45:0052(7)NG - - NFFE Local 1482 and DOD, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, KY - - 1992 FLRAdec NG - - v45 p52



[ v45 p52 ]
45:0052(7)NG
The decision of the Authority follows:


45 FLRA No. 7

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1482

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE MAPPING AGENCY

HYDROGRAPHIC/TOPOGRAPHIC CENTER

LOUISVILLE OFFICE

LOUISVILLE, KENTUCKY

(Agency)

0-NG-1912

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 10, 1992

Before Chairman McKee and Members Talkin and Armendariz.1/

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), and concerns the negotiability of nine proposals relating to the Defense Mapping Agency's (DMA's) Mapping, Charting, and Geodesy (MC&G) Certification Program. The MC&G Certification Program establishes GS-12 Senior positions, including GS-12 Senior Cartographer positions, within components of DMA that implement the program. The MC&G Certification Program had not been implemented at the Hydrographic/Topographic Center, Louisville, Kentucky (Louisville office), the installation involved in this case, at the time the petition for review was filed.

Proposal 1 prescribes how management will inform unit employees that GS-12 Senior Cartographer positions have been established and how employees may apply for those positions. We find that Proposal 1 is a negotiable procedure under section 7106(b)(2) of the Statute.

Proposal 2 requires that a joint labor-management board be established to determine which employees are eligible for the noncompetitive promotions to the GS-12 Senior Cartographer positions. Proposal 2 is nonnegotiable because it directly and excessively interferes with management's right to select from among properly ranked and certified candidates for promotion or from any other appropriate source under section 7106(a)(2)(C) of the Statute.

Proposal 3 requires that the joint labor-management board referred to in Proposal 2 be created before January 2, 1991, and prescribes the composition of the board. Proposal 3 is nonnegotiable because it is moot.

The first paragraph of Proposal 4 provides that the GS-12 Senior Cartographer positions will be in the bargaining unit. This paragraph is nonnegotiable because it is inconsistent with section 7105(a)(2)(A) of the Statute. The second paragraph of Proposal 4 provides that the GS-12 Senior Cartographer positions will not be limited to the cartographer series and that employees in all other GS-11 series in the office will be eligible to apply for, be certified for and receive the GS-12 Senior Cartographer positions. This paragraph directly and excessively interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute and is, therefore, nonnegotiable.

Proposal 5 states the promotion criteria for the GS-12 Senior Cartographer positions. Proposal 5 is nonnegotiable because it directly and excessively interferes with management's right under section 7106(a)(2)(C) of the Statute, when filling vacant positions, to select from among properly ranked and certified candidates for promotion or from any other appropriate source.

Proposal 6 provides that if some but not all of the eligible employees are to receive the noncompetitive promotions to the GS-12 Senior Cartographer positions, then seniority, as determined by employees' service computation dates, will determine which employees will receive the promotions. Proposal 6 directly and excessively interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute and to select employees under section 7106(a)(2)(C) of the Statute and, therefore, is nonnegotiable.

Proposal 7 concerns the effective date of the noncompetitive promotions to GS-12 Senior Cartographer positions. We find that Proposal 7 is not properly before us because the Union has substantively reworded this proposal in its response to the Agency's statement of position and has not obtained an Agency allegation of nonnegotiability as to the modified proposal.

Proposal 8 states that if the Agency implements the Certification Program "without a negotiated agreement over this proposal," the Agency will retroactively promote the employees who would have received the promotions "under the Union proposal" and give them backpay with interest and "[t]he employee[s] who received the promotions under anything but the negotiated conclusion of this proposal will have the promotions cancelled [and] pay back the money retroactively." We conclude that Proposal 8 is nonnegotiable because it requires the Agency to negotiate over proposals that we have found are nonnegotiable.

Proposal 9 requires management to retain all information related to the filling of GS-12 Senior Cartographer positions for 1 year and to allow the Union to have access to that information to review and to copy. We find that Proposal 9 is negotiable because it is consistent with section 7114(b)(4)(C) of the Statute and the Privacy Act.

II. Preliminary Matters

The Agency contends that it has no duty to bargain over the proposal because the subject matter involved is governed by the parties' collective bargaining agreement. According to the Agency, the parties' agreement provides that "in the absence of a management-initiated change in conditions of employment or a change in conditions of employment required by Federal law, the Agency has no obligation to bargain with the Union over any matter during the life of the negotiated agreement." Statement at 3. The Agency argues that inasmuch as "the Agency has not implemented, and did not intend to implement, the MC&G Certification Program" at its Louisville office, "it has no obligation under the provisions of its negotiated agreement with the Union to bargain over the Union's proposals." Id. The Union did not address this contention.

The Agency's contention does not provide a basis for dismissing the petition. Under section 7117(c) of the Statute and Part 2424.1 of the Authority's Regulations, the Authority will consider a petition for review of a negotiability issue where the parties disagree over whether a proposal conflicts with law, rule or regulation. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky, 40 FLRA 902, 903 (1991) (DMAHTC, Louisville, Kentucky). Therefore, under section 2424.1 of our Regulations, when the parties are in dispute as to whether a proposal is inconsistent with law, rule or regulation, that dispute is properly before us.

Moreover, it is well established that where the conditions for review of a negotiability appeal have been met, a union is entitled to a decision from us on whether a disputed proposal is negotiable under the Statute, even though additional issues, including whether an agency is obligated to bargain under the terms of a master agreement, may exist. See American Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983). Consequently, to the extent that issues exist regarding the Agency's duty to bargain on the proposals, such issues should be resolved in other appropriate proceedings. See DMAHTC, Louisville, Kentucky, 40 FLRA at 903; American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984). Accordingly, the claimed existence of threshold duty to bargain questions does not preclude us from determining the negotiability of proposals that are otherwise properly before us.

The dispute in this case concerns whether the proposals are inconsistent with law, rule, or regulation. Consequently, we find that the conditions governing review of negotiability issues, as described in section 2424.1 of our Regulations, have been met and we conclude that the proposals are properly before us.

III. Proposal 1

ANNOUNCEMENT OF SENIOR POSITIONS:

The said positions will be announced by branch meeting or a circulated memo at least 30 calendar days prior to the Certification Board reviewing the employees interested in these positions. The employee will either verbally or in writing indicate their [sic] interest in the positions. A list of the interested employees will be compiled and a copy will be forwarded to the Union. Employees will have 30 days to indicate interest in the position. All the names referred to the Board will be processed and a determination if they are eligible will be made.

A. Positions of the Parties

1. Agency

The Agency argues that Proposal 1 directly interferes with management's rights, under section 7106(a)(1) of the Statute, to determine its organization and, under section 7106(b)(1), to determine the numbers, types and grades of employees or positions assigned to an organizational subdivision, work project, or tour of duty. Specifically, the Agency claims that, "in concert with the other proposals," Proposal 1 "requires the Agency to establish GS-12 Senior Cartographer positions." Statement at 6.

In connection with Proposal 1 and with all of the other proposals, the Agency notes that currently there are no GS-12 Senior Cartographer positions in its Louisville office and states that the proposals would "constitute a plan which would require the Agency to establish new positions in its organization." Id. at 4. In this regard, the Agency contends that none of the disputed proposals constitute negotiable procedures because they directly interfere with the Agency's right under section 7106(a)(1) of the Statute to determine its organization and its right under section 7106(b)(1) of the Statute to determine the numbers, types, and grades of employees. The Agency notes that it has not elected to bargain with the Union over the right to determine the numbers, types, and grades of employees.

Further, the Agency contends that the proposals should not be considered appropriate arrangements under section 7106(b)(3) of the Statute because the Union has not shown that the establishment of the MC&G Certification Program was intended as an arrangement. The Agency argues that as it "has not exercised any [s]ection 7106(a) right, or taken any action with respect to Senior Cartographer positions," the Union "has not shown, [or for that matter] even alleged, any adverse impact from management's exercise of its rights." Id. The Agency asserts that even if the Union intended the proposals as arrangements for employees adversely affected by the exercise of a management right, the proposals nevertheless are not appropriate arrangements because the proposals "completely abrogate the Agency's right to determine its organization with respect to Senior Cartographer positions." Id. at 6.

