19:0946(112)NG - The Montana Air Chapter of ACT and Air Force, Montana Air NG -- 1985 FLRAdec NG
[ v19 p946 ]
19:0946(112)NG
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.