National Federation of Federal Employees Local 1332 (Union) and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia (Agency) 

 6 FLRA No. 66
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES LOCAL 1332
 Union
 
 and
 
 HEADQUARTERS, U.S. ARMY MATERIEL
 DEVELOPMENT AND READINESS
 COMMAND, ALEXANDRIA, VIRGINIA
 Agency
 
                                            Case No. O-NG-93
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E)
 AND (D) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
 STATUTE) (5 U.S.C. 7101 ET SEQ.).  THE ISSUE PRESENTED IS THE
 NEGOTIABILITY OF THE FOLLOWING PROPOSALS:
 
                         UNION PROPOSALS I AND II
 
    ARTICLE XI-- INTERNAL PLACEMENT AND PROMOTION PROCEDURE
 
    SECTION A.
 
    ALL PERSONNEL ACTIONS INVOLVING CAREER PROGRESSION SHALL BE CONSONANT
 WITH THE SPIRIT AND
 
    INTENT OF THE MERIT SYSTEM, AND THE CIVIL SERVICE REFORM ACT.  THE
 EMPLOYER AGREES TO CONDUCT
 
    TRAINING SESSIONS FOR ALL EMPLOYEES TO ENHANCE THEIR UNDERSTANDING OF
 THE MERIT SYSTEM, AND TO
 
    ASSURE FAIR, EQUITABLE, AND CONSISTENT PRACTICES IN CARRYING OUT
 PLACEMENT AND PROMOTION
 
    PROCEDURES.  THIS ARTICLE SHALL APPLY TO ALL PROMOTION AND PLACEMENT
 ACTIONS FOR FILLING MERIT
 
    PROMOTION AND DA CAREER MANAGEMENT PROGRAM POSITIONS IN HQ DARCOM,
 SERVICE SUPPORT ACTIVITY,
 
    PERSONNEL SUPPORT AGENCY AND SECURITY ASSISTANCE CENTER FOR ALL JOB
 SERIES AND GRADES THROUGH
 
    GS-15.  (ONLY THE UNDERLINED PORTION OF THE PROPOSAL IS IN DISPUTE.)
 
    SECTION D.  ALL PERSONNEL ACTIONS, INCLUDING ARMY CAREER MANAGEMENT
 PROGRAM VACANCIES,
 
    INVOLVING PROMOTIONS, APPOINTMENT OR TRANSFER TO A POSITION SHALL BE
 ACCOMPLISHED UNDER THE
 
    PROVISIONS OF THIS ARTICLE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE DISPUTED PORTION OF UNION PROPOSAL I AND
 PROPOSAL II, RELATING TO ALL PLACEMENT AND MERIT PROMOTION ACTIONS
 WITHIN THE DESCRIBED ORGANIZATIONAL ELEMENTS, ARE OUTSIDE THE DUTY TO
 BARGAIN AS SET FORTH IN SECTION 7117(A)(1) OF THE STATUTE, /1/ AS
 ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  TO THE EXTENT THAT UNION PROPOSALS I AND II
 CONCERN PROMOTION PROCEDURES FOR BARGAINING UNIT POSITIONS, THEY ARE
 WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.  HOWEVER, TO THE EXTENT
 THAT THE PROPOSALS WOULD APPLY THEIR PROMOTION PROCEDURES TO THE FILLING
 OF NONBARGAINING UNIT POSITIONS (E.G., SUPERVISORY AND MANAGERIAL
 POSITIONS), THEY ARE NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY, AND
 THE AGENCY HAS ELECTED NOT TO NEGOTIATE.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN ON UNION PROPOSALS I AND II
 ONLY TO THE EXTENT THAT THEY ARE CONCERNED WITH BARGAINING UNIT
 POSITIONS.  IT IS FURTHER ORDERED THAT THE UNION'S PETITION FOR REVIEW
 WITH RESPECT TO PROPOSALS I AND II, TO THE EXTENT THE PROPOSALS CONCERN
 NONBARGAINING UNIT POSITIONS, BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  IN ITS STATEMENT OF POSITION THE AGENCY CONTENDS THAT THE
 DISPUTED PORTION OF UNION PROPOSAL I AND PROPOSAL II ARE NOT WITHIN THE
 DUTY TO BARGAIN BECAUSE THEY SEEK TO APPLY THE NEGOTIATED MERIT
 PROMOTION PROCEDURE TO THE FILLING OF SUPERVISORY AND MANAGERIAL
 POSITIONS OUTSIDE THE BARGAINING UNIT.  IN RESPONSE TO THIS CONTENTION,
 THE UNION STATED:
 
