45:0224(18)NG - - AFGE Local 868 and Interior, Chatanooga and Chickamauga National Military Park, Fort Oglethorpe, GA - - 1992 FLRAdec NG - - v45 p224
[ v45 p224 ]
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 know