23:0569(79)NG - NFFE Local 29 and Kansas City District, Corps of Engineers, Kansas City, MO -- 1986 FLRAdec NG



[ v23 p569 ]
23:0569(79)NG
The decision of the Authority follows:


 23 FLRA No. 79
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 29
 Union
 
 and
 
 KANSAS CITY DISTRICT, CORPS OF 
 ENGINEERS, KANSAS CITY, MISSOURI
 Agency
 
                                            Case No. 0-NG-1050
 
                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 issues
 concerning the negotiability of three Union proposals.  /1/
 
                           II.  Union Proposal 1
 
                                ARTICLE 14
 
          Section 3.  a. It is agreed that the Employer will utilize, to
       the maximum extent possible, the knowledge, skills and ability of
       its employees.  Therefore, consideration will be first given
       bargaining unit employees in the filling of bargaining unit
       positions.  The employer will not solicit applications from
       outside the minimum area of consideration, the Kansas City
       District, or call for an OPM register of candidates if three or
       more highly/best qualified candidates are identified within the
       minimum area of consideration.
 
          b.  If the minimum area of consideration fails to yield at
       least three best qualified candidates or, if after consideration
       is given to best qualified candidates within the bargaining unit,
       the employer may expand the area of consideration to all the
       highly qualified candidates within the bargaining unit, if
       necessary.  After consideration of the highly qualified unit
       employees, the employer may expand the area of consideration to
       other appropriate sources, if necessary.  (Within this proposal,
       only the underscored portion is in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency states that, if both sections (a) and (b) of Union
 Proposal 1 are considered together, the proposal is negotiable under the
 Authority's holding in American Federation of Government Employees,
 AFL-CIO, Local 331 and Veterans Administration Hospital, Perry Point,
 Maryland, 2 FLRA 427 (1980).  However, the Agency contends that, because
 it made no allegation that section (b) of the proposal was outside the
 duty to bargain, the Authority should consider the negotiability of
 section (a) alone.  It argues that section (a) of the proposal violates
 its right to select under section 7106(a)(2)(C) of the Statute in that
 it would prohibit the Agency from expanding the area of consideration or
 selecting from any appropriate source.
 
    The Union contends that both sections (a) and (b) were presented to
 the Agency and that both sections should, therefore, be considered in
 determining the negotiability of Union Proposal 1.  It argues that the
 proposal does not prevent management from expanding the area of
 consideration after first considering unit employees and is within the
 duty to bargain.
 
                        B.  Analysis and Conclusion
 
    The Authority rejects the Agency's contention that only section (a)
 should be considered in determining the negotiability of Union Proposal
 1.  Section (b) of the Union's proposal qualifies the language of
 section (a) -- that is, section (b) provides that the Agency may expand
 the area of consideration to additional sources after first considering
 the sources described in section (a).  We find that the proposal should,
 therefore, be read as a whole.  The Agency's contention that the
 proposal should not be read in its entirety because it declared only
 section (a) of the proposal to be nonnegotiable is without merit.
 
    We find, as conceded by the Agency, that Union Proposal 1 is to the
 same effect as the proposal that the Authority found to be within the
 duty to bargain in the VA Hospital, Perry Point case.  The proposal in
 that case similarly would have required the agency to consider unit
 employees for vacant positions prior to expanding the minimum area of
 consideration.  The Authority held that the proposal in VA Hospital,
 Perry Point did not violate the agency's right to make selections from
 any appropriate source in that it only required the agency to give
 consideration to, but not to select, unit employees for vacant
 positions.  Accordingly, for the reasons set forth more fully in VA
 Hospital, Perry Point, Union Proposal 1 is within the duty to bargain.
 
                       III.  Union Proposals 2 and 3
 
                                ARTICLE 14
 
                            (Union Proposal 2)
 
          Section 4 -- Crediting Plan.
 
          a.  The Employer will establish ad hoc committees for the
       purpose of establishing the levels of knowledge, skills and
       ability (KSAs) for each job element (crediting plan), to be used
       in rating and ranking applicants.  The Union will be notified
       prior to the establishment of such committees and may recommend
       unit employees for membership on the committee.  At a minimum,
       committee members must have occupied a position at a grade
       equivalent to the grade at which the position will be filled and
       must be capable of making an informed decision regarding the job
       elements, criteria and qualifications pertinent to the
       occupational field of the position.
 
          b.  The Crediting Plan will be based solely on job-related
       criteria and must be consistent with the major job elements in the
       performance standards for the position.  The committee will
       establish four levels of rating for each job element of the
       Crediting Plan.  These four levels will be expressed as narrative
       statements of the KSAs necessary to obtain a particular level.
       These levels are as follows:
 
          (1) Outstanding -- candidates KSAs in this element exceed
       expectations to such an extent that it warrants special
       consideration:  4 Points
 
          (2) Superior -- candidates KSAs in this element are clearly
       above that expected of a fully competent employee:  3 Points
 
          (3) Satisfactory -- candidates KSAs in this element are
       expected to be that of a fully competent employee:  2 Points
 
          (4) Marginal -- candidates KSAs in this element are weak but of
       some value:  1 Point
 
          For Wage Grade positions, the Crediting Plans will have an
       additional section for "Basic Eligibility," listing the set of
       approved standard KSA elements in OPM Handbook X-118C and will
       describe both the 2 point (barely acceptable) and 1 point (weak
       but of some value), levels for each element.  (Within this
       proposal, only the underscored portion is in dispute.)
 
