for the consideration of other candidates is the Agency's discretion pursuant to that right.

According to the Agency, because management must nonselect the well-qualified candidates, under paragraph (b) of Section 17, before considering other candidates, management is "denied the opportunity to evaluate and compare the qualifications" of the well-qualified candidates and those other candidates. Id. at 5. The Agency asserts that by depriving management of the right to evaluate and compare candidates before making a selection decision, the provision interferes with its right to select under section 7106(a)(2)(C).

The Agency contends that the provision is not "procedural." Id. The Agency claims that, although cast in procedural terms, the provision not only dictates a selection or nonselection decision as a prerequisite to exercising its rights under section 7106(a)(2)(C), but dictates that the decision be made before the Agency has completely exercised its right under that section to evaluate and compare candidates. Specifically, the Agency asserts that, because the selecting official must nonselect well qualified "area 1" candidates before considering qualified "area 1" candidates, well qualified "area 1" candidates are "effectively removed from further consideration and/or comparison." Id.

B. Union

The Union contends that the Agency has misinterpreted the first paragraph of Section 17. Noting that the first paragraph states that "at the direction of the [A]gency" the selecting official must select only from the well-qualified group, the Union argues that, under the provision, "the selecting official must select from the well qualified group only if the agency directs the official to do so," and that "[t]he [A]gency has total discretion to determine, in any particular case, whether to direct the [A]gency's selecting official to select only from this group." Response at 1 (emphasis in original). The Union claims that, interpreted in this manner, the provision does not interfere with the right to select under section 7106(a)(2)(C).

As to paragraph (b) of Section 17, the Union contends that the selecting official's decision not to select from among the well-qualified candidates is not "totally irrevocable." Response at 2. The Union states that, under the paragraph, "[i]f the selecting official initially non-selects all of the area 1 better qualified applicants, and prepares the required written justifications, and then on review of the next group of applicants changes her or his mind and decides to select one of the applicants in the group of area 1 better qualified candidates, nothing prohibits the selecting official from selecting that applicant." [n6] Id. [ v55 p564 ]

The Union claims that the requirement for a written justification of nonselection of candidates is "purely procedural." Id. at 3. According to the Union, a requirement that management provide a written explanation of a decision to select or nonselect prior to considering another group of candidates does not interfere with the right to select under section 7106(a)(2)(C).

The Union maintains that the Agency's argument that the provision interferes with section 7106(a)(2)(C) because it requires a nonselection decision before the selecting official has been able to evaluate and compare other candidates is based on the mistaken assumption that the decision to nonselect under the provision is irrevocable. According to the Union, the provision is consistent with section 7106(a)(2)(C) because once the requirements of the provision are fulfilled, and the selecting official has considered other candidates, the official can select from the well-qualified group initially considered.

As to the last sentence of Section 17(b)(4), the Union states that, read in conjunction with the first sentence of Section 17(b) and the first sentence of Section 17 itself, the last sentence of Section 17(b)(4) does not restrict the discretion: (1) of the selecting official to determine which candidates are well qualified; or (2) of the Agency to expand the area of consideration. According to the Union, "the last sentence of Section 17(b)(4) means, '[P]rovided [the selecting official concludes that] there are no well qualified candidates and [that] further expansion of the area of consideration is impractical, he may select a candidate from the qualified.'" Id. at 3 n.1.

The Union refers to Section 17 as "entirely procedural," Petition for Review at 2, or "purely procedural," Response at 3. The Union claims, in its Petition for Review, that the proposal is a procedure within the meaning of section 7106(b)(2) of the Statute.