    (W)E FEEL THAT THE PROCEDURES FOR FILLING (SUPERVISORY AND
 MANAGERIAL) POSITIONS DO APPLY
 
    TO BARGAINING UNIT EMPLOYEES AND SHOULD BE COVERED BY THE CONTRACT,
 EVEN THOUGH THE POSITIONS
 
    THEMSELVES DO NOT FALL IN THE BARGAINING UNIT. . . .  WE ARE NOT
 TRYING TO BARGAIN ON
 
    PROCEDURES FOR FILLING ANY POSITIONS WHICH DO NOT HAVE AN IMPACT
 DIRECTLY UPON A UNIT
 
    EMPLOYEE.  WE SEEK ONLY TO COVER POSITIONS FOR WHICH UNIT MEMBERS
 APPLY.
 
    THUS, ACCORDING TO BOTH PARTIES, THE DISPUTED PORTION OF PROPOSAL I
 AND PROPOSAL II ARE INTENDED TO INCORPORATE WITHIN THE MERIT PROMOTION
 PLAN SUPERVISORY AND MANAGEMENT OFFICIAL POSITIONS.  IN THIS REGARD, THE
 DISPUTED PROPOSALS HEREIN BEAR NO MATERIAL DIFFERENCE FROM THE UNION
 PROPOSAL BEFORE THE AUTHORITY IN INTERNATIONAL ASSOCIATION OF FIRE
 FIGHTERS, LOCAL F-61 AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO.
 66(1980), WHICH WOULD HAVE, INTER ALIA, APPLIED NEGOTIATED PROMOTION
 PROCEDURES TO NONBARGAINING UNIT SUPERVISORY POSITIONS.  IN THAT CASE,
 THE AUTHORITY FOUND THAT THE PROPOSAL, TO THE EXTENT IT APPLIED TO THE
 FILLING OF NONUNIT SUPERVISORY POSITIONS, DID NOT RELATE TO THE
 CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES AND, THEREFORE,
 WHILE NOT PROHIBITED FROM BEING BARGAINED, WAS NEGOTIABLE ONLY AT THE
 ELECTION OF THE AGENCY.  ACCORDINGLY, AS THE AGENCY HAD ELECTED NOT TO
 BARGAIN ON SUCH MATTERS, THE AUTHORITY HELD THE PROPOSAL TO BE
 NONNEGOTIABLE TO THAT EXTENT.
 
    FOR THE REASONS FULLY SET FORTH IN THE PHILADELPHIA NAVAL SHIPYARD
 CASE, THE DISPUTED PORTION OF UNION PROPOSAL I AND PROPOSAL II, HEREIN,
 TO THE EXTENT THAT THEY LIKEWISE SEEK TO ENCOMPASS NONBARGAINING UNIT
 POSITIONS, MUST ALSO BE FOUND TO BE NEGOTIABLE ONLY AT THE AGENCY'S
 ELECTION.
 
