40:0203(21)NG - - AFGE Local 3013 and DOD, NG Bureau, ME Air NG, Augusta, ME - - 1991 FLRAdec NG - - v40 p203



[ v40 p203 ]
40:0203(21)NG
The decision of the Authority follows:


40 FLRA No. 21

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3013

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

MAINE AIR NATIONAL GUARD

AUGUSTA, MAINE

(Agency)

0-NG-1832

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 12, 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 under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of six proposals.

Proposal 1 requires that one certification list, which may or may not include both military and civilian candidates for a vacant position, will be submitted to a selecting official. Proposal 2 allows a selecting official to choose or refrain from choosing any candidate from the certification list referred to in Proposal 1. Proposal 3 requires that all applicants, both military and civilian, be evaluated using identical criteria. Proposal 4 states that the most highly qualified individuals should be selected for vacant positions. Proposal 5 requires the Agency to continue to apply the negotiated placement plan to civilian technicians even though Active Guard and Reserves (AGRs) are now permitted to apply for the same vacant positions. Proposal 6 requires the Agency to decide how a particular vacancy will be filled and to post a single position announcement which comports with that decision.

For the following reasons, we find that Proposals 1, 2, 4, and 5 are negotiable and that Proposals 3 and 6 are nonnegotiable.

II. Background

The dispute in this case resulted from the Agency's decision to implement paragraph 2-5f of Air National Guard Regulation (ANGR) 35-03, issued by the National Guard Bureau on June 1, 1989. Paragraph 2-5f states, in pertinent part, that "[i]n order to enhance career progression, full-time military duty personnel and [civilian] technicians must be considered concurrently for the same Category 2 position." Category 2 positions are positions that may be filled by either civilian technicians or full-time military personnel.

III. Proposals 1 and 2

Proposal 1

One certification list which may or may not be mixed will be submitted to the selecting official.

Proposal 2

[The] Selecting official is free to choose or not to choose any individual from the certification list.

A. Positions of the Parties

The Agency claims that Proposal 1 "provides for the mixing of military applicants with [civilian] technicians on placement or certification lists[.]" Statement of Position at 1. The Agency contends that because Proposal 2 would encompass the selection of military personnel, the Union "is attempting to negotiate military placement policies as opposed to [civilian] technician placement policies which are bargainable under the Statute." Id. (emphasis in original). The Agency argues that Proposals 1 and 2 are nonnegotiable because they encompass military policy and, therefore, do not concern conditions of employment under the Statute.

The Union states that the "intent of [Proposal 1] is to provide reasonable protection for bargaining unit employees in the course of their consideration for selection to vacancies." Reply Brief at 1. The Union contends that Proposal 1 does not require that military and civilian candidates be "mixed" on the certification list but, rather, provides that they may be "mixed" on the list at the discretion of the Agency. The Union notes that the Agency proposed to include both military and civilians on the certification list. The Union asserts that although the list may include both civilian and military candidates, "the [U]nion's proposal is directed only to bargaining unit employees." Id.

The Union contends that Proposal 2 gives the selecting official unfettered discretion to make selections. In other words, the Union claims that the selecting official is free to select or not to select an individual from the certification list. The Union claims that Proposal 2 does not address the selection of military personnel or military placement policies. Further, the Union claims that the Agency "simply misreads the proposal; the proposal addresses the certification list, not the 'mix' of candidates on the list." Reply Brief at 10.

B. Analysis and Conclusions

In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether: (1) the matter pertains to bargaining unit employees; and (2) there is a direct connection between the matter at issue and the work situation or employment relationship of bargaining unit employees. See U.S. Department of the Army, Aviation Systems Command, St. Louis, Missouri and National Federation of Federal Employees, Local 405, 36 FLRA 418, 421-22 (1990); Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986).

The plain language of Proposal 1 requires that one certification list be submitted to a selecting official. The Union states that Proposal 1 is intended to encompass only bargaining unit employees and that the Agency has the discretion to include, but is not required by the proposal to include, military candidates on the certification list. As the Union's statement is consistent with the plain wording of the provision, we adopt it for the purposes of this decision.