IV. Analysis and Conclusions

A. Meaning of the Provision

1. First Paragraph of Section 17

By its terms, [n7] the first paragraph of Section 17 provides that, at the direction of the Agency, the selecting official must select only from among well-qualified candidates. [n8] Therefore, we will adopt that interpretation for purposes of this decision. [n9]

2. Section 17(b)

Paragraph (b) of Section 17 prescribes the mechanics of the selection process and the order in which the selecting official will consider candidates. Specifically, after interviewing and considering candidates referred by the HRO, the selecting official will either make a selection or provide written definitive justification to the HRO for nonselection of each candidate. Such justification must provide information as to the ways in which the candidate needs to improve. Once the HRO accepts the justification submitted, the remaining basically eligible candidates will be referred to the selecting official. The selecting official will interview and consider those candidates and either select one of the candidates or nonselect each of them, providing written definitive justification to the HRO for the nonselection of each. If there are no "well qualified" candi- [ v55 p565 ] dates, and it is impractical to expand the area of consideration, the selecting official may select a qualified candidate.

In the context of Article 15 as a whole, Section 17(b) requires the Agency to first consider well qualified candidates from "area 1"--technician members of the Tennessee National Guard--to select from among those candidates, or nonselect each candidate and provide a written justification for the nonselection. After the HRO accepts the justification for the nonselection of each candidate, the selecting official will receive a list of all "area 1" qualified candidates for consideration. If the selecting official decides not to select from among the qualified "area 1" candidates, he or she may reconsider the nonselected well qualified "area 1" candidates or expand the area of consideration. In this regard, the plain terms of the last sentence of Section 17(b)(4) provide that the Agency is limited to selecting from among qualified "area 1" candidates or expanding the area of consideration only if there are no well qualified "area 1" candidates. Because Section 17(b), as worded, allows the selecting official to select from among well-qualified "area 1" candidates after considering qualified candidates, we adopt that interpretation for purposes of this decision. [n10]

B. The First Paragraph of Section 17 Is Not Contrary to Law

Under section 7106(a)(2)(C) of the Statute, agencies have the discretion to fill positions by selecting candidates from any appropriate source without restriction. See, e.g., Association of Civilian Technicians, Pennsylvania State Council and U.S. Department of Defense, Adjutant General of Pennsylvania, Fort Indiantown Gap, Annville, Pennsylvania, 54 FLRA 552, 558 (1998). Proposals that preserve management's discretion to decide the source from which a candidate will be selected do not directly interfere with management's right to select under section 7106(a)(2)(C). See, e.g., id.; Stateside Dependents Schools, 49 FLRA at 686-88. Cf. Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 135-36 (1988) (provision requiring hiring from a particular group, unless none of the group is highly qualified, directly interferes with right to select); Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 326-27 (1987) (proposals requiring agency to select only particular type of employees for specified vacancies, unless none were qualified or eligible, directly interferes with right to select).

By providing that the selecting official must select, only at the direction of the Agency, a candidate from among well qualified "area 1" candidates, the first paragraph preserves the Agency's discretion to consider sources other than that group of candidates. Under that paragraph, the selecting official will select from those candidates only if the Agency decides to do so.

Accordingly, we find that the first paragraph of Section 17 is not contrary to law.

C. Section 17(b) Is Not Contrary to Law

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 section 7106(a)(2)(C) of the Statute. See, e.g., Laurel Bay Teachers Association, OEA/NEA and U.S. Department of Defense, Stateside Dependents Schools, Laurel Bay Schools, Laurel Bay, South Carolina, 49 FLRA 679, 687 (1994) (Stateside Dependents Schools) (citing National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1287-88 (1992) (Nuclear Regulatory Commission)); American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1493-94 (1992)(HCFA).

In addition, consistent with existing precedent, proposals that require an agency to provide a statement setting forth the reasons for the agency's action do not directly interfere with management's rights. See, e.g., Patent Office Professional Association and U.S. [ v55 p566 ] Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10, 65-66 (1993)(PTO, Washington); Nuclear Regulatory Commission, 43 FLRA at 1293. Specifically, a proposal requiring a management official to document the reasons for an action and secure the approval of the next higher level of management prior to taking that action does not directly interfere with management's rights. American Federation of Government Employees, AFL-CIO, Local 446 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, Asheville, North Carolina, 43 FLRA 836, 845 (1991) (Blue Ridge Parkway).

