47:0765(71)NG - - NFFE Local 33 and Army Corps of Engineers, Galveston, TX - - 1993 FLRAdec NG - - v47 p765



[ v47 p765 ]
47:0765(71)NG
The decision of the Authority follows:


47 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 33

(Union)

and

U.S. DEPARTMENT OF THE ARMY

CORPS OF ENGINEERS

GALVESTON, TEXAS

(Agency)

0-NG-2091

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

May 27, 1993

_____

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). The appeal concerns the negotiability of a proposal that requires the Agency to use competitive promotion procedures in selections involving transfers and reinstatements of job applicants from outside the bargaining unit. For the following reasons, we find that the proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

II. Proposal

Competitive promotion procedures will apply to selections involving transfer or reinstatement of job applicants from outside the bargaining unit.

III. Positions of the Parties

A. The Agency

The Agency interprets the proposal as requiring the use of competitive promotion procedures in filling all unit positions if the applicants are nonunit employees. The Agency states, however, that it does not interpret the proposal as concerning "how employees are placed in a [reduction-in-force] or other mandatory placement of this nature." Statement of Position at 1.

The Agency contends that the proposal is inconsistent with the merit system principle stated in 5 U.S.C. § 2301(b)(2), which "require[s] that '[a]ll employees . . . should receive fair and equitable treatment in all aspects of personnel management . . . .'" Id. at 2 (emphasis in original). The Agency argues that the proposal, by requiring that management use competitive promotion procedures to transfer nonunit employees into a unit position, "establishes [i]nequitable treatment for [these] employees . . . ." Id. The Agency asserts that, under the proposal, unit employees could be transferred to similarly graded unit positions without the use of competitive promotion procedures, but nonunit employees would have to be appraised, rated, and ranked in order to be transferred. Moreover, the Agency claims that management would be precluded from transferring a nonunit employee if that employee did not appear on the best-qualified list.

The Agency also contends that the proposal is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with applicable Government-wide regulations. Specifically, the Agency argues that the proposal is inconsistent with 5 C.F.R. § 330.301 et seq., which implements the Placement Assistance Program for Displaced Employees (Placement Program). According to the Agency, under the Placement Program, employees who will be displaced or have been separated from their jobs because of on-the-job injury, discontinued service retirement, or disability retirement, and who have registered for the program, are referred to the selecting official ahead of other candidates for available vacancies for which they are qualified. The Agency states that referrals under the Placement Program do not provide for the "completion of a local merit promotion application." Id. at 3, citing 5 C.F.R. § 330.305(d). The Agency asserts that, because the proposal would require that candidates referred under the Placement Program complete local merit promotion procedures, the proposal is inconsistent with 5 C.F.R. § 330.305.

The Agency maintains that the proposal is also inconsistent with Equal Employment Opportunity Commission (EEOC) regulations, 29 C.F.R. § 1614, which, in the Agency's view, mandate the noncompetitive reassignment of employees who become unable to perform the essential functions of their positions because of a handicapping condition. The Agency claims that because the proposal would require that the reassignment of such employees be accomplished through competitive procedures, it is inconsistent with the regulatory requirement that reassignment of those employees be accomplished noncompetitively.

Additionally, the Agency contends that, by requiring the use of competitive procedures, the proposal is inconsistent with Office of Personnel Management regulations which permit management to make noncompetitive appointments and to transfer or reinstate persons noncompetitively.

Further, the Agency contends that, by preventing noncompetitive transfers, reassignments, or reinstatements, the proposal is nonnegotiable because it directly interferes with management's rights to assign employees and to make selections from any appropriate source under section 7106(a)(2)(A) and (C)(ii) of the Statute. The Agency argues that the proposal would prevent it from reassigning a nonunit employee to a unit position unless the employee appeared on the best-qualified list or had completed a competitive promotion application. In addition, the Agency argues that the proposal is nonnegotiable because it would prevent management from selecting applicants from an appropriate source, namely, noncompetitive reassignments, transfers or reinstatements.

