[ v11 p172 ]
The decision of the Authority follows:
11 FLRA No. 38 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 15 Union and DEPARTMENT OF THE ARMY, ROCK ISLAND ARSENAL, ILLINOIS Activity Case No. O-NG-307 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), and raises an issue concerning the negotiability of the underscored portions of the following proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 and 2 Section 2. Scope: This Article applies to all promotion and placement actions taken within the Unit. Section 3. AREA OF CONSIDERATION: (a) The minimum area will normally be confined to the organizational entity which will produce from three (3) to five (5) highly qualified candidates. For positions GS-6 or below, the minimum area shall be no less than the Directorate Office or equivalent. For positions GS-7 or above, the minimum area shall be no less than HQ ARCOM. These minimum areas shall not apply in the following instances: (1) Where there is documented evidence in the promotion folders which supports the fact that the minimum area has not been provided three (3) to five (5) highly qualified candidates in the past. (2) Where, in the reasonable judgment of CPO representatives, the minimum area will not provide three (3) to five (5) highly qualified candidates. Any extensions to the minimum area of consideration, other than that stated in subparagraphs (a) and (b), supra, shall not be accomplished without prior meeting and conferring with the Union. (b) If the minimum area is extended through application of Subparagraphs (1) and (2), supra, the following shall apply: (1) The areas of consideration shall be systematically expanded, in accordance with the Promotion Program, and may include mandatory referral levels established by CPR 950-1. (2) A RIA, CPO representative shall contact a designated Union official and express his or her reasons for the expansion of the minimum area. The expansion of the minimum area shall be limited to an area which will reasonably provide three (3) to five (5) highly qualified candidates, in the best judgement of the Chief of Recruitment and Placement Division, RIA, CPO. However, after the recruitment action is completed, a representative from RIA, CPO and the above designated Union representative shall review the results. (3) If the evidence shows that the minimum area of consideration provides three (3) to five (5) highly qualified candidates, further announcements shall reflect the minimum area in the vacancy announcement for the initial search. (4) If the evidence shows that the minimum area of consideration does not provide three (3) to five (5) highly qualified candidates, this evidence will be recorded in t e promotion folder and the minimum area of consideration on future announcements shall be in accordance with paragraph (2), supra. Once this determination has been made, it will not be necessary for the CPO representative to contact the designated union official prior to announcing similar vacancies. (c) Mandatory additions to the minimum area: (1) Voluntary applications from DA employees outside the minimum area of consideration who have SF 171 on file prior to vacancy announcements or cut-off date on open continuous announcements shall be considered for positions which provide for promotion or afford known promotion potential. (2) Concurrent consideration of candidates outside DA is mandatory in all cases involving entry into Career Management Programs. (3) Employees demoted through no fault of their own by Employer action will be permitted to make direct application on positions which provide for promotion or afford known promotion potential. The Agency contends that the disputed proposals normally would prevent expansion of the minimum area of consideration for promotion and placement actions where the Agency finds that the minimum area would yield from 3 to 5 highly qualified candidates. Literally, the proposals are subject to the Agency's interpretation and nothing in the record indicates that a different meaning was intended. It is therefore adopted by the Authority for the purpose of this decision. The Authority concludes that the disputed proposals, by foreclosing expansion of the area of consideration in the circumstances described, are inconsistent with management's right 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 and are, therefore, outside the duty to bargain. National Federation of Federal Employees, Local 1332 and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia, 6 FLRA No. 66 (1981), (proposal IV). /1/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., January 28, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In view of the decision herein, the Authority finds it unnecessary to reach the Agency's contention that negotiation of the proposals is barred by an Agency regulation (CPR 950-1) for which there is a compelling need. In this connection, however, the parties' attention is further directed to the discussion in the cited case with regard to proposal V.