Association of Civilian Technicians, Inc., Pennsylvania State Council (Union) and Adjutant General, Department of Military Affairs, Pennsylvania (Agency)  

 4 FLRA No. 10
 
 ASSOCIATION OF CIVILIAN TECHNICIANS, INC.,
 PENNSYLVANIA STATE COUNCIL
 Union
 
 and
 
 ADJUTANT GENERAL, DEPARTMENT OF
 MILITARY AFFAIRS, PENNSYLVANIA
 Agency
 
                                            Case No. 0-NG-10
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105 (A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
                              UNION PROPOSAL
 
    SECTION 6.4 ANNOUNCEMENTS AND AREA OF CONSIDERATION
 
    (A) POSITION VACANCY AND MERIT PROMOTION ANNOUNCEMENTS WILL HAVE A
 MINIMUM OPEN PERIOD OF
    FOURTEEN (14) CALENDAR DAYS.  TECHNICIANS ON LEAVE, IN SCHOOL OR
 TRAINING STATUS, OR ABSENT
    FROM THEIR NORMAL WORK LOCATION FOR ANY OTHER AUTHORIZED PURPOSE
 DURING THE OPEN PERIOD, AND
    WHO POSSESS THE BASIC QUALIFICATIONS FOR THE ANNOUNCED POSITION, WILL
 BE NOTIFIED BY HIS
    IMMEDIATE SUPERVISOR OF THE POSITION VACANCY AND BE GIVEN AN
 OPPORTUNITY TO APPLY FOR THE
    POSITION.  /1/
 
    (B) EXCEPTED POSITIONS
 
    (1) THE INITIAL ANNOUNCEMENT WILL BE LIMITED TO QUALIFIED CURRENTLY
 EMPLOYED TECHNICIANS
    WORKING FOR THE SENIOR TECHNICIAN IN WHOSE AREA THE VACANCY EXISTS.
 
    (2) IF THERE ARE NO QUALIFIED APPLICANTS FROM (1), THEN QUALIFIED
 CURRENTLY EMPLOYED TECHNICIANS WILL BE CONSIDERED.
 
    (3) IF THERE ARE NO QUALIFIED APPLICANTS FROM (2), THE QUALIFIED
 MEMBERS OF THE
    PENNSYLVANIA ARMY/AIR NATIONAL GUARD WILL BE CONSIDERED.
 
    (4) IF THERE ARE NO QUALIFIED APPLICANTS FROM (3), THEN QUALIFIED
 CURRENTLY EMPLOYED TECHNICIANS FROM OTHER STATES WILL BE CONSIDERED.
 
    (5) IF THERE ARE NO QUALIFIED APPLICANTS FROM (4), THEN QUALIFIED
 APPLICANTS, WILLING AND
    ELIGIBLE TO BECOME MEMBERS OF THE PENNSYLVANIA ARMY/AIR NATIONAL
 GUARD, WILL BE CONSIDERED.
 
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL CONCERNING ANNOUNCEMENTS
 AND THE AREA OF CONSIDERATION FOR VACANT EXCEPTED SERVICE POSITIONS IN
 THE BARGAINING UNIT IS INCONSISTENT WITH FEDERAL LAW (5 U.S.C.
 7106(A)(2)(C) AND 5 U.S.C. 2301(B)(1) OR GOVERNMENT-WIDE RULE OR
 REGULATION (FEDERAL PERSONNEL MANUAL LETTER 335-12 (DEC. 29, 1978)), AS
 ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL IS NOT INCONSISTENT WITH FEDERAL LAW AND
 THE FPM PROVISION RELIED UPON BY THE AGENCY IS INAPPLICABLE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10) THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS
 NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.  /2/
 
    REASONS:  THE AGENCY CONSTRUES THE PROPOSAL AS IMPOSING A MANDATORY
 RANK ORDER PREFERENCE WITH RESPECT TO THE SELECTION OF CANDIDATES TO
 FILL UNIT VACANCIES TO WHICH THE PROPOSAL WOULD APPLY.  CONSEQUENTLY, IT
 TAKES THE POSITION THAT THE PROPOSAL VIOLATES SECTION 7106 (A)(2)(C) OF
 THE STATUTE /3/ WHICH RESERVES TO MANAGEMENT THE RIGHT TO MAKE
 SELECTIONS, AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS.
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
   .          .          .          .
 
 
    (C) WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
 APPOINTMENTS FROM--
 
    (I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION;  OR
 
    (II) ANY OTHER APPROPRIATE SOURCE . . .
 
