21:0978(115)NG - NAGE, Local R7-23 and Air Force, HQ 375th ABG (MAC), Scott AFB, Ill. -- 1986 FLRAdec NG
[ v21 p978 ]
The decision of the Authority follows:
21 FLRA No. 115 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23 Union and DEPARTMENT OF THE AIR FORCE, HEADQUARTERS 375th AIR BASE GROUP (MAC), SCOTT AIR FORCE BASE, ILLINOIS Agency Case No. 0-NG-837 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents an issue concerning the negotiability of two Union proposals. II. Union Proposal 1 Ranking Criteria. The screening factors established by the Office of Personnel Management are applied to all competing employees. Employees who meet the eligibility requirements of the Office of Personnel Management are considered to be at least minimally qualified and are eligible to be further evaluated and ranked. The following criteria are applied to the competing employees who meet minimal eligibility requirements: a. Experience: 1/2 point for each two weeks of experience directly related to the position being filled. Directly related experience is that experience gained while doing like or similar jobs as that which is described in the position description of the job being filled. 1/4 point for each two weeks of experience indirectly related to the position being filled. Indirectly related experience is that experience in the same job family or related families. b. Training: 1/4 point for each two weeks of training received which can be directly related to the position being filled. 1/4 point for each two two weeks of training received which can be indirectly related to the position being filled. c. Education: Doctor's Degree Awarded 200 points Master's Degree Awarded 150 points Bachelor's Degree Awarded 100 points Each full year of college (no degree) 20 points Graduate Work 4 points/credit hour ECI Courses (for each 40 hours) 1/2 point d. Awards: A maximum of 2 points is given for awards. Such awards must be directly related to the position being filled. Credit is given only within 1 year of the effective date of the award. e. Supervisor Appraisal: Will only count for 5% additional points based upon a perfect appraisal. Anything less than a perfect appraisal will be prorated. The employees will be ranked in accordance with the total number of points which they have received. Those employees with the most points will be referred to the selecting supervisor in rank order in accordance with the other provisions of this article. (Only the underlined portions of the proposal are in dispute.) A. Positions of the Parties The Agency contends that the proposal violates 5 U.S.C. Section 2301(c), Federal Personnel Manual (FPM) Chapter 335, FPM Supplement Chapter 335, and Agency Regulation (AFR) 40-335 because the Agency must insure that personnel management is based on and embodies the merit system principles. The Union maintains that the intent of the proposal is to rank promotion candidates who meet minimum qualifications of the X-118 and Air Force standards by applying credit for training, education, experience and awards that are relevant to the job being filled along with the supervisor's appraisal. B. Analysis and Conclusion Under existing Authority precedent we find the proposal nonnegotiable for reasons other than those alleged by the Agency. This proposal would prescribe certain abilities and accomplishments for which credit will be given, and the amount of credit, to candidates in the rating process. Essentially, the proposal would establish portions of the Agency's "crediting plan" and has the same effect as the proposal in The Montana Air Chapter of Association of Civilian Technicians and U.S. Department of the Air Force, Montana Air National Guard, 19 FLRA No. 112 (1985). In that case, adopting the decision of the United States Court of Appeals for the District of Columbia Circuit in Department of the Treasury, U.S. Customs Service v. Federal Labor Relations Authority, 762 F.2d 1119 (D.C. Cir. 1985), the Authority held that a proposal which assigned points for crediting plan purposes solely on the basis of seniority was inconsistent with 5 CFR 300.103(a) because it was not derived from a job analysis which linked seniority to success in the particular position(s) in question. /1/ Proposal 1 in this case similarly is not based on a job analysis which demonstrates a connection between performance in a current position and job-related training and success in the position(s) for which candidates are applying. /2/ Thus, for the reasons set forth in the Montana Air National Guard decision, we find that Union Proposal 1 is inconsistent with 5 CFR 300.103(a) and outside the duty to bargain under section 7117(a)(1) of the Statute. /3/ III. Union Proposal 2 That gross negligence continue to be the standard instead of just negligence. A. Positions of the Parties The Agency contends that the proposal violates its rights to determine its internal security practices under section 7106(a)(1) and to determine the methods and means of performing work under section 7106(b)(1) of the Statute. The Union maintains that the proposal establishes the standard of negligence to be used in the Agency's regulation to assess pecuniary liability of employees. The Union therefore contends that the proposal is procedural in nature and negotiable because it does not prevent the Agency from acting at all. B. Analysis and Conclusion Union Proposal 2 would establish the standard to be used in determining whether an employee will be held "pecuniarily liable" for the loss, damage, or destruction of Air Force property. The proposal, therefore, has the same effect as Union Proposal 1 in American Federation of Government Employees, AFL-CIO, Council 214 and Department of the Air Force, Headquarters Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 21 FLRA No. 34 (1986). In that case, relying on our decision in National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, U.S. Army Corps of Engineers, Kansas City, Missouri, 21 FLRA No. 32 (1986), the Authority held that a proposal which established a standard of "gross negligence" directly interfered with management's right to determine its internal security practices under section 7106(a)(1). For the reasons stated in Wright-Patterson Air Force Base and Kansas City District, we find that the proposal in this case likewise directly interferes with management's right to determine its internal security practices and is not within the duty to bargain under section 7106(a)(1) of the Statute. /4/ IV. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., May 23, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) 5 CFR 300.103 reads in pertinent part: Section 300.103 Basic requirements (a) Job analysis. Each employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis to identify: (1) The basic duties and responsibilities; (2) The knowledges, skills, and abilities required to perform the duties and responsibilities; and (3) The factors that are important in evaluating candidates. The job analysis may cover a single position or group of positions, or an occupation or group of occupations, having common characteristics. The Authority has determined that Office of Personnel Management requirements codified at title 5 of the Code of Federal Regulations are Government-wide regulations within the meaning of section 7117(a) of the Statute. Professional Air Traffic Controllers Organization, AFL-CIO and Department of Transportation, Federal Aviation Administration, 4 FLRA 232, 233 (1980). (2) The Court stated in the Customs Service decision, 762 F.2d 1119, 1122-23, as follows: Exclusion of non-job related education and experience is not the same as a job analysis before the measurement scheme is adopted, and cannot reasonably be said to assure the same results. The latter is apparent from the fact that, even as so limited, the proposal establishes the number of points to be awarded for each level of the various factors without any reference to the demands of specific occupations. It requires, for example, that boards grant the same number of points for a (job-related) bachelor's degree in all positions; and that they grant the same number of points for a sustained superior performance award as for a bachelor's degree in all positions. (Emphasis in original.) (3) In view of this conclusion, we find it unnecessary to consider the Agency's additional contentions that the proposal is nonnegotiable becuase it violates 5 U.S.C. Section 2301(c), the FPM, and Air Force Regulation. (4) In view of this conclusion, we find it unnecessary to consider the Agency's additional contention that the proposal is nonnegotiable because it violates management's right to determine the methods and means of performing work under section 7106(b)(1).