U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Number 139                    February 2001

Association of Civilian Technicians, Treasure State Chapter #57 and National Guard Bureau, Montana National Guard, 0-NG-2552, January 23, 2001, 56 FLRA No. 185.

A disapproved provision requiring that, with a few exceptions, all unit vacancies be filled competitively (thus precluding the agency from using noncompetitive reassignments) is nonnegotiable because it affects management's right to make selections from any appropriate source.

The agency disapproved a provision that, with certain exceptions (e.g., a promotion due to reclassification at a higher grade because of additional duties; repromotion to position from which demoted without cause; selection from a reemployment priority list), required that certain unit positions be filled competitively. On appeal, FLRA noted that the parties agreed that, apart from negotiated exceptions, the agency would have to use competitive procedures to fill vacancies. "Thus," said FLRA, "unless one of the exceptions applies, if the Agency decides to fill a vacancy and the competitive selection procedures result in at least one candidate, then the Agency would be required to: (1) select a candidate; (2) reannounce the position and again use competitive procedures; or (3) decline to fill the vacancy."

FLRA found that the provision affected management's right to select from any appropriate source. "A proposal requiring the agency to use competitive procedures to fill vacant positions affects management's right to select under section 7106(a)(2)(C), even where the proposal provides management with an exception in certain circumstances." FLRA noted that the disapproved provision "would not preserve management's right to ultimately select from a different source, including noncompetitive reassignment."

The Authority rejected the union's claim that the provision constituted a section 7106(b)(2) procedure. Proposals requiring the use of competitive procedures in considering employees for vacancies have been found to be negotiable procedures where such proposals didn't prevent management from considering other applicants, or expanding the area of consideration once bargaining unit employees were considered, or using any other appropriate source in filling the position. FLRA found that the disputed provision didn't constitute a negotiable procedure because "the provision would not merely require management to use competitive procedures in initially considering candidates for vacant positions. Rather, with the exceptions noted in the proposal, the provision would restrict management to filling vacancies through competitive procedures."

FLRA also found the union's argument that section 7106(b)(2) procedures can be mandatory to be misplaced. "[T]he provision in this case not only establishes a mandatory requirement, it establishes a particular mandatory requirement that would restrict the Agency's discretion under section 7106(a) to fill positions noncompetitively."