Section 17(b) provides for the selecting official to consider well qualified "area 1," 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. If that written justification is accepted by the Agency's HRO, the selecting official will then be able to consider other candidates. By permitting the selecting official to consider other candidates, once that official has rejected those first considered and provided the requisite written justification, Section 17(b) does not directly interfere with management's right to select under section 7106(a)(2)(C). This conclusion is consistent with the Authority precedent set forth above.

The Agency's argument that the proposal directly interferes with its right to select because it requires the selecting official to decide not to select as a prerequisite to consideration of other candidates is not convincing. The selecting official would not need to consider other candidates if he or she had not already decided to select from the "area 1" well qualified candidates initially considered. The selecting official would request other candidates, that is, only if he or she had decided not to select from the candidates considered first. In referring to nonselection by the selecting official, Section 17(b) simply recognizes the options that the official confronts in considering candidates and exercising the right to select: either select from the initial list, and end the process, or don't select from that list and request to see other candidates. By recognizing those options, Section 17(b) does not directly interfere with management's right to select under section 7106(a)(2)(C).

The Agency also argues that, by requiring a written justification of the decision not to select each of the candidates as a prerequisite to considering other candidates, Section 17(b) interferes with its right to select. However, Section 17(b) does not prescribe a substantive criterion by which the selecting official's decision not to select candidates can be evaluated. Rather, Section 17(b) requires the selecting official to explain to a nonselected candidate the area or areas in which the candidate would need to improve in order to warrant possible selection. [n11] See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 48 FLRA 129, 155-58 (1993) (proposals requiring the agency to provide guidance to employees, which does not limit the agency's ability to find an error in employees' performance, held not to directly interfere with management's rights to direct employees and assign work); PTO, Washington, 47 FLRA at 34 (1993) (proposal requiring written explanation of any deviations from expected practices in establishing performance standards held negotiable); Blue Ridge Parkway, 43 FLRA at 845. Consequently, consistent with existing Authority precedent, by requiring the selecting official to provide information to nonselected candidates, Section 17(b) would not directly interfere with management's right to select.

As to the Agency's argument that Section 17(b) would preclude management from comparing candidates before making a selection, that argument is based on a misunderstanding of the proposal. The selecting official's decision is not irrevocable. Thus, that official can decide initially not to select from among the well qualified "area 1" candidates referred for first consideration, noting the reasons that he or she declines to select each candidate, and then examine qualified "area 1" candidates. After examining those candidates, the [ v55 p567 ] selecting official may choose from among the well qualified, or the qualified, "area 1" candidates, or expand the area of consideration. [n12]

Consistent with existing Authority precedent, therefore, we find that Section 17(b) is not contrary to law. See, e.g., Stateside Dependents Schools, 49 FLRA at 686-88 (1994); HCFA, 44 FLRA at 1493-94. Accordingly, we will order the Agency to rescind its disapproval of the provision.

V. Order

The Agency shall rescind its disapproval of the provision.

APPENDIX

1. Article 15, Section 9 provides as follows:

Section 9. Area of Consideration: The areas of consideration for each specific position vacancy announcement will be in the following manner and sequence.

(a) Bargaining unit positions:

(1) Area one; all permanently employed technicians in the Tennessee National Guard.

(2) Area two; all qualified members of the Tennessee National Guard.

(3) Area three; those eligible for membership in the Tennessee Army National Guard.

NOTE: Although positions may be advertised to area 1 and 2 simultaneously the intent of this section 9, is that Bargaining Unit Technicians will receive first consideration for internal placement or merit promotion.

2. Article 15, Section 13(b) provides, in relevant part, as follows:

Section 13. Processing Applications:

. . . .

(b) If there are more than seven (7) qualified applicants, the HRO will appoint a rating panel for the purpose of rating the candidates to determine the seven (7) better qualified candidates. In the event there are seven (7) or less qualified candidates, the HRO will provide the selecting supervisor with the application and selection certificate. . . .

3. Article 15, Section 16 provides as follows:

Section 16. Referral of Candidates: Following the evaluation of candidates, the HRO will refer the seven (7) better qualified candidates to the selecting official. Applications and supporting documents submitted by those candidates will also be forwarded to the selecting official.