                            UNION PROPOSAL III
 
    SECTION C.  IF ON THE INITIAL SEARCH AT LEAST ONE HIGHLY QUALIFIED
 UNIT EMPLOYEE APPLICANT
 
    IS FOUND, THE EMPLOYER AGREES TO SELECT AND PROMOTE THIS HIGHLY
 QUALIFIED APPLICANT TO
 
    ENCOURAGE A HIGH LEVEL OF UNIT EMPLOYEE PERFORMANCE AND TO STRIVE TO
 RETAIN AND PROMOTE ALL
 
    CAPABLE AND QUALIFIED UNIT EMPLOYEES.  THE INITIAL SEARCH WILL
 INCLUDE ONLY THOSE APPLICANTS
 
    FROM THE AREA DESCRIBED IN SECTION F OF THIS ARTICLE.  FOR THE
 INITIAL SEARCH, NO ADVERTISING
 
    WILL BE MADE OUTSIDE THE AREA DESCRIBED IN SECTION F OF THIS ARTICLE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL III IS INCONSISTENT WITH THE
 AUTHORITY OF THE AGENCY TO MAKE SELECTIONS UNDER SECTION 7106(A)(2)(C)
 OF THE STATUTE, /2/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL III IS INCONSISTENT WITH THE
 AGENCY'S AUTHORITY TO MAKE SELECTIONS UNDER SECTION 7106(A)(2)(C) OF THE
 STATUTE AND, THEREFORE, THE DUTY TO BARGAIN DOES NOT EXTEND TO THIS
 MATTER.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
 PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION PROPOSAL
 III BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  UNION PROPOSAL III, WHICH PLAINLY MANDATES THAT IF THE
 INITIAL SEARCH WITHIN THE BARGAINING UNIT /3/ LOCATES ONE HIGHLY
 QUALIFIED CANDIDATE FOR A VACANCY, THE CANDIDATE SO IDENTIFIED MUST BE
 SELECTED AND PROMOTED INTO THE VACANCY, BEARS NO MATERIAL DIFFERENCE
 FROM THE PROPOSAL WHICH WAS BEFORE THE AUTHORITY AND HELD TO BE
 NONNEGOTIABLE IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1451
 AND NAVY EXCHANGE, NAVAL ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA, 3
 FLRA NO. 60(1980).  IN THAT CASE, THE AUTHORITY DETERMINED THAT THE
 PROPOSAL, REQUIRING THE AGENCY TO SELECT ONE OF THE THREE QUALIFIED
 APPLICANTS FROM WITHIN THE MINIMUM AREA OF CONSIDERATION AND ALLOWING
 CONSIDERATION OF OTHER CANDIDATES ONLY IF THERE WERE LESS THAN THREE
 QUALIFIED APPLICANTS WITHIN THE AREA OF CONSIDERATION, OPERATED TO
 PREVENT THE AGENCY FROM EXERCISING ITS RIGHT TO SELECT WITHIN THE
 MEANING OF SECTION 7106(A)(2)(C) OF THE STATUTE.  UNION PROPOSAL III,
 HERE, IS EVEN MORE RESTRICTIVE IN THAT IT WOULD FORECLOSE FURTHER SEARCH
 IF ONLY ONE HIGHLY QUALIFIED APPLICANT WERE LOCATED IN THE AREA OF
 CONSIDERATION AND, A FORTIORI, MUST ALSO BE HELD UNDER THE STATUTE TO BE
 NONNEGOTIABLE FOR THE REASONS FULLY SET FORTH IN THE NAVAL
 ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA CASE.
 
                             UNION PROPOSAL IV
 
    SECTION F.  THE AREA OF CONSIDERATION FOR FILLING ALL VACANCIES UNDER
 THE MERIT PROMOTION
 
    PLAN AND DA CAREER MANAGEMENT PROGRAM (CPR 950-1) WILL BE HQ DARCOM,
 INCLUDING PERSONNEL
 
    SUPPORT AGENCY, SERVICE SUPPORT ACTIVITY AND SECURITY ASSISTANCE
 CENTER.  IF THERE IS AT LEAST
 
    ONE HIGHLY QUALIFIED CANDIDATE FOR THE VACANCY WITHIN THIS AREA OF
 CONSIDERATION WHO WILL ACCEPT THE POSITION, THE AREA WILL NOT BE
 EXPANDED.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER UNION PROPOSAL IV RELATING TO THE AREA OF
 CONSIDERATION FOR FILLING VACANCIES UNDER THE MERIT PROMOTION PROCEDURE
 IS OUTSIDE THE DUTY TO BARGAIN AS SET FORTH IN SECTION 7117(A)(1) OF THE
 STATUTE AND WHETHER THE SECOND SENTENCE OF THE PROPOSAL IS INCONSISTENT
 WITH THE AGENCY'S AUTHORITY TO MAKE SELECTIONS UNDER SECTION
 7106(A)(2)(C) OF THE STATUTE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  TO THE EXTENT UNION PROPOSAL IV WOULD
 ESTABLISH THE AREA OF CONSIDERATION FOR POSITIONS WITHIN THE BARGAINING
 UNIT, IT IS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.  HOWEVER, TO
 THE EXTENT UNION PROPOSAL IV WOULD PREVENT THE AGENCY FROM EXPANDING THE
 AREA OF CONSIDERATION IF IT YIELDS A SINGLE HIGHLY QUALIFIED, AVAILABLE
 CANDIDATE, IT IS INCONSISTENT WITH THE AGENCY'S AUTHORITY TO MAKE
 SELECTIONS UNDER SECTION 7106(A)(2)(C) OF THE STATUTE AND, THEREFORE,
 THE DUTY TO BARGAIN DOES NOT EXTEND TO THIS MATTER.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR
 AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL
 IV ONLY TO THE EXTENT THAT IT WOULD ESTABLISH THE AREA OF CONSIDERATION
 FOR BARGAINING UNIT POSITIONS.  IT IS FURTHER ORDERED THAT THE UNION'S
 PETITION FOR REVIEW RELATING TO PROPOSAL IV, TO THE EXTENT THE PROPOSAL
 WOULD PREVENT THE EXPANSION OF THE AREA OF CONSIDERATION IF A SINGLE
 HIGHLY QUALIFIED CANDIDATE IS FOUND WITHIN THE BARGAINING UNIT, BE, AND
 IT HEREBY IS, DISMISSED.
 
