This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor‑Management Relations Statute (the Statute).^[1] This case concerns the negotiability of five proposals addressing merit promotions and details. The Union’s proposals were initially raised during negotiations over a new term collective‑bargaining agreement. The Agency filed a statement of position (statement), to which the Union filed a response (response). The Agency did not file a reply to the Union’s response. 

 

 

 

 

                With respect to Proposal 5, we must decide whether the proposal is contrary to 5 C.F.R. § 300.603(b)(7) or the Agency’s rights to hire and assign employees, or whether it is “covered by” a provision of the parties’ agreement. Because the parties agree that the proposal is subject to § 300.603(b)(7), we find that the proposal is not contrary to that regulation. Further, because the Agency’s discretion under § 300.603(b) is not “sole and exclusive,”^[2] the proposal does not run afoul of § 300.603(b). Likewise, we find that the Agency has conceded that the proposal is a procedure, and therefore, the proposal does not violate the Agency’s rights to hire or assign employees. Finally, the “covered‑by” doctrine is irrelevant here. Accordingly, we hold that the proposal is within the duty to bargain.

 

 

 

 

                The parties agree that, under the proposal, if a bargaining‑unit employee applies for a bargaining‑unit position and receives a rating of best qualified, but the Agency selects an external, non‑federal‑government applicant for the position, the employee may request information from the Agency.^[4] Specifically, if the employee feels that the Agency discriminated against him or her because he or she is a member of a protected class, then he or she may request from the Agency a written, merit‑based reason for his or her non‑selection.^[5] The reason would have to be explained with sufficient clarity to grant the employee the opportunity to demonstrate that the Agency’s stated reason is pretextual, referencing the burden‑shifting framework established by the             U.S. Supreme Court in McDonnell Douglas Corp. v. Green^[6] and its progeny.^[7] 

 

 

                The Agency argues that the proposal “is contrary to law because it establishes a protected class that currently does not exist under law,”^[8] i.e., current federal employees. The Union disputes this assertion.^[9] Because the Union’s explanation is consistent with the proposal’s plain wording and agreed‑upon meaning, we adopt that explanation.^[10] Accordingly, we find that the proposal does not create an additional protected class. 

 

The Agency also argues that, in grievances involving non‑selection, the proposal improperly shifts the burden of proof to the Agency when an outside candidate is selected over a bargaining‑unit employee.^[11] The Union responds that the proposal says “nothing about burdens of any kind.”^[12] The Agency’s argument is inconsistent with the agreed‑upon meaning of the proposal, which does not impose any burden on the Agency other than providing information. Thus, we find that the proposal does not transfer the burden of proof to the Agency.

 

 

 

                The Agency also argues that the proposal affects its right to select under § 7106(a)(2)(C) of the Statute by discouraging it from selecting outside candidates.^[13] The Union does not dispute that the proposal affects the Agency’s right to select. Under § 2424.32(c)(2) of the Authority’s Regulations, “[f]ailure to respond to an argument or assertion raised by the other party will, where appropriate, be deemed a concession to such argument or assertion.” ^[14] Thus, consistent with that regulation and Authority precedent, the Union has conceded that the proposal affects the Agency’s right to select employees.^[15] Accordingly, we find that the proposal affects the Agency’s right to select under § 7106(a)(2)(C) of the Statute.^[16] But even if the proposal concerns the exercise of this management right, the proposal is nevertheless negotiable if it constitutes a procedure within the meaning of § 7106(b)(2).^[17] 

 

 

                It is also uncontested that the proposal is a procedure. The Union argues in its response that the proposal constitutes a procedure under § 7106(b)(2).^[18] The Agency did not address this issue in its statement of position or file a reply to the Union’s response. As discussed above, by not responding to the Union’s argument, the Agency has conceded that the proposal is a procedure under § 7106(b)(2).^[19] We therefore hold that this proposal is a procedure. In light of this determination, we find it unnecessary to reach the Union’s argument that the proposal is also an appropriate arrangement under § 7106(b)(3).^[20]

 

 

 

 

                The parties agree that, under this proposal, the Agency would have to notify the Union before using a “crediting plan or similar rating guide” to evaluate applicants for a merit promotion.^[23] A “crediting plan or rating guide” is the combination of knowledge, skills, and abilities (KSAs) required to successfully perform in a position; the job criteria for a position; and the weights to be used to evaluate whether a candidate possesses the KSAs.^[24] The meaning of a “crediting plan or rating guide” is taken from Authority precedent.^[25] Further, as part of its notification to the Union, the Agency would have to provide the Union with any criteria that it plans to use to assess applicants.^[26] The Agency could notify the Union in writing or orally in a face‑to‑face meeting.^[27] Moreover, the Agency would be required to give notice only when it uses a new crediting plan or rating guide, or changes an existing crediting plan or rating guide.^[28]