File 1: Authority's Decision in 55 FLRA No.
98

File 2: Opinion of Chair Segal

Footnote # 1 for
55 FLRA No. 98

• Authority's Decision

Chair Segal's dissenting opinion is found at the end of this decision.

Footnote # 2 for
55 FLRA No. 98

• Authority's Decision

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

Footnote # 3 for
55 FLRA No. 98

• Authority's Decision

The Union's petition for review contained 3 other provisions. The parties agreed to revisions of the 3 provisions and the Union withdraws its petition for review as to those provisions. They will not be considered further in this decision.

Footnote # 4 for
55 FLRA No. 98

• Authority's Decision

The text of this portion of paragraph (b), as submitted with the Petition for Review, and as referenced in the Agency's Statement of Position, included a duplicate of the phrase "or provide written definitive justification to the HRO for the non-selection." As set forth above, the paragraph eliminates that duplication. According to the Agency, "HRO" means the "Human Resource or Personnel Office." Statement of Position at 1.

Footnote # 5 for
55 FLRA No. 98

• Authority's Decision

The Union indicates that this subsection of the provision as submitted in the petition for review contained a punctuation and a capitalization error. Union Response at 2. As stated above, the provision reflects the corrected wording.

Footnote # 6 for
55 FLRA No. 98

• Authority's Decision

The term "area 1" used by the Union in its explanation refers to the areas of consideration specified in Article 15, Section 9, which is set forth in the Appendix to this decision. Section 9 provides that, in filling bargaining unit positions, the first area of consideration, or "area 1," includes "all permanently employed technicians in the Tennessee National Guard." "Area 2" includes all qualified members of the Tennessee National Guard and "area 3" includes all those eligible for membership in the National Guard. Section 9 permits the Agency to solicit from areas 1 and 2 simultaneously, but requires "area 1" candidates to receive first consideration.

Footnote # 7 for
55 FLRA No. 98

• Authority's Decision

While the Agency raised concerns about the discretion afforded it regarding the selection of a well qualified candidate, the Union has expressly conceded that the Agency retains that discretion.

Footnote # 8 for
55 FLRA No. 98

• Authority's Decision

The term "well qualified" does not appear elsewhere in Article 15. Section 13(b) set forth in the Appendix to this decision provides for a rating and ranking process to determine the "better qualified" candidates if there are more than seven (7) qualified candidates. Section 16, which is also set forth in the Appendix, provides that after the rating and ranking process is completed, the HRO will refer the seven (7) "better qualified" candidates to the selecting official. Sections 13(b) and 16 distinguish between "better qualified" candidates and "qualified" candidates. Section 17 distinguishes between "well qualified" candidates and "qualified" candidates. In this context, it appears that the "better qualified" candidates referenced in Sections 13(b) and 16 and the "well qualified" candidates referenced in Section 17 constitute the same group. This interpretation is consistent with the Union's explanation of the provision. See supra at 4.

Footnote # 9 for
55 FLRA No. 98

• Authority's Decision

The meaning we adopt for the disputed portions of this provision would apply in other proceedings, unless modified by the parties through subsequent agreement. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 741-42 n.8 (1996).

Footnote # 10 for
55 FLRA No. 98

• Authority's Decision

We note that our dissenting colleague finds the proposal ambiguous and would refer the matter to fact-finding. Aside from our different views of the clarity of the proposal, we believe that such a referral would be an academic exercise. Our determination of the meaning reserves to management its right to select. If a Union-initiated grievance about the application of this provision were to be arbitrated, the Agency would no doubt submit this decision and the Union's explanation of the meaning so as to inform the arbitrator about the way in which this selection procedure was designed to work. We are confident that our decision is faithful to the requirements of the Statute.

Footnote # 11 for
55 FLRA No. 98

• Authority's Decision

In this regard, Section 17(b) seems to provide an internal management check on the selecting official's explanation for a nonselection decision, if not also on the decision to nonselect, because it provides for the HRO to review the written justifications prepared by the selecting official.

