American Federation of Government Employees, Local 909, AFL-CIO (Union) and Department of the Army, Headquarters, Military Traffic Management Command, Washington, DC (Agency) 

 

 6 FLRA No. 96
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 909
 Union
 
 and
 
 DEPARTMENT OF THE ARMY, HEADQUARTERS,
 MILITARY TRAFFIC MANAGEMENT COMMAND,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-272
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
 PURSUANT TO SECTION 7105(A)(2)(D) AND (E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).  THE ISSUE PRESENTED
 IS THE NEGOTIABILITY OF THE UNDERSCORED PORTION OF THE FOLLOWING
 PROPOSAL:
 
                              UNION PROPOSAL
 
    SECTION 1.  THE EMPLOYER AGREES TO FOLLOW APPLICABLE PROVISIONS IN
 THE PUBLISHED MERIT
 
    PROMOTION AND INTERNAL PLACEMENT PLAN (SECTION VII, CHAPTER 3, OF THE
 HQMTC STAFF REGULATION,
 
    DATED . . . ) FOR PROMOTIONS, REASSIGNMENTS AND DETAILS IN EXCESS OF
 120 DAYS, TRANSFERS,
 
    REINSTATEMENTS, AND APPOINTMENTS FROM OPM REGISTERS TO POSITIONS OF
 HIGHER GRADE OR POSITIONS
 
    WITH KNOWN PROMOTIONAL POTENTIAL.  THE PLAN DOES NOT APPLY TO
 MANDATORY PLACEMENT ACTIONS
 
    REQUIRED IN CONNECTION WITH REDUCTION-IN-FORCE;  STATUTORY,
 REGULATORY, OR ADMINISTRATIVE
 
    REEMPLOYMENT OR RESTORATION RIGHTS;  OVERSEAS INTERCHANGE PROGRAM;
 AND OTHER PLACEMENT ACTIONS
 
    REQUIRED BY LAW OR GOVERNMENT-WIDE REGULATIONS.  ALL POSITIONS IN THE
 BARGAINING UNIT,
 
    IRRESPECTIVE OF GRADE AND SERIES, AND THRESHOLD SUPERVISORY POSITIONS
 WILL BE FILLED UNDER THE
 
    LOCAL HQMTMC MERIT PROMOTION AND INTERNAL PLACEMENT PLAN AND WILL USE
 A NEGOTIATED PROCEDURE
 
    FOR RATING, RANKING, AND EVALUATING CANDIDATES FOR REFERRAL.  THE
 PROCEDURE USED TO RATE,
 
    RANK, AND EVALUATE CANDIDATES WILL BE PROVIDED TO AN EMPLOYEE UPON
 REQUEST.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER, AS ALLEGED BY THE AGENCY, THE UNION'S
 PROPOSAL IS INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (C) OF THE
 STATUTE;  /1/ CONFLICTS WITH AN AGENCY REGULATION FOR WHICH THERE IS A
 COMPELLING NEED;  AND/OR IS OUTSIDE THE DUTY TO BARGAIN TO THE EXTENT
 THAT IT APPLIES TO "THRESHOLD SUPERVISORY POSITIONS."
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL IS NOT INCONSISTENT WITH SECTION
 7106(A)(2)(A) AND (C) OF THE STATUTE OR THE AGENCY'S REGULATION AND, TO
 THE EXTENT IT CONCERNS PROCEDURES FOR FILLING BARGAINING UNIT POSITIONS,
 THE PROPOSAL FALLS WITHIN THE AMBIT OF SECTION 7106(B)(2) AND IS WITHIN
 THE DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, IT
 IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO
 BY THE PARTIES) BARGAIN IN THIS REGARD CONCERNING THE PROPOSAL.  /2/ TO
 THE EXTENT, HOWEVER, THAT THE PROPOSAL PERTAINS TO THE FILLING OF
 POSITIONS OUTSIDE THE BARGAINING UNIT, I.E., "THRESHOLD SUPERVISORY
 POSITIONS," IT IS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY AND THE
 AGENCY HAS DECLINED TO NEGOTIATE.  ACCORDINGLY, IT IS ORDERED THAT THE
 UNION'S PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED TO THIS
 EXTENT.
 