However, the Agency concludes that "Proposal 1 would be a negotiable procedure with respect to bargaining unit positions if the Agency did decide to establish Senior Cartographer positions at [the Louisville office]." Id. at 25.

2. Union

The Union contends that Proposal 1 is intended to ensure that "employees know about the opportunity [to apply for the GS-12 Senior Cartographer positions and] will have an opportunity for consideration [for the positions]." Response at 5. The Union asserts that the proposal "concerns communication and information between management and the employee." Id. The Union claims that because "the proposal would not require management to create these positions and [as] the Agency is not using competitive merit procedures, the proposal can not infringe on management[']s rights." Id. The Union notes that the proposal would not affect whether the GS-11 employees who were promoted to the GS-12 level would have their former positions abolished or retained.

The Union argues that if the proposal is found to interfere with a management right, the proposal is an arrangement "to ensure communication and a reasonable timeframe transpires for the employees to know about the opportunity [to apply for the GS-12 Senior Cartographer positions] and a reasonable amount of time to think [and] prepare any documents that are needed." Id. The Union contends that this arrangement would prevent management from preselecting an employee for promotion. The Union claims that the proposal would ameliorate the adverse effect on unit employees of unannounced promotion opportunities being filled by individuals who were pre-selected, by giving the employees a right to know about the positions and career progression.

The Union states that the intent of its proposal is to negotiate a procedure "to fairly treat employees, replacing management[']s discretion with a negotiated procedure." Petition at 2. The Union states that the effect of the proposals "is to negotiate the procedure which will have a major impact on the unit employees." Response at 4. The Union also states that, if the proposals are found to interfere with the exercise of management's rights, the proposals are intended as arrangements for employees adversely affected by the exercise of those rights. The Union contends that the Agency's general arguments with respect to the proposals "are not relevant because [those arguments are] not based on actual facts related to the implementation procedure of Senior Cartographer positions." Id. at 2.

B. Analysis and Conclusions

We find that Proposal 1 is negotiable.

Proposal 1 prescribes how management will inform unit employees that Senior Cartographer positions have been established and how employees may apply for those positions. In short, the proposal prescribes certain notice and application procedures. The proposal would take effect only if and when management establishes GS-12 Senior Cartographer positions. The Union's claim that the proposal would not require management to establish the positions is consistent with the plain wording of the proposal and we will adopt that interpretation of the proposal.

Proposal 1 merely prescribes notice and application procedures governing the filling of GS-12 Senior Cartographer positions, if and when the GS-12 Senior Cartographer program is initiated at the Louisville office. The proposal does not require that positions be established. We find that Proposal 1 does not directly interfere with management's rights, under section 7106(a)(1) of the Statute, to determine its organization and, under section 7106(b)(1), to determine the numbers, types and grades of employees or positions assigned to an organizational subdivision, work project, or tour of duty. Rather, Proposal 1 establishes negotiable procedures under section 7106(b)(2) of the Statute. See American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, Chula Vista District, San Diego, California, 38 FLRA 244, 248 (1990) (SSA, San Diego); U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Payment Center Locals, Local 1760, 36 FLRA 466, 470-72 (1990).

We note, in reaching this conclusion, that Proposal 1 is silent as to the GS-11 positions from which employees would be promoted to GS-12 Senior Cartographer positions. Consequently, we find that the Union's statement that the proposal would have no effect on those GS-11 positions is consistent with the wording of the proposal. Moreover, because we find that Proposal 1 is negotiable under section 7106(b)(2) of the Statute, we do not address the Union's claim that Proposal 1 is negotiable as an appropriate arrangement under section 7106(b)(3).

Accordingly, we find that Proposal 1 is negotiable.

IV. Proposals 2 and 3

[Proposal 2]

GS-12 SENIOR CARTOGRAPHER BOARD:

A joint labor[-]management Senior Cartographer Board will be established to determine which employees are eligible for the non-competitive promotions to the GS-12 Senior Cartographer positions. [The Board will also determine based on the criteria in this proposal which employees will receive the said promotions.]

(The sentence in brackets was withdrawn by the Union.)

[Proposal 3]

BOARD COMPOSITION

The composition of the joint certification board will be as follows:

The joint board will be created before 02 Jan[uary] 1991. The board will consist of three Union ap[p]ointed and three management appointed positions. The Union will designate one representative to be the Chairperson of the labor side of the committee. If the Employer wishes to place unit employees on the management side of the board, the Union will have to approve such actions. The Employer will either forfeit a fully participating member of their side of the board for each unit employee appointed or select a non-unit employee.

Either the labor or management side may change or substitute members on the board prior to any meeting.

A. Positions of the Parties

1. Agency

In addition to the arguments set forth with respect to Proposal 1, the Agency contends that Proposal 2 abrogates its right to use competitive promotion procedures to select employees and to make selections from other appropriate sources. The Agency argues that Proposal 2 directly interferes with its right under section 7106(a)(2)(C) of the Statute to select from among properly ranked and certified candidates for promotion or any other appropriate sources because it "absolutely restricts the Agency's method of selection to noncompetitive promotions of unit members." Statement at 9. The Agency asserts that under the Statute, it has "the right to use competitive procedures to select employees and to select employees from other appropriate sources such as reemployment priority lists." Id. (footnote omitted).

Further, the Agency argues that the proposals are contrary to a Government-wide regulation, Federal Personnel Manual (FPM) chapter 335, subchapter 1-4, Requirement 4.2/ The Agency claims that "[t]he Statute and [G]overnment-wide regulations give the Agency the right to use competitive procedures to select employees and to select employees from other appropriate sources such as reemployment priority lists." Id.

The Agency states that Proposals 2 and 3 would require the Agency to establish a board consisting of six persons. The Agency notes that the board will determine which employees are eligible for promotions to the GS-12 Senior Cartographer positions. The Agency argues that "[t]he evaluation and comparison of the qualifications of applicants is an integral part of management's exercise of its right to make selections." Id. at 8. Accordingly, the Agency concludes that Proposals 2 and 3 directly interfere with its right to make selections and to fill positions under section 7106(a)(2)(C) of the Statute.

Further, the Agency contends that because Proposals 2 and 3 "interject three bargaining unit employees into the Agency's process for determining the eligibility . . . of  employees for promotion[,] . . . [t]he proposals attempt to assign the work of evaluating . . . employees for promotion to employees chosen by the Union . . . ." Id. at 10. Therefore, the Agency asserts that the proposals abrogate its right to determine which employees should be assigned work and interferes with its rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

2. Union

The Union states that the intent of Proposals 2 and 3 is "to have a joint labor[-]management board perform the functions that the management certification board performed in the other DMA facilities." Response at 6. The Union notes that Proposal 3 addresses problems encountered by past joint labor-management committees. The Union claims that the board's "major purpose . . . is to involve the Union in the process and ensure [good] communication between the parties." Id. The Union claims that the board "is not concerned with merit procedures, competitive procedures, crediting plans, [or] following the FPM or [the Code of Federal Regulations]" and, therefore, the proposals should be found negotiable. Id.

In this regard, the Union argues that Proposal 2 does not conflict with FPM chapter 335, subchapter 1-4, Requirement 4 because the Agency "is not using competitive merit procedures including a crediting plan, position vacancy announcements and a best qualified list." Id. at 7. According to the Union, "[t]he proposal is based on the management determination that the positions are filled non-competitively. The Union proposal does not require this[;] it is in fact what the Agency has determined to do." Id. The Union disputes the Agency's contention that the proposal prevents the Agency from considering reemployment lists because the Union claims that the Agency could "easily" include employees from these lists for consideration if the Agency wished. Id.

The Union asserts that if Proposals 2 and 3 are found to infringe upon a management right, they are intended as an arrangement for "the adverse [e]ffect of management at [the Louisville] office using pre-selection procedures to determine beforehand who will get the non-competitive promotions." Id. The Union claims that the proposals are appropriate arrangements because the Agency must consider giving "employees [the] opportunity to openly [and] fairly be considered for a position versus pre-selection . . . ." Id.