Footnote # 12 for
55 FLRA No. 98

• Authority's Decision

The last sentence of Section 17(b)(4), as revised, permits selection of a qualified candidate after the selecting official has considered well qualified "area 1" candidates. The Agency objects generally to section 17(b)(4), but does not specifically object to the last sentence of that subsection and does not discuss the meaning of that portion of the subsection. That portion of Section 17(b)(4) should be read together with the first paragraph of Section 17, which requires the selection of a well qualified "area 1" candidate only at the direction of the Agency. Read together, Section 17(b)(4) and the first paragraph of Section 17 allow the Agency to hire from among the well qualified candidates, from the qualified, or from an expanded area of consideration.

[ v55 p568 ]

Chair Phyllis N. Segal, Dissenting in part

I write separately to state why I do not join the majority in its interpretation of the meaning of subsection (b) of the disapproved provision at issue in this case.

It is axiomatic that ascertaining the meaning of a contract provision can be crucial in determining whether it has been properly disapproved by an agency head under section 7114(c) of the Statute. Indeed, cases are legion in which the Authority has refused to uphold an agency head's disapproval on the ground that the disputed provision did not have the meaning attributed to it by the agency. [n1] Where the meaning of a disputed provision is dispositive, the critical threshold challenge for the Authority is to correctly ascertain that meaning. This is precisely the challenge presented in this negotiability case.

The Agency and Union disagree about whether subsection (b) requires the Agency to irrevocably reject certain candidates for vacant positions before it can examine the applications of other candidates. In its statement of position, the Agency argues, among other things, that the disputed provision would impair its right to make selections because it would require the Agency to irrevocably nonselect certain candidates prior to considering other candidates. That is, according to the Agency, once it has determined not to select a particular applicant ("Candidate A" for these purposes), it may not revoke its determination even if its subsequent consideration of other candidates yields no selection and it believes that Candidate A should be selected. In the Agency's words:

[T]he provision prevents management from evaluating and comparing qualifications of applicants both from within and outside the same area of consideration, even after management has provided first consideration in accordance with the contract. By requiring that management must nonselect and justify nonselection of first/ priority consideration applicants before it can consider other Area 1 candidates or applicants from other areas of consideration, Area 1 candidates are effectively removed from further consideration and/or comparison. . . .
[T]his provision interferes with [the right to make selections] by removing first consideration candidates and other applicants from further consideration by requiring their nonselection as a prerequisite to considering other candidates[.]

Statement of Position at 5.

The Union posits a different interpretation of the disapproved provision. Specifically, the Union asserts that:

Nothing in [the provision] prohibits a selecting official from changing her or his mind about a prior non-selection decision. If the selecting official initially non-selects all of the area 1 better qualified applicants, and prepares the required written justifications, and then on review of the next group of applicants changes her or his mind and decides to select one of the applicants in the group of area 1 better qualified candidates, nothing prohibits the selecting official from selecting that applicant.

Union Response at 2.

If the provision means what the Union posits, then I agree with the majority that it does not affect the Agency's right to make selections. By the same token, however, if the Agency is correct that the provision requires it to make selection decisions on particular candidates without evaluating others, then Authority precedent requires finding that the provision affects the Agency's right to select. [n2] In addition, unchallenged precedent would result in finding that the provision is not a procedure within the meaning of section 7106(b)(2). See, e.g., National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886, 890 (1990). As the Union makes no claim that the provision is bargainable under any other subsection of section 7106(b), this would, in turn, lead to holding that the provision is contrary to law. In sum, this is a case where the meaning of the disapproved con- [ v55 p569 ] tract provision is dispositive of whether it is contrary to law.

The majority resolves the parties' dispute over the provision's meaning based on what it characterizes as the "plain terms" of the final sentence in subsection (b)(4), which it reads as supporting the Union's view. Majority at 9. The sentence relied on to confirm that a nonselection decision is revocable states: "Provided there are no well qualified candidates and further expansion of the area of consideration is impractical, [the selecting official] may select a candidate from the qualified." The majority somehow reads these words to mean that the Agency would be permitted to change its prior decision not to select a candidate -- in effect, making the Agency's nonselection decisions revocable.

