11:0316(66)CA - Navy, Naval Underwater Systems Center, Newport, RI and FUSE / NAGE Local R1- 144 -- 1983 FLRAdec CA



[ v11 p316 ]
11:0316(66)CA
The decision of the Authority follows:


 11 FLRA No. 66
 
 DEPARTMENT OF THE NAVY
 NAVAL UNDERWATER SYSTEMS CENTER,
 NEWPORT, RHODE ISLAND
 Respondent
 
 and
 
 FEDERAL UNION OF SCIENTISTS AND ENGINEERS/
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL R1-144
 Charging Party
 
                                            Case No. 1-CA-355
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record, including the stipulation of
 facts, accompanying exhibits, and the contentions of the parties, the
 Authority finds:
 
    The complaint alleges that the Respondent failed to bargain in good
 faith with the Charging Party (NAGE), in violation of section 7116(a)(1)
 and (5) of the Federal Service Labor-Management Relations Statute (the
 Statute), by unilaterally establishing Equal Employment Opportunity
 (EEO) factors to be used in evaluating eligible employees when filling
 supervisory vacancies, thereby changing existing conditions of
 employment without furnishing NAGE an opportunity to negotiate on the
 impact and implementation thereof.
 
    In May 1976, NAGE was certified as the exclusive representative of
 all professional, nonsupervisory employees at the Respondent's Newport,
 Rhode Island, facility.  There is no collective bargaining agreement in
 effect between the parties.  On February 28, 1980, the Respondent issued
 a memorandum concerning "EEO Factors to be Used When Filling Supervisory
 Vacancies" with an enclosure entitled "Crediting Plans For EEO Factors
 for First, Second and Third Level Supervisor," for distribution to all
 employees.  This memorandum established point scores for EEO experience
 to be used by rating panels when evaluating applicants for such
 supervisory positions.  The Respondent did not notify NAGE of the
 issuance of the aforementioned memo and crediting plans.  On April 15,
 1980, NAGE requested bargaining over the impact and implementation of
 the memo and crediting plans.  The Respondent refused to bargain and
 thereafter implemented the memorandum and crediting plans on June 1,
 1980.
 
    The General Counsel contends that, while the "Respondent was
 obligated to negotiate, on request, the impact and implementation of the
 . . . memorandum only if the memorandum changed conditions of
 employment," /1/ there was such a change in conditions of employment in
 this case.  The Authority disagrees and therefore concludes that the
 refusal to bargain did not constitute a violation of section 7116(a)(1)
 and (5) of the Statute.  Thus, it is well settled that procedures for
 filling supervisory positions are matters outside the duty to bargain
 under the Statute because such procedures by definition concern
 non-bargaining unit positions.  See, e.g., National Federation of
 Federal Employees, Locals 1707, 1737 and 1708 and Headquarters,
 Louisiana Air and Army National Guard, New Orleans, Louisiana, 9 FLRA
 No. 19 (1982) and International Association of Fire Fighters, Local F-61
 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980) at 441.  In the
 instant case, the record reveals that the memorandum and crediting plans
 were designed specifically to facilitate the rating of applicants for
 first, second and third level supervisory positions.  Therefore, and for
 the reasons set forth in the cases cited above, the Respondent had no
 obligation under the Statute to bargain concerning the memorandum and
 crediting plans as such matters do not concern conditions of employment
 of bargaining unit employees within the meaning of section 7103(a)(12)
 of the Statute.  Accordingly, the complaint shall be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 1-CA-355 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., February 10,