                            (Union Proposal 3)
 
          Section 5 -- Candidate Evaluation.
 
          a.  The Employer will rate and rank all bargaining unit
       applicants prior to expanding the area of consideration and/or
       when two or more unit employees apply for a position to be filled.
        The Employer will establish a rating and ranking panel on all
       positions where there are three or more qualified bargaining unit
       applicants.  The Union will be notified prior to the establishment
       of such a panel and may recommend unit employees for membership on
       the panel.  At a minimum, panel members must have occupied a
       position at a grade equivalent to the grade at which the position
       will be filled and must be capable of making an informed decision
       regarding the job elements, criteria and qualifications relative
       to the crediting plan and not be a candidate for the position.
       All materials used by rating and ranking panels shall be sanitized
       of names and social security numbers.
 
          b.  The candidate evaluation will consist of two parts.  The
       first part will be the supervisor's appraisal which will consist
       of a "Task Level Questionnaire", in which the supervisor will
       identify one of the four narrative levels of each job element,
       which closest describes the candidates demonstrated knowledge,
       skill or ability.  The second part of the candidate evaluation
       will be the candidate's questionnaire, in which the candidate will
       provide a narrative description of his/her knowledge, skills, or
       ability for each job element.  The candidate's questionnaire will
       then be compared against the crediting plan for his/her rating on
       each job element.  A mathematical average will be computed for the
       supervisor's questionnaire (SQ), and the candidate's questionnaire
       (CQ);  each will then be placed in the following formula to arrive
       at the candidate's overall rating, ((SQ x .25) + (CQ x .75)) x 25
       equals Overall rating.  To the overall rating points will be
       added, as follows:
 
          DEGREE POINTS
 
          PhD equals 10
 
          MS or MA equals 7
 
          BS or BA equals 5
 
          Associate Degrees equals 2
 
          12-60 Credit Hours equals 1
 
          PERFORMANCE RATING POINTS
 
          Exceptional equals 3
 
          Highly Successful equals 2
 
          Fully Successful equals 1
 
          Candidates and their ratings will be listed on the Selection
       and Referral List in numerical order, with the highest rated
       candidate first and lowest rated candidate last.  In cases where
       two or more candidates have the same numerical rating, the service
       computation date will be used as a tie-break with the most senior
       listed first.  (Within this proposal, only the underscored portion
       is in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends that Union Proposals 2 and 3 would require it to
 negotiate concerning the content of crediting plans in violation of its
 rights under section 7106(a)(2)(B) and (C) of the Statute to determine
 the personnel by which agency operations will be performed and to make
 selections for appointments.  The Agency also incorporates arguments
 made by the Office of Personnel Management (OPM) concerning the
 Authority's decision in National Treasury Employees Union and NTEU
 Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA
 209 (1983), enforcement denied sub nom. U.S. Customs Service, Region II
 v. Federal Labor Relations Authority, 739 F.2d 829 (2d Cir. 1984).  OPM
 contends that bargaining over the content of crediting plans (1)
 violates management's rights to select, assign work, and determine the
 personnel by which agency operations will be conducted;  and (2) is
 inconsistent with various laws and Government-wide regulations,
 including 5 C.F.R. Section 335.103 and Federal Personnel Manual (FPM)
 Supplement 335-1.
 
    The Union contends that Proposals 2 and 3 can be distinguished from
 the proposals in U.S. Customs Service, Region II.  It argues that the
 proposals in that case specifically defined the evaluation criteria and
 measurement tools by which candidates would be ranked but that the
 proposals in dispute here leave those determinations to a
 management-appointed committee.  The Union argues that subsection (b) of
 Proposal 2 here merely states the number of rating levels to be applied
 in judging candidates based on the knowledge, skills, abilities and
 other factors (KSAOs) which the committee has determined to be relevant.
  The Union claims, therefore, that Proposal 2 reserves greater authority
 to the Agency than the proposals in U.S. Customs Service, Region II.  It
 further argues that subsection (b) of Proposal 3 is also distinguishable
 from the proposals in that case because the proposal leaves the bulk of
 the overall rating to the committee's assessment of a candidate's KSAOs
 and a supervisory evaluation -- both management determinations.  It also
 argues that subsection (a) of Proposal 3 is not concerned with the
 content of the Agency's crediting plan at all, and does not prevent
 management from expanding the area of consideration or selecting a
 candidate from any other appropriate source.  Also, the Union disputes
 the arguments contained in the OPM statement.
 
                       B.  Analysis and Conclusions
 
    Union Proposals 2 and 3 concern the process by which the Agency
 evaluates candidates for positions -- that is, the Agency's "crediting
 plan." 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), the Authority adopted 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) and held that a
 proposal which assigned points for crediting plan purposes solely on the
 basis of seniority was inconsistent with 5 C.F.R. Section 300.103(a).
 /2/ The Authority found that section 300.103(a) required that crediting
 plans, like other employment practices, be derived from a job analysis,
 and that the union had not demonstrated that any job analysis had been
 conducted which linked seniority to success in the particular
 position(s) in question.
 
    The Union contends that Proposals 2 and 3 in dispute here are
 different than the type of proposals in Montana Air National Gu