Contrary to the majority, I see no basis for finding this construction "plain" in the terms of the final sentence in subsection (b)(4), or anywhere else in the provision. Nor, apparently, does the Union -- which does not rely on the final sentence in subsection (b)(4) to support its claim that the provision allows a selecting official to "chang[e] her or his mind" about a previous non-selection. Rather, the Union merely asserts that "[t]here is no contrary language in the Section," and claims deference to its interpretation. Union Response at 2.

The Union is correct: nothing in the provision's wording is contrary to the Union's interpretation. However, there also is no language in the provision contrary to the Agency's interpretation. In short, the only thing "plain" here is that the provision is ambiguous on whether nonselections by the Agency, pursuant to the terms of the provision, are revocable.

If this negotiability appeal involved a contract proposal this ambiguity would properly be resolved in favor of the Union. The Authority has long held that, when a union's proposed contract term is in dispute, the Authority will defer to the union's interpretation of the proposal's meaning, provided that its words can be read in a manner that is not inconsistent with the asserted interpretation. [n3] This makes good sense because a union proposal is, after all, the union's creation. Although an agency's view of the effect the proposal will have on its operations is relevant in determining whether the proposal is within the duty to bargain, only the union, as the drafter, can know what it intended the proposal to require -- what it means. Accordingly, if this case involved a contract proposal, rather than a negotiated provision, I would find ample support, in the absence of unambiguously contradictory language, for deferring to the Union's view of what the proposal means.

A different situation is presented, however, when a negotiability case concerns a contract provision, because the terms of the provision have, by definition, been not only proposed by one party, but also agreed upon by both parties. This agreement is, of course, based on the parties' respective understanding of what those terms mean. As is evident in this case, their understandings may differ. Where the wording of a provision is clear, it is relatively easy to resolve such a dispute. [n4] However, where the wording of a disapproved provision is susceptible to both parties' differing interpretations, it is not appropriate, in my view, to defer to the meaning asserted by the union, as we do in cases concerning contract proposals. Indeed, there appears to be solid support for employing an entirely different principle and construing any ambiguity in a provision against the party who drafted its words. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62-63 (1995) ("[R]espondents cannot overcome the common-law rule of contract interpretation that a court should construe ambiguous language against the interest of the party that drafted it"), citing, inter alia, Restatement (Second) of Contracts § 206. In Mastrobuono, the [ v55 p570 ] Court quoted the justification for this principle, as provided by the drafters of the Second Restatement:

Where one party chooses the terms of a contract, he is likely to provide more carefully for the protection of his own interests than for those of the other party. He is also more likely than the other party to have reason to know of uncertainties of meaning. Indeed, he may leave meaning deliberately obscure, intending to decide at a later date what meaning to assert. In cases of doubt, therefore, so long as other factors are not decisive, there is substantial reason for preferring the meaning of the other party.

Mastrobuono, 514 U.S. at 63 n.10 (quoting Restatement (Second) of Contracts § 206, Comment a (1979).

The record on which the majority bases its construction that the nonselection decisions are revocable consists solely of the provision itself and the parties' contradictory assertions in their written submissions to the Authority. Neither the Union nor the Agency has provided, or been asked to provide, any evidence concerning the negotiation of this provision, such as affidavits or testimony from their representatives at the bargaining table, or bargaining notes, to support the views each asserts in this litigation. As the provision is susceptible to either party's interpretation, this is not an adequate record on which to decide the dispositive question of what the provision means.

