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U.S. Federal Labor Relations Authority

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14:0052(9)NG - IFPTE Local 4 and AFGE Local 2024 and Navy, Portsmouth Naval Shipyard, Portsmouth, NH -- 1984 FLRAdec NG

[ v14 p52 ]
The decision of the Authority follows:

 14 FLRA No. 9
                                            Case No. O-NG-641
                                            Case No. O-NG-642
    The petitions for review in these cases come before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and present issues
 concerning the negotiability of two Union proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
    In response to an Agency decision to change existing personnel policy
 to limit volunteers for a particular detail to employees in positions at
 GS-9 or below, each Union proposed that the Agency not place limits on
 the grade level of such volunteers.  /2/ Specifically, Local 4,
 International Federation of Professional and Technical Engineers stated
 "(i)t is therefore our proposal that the established practice of not
 limiting the grade level for volunteers for the (detail) be continued as
 no compelling need for the change exists." Similarly, Local 2024,
 American Federation of Government Employees stated "our proposal was,
 and remains, that the past practice of not limiting the grade level of
 (the detail) should be continued as we see no compelling need for the
    The Agency contends that these proposals would interfere with its
 rights pursuant to section 7106(a)(2)(B) of the Statute "to assign work"
 and "to determine the personnel by which agency operations shall be
 conducted," and its right pursuant to section 7106(b)(1) of the Statute
 to determine "the numbers, types, and grades of employees or positions
 assigned to any organizational subdivision, work project, or tour of
 duty." The Unions argue that these proposals were not intended to
 require the Agency to solicit volunteers for the detail at GS-9 and
 above but, rather, only to allow management to consider volunteers at
 all grade levels as it has done in the past.
    Based on the express language of the proposals and the Unions' stated
 intent, which intent is consistent with the language of the proposals,
 it is clear that these proposals only would require the Agency to
 consider employees in grades GS-9 and above for the subject detail
 without imposing any limitation whatsoever on the Agency's ability to
 restrict selection to particular grade levels or to decline to select
 any employee.
    In this respect, the Authority has consistently held in analogous
 situations that proposals which require only that consideration be given
 to employees within a bargaining unit in filling vacant positions, but
 which do not prevent management from considering other applicants or
 expanding the area of consideration, are within the duty to bargain.
 See e.g., Association of Civilian Technicians, New York State Council
 and State of New York, Division of Military and Naval Affairs, Albany,
 New York, 11 FLRA No. 81(1983) (Union Proposal 1) and cases cited
 therein.  Thus, as the disputed proposals in this case would similarly
 only require consideration be given to certain employees and would not
 mandate the selection of a particular employee for the detail or
 determine the grade level of the work assigned to the employee selected,
 the proposals are not inconsistent with the management rights alluded to
 by the Agency but, rather, are within the duty to bargain.  See American
 Federation of Government Employees, AFL-CIO, Local 916 and Tinker Air
 Force Base, Oklahoma, 7 FLRA 292(1981) (Union Provision I).
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning the disputed
 proposals.  /3/
    Issued, Washington, D.C., February 15, 1984
                                       Barbara J. Mahone Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ While each Union filed a separate petition for review in these
 two appeals, the matter proposed to be bargained in each case is in
 effect identical and arose out of negotiations with the same agency.
 Hence, the Authority has consolidated the two cases.
    /2/ The Agency's contention that the appeals should be dismissed
 because the Unions did not proffer a specific proposal cannot be
 sustained.  Each Union included as an attachment to its petition for
 review its written request for an agency negotiability determination
 wherein the matter in dispute was set out in full.  Such attachments
 constitute compliance with section 2424.3 of the Authority's Rules and
 Regulations which require, inter alia, that the express language of the
 matter in dispute be submitted to the Authority.  See American
 Federation of Government Employees, AFL-CIO, International Council of
 U.S. Marshals Service Locals and Department of Justice, U.S. Marshals
 Service, 11 FLRA No. 113(1983).
    /3/ In deciding that the disputed proposals are within the duty to
 bargain, the Authority makes no judgment as to their merits.