23:0569(79)NG - NFFE Local 29 and Kansas City District, Corps of Engineers, Kansas City, MO -- 1986 FLRAdec NG
[ v23 p569 ]
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 Guard because its proposals allow the Agency to determine the KSAOs relevant to the position. However, while the proposals in dispute here do not define the applicable KSAOs, they do set forth how much weight those KSAOs are to be given in evaluating candidates. For example, subsection (b) of Proposal 2 would apply the same point scale to each KSAO -- that is, under the proposal, each of the KSAOs is presumed to be of equal value in evaluating the candidate under the crediting plan. Additionally, subsection (b) of Proposal 3 would establish the respective weights to be given to the supervisory evaluation and the candidates' responses, and would add additional points to a candidate's overall rating based upon education and performance ratings. Contrary to the Union's contentions, these provisions are not procedures but instead concern the substantive aspects of the Agency's crediting plan. As to subsection (b) of Proposal 2, nothing in the Union's submissions would indicate that its proposed assignment of equal weight to all KSAOs is in any way derived from a job analysis. Additionally, the Union has not demonstrated that subsection (b) of Proposal 3 is based on a job analysis which shows a connection between performance in a current position or degrees held by a candidate and success in the position(s) for which candidates are applying. See National Association of Government Employees, Local R7-23 and Department of the Air Force, Headquarters 375th Air Base Group (MAC), Scott Air Force Base, Illinois, 21 FLRA No. 115 (1986). Accordingly, for the reasons set forth in the Montana Air National Guard decision, subsection (b) of Proposal 2 and subsection (b) of Proposal 3 are inconsistent with 5 C.F.R. Section 300.103(a) and are outside the duty to bargain under section 7117(a)(1) of the Statute. In view of this decision, it is unnecessary for us to decide whether those sections also violate management's rights or are inconsistent with the laws and regulations cited by OPM. The Agency, in its Statement of Position, does not state any specific objection to subsection (a) of Union Proposal 3. Rather, the Agency makes only general objections concerning the content of crediting plans. Subsection (a) of Proposal 3, however, is not concerned with the content of the Agency's crediting plan. Instead, subsection (a) discussed above, would require the Agency to (1) rate and rank bargaining unit applicants prior to expanding the area of consideration for a position and (2) use a panel for the rating and ranking process where there are three or more qualified bargaining unit applicants. The Union states that its proposal is not intended to require the Agency to select a unit employee and does not preclude the Agency from expanding the area of consideration. Union Response at 3-4, 10. We agree with the Union's interpretation and find that, like Union Proposal 1, subsection (a) of Proposal 3 constitutes a procedure which does not directly interfere with the Agency's rights. Additionally, because subsection (a) is not concerned with the content of the Agency's crediting plan, we find that the arguments raised in the OPM statement are inapplicable. Accordingly, we conclude that subsection (a) of Union Proposal 3 is within the duty to bargain. IV. Order Pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning Union Proposal 1 and subsection (a) of Union Proposal 3. /3/ IT IS FURTHER ORDERED that the Union's petition for review as to Union Proposal 2 and as to subsection (b) of Union Proposal 3 be, and it hereby is, dismissed. Issued, Washington, D.C., October 14, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Union withdrew its appeal as to one additional proposal concerning the removal of probationary employees. This proposal will not be considered further here. (2) 5 C.F.R. Section 300.103(a) 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. (3) In finding these proposals within the duty to bargain, the Authority makes no judgment as to their merits.