American Federation of Government Employees, Local 2578, AFL-CIO (Union) and General Services Administration, National Archives and Records Service, Washington, DC (Activity)  

 3 FLRA No. 96
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2578
 (Union)
 
 and
 
 GENERAL SERVICES ADMINISTRATION,
 NATIONAL ARCHIVES AND RECORDS
 SERVICE, WASHINGTON, D.C.
 (Activity)
 
                                            Case No. 0-NG-166
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(3) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
    DURING CONTRACT NEGOTIATIONS, THE UNION SUBMITTED THE FOLLOWING
 PROPOSAL PERTAINING TO THE AGENCY'S PLAN FOR IMPLEMENTING THE FEDERAL
 EQUAL OPPORTUNITY RECRUITMENT PROGRAM (FEORP), PURSUANT TO 5 U.S.C.
 7201, /1/ WHICH PROGRAM IS DESIGNED TO INSURE EQUAL EMPLOYMENT
 OPPORTUNITY BY ELIMINATING "UNDERREPRESENTATION" OF MINORITY GROUPS
 WITHIN THE FEDERAL CIVIL SERVICE:  /2/
 
                              UNION PROPOSAL
 
    THE GOAL FOR WOMEN AND FOR EACH MINORITY GROUP SHALL BE THE
 PERCENTAGE THAT GROUP
 
    CONSTITUTES IN THE LOCAL OR NATIONAL POPULATION, WHICHEVER IS HIGHER.
  APPENDIX A TO THE
 
    CONTRACT CONTAINS THE GOALS DEVELOPED IN ACCORDANCE WITH THIS
 DEFINITION.  EITHER PARTY MAY
 
    DEMAND THE RENEGOTIATION OF THE CONTENT OF APPENDIX A IN RESPONSE TO
 NEW STATISTICAL
 
    DATA.  THE PARTIES HAVE AS THEIR GOAL THE ELIMINATION, AS
 EXPEDITIOUSLY AS POSSIBLE, OF ALL
 
    UNDERREPRESENTATION OF WOMEN AND MINORITIES IN ANY GRADE OR
 OCCUPATIONAL GROUP.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROPOSAL IS WITHIN THE AGENCY'S DUTY TO
 BARGAIN UNDER SECTION 7117 OF THE STATUTE.  /3/
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL CONCERNS A MATTER WHICH IS WITHIN THE DUTY
 TO BARGAIN UNDER THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10
 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513(1980), THE
 AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO
 BARGAIN MUST BE SET ASIDE.  /4/
 
    REASONS:  THE AGENCY CONTENDS THAT THE UNION'S PROPOSAL IS
 INCONSISTENT WITH OPM REGULATIONS CONTAINED IN THE FEDERAL PERSONNEL
 MANUAL (FPM) WHICH IMPLEMENT THE FEORP IN THAT THE PROPOSAL WOULD
 REQUIRE THE USE OF NATIONAL OR LOCAL POPULATION STATISTICS IN
 DETERMINING UNDERREPRESENTATION WHILE OPM REGULATIONS REQUIRE THE USE OF
 LOCAL OR NATIONAL CIVILIAN LABOR FORCE DATA;  AND WOULD REQUIRE THE USE
 OF A HIGHER PERCENTAGE IN ESTABLISHING GOALS FOR ELIMINATING
 UNDERREPRESENTATION THAN MANDATED BY OPM'S IMPLEMENTING REGULATIONS.
 THE AGENCY FURTHER CONTENDS THAT THE PROPOSAL VIOLATES SECTION
 7106(A)(2)(C) OF THE STATUTE /5/ BY REQUIRING THE SELECTION OF AN
 IN-HOUSE CANDIDATE IF THAT CANDIDATE IS A MEMBER OF A MINORITY GROUP.
 