    REASONS:  THE AUTHORITY WILL ADDRESS FIRST THE AGENCY'S CONTENTION
 THAT THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT COVERS
 NON-BARGAINING UNIT, I.E., SUPERVISORY, POSITIONS.  THIS CONTENTION MUST
 BE SUSTAINED.  THE AUTHORITY HAS PREVIOUSLY HELD THAT PROPOSALS WHICH
 PERTAIN TO THE FILLING OF NON-BARGAINING UNIT POSITIONS DO NOT RELATE TO
 CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES AND, HENCE, ARE
 NOT WITHIN THE REQUIRED SCOPE OF BARGAINING;  RATHER, THEY ARE
 NEGOTIABLE SOLELY AT THE ELECTION OF THE AGENCY.  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2 AND DEPARTMENT OF THE ARMY,
 MILITARY DISTRICT OF WASHINGTON, 4 FLRA NO. 60 (1980);  HAWAII FEDERAL
 EMPLOYEES METAL TRADES COUNCIL, AFL-CIO AND DEPARTMENT OF THE NAVY, NAVY
 PUBLIC WORKS CENTER, PEARL HARBOR, HAWAII, 4 FLRA NO. 3(1980);
 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND PHILADELPHIA
 NAVAL SHIPYARD, 3 FLRA NO.  66(1980).  SINCE THE AGENCY HAS ELECTED NOT
 TO BARGAIN ON THE PROPOSAL AS IT RELATES TO THE FILLING OF THRESHOLD
 SUPERVISORY POSITIONS, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT
 WITHIN THE DUTY TO BARGAIN IS, TO THAT EXTENT, SUSTAINED.
 
    THE AGENCY FURTHER CONTENDS THAT THE BALANCE OF THE DISPUTED PORTION
 OF THE UNION'S PROPOSAL WOULD REQUIRE THAT ALL BARGAINING UNIT POSITIONS
 BE FILLED AND "BY ONLY ONE MEANS-- PROMOTION-- AND THROUGH ONLY ONE
 SOURCE-- THE LOCAL MERIT PROMOTION PLAN." THUS, THE AGENCY CONCLUDES
 THAT THE PROPOSAL WOULD UNDULY RESTRICT ITS RIGHT TO HIRE AND ASSIGN
 EMPLOYEES UNDER SECTION 7106(A)(2)(A) AND ITS RIGHT TO FILL POSITIONS
 AND TO MAKE SELECTIONS FROM AMONG PROPERLY RANKED AND CERTIFIED
 CANDIDATES FOR PROMOTION OR FROM ANY OTHER APPROPRIATE SOURCE WITHIN THE
 MEANING OF SECTION 7106(A)(2)(C).
 
    IN RESPONSE, THE UNION ASSERTS THAT ITS PROPOSAL WOULD NOT PREVENT
 MANAGEMENT FROM ACTING IN ACCORDANCE WITH ITS RIGHTS UNDER SECTIONS
 7106(A)(2)(A) OR 7106(A)(2)(C), BUT WOULD REQUIRE ONLY THAT IF AND WHEN
 THE AGENCY DECIDES TO HIRE OR FILL POSITIONS, IT MUST DO SO IN
 ACCORDANCE WITH AN ESTABLISHED PROCEDURE.  ACCORDINGLY, THE UNION
 CONTENDS, INTER ALIA, THAT ITS PROPOSAL CONSISTS OF NEGOTIABLE
 PROCEDURES WITHIN THE MEANING OF SECTION 7106(B)(2) OF THE STATUTE.  /3/
 WE AGREE WITH THE UNION.
 
    THE RECORD INDICATES THAT THE MERIT PROMOTION AND INTERNAL PLACEMENT
 PLAN (THE PLAN) REFERRED TO IN THE UNION'S PROPOSAL COVERS POSITIONS IN
 THE COMPETITIVE SERVICE AT HEADQUARTERS, MILITARY TRAFFIC MANAGEMENT
 COMMAND AND WAS DESIGNED TO "PROVIDE A SYSTEMATIC AND EQUITABLE BASIS
 FOR FILLING CIVILIAN POSITIONS";  TOWARD THIS END, IT OUTLINES A
 COMPETITIVE PROCEDURE TO BE UTILIZED WHEN VARIOUS PLACEMENT AND
 PROMOTION ACTIONS ARE UNDERTAKEN.  /4/ AT THE SAME TIME, THE PLAN
 SPECIFICALLY EXCLUDES FROM ITS COVERAGE OTHER TYPES OF PLACEMENT ACTIONS
 AS WELL AS CERTAIN POSITIONS WITHIN THE COMPETITIVE SERVICE.
 