    IN ASSOCIATION OF CIVILIAN TECHNICIANS DELAWARE CHAPTER AND NATIONAL
 GUARD BUREAU, DELAWARE NATIONAL GUARD, 3 FLRA NO. 9 (1980), THE
 AUTHORITY HELD THAT THE FOLLOWING UNION PROPOSAL DID NOT CONFLICT WITH
 SECTION 7106(A)(2)(C) OF THE STATUTE:
 
    SECTION 3.  POSITION ANNOUNCEMENT-- WHEN POSITIONS ARE ANNOUNCED,
 DISTRIBUTION OF THE
 
    ANNOUNCEMENTS WILL BE THROUGHOUT THE AREA OF CONSIDERATION AND WILL
 CONTAIN, AS A MINIMUM, THE
 
    FOLLOWING INFORMATION:
 
   .          .          .          .
 
 
    E.  AREA OF CONSIDERATION AS FOLLOWS:  (1) 1ST AREA-- ALL CIVILIAN
 TECHNICIANS (2) 2ND AREA--
 
    ALL MEMBERS OF THE NATIONAL GUARD (3) 3RD AREA-- ALL OTHERS
 
    IN REACHING ITS CONCLUSION THAT THE ABOVE-QUOTED PROPOSAL WAS WITHIN
 THE DUTY TO BARGAIN BECAUSE IT DID NOT VIOLATE MANAGEMENT'S RIGHT TO
 MAKE SELECTIONS FROM AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES OR
 FROM ANY OTHER APPROPRIATE SOURCE, THE AUTHORITY RELIED ON ITS DECISION
 IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 331 AND VETERANS
 ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, 2 FLRA NO. 59 (1980),
 STATING THE PRINCIPLE OF THAT DECISION AS FOLLOWS:
 
    (THE) PROPOSAL WHICH WOULD REQUIRE ONLY THAT CONSIDERATION BE GIVEN
 TO EMPLOYEES WITHIN THE
 
    BARGAINING UNIT IN FILLING VACANT POSITIONS BUT WOULD NOT 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 SUCH
 VACANCIES, DID NOT PREVENT
 
    MANAGEMENT FROM EXERCISING ITS RESERVED RIGHT TO SELECT.
 
    IN THE PRESENT CASE, THE UNION STATES AS FOLLOWS:  /4/
 
    (THE) AGENCY INCORRECTLY VIEWS THE UNION'S PROPOSAL AS AN ATTEMPT TO
 LIMIT MANAGEMENT'S
 
    RIGHT OF SELECTION . . . . WE AGREE THAT SELECTION IS A MANAGEMENT
 RIGHT AND THE PROPOSAL DOES
 
    NOT PRECLUDE THE SELECTING OFFICIAL FROM REFUSING TO SELECT AND THEN
 PROCEEDING TO THE
 
    SUCCEEDING STEP.  THE PROCEDURE, ATTEMPTED TO BE BARGAINED, DOES NOT
 ESTABLISH A PREFERENCE--
 
    IT MERELY PROVIDES FOR FULL CONSIDERATION OF QUALIFIED EMPLOYEES.
 
    THUS, IN ALL RELEVANT RESPECTS, THE DISPUTED PROPOSAL IN THE PRESENT
 CASE IS SUBSTANTIALLY IDENTICAL TO THE ONE HELD NEGOTIABLE IN DELAWARE
 NATIONAL GUARD.  CONSEQUENTLY, FOR THE REASONS SET FORTH IN GREATER
 DETAIL IN THAT DECISION, IT MERELY PROVIDES A PROCEDURE FOR DEFINING THE
 INITIAL AREA OF CONSIDERATION AND EXPANSION OF THAT AREA OF
 CONSIDERATION WHEN FILLING THE VACANCIES INVOLVED, A MATTER WHICH DOES
 NOT CONFLICT WITH SECTION 7106(A)(2)(C) OF THE STATUTE.  THE PROCEDURE
 WOULD NOT PREVENT THE AGENCY FROM ACTING AT ALL TO EXERCISE ITS
 STATUTORY Y AUTHORITY /5/ AND IS WITHIN THE DUTY TO BARGAIN UNDER
 SECTION 7106(B)(2).  /6/
 
    THE AGENCY FURTHER CONTENDS THE PROPOSAL WOULD VIOLATE SECTION
 2301(B)(1) OF THE CIVIL SERVICE REFORM ACT, /7/ WHICH PROVIDES AS
 FOLLOWS:
 
    SEC. 2301.  MERIT SYSTEM PRINCIPLES.
 
   .          .          .          .
 