    AS THE INSTANT PROPOSAL RELATES TO THE ESTABLISHMENT AND
 ADMINISTRATION OF THE AGENCY'S FEORP PLAN, A MATTER RELATED TO
 DISCRIMINATION IN EMPLOYMENT, IT FALLS WITHIN THE SCOPE OF THE DUTY TO
 BARGAIN UNDER SECTION 7112 OF THE STATUTE.  /6/ WHAT REMAINS TO BE
 DETERMINED IS WHETHER THE PROPOSAL IS IN ANY WAY INCONSISTENT WITH LAW
 OR REGULATION OR IS VIOLATIVE OF THE STATUTE.
 
    AS STATED ABOVE, THE AGENCY FIRST CONTENDS THAT THE PROPOSAL WOULD
 REQUIRE THE USE OF LOCAL OR NATIONAL POPULATION STATISTICS WHILE OPM'S
 IMPLEMENTING REGULATIONS SPECIFY THE USE OF LOCAL OR NATIONAL CIVILIAN
 LABOR FORCE DATA.  IN ITS RESPONSE TO THE AGENCY'S STATEMENT OF POSITION
 FILED WITH THE AUTHORITY IN ACCORDANCE WITH SECTION 7117(C)(4) OF THE
 STATUTE, THE UNION EXPRESSLY AGREED WITH THE AGENCY'S POSITION THAT
 CIVILIAN LABOR FORCE DATA ARE TO BE USED IN MAKING UNDERREPRESENTATION
 DETERMINATIONS, AND INDICATED THAT THE INTENT OF ITS PROPOSAL IS THAT
 THE PHRASE "NATIONAL OR LOCAL POPULATION" SHOULD BE INTERPRETED TO MEAN
 "NATIONAL OR LOCAL POPULATION OF THE CIVILIAN LABOR FORCE" AS REQUIRED
 BY LAW.  ACCORDINGLY, UNDER THE UNION'S INTERPRETATION OF ITS OWN
 PROPOSAL, WHICH IS ADOPTED FOR PURPOSES OF THIS DECISION, THE AGENCY HAS
 FAILED TO DEMONSTRATE THAT THIS PORTION OF THE DISPUTED PROPOSAL IS
 INCONSISTENT WITH OPM'S REGULATIONS IMPLEMENTING THE FEORP, AS ALLEGED.
 
    NEXT, THE AGENCY ALLEGES THAT THE PROPOSAL IS INCONSISTENT WITH OPM'S
 IMPLEMENTING REGULATIONS BY REQUIRING THE USE OF A HIGHER PERCENTAGE
 THAN PERMITTED BY SUCH REGULATIONS IN ESTABLISHING GOALS FOR ELIMINATING
 UNDERREPRESENTATION.  THE OPERATIVE SECTION OF OPM'S REGULATIONS
 PROVIDES AS FOLLOWS:  /7/
 
    WHERE AN AGENCY OR AGENCY COMPONENT IS LOCATED IN A GEOGRAPHICAL AREA
 WHERE PARTICIPATION
 
    OF A PARTICULAR UNDERREPRESENTED GROUP IS SIGNIFICANTLY LOWER THAN
 ITS PARTICIPATION IN THE
 
    NATIONAL LABOR FORCE, THE AGENCY OR COMPONENT MAY, IN CONSULTATION
 WITH THE OFFICE OF
 
    PERSONNEL MANAGEMENT, USE THE LOWER PERCENTAGE IN DETERMINING
 UNDERREPRESENTATION . . .  SUBSEQUENT TO THE EFFECTIVE DATE OF THIS
 REGULATION, OPM DETERMINED THAT, UNDER CERTAIN CIRCUMSTANCES, AGENCIES
 WOULD NOT BE REQUIRED TO CONSULT PRIOR TO USING THE LOWER PERCENTAGE IN
 DETERMINING UNDERREPRESENTATION.  SPECIFICALLY, SUBCHAPTER 2-2.C.(3) OF
 ATTACHMENT 1 TO FPM LTR. 720-2 PROVIDES, IN PERTINENT PART, THAT:
 
