[ v14 p52 ]
The decision of the Authority follows:
14 FLRA No. 9 INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL 4 Union and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2024, AFL-CIO Union Case No. O-NG-641 and DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE Agency Case No. O-NG-642 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 change." 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.