21:0978(115)NG - NAGE, Local R7-23 and Air Force, HQ 375th ABG (MAC), Scott AFB, Ill. -- 1986 FLRAdec NG
[ v21 p978 ]
21:0978(115)NG
The decision of the Authority follows:
21 FLRA No. 115
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R7-23
Union
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS 375th AIR BASE GROUP (MAC),
SCOTT AIR FORCE BASE, ILLINOIS
Agency
Case No. 0-NG-837
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents an issue
concerning the negotiability of two Union proposals.
II. Union Proposal 1
Ranking Criteria. The screening factors established by the
Office of Personnel Management are applied to all competing
employees. Employees who meet the eligibility requirements of the
Office of Personnel Management are considered to be at least
minimally qualified and are eligible to be further evaluated and
ranked. The following criteria are applied to the competing
employees who meet minimal eligibility requirements:
a. Experience: 1/2 point for each two weeks of experience
directly related to the position being filled. Directly related
experience is that experience gained while doing like or similar
jobs as that which is described in the position description of the
job being filled. 1/4 point for each two weeks of experience
indirectly related to the position being filled. Indirectly
related experience is that experience in the same job family or
related families.
b. Training: 1/4 point for each two weeks of training
received which can be directly related to the position being
filled. 1/4 point for each two two weeks of training received
which can be indirectly related to the position being filled.
c. Education: Doctor's Degree Awarded 200 points Master's
Degree Awarded 150 points Bachelor's Degree Awarded 100 points
Each full year of college (no degree) 20 points Graduate Work 4
points/credit hour ECI Courses (for each 40 hours) 1/2 point
d. Awards: A maximum of 2 points is given for awards. Such
awards must be directly related to the position being filled.
Credit is given only within 1 year of the effective date of the
award.
e. Supervisor Appraisal: Will only count for 5% additional
points based upon a perfect appraisal. Anything less than a
perfect appraisal will be prorated.
The employees will be ranked in accordance with the total
number of points which they have received. Those employees with
the most points will be referred to the selecting supervisor in
rank order in accordance with the other provisions of this
article. (Only the underlined portions of the proposal are in
dispute.)
A. Positions of the Parties
The Agency contends that the proposal violates 5 U.S.C. Section
2301(c), Federal Personnel Manual (FPM) Chapter 335, FPM Supplement
Chapter 335, and Agency Regulation (AFR) 40-335 because the Agency must
insure that personnel management is based on and embodies the merit
system principles.
The Union maintains that the intent of the proposal is to rank
promotion candidates who meet minimum qualifications of the X-118 and
Air Force standards by applying credit for training, education,
experience and awards that are relevant to the job being filled along
with the supervisor's appraisal.
B. Analysis and Conclusion
Under existing Authority precedent we find the proposal nonnegotiable
for reasons other than those alleged by the Agency. This proposal would
prescribe certain abilities and accomplishments for which credit will be
given, and the amount of credit, to candidates in the rating process.
Essentially, the proposal would establish portions of the Agency's
"crediting plan" and has the same effect as the proposal in The Montana
Air Chapter of Association of Civilian Technicians and U.S. Department
of the Air Force, Montana Air National Guard, 19 FLRA No. 112 (1985).
In that case, adopting the decision of the United States Court of
Appeals for the District of Columbia Circuit in Department of the
Treasury, U.S. Customs Service v. Federal Labor Relations Authority, 762
F.2d 1119 (D.C. Cir. 1985), the Authority held that a proposal which
assigned points for crediting plan purposes solely on the basis of
seniority was inconsistent with 5 CFR 300.103(a) because it was not
derived from a job analysis which linked seniority to success in the
particular position(s) in question. /1/ Proposal 1 in this case
similarly is not based on a job analysis which demonstrates a connection
between performance in a current position and job-related training and
success in the position(s) for which candidates are applying. /2/
Thus, for the reasons set forth in the Montana Air National Guard
decision, we find that Union Proposal 1 is inconsistent with 5 CFR
300.103(a) and outside the duty to bargain under section 7117(a)(1) of
the Statute. /3/
III. Union Proposal 2
That gross negligence continue to be the standard instead of
just negligence.
A. Positions of the Parties
The Agency contends that the proposal violates its rights to
determine its internal security practices under section 7106(a)(1) and
to determine the methods and means of performing work under section
7106(b)(1) of the Statute. The Union maintains that the proposal
establishes the standard of negligence to be used in the Agency's
regulation to assess pecuniary liability of employees. The Union
therefore contends that the proposal is procedural in nature and
negotiable because it does not prevent the Agency from acting at all.
B. Analysis and Conclusion
Union Proposal 2 would establish the standard to be used in
determining whether an employee will be held "pecuniarily liable" for
the loss, damage, or destruction of Air Force property. The proposal,
therefore, has the same effect as Union Proposal 1 in American
Federation of Government Employees, AFL-CIO, Council 214 and Department
of the Air Force, Headquarters Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 21 FLRA No. 34 (1986). In that
case, relying on our decision in National Federation of Federal
Employees, Local 29 and Department of the Army, Kansas City District,
U.S. Army Corps of Engineers, Kansas City, Missouri, 21 FLRA No. 32
(1986), the Authority held that a proposal which established a standard
of "gross negligence" directly interfered with management's right to
determine its internal security practices under section 7106(a)(1). For
the reasons stated in Wright-Patterson Air Force Base and Kansas City
District, we find that the proposal in this case likewise directly
interferes with management's right to determine its internal security
practices and is not within the duty to bargain under section 7106(a)(1)
of the Statute. /4/
IV. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed.
Issued, Washington, D.C., May 23, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) 5 CFR 300.103 reads in pertinent part:
Section 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) of the
Statute. Professional Air Traffic Controllers Organization, AFL-CIO and
Department of Transportation, Federal Aviation Administration, 4 FLRA
232, 233 (1980).
(2) The Court stated in the Customs Service decision, 762 F.2d 1119,
1122-23, as follows:
Exclusion of non-job related education and experience is not
the same as a job analysis before the measurement scheme is
adopted, and cannot reasonably be said to assure the same results.
The latter is apparent from the fact that, even as so limited,
the proposal establishes the number of points to be awarded for
each level of the various factors without any reference to the
demands of specific occupations. It requires, for example, that
boards grant the same number of points for a (job-related)
bachelor's degree in all positions; and that they grant the same
number of points for a sustained superior performance award as for
a bachelor's degree in all positions. (Emphasis in original.)
(3) In view of this conclusion, we find it unnecessary to consider
the Agency's additional contentions that the proposal is nonnegotiable
becuase it violates 5 U.S.C. Section 2301(c), the FPM, and Air Force
Regulation.
(4) In view of this conclusion, we find it unnecessary to consider
the Agency's additional contention that the proposal is nonnegotiable
because it violates management's right to determine the methods and
means of performing work under section 7106(b)(1).