B. Analysis and Conclusions

We find that Proposal 2 directly and excessively interferes with management's right to select from among properly ranked and certified candidates for promotion or from any other appropriate source and conclude that the proposal is nonnegotiable. We will dismiss the petition for review as to Proposal 3 as moot.

Proposal 2 requires the establishment of a joint labor-management certification board that will determine which employees are eligible for noncompetitive promotions to the GS-12 Senior Cartographer positions. Proposal 3 requires that the joint labor-management certification board be established prior to January 2, 1991, and prescribes the composition of the board. The Union explains that the intent of the proposals is that the joint labor-management certification board will "perform the functions that the management certification board performed" in other Agency facilities. Response at 6. The Union also explains that Proposal 2 does not require the Agency to fill the positions noncompetitively, but rather is based on "the management determination that the proposals are filled non-competitively[,]" which "is in fact what the Agency has determined to do." Id. at 7.

We conclude that the Union's explanation of Proposals 2 and 3 is consistent with the wording of the proposals. Interpreted in this manner, Proposal 2 requires management to establish certification boards composed of Union and management representatives that will determine which employees are eligible for any promotions to the GS-12 Senior Cartographer positions that the Agency decides to make noncompetitively.

1. Proposal 2

We find that Proposal 2 is nonnegotiable because, by precluding management from determining which criteria will be used to determine whether an employee is eligible for a GS-12 Senior Cartographer position, it directly and excessively interferes with management's right under section 7106(a)(2)(C) of the Statute, when filling vacant positions, to select from among properly ranked and certified candidates for promotion or from any appropriate source.

At the outset, we note that Proposal 2 does not require the Agency to establish GS-12 Senior Cartographer positions at the Hydrographic/Topographic Center, Louisville, Kentucky, but takes effect only after those positions have been established. For the reasons discussed in our disposition of Proposal 1, we find that Proposal 2 does not directly interfere with management's rights, under section 7106(a)(1), to determine its organization, or under section 7106(b)(1), to determine the numbers, types or grades of employees or positions assigned to an organizational sub-division, work project, or tour of duty. Further, because Proposal 2 does not require the Agency to use noncompetitive procedures to select employees for GS-12 Senior Cartographer positions, the proposal does not directly interfere with management's right to use competitive procedures under section 7106(a)(2)(C) of the Statute.

Finally, we find that FPM chapter 335, subchapter 1-4, Requirement 4 does not apply to this case. As noted above, Proposal 2 applies to the extent that the Agency decides to make the GS-12 Senior Cartographer promotions noncompetitively. Because FPM chapter 335, subchapter 1-4, Requirement 4 applies only when merit promotion procedures are being used, it does not affect the negotiability of Proposal 2 or other proposals in this case that would take effect only if the Agency decides to make the GS-12 Senior Cartographer promotions noncompetitively.

a. The Proposal Directly Interferes with Management's Right under Section 7106(a)(2)(C)

Proposal 2 requires the establishment of a joint labor-management board to determine which employees are eligible for promotion to the GS-12 Senior Cartographer positions. According to the Union, "the board [would] determine which employees met the criteria in the Union Proposal #5. All the board would be doing was checking if an employee has been a GS-11 for a year [and] what the level of the last performance rating was. This does not involve a management[-]determined criteria [sic] since competitive merit procedures are not being used." Response at 6.

Proposal 2 establishes a joint labor-management board to determine which employees are eligible for non-competitive promotion to GS-12 Senior Cartographer positions. The proposal itself does not set forth which eligibility criteria the board will use. However, as noted above, the Union states that the joint labor-management board established under Proposal 2 would determine which employees meet the criteria in Proposal 5 for determining eligibility to become GS-12 Senior Cartographers. As we find below, Proposal 5 directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute because it restricts the eligibility criteria which the Agency may use in determining whether employees are eligible for promotion. By implementing the restrictive eligibility criteria which are established for the GS-12 Senior positions under Proposal 5, the proposal directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute. See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 36 FLRA 28, 31 (1990) (Navy, Cherry Point).

b. Proposal 2 Is Not an Appropriate Arrangement

In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-35 (1986) (Kansas Army National Guard), the Authority established an analytical framework for evaluating proposals intended to constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. Specifically, to determine whether a proposal constitutes an appropriate arrangement, we will examine whether the proposal is: (1) intended to be an arrangement for employees adversely affected by the exercise of a management right; (2) appropriate because it does not excessively interfere with the exercise of management's rights.

Applying that analytical framework to this proposal, we find that Proposal 2 is intended as an arrangement for employees who may be adversely affected by management's selection decisions. According to the Union, the joint labor-management board would ensure fairness for all employees seeking GS-12 Senior Cartographer positions. The Union states that the proposal is intended as an arrangement for the adverse effect of management "using pre-selection procedures to determine beforehand who will get the non-competitive promotions." Response at 7. The Union concludes that the proposal would prevent "management corruption in pre-selection leading to bias and favoritism." Id. We find that the proposal would mitigate the effects of improper management actions in selecting employees to fill the GS-12 Senior Cartographer positions.

However, we find that Proposal 2 does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The benefit to employees is the assurance of fairness in the selection for and promotion to GS-12 Senior Cartographer positions. However, the benefit provided employees under the proposal is obtained by restricting the eligibility criteria which the Agency may use to determine whether employees are eligible for promotion to the GS-12 Senior Cartographer positions. The burden imposed on management's ability to determine the criteria used to decide which employees are eligible outweighs the benefit to employees of guarding against abuse and pre-selection. Because we find that Proposal 2 excessively interferes with management's right to select employees under section 7106(a)(2)(C), we conclude that the proposal is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Therefore, we find that Proposal 2 is nonnegotiable.

As will be more fully discussed in our analysis of Proposal 5, the intent of the Union is to limit the board, established under Proposal 2, to consideration of the criteria proposed under Proposal 5. The restriction on the criteria which management may consider likewise excessively interferes with management's right to select employees under section 7106(a)(2)(C) of the Statute. See Navy, Cherry Point.

Because we have found that Proposal 2 directly and excessively interferes with management's right to select under section 7106(a)(2)(C) of the Statute, we need not address the Agency's contention that it also directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

2. Proposal 3

Proposal 3 requires that the joint labor-management certification board referred to in Proposal 2 be established prior to January 2, 1991. The Union filed its petition for review in this case after January 2, 1991.

The Authority will dismiss a proposal as moot where: (1) the proposal prescribes that an action should take place by a certain date; (2) the date has passed; and (3) the parties have not addressed, and it is not otherwise apparent, how compliance with the date set forth in the proposal could be effected. National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 35 FLRA 7 (1990) (IRS). See also American Federation of Government Employees, Local 12 and U.S. Department of Labor, Washington, D.C., 39 FLRA 1496 (1991) (Department of Labor).

We note that the decision in IRS was issued on March 8, 1990, and stated that it would apply to future cases. The Union's petition for review in this case was filed after the issuance of IRS. Applying IRS to this case, we find that the petition for review as to Proposal 3 must be dismissed as moot. The date for the establishment of the joint labor-management certification board prescribed in Proposal 3 has passed. The parties have not discussed, and it is not otherwise apparent, how compliance with the date established by the proposal could be effected. Moreover, we note that in Department of Labor the union did not request that we sever the portion of the proposal containing the specific date and, therefore, we did not address the remainder of that proposal. Because the Union in this case has not requested that we sever the portion of the proposal containing the specific date, we will not consider the remainder of Proposal 3. See, for example, American Federation of Government Employees, Local 1409 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 747, 750 (1990).

Consequently, in these circumstances, consistent with IRS, we will dismiss the petition for review as to Proposal 3.

V. Proposal 4

BARGAINING UNIT STATUS AND SERIES ELIGIBILITY:

The GS-12 Senior Cartographer positions will be in the bargaining unit.