    REASONS:  THE FIRST SENTENCE OF THIS PROPOSAL CONCERNS "AREA OF
 CONSIDERATION." AS PREVIOUSLY DISCUSSED WITH RESPECT TO UNION PROPOSALS
 I AND II HEREIN, SUCH A PROMOTION PROCEDURE IS NOT WITHIN THE DUTY TO
 BARGAIN TO THE EXTENT IT WOULD APPLY TO NONBARGAINING UNIT SUPERVISORY
 AND MANAGERIAL POSITIONS.  HOWEVER, TO THE EXTENT UNION PROPOSAL IV
 WOULD PRESCRIBE THE AREA OF CONSIDERATION FOR POSITIONS WITHIN THE
 BARGAINING UNIT, IT BEARS NO MATERIAL DIFFERENCE FROM THE PROPOSAL WHICH
 WAS BEFORE THE AUTHORITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 331 AND VETERANS ADMINISTRATION HOSPITAL, PERRY POINT,
 MARYLAND, 2 FLRA NO. 59(1980) AND HELD TO BE NEGOTIABLE.  IN THAT CASE,
 THE AUTHORITY, FINDING THE PROPOSAL DID NOT PREVENT MANAGEMENT FROM
 CONSIDERING OTHER APPLICANTS OR FROM EXPANDING THE AREA OF SEARCH ONCE
 BARGAINING UNIT CANDIDATES WERE CONSIDERED AND DID NOT PRECLUDE
 MANAGEMENT FROM MAKING SELECTIONS FROM ANY APPROPRIATE SOURCE, HELD THE
 PROPOSAL TO BE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.  THE FIRST
 SENTENCE OF UNION PROPOSAL IV, HEREIN, STANDING ALONE, IS ALSO WITHIN
 THE DUTY TO BARGAIN, FOR THE REASONS FULLY STATED IN VETERANS
 ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND.
 
    THE SECOND SENTENCE OF UNION PROPOSAL IV, HOWEVER, WOULD HAVE A
 SIMILAR EFFECT AS UNION PROPOSAL III, HEREIN, WHICH WAS FOUND TO BE
 OUTSIDE THE DUTY TO BARGAIN.  THAT IS, WHILE THE SECOND SENTENCE OF
 PROPOSAL IV DOES NOT MANDATE THE SELECTION AND PROMOTION OF THE SINGLE
 CANDIDATE IDENTIFIED WITHIN THE PRESCRIBED AREA OF CONSIDERATION, IT
 DOES PROHIBIT MANAGEMENT FROM EXPANDING THE AREA OF CONSIDERATION.  THE
 PROPOSAL, BY FORECLOSING EXPANSION OF THE AREA OF CONSIDERATION IN THE
 CIRCUMSTANCES DESCRIBED, IS INCONSISTENT WITH THE AGENCY'S AUTHORITY TO
 MAKE SELECTIONS FROM AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES OR
 FROM ANY OTHER APPROPRIATE SOURCE UNDER SECTION 7106(A)(2)(C) OF THE
 STATUTE.  /4/ CONSEQUENTLY, THE SECOND SENTENCE OF UNION PROPOSAL IV
 MUST BE HELD TO BE NONNEGOTIABLE UNDER THE STATUTE.
 