    OPM HEREBY GRANTS BLANKET AUTHORIZATION TO USE LOWER LOCAL
 PERCENTAGES FOR ALL OCCUPATIONAL
 
    GROUPINGS AT GS GRADES 4 OR BELOW AND FOR ALL REGULAR NON-SUPERVISORY
 PREVAILING WAGE
 
    POSITIONS AT GRADE 4 OR BELOW . . . .  THUS, WHERE AN AGENCY OR
 AGENCY COMPONENT IS LOCATED IN A GEOGRAPHICAL AREA WHERE PARTICIPATION
 OF AN UNDERREPRESENTED GROUP IS SIGNIFICANTLY LOWER THAN ITS
 PARTICIPATION IN THE NATIONAL CIVILIAN LABOR FORCE, AGENCIES HAVE THE
 DISCRETION TO USE THE LOWER PERCENTAGE IN DETERMINING
 UNDERREPRESENTATION.  THAT IS, THE REGULATIONS OF THE OPM DO NOT MANDATE
 THE USE OF THE LOWER PERCENTAGE BUT RATHER PERMIT THE AGENCY TO DO SO IN
 CERTAIN INSTANCES AS A LIMITED EXCEPTION TO THE REQUIREMENT THAT
 AGENCIES, "UNDER OPM'S REGULATIONS, MUST GENERALLY USE THE HIGHER OF THE
 TWO PERCENTAGES (NATIONAL OR LOCAL) IN MAKING EACH UNDERREPRESENTATION
 DETERMINATION." /8/ AS SUCH DETERMINATION IS LEFT TO THE DISCRETION OF
 THE AGENCY IN THESE INSTANCES, THE MANNER IN WHICH THE AGENCY WILL
 EXERCISE THAT DISCRETION IS A MATTER SUBJECT TO THE DUTY TO BARGAIN.
 ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE USE OF THE HIGHER
 PERCENTAGE AS REQUIRED BY THE UNION'S PROPOSAL IS INCONSISTENT WITH OPM
 REGULATIONS CANNOT BE SUSTAINED.
 
    THE AGENCY FURTHER CONTENDS THAT THE DECLARED INTENT OF THE UNION'S
 PROPOSAL IS TO REQUIRE THE SELECTION OF AN IN-HOUSE CANDIDATE IF THAT
 CANDIDATE IS A MEMBER OF A MINORITY GROUP WHERE UNDERREPRESENTATION IS
 FOUND TO EXIST, AND THEREFORE VIOLATES SECTION 7106(A)(2)(C) OF THE
 STATUTE.  HOWEVER, AS THE UNION STATES IN RESPONSE TO THE AGENCY'S
 CONTENTION, "THE LANGUAGE OF THE UNION PROPOSAL SAYS NOTHING ABOUT
 RESTRICTING MANAGEMENT'S ABILITY TO UNDERTAKE EXTERNAL RECRUITING TO
 FILL A POSITION IN WHICH IT HAS BEEN DETERMINED THAT MINORITIES OR WOMEN
 ARE UNDERREPRESENTED (AND) . . . WOULD NOT PROHIBIT MANAGEMENT FROM
 EXERCISING ITS RIGHTS UNDER SECTION 7106(A)" OF THE STATUTE.  RATHER,
 THE PROPOSAL MERELY SETS FORTH A CERTAIN STATISTICAL GOAL FOR THE
 ELIMINATION OF UNDERREPRESENTATION, BUT DOES NOT REQUIRE MANAGEMENT TO
 TAKE OR REFRAIN FROM TAKING ANY SPECIFIC ACTION TOWARD THE ACHIEVEMENT
 OF THAT GOAL.
 
    ACCORDINGLY, FOR THE REASONS SET FORTH HEREIN, WE FIND THAT THE
 UNION'S PROPOSAL CONCERNS A MATTER WHICH IS WITHIN THE AGENCY'S DUTY TO
 BARGAIN UNDER THE STATUTE, AND THE AGENCY'S ALLEGATION TO THE CONTRARY
 IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., JULY 10, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ 5 U.S.C. 7201 PROVIDES IN PERTINENT PART:
 
    SECTION 7201.  ANTIDISCRIMINATION POLICY;  MINORITY RECRUITMENT
 PROGRAM
 
   .          .          .          .
 
