American Federation of Government Employees, Local 2494, AFL-CIO (Union) and Strategic Weapons Facility Pacific, Bremerton, Washington (Agency) 

 



[ v07 p590 ]
07:0590(90)NG
The decision of the Authority follows:


 7 FLRA No. 90
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2494
 Union
 
 and
 
 STRATEGIC WEAPONS FACILITY PACIFIC,
 BREMERTON, WASHINGTON
 Agency
 
                                            Case No. O-NG-38
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THIS PETITION FOR REVIEW COMES BEFORE THE FEDERAL LABOR RELATIONS
 AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
 U.S.C. 7101 ET SEQ.).  THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE
 FOLLOWING PROPOSAL:
 
                              UNION PROPOSAL
 
    PROMOTIONS.  THREE OR MORE NAMES IN THE HIGHLY QUALIFIED CATEGORY
 WILL BE CERTIFIED TO THE SELECTING OFFICIAL FOR CONSIDERATION.  THE
 SELECTION WILL BE MADE FROM THIS CERTIFICATE.  /1/
 
                     QUESTION BEFORE THE AUTHORITY /2/
 
    THE QUESTION IS WHETHER THE DISPUTED PORTION OF THE UNION PROPOSAL IS
 INCONSISTENT WITH THE AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C) OF
 THE STATUTE, /3/ WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS
 FOR APPOINTMENTS, AS ALLEGED BY THE AGENCY.  /4/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE DISPUTED PORTION OF THE UNION PROPOSAL IS
 INCONSISTENT WITH THE AGENCY'S AUTHORITY, WITH RESPECT TO FILLING
 POSITIONS, TO MAKE SELECTIONS FOR APPOINTMENTS UNDER SECTION
 7106(A)(2)(C) OF THE STATUTE AND IS THERFORE NOT WITHIN THE DUTY TO
 BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
 UNION'S PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED.  /5/
 
    REASONS:  THE DISPUTED PORTION OF THE UNION PROPOSAL REQUIRES EITHER
 THAT THE AGENCY MUST MAKE A SELECTION FOR PROMOTION FROM THREE OR MORE
 QUALIFIED CANDIDATES IDENTIFIED BY THE CERTIFICATE OR THAT, IF THE
 AGENCY CHOOSES TO MAKE A SELECTION, IT MUST BE FROM AMONG THE CERTIFIED
 CANDIDATES.  IN EITHER EVENT THE INTENT AND EFFECT OF THE PROPOSAL WOULD
 BE TO PREVENT MANAGEMENT FROM EXPANDING THE AREA OF CONSIDERATION SO
 LONG AS THREE OR MORE NAMES IN THE HIGHLY QUALIFIED CATEGORY ARE
 CERTIFIED TO THE SELECTING OFFICIAL.
 
    IN THIS REGARD THE PROPOSAL BEARS NO MATERIAL DIFFERENCE FROM THOSE
 WHICH WERE BEFORE THE AUTHORITY AND HELD TO BE OUTSIDE THE DUTY TO
 BARGAIN IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1332 AND
 HEADQUARTERS, U.S. ARMY MATERIEL DEVELOPMENT AND READINESS COMMAND,
 ALEXANDRIA, VIRGINIA, 6 FLRA NO. 66(1981), AT 3-5 OF DECISION (ONE
 HIGHLY QUALIFIED UNIT APPLICANT);  NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1451 AND NAVY EXCHANGE, NAVAL ADMINISTRATIVE COMMAND,
 ORLANDO, FLORIDA, 3 FLRA NO. 60(1980) (THREE MINIMALLY QUALIFIED
 INTERNAL APPLICANTS);  THE NATIONAL COUNCIL OF CSA LOCALS, A.F.G.E.,
 AFL-CIO AND THE COMMUNITY SERVICES ADMINISTRATION, 3 FLRA NO. 13(1980),
 RECONSIDERATION DENIED (1981) (FIVE QUALIFIED IN-HOUSE CANDIDATES).  AS
 STATED IN THOSE CASES, A PROPOSAL WHICH WOULD PREVENT MANAGEMENT FROM
 EXPANDING THE AREA OF CONSIDERATION ONCE A CERTAIN NUMBER OF QUALIFIED
 CANDIDATES ARE IDENTIFIED WOULD PREVENT MANAGEMENT FROM MAKING
 SELECTIONS WITHIN THE MEANING OF SECTION 7106(A)(2)(C) OF THE STATUTE.
 
    HENCE, FOR THE REASONS FULLY SET FORTH IN THE CITED DECISIONS, THE
 DISPUTED PORTION OF THE UNION PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 UNDER THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., JANUARY 7, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ ONLY THE UNDERSCORED PORTION OF THE UNION PROPOSAL IS IN DISPUTE.
 
    /2/ IN ITS STATEMENT OF POSITION, THE AGENCY CLAIMS THAT THE APPEAL
 IS MOOT AND/OR UNTIMELY AND REQUESTS THAT THE PETITION FOR REVIEW BE
 DISMISSED.  AS TO MOOTNESS, THE AGENCY ASSERTS THAT THE PARTIES EXECUTED
 AN AGREEMENT COVERING THE GENE