15:0580(126)NG - AFGE Local 2263 and Air Force, HQ, 1606th Air Base Wing (MAC), Kirtland AFB, NM -- 1984 FLRAdec NG

 15 FLRA No. 126
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2263
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE,
 HEADQUARTERS, 1606TH AIR BASE
 WING (MAC), KIRTLAND AIR FORCE
 BASE, NEW MEXICO
 Agency
 
                                            Case No. O-NG-588
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and presents issues
 concerning the negotiability of five Union proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          ARTICLE 5 - MERIT PROMOTION
 
          Section 2
 
          When filling bargaining unit positions by the promotion method,
       the Employer agrees that the minimum area of consideration
       (Kirtland AFB-wide) plus voluntary applications from other tenant
       organizations will be explored first.  If one or two highly
       qualified candidates are available, the selecting official may
       make the selection from that group or may request that the area be
       extended either MAC-wide or Air Force-wide.  However, no further
       extension of the area of consideration will be made when there are
       at least three highly qualified candidates available, if the
       Employer wishes to fill the position through the Merit Promotion
       Plan.  If less than three highly qualified candidates are
       available within the extended area of consideration, enough
       qualified candidates may be referred to bring the total number of
       candidates to at least five.  All Unit employees will be provided
       bona fide consideration for all vacant positions for which they
       are eligible.  (Only the last sentence of the proposal is not in
       dispute.)
 
    In agreement with the Agency, the Authority finds that Union Proposal
 1 interferes with management's right pursuant to section 7106(a)(2)(C)
 of the Statute to make selections for appointments from a promotion list
 of properly ranked and certified candidates or from any other
 appropriate source.  Specifically, the proposal would foreclose the use
 of the Merit Promotion Plan as a source for selection if management
 declined to make a selection from a list of "at least three highly
 qualified candidates" initially identified through use of the Plan.  In
 this respect, Union Proposal 1 is to the same effect as the Union
 Proposal in American Federation of Government Employees, AFL-CIO, Local
 2494 and Strategic Weapons Facility Pacific, Bremerton, Washington, 7
 FLRA 590 (1982), preventing extension of the area of consideration when
 three or more candidates within the area of consideration were rated
 highly qualified, which the Authority found operated to preclude the
 Agency from exercising its right to select within the meaning of section
 7106(a)(2)(C).  Hence, based on Strategic Weapons Facility Pacific, and
 the reasons and cases cited therein, Union Proposal 1 is not within the
 Agency's duty to bargain.
 
                             Union Proposal 2
 
          ARTICLE 19 EQUAL EMPLOYMENT OPPORTUNITY
 
          Section 1.  The Employer will assure that there is equal
       employment opportunity on all levels and that the full workforce
       is free from discrimination because of race, color, religion, sex
       (including sexual harassment), national origin, age, mental or
       physical handicap, marital status, political affiliation, and
       reprisal, coercion, restraint, interference, because of having
       filed an EEO complaint, grievance, or been a witness or
       representative on an EEO complaint or grievance.  The Employer is
       responsible for promoting equal opportunity through a positive,
       continuing program involving all management policies, programs,
       objectives, practices and personnel.  (The underscored portions of
       the proposal are in dispute.)
 
    The Agency points out that only 2,000 of the 5,500 employees at
 Kirtland Air Force Base are represented by the Union herein.  The Agency
 interprets Union Proposal 2 as seeking to encompass "the full
 workforce," that is, all 5,500 employees, including those not in the
 bargaining unit.  On this basis alone it claims the proposal is outside
 the duty to bargain.  The Union, however, states that the Agency
 misunderstands the proposal which "is not intended to apply to other
 than bargaining unit employees." The Authority finds the Union's
 interpretation of its proposal to be consistent with the express
 language thereof and adopts it for purposes of this decision.
 Accordingly, the Authority finds that Union Proposal 2, is within the
 duty to bargain.  /2/
 
                             Union Proposal 3
 
          In connection with efforts to correct underutilization and
       underrepresentation of minorities and women, the Employer will at
       the minimum:
 
          (a) Identify and provide work opportunities commensurate with
       employee skills and potential at all grade levels and occupational
       series, but with emphasis at the lower levels.
 
    Union Proposal 3 expressly would require management to provide
 employees with opportunities to perform work commensurate with their
 skills and abilities.  The proposal is to the same effect as the
 proposal designated as "the last sentence of Article 10 section 9" in
 National Treasury Employees Union and Department of the Treasury, U.S.
 Customs Service, 9 FLRA 983 (1982) which obligated management to assign
 work which would enable an employee's ability to perform higher grade
 work to be evaluated.  Noting that the proposal could result in an
 arbitrator substituting his or her judgment for that of management with
 respect to the assignment of duties, the Authority concluded that it
 directly interfered with the agency's right, pursuant to section
 7106(a)(2)(B) of the Statute, "to assign work." Consequently, based on
 U.S. Customs Service, and the reasons and cases cited therein, Union
 Proposal 3, herein, is outside the duty to bargain.
 
                             Union Proposal 4
 
          (h) Permit individuals with physical or mental handicaps,
       chronic illness, illnesses or injuries, and single heads of
       households with dependents to use sick or annual leave or LWOP
       (leave without pay) to handle responsibilities for themselves
       and/or dependents.  Supervisors will grant leave in all cases
       where the need is clearly documented on the request for leave,
       without undue pressure to the employee.  (The underscored portion
       of the proposal is in dispute.)
 
    Insofar as the disputed portion of Proposal 4 concerns the granting
 of annual leave (or LWOP in lieu thereof), it leaves management with no
 discretion to deny such requests from employees as long as the
 employee's need is "clearly documented" in the request.  That is, the
 proposal would require that an employee's request be granted without
 regard to the necessity for that employee's service during the period
 covered by the request.