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11:0172(38)NG - NFFE Local 15 and Army, Rock Island Arsenal, IL -- 1983 FLRAdec NG

[ v11 p172 ]
The decision of the Authority follows:

 11 FLRA No. 38
                                            Case No. O-NG-307
    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
                          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
          (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
          (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
          (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.