 
    (B) IT IS THE POLICY OF THE UNITED STATES TO INSURE EQUAL EMPLOYMENT
 OPPORTUNITIES FOR EMPLOYEES WITHOUT DISCRIMINATION BECAUSE OF RACE,
 COLOR, RELIGION, SEX, OR NATIONAL ORIGIN.  THE PRESIDENT SHALL USE HIS
 EXISTING AUTHORITY TO CARRY OUT THIS POLICY.
 
    (C) NOT LATER THAN 180 DAYS AFTER THE DATE OF THE ENACTMENT OF THE
 CIVIL SERVICE REFORM ACT OF 1978, THE OFFICE OF PERSONNEL MANAGEMENT
 SHALL, BY REGULATION, IMPLEMENT A MINORITY RECRUITMENT PROGRAM WHICH
 SHALL PROVIDE, TO THE MAXIMUM EXTENT PRACTICABLE --
 
    (1) THAT EACH EXECUTIVE AGENCY CONDUCT A CONTINUING PROGRAM FOR THE
 RECRUITMENT OF MEMBERS
 
    OF MINORITIES FOR POSITIONS IN THE AGENCY TO CARRY OUT THE
 ANTI-DISCRIMINATION POLICY SET
 
    FORTH IN SUBSECTION (B) IN A MANNER DESIGNED TO ELIMINATE
 UNDERREPRESENTATION OF MINORITIES IN
 
    THE VARIOUS CATEGORIES OF CIVIL SERVICE EMPLOYMENT WITHIN THE FEDERAL
 SERVICE, WITH SPECIAL
 
    EFFORTS DIRECTED AT RECRUITING IN MINORITY COMMUNITIES, IN
 EDUCATIONAL INSTITUTIONS, AND FROM
 
    OTHER SOURCES FROM WHICH MINORITIES CAN BE RECRUITED;  . . . .
 
    /2/ "UNDERREPRESENTATION" IS DEFINED IN OPM'S IMPLEMENTING
 REGULATIONS, 5 C.F.R. 720.202(A)(1979), AS:
 
    (A) SITUATION IN WHICH THE NUMBER OF WOMEN OR MEMBERS OF A MINORITY
 GROUP WITHIN A CATEGORY
 
    OF CIVIL SERVICE EMPLOYMENT CONSTITUTES A LOWER PERCENTAGE OF THE
 TOTAL NUMBER OF EMPLOYEES
 
    WITHIN THE EMPLOYMENT CATEGORY THAN THE PERCENTAGE WOMEN OR THE
 MINORITY CONSTITUTES WITHIN
 
    THE CIVILIAN LABOR FORCE OF THE UNITED STATES . . . .
 
    /3/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART:
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A
 
    GOVERNMENT-WIDE RULE OR REGULATION.
 
    THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
 REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
 7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
 STATUTE:
 
    SECTION 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER --
 
   .          .          .           .
 
 
    (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTING SUCH
 
    EMPLOYEES . . . .
 
   .          .          .          .
 
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
 AND MATTERS, WHETHER
 
    ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
 CONDITIONS . . . .
 
    /4/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /5/ SECTION 7106(A)(2)(C) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    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
 APPOINTMENTS FROM--
 
    (I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION;  OR
 
    (II) ANY OTHER APPROPRIATE SOURCE . . . .
 
    /6/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
 FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, CASE NO.
 O-NG-40, 2 FLRA NO. 77 (JAN. 31, 1980), AT 13-14.
 
    /7/ 5 C.F.R. 720.205(D)(1979).
 
    /8/ FEDERAL PERSONNEL MANUAL LTR. 720-2, ATTACHMENT 1, SUBCHAPTER
 2-2.C(3).