35:0886(93)NG - - NAGE Local R5-165 and Tennessee Air NG - - 1990 FLRAdec NG - - v35 p886



[ v35 p886 ]
35:0886(93)NG
The decision of the Authority follows:


35 FLRA No. 93

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R5-165

(Union)

and

TENNESSEE AIR NATIONAL GUARD

(Agency)

0-NG-1670

DECISION AND ORDER ON NEGOTIABILITY ISSUE

April 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns one proposal regarding the filling of vacant bargaining unit positions. We find that the proposal directly interferes with management's right to make selections for appointments under section 7106(a)(2)(C) of the Statute and, therefore, is not a negotiable procedure.

II. The Proposal

Applicability: SPMOR [Support Personnel Management Office Regulation] 335-1 will be the Merit Placement Plan for all bargaining unit employees, permanent and temporary indefinite, for the duration of this contract except as amended by this article. Where other provisions of the contract conflict with SPMOR 335-1[,] the contract will take precedence. This plan is to provide an effective[,] fair[,] and relatively simple method of selecting technicians for promotion to positions in the Tennessee Air National Guard. This procedure will apply to the filling of all vacant bargaining unit positions.

[According to the Agency, only the underscored portion is in dispute.]

III. Background

The Agency's military support personnel are composed of civilian technicians and military duty personnel (AGRs). The National Guard Bureau specifies the Agency's staffing authorization for technicians and AGRs each fiscal year. Personnel matters involving technicians are controlled by the parties' collective bargaining agreement, applicable Federal personnel manuals supplemented by technician personnel manuals, and Support Personnel Management Office Regulations, including SPMOR 335-1. Personnel matters involving AGRs are controlled by various Air Force and Air National Guard regulations as implemented by Air National Guard Regulation 35-03.

In February 1989, a mediator from the Federal Mediation and Conciliation Service declared that negotiations over the proposal were at an impasse. The record of those negotiations indicates that, at one time, the Agency's practice was to issue joint vacancy announcements that allowed simultaneous consideration of technicians and military personnel (AGRs) for bargaining unit positions. The Union opposed continuation of that procedure. The Union argued that the collective bargaining agreement required the Agency to decide whether a bargaining unit position should be filled by a technician or an AGR prior to advertising the vacancy. Management would then advertise for that group only.

IV. Positions of the Parties

The Agency contends that the disputed portion of the proposal interferes with management's right to make selections for appointments under section 7106(a)(2)(C). The Agency states that it has the choice of filling bargaining unit positions with either a technician or a military person. The Agency argues that, even if management were to decide to fill a position with a military person, the proposal would preclude it from advertising the position vacancy to military personnel until after the merit placement process for technicians has been completed.

The Union contends that the proposal does not: (1) conflict with the Agency's right under section 7106(b)(1) to determine the numbers, types and grades of employees in the Agency; or (2) "prohibit consideration of non-bargaining unit candidates." Petition for Review at 2. The Union claims that the proposal "will simply require that [nonunit candidates] be considered under the merit principle of SPMOR 335-1 and the Merit Promotion Article of the Contract." Id. The Union contends that consequently the proposal is a procedure within the meaning of section 7106(b)(2) of the Statute. The Union did not file a response to the Agency's statement of position.

V. Analysis and Conclusion

The Agency interprets the proposal to mean that "[m]anagement . . . could not advertise the [vacant bargaining unit position] to the military workforce until after the merit placement process was completed and currently employed technicians had been considered." Statement of Position at 2 (emphasis in original). This interpretation of the proposal is not controverted by the Union. Considering the bargaining history of the proposal, which indicates that previous practice permitted management to consider technicians and military personnel concurrently, the Agency's interpretation is not inconsistent with the wording of the proposal. Therefore, for the purpose of this decision, we adopt the Agency's interpretation that the proposal precludes soliciting or considering military personnel for bargaining unit positions until after the merit placement process for technicians has been completed. National Weather Service Employees Organization, MEBA, AFL-CIO and Department of Commerce, National Weather Service, 22 FLRA 492, 494 (1986) (union waived its right to file a response to the agency's contentions; therefore, Authority must accept agency's interpretation of the proposal).

Requiring an agency to rank and consider current employees before soliciting or considering outside applications places a substantive limit on management's right to select employees from any appropriate source under section 7106(a)(2)(C) of the Statute. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819, 822 (D.C. Cir. 1988) (Treasury, BATF) (proposal requiring agency to rank and consider current employees before soliciting or considering outside applications held nonnegotiable), reversing National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 26 FLRA 497 (1987) (Proposal 2). Although such a proposal does not prevent management from considering outside candidates, it does preclude an agency from assessing the "full range of potential candidates" when it makes its initial employment decisions. Id. And, although the agency therefore may not be fully informed, the proposal exerts pressure on the agency to promote bargaining unit employees rather than leave a position unfilled during the time it would take to initiate and complete a search for outside candidates. Accordingly, it directly interferes with section 7106(a)(2)(C). Id.

In contrast, a proposal that would require an agency to give priority consideration to bargaining unit candidates, but would not prevent the concurrent solicitation of other candidates, does not violate management's right to select. See Department of the Treasury v. FLRA, 837 F.2d 1163, 1169-70 (D.C. Cir. 1988), enforcing National Treasury Employees Union and Department of the Treasury, 24 FLRA 494 (1986); National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422, 436-41 (1987) (proposal requiring agency to give first consideration to bargaining unit employees before considering candidates from other sources held to be a negotiable procedure).

Although the Agency in the present case retains the choice of filling bargaining unit positions with either civilian technicians or military personnel, the proposal would preclude management from soliciting or considering military personnel until after the merit placement process for currently employed civilian technicians had been completed. Consequently, if management were to decide to fill a particular bargaining unit position with an AGR, the proposal would require that it first consider eligible civilian technicians. The proposal would not even allow the Agency to process and consider applications from civilian technicians and military personnel concurrently.

In our view, the proposal would have a substantially similar effect to the one held nonnegotiable by the D.C. Circuit in Treasury, BATF, 857 F.2d at 822. Just as the proposal in Treasury, BATF inhibited management's ability to look beyond the agency for potential employees, the proposal in the present case would inhibit management's ability to look beyond civilian technicians to military personnel even if management chose to fill the position with a military individual. Because the proposal would preclude the solicitation of military personnel until after the merit placement process for currently employed civilian technicians had been completed, it would have the same practical consequence described by the court: the Agency would have to make its initial employment decision before being permitted to inform itself of the qualifications of the full range of potential candidates for the position. Id. Based on t