                Additionally, the proposal would require the Agency to inform the Union of the existence of tests that would be used and to explain how the tests would affect the application process.^[29] However, the Agency could withhold test questions and answers to protect the integrity of the test.^[30] The test questions and answers would have to be consistent with the Delegated Examining Operations Handbook, an Office of Personnel Management (OPM) manual that establishes the types of tests and answers that may be used in the process covered by this proposal.^[31]

 

 

The Agency argues, as relevant here, that the Union’s proposal is contrary to 5 C.F.R. § 300.201(c), which, according to the Agency, “expressly forbids the release of crediting plans.”^[32] Section 300.201(c) states, “Each employee entrusted with test material has a positive duty to protect the confidentiality of that material and to assure release only as required to conduct an examination authorized by [OPM].”^[33] Also relevant is subsection (a), which states that OPM “does not release the following: (1) [t]esting and examination materials used solely to determine individual qualifications, and    (2) test material, including test plans, item analysis data, criterion instruments, and other material the disclosure of which would compromise the objectivity of the testing process.”^[34]

 

                Although the proposal would permit the Agency to “withhold any test questions or answers if needed to protect the integrity of the test,”^[35] § 300.201(c)’s prohibition on the release of “test materials” applies to more than just test questions and answers. Moreover, although it argues that “n[o] . . . law creates an absolute bar against the release of crediting plans,”^[36] the Union does not specifically address the Agency’s claim that § 300.201(c) bars the disclosure of crediting plans in its response. 

 

Given the apparent conflict between the proposal and § 300.201(c), and in the absence of any argument to the contrary from the Union, we find that the proposal is contrary to government‑wide regulation, and therefore outside the duty to bargain. Accordingly, we find it unnecessary to address the Agency’s arguments that the proposal is “covered by” provisions of the parties’ agreement or that the proposal interferes with its rights to hire and to select employees, under § 7106(a)(2).^[37] Nor do we need to address the Union’s argument that the proposal is a procedure or an appropriate arrangement, under § 7106(b)(2) or (3), respectively, because a provision that is contrary to law or government‑wide regulation remains so regardless of whether it is a procedure or an appropriate arrangement.^[38]

 

 

The parties agree^[40] that this proposal would require the Agency to ensure that its selection process is consistent with 5 C.F.R. Part 300 and the Uniform Guidelines on Employee Selection Procedures             (the Guidelines).^[41] Part 300 concerns procedures for the initial appointment process and competitive promotions, and the Guidelines require agencies to validate crediting plans if those plans could have an adverse impact on the employment opportunities of protected classes.^[42] Under the proposal, the Union could request documentation from the Agency that shows that the Agency has complied with these authorities.^[43] The Agency could satisfy this obligation by explaining to the Union in writing that it did not need to comply with the validation requirements of the Guidelines because no adverse impact existed.^[44] 

 

 

 

The Agency argues that the proposal is contrary to § 7114(b)(4) of the Statute because it would require the Agency to provide information for which the Union had not demonstrated a particularized need.^[45] Section 7114(b)(4) requires an agency to provide, upon request, certain information upon a showing that the union has a “particularized need” for the information.^[46] However, as noted by the Union, “the entitlement to information under § 7114(b)(4) is a ‘statutory floor and not a ceiling.’”^[47] Thus, a proposal is not contrary to § 7114(b)(4) simply because it provides “a right to information over and above the statutory entitlement.”^[48] Accordingly, the Agency has not established that the proposal is contrary to § 7114(b)(4).

 

 

                The Agency references only indirectly its right to hire, stating that “there is nothing in the Union’s submission that articulates how any bargaining[‑]unit employees are adversely affected by the Agency’s right to hire and promote employees.”^[49] And it neither explains how the proposal burdens the exercise of its right to hire nor responds to the Union’s statement that the Agency “does not allege that mandating its compliance with 5 C.F.R. Part 300 and 41 C.F.R. § 60‑3 and requiring the Agency to provide documentation of a validation study, if applicable, interferes with its right to hire.”^[50] Accordingly, we find that the Agency has not established that the proposal affects a management right.

