American Federation of Government Employees, Local 2494, AFL-CIO (Union) and Strategic Weapons Facility Pacific, Bremerton, Washington (Agency)  

 7 FLRA No. 90
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2494
 Union
 
 and
 
 STRATEGIC WEAPONS FACILITY PACIFIC,
 BREMERTON, WASHINGTON
 Agency
 
                                            Case No. O-NG-38
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THIS PETITION FOR REVIEW COMES BEFORE THE FEDERAL LABOR RELATIONS
 AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) 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 PROPOSAL:
 
                              UNION PROPOSAL
 
    PROMOTIONS.  THREE OR MORE NAMES IN THE HIGHLY QUALIFIED CATEGORY
 WILL BE CERTIFIED TO THE SELECTING OFFICIAL FOR CONSIDERATION.  THE
 SELECTION WILL BE MADE FROM THIS CERTIFICATE.  /1/
 
                     QUESTION BEFORE THE AUTHORITY /2/
 
    THE QUESTION IS WHETHER THE DISPUTED PORTION OF THE UNION PROPOSAL IS
 INCONSISTENT WITH THE AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C) OF
 THE STATUTE, /3/ WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS
 FOR APPOINTMENTS, AS ALLEGED BY THE AGENCY.  /4/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE DISPUTED PORTION OF THE UNION PROPOSAL IS
 INCONSISTENT WITH THE AGENCY'S AUTHORITY, WITH RESPECT TO FILLING
 POSITIONS, TO MAKE SELECTIONS FOR APPOINTMENTS UNDER SECTION
 7106(A)(2)(C) OF THE STATUTE AND IS THERFORE NOT WITHIN THE 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
 UNION'S PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED.  /5/
 
    REASONS:  THE DISPUTED PORTION OF THE UNION PROPOSAL REQUIRES EITHER
 THAT THE AGENCY MUST MAKE A SELECTION FOR PROMOTION FROM THREE OR MORE
 QUALIFIED CANDIDATES IDENTIFIED BY THE CERTIFICATE OR THAT, IF THE
 AGENCY CHOOSES TO MAKE A SELECTION, IT MUST BE FROM AMONG THE CERTIFIED
 CANDIDATES.  IN EITHER EVENT THE INTENT AND EFFECT OF THE PROPOSAL WOULD
 BE TO PREVENT MANAGEMENT FROM EXPANDING THE AREA OF CONSIDERATION SO
 LONG AS THREE OR MORE NAMES IN THE HIGHLY QUALIFIED CATEGORY ARE
 CERTIFIED TO THE SELECTING OFFICIAL.
 
    IN THIS REGARD THE PROPOSAL BEARS NO MATERIAL DIFFERENCE FROM THOSE
 WHICH WERE BEFORE THE AUTHORITY AND HELD TO BE OUTSIDE THE DUTY TO
 BARGAIN IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1332 AND
 HEADQUARTERS, U.S. ARMY MATERIEL DEVELOPMENT AND READINESS COMMAND,
 ALEXANDRIA, VIRGINIA, 6 FLRA NO. 66(1981), AT 3-5 OF DECISION (ONE
 HIGHLY QUALIFIED UNIT APPLICANT);  NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1451 AND NAVY EXCHANGE, NAVAL ADMINISTRATIVE COMMAND,
 ORLANDO, FLORIDA, 3 FLRA NO. 60(1980) (THREE MINIMALLY QUALIFIED
 INTERNAL APPLICANTS);  THE NATIONAL COUNCIL OF CSA LOCALS, A.F.G.E.,
 AFL-CIO AND THE COMMUNITY SERVICES ADMINISTRATION, 3 FLRA NO. 13(1980),
 RECONSIDERATION DENIED (1981) (FIVE QUALIFIED IN-HOUSE CANDIDATES).  AS
 STATED IN THOSE CASES, A PROPOSAL WHICH WOULD PREVENT MANAGEMENT FROM
 EXPANDING THE AREA OF CONSIDERATION ONCE A CERTAIN NUMBER OF QUALIFIED
 CANDIDATES ARE IDENTIFIED WOULD PREVENT MANAGEMENT FROM MAKING
 SELECTIONS WITHIN THE MEANING OF SECTION 7106(A)(2)(C) OF THE STATUTE.
 
    HENCE, FOR THE REASONS FULLY SET FORTH IN THE CITED DECISIONS, THE
 DISPUTED PORTION OF THE UNION PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 UNDER THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., JANUARY 7, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ ONLY THE UNDERSCORED PORTION OF THE UNION PROPOSAL IS IN DISPUTE.
 