B. The Union

The Union states that the proposal is not intended "to limit management to [considering or selecting] only employees applying through the competitive promotion procedures." Response at 1. Rather, according to the Union, the proposal is intended to require the use of competitive procedures to fill unit positions so as to "ensure [that] each [unit] employee has an opportunity to have notice of an opening and an opportunity to present [his or her] qualifications before management fills a position." Id. at 1-2. The Union contends that, under the proposal, "[m]anagement may make the final selection decision from any appropriate source" and "the person selected would not have to be in the bargaining unit." Id. at 2 and Petition at 1. The Union asserts that "[t]he use of competitive procedures as a method of presenting the qualifications of employees without binding management's authority to select from any source" is negotiable. Response at 2, citing National Treasury Employees Union and Internal Revenue Service, 7 FLRA 275 (1981) (NTEU).

According to the Union, the proposal will merely require the Agency to: (1) post all unit positions that management decides to fill; and (2) fill positions only after completing a review of qualified applicants for the position. The Union claims that the proposal is not intended to "interfere with management's substantive right to determine which employee will be selected." Id. at 8. The Union contends that "[n]othing in the proposal prevents employees [from] outside the bargaining unit from applying or being selected non[]competitively for a position . . . once a position [is] posted in accordance with competitive promotion[] procedures . . . ." Id. at 3. In addition, the Union asserts that the proposal is not intended to prevent mandatory placements required by Government-wide regulation.

Further, the Union contends that the proposal is consistent with merit system principles. As to the Agency's argument concerning the merit system principle providing that employees and applicants be treated fairly and equitably, the Union argues that "[t]he principle of equity does not require perfect harmony inside and outside the bargaining unit . . . ." Id. at 3. The Union maintains that the proposal would not prevent employees from outside the bargaining unit from applying or being selected noncompetitively for unit positions after a position has been posted. The Union contends that the Agency's objection to the proposal is that the use of competitive procedures will delay placement. The Union claims that "[d]elay of [A]gency action while procedural protections are honored is not grounds for finding a proposal non[]negotiable." Id. at 4.

The Union also contends that the proposal is consistent with Government-wide regulations. Specifically, the Union argues that the proposal is consistent with 5 C.F.R. § 330.305 because nothing in the proposal "conflicts with priority placement of a displaced employee ahead of other employees competing through the competitive process." Id. The Union also claims that the proposal is consistent with EEOC regulations because the proposal "would permit placement of an EEOC[-]qualified individual if an announcement had not been issued for a position," as required by 29 C.F.R. § 1614.203(g), and would conform to the regulation where an announcement has been issued for the position. Id. at 5. Further, according to the Union, where an agency has discretion under a Government-wide regulation, the agency is required to negotiate on proposals that are within that discretion. The Union claims that, under the other regulations cited by the Agency, the Agency has discretion to make noncompetitive placements in vacant positions. The Union also claims that the proposal would not apply in circumstances where an applicable regulation mandates noncompetitive placement. The Union agrees with the Agency's interpretation that the proposal does not apply to placement actions pursuant to a reduction-in-force.

Further, the Union contends that the proposal does not directly interfere with management's rights to assign employees or to select from any appropriate source. The Union states that the proposal would merely require the Agency to complete a review of qualified candidates through the competitive procedure before filling vacant positions in the bargaining unit. According to the Union, "proposals that would create procedures for filling vacancies [are negotiable] as long as the proposal does not prevent management from filling a position from any appropriate source." Id. at 9. The Union states that, under the proposal, "[a]fter management has reviewed all qualified employees applying through the competitive process[,] management may select from any appropriate source." Id. at 10.

Finally, the Union contends that the proposal is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Union states that the proposal is intended to increase the upward mobility prospects of bargaining unit members "by providing an opportunity [for those employees] to present their qualifications for vacant positions in the bargaining unit." Id. at 6. The Union argues that the proposal is an arrangement for those bargaining unit employees who would otherwise be "denied the opportunity to demonstrate [that] they are the best[-]qualified individual for a position." Id. The Union asserts that the proposal does not excessively interfere with management's rights because the proposal benefits employees by establishing "a process which will bring to light the best[-]qualified candidate for each position filled in the bargaining unit," while the burden imposed on management's rights, "if any, is an insignificant delay in filling the position while the competitive procedures are completed." Id. at 9.

IV. Analysis and Conclusions

For the following reasons, we find that the proposal is negotiable.

