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19:0946(112)NG - The Montana Air Chapter of ACT and Air Force, Montana Air NG -- 1985 FLRAdec NG

[ v19 p946 ]
The decision of the Authority follows:

 19 FLRA No. 112
                                            Case No. O-NG-804
    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
          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
    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
       . . . 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.
 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
                                       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
 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.