Rather than reach a decision based on this inadequate record, the Authority should, in my view, conduct a proceeding designed to ascertain, based upon evidence, what the provision means. Put simply, the fact of what the provision means should be resolved through fact-finding. I do not believe that it serves the parties' interests, or shows sufficient fidelity to their bilateral negotiations, for the Authority to determine whether this provision, construed to mean what the Union alone asserts was negotiated, will be included in their contract based on the meager record before us. The Authority indisputably has the ability to require a more fully-developed record, including evidence to establish the meaning of the provision the Agency and Union agreed to at the bargaining table. [n5] See 5 U.S.C. §§ 7105(a)(2)(I); 7117(b)(3) and (c)(5) (Authority may take such actions as are appropriate to administer the Statute, including holding hearings in negotiability cases). Accord 5 C.F.R. § 2424.31 (in resolving negotiability petitions filed after April 1, 1999, disputed issues of material fact may be resolved through several, different procedures, including hearings). I believe that the Authority has an obligation to do so prior to reaching its decision, and see no basis to disparage taking steps to find facts as a "academic exercise." Majority at 9 n.10. Accordingly, I respectfully dissent from the majority's finding on what the provision means, which forms the basis for its conclusion that the provision is not contrary to law and therefore was improperly disapproved.

File 1: Authority's Decision in 55 FLRA No. 98

File 2: Opinion of Chair Segal

Footnote # 1 for
55 FLRA No. 98

• Opinion of Chair Segal

See, e.g., National Education Association, Overseas Education Association, Fort Rucker Education Association and U.S. Department of Defense, Domestic Dependent Elementary and Secondary Schools, Fort Rucker Dependents Schools, Fort Rucker, Alabama, 53 FLRA 941, 949-50 (1997) (agency claim that provision affected right to assign work by providing a duty-free lunch period rejected on ground that "the provision does not require . . . a duty-free time during the lunch period"); National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265, 1277-78 (1997) (agency arguments based "solely on its view that the provision would prevent management from maintaining documentation on denials of within-grade increases" rejected on ground that "[t]he provision would not have that effect"); National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 367 (1990) (agency claim that provision affected right to assign work by requiring it to assign work to employees not chosen by management rejected on ground that "[n]othing in the wording of the provision contains such a requirement.").

Footnote # 2 for
55 FLRA No. 98

• Opinion of Chair Segal

Compare U.S. Department of Veterans Affairs, Regional Office, Boston, Massachusetts and American Federation of Government Employees, Local 2772, 51 FLRA 1769, 1774-75 (1996) (an arbitral award directing an agency to select from among a specified group of candidates is deficient under section 7106(a)(2)(C) of the Statute because it denies the agency's right to select from any other appropriate source) with American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 179 (1998) (because a proposal requiring the agency to accept and consider applications from a certain group of candidates did not "limit the Agency's selection options and neither require[d] nor preclude[d] selection of any candidate, it [did] not affect management's right to select").

Footnote # 3 for
55 FLRA No. 98

• Opinion of Chair Segal

See, e.g., National Education Association, Overseas Education Association, Fort Bragg Association of Educators and U.S. Department of Defense, Department of Defense Domestic Dependents, Elementary and Secondary Schools, Fort Bragg, North Carolina, 53 FLRA 898, 907-08 (1997); National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 32 FLRA 544, 547 (1988).

Footnote # 4 for
55 FLRA No. 98

• Opinion of Chair Segal

For example, the wording in the first paragraph of Section 17 of the provision at issue in this case explicitly states that selections are limited to the well-qualified group "at the direction of the agency." In view of this clear wording, I agree with the majority's apparent rejection of the Agency's claim that the first paragraph of the provision "requires" it to select only from the well- qualified group. See Majority at 4; 6-7; 8-9. However, I do not agree with the majority's apparent conclusion that the limitation in subsection (b)(4) is necessarily dependent on the "agency direction" in the first paragraph. See id. at n.11. The provision is, in my view, ambiguous on this point and, as a result and for the reasons stated in the body of this dissent,its meaning should be determined through factfinding rather than imposed by the Authority.

Footnote # 5 for
55 FLRA No. 98

• Opinion of Chair Segal

It is not necessary, in the context of this opinion, to resolve how the meaning of a provision should be determined in the event it is not established through fact-finding, including whether the Authority should employ the principle stated in Mastrobuono.