 

Moreover, even assuming that the Agency sufficiently raises a claim that the proposal affects a management right, the proposal is negotiable if it constitutes a procedure.^[51] And, as with Proposal 1,^[52] the Agency did not address the Union’s claim^[53] that the proposal is procedure. Accordingly, we find that the Agency has conceded that the proposal is a negotiable procedure under § 7106(b)(2).^[54] As such, we find it unnecessary to address the Union’s claim that the proposal is also an appropriate arrangement under § 7106(b)(3).^[55]

 

 

                The Agency also appears to argue that the proposal is “covered by” provisions of the parties’ agreement.^[56] Under the Authority’s covered‑by doctrine, a party is not required to bargain over terms and conditions of employment that have already been resolved by bargaining.^[57] However, the covered‑by doctrine deals only with an agency’s statutory duty to bargain during the term of a collective‑bargaining agreement, and, as relevant here, the doctrine is inapplicable to resolve duty‑to‑bargain issues that arise during term negotiations.^[58] Thus, the Agency’s covered‑by argument does not establish that the proposal is outside the duty to bargain.

 

 

 

                Under Section 13.04(1) of the parties’ agreement, any employee detailed/temporarily promoted to a higher‑graded position or to a position with higher‑promotion potential must compete for that position if they remain in it for longer than 120 days.^[60] The parties agree that if a non-competitive promotion lasted more than 120 days, Proposal 4 would require the Agency to pay the employee retroactive backpay beginning from the forty‑sixth day in the position and ending whenever the employee receives a promotion or is removed from the position.^[61] 

 

 

                The Agency argues that this proposal is contrary to 5 C.F.R. § 335.103(c), as interpreted by OPM.^[62] The Union concedes^[63] that OPM has interpreted 5 C.F.R. § 335.103(c) as limiting retroactive, temporary promotions to 120 days and that the Authority deferred to OPM’s interpretation in U.S. Department of VA, Ralph H. Johnson Medical Center, Charleston, South Carolina (Johnson).^[64] But the Union argues that we should reverse our precedent and hold that § 335.103(c) does not prohibit temporary retroactive promotions of more than 120 days.^[65]

 

                The Union first argues that because the interpretation of § 335.103(c) that the Authority relies upon was made in an advisory opinion, it is not binding on the Authority.^[66] But the Authority has never held that OPM’s interpretation of § 335.103(c) is binding, only that it is entitled to deference.^[67] Thus, this argument provides no basis for reversing Johnson. The Union also argues that Johnson was an unexplained departure from our precedent regarding the weight accorded to OPM advisory opinions and from Authority precedent concerning the validity of retroactive temporary promotions of more than 120 days.^[68] As discussed above, the Authority has previously accorded deference to OPM advisory opinions, so there is no merit to the first contention. And, as to the latter, the Authority departed from prior precedent interpreting § 335.103(c) based on an advisory opinion from the agency that wrote § 335.103(c), so the departure from precedent is hardly unexplained. 

 

                The Union also argues that the Authority should not have deferred to OPM’s interpretation of § 335.103(c), because OPM’s interpretation of § 335.103(c) is inconsistent with its practice of granting waivers authorizing non‑competitive 180‑day promotions in certain circumstances.^[69] But requiring agencies to seek, and occasionally granting, waivers from § 335.103(c) is entirely consistent with interpreting that regulation to forbid retroactive, non‑competitive promotions lasting longer than 120 days without OPM approval. Thus, the Union’s argument does not establish that OPM has interpreted § 335.103(c) inconsistently. 

 

Likewise, the Union argues that OPM’s interpretation is not entitled to deference, because it “did not appear to consider either the Back Pay Act or [OPM’s] own backpay regulations.”^[70] Specifically, the Union claims that the Back Pay Act entitles an employee who has been affected by an unjustified and unwarranted personnel action to backpay, and that “[i]n this case, the unwarranted personnel action would be a non‑competitive promotion.”^[71] But the Back Pay Act permits recovery only of “pay, allowances, or differentials,”^[72] which are defined, in pertinent part, as pay “to which an employee is entitled by statute or regulation and which are payable by the employing agency.”^[73] And § 335.103(c), as interpreted by OPM, demonstrates that pay for non-competitive temporary promotions over 120 days does not meet that definition. 