                             UNION PROPOSAL V
 
    SECTION H . . . SPECIAL QUALIFICATION REQUIREMENTS MUST BE SUPPORTED
 BY A WRITTEN CRITICAL
 
    ANALYSIS OF THE DUTIES OF THE POSITION AND WILL NOT BE USED AS THE
 SOLE MEANS TO DISQUALIFY AN
 
    APPLICANT.  SKILL, KNOWLEDGE, APTITUDE, AND PERSONAL CHARACTERISTICS
 (SKAP) CODE NUMBERS WILL
 
    NOT BE USED AS QUALIFICATION REQUIREMENTS.  REGISTRATION IN A CAREER
 PROGRAM, THE COMPLETION
 
    OR SUBMISSION OF A SKAP OR SIMILAR CAREER PROGRAM RATING SYSTEM,
 SHALL NOT BE REQUIRED FOR
 
    CONSIDERATION FOR ANY VACANCY.  ON INITIAL SEARCH, THE AREA OF
 CONSIDERATION ON THE
 
    ANNOUNCEMENT SHALL BE LIMITED TO THAT DESCRIBED IN SECTION F OF THIS
 ARTICLE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL V IS INCONSISTENT WITH A
 GOVERNMENT-WIDE REGULATION AND/OR AN AGENCY REGULATION FOR WHICH A
 COMPELLING NEED EXISTS AND IS, THEREFORE, NONNEGOTIABLE, AS ALLEGED BY
 THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL V IS NOT INCONSISTENT WITH
 EITHER A GOVERNMENT-WIDE REGULATION OR AN AGENCY REGULATION FOR WHICH
 THERE IS A COMPELLING NEED, WITHIN THE MEANING OF SECTION 7117(A)(2) OF
 THE STATUTE, /5/ AND IS THEREFORE WITHIN THE AGENCY'S DUTY TO BARGAIN.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
 UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
 CONCERNING UNION PROPOSAL V.  /6/
 
    REASONS:  THE AGENCY CONTENDS THAT UNION PROPOSAL V VIOLATES AN
 AGENCY REGULATION, CIVILIAN PERSONNEL REGULATION (CPR) 950-1 WHICH
 ESTABLISHES THE ARMY CAREER MANAGEMENT SYSTEM.  THE AGENCY ASSERTS THAT:
 
    THE CENTRAL INVENTORY AND REFERRAL FEATURE OF THE ARMY CAREER
 MANAGEMENT SYSTEM IS
 
    ESSENTIAL TO THE MANAGEMENT OF THE ARMY IN MEETING WORLD-WIDE
 STAFFING NEEDS, FORECASTING
 
    MANPOWER REQUIREMENTS, MEETING AFFIRMATIVE ACTION OBJECTIVES, AND
 PLACING ADVERSELY AFFECTED
 
    EMPLOYEES, ALL OF WHICH ARE FUNDAMENTAL TO ACCOMPLISHING THE MISSION
 OF THE ARMY.  FOR THESE
 
    REASONS, IT IS CONSIDERED THAT A COMPELLING NEED EXISTS FOR AN AGENCY
 REGULATION WHICH GOVERNS
 
    THE BASIC POLICIES AND PROGRAM REQUIREMENTS FOR INTAKE, ASSIGNMENT,
 CAREER MANAGEMENT AND
 
    DEVELOPMENT OF PERSONNEL IN DESIGNATED OCCUPATIONS THROUGHOUT THE
 DEPARTMENT OF THE ARMY.  /7/
 
    THE AGENCY ALSO CONTENDS THAT, SINCE CPR 950-1 INCORPORATES AND
 APPLIES FEDERAL MERIT PROMOTION REQUIREMENTS SET FORTH IN FEDERAL
 PERSONNEL MANUAL (FPM) CHAPTER 335 TO KEY AGENCY POSITIONS IN SOME 21
 OCCUPATIONAL FIELDS OR CAREER PROGRAMS, THE INSTANT PROPOSAL, IN
 VIOLATING THE AGENCY REGULATION, ALSO IS INCONSISTENT WITH FPM CHAPTER
 335, A GOVERNMENT-WIDE REGULATION.
 
    CPR 950-1 ESTABLISHES A CENTRALIZED, COMPUTERIZED SYSTEM FOR
 IDENTIFYING CANDIDATES FOR VACANCIES IN OCCUPATIONAL FIELDS COVERED BY
 THE REGULATION.  CENTRAL INVENTORIES OF REGISTRANTS IN THE VARIOUS
 CAREER FIELDS ARE ESTABLISHED AT AGENCY HEADQUARTERS AND SUBORDINATE
 COMMANDS.  MINIMUM AREAS OF CONSIDERATION, BASED ON GRADE LEVELS, HAVE
 BEEN ESTABLISHED FOR EACH CAREER PROGRAM.  AS THE GRADES OF VACANCIES
 ASCEND, THE MINIMUM AREA OF CONSIDERATION EXPANDS.  THUS, IN GENERAL,
 THE MINIMUM AREA OF CONSIDERATION FOR COVERED POSITIONS AT GRADE GS-13
 AND ABOVE IS AGENCY-WIDE.  THE AREA OF CONSIDERATION IS NORMALLY
 COMMAND-WIDE FOR POSITIONS ONE GRADE BELOW THE AGENCY-WIDE LEVEL.  LOCAL
 MERIT PROMOTION PLANS ARE USED IN FILLING CAREER PROGRAM VACANCIES BELOW
 THOSE LEVELS.
 