 
    (B) FEDERAL PERSONNEL MANAGEMENT SHOULD BE IMPLEMENTED CONSISTENT
 WITH THE FOLLOWING MERIT
 
    SYSTEM PRINCIPLES:
 
    (1) RECRUITMENT SHOULD BE FROM QUALIFIED INDIVIDUALS FROM APPROPRIATE
 SOURCES IN AN
 
    ENDEAVOR TO ACHIEVE WORK FORCE FROM ALL SEGMENTS OF SOCIETY, AND
 SELECTION AND ADVANCEMENT
 
    SHOULD BE DETERMINED SOLELY ON THE BASIS OF RELATIVE ABILITY,
 KNOWLEDGE, AND SKILLS, AFTER
 
    FAIR AND OPEN COMPETITION WHICH ASSURES THAT ALL RECEIVE EQUAL
 OPPORTUNITY.
 
    IN RESPECT TO SECTION 2301, IT IS NOTED THAT THE JOINT EXPLANATORY
 STATEMENT OF THE COMMITTEE ON CONFERENCE CONTAINED IN THE CONFERENCE
 REPORT THAT ACCOMPANIED THE VERSION OF THE BILL WHICH WAS ENACTED AND
 SIGNED INTO LAW STATED AS FOLLOWS (AT 128 OF THE REPORT):
 
    UNLESS A LAW, RULE OR REGULATION IMPLEMENTING OR DIRECTLY CONCERNING
 THE PRINCIPLES IS
 
    VIOLATED (AS UNDER SECTION 2302(B)(11)), THE PRINCIPLES THEMSELVES
 MAY NOT BE MADE THE BASIS
 
    OF A LEGAL ACTION BY AN EMPLOYEE OR AN AGENCY.
 
    S. REP. NO. 95-1272, 95TH CONG., 2D. SESS. 158 (1978).
 
    IN THE PRESENT CASE, HOWEVER, NOTHING EITHER IN THE EXPRESS LANGUAGE
 OF THE PROPOSAL OR IN THE RECORD OF THE CASE AS TO THE INTENDED MEANING
 OF THE LANGUAGE WOULD REQUIRE THE PROPOSAL, IF ADOPTED, TO BE
 IMPLEMENTED AND APPLIED IN A DISCRIMINATORY OR ANY OTHER MANNER
 INCONSISTENT WITH SECTION 2301(B)(1).  ACCORDINGLY, THERE IS NO BASIS
 UPON WHICH TO SUSTAIN THE AGENCY CONTENTION TO THE CONTRARY AND IT MUST
 BE SET ASIDE.
 
    FINALLY, AS TO THE AGENCY CONTENTION THAT THE PROPOSAL WOULD VIOLATE
 THE "REVISED MERIT PROMOTION POLICY" CONTAINED IN FEDERAL PERSONNEL
 MANUAL (FPM) LETTER 335-12 (DEC. 29, 1978, THE CONTENTS OF WHICH WERE
 PUBLISHED IN FPM CHAPTER 335, (MAY 16, 1979), THE FPM PROVISIONS RELIED
 UPON BY THE AGENCY, APPLY ONLY TO THE COMPETITIVE SERVICE.  /8/ THE
 PROPOSAL IN DISPUTE, HOWEVER, EXPRESSLY APPLIES ONLY TO POSITIONS IN THE
 EXCEPTED SERVICE.  HENCE, THE FPM PROVISIONS RELIED UPON ARE
 INAPPLICABLE AND MAY NOT STAND AS A BAR TO NEGOTIATIONS ON THE DISPUTED
 PROPOSAL IN THE PRESENT CASE.
 
    ISSUED, WASHINGTON, D.C., AUGUST 25, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN ITS STATEMENT OF POSITION THE AGENCY, PURSUANT TO 5 U.S.C.
 7117(C)(3)(A)(I) OF THE STATUTE, WITHDREW ITS ALLEGATION OF
 NONNEGOTIABILITY AS TO SECTION (A) OF THE PROPOSAL.  SECTION (B) REMAINS
 IN DISPUTE, HOWEVER, AND IS THE SUBJECT OF THIS DECISION.
 
    /2/ IN SO DECIDING THAT THE DISPUTED PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /3/ 5 U.S.C. 7106(A)(2)(C)
 
    /4/ UNION RESPONSE TO AGENCY STATEMENT OF POSITION, AT 3.
 
    /5/ CF. NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE
 SERVICE, 2 FLRA NO. 33 (1980).
 
    /6/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES:
 
    SEC. 7106.  MANAGEMENT RIGHTS.
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   .          .          .          .
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION . . . .
 
    /7/ 5 U.S.C. 2301(B)(1).
 
    /8/ 5 C.F.R. 210.101(B)(1979).