39:0872(74)NG - - AFGE Local 738 and Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS - - 1991 FLRAdec NG - - v39 p872



[ v39 p872 ]
39:0872(74)NG
The decision of the Authority follows:


39 FLRA No. 74

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 738

(Union)

and

U.S. DEPARTMENT OF THE ARMY

COMBINED ARMS CENTER AND FORT LEAVENWORTH

FORT LEAVENWORTH, KANSAS

(Agency)

0-NG-1844

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

February 27, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal involves a single proposal. The proposal requires that when there is any change of a position which could be considered a promotion or an upgrade, the selection for the position be made through competitive procedures from among bargaining-unit employees. The Union did not file a response to the Agency's statement of position.

For the reasons discussed below, we find the proposal to be outside the duty to bargain because it directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute.

II. The Proposal

Any change of position which could be considered a promotion or an upgrade of a position will be made through a [sic] competitive procedures from those employees at Fort Leavenworth who are qualified and apply for said position.

III. Background

The proposal would apply to Wage Grade (WG) employees employed in the Agency's Directorate of Engineering and Housing (DEH). In June 1990, management reorganized the DEH. In this reorganization management abolished two wage leader (WL) positions and established two wage supervisory (WS) positions. The Agency filled the two WS positions with the two employees occupying the abolished WL positions. The parties bargained over the impact and implementation of the reorganization. The Agency declared the proposal in dispute nonnegotiable and the Union filed this petition.

IV. Positions of the Parties

A. The Agency

The Agency contends that because the proposal in dispute concerns two supervisory positions that have been filled, the proposal is moot. In this regard, it quotes language from the Union's petition for review and contends that the proposal relates to the filling of the two WS positions created by the reorganization of the DEH. Statement of Position at 2. It further contends that the Union's proposal, "concerning how to fill two supervisory vacancies that already have been filled, must be found to be moot and the union's petition dismissed." Id.

Additionally, the Agency argues that because the proposal relates to the "procedures management will use to fill two supervisory positions" it is negotiable only at the election of the Agency and it has not elected to bargain over this matter. Id. (emphasis in original). The Agency cites Authority precedent as providing that the procedures management uses to fill supervisory positions are not matters affecting the working conditions of bargaining-unit employees and "are negotiable only at the election of the Agency." Id. at 3. For this reason, the Agency contends that under the cited Authority precedent the Union's petition for review should be dismissed because the Agency has not elected to bargain over this matter.

Finally, the Agency contends that the proposal is outside the duty to bargain because it violates management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. In support of this contention, the Agency cites Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA 803, 820-22 (1987)(Proposal 5), rev'd on other grounds sub nom. Colorado Nurses Association v. FLRA., 851 F.2d 1486 (D.C. Cir. 1988), for the proposition that a proposal that limits the sources from which management can make selections to fill vacancies to the promotion or reassignment of present Agency employees directly interferes with management's right to select under section 7106(a)(2)(C) and is outside the duty to bargain. In this case, the Agency contends that the Union's proposal limits to bargaining unit employees the sources from which management can make selections for promotion or an upgrade of a position and that, therefore, it violates management's right to select under section 7106(a)(2)(C).

B. The Union

The Union did not submit a response to the Agency's statement of position.

In its petition for review, the Union contends that the proposal is negotiable because it constitutes a negotiable procedure under section 7106(b)(2) of the Statute. Petition for Review at 1. In this regard, the Union states that the intent of the proposal "was to give all Bargaining Unit employees an equal opportunity for promotions or upgrades." Id. Although the Union acknowledges that the proposal "was intended to apply to two positions being filled by the incumbents," it asserts that the fact that these positions have been filled "has no bearing on the negotiability issue." Id. at 1-2. Rather, the Union contends that this proposal is part of a series of agreements reached with the Agency pertaining to promotions arising from reorganizations. Finally, the Union states that "the agency has already bargained on this proposal and that the Union would like this agreement be [sic] included in all reorganization[s]." Id. at 2.

V. Analysis and Conclusions

We find that the proposal directly interferes with management's right to make selections for promotions or vacancies under section 7106(a)(2)(C) of the Statute and is, therefore, nonnegotiable.

Initially, we reject the Agency's contention that the proposal in dispute was rendered moot by the selection of the two WG supervisors. It is evident from the Union's petition that it intended that this proposal would apply to "all reorganization[s]." Petition for Review at 2. Consequently, we conclude that the Union is correct in its contention that the fact that the Agency filled the two supervisory positions created during the reorganization does not render the proposal moot and that the Union is entitled to a determination as to the negotiability of the proposal in dispute insofar as it could apply to a future reorganization.

The proposal would require the Agency to consider only bargaining-unit employees when filling a "position which could be considered a promotion or an upgrade" in the Agency's DEH. The proposal would, by its express wording, preclude the rating, ranking or consideration of applicants outside the bargaining unit for a vacant position that arises as a result of a reorganization.

In National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886, 888-90 (1990) (Tennessee Air National Guard), we held that proposals 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)." Id. at 888. As we noted in Tennessee Air National Guard, requiring an agency to rank and consider current employees before soliciting or considering outside applications inhibits management's ability to look beyond the agency for potential employees even if management can later solicit and consider the qualifications of other candidates for the position after the completion of the merit placement process for current employees. Id. at 889. See also American Federation of Government Employees, Local 2429 and U.S. Department of the Air Force, Headquarters Space Systems Division, Los Angeles, California, 38 FLRA No. 117 (1991), slip op. at 9. The case before us places a far greater restriction on the Agency than did the proposals at issue in Tennessee Air National Guard. In this case, the express wording of the proposal would preclude management from looking beyond current bargaining unit employees in its selection of an employee to fill a position "which could be considered a promotion or an upgrade." Because the proposal in this case would not allow the Agency to soli