 

                The Union also argues that OPM’s advisory opinion “says nothing about an arbitrator ordering the Agency to run a competitive selection procedure, [and] giv[ing] the harmed employee priority consideration[] and a retroactive promotion with back[p]ay, if selected.”^[74] But the Union’s proposal does not address retroactive, permanent promotions, so even if an arbitrator could grant a retroactive promotion of more than 120 days under the circumstances described by the Union, it would not establish that the proposal is within the duty to bargain. Moreover, we note that the Union has not requested severance of any portion of this proposal, and, in the absence of a request for severance, if any part of a proposal is outside the duty to bargain, then the entire proposal is outside the duty to bargain.^[75] Finally, the Union argues that if § 335.103(c) is interpreted consistent with OPM’s advisory opinion, then it violates Article 13, Section 13.04(1) of the parties’ agreement.^[76] But preexisting government‑wide regulations trump conflicting collective‑bargaining‑agreement provisions,^[77] so even if § 335.103(c), as interpreted by OPM, does conflict with Article 13, Section 13.04(1), such a conflict would not establish that the Union’s proposal is within the duty to bargain. 

 

 

 

 

 

                The parties agree that, under this proposal, if the Agency assigns or details an employee to higher‑graded work, it must exercise its authority to waive time‑in‑grade requirements when considering whether that employee should receive a temporary promotion.^[80] The phrase “higher[‑]graded work” has the same meaning as in Proposal 4.^[81] Further, 5 C.F.R. § 300.603(b) lists eight exceptions to the time‑in‑grade requirements set forth under 5 C.F.R., Subchapter F.^[82] If an employee falls under one of these exceptions, the proposal would requirethe Agency to apply the exception and grant that employee a temporary promotion.^[83] Further, the Agency would be required to abide by any additional exceptions that OPM might create.^[84] 

 

 

                The Agency argues that the proposal conflicts with 5 C.F.R. § 300.603(b)(7).^[85] That regulation states:

 

 

(7) Advancement to avoid hardship to an agency or inequity to an employee in an individual meritorious case[,] but only with the prior approval of the agency head or his or her designee     . . . .^[86] 

 

Specifically, the Agency claims that “[t]he proposed language would impermissibly expand the Agency’s authority to encompass any already‑assigned or detailed employee . . . [and] would nullify any discretion an agency head has in determining whether any failure to waive would inflict any hardship on the agency . . . or an inequity on the employee.”^[87] 

 

But the parties agree that, as relevant here, the proposal is implicated only when § 300.603(b)(7) is satisfied.^[88] In other words, the proposal would not apply unless the Agency had already made a case‑by‑case determination that § 300.603(b)(7) authorized the waiver of time‑in‑grade requirements.^[89] Thus, the Agency’s argument that the proposal expands the scope of § 300.603(b)(7) or limits the Agency’s discretion in determining whether the requirements for § 300.603(b)(7) are met is inconsistent with the agreed‑upon meaning of the proposal. 

 

Likewise, the Agency argues that “[t]he proposed language is in . . . direct conflict with the regulation in that actions ‘will be taken,’ rather than ‘may’ be taken.”^[90] Thus, the Agency argues that the proposal “removes the Agency’s discretion – discretion required by regulation.”^[91] But the Authority has consistently held that matters concerning conditions of employment are subject to collective bargaining when they are within the discretion of an agency and not otherwise inconsistent with law or applicable rule or regulation.^[92] While the Authority has held that an exercise of discretion is not subject to bargaining where the discretion is “sole and exclusive,”^[93] the Agency does not argue that this exception applies here.^[94] 

 

 

                The Agency argues that the proposal affects its rights to hire and assign employees under § 7106(a)(2)(A) of the Statute.^[95] The Union does not dispute that the proposal affects these rights. Accordingly, we find that the proposal affects the Agency’s rights to hire and assign employees under § 7106(a)(2)(A).^[96]

 

                As with Proposal 1,^[97] the Agency did not address the Union’s claim^[98] that the proposal is a procedure. Accordingly, the Agency has conceded that the proposal is a procedure under § 7106(b)(2).^[99] We therefore find that the proposal is a procedure. Accordingly, we find it unnecessary to address the Union’s claim that the proposal is also an appropriate arrangement under § 7106(b)(3).^[100]

 

                The Agency also argues that the proposal is “covered by” Article 13, Section 13.03(1) and (4) of the parties’ agreement.^[101] As discussed above, the covered‑by doctrine does not apply here.^[102] Thus, the Agency’s covered‑by argument does not establish that the proposal is outside the duty to bargain.         

 

 

 

 

---