A. Meaning of the Proposal

The proposal requires management to use competitive promotion procedures in connection with any selection that involves the transfer or reinstatement of an applicant from outside the bargaining unit. The Union does not define the phrase "competitive promotion procedures." However, as explained by the Union, the proposal requires that, before the Agency fills a vacant unit position with a person who is transferred or reinstated from outside the unit, the Agency will announce the vacant position, rate and rank all the applicants, including unit applicants and any nonunit candidates who choose to apply, and transmit a best-qualified list to the selecting official. The Union's explanation is consistent with the wording of the proposal and we will adopt its interpretation of the phrase "competitive promotion procedures." We also note that the Authority has consistently interpreted the phrase "competitive procedures" in this same manner. See, for example, American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).

The Union states that the purpose of the proposal is "to ensure [that] each [unit] employee has an opportunity to have notice of an opening and an opportunity to present [his or her] qualifications before management fills a position." Response at 1-2. Thus, the proposal is designed to ensure that unit employees have an opportunity to be considered for a position before the selecting official makes a final selection. Moreover, the Union explicitly states that the proposal is not intended "to limit management to [considering or selecting] only employees applying through the competitive promotion procedures." Id. at 1. Therefore, the proposal would not preclude the selecting official from considering or selecting individuals who did not apply under the competitive promotion procedures. The Union's statement as to the purpose of the proposal is consistent with the wording of the proposal and the Union's explanation as to how the proposal is intended to work. We find, therefore, that under the proposal, the Agency is not prevented from considering individuals who did not apply through the competitive promotion procedures. Rather, the proposal simply requires the Agency to consider candidates referred under the competitive procedures, including any best-qualified unit employees, before making a final selection.

The Union also explains that, under the proposal, once the best-qualified list for the vacancy has been submitted to the selecting official, the proposal would have no further effect and the Agency would have complete discretion to determine the source from which a person will be selected for the position and the particular person who will be selected. The Union states that the proposal would not restrict management's right to select from any appropriate source "so long as the competitive promotion procedures are completed." Id. at 8. We find that this explanation of the effect of the proposal also is consistent with the wording of the proposal and we will adopt this interpretation for purposes of this decision. In sum, in providing that competitive promotion procedures will apply to selections involving the transfer or reinstatement of employees from outside the unit, the proposal means only that all positions that management considers filling in this manner will be announced under those procedures and applicants considered before management makes a final selection for the position.

B. The Proposal Is Consistent with Merit System Principles

The Agency argues that the proposal is inconsistent with the merit system principle stated in 5 U.S.C. § 2301(b)(2). The Authority has consistently held that a merit system principle alone is not a basis on which a proposal will be found nonnegotiable as conflicting with law. See, for example, American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1502 (1992) (Health Care Financing Administration). Rather, a proposal that implicates a merit system principle will be found nonnegotiable only if it is established that the proposal conflicts with a law, rule, or regulation implementing or directly concerning the merit system principle. Id. The Agency has not demonstrated that the proposal is inconsistent with any law, rule, or regulation implementing merit system principles. Accordingly, we reject the Agency's argument that the proposal is nonnegotiable because it is inconsistent with merit system principles.

C. The Proposal Is Consistent with Government-wide Regulations

The Agency argues that the proposal is inconsistent with certain Government-wide regulations because, by requiring management to use competitive promotion procedures when filling bargaining unit vacancies with nonunit employees, the proposal would prevent the Agency from filling the positions noncompetitively as provided in those regulations. We reject the Agency's argument.

The Agency has misinterpreted the proposal. The regulations governing the Placement Program provide for the referral of qualified employees under that program ahead of other candidates for a vacant position. 5 C.F.R. § 330.305. The Agency contends that the regulations do not provide for the completion of an application under local competitive procedures. However, as long as the best-qualified list is referred to the selecting official before a selection action is made, the proposal would not preclude the referral of a candidate under the Placement Program ahead of the candidates on the best-qualified list. Moreover, the proposal does not require an employee referred under the Placement Program to apply under competitive promotion procedures. Rather, the proposal requires only that the applicants from the best-qualified list be referred to the selecting official under the competitive promotion procedures prior to that official selecting from any source, including employees referred under the Placement Program who did not apply through those procedures. Consequently, we find that the proposal is consistent with 5 C.F.R. § 330.305.