    WITH REGARD TO POSITIONS AT GRADE LEVELS COVERED BY THE CENTRAL
 INVENTORIES, THE AGENCY HAS CONDUCTED ANALYSES OF SUBSTANTIALLY ALL
 OCCUPATIONS INCLUDED IN CAREER PROGRAMS AND THEREBY IDENTIFIED THE
 SKILLS, KNOWLEDGES, ABILITIES AND PERSONAL CHARACTERISTICS (SKAP) WHICH
 ARE CONSIDERED NECESSARY FOR SUCCESSFUL PERFORMANCE IN POSITIONS
 INCLUDED IN INDIVIDUAL CAREER PROGRAMS.  ACCORDING TO THE AGENCY, IN
 DETERMINING THE SKAP ELEMENTS, IT TOOK INTO ACCOUNT NOT ONLY THE NEEDS
 OF LOCAL INSTALLATIONS BUT ALSO THE LONG RANGE NEEDS OF THE AGENCY
 ITSELF.  THE IDENTIFIED SKAP ELEMENTS FORM THE BASIS FOR CONSIDERING,
 EVALUATING, AND COMPARING CANDIDATES FOR REFERRAL TO MANAGERS SEEKING TO
 FILL CAREER PROGRAM VACANCIES.
 
    THE AGENCY CONSTRUES UNION PROPOSAL V AS BARRING THE USE OF SKAP
 ELEMENTS, AND ELIMINATING THE REQUIREMENTS FOR REGISTRATION AND
 APPRAISAL IN ACCORDANCE WITH CPR 950-1.  ACCORDINGLY, THE AGENCY ASSERTS
 THAT THE PROPOSAL "WOULD HAVE THE EFFECT OF SUPPLANTING THE CAREER
 MANAGEMENT SYSTEM IN THE BARGAINING UNIT" AND ULTIMATELY IMPACT
 ADVERSELY ON THE AGENCY-WIDE PROGRAM.
 
    THE UNION TAKES THE POSITION THAT THE AGENCY HAS MISINTERPRETED THE
 SKAP CODE PORTION OF THE PROPOSAL.  IN THIS REGARD, THE UNION
 SPECIFICALLY STATED THAT THE PROPOSAL "STATES ONLY THAT THE SKAP CODES
 WILL NOT 0E USED AS QUALIFICATION REQUIREMENTS.  IT DOES NOT STATE THAT
 MANAGEMENT CANNOT CONSIDER THESE CODES.  THE PROPOSAL ONLY MEANS THAT IT
 IS NOT NECESSARY FOR A PERSON TO BE REGISTERED IN THIS (CAREER) PROGRAM
 IN ORDER FOR THE EMPLOYEE TO BE CONSIDERED FOR A PARTICULAR VACANCY."
 
    THE LANGUAGE OF THE PROPOSAL ITSELF IS CONSISTENT WITH THE UNION'S
 STATEMENT AS TO ITS MEANING WHICH THE AUTHORITY ADOPTS FOR THE PURPOSE
 OF THIS DECISION.  THUS, UNION PROPOSAL V DOES NOT SEEK TO ELIMINATE
 SKILLS, KNOWLEDGES, ABILITIES, AND PERSONAL CHARACTERISTICS AS ELEMENTS
 IN RANKING CANDIDATES FOR VACANCIES WITHIN THE BARGAINING UNIT.  RATHER,
 IT ONLY SEEKS TO ELIMINATE THE EXCLUSIVE USE OF SKAP CODE NUMBERS IN
 RANKING BARGAINING UNIT EMPLOYEES WHO APPLY FOR UNIT VACANCIES.  THE
 EFFECT OF THE PROPOSAL, AS REFLECTED IN ITS LANGUAGE AND THE INTENT OF
 THE UNION, WOULD BE TO PREVENT THE SUMMARY DISQUALIFICATION OF OTHERWISE
 ELIGIBLE BARGAINING UNIT CANDIDATES BASED ON THEIR FAILURE TO BE
 REGISTERED IN THE APPLICABLE CAREER PROGRAM.  THE PROPOSAL DOES NOT
 REQUIRE THAT THE SUBSTANTIVE INFORMATION TO BE USED IN RATING APPLICANTS
 FROM WITHIN THE BARGAINING UNIT BE DIFFERENT IN CONTENT FROM THAT
 EMPLOYED IN RATING COMPETITORS FROM OUTSIDE THE BARGAINING UNIT.  ON THE
 CONTRARY, IT MERELY PERMITS BARGAINING UNIT EMPLOYEES TO BE RATED BASED
 ON DATA WHICH IS DIFFERENT IN FORM ONLY.  MOREOVER, WHILE THE PROPOSAL
 PROHIBITS THE USE OF COMPUTERIZED SKAP CODES WHEN CONSIDERING BARGAINING
 UNIT EMPLOYEES FOR BARGAINING UNIT POSITIONS, IT CANNOT PRECLUDE THE USE
 OF CODED INFORMATION IN IDENTIFYING AND RANKING CANDIDATES FROM OUTSIDE
 THE BARGAINING UNIT OR IN TAKING PERSONNEL ACTIONS AFFECTING CAREER
 PROGRAM POSITIONS OUTSIDE THE UNIT.  IN THE LATTER REGARD, THE AGENCY
 STATES, "POSITIONS AT THE (COMMAND) OR (AGENCY) REFERRAL GRADE LEVELS
 ARE TYPICALLY REPRESENTATIVE OF FIRST LEVEL OR HIGHER SUPERVISORY OR
 STAFF LEVEL POSITIONS IN EACH OF THE CAREER FIELDS." THUS, IT IS CLEAR
 THAT UNION PROPOSAL V WOULD NOT BE APPLICABLE TO THE FILLING OF A
 MAJORITY OF POSITIONS FOR WHICH CENTRALIZED REFERRAL IS PRESCRIBED BY
 CPR 950-1.
 