    /2/ IN ITS STATEMENT OF POSITION, THE AGENCY CLAIMS THAT THE APPEAL
 IS MOOT AND/OR UNTIMELY AND REQUESTS THAT THE PETITION FOR REVIEW BE
 DISMISSED.  AS TO MOOTNESS, THE AGENCY ASSERTS THAT THE PARTIES EXECUTED
 AN AGREEMENT COVERING THE GENERAL SUBJECT MATTER OF THE DISPUTED PORTION
 OF THE UNION PROPOSAL, AND THAT THE AGREEMENT CONTAINED NEITHER A
 SAVINGS NOR AN OPERATIVE REOPENING CLAUSE.  CONTRARY TO THE AGENCY'S
 ASSERTION, THE RECORD SHOWS THAT THE AGREEMENT CONTAINS A REOPENING
 CLAUSE PROVIDING THAT THE AGREEMENT MAY BE REOPENED ONCE BY EACH PARTY.
 FURTHERMORE, THE RECORD INDICATES THAT THE PARTIES CONTEMPLATED AN
 APPEAL OF THE ISSUE INVOLVED IN THIS CASE AS WELL AS SUBSEQUENT
 NEGOTIATIONS IN THE EVENT IT MIGHT BE FOUND TO BE WITHIN THE DUTY TO
 BARGAIN.  ACCORDINGLY, THE AGENCY'S REQUEST THAT THE UNION'S APPEAL BE
 DISMISSED AS MOOT IS DENIED.
 
    AS TO TIMELINESS, THE AGENCY DID NOT RESPOND SUBSTANTIVELY TO THE
 UNION'S REQUEST, UNDER THE PROCEDURES THEN IN EFFECT PURSUANT TO E.O.
 11491, FOR AN AGENCY HEAD DETERMINATION OF NONNEGOTIABILITY.  RATHER, IT
 MERELY RAISED THE PROCEDURAL CLAIM OF MOOTNESS AS ALREADY DISCUSSED.
 UNDER E.O. 11491 AND THE RULES OF PROCEDURE OF THE FEDERAL LABOR
 RELATIONS COUNCIL, THE TIME LIMIT ON THE UNION FOR FILING ITS APPEAL
 WOULD NOT HAVE BEGUN TO RUN IN THE ABSENCE OF AN APPROPRIATE RESPONSE TO
 ITS REQUEST FOR AN AGENCY HEAD DETERMINATION.  SIMILARLY, UNDER THE
 STATUTE AND THE IMPLEMENTING RULES AND REGULATIONS OF THE AUTHORITY, AN
 AGENCY'S FAILURE TO TIMELY PROVIDE, UPON REQUEST, AN ALLEGATION
 CONCERNING THE ABSENCE OF A DUTY TO BARGAIN ON A MATTER PROPOSED FOR
 NEGOTIATIONS EFFECTIVELY PERMITS THE UNION TO FILE ITS APPEAL WITHOUT
 THE TIME BEGINNING TO RUN.  NATIONAL TREASURY EMPLOYEES UNION AND NTEU
 BUFFALO DISTRICT JOINT COUNCIL AND INTERNAL REVENUE SERVICE, BUFFALO
 DISTRICT (AND CASES CONSOLIDATED THEREWITH), 3 FLRA NO. 54(1980).  THUS,
 UNDER THE CIRCUMSTANCES IT IS CONCLUDED THAT THE UNION'S APPEAL WAS
 TIMELY FILED.
 
    /3/ 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
 APPOINTMENTS FROM--
 
    (I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION;  OR
 
    (II) ANY OTHER APPROPRIATE SOURCE(.)
 
    /4/ THE OFFICE OF PERSONNEL MANAGEMENT SUBMITTED AN AMICUS CURIAE
 BRIEF IN SUPPORT OF THE POSITION THAT THE DISPUTED PORTION OF THE UNION
 PROPOSAL IS NONNEGOTIABLE.
 
    /5/ THE AGENCY ALSO ALLEGES THAT THE DISPUTED PORTION OF THE UNION
 PROPOSAL VIOLATES SECTION 7106(A)(2)(A) OF THE STATUTE AND FEDERAL
 PERSONNEL MANUAL CHAPTER 335.  IN VIEW OF OUR DECISION HEREIN, IT IS
 UNNECESSARY TO ADDRESS THESE ADDITIONAL AGENCY CONTENTIONS.