Similarly, as plainly worded, Proposal 2 provides only that a selecting official may, or may not, choose any candidate on the certification list. The Union confirms, in this regard, that the certification list in Proposal 2 is "the list referred to in Proposal 1." Reply Brief at 2. Proposal 2 does not refer to military technicians and, as noted above, Proposal 1 would not require the Agency to include military technicians on the certification list.

In our view, Proposals 1 and 2 relate to the rating, ranking and selection of bargaining unit employees for vacant positions. Although the proposals permit the Agency to consider or select military technicians, they do not affect, in any way, the Agency's right to do so. Therefore, as Proposals 1 and 2 relate principally to the rating, ranking, and selection of unit employees, matters which clearly affect working conditions of unit employees, we conclude that the proposals concern conditions of employment of unit employees under the Statute.

The Agency has cited no law, rule or regulation with which the proposals allegedly are inconsistent, and no such inconsistency is apparent to us. Accordingly, we conclude that Proposals 1 and 2 are negotiable.

IV. Proposal 3

All applicants will be evaluated using identical criteria.

A. Positions of the Parties

The Agency alleges that because this proposal "would require that both military and [civilian] technician applicant[s] be evaluated using the same experience factors, qualifications, and other ranking criteria[,]" the proposal would require bargaining over military placement policy. Statement of Position at 1-2. The Agency also asserts that the proposal directly interferes with management's right to assign work by limiting the Agency's discretion to determine the skills and qualifications necessary to perform work.

The Union claims that the intention of the proposal is to "require that all candidates have virtually equal and fair chances to compete." Reply Brief at 11. Further, the Union claims that all positions addressed by the proposal are bargaining unit positions. The Union asserts that the proposal "requires competition on the same general basis so as to ameliorate any advantage to non-unit employees." Id.

B. Analysis and Conclusions

The Authority has consistently held that matters pertaining to the military aspects of civilian technician employment do not concern conditions of employment within the meaning of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 3006 and the Adjutant General, State of Idaho, Boise, Idaho, 34 FLRA 816, 820 (1990). Further, the U.S. Court of Appeals for the District of Columbia Circuit concluded in National Federation of Federal Employees, Local 1623 v. Federal Labor Relations Authority, 852 F.2d 1349, 1353 (D.C. Cir. 1988) (NFFE) that:

The combined effect of the Labor-Management Act and the Technicians Act is to give National Guard technicians a limited right to negotiate over conditions of employment. But that right is circumscribed by the reality that a technician's military status will often impinge on his civilian status and that, when this happens, the needs of the military must prevail.

The court stated, in this regard, that "[a] substantial line of decisions by the Authority holds that matters involving the military status of Guard technicians are 'specifically provided for' by the Technicians Act and thus are not bargainable 'conditions of employment.'" Id. at 1351. The court also stated that "the military enjoys special status and its decisions involving the organization of security forces are especially shielded from outside interference." Id. at 1353.

Proposal 3 would require that military technicians be evaluated for bargaining unit positions under the identical criteria used to evaluate civilian technicians. Unlike the proposal in NFFE, the proposal does not concern the military aspects of civilian technicians employment. Nevertheless, it directly affects and substantively limits the Agency's discretion to establish qualifications for advancement of military technicians and the criteria for promotion or placement of military technicians.

As noted by the court in NFFE, "the military side of the National Guard lies wholly outside of the collective bargaining realm." 852 F.2d at 1353. Insofar as Proposal 3 seeks to establish criteria by which military technicians are evaluated for positions, the proposal encompasses matters solely within the purview of the military. We conclude, therefore, that Proposal 3 does not concern conditions of employment of bargaining unit employees and is nonnegotiable insofar as it applies to evaluation of military technicians. See, for example, Delaware Chapter, Association of Civilian Technicians and Delaware National Guard, 28 FLRA 1030, 1035-36 (1987). In view of our decision, we do not address the Agency's argument that the proposal also is nonnegotiable because it violates management's right to assign work under section 7106(a)(2)(B) of the Statute.

V. Proposal 4

It is recognized that in the interest of effective and efficient government operations that the most highly qualified individuals should be selected for employment.

