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The decision of the Authority follows:
45 FLRA No. 18
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one provision of a collective bargaining agreement that was disapproved by the head of the Agency under section 7114(c) of the Statute.
The provision requires management to give first consideration to unit employees for advertised bargaining unit positions. The provision further provides that if there are fewer than two qualified applicants for a position, the selecting official may consider the unit applicant and other qualified candidates concurrently. For the following reasons, we find that the provision is negotiable.
Article 29, Section 4. Bargaining unit employees shall receive first consideration for advertised bargaining unit positions. However, if there are fewer than two (2) qualified applicants for a position, the selecting official may consider other qualified candidates concurrently.
III. Preliminary Matter
In an Order dated February 14, 1992, the Authority noted that the Union, in its response to the Agency's statement of position, "provided for the first time an explanation of its appropriate arrangements argument." The Order granted the Agency permission to file a supplemental statement of position addressing whether the provision is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Order also granted the Union permission to file a response to the Agency's supplemental statement of position.
Pursuant to our Order, the Agency submitted a supplemental statement of position and the Union filed a response. In that response, the Union requested that we not consider the Agency's supplemental statement because: (1) the Agency's request to file a supplemental statement was based on the Agency's erroneous conclusion that the Authority's regulations require the Union, among other things, to state its position on appropriate arrangements in its petition for review; and (2) the Agency's supplemental statement, contrary to the Authority's regulations, was not responsive to the issue of appropriate arrangements and unnecessarily prolonged the negotiability appeal process.
However, where, as in this case, a union makes a bare claim in its petition for review that a proposal is an appropriate arrangement under section 7106(b)(3) of the Statute, and then makes specific arguments in support of that claim for the first time in its response to the agency's statement of position, we will grant the agency's request to file a supplemental statement to address those specific arguments and will provide the union an opportunity to respond. See American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1237 (1988). Compare American Federation of Government Employees, AFL-CIO, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 42 FLRA 599, 603 (1991) (Authority did not consider an agency's unsolicited supplemental statement and noted that "the Authority will not consider unauthorized supplemental submissions by a party unless such submission is requested by the Authority or unless, upon a party's written request, the Authority in its discretion grants permission to file such submission"). Consequently, we reject the Union's arguments and will consider the Agency's supplemental statement.
IV. Positions of the Parties
The Agency argues that the provision at issue in this case has the same effect as the proposals found nonnegotiable in American Federation of Government Employees, Local 2429 and U.S. Department of the Air Force, Headquarters Space Systems Division, Los Angeles, California, 38 FLRA 1469 (1991); National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886 (1990) (Tennessee Air National Guard); and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) (Treasury, BATF v. FLRA). The Agency argues that the provision would: (1) require completion of the rating, ranking, and interviewing process for unit employees before it could rate, rank, and interview nonbargaining unit candidates for the position; and (2) "exert pressure on the [A]gency to promote bargaining unit employees rather than leave a position unfilled during the time it would take to complete the processing of outside candidates." Agency's Statement of Position at 3. The Agency claims that, because the provision would require the rating, ranking, and interviewing of unit employees before the rating, ranking, and interviewing of nonunit candidates, the provision would directly interfere with management's right, under section 7106(a)(2)(C) of the Statute, to select from among properly ranked and certified candidates for promotion or from any other appropriate source.
The Agency also contends that the provision does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute because the provision excessively interferes with its right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. The Agency argues that implementation of the provision would require duplicating, for nonunit candidates, the time-consuming process of rating, ranking, and interviewing bargaining unit applicants for the position. According to the Agency, such "duplication is even more burdensome when the selecting official is fully aware of the knowledge, skills and abilities of all bargaining unit employees and knows that bargaining unit employees do not possess the needed knowledge, skills and abilities to perform the requirements of a present or newly designed job." Agency's Supplemental Statement of Position at 4.
The Union explains that the provision provides for consideration of bargaining unit employees for posted vacancies prior to consideration of candidates from other sources, "except that when there are fewer than two qualified bargaining unit applicants, the employer may consider the bargaining unit applicant and candidates from other sources concurrently." Petition for Review at 2.