Further, we note the Union's statement that the proposal would not apply to circumstances in which applicable regulations mandate noncompetitive placement. We disagree. The proposal contains no exceptions for mandatory noncompetitive placement. Nonetheless, assuming, as the Agency contends, that applicable EEOC regulations mandate the noncompetitive reassignment of an employee to accommodate a handicapping condition, we find that the proposal is consistent with those regulations. See 29 C.F.R. § 1614.203(g). As we found above, under the proposal, as long as the list of applicants on the best-qualified list is referred to the selecting official prior to a selection, the selecting official can select from any source, including the noncompetitive reassignment of an employee under EEOC regulations. Consequently, we find that the proposal is consistent with 29 C.F.R. § 1614.203(g).

Finally, because the proposal would not preclude the noncompetitive selection of an employee once the best-qualified list has been referred to the selecting official, we find that the proposal is consistent with the other Government-wide regulations cited by the Agency which provide for the noncompetitive selection of personnel for vacant positions.

Consequently, we conclude that the proposal is consistent with applicable Government-wide regulations under section 7117(a)(1) of the Statute.

D. The Proposal Constitutes a Negotiable Procedure

A proposal governing the selection of a candidate to fill a vacant unit position that does not prevent management from concurrently considering unit applicants and applicants from outside the unit does not directly interfere with management's right to select from any appropriate source under section 7106(a)(2)(C)(ii). Rather, such a proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute. See Health Care Financing Administration, 44 FLRA at 1494. Compare American Federation of Government Employees, Local 738 and U.S. Department of the Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, 39 FLRA 872, 875 (1991) (Fort Leavenworth) (proposal precluding management from soliciting, processing, and considering applications from candidates outside the unit held to directly interfere with management's right to select from any appropriate source).

However, a proposal that restricts management's right, in filling positions, to make selections from a specific source and precludes resort to other appropriate sources directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute. See Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1415 (1991) (Mare Island Naval Shipyard). Similarly, a proposal that precludes management from reassigning an employee to a vacant position directly interferes with the right to assign employees under section 7106(a)(2)(A) of the Statute. Id.

The proposal in this case does not prevent the Agency from considering applicants from outside the unit or from considering those applicants with the applications of unit employees. Moreover, under the proposal, nonunit applicants who are found to be among the best-qualified candidates for the position will be referred to the selecting official along with any unit candidates who are also determined to be among the best-qualified candidates. In short, the proposal does not restrict the universe of candidates whom management may consider and would not result in pressure on management to select unit employees rather than candidates from outside the unit. Compare National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886, 889-90 (1990) (citing Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) (proposal precluding management from soliciting or considering military personnel for bargaining unit positions until after merit placement process for unit employees is completed held to directly interfere with management's right under section 7106(a)(2)(C) of the Statute because it would result in pressure on management to select a unit employee). Because the proposal does not restrict the candidates whom management may solicit, consider, and select, we find that the proposal does not directly interfere with management's right to select under section 7106(a)(2)(C)(ii) of the Statute.

The proposal also does not prevent management from selecting from any other appropriate source. In particular, the proposal would not preclude the noncompetitive transfer, reassignment, or reinstatement of an employee from outside the unit. Under the proposal, once the best-qualified list is referred to the selecting official, that official is free to select a person to fill the position from any appropriate source. Therefore, we find that the proposal does not directly interfere with management's rights to assign employees or to make selections for appointments from any appropriate source under section 7106(a)(2)(A) and (C)(ii) of the Statute. Compare Mare Island Naval Shipyard, 38 FLRA at 1415 (proposal that precluded management from detailing employees to positions for which there are adequate promotion registers held to directly interfere with management's rights to assign employees and to select from any appropriate source).

We conclude that the proposal would not preclude management from selecting from any appropriate source, including noncompetitive transfer or reinstatement, in filling a vacant position. Rather, the proposal merely prescribes the steps that management will take before making the final selection decision. We find, therefore, that the proposal constitutes a procedure that the Agency will observe in exercising its rights to assign employees and to select and is negotiable under section 7106(b)(2) of the Statute. See, for example, National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 366-67 (1990).(1)

Because we have concluded that the proposal does not directly interfere with management's rights under section 7106 of the Statute, but constitutes a negotiable procedure under section 7106(b)(2) of the Statute, it is unnecessary to determine whether the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. See, for example, American Federation of Government Employees, National Border Patrol Council, Local 2544 and U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona, 46 FLRA 930, 953-54 (1992), petition for review as to other matters filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona v. FLRA, No. 93-70137 (9th Cir. Feb. 8, 1993).

V. Order

The Agency shall, upon request or as otherwise agreed to by the parties, bargain on the proposal.(2)




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

1.