[ v19 p946 ]
The decision of the Authority follows:
19 FLRA No. 112 THE MONTANA AIR CHAPTER OF ASSOCIATION OF CIVILIAN TECHNICIANS Union and U.S. DEPARTMENT OF THE AIR FORCE, MONTANA AIR NATIONAL GUARD Agency Case No. O-NG-804 DECISION AND ORDER ON NEGOTIABILITY ISSUE The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises an issue concerning the negotiability of one provision of a negotiated agreement which was disapproved by the Agency head pursuant to section 7114(c) of the Statute. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. 5. LONGEVITY: One (1) point will be added to each candidates score for each year of completed concurrent technician service at the Montana Air National Guard. No decimal point will be given for portions of years completed or lost. Hire in date will be the starting date of employment. Technicians that are RIF'd and return at the earliest opportunity or technicians that terminate to go on active duty, will be credited with previous technician longevity. The provision would expressly require the Agency to credit an employee with one point for each completed year of technician service when rating employees for job selection and advancement purposes. In Department of Treasury, U.S. Customs Service v. Federal Labor Relations Authority, 762 F.2d 1119 (D.C. Cir. 1985), the Court of Appeals for the D.C. Circuit vacated the Authority's decision in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA 247 (1983) and found that a Union crediting plan, which included points for experience, was inconsistent with a Government-wide rule or regulation and, therefore, outside the duty to bargain. Essentially, the Court found that the proposal was inconsistent with 5 CFR 300.103(a)(1983) /1/ because the union's proposed employment "measurement instruments" /2/ were not based on a prior job analysis to determine if the criteria for which credit would be given were job related. Moreover, the Court further noted that: . . . the mere permissibility of an ex post facto job analysis, and the mere absence of a showing that such an analysis, if conducted, would invalidate the previously adopted measurement devices, falls far short of fulfilling the requirement that those devices "be based on a job analysis to identify . . . (t)he factors that are important in evaluating candidates." 5 C.F.R. 300.103(a). The Authority finds the Court's considerations applicable herein and agrees with its rationale. In this case, the provision at issue would arbitrarily assign points for crediting plan purposes solely on the basis of seniority without any job analysis linking seniority to success in the particular position(s) in question. Since there is nothing in the record to indicate that a preliminary job analysis was conducted to establish that overall seniority was a relevant job criterion prior to the formulation of this provision, the Authority finds that the provision would require the Agency to allow credit for a non-job-related criterion and, therefore, the provision is inconsistent with the requirements of 5 C.F.R. 300.103. Further, as the Court noted, an ex post facto job analysis cannot fulfill the requirement that measurement devices be based on a preliminary job analysis. Since the seniority crediting provision herein was not based on a job analysis to determine if seniority was an important factor in evaluating candidates, the provision is outside the duty to bargain under section 7117(a)(1) of the Statute. /3/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., August 23, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ 5 CFR 300.103(a) reads in pertinent part: Sec. 300.103 Basic requirements. (a) Job analysis. Each employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis to identify: (1) The basic duties and responsibilities; (2) The knowledges, skills, and abilities required to perform the duties and responsibilities; and (3) The factors that are important in evaluating candidates. The job analysis may cover a single position or group of positions, or an occupation or group of occupations, having common characteristics. The Authority has determined that Office of Personnel Management requirements codified at title 5 of the Code of Federal Regulations are Government-wide regulations within the meaning of section 7117(a). Professional Air Traffic Controllers Organization, AFL-CIO and Department of Transportation, Federal Aviation Administration, 4 FLRA 232, 233 (1980). /2/ Department of Treasury v. Federal Labor Relations Authority, 762 F.2d 1119, 1122 (D.C. Cir. 1985). /3/ In view of the decision herein, the Authority finds it unnecessary to consider the Agency's additional contentions as to the nonnegotiability of the provision and the decision of the U.S. Court of Appeals in U.S. Customs Service v. FLRA, 739 F.2d 829 (2d Cir. 1984), which set aside the Authority's decision in National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA 209 (1983) and held crediting plans to be outside the duty to bargain for a different reason than that adopted above.