The GS-12 Senior Cartographer positions will not be limited to the cartographer series. All other GS-11 series in the office will be eligible to apply, be certified for and receive the GS-12 senior positions. This will include, but not be limited to, geographers, foresters, geologists, [and] civil engineers[, electronic technicians, etc.].

(The last phrase in brackets was withdrawn by the Union.)

A. Positions of the Parties

1. Agency

The Agency contends that the first paragraph of Proposal 4 "is an inappropriate method to determine unit status." Statement at 11. The Agency notes that the Authority has held that the unit status of employees is not a matter which is properly resolved through negotiability procedures. Accordingly, the Agency asserts that the first paragraph of the proposal should be dismissed as nonnegotiable.

The Agency contends that the second paragraph of Proposal 4 requires the Agency "to make all GS-11 employees, regardless of their job series, eligible for promotion to a GS-12 Senior Cartographer positions [sic]." Id. Therefore, the Agency asserts that the proposal is inconsistent with FPM chapter 335, subchapter 1-4, Requirement 3, which provides that minimum qualifications standards of positions will be prescribed by the Office of Personnel Management (OPM). The Agency states that the OPM minimum qualifications for positions are contained in the X-118 standards. Accordingly, the Agency concludes that the proposal is nonnegotiable because "it makes all GS-11 employees eligible for GS-12 Senior Cartographer positions irrespective of whether they meet the X-118 standards for promotion to those cartographer positions." Id. at 12.

The Agency argues that because the proposal does not "expressly preserve the Agency's right to determine the qualifying experience for GS-12 Senior Cartographer positions[,]" the proposal interferes with its right under section 7106(a)(2)(A) of the Statute to assign employees. Id. The Agency claims that its right to assign employees "encompasses the discretion to determine the personnel requirements of the work such as the qualifications and skills needed to do the work." Id.

2. Union

The Union addresses the Agency's contentions with respect to the first paragraph of Proposal 4 by stating that "[i]t is unclear whether management will create new positions or will just upgrade current positions of employees . . . ." Response at 8. The Union argues that if the positions are the same, the unit status should be the same. The Union concedes that if the positions change, then a clarification of unit petition may be necessary. The Union notes that, inasmuch as management has determined that the GS-12 Senior Cartographer positions will be neither supervisory nor management positions, they should be included in the unit.

The Union explains that the second paragraph of Proposal 4 resulted after a meeting with management "concerning the reclassification of about 60 employees from foresters, geologists, geographers [and] civil engineers to cartographer." Id. at 9. The Union claims that management informed them that the reclassification was necessary "so that other series could be eligible" for the GS-12 Senior Cartographer positions. Id. The Union notes that it filed an unfair labor practice charge over the Agency's unilateral change.

The Union states that the intent of the proposal is to ensure that, regardless of the outcome of the litigation of the unfair labor practice proceeding, the employees in series other than the cartographer series will still be eligible for the GS-12 senior employees' positions. The Union concludes that, because management has already determined that the other series noted in the proposal meet the X-118 criteria for the cartographer series, the proposal is negotiable.

The Union states that if the proposal is found to infringe upon a management right, the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right. The Union contends that the first paragraph of the proposal is an arrangement to prevent management from "arbitrarily removing the GS-12 Senior Cartographer positions from the [bargaining] unit." Id. The Union argues that, by removing employees from the unit, the Agency precludes employees from having Union representation and access to the negotiated grievance procedure. According to the Union, the second paragraph of the proposal is an arrangement to ensure that, regardless of the outcome of the unfair labor practice proceeding, the employees in series that management has already determined meet the X-118 criteria for the cartographer series would still be eligible for senior positions.

B. Analysis and Conclusions

1. The First Paragraph of Proposal 4

The first paragraph of Proposal 4 provides that the GS-12 Senior Cartographer positions will be included in the bargaining unit. The proposal would determine the unit status of employees in the GS-12 Senior Cartographer positions through collective bargaining. Proposals that seek to negotiate over the bargaining unit status of agency personnel are inconsistent with section 7105(a)(2)(A) of the Statute and are nonnegotiable. See National Federation of Federal Employees, Local 15 and U.S. Department of the Army, Rock Island Arsenal, Illinois, 43 FLRA 1165, 1170-71 (1992) (Rock Island Arsenal). Because the first paragraph of Proposal 4 seeks to determine the bargaining unit status of employees in GS-12 Senior Cartographer positions, the first paragraph of the proposal is inconsistent with section 7105(a)(2)(A) of the Statute and is nonnegotiable.

2. The Second Paragraph of Proposal 4

Under the second paragraph of Proposal 4, the GS-12 Senior Cartographer positions would not be limited to employees in the cartographer series. Rather, employees of all other GS-11 series in the office would also be eligible to apply for, be certified for, and be promoted to the GS-12 Senior Cartographer positions. Essentially, the proposal establishes an eligibility criterion for the GS-12 Senior Cartographer positions by providing that employees of all GS-11 series in the office will be eligible for promotion to the GS-12 Senior Cartographer positions.

The Authority has long held that the determination of the personnel requirements of a position and the qualifications, skills, and job-related individual characteristics needed to do the work is encompassed within management's right to assign employees under section 7106(a)(2)(A) of the Statute. American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 269-73 (1990) (Robins AFB) (proposals, which required agency to reassign volunteers or to use seniority as the criterion for reassignment where management had not determined that the employees were equally qualified for the assignments, directly interfered with management's right to assign employees under section 7106(a)(2)(A) of the Statute and were found nonnegotiable).

The right to assign an employee to a position also includes the discretion to determine whether an employee has the qualifications and skills needed to do the work of the position. See American Federation of Government Employees, AFL-CIO, Local 738 and Department of the Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, 33 FLRA 380, 382 (1988) (proposal precluded management from assessing qualifications of employees to be reassigned to position). The second paragraph of Proposal 4 requires the Agency to consider all GS-11 geographers, foresters, geologists, and civil engineers in the office, as well as other employees in the GS-11 series in the office, as eligible for promotion to the GS-12 Senior Cartographer positions. Because Proposal 4 removes management's discretion to determine which employees meet the eligibility requirements for the GS-12 Senior Cartographer position, the proposal directly interferes with the Agency's exercise of its right to assign employees. Therefore, we conclude that the second paragraph of Proposal 4 directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute.

Proposals that directly interfere with the substantive exercise of a management right are not negotiable as procedures under section 7106(b)(2) of the Statute. SSA, San Diego, 38 FLRA at 248. Because the proposal substantively interferes with management's ability to determine the eligibility of employees for the GS-12 Senior Cartographer positions, we conclude that the second paragraph of Proposal 4 does not constitute a negotiable procedure under section 7106(b)(2) of the Statute.

Applying the analytical framework of Kansas Army National Guard to this portion of the proposal, we find that the second paragraph of Proposal 4 is intended as an arrangement under section 7106(b)(3) of the Statute for employees adversely affected by management's determination of which employees are eligible for the GS-12 Senior Cartographer positions. By ensuring that employees in series other than the cartographer series would be eligible for the GS-12 Senior Cartographer positions, the second paragraph of the proposal would allow employees to be considered for promotion to the GS-12 Senior Cartographer positions when they might not otherwise be eligible for promotion to such a position.

However, we find that the second paragraph of Proposal 4 does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The benefit provided employees under the proposal is obtained by removing management's ability to determine whether GS-11 employees in the office who are not in the cartographer series meet all of the eligibility criteria for the GS-12 Senior Cartographer positions. Under the proposal, management would have to accept as eligible for the GS-12 positions, all GS-11 employees in the office, regardless of the employees' series classification, skills or other qualifications. The burden imposed on management's ability to evaluate accurately and consider the qualifications and skills of employees outside the cartographer series for the GS-12 Senior Cartographer positions outweighs the benefit to employees. Therefore, the second paragraph of Proposal 4 excessively interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. Accordingly, we conclude that the second paragraph of the proposal is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and is, therefore, nonnegotiable.