A. Positions of the Parties

The Agency alleges that the proposal "would mandate via negotiations selection of the most highly qualified person which encompasses military personnel on the certification list[.]" Statement of Position at 2. The Agency claims that the proposal is nonnegotiable because it is an attempt to negotiate over military placement policy.

The Union contends that the "intent of this proposal is to reiterate 5 U.S.C. § 7101, calling for an effective and efficient government." Reply Brief at 11. The Union claims that the proposal is merely a "statement calling for the most fundamental of 'merit principles'. [A]lthough the employees involved in the bargaining unit are not covered under Title 5, U.S.C. or the Federal Personnel Manual, the [A]gency's own regulations mandate that merit principles apply." Id. at 11-12.

The Union also claims that the proposal is an appropriate arrangement, within the meaning of section 7106(b)(3) of the Statute, for employees who are adversely affected by the exercise of management's rights to select from any appropriate source, to determine the methods, means, or technology of accomplishing its work, and to assign work. The Union notes that filling bargaining unit positions with military personnel will reduce the size of its unit, thereby reducing career opportunities for unit employees. The Union contends that the proposal attempts "to show a clear picture so that bargaining unit employees will be aware of the threat to their jobs and future career opportunities." Id. at 13. According to the Union, the proposal's "exposition may influence the employer or higher authorities to modify their policies so that employees in general will have this adverse impact lessened." Id.

B. Analysis and Conclusions

Nothing in Proposal 4, as plainly worded, addresses military technicians or the criteria applicable to the selection of military technicians for positions. Moreover, nothing in the Union's statement of intent supports a conclusion that the Union intends Proposal 4 to apply to the Agency's consideration or selection of military technicians. Accordingly, consistent with our conclusions regarding Proposals 1 and 2, we reject the Agency's contention that the proposal does not affect conditions of employment under the Statute.

Proposal 4, as interpreted by the Union and consistent with its plain wording, constitutes a statement of general policy that the most highly qualified individuals should be selected for vacant positions. The proposal does not, however, require the Agency to select the most highly qualified individuals. The Agency has cited no law, rule, or regulation with which the proposal allegedly is inconsistent, and, as interpreted by the Union, no such inconsistency is apparent to us. Accordingly, we conclude that Proposal 4 is negotiable.

VI. Proposal 5

With the exception that [Civilian] Technicians and AGRs are now allowed to apply for the same position, the existing state merit promotion and placement plan will be followed.

A. Positions of the Parties

The Agency claims that the proposal would require the application of the negotiated placement plan to the filling of jobs with military personnel. The Agency claims that the proposal is nonnegotiable because it encompasses military policy and programs, matters which are not conditions of employment under the Statute.

The Union claims that the "intent of this proposal is to require that the [Agency] comply with the negotiated promotion procedure in the collective bargaining agreement in compliance with 5 U.S.C. § 7116(a)(7)." Reply Brief at 3. The Union notes that at the time the Agency "initiated the discussion on the mixed list, that provision violated the collective bargaining agreement the parties had in effect at the time." Id. at 13. Further, the Union claims that the proposal would continue the use of the negotiated promotion procedure established for civilian technicians and would "allow 'AGR's' and military technicians to also be included." Id. at 14.

B. Analysis and Conclusions

Proposal 5 requires the Agency to follow the existing negotiated promotion and placement plan. The proposal does not specify the positions to which the plan would apply but, consistent with the entire record in this case, we construe the proposal as applying to bargaining unit positions. Moreover, although the Union states that the proposal "allows" military technicians to be included in the negotiated plan, nothing in the proposal or the Union's statement supports a conclusion that the Agency would be required to include such military technicians in the plan. Accordingly, we reject the Agency's argument that Proposal 5 is nonnegotiable because it encompasses placement of military technicians.

The Agency has not cited any law, rule or regulation with which the proposal is allegedly inconsistent and no such inconsistency is apparent to us. We conclude, therefore, that Proposal 5 is negotiable.

