09:0148(19)NG - NFFE Locals 1707, 1737 and 1708 and HQ, Louisiana Air and Army NG, New Orleans, LA -- 1982 FLRAdec NG

 9 FLRA No. 19
 
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
 LOCALS 1707, 1737 AND 1708
 Union
 
 and
 
 HEADQUARTERS, LOUISIANA AIR AND
 ARMY NATIONAL GUARD, NEW
 ORLEANS, LOUISIANA
 Agency
 
                                            Case No. 0-NG-287
 
                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) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
 AND RAISES THE ISSUE OF THE NEGOTIABILITY OF THE FOLLOWING TWO UNION
 PROPOSALS:
 
                             UNION PROPOSAL 1
 
    16.A.(2) AREA OF CONSIDERATION
 
    (A) NON-SUPERVISORY AND SUPERVISORY POSITIONS (DEFINED AS GS-10/WS-10
 AND BELOW EXCEPT
 
    STATE HQ POSITIONS DEFINED AS GS-08 AND BELOW)
 
    1.  APPLICATIONS WILL BE ACCEPTED FROM ALL QUALIFIED LOUISIANA
 NATIONAL GUARD PERMANENT
 
    TECHNICIANS, UNLESS AREA OF CONSIDERATION IS RESTRICTED TO A SPECIAL
 GROUP OF TECHNICIANS.
 
    2.  APPLICATIONS OF QUALIFIED MEMBERS OF THE LOUISIANA NATIONAL GUARD
 WILL BE CONSIDERED
 
    WHEN A QUALIFIED PERMANENT TECHNICIAN IS NOT AVAILABLE.
 
    3.  APPLICATIONS OF QUALIFIED INDIVIDUALS WHO ARE NOT MEMBERS OF THE
 LOUISIANA NATIONAL
 
    GUARD, BUT WHO ARE ELIGIBLE FOR MEMBERSHIP (DEFINED AS APPLICANTS
 HOLDING MILITARY STATUS IN
 
    ANOTHER COMPONENT TRANSFERABLE TO A COMPARABLE ASSIGNMENT IN THE
 LOUISIANA NATIONAL GUARD AND
 
    QUALIFIED PRIOR SERVICE PERSONNEL) IN THE APPROPRIATE GRADE WILL BE
 CONSIDERED WHEN A
 
    QUALIFIED MEMBER OF THE LOUISIANA NATIONAL GUARD IS NOT AVAILABLE.
 
    (B) SUPERVISORY POSITIONS ABOVE GS-10/WS-10 AND STATE HQ POSITIONS
 GS-09 AND ABOVE.
 
    1.  UNLESS OTHERWISE INDICATED IN THE VACANCY ANNOUNCEMENT
 APPLICATIONS WILL BE ACCEPTED
 
    FROM ALL QUALIFIED MEMBERS OF THE LOUISIANA NATIONAL GUARD.
 
    2.  APPLICATIONS OF QUALIFIED INDIVIDUALS WHO ARE NOT MEMBERS OF THE
 LOUISIANA NATIONAL
 
    GUARD, BUT WHO ARE ELIGIBLE FOR MEMBERSHIP (DEFINED AS APPLICANTS
 HOLDING MILITARY STATUS IN
 
    ANOTHER COMPONENT TRANSFERABLE TO A COMPARABLE ASSIGNMENT IN THE
 LOUISIANA NATIONAL GUARD AND
 
    QUALIFIED PRIOR SERVICE PERSONNEL) IN THE APPROPRIATE GRADE WILL BE
 CONSIDERED WHEN A
 
    QUALIFIED MEMBER OF THE LOUISIANA NATIONAL GUARD IS NOT AVAILABLE.
 
                             UNION PROPOSAL 2
 
    16.A.(5) APPLICATIONS OF CANDIDATES DETERMINED TO BE BASICALLY
 ELIGIBLE WILL BE REFERRED TO
 
    A REVIEW PANEL CONSISTING OF THE FOLLOWING MEMBERS:
 
    (A) TECHNICIAN PERSONNEL OFFICE REPRESENTATIVE (TECHNICIAN PERSONNEL
 OFFICER OR PERSONNEL
 
    MANAGEMENT SPECIALIST)-- PERMANENT MEMBER.
 
    (B) MANAGEMENT OR SUPERVISORY OFFICIAL OF THE ORGANIZATION OR
 ACTIVITY WHERE THE VACANCY
 
    EXISTS WHO HAS KNOWLEDGE OF THE POSITION TO BE FILLED-- AD HOC
 MEMBER.
 
    (C) LABOR ORGANIZATION MEMBER-- AD HOC MEMBER.
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
    WITH REGARD TO PROPOSAL 1, THE ONLY ISSUE RAISED BY THE AGENCY AND
 HENCE, THE ONLY ISSUE DECIDED HEREIN, CONCERNS THE NEGOTIABILITY OF
 PROCEDURES FOR FILLING SUPERVISORY POSITIONS.  IN THIS RESPECT, THE
 PROPOSAL BEARS NO MATERIAL DIFFERENCE FROM THE MERIT PROMOTION PROPOSAL
 IN INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND
 PHILADELPHIA NAVAL SHIPYARD, 3 FLRA 438 (1980) WHICH THE AUTHORITY HELD
 TO BE OUTSIDE THE DUTY TO BARGAIN SINCE IT CONCERNED NON-BARGAINING
 UNIT, SUPERVISORY POSITIONS.  FOR THE REASONS FULLY SET FORTH IN THE
 PHILADELPHIA NAVAL SHIPYARD CASE, THE AGENCY'S ALLEGATION, THAT TO THIS
 EXTENT PROPOSAL 1 IS OUTSIDE THE DUTY TO BARGAIN, IS SUSTAINED.
 
    WITH REGARD TO PROPOSAL 2, THE PRINCIPAL ISSUE RAISED BY THE AGENCY
 CONCERNS THE UNION'S ATTEMPT TO DETERMINE MANAGEMENT'S REPRESENTATIVES
 ON RATING AND RANKING PANELS.  IN AGREEMENT WITH THE AGENCY, THE
 AUTHORITY CONCLUDES THAT AS THE OBJECTED-TO PORTION OF THE PROPOSAL
 WOULD DESIGNATE THE PARTICULAR MANAGEMENT OFFICIALS WHO WOULD REPRESENT
 THE AGENCY ON RATING AND RANKING PANELS, THAT PORTION OF THE PROPOSAL IS
 INCONSISTENT WITH MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(B) OF THE
 STATUTE TO "DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED." CONSEQUENTLY, THE OBJECTED-TO PORTION OF PROPOSAL 2 IS
 OUTSIDE THE DUTY TO BARGAIN.  /1/
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR -424.10 (1981)), IT IS ORDERED THAT THE UNION'S
 PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 23, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 1786 AND MARINE CORPS DEVELOPMENT AND EDUCATION COMMAND, QUANTICO,
 VIRGINIA, 2 FLRA 423 (1980) WHEREIN THE AUTHORITY HELD NEGOTIABLE A
 PROVISION WHICH ESTABLISHED A UNION RIGHT TO REPRESENTATION ON WAGE
 SURVEY TEAMS BUT, UNLIKE PROPOSAL 2 HERE IN DISPUTE, DID NOT DESIGNATE
 THE PERSONNEL WHO WOULD REPRESENT THE AGENCY'S INTERESTS ON SUCH WAGE
 SURVEY TEAMS.