VI. Proposal 5

PROMOTION CRITERIA:

The criteria for the GS-12 Senior Cartographer positions will be:

1. The employee must have been a GS-11 for one year prior to the effective date of the promotion.

2. The last performance appraisal must have been fully suc[c]essful or better. The last appraisal could be a yearly or out of cycle.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 5 mandates the selection criteria that it must use to promote employees to GS-12 Senior Cartographer positions. Accordingly, the Agency asserts that the proposal directly interferes with its right under section 7106(a)(2)(C) of the Statute to make selections. The Agency also asserts that the proposal is inconsistent with applicable Government-wide regulations, specifically, 5 C.F.R. § 300.103(a) and FPM chapter 335, subchapter 1-4, Requirements 3 and 4.3/

The Agency claims that the intent of the proposal is "somewhat unclear." Statement at 15. The Agency states that if the proposal is intended to establish basic eligibility requirements for promotions to a GS-12 Senior Cartographer position, it is inconsistent with Requirement 3 of subchapter 1-4. However, the Agency states that if the proposal "is an attempt to negotiate the criteria used to promote employees who meet OPM minimum qualifications for the GS-12 Senior Cartographer positions," it is inconsistent with 5 C.F.R. § 300.103(a) and Requirement 4 of subchapter 1-4. Id. at 16. The Agency claims that the proposal "is not based upon any job analysis which demonstrates that its selection criteria are rationally related to the successful performance of the duties of a GS-12 Senior Cartographer position." Id. The Agency argues that Proposal 5 is nonnegotiable because it is not based upon a job analysis as required by OPM regulations.

The Agency notes that the Authority has held that an agency is not required to bargain over the selection criteria in crediting plans because the bargaining interferes with the agency's right to make selections to fill vacancies under section 7106(a)(2)(C). The Agency asserts that Proposal 5 is "analogous to a crediting plan[] because it attempts to establish the standards by which employees will be selected for promotion." Id. at 17. Accordingly, the Agency contends that the proposal is inconsistent with its right under section 7106(a)(2)(C).

2. Union

The Union states that the intent of the first paragraph of Proposal 5 is that "employees meet the X-118 criteria for cartographer and have been [at the] GS-11 [level] for one year." Response at 10. The Union notes that Proposal 5 is also intended to apply to employees in the geographers, foresters, geologists and civil engineers series "now reclassified to cartographer" in Proposal 4. Id. The Union states that the second paragraph of Proposal 5 is directed at management's proposed selection criterion involving consideration of three performance appraisals. The Union contends that because the performance standards that management will use in appraising employees will be "illegal job standards that make ratings at management['s] discretion," the filling of the GS-12 Senior Cartographer positions will be subject to "manipulation." Id.

The Union disputes the Agency's contention that the proposal is contrary to FPM chapter 335, subchapter 1-4. The Union claims that because the Agency has determined that the senior positions will be filled outside of merit procedures, it does not conflict with the FPM. For these same reasons, the Union argues that the proposal is not contrary to 5 C.F.R. § 300.103(a).

The Union asserts that the proposal does not infringe on management's right to make selections under section 7106(a)(2)(C) of the Statute, but is a negotiable procedure under section 7106(b)(2) of the Statute. The Union claims that if the proposal is found to directly interfere with a management right, the proposal is nevertheless negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. According to the Union, the arrangement "is intended for as many employees as possible to be considered for the senior positions." Id. at 11. The Union states that the proposal "would make more employees eligible by setting the minimum qualifications lower." Id.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 5 is nonnegotiable under section 7106(a)(2)(C) of the Statute because it directly and excessively interferes with management's right to select employees for promotion.

a. Proposal 5 Directly Interferes with

Management's Right under Section 7106(a)(2)(C)

Proposal 5 provides that the promotion criteria for the GS-12 Senior Cartographer positions will be the following: (1) the employee must have served at least 1 year at the GS-11 level; and (2) the employee's most recent performance appraisal must have been at least at the "fully successful" level. The proposal specifies that the most recent appraisal need not be the annual performance appraisal but may be an "out of cycle" rating. According to the Union, these criteria will be applied to GS-11 employee applicants in the "other series now reclassified to cartographer in Proposal 4." Response at 10. The Union's statement of intent regarding Proposal 5 is consistent with the plain wording of the proposal. Therefore, we will adopt that interpretation for purposes of this decision.

As noted above, the determination of the personnel requirements of a position--that is, the qualifications, skills, and abilities needed to perform the work of a position--is encompassed within management's right under section 7106(a)(2)(C) to select candidates for a position. See Navy, Cherry Point, 36 FLRA at 31, citing Lowry Air Force Base, Colorado, 11 FLRA at 568. Further, the right to select under section 7106(a)(2)(C) of the Statute necessarily includes the right to determine whether any of the applicants for a position possesses the qualifications, skills, and abilities needed to perform the work of that position. See Navy, Cherry Point, 36 FLRA at 31.

Under Proposal 5, whenever management establishes a GS-12 Senior Cartographer position at the Agency's Louisville office, management would be precluded from establishing any criteria as to employee eligibility for promotion other than those required by Proposal 5. The Agency would be required to use only the two criteria listed in Proposal 5. By establishing the two criteria as the sole criteria for eligibility for promotion to the GS-12 Senior Cartographer positions, the proposal precludes the Agency from establishing additional or different criteria for the positions. Accordingly, the proposal directly interferes with management's right under section 7106(a)(2)(C) of the Statute.

Because Proposal 5 directly interferes with management's right under section 7106(a)(2)(C) of the Statute, it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. SSA, San Diego, 38 FLRA at 248.

b. Proposal 5 Is Not an Appropriate Arrangement

According to the Union, Proposal 5 is intended as an appropriate arrangement for employees adversely affected by the Agency's alleged manipulation of performance standards so that preselected applicants become eligible for selection to the GS-12 Senior Cartographer positions. Applying Kansas Army National Guard, we find that even assuming that Proposal 5 is an arrangement, it is not an appropriate arrangement.

The proposal benefits employees in that any employee who has served at least 1 year at the GS-11 level and whose most recent performance appraisal was at least at the "fully successful" level is eligible for the GS-12 position. However, Proposal 5 places a burden on management by preventing it from using criteria other than the two criteria listed in the proposal for consideration of the applicants. The proposal thereby restricts management's exercise of its right to establish qualification requirements for a position and to evaluate applicants based on those requirements. Because management would be precluded from establishing additional selection criteria, management would, for example, be unable to select only those employees who had received outstanding or exceptional performance ratings rather than those employees who had received "fully successful" ratings. Moreover, management would be unable to distinguish those employees who possessed special experience, award-winning skills, or recognized expertise.

In our view, the burden on management's exercise of its right to select outweighs the benefit to employees. Therefore, we find that Proposal 5 does not constitute an appropriate arrangement because it excessively interferes with management's right to select under section 7106(a)(2)(C) of the Statute, and that Proposal 5 is, therefore, nonnegotiable.

In light of this determination, we need not address the other arguments raised by the Agency.

VII. Proposal 6

SENIORITY IN PROMOTIONS:

If some but not all [of] the eligible employee[s] are to receive the promotions then the number of employees to receive the promotions will be determined by seniority. Seniority will be determined by the employees['] service computation date. If for example only 20 senior positions are to be filled, then the 20 most senior eligible employees will receive the non-competitive promotions.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 6 directly interferes with its rights under section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1-4, Requirement 4 to select from among properly ranked and certified candidates for promotion or any other appropriate sources because the proposal "absolutely restricts the Agency from selecting GS-12 Senior Cartographers by any other means or source than the one specified in Proposal 6." Statement at 18. The Agency argues that, like Proposal 2, Proposal 6 is nonnegotiable because "it abrogates the Agency's right to use competitive promotion procedures and [to] make selections from other appropriate sources." Id. The Agency further contends that the proposal is inconsistent with Requirement 1 of subchapter 1-4 because it "arbitrarily give[s] promotions to unit employees solely on the basis of seniority without any job analysis linking seniority to success as a GS-12 Senior Cartographer." Id.