    IN THE PART OF THE PROPOSAL AT ISSUE, THE UNION SEEKS TO APPLY THE
 COMPETITIVE PROCEDURE OUTLINED IN THE PLAN TO THE FILLING OF BARGAINING
 UNIT POSITIONS ONCE THE AGENCY HAS DETERMINED TO FILL A UNIT POSITION
 THROUGH PROMOTION, REASSIGNMENT, DETAIL IN EXCESS OF 120 DAYS, TRANSFER,
 REINSTATEMENT, OR APPOINTMENT FROM AN OFFICE OF PERSONNEL MANAGEMENT
 REGISTER TO A POSITION OF A HIGHER GRADE OR WITH KNOWN PROMOTION
 POTENTIAL.  CONTRARY TO THE AGENCY'S CHARACTERIZATION, NOTHING CONTAINED
 IN THIS PROPOSAL WOULD REQUIRE THE AGENCY TO FILL ALL UNIT POSITIONS,
 /5/ NOR WOULD THE PROPOSAL COMPEL A SELECTION ONLY ON THE BASIS THAT IT
 WOULD CONSTITUTE A PROMOTION.  RATHER, CONSISTENT WITH THE UNION'S
 STATED INTENT, THE PROPOSAL ON ITS FACE WOULD SIMPLY REQUIRE THE AGENCY
 TO UTILIZE THE COMPETITIVE PROCEDURE OUTLINED IN THE PLAN IF THE AGENCY
 DECIDES TO FILL A BARGAINING UNIT POSITION THROUGH ANY OF THE ACTIONS
 SPECIFIED IN THE PROPOSAL.  WHILE THE PROPOSAL WOULD REQUIRE MANAGEMENT
 TO USE COMPETITIVE PROCEDURES UNDER THE PLAN IN FILLING UNIT POSITIONS,
 THIS REQUIREMENT IN AND OF ITSELF IS NOT INCONSISTENT WITH THE AGENCY'S
 RIGHTS UNDER THE STATUTE SINCE THE PLAN PROVIDES FOR CONSIDERATION OF
 CANDIDATES FROM OTHER APPROPRIATE SOURCES OUTSIDE THE MINIMUM AREA OF
 CONSIDERATION ESTABLISHED BY THE PLAN.  SEE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA NO. 77(1980) (AT PAGE 10),
 WHEREIN THE AUTHORITY SAID THAT:
 
    (C)OMPETITIVE PROCEDURES RESERVE THE AGENCY'S RIGHT TO SELECT THE
 EMPLOYEE FOR PROMOTION OR ASSIGNMENT FROM AMONG THOSE AVAILABLE THROUGH
 ANY APPROPRIATE SOURCE.  /6/
 
    ACCORDINGLY, THE AUTHORITY FINDS THAT THE UNION'S PROPOSAL, AS IT
 APPLIES TO BARGAINING UNIT POSITIONS, DOES NOT CONFLICT WITH THE
 AGENCY'S RIGHT TO HIRE AND ASSIGN EMPLOYEES OR TO FILL POSITIONS FROM
 ANY APPROPRIATE SOURCE WITHIN THE MEANING OF SECTIONS 7106(A)(2)(A) AND
 7106(A)(2)(C) OF THE STATUTE, RESPECTIVELY.  RATHER THE PROPOSAL
 CONCERNS PROCEDURES NEGOTIABLE UNDER SECTION 7106(B)(2) OF THE STATUTE.
 
    THE AGENCY FURTHER ALLEGES THAT THE UNION'S PROPOSAL CONFLICTS WITH
 AN INTERNAL AGENCY REGULATION FOR WHICH THERE IS A COMPELLING NEED.
 SPECIFICALLY, THE AGENCY STATES THAT THERE ARE BARGAINING UNIT POSITIONS
 IN THE DEPARTMENT OF THE ARMY'S (DA) CAREER MANAGEMENT PROGRAM COVERED
 BY DA CIVILIAN PERSONNEL REGULATION (CPR) 950-1, WHICH REGULATION
 ESSENTIALLY CONSTITUTES THE ARMY'S MERIT PLACEMENT PLAN FOR CAREER
 PROGRAM POSITI