VII. Proposal 6

Rationale, General Statement of Purpose and Policy

The Parties agree that the purpose of this agreement is to ensure that the policy of equal opportunity is carried out, to that end the following proposal is submitted:

Management will determine before posting a job announcement, how the position will be filled: [by] excepted civil service, competitive civil service, or by other means.

Once that determination is made a [single] posting will be made. If the vacancy is to be filled by civil service, the state merit promotion plan will be followed.

[Brackets in original.]

A. Positions of the Parties

The Agency claims that Proposal 6 is nonnegotiable because it would require the Agency "to determine how a job was to be filled, i.e., by [a civilian] technician or military personnel before it is announced for fill[ing]." Statement of Position at 2. Further, the Agency claims that the proposal would preclude the Agency from recruiting simultaneously both civilian technicians and AGRs and, thereby, directly interferes with its right to select employees from any appropriate source under section 7106(a)(2)(C) of the Statute.

The Union contends that the proposal is a procedural matter requiring the Agency "to publicize its determination whether the vacancy would be posted by excepted civil service, competitive civil service, or by other means, and then issue the single posting within the bargaining unit." Reply Brief at 15. The Union asserts that the proposal would not prevent the Agency from considering other sources for candidates. Further, the Union alleges that the proposal does not prevent the Agency from posting bargaining unit vacancies both inside and outside the unit.

B. Analysis and Conclusions

With respect to filling positions, management has the right under section 7106(a)(2)(C) of the Statute to make the actual selection or appointment. See U.S. Department of the Treasury, Internal Revenue Service, Louisville District and National Treasury Employees Union, 36 FLRA 375, 385 (1990). Moreover, section 7106(a)(2)(C)(i) and (ii) of the Statute provides that management has the right when filling positions to make a selection from a group of properly ranked and certified candidates or from any other appropriate source. See Pennsylvania National Guard and Association of Civilian Technicians and Pennsylvania National Guard and Association of Civilian Technicians Pennsylvania State Council, 35 FLRA 478, 487-90 (1990).

A proposal requiring an agency to rank and consider a group of candidates from one source before soliciting or considering applicants from another source places a substantive limit on, and directly interferes with, management's right to select employees from any appropriate source under section 7106(a)(2)(C)(ii) of the Statute. See National Association of Government Employees Local R5-165 and Tennessee Air National Guard, 35 FLRA 886, 888 (1990) (Tennessee Air National Guard). A proposal that only would require an agency to give priority consideration to a group of candidates from one source, but would not prevent the concurrent solicitation of candidates from other sources, does not violate management's right to select, however. See id. at 889.

The Union claims that the proposal does not address whether the Agency could post bargaining unit vacancies outside the bargaining unit. According to the Union, "nothing in the proposal could prevent a dual posting, the additional posting taking place outside the bargaining unit." Reply Brief at 15. As plainly worded, however, paragraphs 2 and 3 of Proposal 6 would require the Agency to determine how the vacant position will be filled before posting a single job announcement. Consequently, we find that the Union's claim that nothing in the proposal prevents a dual posting is inconsistent with the plain wording of the proposal. We do not base a negotiability determination on a union's statement of intent that is inconsistent with the language of a proposal. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 38 FLRA 1605, 1609 (1991).

Further, we find that the wording in paragraph 2, "or by other means" does not encompass the Agency's right to determine in advance that it will solicit from all available appropriate sources in filling a position. Rather, once the Agency determined how a vacant position will be filled, the Agency would be limited to soliciting candidates only from the source that is consistent with the Agency's determination. That is, for example, if the Agency determined to fill a vacant position with an excepted civil service person, the proposal would obligate the Agency to solicit only excepted civil service personnel. Similarly, if the Agency determined to fill a vacant position with an AGR, the proposal would obligate the Agency to solicit only AGR personnel. Stated otherwise, Proposal 6 would deprive the Agency of its right concurrently to solicit candidates from all sources available to it. Therefore, Proposal 6 directly interferes with the Agency's right to select under section 7106(a)(2)(C) of the Statute. See, for example, Tennessee Air National Guard. As the Union has not alleged that Proposal 6 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, the proposal is nonnegotiable. In view of our decision, we do not address the Agency's