2. Union

The Union states that the intent of Proposal 6 "is that once the employees who have expressed interest have been determined to meet the minimum qualifications [and] management has made a decision as to the number of positions to be filled, the most senior will get the [GS-12 Senior Cartographer positions]." Response at 12. The Union states that because, under its proposals, the Agency is not using competitive merit procedures, all employees will be considered "equal." Id. The Union further states that Proposal 6 would not be effective if management determines that all eligible employees should receive the promotions.

The Union claims that Proposal 6 is not contrary to the FPM or other regulations because management has elected not to use competitive procedures. In this regard, the Union asserts that Proposal 6 does not use seniority as a relevant job criterion, but "rather uses seniority to break ties among equally qualified employees." Id.

The Union asserts that if Proposal 6 is found to interfere with a management right, it should be found negotiable as an appropriate arrangement to prevent older, more experienced employees from being passed over for promotion to the GS-12 Senior Cartographer positions in favor of less senior, inexperienced employees.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 6 directly and excessively interferes with management's rights to assign employees under section 7106(a)(2)(A) of the Statute and to select employees under section 7106(a)(2)(C) of the Statute and, therefore, is nonnegotiable.

a. Proposal 6 Directly Interferes with Management's Rights under Section 7106(a)(2)(C) of the Statute

Proposal 6 would apply only when the Agency decides to make the GS-12 Senior Cartographer promotions noncompetitively. Proposal 6 provides that if some but not all of the eligible employees are to receive the noncompetitive promotions to the GS-12 Senior Cartographer positions, then seniority, as determined by employees' service computation dates, will determine which employees will receive the promotions. Although the first sentence of Proposal 6 states that "the number" of employees to receive promotions will be determined by seniority, it is clear from the last sentence of the proposal and the Union's Response that seniority is intended to be used to determine which employees will receive the noncompetitive promotions.

The Union explains that the proposal is not intended to establish seniority as a relevant job criterion, but to use seniority as a way of breaking ties among equally qualified employees. The Union states that the intent of Proposal 6 "is that once the employees who have expressed interest have been determined to meet the minimum qualifications . . . the most senior will get the [GS-12 Senior Cartographer positions]." Id. (emphasis added).

In particular, the Union states that, under Proposal 6, "all employees [who have been determined to meet the minimum qualifications] will be considered equal." Id. Under the proposal, therefore, if there are more employees certified as meeting the minimum qualifications than GS-12 Senior Cartographer positions, then the employees with the most seniority will be promoted to the available GS-12 Senior Cartographer positions. The proposal establishes seniority as a tie-breaker among employees who have met the minimum qualifications. In explaining Proposal 5, the Union describes the eligibility criteria prescribed in that proposal as the "minimum qualifications" for the GS-12 Senior Cartographer position. Response at 11. Because the Union intends Proposal 6 to apply to all employees who meet the minimum qualifications and, in explaining Proposal 5, defines "minimum qualifications" as the eligibility criteria prescribed in that proposal, we interpret Proposal 6 as incorporating the meaning of "minimum qualifications" established in Proposal 5.

Because the proposal requires the use of seniority as a tie-breaker among employees who possess the minimum qualifications, the proposal, as worded, would not allow management to use any qualifications in addition to the minimum qualifications in determining the employees who are qualified for the GS-12 Senior Cartographer positions. Under Proposal 6, therefore, as interpreted above, the Agency would be precluded from establishing qualifications, such as employees' knowledge, skills, abilities, and experience, in addition to the eligibility criteria established by Proposal 5 in evaluating the applicants for noncompetitive promotion to GS-12 Senior Cartographer. The proposal would limit management's ability to assess the degree to which the candidates possess the full range of skills needed to perform the work of a GS-12 Senior Cartographer.

The Authority has found negotiable proposals which establish seniority as a tie-breaking procedure for selecting employees for promotion, where management has determined the sources it will consider, and where management has determined which employee-applicants are equally qualified. See, for example, Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 793 (1987) (DODDS)(proposal that required the agency to use seniority as a tie-breaker if management determined that two or more employees were equally qualified and where management had determined to make the selection from one source, found negotiable because it did not interfere with management's right under section 7106(a)(2)(C) of the Statute), aff'd as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988). In sum, management can be required to select the most senior candidate where management is able to determine the source from which it will select and the qualifications needed for the position. Management cannot be required to select the most senior candidate where it is not able either to determine the source or to determine the qualifications.

Moreover, the Authority has consistently held that proposals or provisions that do not preserve management's discretion to select from among best-qualified candidates directly interfere with management's right under section 7106(a)(2)(C) of the Statute. See American Federation of Government Employees, Local 12 and U.S. Department of Labor, 38 FLRA 1573, 1579 (1991). Under section 7106(a)(2)(C), management retains the discretion to determine which applicants are better qualified than other applicants when considering candidates from whom to select when filling a vacancy.

Because Proposal 6 precludes management from establishing qualifications in addition to the minimum qualifications for eligibility established in Proposal 5 and from considering whether and to what extent applicants meet those qualifications when considering candidates for selection to fill a vacancy, Proposal 6 directly interferes with management's right to select employees under section 7106(a)(2)(C) of the Statute. However, we note that Proposal 6 could be revised to preserve not only management's discretion to determine the sources from which it will select among candidates for a vacant position, but also the discretion to determine whether those candidates are equally qualified. If the proposal were revised in that manner, the fact that the proposal required management to select the most senior candidate from among equally qualified candidates would not constitute direct interference with management's right to select under section 7106(a)(2)(C) of the Statute. See DODDS.

The Agency argues that Proposal 6 does not preserve management's discretion to select from other appropriate sources and, likewise, directly interferes with management's rights under section 7106(a)(2)(C). See Department of Agriculture, Food and Nutrition Service and National Treasury Employees Union, 35 FLRA 1154, 1157-59 (1990) However, Proposal 6 would apply only where management has decided to make a noncompetitive promotion. Therefore, the Agency's contentions regarding selection from other appropriate sources under section 7106(a)(2)(C) of the Statute are inapposite.

b. Proposal 6 Is Not an Appropriate Arrangement

According to the Union, Proposal 6 is intended as an appropriate arrangement to prevent older, more experienced employees from being passed over for promotion to the GS-12 Senior Cartographer positions in favor of less senior, inexperienced employees. The proposal would protect senior employees from being passed over by requiring that the most senior eligible employee-applicants be selected for the GS-12 Senior Cartographer promotions. Applying Kansas Army National Guard, we find that Proposal 6 is intended as an arrangement to mitigate the adverse effect of management's right to select candidates for promotion.

The proposal benefits senior employees in that eligible employees with more seniority would receive any promotions that the Agency decides to make non-competitively over eligible employees with less seniority. Proposal 6 places a burden on management by precluding management from establishing qualifications in addition to the minimum qualifications established in Proposal 5, and from assessing employee-applicants' abilities under those additional qualifications to perform the duties of the GS-12 Senior Cartographer position, so as to assess the relative merits of the applicants against the job's requirements. Under Proposal 6, management would not be able to judge whether the applicants are equally qualified based on a full examination of the abilities of all the applicants against the demands of the job. Proposal 6 does not give management

any discretion to make any judgment on the employees' knowledge, skill, ability, and experience relative to each other. In our view, the burden on management's exercise of its rights to assign and to select outweighs the benefit to employees of ensuring that senior employees will be selected. Therefore, we find that Proposal 6 does not constitute an appropriate arrangement because it excessively interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute, and that Proposal 6 is, therefore, nonnegotiable.4/

VIII. Proposal 7

The proposal, as modified by the Union in its response to the Agency's statement of position, reads as follows:

EFFECTIVE DATE:

The non-competitive promotions will be effective the beginning of the next pay period after the decision to promote them has been made.

The original proposal, which the Agency alleged was nonnegotiable, read as follows:

EFFECTIVE DATE:

The non-competitive promotions will be effective the beginning of the next pay period after the board has determined eligibility.