    IN SUMMARY, THE AGENCY HAS FAILED TO SUSTAIN ITS ASSERTION THAT THE
 PORTION OF CPR 950-1 WHICH REQUIRES IDENTIFICATION AND RANKING OF
 CANDIDATES BY THE SOLE MEANS OF COMPUTERIZED SKAP CODES IS ESSENTIAL, AS
 OPPOSED TO HELPFUL OR DESIRABLE, TO THE ACCOMPLISHMENT OF THE AGENCY'S
 MISSION OR THE EXECUTION OF ITS FUNCTIONS IN AN EFFICIENT MANNER WITHIN
 THE MEANING OF SECTION 2424.11(A).  ACCORDINGLY, THE AUTHORITY
 DETERMINES THAT NO COMPELLING NEED EXISTS FOR THIS PORTION OF CPR 950-1
 TO BAR NEGOTIATIONS ON UNION PROPOSAL V.
 
    AS TO THE AGENCY'S DERIVATIVE CLAIM THAT UNION PROPOSAL V IS
 INCONSISTENT WIT, FPM REQUIREMENTS FOR MERIT PROMOTION PROGRAMS WHICH
 ARE IMPLEMENTED IN CPR 950-1, THIS ASSERTION IS ALSO BASED ON A
 MISAPPREHENSION AS TO THE PROPOSAL'S INTENT WITH RESPECT TO SKAP CODES.
 THUS, THE AGENCY ASSERTS THAT THE BAN ON USE OF SKAP CODES VIOLATES THE
 FPM CHAPTER 335 REQUIREMENT THAT MERIT PROMOTION PLANS INCLUDE JOB
 RELATED CRITERIA, IN ADDITION TO THE BASIC QUALIFICATIONS REQUIREMENTS,
 WHICH ARE ESSENTIAL TO SATISFACTORY PERFORMANCE IN INDIVIDUAL POSITIONS.
  THE BAN, THE AGENCY ALSO CONTENDS, WOULD RESULT IN INEQUITABLE
 TREATMENT OF EMPLOYEES OUTSIDE THE BARGAINING UNIT.  HOWEVER, AS NOTED
 ABOVE IN EXAMINING THE COMPELLING NEED ASSERTIONS OF THE AGENCY, THE
 PROPOSAL DOES NOT BAR THE USE OF SKAP INFORMATION AND THE AGENCY HAS
 MISINTERPRETED THE PROPOSAL IN THIS REGARD.  THEREFORE, THE PROPOSAL IS
 NOT IN CONFLICT WITH FPM REQUIREMENTS, AS ALLEGED BY THE AGENCY.
 