As a threshhold matter, the Union contends that the Authority should reject the rationale of the court in Treasury, BATF v. FLRA that proposals requiring priority consideration for unit employees directly interfere with management's right under section 7106(a)(2)(C) because such proposals inhibit management's selection decision.
As to the negotiability of the provision, the Union notes that the provision does not require the Agency to select a bargaining unit applicant for the position. The Union also notes that the provision "does not preclude the soliciting, rating, or ranking of persons outside the bargaining unit while consideration is provided to bargaining unit members." Union's Response at 11. According to the Union, the provision allows management to expand its consideration to other candidates, and to "timely" consider those candidates, once unit candidates have been considered. Id. at 12. The Union contends that the provision is a negotiable procedure under section 7106(b)(2) of the Statute.
Alternatively, the Union contends that the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union argues that the provision benefits employees by increasing the possibility that they will retain jobs with the Agency and by enhancing their career development. The Union claims that the provision benefits the Agency because it is cost-effective and results in more efficient operations. The Union also argues that the provision "does not address, and therefore does not prohibit, simultaneously soliciting, ranking, and rating candidates from within and from outside the AFGE bargaining unit." Union's Response to Agency's Supplemental Statement of Position at 8. According to the Union, the rating and ranking process is a "process that occur[s] whether or not bargaining unit members are accorded first consideration for a vacancy." Id. at 8-9. The Union claims that the provision does not excessively interfere with management's right to select under section 7106(a)(2)(C) because "the system of which the disputed [provision] is a part has been in place for several years without being burdensome . . . ." Id. at 14.
V. Analysis and Conclusions
The provision requires the Agency to give first consideration to bargaining unit employees when filling advertised bargaining unit positions unless fewer than two qualified unit applicants apply for such a position. As explained by the Union, the provision merely requires that bargaining unit employees be considered first for bargaining unit vacancies. According to the Union, the provision does not prohibit the simultaneous solicitation, rating, and ranking of unit employees and candidates from other sources. Based on the record in this case, we find that the Union's explanation is consistent with the wording of the provision and we will adopt the Union's explanation for purposes of this decision. Consequently, we find that the disputed provision requires management to consider unit candidates for vacant unit positions before considering nonunit candidates, but does not preclude management from simultaneously soliciting, rating, and ranking nonunit candidates or, where there are less than two qualified unit candidates, from concurrently considering nonunit candidates.
Proposals that require an agency to give priority consideration to bargaining unit candidates, but do not prevent the concurrent solicitation and rating and ranking of outside candidates, do not directly interfere with management's right, when filling a vacant position, to select employees from among properly ranked and certified candidates for promotion or from any other appropriate source. National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1282-88 (1992) (Nuclear Regulatory Commission). Rather, such proposals constitute negotiable procedures, under section 7106(b)(2), governing the exercise of management's right under section 7106(a)(2)(C). Id. at 1288.
As interpreted above, we find, consistent with, and for the reasons stated in, Nuclear Regulatory Commission, that the provision does not directly interfere with management's right under section 7106(a)(2)(C), but constitutes a negotiable procedure under section 7106(b)(2). Because we find that the provision is a negotiable procedure under section 7106(b)(2) of the Statute, we do not reach the Union's claim that the provision is an appropriate arrangement under section 7106(b)(3).
Moreover, we find that our decision in Tennessee Air National Guard and the court's decision in Treasury, BATF v. FLRA are not controlling in this case. The proposals in those cases, unlike the proposal in this case, precluded management from soliciting outside the unit for candidates to fill a vacant position until unit candidates for that position had been considered. As those decisions are not controlling in this case, we do not address the Union's argument that we should reconsider our decision in Tennessee Air National Guard to adopt the rationale of the court in Treasury, BATF v. FLRA.
Accordingly, we conclude that the proposal is negotiable.
The Agency must rescind its disapproval of the provision. */
(If blank, the decision does not have footnotes.)
*/ In finding that this provision is negotiable, we make no judgment as to its merits.