Association of Civilian Technicians, Delaware Chapter (Union) and National Guard Bureau, Delaware National Guard (Activity)

 3 FLRA No. 9
 
 ASSOCIATION OF CIVILIAN TECHNICIANS
 DELAWARE CHAPTER
 (Union)
 
 and
 
 NATIONAL GUARD BUREAU
 DELAWARE NATIONAL GUARD
 (Activity)
 
                                            Case No. O-NG-104
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
 TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR MANAGEMENT
 RELATIONS STATUTE (5 U.S.C. 7101 ET SEG.).
 
                              UNION PROPOSAL
 
    SECTION 3.  POSITION ANNOUNCEMENT-- WHEN POSITIONS ARE ANNOUNCED,
 DISTRIBUTION OF THE
 
    ANNOUNCEMENTS WILL BE THROUGHOUT THE AREA OF CONSIDERATION AND WILL
 CONTAIN, AS A MINIMUM, THE
 
    FOLLOWING INFORMATION:
 
   .          .          .          .
 
 
    E.  AREA OF CONSIDERATION AS FOLLOWS
 
    (1) 1ST AREA-- ALL CIVILIAN TECHNICIANS
 
    (2) 2ND AREA-- ALL MEMBERS OF THE NATIONAL GUARD
 
    (3) 3RD AREA-- ALL OTHERS
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL CONCERNING THE FILLING
 OF VACANT POSITIONS IS A MATTER OUTSIDE THE DUTY TO BARGAIN ESTABLISHED
 BY THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE OR VIOLATES
 SECTION 7106(A)(2)(C) OF THE STATUTE, /1/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE SUBJECT PROPOSAL IS WITHIN THE AGENCY'S DUTY TO
 BARGAIN UNDER THE STATUTE AND DOES NOT VIOLATE SECTION 7106(A)(2)(C)
 THEREOF.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (45 FED.REG. 3482 ET SEQ. (1980)), THE AGENCY'S
 ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 IS SET ASIDE.  /2/
 
    REASONS:  THE AGENCY ALLEGES THAT THE PROPOSAL IS NONNEGOTIABLE
 BECAUSE IT ESTABLISHES A MANDATORY RANK ORDER PREFERENCE WHICH WOULD
 OPERATE AS A CONSTRAINT ON MANAGEMENT'S AUTHORITY TO RECRUIT AND SELECT
 EMPLOYEES FOR POSITIONS WITHIN THE AGENCY.  TO THE CONTRARY, THE UNION'S
 PROPOSAL WOULD NOT PREVENT MANAGEMENT FROM EXERCISING ITS RIGHT TO MAKE
 SELECTIONS FROM AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR
 PROMOTION OR FROM ANY OTHER APPROPRIATE SOURCE.  RATHER IT MERELY
 PROVIDES A PROCEDURE FOR DEFINING THE INITIAL AREA OF CONSIDERATION FOR
 CANDIDATES UNDER THE AGENCY MERIT PLACEMENT PLAN AND FOR THE EXPANSION
 OF THAT AREA OF CONSIDERATION, A MATTER CLEARLY NEGOTIABLE UNDER SECTION
 7106(B)(2) OF THE STATUTE.  /3/
 
    THE PROPOSAL IS NOT IN CONFLICT WITH SECTION 7106(A)(2)(C) OF THE
 STATUTE WHICH RESERVES TO MANAGEMENT THE AUTHORITY TO SELECT EMPLOYEES
 FROM AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION OR
 FROM ANY OTHER APPROPRIATE SOURCE.  AS THE UNION ITSELF STATED IN ITS
 RESPONSE:
 
    WE DISAGREE WITH THE AGENCY'S CONTENTION THAT THE UNION'S PROPOSAL IN
 THIS CASE ESTABLISHES
 
    A "PREFERENCE" METHOD OF SELECTION TO AVAILABLE POSITIONS IN THE
 AGENCY.  THE PROCEDURAL
 
    ASPECTS OF ANNOUNCEMENTS, AS PROVIDED FOR IN THE UNION'S PROPOSALS
 ARE NOT SELECTIVE IN NATURE
 
    AS THEY DO NOT REQUIRE SELECTION.
 
    SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 331 AND
 VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, CASE NO.
 O-NG-17, 2 FLRA 59 (JANUARY 17, 1980), WHEREIN THE AUTHORITY CONCLUDED
 THAT A PROPOSAL WHICH WOULD REQUIRE ONLY THAT CONSIDERATION BE GIVEN TO
 EMPLOYEES WITHIN THE BARGAINING UNIT IN FILLING VACANT POSITIONS BUT
 WOULD NOT PREVENT MANAGEMENT FROM CONSIDERING OTHER APPLICANTS, OR
 EXPANDING THE AREA OF CONSIDERATION ONCE BARGAINING UNIT EMPLOYEES WERE
 CONSIDERED, OR USING ANY OTHER APPROPRIATE SOURCE IN FILLING SUCH
 VACANCIES, DID NOT PREVENT MANAGEMENT FROM EXERCISING ITS RESERVED RIGHT
 TO SELECT.  IN THAT CASE THE AUTHORITY POINTED OUT THAT THE PROPOSAL WAS
 CONCERNED ONLY WITH LIMITING THE AREA OF SUCH INTENSIVE SEARCH AND WOULD
 REQUIRE ONLY THAT CONSIDERATION BE GIVEN TO EMPLOYEES WITHIN THE
 BARGAINING UNIT IN FILLING VACANT POSITIONS.  THE AUTHORITY NOTED THAT
 THE PROPOSAL WOULD EXPRESSLY PERMIT AGENCY EMPLOYEES FROM OUTSIDE THE
 MINIMUM AREA OF CONSIDERATION TO APPLY FOR POSITIONS COVERED BY THE
 PROVISION, AND WOULD NOT LIMIT MANAGEMENT CONSIDERATION OF SUCH
 APPLICANTS.  MOREOVER, IT WOULD NOT PREVENT MANAGEMENT FROM EXPANDING
 THE AREA OF INTENSIVE SEARCH FOR ELIGIBLE CANDIDATES OR FROM MAKING
 SELECTIONS FROM ANY APPROPRIATE SOURCE ONCE THE MINIMUM AREA OF
 CONSIDERATION WAS CONSIDERED.  THE PROPOSAL HEREIN DOES NOT PRECLUDE THE
 AGENCY FROM EXPANDING THE AREA OF CONSIDERATION FOR ELIGIBLE CANDIDATES,
 NOR DOES IT REQUIRE THAT ANY EMPLOYEE BE SELECTED FROM ONE OF THE THREE
 DESIGNATED AREAS OF CONSIDERATION.
 
    IN VIEW OF THE FOREGOING, THE PROPOSAL AT ISSUE IS A MATTER WITHIN
 THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE, AND THE AGENCY'S
 DETERMINATION OF NON-NEGOTIABILITY MUST BE SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., APRIL 14, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER, III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106(A)(2)(C) OF THE STATUTE (92 STAT. 1198) PROVIDES:
 
    SECTION 7106.  MANAGEMENT RIGHTS.
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
   .          .          .          .
 
 
    (C) WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
 APPOINTMENT FROM--
 
    (I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION;  OR
 
    (II) ANY OTHER APPROPRIATE SOURCE . . .
 
    /2/ IN DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /3/ SECTION 7106(B)(2) OF THE STATUTE (92 STAT. 1199) PROVIDES:
 
    SECTION 7106.  MANAGEMENT RIGHTS.
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   .          .          .          .
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION.