American Federation of Government Employees, Local 909, AFL-CIO (Union) and Department of the Army, Headquarters, Military Traffic Management Command, Washington, DC (Agency)  

 6 FLRA No. 96
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 909
 Union
 
 and
 
 DEPARTMENT OF THE ARMY, HEADQUARTERS,
 MILITARY TRAFFIC MANAGEMENT COMMAND,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-272
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
 PURSUANT TO SECTION 7105(A)(2)(D) AND (E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).  THE ISSUE PRESENTED
 IS THE NEGOTIABILITY OF THE UNDERSCORED PORTION OF THE FOLLOWING
 PROPOSAL:
 
                              UNION PROPOSAL
 
    SECTION 1.  THE EMPLOYER AGREES TO FOLLOW APPLICABLE PROVISIONS IN
 THE PUBLISHED MERIT
 
    PROMOTION AND INTERNAL PLACEMENT PLAN (SECTION VII, CHAPTER 3, OF THE
 HQMTC STAFF REGULATION,
 
    DATED . . . ) FOR PROMOTIONS, REASSIGNMENTS AND DETAILS IN EXCESS OF
 120 DAYS, TRANSFERS,
 
    REINSTATEMENTS, AND APPOINTMENTS FROM OPM REGISTERS TO POSITIONS OF
 HIGHER GRADE OR POSITIONS
 
    WITH KNOWN PROMOTIONAL POTENTIAL.  THE PLAN DOES NOT APPLY TO
 MANDATORY PLACEMENT ACTIONS
 
    REQUIRED IN CONNECTION WITH REDUCTION-IN-FORCE;  STATUTORY,
 REGULATORY, OR ADMINISTRATIVE
 
    REEMPLOYMENT OR RESTORATION RIGHTS;  OVERSEAS INTERCHANGE PROGRAM;
 AND OTHER PLACEMENT ACTIONS
 
    REQUIRED BY LAW OR GOVERNMENT-WIDE REGULATIONS.  ALL POSITIONS IN THE
 BARGAINING UNIT,
 
    IRRESPECTIVE OF GRADE AND SERIES, AND THRESHOLD SUPERVISORY POSITIONS
 WILL BE FILLED UNDER THE
 
    LOCAL HQMTMC MERIT PROMOTION AND INTERNAL PLACEMENT PLAN AND WILL USE
 A NEGOTIATED PROCEDURE
 
    FOR RATING, RANKING, AND EVALUATING CANDIDATES FOR REFERRAL.  THE
 PROCEDURE USED TO RATE,
 
    RANK, AND EVALUATE CANDIDATES WILL BE PROVIDED TO AN EMPLOYEE UPON
 REQUEST.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER, AS ALLEGED BY THE AGENCY, THE UNION'S
 PROPOSAL IS INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (C) OF THE
 STATUTE;  /1/ CONFLICTS WITH AN AGENCY REGULATION FOR WHICH THERE IS A
 COMPELLING NEED;  AND/OR IS OUTSIDE THE DUTY TO BARGAIN TO THE EXTENT
 THAT IT APPLIES TO "THRESHOLD SUPERVISORY POSITIONS."
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL IS NOT INCONSISTENT WITH SECTION
 7106(A)(2)(A) AND (C) OF THE STATUTE OR THE AGENCY'S REGULATION AND, TO
 THE EXTENT IT CONCERNS PROCEDURES FOR FILLING BARGAINING UNIT POSITIONS,
 THE PROPOSAL FALLS WITHIN THE AMBIT OF SECTION 7106(B)(2) AND IS WITHIN
 THE DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, IT
 IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO
 BY THE PARTIES) BARGAIN IN THIS REGARD CONCERNING THE PROPOSAL.  /2/ TO
 THE EXTENT, HOWEVER, THAT THE PROPOSAL PERTAINS TO THE FILLING OF
 POSITIONS OUTSIDE THE BARGAINING UNIT, I.E., "THRESHOLD SUPERVISORY
 POSITIONS," IT IS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY AND THE
 AGENCY HAS DECLINED TO NEGOTIATE.  ACCORDINGLY, IT IS ORDERED THAT THE
 UNION'S PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED TO THIS
 EXTENT.
 
    REASONS:  THE AUTHORITY WILL ADDRESS FIRST THE AGENCY'S CONTENTION
 THAT THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT COVERS
 NON-BARGAINING UNIT, I.E., SUPERVISORY, POSITIONS.  THIS CONTENTION MUST
 BE SUSTAINED.  THE AUTHORITY HAS PREVIOUSLY HELD THAT PROPOSALS WHICH
 PERTAIN TO THE FILLING OF NON-BARGAINING UNIT POSITIONS DO NOT RELATE TO
 CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES AND, HENCE, ARE
 NOT WITHIN THE REQUIRED SCOPE OF BARGAINING;  RATHER, THEY ARE
 NEGOTIABLE SOLELY AT THE ELECTION OF THE AGENCY.  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2 AND DEPARTMENT OF THE ARMY,
 MILITARY DISTRICT OF WASHINGTON, 4 FLRA NO. 60 (1980);  HAWAII FEDERAL
 EMPLOYEES METAL TRADES COUNCIL, AFL-CIO AND DEPARTMENT OF THE NAVY, NAVY
 PUBLIC WORKS CENTER, PEARL HARBOR, HAWAII, 4 FLRA NO. 3(1980);
 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND PHILADELPHIA
 NAVAL SHIPYARD, 3 FLRA NO.  66(1980).  SINCE THE AGENCY HAS ELECTED NOT
 TO BARGAIN ON THE PROPOSAL AS IT RELATES TO THE FILLING OF THRESHOLD
 SUPERVISORY POSITIONS, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT
 WITHIN THE DUTY TO BARGAIN IS, TO THAT EXTENT, SUSTAINED.
 
    THE AGENCY FURTHER CONTENDS THAT THE BALANCE OF THE DISPUTED PORTION
 OF THE UNION'S PROPOSAL WOULD REQUIRE THAT ALL BARGAINING UNIT POSITIONS
 BE FILLED AND "BY ONLY ONE MEANS-- PROMOTION-- AND THROUGH ONLY ONE
 SOURCE-- THE LOCAL MERIT PROMOTION PLAN." THUS, THE AGENCY CONCLUDES
 THAT THE PROPOSAL WOULD UNDULY RESTRICT ITS RIGHT TO HIRE AND ASSIGN
 EMPLOYEES UNDER SECTION 7106(A)(2)(A) AND ITS RIGHT TO FILL POSITIONS
 AND TO MAKE SELECTIONS FROM AMONG PROPERLY RANKED AND CERTIFIED
 CANDIDATES FOR PROMOTION OR FROM ANY OTHER APPROPRIATE SOURCE WITHIN THE
 MEANING OF SECTION 7106(A)(2)(C).
 
    IN RESPONSE, THE UNION ASSERTS THAT ITS PROPOSAL WOULD NOT PREVENT
 MANAGEMENT FROM ACTING IN ACCORDANCE WITH ITS RIGHTS UNDER SECTIONS
 7106(A)(2)(A) OR 7106(A)(2)(C), BUT WOULD REQUIRE ONLY THAT IF AND WHEN
 THE AGENCY DECIDES TO HIRE OR FILL POSITIONS, IT MUST DO SO IN
 ACCORDANCE WITH AN ESTABLISHED PROCEDURE.  ACCORDINGLY, THE UNION
 CONTENDS, INTER ALIA, THAT ITS PROPOSAL CONSISTS OF NEGOTIABLE
 PROCEDURES WITHIN THE MEANING OF SECTION 7106(B)(2) OF THE STATUTE.  /3/
 WE AGREE WITH THE UNION.
 
    THE RECORD INDICATES THAT THE MERIT PROMOTION AND INTERNAL PLACEMENT
 PLAN (THE PLAN) REFERRED TO IN THE UNION'S PROPOSAL COVERS POSITIONS IN
 THE COMPETITIVE SERVICE AT HEADQUARTERS, MILITARY TRAFFIC MANAGEMENT
 COMMAND AND WAS DESIGNED TO "PROVIDE A SYSTEMATIC AND EQUITABLE BASIS
 FOR FILLING CIVILIAN POSITIONS";  TOWARD THIS END, IT OUTLINES A
 COMPETITIVE PROCEDURE TO BE UTILIZED WHEN VARIOUS PLACEMENT AND
 PROMOTION ACTIONS ARE UNDERTAKEN.  /4/ AT THE SAME TIME, THE PLAN
 SPECIFICALLY EXCLUDES FROM ITS COVERAGE OTHER TYPES OF PLACEMENT ACTIONS
 AS WELL AS CERTAIN POSITIONS WITHIN THE COMPETITIVE SERVICE.
 
    IN THE PART OF THE PROPOSAL AT ISSUE, THE UNION SEEKS TO APPLY THE
 COMPETITIVE PROCEDURE OUTLINED IN THE PLAN TO THE FILLING OF BARGAINING
 UNIT POSITIONS ONCE THE AGENCY HAS DETERMINED TO FILL A UNIT POSITION
 THROUGH PROMOTION, REASSIGNMENT, DETAIL IN EXCESS OF 120 DAYS, TRANSFER,
 REINSTATEMENT, OR APPOINTMENT FROM AN OFFICE OF PERSONNEL MANAGEMENT
 REGISTER TO A POSITION OF A HIGHER GRADE OR WITH KNOWN PROMOTION
 POTENTIAL.  CONTRARY TO THE AGENCY'S CHARACTERIZATION, NOTHING CONTAINED
 IN THIS PROPOSAL WOULD REQUIRE THE AGENCY TO FILL ALL UNIT POSITIONS,
 /5/ NOR WOULD THE PROPOSAL COMPEL A SELECTION ONLY ON THE BASIS THAT IT
 WOULD CONSTITUTE A PROMOTION.  RATHER, CONSISTENT WITH THE UNION'S
 STATED INTENT, THE PROPOSAL ON ITS FACE WOULD SIMPLY REQUIRE THE AGENCY
 TO UTILIZE THE COMPETITIVE PROCEDURE OUTLINED IN THE PLAN IF THE AGENCY
 DECIDES TO FILL A BARGAINING UNIT POSITION THROUGH ANY OF THE ACTIONS
 SPECIFIED IN THE PROPOSAL.  WHILE THE PROPOSAL WOULD REQUIRE MANAGEMENT
 TO USE COMPETITIVE PROCEDURES UNDER THE PLAN IN FILLING UNIT POSITIONS,
 THIS REQUIREMENT IN AND OF ITSELF IS NOT INCONSISTENT WITH THE AGENCY'S
 RIGHTS UNDER THE STATUTE SINCE THE PLAN PROVIDES FOR CONSIDERATION OF
 CANDIDATES FROM OTHER APPROPRIATE SOURCES OUTSIDE THE MINIMUM AREA OF
 CONSIDERATION ESTABLISHED BY THE PLAN.  SEE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA NO. 77(1980) (AT PAGE 10),
 WHEREIN THE AUTHORITY SAID THAT:
 
    (C)OMPETITIVE PROCEDURES RESERVE THE AGENCY'S RIGHT TO SELECT THE
 EMPLOYEE FOR PROMOTION OR ASSIGNMENT FROM AMONG THOSE AVAILABLE THROUGH
 ANY APPROPRIATE SOURCE.  /6/
 
    ACCORDINGLY, THE AUTHORITY FINDS THAT THE UNION'S PROPOSAL, AS IT
 APPLIES TO BARGAINING UNIT POSITIONS, DOES NOT CONFLICT WITH THE
 AGENCY'S RIGHT TO HIRE AND ASSIGN EMPLOYEES OR TO FILL POSITIONS FROM
 ANY APPROPRIATE SOURCE WITHIN THE MEANING OF SECTIONS 7106(A)(2)(A) AND
 7106(A)(2)(C) OF THE STATUTE, RESPECTIVELY.  RATHER THE PROPOSAL
 CONCERNS PROCEDURES NEGOTIABLE UNDER SECTION 7106(B)(2) OF THE STATUTE.
 
    THE AGENCY FURTHER ALLEGES THAT THE UNION'S PROPOSAL CONFLICTS WITH
 AN INTERNAL AGENCY REGULATION FOR WHICH THERE IS A COMPELLING NEED.
 SPECIFICALLY, THE AGENCY STATES THAT THERE ARE BARGAINING UNIT POSITIONS
 IN THE DEPARTMENT OF THE ARMY'S (DA) CAREER MANAGEMENT PROGRAM COVERED
 BY DA CIVILIAN PERSONNEL REGULATION (CPR) 950-1, WHICH REGULATION
 ESSENTIALLY CONSTITUTES THE ARMY'S MERIT PLACEMENT PLAN FOR CAREER
 PROGRAM POSITIONS AS "MANDATORY REFERRAL LEVELS." THE AGENCY'S POSITION
 IS THAT THE UNION'S PROPOSAL, BY EXTENDING COVERAGE OF THE LOCAL MERIT
 PLACEMENT PLAN TO BARGAINING UNIT POSITIONS IN THE CAREER MANAGEMENT
 PROGRAM, CONFLICTS WITH CPR 950-1.
 
    AS MENTIONED ABOVE, HOWEVER, THE PLAN EXPRESSLY EXCLUDES FROM ITS
 COVERAGE CERTAIN POSITIONS WITHIN THE COMPETITIVE SERVICE.  OF
 PARTICULAR IMPORTANCE IN THE CIRCUMSTANCES OF THIS CASE IS ONE OF THE
 SPECIFIC EXCLUSIONS CONTAINED IN SECTION 2-2 OF THE PLAN:
 
    2-2.  POSITIONS COVERED.  THIS PLAN APPLIES TO ALL POSITIONS IN THE
 COMPETITIVE SERVICE
 
    WITH THE FOLLOWING EXCEPTIONS:
 
    A.  CAREER MANAGEMENT PROGRAM.  POSITIONS IDENTIFIED AT MANDATORY
 COMMAND, DA OR DOD-WIDE
 
    REFERRAL LEVELS ARE FILLED IN ACCORDANCE WITH DA CIVILIAN PERSONNEL
 REGULATION 950-1. FILLED
 
    IN ACCORDANCE WITH DA CIVILIAN PERSONNEL REGULATION 950-1.
 
    BY THE TERMS OF THE PLAN ITSELF, THEREFORE, BARGAINING UNIT POSITIONS
 COVERED BY THE CAREER MANAGEMENT PROGRAM-- THOSE AT MANDATORY COMMAND,
 DEPARTMENT OF THE ARMY OR DEPARTMENT OF DEFENSE REFERRAL LEVELS-- ARE
 EXCLUDED FROM COVERAGE OF THE PLAN.  ACCORDINGLY, SINCE THE UNION'S
 PROPOSAL INCORPORATES THE PLAN'S PROCEDURE, THE PROPOSAL WOULD NOT
 EXTEND COVERAGE OF THE PLAN TO BARGAINING UNIT POSITIONS IN THE CAREER
 MANAGEMENT PROGRAM EITHER WITH RESPECT TO FILLING SUCH POSITIONS OR WITH
 RESPECT TO RATING, RANKING, AND EVALUATING CANDIDATES FOR REFERRAL.
 THUS, IN THIS RESPECT THE PROPOSAL DOES NOT CONFLICT WITH CPR 950-1.
 
    IT SHOULD ALSO BE NOTED THAT WITH REGARD TO BARGAINING UNIT POSITIONS
 IN THE CAREER MANAGEMENT PROGRAM AT LESS THAN MANDATORY REFERRAL LEVELS,
 THE PROPOSAL SIMILARLY WOULD NOT CONFLICT WITH CPR 950-1 SINCE THE
 LATTER SPECIFIES THAT SUCH POSITIONS MAY BE FILLED UNDER LOCAL MERIT
 PROMOTION PLANS.  /7/ IN THIS CONNECTION, THE AGENCY HAS ACKNOWLEDGED,
 IN ITS STATEMENT OF POSITION FILED WITH THE AUTHORITY THAT "(P)OSITIONS
 BELOW THE MACOM (MAJOR COMMAND)-- WIDE REFERRAL LEVELS ARE FILLED
 THROUGH LOCAL MERIT PROMOTION PROCEDURES." /8/
 
    IN SUM, THE AUTHORITY FINDS THAT TO THE EXTENT THE UNION'S PROPOSAL
 PERTAINS TO PROCEDURES FOR THE FILLING OF BARGAINING UNIT POSITIONS, IT
 IS WITHIN THE AGENCY'S DUTY TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7106(A) PROVIDES, IN PERTINENT PART, 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--
 
    (A) TO HIRE (OR) ASSIGN . . . EMPLOYEES IN THE AGENCY . . .
 
   .          .          .          .
 
 
    (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. . . .
 
    /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) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    (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;  . . .
 
    /4/ EXAMPLES OF PLACEMENT ACTIONS FOR WHICH COMPETITIVE PROCEDURES
 CONTAINED IN SECTION 3-1 OF THE PLAN APPLY, ARE AS FOLLOWS:
 REASSIGNMENT OR DEMOTION TO A POSITION WITH KNOWN PROMOTION POTENTIAL
 (WITH CERTAIN EXCEPTIONS NOT HERE RELEVANT);  DETAILS OF MORE THAN 60
 DAYS TO A HIGHER GRADE POSITION OR TO A POSITION WITH KNOWN PROMOTION
 POTENTIAL;  TEMPORARY PROMOTIONS OF MORE THAN 120 DAYS;  AND
 APPOINTMENTS, REINSTATEMENTS OR TRANSFERS TO VACANCIES THAT PROVIDE
 PROMOTION OPPORTUNITY FOR EMPLOYEES COVERED BY THE PLAN.
 
    /5/ COMPARE NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE
 SERVICE, 2 FLRA NO. 33 (1970), IN WHICH THE AUTHORITY FOUND
 NONNEGOTIABLE A PROPOSAL WHICH, BY ITS PLAIN LANGUAGE, WOULD HAVE
 REQUIRED AN AGENCY TO FILL A CERTAIN PERCENTAGE OF POSITIONS.
 
    /6/ FEDERAL PERSONNEL MANUAL, CHAP. 335, SUBCHAP. 1-4, REQUIREMENT 4
 PROVIDES AS FOLLOWS:
 
    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.
 
    /7/ SUBCHAPTER 6 OF CPR 950-1 PROVIDES THAT:
 
    MACOM MAY ESTABLISH INVENTORIES WHICH CONTAIN RECORDS OF CAREER
 PROGRAM EMPLOYEES IN
 
    POSITIONS OR ELIGIBLE FOR POSITIONS BELOW THE REFERRAL LEVELS
 INDICATED IN 6-1 (A CHART
 
    OUTLINING MINIMUM AREAS OF CONSIDERATION FOR POSITIONS IN THE CAREER
 MANAGEMENT
 
    PROGRAM).  THIS INVENTORY MAY BE USED ON AN OPTIONAL BASIS AS A
 SUPPLEMENTARY SOURCE OF
 
    CANDIDATES FOR POSITIONS FILLED UNDER ACTIVITY MERIT PROMOTION PLANS.
 
    /8/ SINCE THE AUTHORITY HAS CONCLUDED THAT THERE IS NO CONFLICT
 BETWEEN THE UNION'S PROPOSAL AND THE AGENCY'S REGULATION, IT IS
 UNNECESSARY FOR THE AUTHORITY TO RULE ON WHETHER A COMPELLING NEED
 EXISTS FOR THAT REGULATION.