A. Positions of the Parties

1. Agency

The Agency contends that the portion of the original Proposal 7 which sets an effective date for promotions "mandates when the duties of GS-12 Senior Cartographer positions will be performed[,]" and, therefore, is inconsistent with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Further, the Agency contends that "[t]o the extent Proposal 7 limits the Agency to using noncompetitive procedures when selecting employees for promotion," the proposal directly interferes with its right under section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1-4, Requirement 4 to select from among properly ranked and certified candidates for promotion or from any other appropriate sources.

2. Union

The Union states that because it has withdrawn the second sentence of Proposal 2, which permitted the joint certification board to determine which eligible employees would receive promotions to the GS-12 Senior Cartographer positions, it has modified Proposal 7, as set forth above. The Union asserts that the intent of the modified proposal is to establish a procedure for timely implementing employees' increase in salary, once the employees have been selected and begun performing their Senior Cartographer duties. The Union contends that the modified proposal does  not conflict with the FPM and the Agency's use of any appropriate source to select because management has elected not to use competitive procedures to fill the GS-12 Senior Cartographer positions.

The Union states that if the modified proposal is found to interfere with a management right, the proposal is an appropriate arrangement for employees who "perform higher graded work without getting documented experience or [an] increase in pay." Response at 13. The Union claims that the modified proposal would ensure that employees uniformly receive timely payment for promotions. The Union argues that the proposal benefits employees by ensuring that they are treated fairly in pay for the level of work done.

B. Analysis and Conclusions

We conclude that the modified version of Proposal 7 is a substantively different proposal from the original proposal which the Agency alleged was nonnegotiable. Specifically, the proposals contain different conditions governing when a promotion to a GS-12 Senior Cartographer position becomes effective. There is no indication in the record that the Union requested an allegation of nonnegotiability concerning the modified version of Proposal 7. Therefore, the petition for review as to Proposal 7 is not properly before us and will be dismissed without prejudice to the Union's refiling at a later date should it meet the conditions for review. See National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 38 FLRA 263, 269 (1990). Compare Rock Island Arsenal, 43 FLRA 1165, 1167-68.

IX. Proposal 8

RETROACTIVE BACK PAY AND PROMOTIONS:

Should the Employer implement this change without a negotiated agreement over this proposal, the employees who would have received the promotions under the Union proposal will be retroactively promoted with back pay and interest. The employee who received the promotions under anything but the negotiated conclusion of this proposal will have the promotions cancelled, [and] pay back the money retroactively.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 8 is contrary to the Back Pay Act, 5 U.S.C. § 5596, because the proposal requires the Agency to award backpay and interest to employees in situations when the award of backpay is not authorized under the Back Pay Act. The Agency argues that under the MC&G Certification Program, employees compete for promotions to GS-12 Senior Cartographer positions. Accordingly, the Agency claims that, absent illegal discrimination under equal employment opportunity laws, the Back Pay Act "would not apply to the denial of a promotion to GS-12 Senior Cartographer under the MC&G Certification program[] because the Back Pay Act does not apply to employees who are denied competitive promotions." Statement at 21. The Agency notes that a retroactive promotion involves an award of backpay and asserts that, "[t]o the extent that making retroactive promotions under Proposal 8 requires the award of back pay and interest, the proposal is inconsistent with the Back Pay Act . . . ." Id. at 21-22.

The Agency contends that the proposal's requirement that the Agency promote employees who would have received the promotions "under the Union['s] proposal" abrogates its right to make selections for promotions and is, therefore, contrary to its right to make selections to fill positions under section 7106(a)(2)(C) of the Statute. Id. at 21, 22. Further, the Agency contends that the portion of the proposal which requires the Agency to cancel promotions is nonnegotiable because it is contrary to its right to discipline employees under section 7106(a)(2)(A) of the Statute. In this regard, the Agency asserts that the proposal would require it "to reduce the grade of a previously promoted employee, which is an adverse action" under 5 U.S.C. § 7512. 5/ Id. at 22. The Agency claims that the proposal "completely abrogates" its right to determine whether to discipline employees in these circumstances because it "absolutely requires the Agency to take adverse actions against employees" by reducing their grades. Id.

Finally, the Agency contends that the last sentence of the proposal, which requires the Agency to recover money, is nonnegotiable because it is contrary to Federal pay statutes, including 5 U.S.C. § 5332(a), as interpreted by the Comptroller General. The Agency claims that "[t]he Comptroller General has held that an individual who performs the duties of a Federal position in good faith under the color of authority is entitled to retain the compensation paid him as a 'de facto' employee, even though the individual's appointment was defective or improper." Id. at 22-23 (citing 55 Comp. Gen. 109, 111 (1975)).

2. Union

The Union states that Proposal 8 "is a penalty clause [for the Employer] if the Employer determines not to bargain in good faith and implemen[ts the MC&G Certification Program] without negotiating." Petition at 2. In other words, the Union states that the intent of the proposal is to "penalize management . . . if the Agency decides to unilaterally implement the Senior Cartographer positions without bargaining[.]" Response at 13.

The Union asserts that the proposal does not conflict with the Back Pay Act or Comptroller General decisions because management has elected to fill the Senior Cartographer positions non-competitively. Further, the Union contends that the Comptroller General has issued decisions requiring employees who have received overpayments, whether or not the overpayments were due to errors by management, to return the overpayments.

The Union states that if the proposal is determined to interfere with a management right, it is an appropriate arrangement for "a fair [and] equitable procedure [in the selection of employees for GS-12 Senior Cartographer positions] that is just to all unit employees[.]" Id. at 14. The Union asserts that the proposal would ameliorate the adverse affect of the Agency's failure to bargain in good faith and would provide employees with an opportunity to be considered for one of the Senior Cartographer positions, following the Agency's "illegal . . . unilateral implementation" of the MC&G Certification Program. Id.

B. Analysis and Conclusions

Proposal 8 states that if the Agency implements "this change without a negotiated agreement over this proposal," the Agency will retroactively promote the employees who would have received the promotions "under the Union proposal" and give them backpay with interest. Proposal 8 also states that "[t]he employee[s] who received the promotions under anything but the negotiated conclusion of this proposal will have the promotions cancelled [and] pay back the money retroactively."

In our view, it is clear that Proposal 8 is intended to provide a remedy to employees who would have been selected under the Union's other proposals in dispute in this case if the Agency fails to bargain and reach agreement over those proposals. We have determined that several of the Union's proposals are nonnegotiable. Inasmuch as Proposal 8 refers to proposals that we have found are nonnegotiable and would require the Agency to implement those proposals, Proposal 8 is nonnegotiable as well. See American Federation of Government Employees Council 214, AFL-CIO and Department of Defense, Department of the Air Force, Air Force Logistics Command, 30 FLRA 1025, 1029 (1988).

We note that the Union explains that the proposal is intended to provide a remedy for a violation of the statutory duty to bargain by requiring a "status quo settlement" that would "make the unit 'whole'." Response at 13. We found above, however, that, as worded, the proposal would require more than a status quo remedy because it would require management to implement proposals that we have determined to be nonnegotiable. A proposal that would provide, consistent with law, a remedy for the Agency's implementation of the GS-12 Senior Cartographer program without completing bargaining as required by the Statute would, of course, be negotiable. See, for example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration,

National Weather Service, 37 FLRA 392, 402 (1990).

X. Proposal 9

RETENTION AND UNION ACCESS TO INFORMATION:

All information related to this issue will be retained for a period of one year by the Employer. The Union will have access to review or copy the information at any time.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 9 is nonnegotiable because it conflicts with law. Specifically, the Agency contends that the proposal is contrary to the Privacy Act, 5 U.S.C. § 552a, and section 7114(b)(4)(C) of the Statute.

The Agency states that the proposal requires it to give the Union access to all information regarding the MC&G Certification Program. The Agency claims that this information includes information protected by the Privacy Act, such as employees' performance ratings. The Agency asserts that because the proposal prevents the Agency from considering the personal privacy interest of employees, the proposal prevents the Agency from considering the balancing of interests required under the Privacy Act. Therefore, the Agency concludes that the proposal requires the release of information to the Union in violation of the Privacy Act.

