09:1042(148)NG - NAGE Local Rl4-52 and Army, Red River Army Depot, Texarkana, TX -- 1982 FLRAdec NG

 9 FLRA No. 148
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R14-52
 Union
 
 and
 
 DEPARTMENT OF THE ARMY,
 RED RIVER ARMY DEPOT,
 TEXARKANA, TEXAS
 Agency
 
                                            Case No. O-NG-458
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THIS CASE COMES BEFORE THE AUTHORITY PURSUANT TO SECTION
 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
 (THE STATUTE).  THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THREE UNION
 PROPOSALS.  UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING
 THE CONTENTIONS OF THE PARTIES, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATIONS.
 
                             UNION PROPOSAL 1
 
    EMPLOYEES THAT ARE REASSIGNED INVOLUNTARILY TO POSITIONS HAVING NO
 KNOWN PROMOTION
 
    POTENTIAL WILL BE GIVEN THE FIRST OPPORTUNITY TO BE PLACED BACK INTO
 THE POSITION THAT THEY
 
    FORMERLY HELD.
 
    UNION PROPOSAL 1 REQUIRES THAT EMPLOYEES UNDER CERTAIN CIRCUMSTANCES
 BE OFFERED POSITIONS THEY FORMERLY HELD BEFORE THOSE POSITIONS CAN BE
 FILLED THROUGH OTHER MEANS.  BY THUS REQUIRING THE AGENCY TO SELECT
 CERTAIN EMPLOYEES WHEN IT CHOOSES TO FILL CERTAIN POSITIONS, THE
 PROPOSAL IS INCONSISTENT WITH THE AGENCY'S AUTHORITY UNDER SECTION
 7106(A)(2)(C) OF THE STATUTE /1/ TO MAKE SELECTIONS FOR APPOINTMENTS
 FROM PROMOTION CERTIFICATES, OR FROM ANY OTHER APPROPRIATE SOURCE.
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2782 AND
 DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON, D.C., 7 FLRA
 NO. 13(1981), APPEAL DOCKETED SUB NOM. AFGE, LOCAL 2782 V. FLRA, NO.
 81-2386(D.C. CIR. DEC. 29, 1981).
 
                             UNION PROPOSAL 2
 
    VOLUNTARY REQUESTS FOR REASSIGNMENTS TO THE SAME GRADE UNLESS IT IS
 TO THE SAME JOB
 
    CLASSIFICATION WILL NOT BE MADE TO FILL A VACANT POSITION UNTIL
 COMPETITIVE PROCEDURES HAVE
 
    BEEN PROCESSED AND IT IS DETERMINED THERE ARE NO QUALIFIED APPLICANTS
 TO FILL THE POSITION
 
    UNDER THE LOCAL MERIT PROMOTION PROCEDURE.
 
    UNION PROPOSAL 2 AS EXPLAINED BY THE UNION IS INTENDED TO REQUIRE THE
 AGENCY TO FILL VACANT POSITIONS THROUGH THE USE OF COMPETITIVE
 PROCEDURES WHEN THOSE PROCEDURES YIELD ANY QUALIFIED APPLICANTS, UNLESS
 THE AGENCY CHOOSES A VOLUNTEER WHO PREVIOUSLY OCCUPIED A POSITION WITH
 THE SAME JOB CLASSIFICATION.  IN NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1451 AND NAVY EXCHANGE, NAVAL ADMINISTRATIVE COMMAND,
 ORLANDO, FLORIDA, 3 FLRA 392(1980), THE AUTHORITY DETERMINED THAT A
 PROPOSAL REQUIRING THE AGENCY TO SELECT ONE OF THREE QUALIFIED
 APPLICANTS FROM A COMPETITIVE RANKING DRAWN FROM THE MINIMUM AREA OF
 CONSIDERATION AND ALLOWING CONSIDERATION OF OTHER CANDIDATES ONLY IF
 THERE WERE LESS THAN THREE QUALIFIED APPLICANTS ON THAT RANKING OPERATED
 TO PREVENT THE AGENCY FROM EXERCISING ITS RIGHT, WITHIN THE MEANING OF
 SECTION 7106(A)(2)(C) OF THE STATUTE, TO MAKE SELECTIONS FROM PROMOTION
 CERTIFICATES OR ANY OTHER APPROPRIATE SOURCE.  UNION PROPOSAL 2 HEREIN
 SIMILARLY WOULD FORECLOSE CONSIDERATION OF OTHER CANDIDATES (EXCEPT A
 VOLUNTEER WHO PREVIOUSLY OCCUPIED A POSITION WITH THE SAME JOB
 CLASSIFICATION) IF EVEN ONE QUALIFIED APPLICANT WERE LOCATED IN THE
 COMPETITIVE RANKING PROCESS 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 3
 
    DETAILS TO A HIGHER GRADE THAT ARE NON-COMPETITIVE WILL BE FOR
 MAXIMUM OF 60 DAYS.
 
    UNION PROPOSAL 3 HAS THE EFFECT OF REQUIRING THE AGENCY TO USE
 COMPETITIVE PROMOTION PROCEDURES WHEN MAKING A DETAIL OF AN EMPLOYEE FOR
 MORE THAN 60 DAYS TO A HIGHER GRADED POSITION.  THIS PROPOSAL IS
 SUBSTANTIALLY IDENTICAL TO UNION PROPOSAL 16 IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL IMMIGRATION AND NATURALIZATION
 SERVICE COUNCIL AND U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND
 NATURALIZATION SERVICE, 8 FLRA NO. 75(1982).  IN THAT CASE, THE
 AUTHORITY REJECTED THE AGENCY'S ALLEGATION OF NONNEGOTIABILITY AND FOUND
 THE PROPOSAL TO BE WITHIN THE DUTY TO BARGAIN.  HENCE, FOR THE REASONS
 SET FORTH THEREIN, UNION PROPOSAL 3 IS 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 RELATING THE UNION PROPOSALS 1 AND 2 BE, AND IT
 HEREBY IS, DISMISSED.  HOWEVER, UNION PROPOSAL 3 IS WITHIN THE DUTY TO
 BARGAIN AND, THEREFORE, 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 3.  /2/
 
    ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7106(A)(2)(C) PROVIDES:
 
    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(.)
 
    /2/ IN DECIDING THAT UNION PROPOSAL 3 IS WITHIN THE DUTY TO BARGAIN,
 THE AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.