    FINALLY, THE AGENCY'S ASSERTION THAT THE PROPOSAL IS NOT WITHIN THE
 DUTY TO BARGAIN BECAUSE IT PRESCRIBES AN AREA OF CONSIDERATION NARROWER
 THAN THAT SET FORTH IN BOTH THE FPM AND CPR 950-1 FOR POSITIONS AT
 HIGHER GRADE LEVELS, PARTICULARLY GRADES GS-13 AND ABOVE, CANNOT BE
 SUSTAINED.  WITH REGARD TO FPM CHAPTER 335, IT NO LONGER PRESCRIBES
 AGENCY-WIDE MINIMUM AREAS OF CONSIDERATION FOR POSITIONS AT GRADE GS-14
 AND ABOVE AND, CONSEQUENTLY, THE PROPOSAL DOES NOT CONFLICT WITH IT IN
 THIS RESPECT.  AS TO CPR 950-1, THE AGENCY FAILS TO SHOW THAT ITS
 REQUIREMENT THAT MINIMUM AREAS OF CONSIDERATION FOR HIGHER LEVEL
 POSITIONS BE EITHER COMMAND OR AGENCY-WIDE IS ESSENTIAL, AS
 DISTINGUISHED FROM HELPFUL OR DESIRABLE, TO THE ACCOMPLISHMENT OF ITS
 MISSION UNDER THE CRITERION SET FORTH IN SECTION 2424.11(A) OF THE
 AUTHORITY'S RULES AND REGULATIONS.  THEREFORE, THE AUTHORITY DETERMINES
 THAT NO COMPELLING NEED EXISTS FOR THIS PORTION OF CPR 950-1 TO BAR
 NEGOTIATION ON UNION PROPOSAL V.  MOREOVER, THE DISCUSSION OF THE
 NEGOTIABILITY OF AREAS OF CONSIDERATION WITH RESPECT TO UNION PROPOSAL
 IV, HEREIN, IS EQUALLY APPLICABLE TO THIS PARALLEL ASPECT OF UNION
 PROPOSAL V.
 
    ACCORDINGLY, FOR THE REASONS STATED, UNION PROPOSAL V MUST BE HELD TO
 BE WITHIN THE AGENCY'S DUTY TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., AUGUST 5, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (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.
 
    /2/ SECTION 7106(A)(2)(C) PROVIDES AS FOLLOWS:
 
    SEC. 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(.)
 
    /3/ "SECTION F," REFERENCED IN THIS PROPOSAL, IN PART PROVIDES IN
 ESSENCE THAT THE INITIAL SEARCH WILL BE LIMITED TO THE BARGAINING UNIT
 (SEE UNION PROPOSAL IV, HEREIN).
 
    /4/ SEE, THE NATIONAL COUNCIL OF CSA LOCALS, A.F.G.E., AFL-CIO AND
 THE COMMUNITY SERVICES ADMINISTRATION, 3 FLRA NO. 13(1980).
 
    /5/ SECTION 7117(A)(2) PROVIDES:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
   .          .          .          .
 
 
    (2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION,
 EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY AGENCY RULE OR REGULATION
 REFERRED TO IN PARAGRAPH (3) OF THIS SUBSECTION ONLY IF THE AUTHORITY
 HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO COMPELLING
 NEED (AS DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY)
 EXISTS FOR THE RULE OR REGULATION.
 
    /6/ IN SO DECIDING THAT UNION PROPOSAL V IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /7/ THE AGENCY ASSERTIONS ADDRESS, IN SUBSTANCE BUT WITHOUT CITATION,
 THE ILLUSTRATIVE CRITERIA FOR DETERMINING COMPELLING NEED FOR AGENCY
 RULES AND REGULATIONS WHICH WERE IN EFFECT PURSUANT TO SECTION 7135(B)
 OF THE STATUTE BEFORE ISSUANCE OF THE AUTHORITY'S RULES AND REGULATIONS
 IN THEIR CURRENT FORM.  THE ILLUSTRATIVE CRITERIA SET FORTH IN THE
 CURRENT RULES AND REGULATIONS, ISSUED DURING THE PENDENCY OF THIS CASE,
 CLARIFY AND CONSOLIDATE THE PRIOR PROVISIONS IN A MANNER HAVING NO
 BEARING ON THE RESOLUTION OF THE PRESENT DISPUTE (SEE 5 CFR 2413.2(1978)
 AND 45 F.R. 3482, 3485, 3513(1980)).  HENCE, THIS DECISION REFERS TO THE
 CURRENT ILLUSTRATIVE CRITERIA (5 CFR 2424.11(1981)) WHICH, IN RELEVANT
 PART, PROVIDE AS FOLLOWS:
 
    SEC. 2424.11 ILLUSTRATIVE CRITERIA.
 
    A COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING
 ANY CONDITION OF
 
    EMPLOYMENT WHEN THE AGENCY DEMONSTRATES THAT THE RULE OR REGULATION
 MEETS ONE OR MORE OF THE
 
    FOLLOWING ILLUSTRATIVE CRITERIA:
 
    (A) THE RULE OR REGULATION IS ESSENTIAL, AS DISTINGUISHED FROM
 HELPFUL OR DESIRABLE, TO THE
 
    ACCOMPLISHMENT OF THE MISSION OR THE EXECUTION OF FUNCTIONS OF THE
 AGENCY OR PRIMARY NATIONAL
 
    SUBDIVISION IN A MANNER WHICH IS CONSISTENT WITH THE REQUIREMENTS OF
 AN EFFECTIVE AND
 
    EFFICIENT GOVERNMENT.