Further, the Agency states that because the proposal requires it to "disclose information which management is not obligated by law to provide to the Union[,]" the proposal is inconsistent with section 7114(b)(4)(C) of the Statute. Statement at 24. The Agency argues that the proposal requires it to make a blanket disclosure of all information about the Senior Cartographer positions. The Agency notes that under section 7114(b)(4)(C), an agency is not required to provide a union with data which constitutes guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. The Agency asserts that Proposal 9 is similar to a provision found nonnegotiable by the Authority in National Federation of Federal Employees, Local 1979 and U.S. Forest Service, San Dimas Equipment Development Center, 16 FLRA 369 (1984) (Provision 1) (Forest Service).

2. Union

The Union contends that Proposal 9 is intended to require the Agency "to regularly maintain the information [on the MC&G Certification Program] for a specific period of time [and allow] the Union to have reasonable access to it." Petition at 2. The Union states that the proposal requires Agency maintenance of "the announcement, the list of employees interested, any paperwork provided by the employee(s), [a list of] employees selected, etc." Response at 15.

The Union disputes the Agency's contentions that the proposal violates section 7114(b)(4)(C) or the Privacy Act. The Union notes that it routinely requests the Agency to "sanitize off Privacy Act information" that is not needed. Id. The Union distinguishes its proposal from the provision in U.S. Forest Service relied on by the Agency by stating that the provision in U.S. Forest Service was "so broadly worded to include information barred from disclosure by [section] 7114(b)(4)(C). Our proposal does not require disclosure of this information." Id.

The Union contends that if the proposal is found to interfere with a management right, it is intended as an appropriate arrangement to allow the Union to have access to information regarding the MC&G Certification Program. The Union asserts that being aware of the status of the Certification Program will allow it to perform its duties as exclusive representative more effectively and efficiently. The Union claims that its proposal is an appropriate arrangement because the Union's right to perform its duties as the employees' exclusive representative outweighs any privacy interest that may be connected to the disclosed information.

B. Analysis and Conclusions

We find that Proposal 9 is consistent with law and conclude, therefore, that the proposal is negotiable.

1. Section 7114(b)(4)(C) of the Statute

Proposal 9 requires the Agency to retain "all information" related to the implementation of the GS-12 Senior Cartographer position for 1 year and to allow the Union to review and copy that information. The Union explains that by use of the phrase "all information" it did not intend to include information that concerns management's directions to its representatives regarding collective bargaining on the implementation of those positions. Rather, the Union explains, the proposal is intended to cover only information related to the selection process, that is, "the announcement, the list of employees interested, any paperwork provided by the employee(s), [a list of] employees selected, etc." Response at 15. Because this interpretation is consistent with the wording of the proposal, we will adopt the interpretation for purposes of this decision.

Interpreted in this manner, Proposal 9 does not require the disclosure to the Union of information that constitutes guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute. See National Labor Relations Board, 38 FLRA 506, 518-23 (1990), affirmed in part and vacated as to other matters and remanded sub nom. NLRB v. FLRA, No. 91-1044 (D.C. Cir. Jan. 7, 1992) (NLRB v. FLRA). Consequently, without addressing whether section 7114(b)(4)(C) of the Statute precludes an agency from negotiating the disclosure of information that it could not be required to disclose under that provision, we find that Proposal 9 is consistent with section 7114(b)(4)(C) of the Statute. Moreover, because we find that Proposal 9 is consistent with section 7114(b)(4)(C), we conclude that our holding in Forest Service would not apply to this case.

2. The Privacy Act

The Agency claims that the proposal requires the disclosure of personal information, such as employees' performance ratings, affecting the privacy interests of employees and that the proposal precludes management from considering those interests, and balancing them against the public interest in disclosure, when deciding whether to disclose the information. The Agency asserts, therefore, that the proposal is inconsistent with the Privacy Act.

The Union argues that Proposal 9 is not inconsistent with the Privacy Act. The Union states that it routinely requests the Agency to sanitize documents if disclosure of certain information would violate the Privacy Act. We interpret the Union's statement as an explanation that it intends the proposal to require the Agency to provide the Union with sanitized copies of the information for review and copying if disclosure of unsanitized information would violate the Privacy Act. As so construed, the proposal does not require the disclosure of any information relating to the selection of unit employees for GS-12 Senior Cartographer positions that would be precluded by the Privacy Act. Because the proposal is silent as to whether sanitized or unsanitized information is required, we will interpret the proposal consistent with the Union's statement. Consequently, we find that Proposal 9 requires the Agency to disclose sanitized copies of information relating to the selection process for the GS-12 Senior Cartographer positions if disclosure of unsanitized information would violate the Privacy Act. Interpreted in this manner, we conclude that Proposal 9 does not violate the Privacy Act. See U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1324 (1990).

Accordingly, because Proposal 9 is consistent with law, we find that, under section 7117(a)(1) of the Statute, the proposal is negotiable. Moreover, because the Agency did not allege that Proposal 9 directly interferes with a management right under section 7106 of the Statute, we do not address the Union's claim that the proposal is negotiable under section 7106(b)(3) as an appropriate arrangement.

XI. Order

The petition for review concerning Proposals 2, 3, 4, 5, 6, and 8 is dismissed. The Agency must, upon request or as otherwise agreed to by the parties, bargain on Proposals 1 and 9.6/ The petition for review as it relates to Proposal 7 is dismissed without prejudice to the Union's right to file a negotiability petition as to this proposal if the conditions governing review of negotiability issues are met.

APPENDIX

FPM chapter 335, subchapter 1-4 provides in part:

1-4. MERIT PROMOTION REQUIREMENTS

Requirement 1

Each agency must establish procedures for promoting employees which are based on merit and are available in writing to candidates. Agencies must list appropriate exceptions, including those required by law or regulation . . . . Actions under a promotion plan--whether identification, qualification, evaluation, or selection of candidates--shall be made without regard to political, religious, or labor organization affiliation or nonaffiliation, marital status, race, color, sex, national origin, nondisqualifying physical handicap, or age, and shall be based solely on job-related criteria.

. . . .

Requirement 3

To be eligible for promotion or placement, candidates must meet the minimum qualification standards prescribed by the Office of Personnel Management (OPM). Methods of evaluation for promotion and placement, and selection for training which leads to promotion, must be consistent with instructions in FPM Supplement 335-1. Due weight shall be given to performance appraisals and incentive awards.

Requirement 4

Selection procedures will provide for management's right to select or not select from among a group of best-qualified candidates. They will also provide for management's right to select from other appropriate sources, such as reemployment priority lists, reinstatement, transfer, handicapped, or Veterans Readjustment eligibles or those within reach on an appropriate OPM certificate. In deciding which source or sources to use, agencies have an obligation to determine which is most likely to best meet the agency mission objectives, contribute fresh ideas and new viewpoints, and meet the agency's affirmative action goals.

Section 300.103(a) of title 5 of the Code of Federal Regulations provides the following:

§ 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 a group of positions, or an occupation or group of occupations, having common characteristics.




FOOTNOTES:
(If blank, the decision does not have footnotes.)

1/ Member Talkin's dissenting opinion as to Proposal 6 is set forth below at note 4.

2/ The portions of FPM chapter 335, subchapter 1-4 relied on by the Agency are found in the Appendix to this decision.
3/ The text of 5 C.F.R. § 300.103(a) is found in the Appendix to this decision. As noted above, portions of FPM chapter 335, subchapter 1-4 are also found in the Appendix.

4/ Member Talkin, dissenting as to Proposal 6.

I do not agree that Proposal 6 precludes management from establishing qualifications for eligibility for the GS-12 Senior Cartographer positions. I see nothing in the plain wording of the proposal, which refers only to "eligible" employees, that requires a finding that the minimum qualifications set forth in Proposal 5 must be incorporated into this proposal. Although the Union explains that the proposal is meant to cover all employees who have been determined to meet "minimum qualifications," the Union does not state, as it did with regard to Proposal 2, that eligible employees specifically must meet the criteria established by Proposal 5. In the absence of a direct linkage with the requirements of Proposal 5, there is nothing to indicate that under Proposal 6 management w