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11 FLRA NO. 92

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1497

     Union

     and

HEADQUARTERS, LOWRY
TECHNICAL TRAINING CENTER
(ATC), LOWRY AIR FORCE BASE,
COLORADO

     Agency

Case No. 0-NG-181

 

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before the Federal Labor Relations Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute), and raises issues concerning the negotiability of seven Union proposals.

Union Proposal 1

Section 2. a. A Union - Management Panel is hereby established consisting of three members designated by the Employer, three members designated by the union, and a non-voting chairman (except in ties) designated by the DCT. The Union - Management panel shall develop PEPs for 17XX positions within the unit for consideration by the CPO. The panel shall determine its own methods of operation and rules of procedures.

b. Any other promotion factors and methods to be used in the evaluating, ranking, and selecting of candidates for promotion shall be made through negotiation between the parties.

c. Copies of any promotion pattern for positions in the unit will be available upon request to the union and individual members. [ v11 p565 ]

Union Proposal 2

Section 3. The Union and the employer agree that the Union - Management Panel will work toward development of a viable program to implement Phase 3 of PPRS. The CPO shall assist the Union - Management Panel by development of knowledges, skills, and abilities applicable to positions in the 17XX series. Also the CPO will provide the panel with guidelines and directives on Phase 3 PPRS capabilities and how they can/should be applied in developing ranking factors. Following a service test, final resolution based on test results will be submitted to CPO for final review prior to implementation.

Question Before the Authority

The question is whether the proposals are inconsistent with management's rights under section 7106(a)(2) of the Statute, as alleged by the Agency.

Opinion

Conclusion and Order: Union Proposals 1 and 2 are inconsistent with section 7106(a)(2)(C) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the petition for review as to these proposals be, and it hereby is, dismissed.

Reasons: Union Proposals 1 and 2 provide, generally, for a joint labor-management panel to develop "promotion evaluation patterns" (PEPs). Based on the language of the disputed proposals and the parties' statements as to their meaning, 1 the Authority concludes that the term "promotion evaluation pattern" refers to those aspects of a merit promotion plan which involve both a determination of the knowledges, skills, and abilities needed to perform the work of the position, i.e., the "selective factors," and the development of criteria used to rate and rank candidates in terms of the extent to which they possess those knowledges, skills, and abilities, i.e., a "crediting plan." 2 [ v11 p566 ]

Thus, the issue presented by Union Proposals 1 and 2 is whether Union participation in the development of these aspects of a merit promotion plan through a joint labor-management panel directly interferes with management's rights under section 7106 of the Statute.

The Authority has consistently held that proposals which require union participation in the decision-making process whereby management exercises its rights under section 7106 of the Statute directly interfere with those rights and are outside the duty to bargain. National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA No. 105 (1981), enforced sub nom. National Federation of Federal employees, Local 1167 v. Federal Labor Relations Authority, 682 F.2d 886 (D.C. Cir. 1982); National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA No. 139 (1982). As to the determination of selective factors and the development of crediting plans, the Authority held in National Treasury Employees Union and National Treasury Employees Union Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983) and National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA No. 52 (1983) that union proposals establishing crediting plans which reserved management's discretion to determine selective factors did not directly interfere with management's right to select candidates for appointment to positions under section 7106(a)(2)(C) of the Statute. 3 The Authority did not, however, specifically address the issue of whether selective factors themselves are within the duty to bargain. In this regard, the [ v11 p567 ] Authority decided in American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F. 2d 1140, 1160-61 (D.C. Cir. 1981), cert. denied sub nom. American Federation of Government Employees v. Federal Labor Relations Authority, U.S. 102 S.Ct. 1443 (1982), that the right to assign an employee to a position under section 7106(a)(2)(A) of the Statute includes the discretion to determine the personnel requirements of the position, i.e., the skills and abilities needed to perform the work of the position. Similarly, for essentially the same reasons, the right to select for appointment to a position under section 7106(a)(2)(C) includes the discretion to determine, as an integral aspect of the process of selection, the selective factors, i.e., knowledges, skills, and abilities necessary to successful performance of the work of a position, to be utilized in the merit promotion plan.

Therefore, under the Authority precedent cited above, Union participation in the decision-making process whereby the Agency determines the knowledges, skills, and abilities necessary for successful performance of the work of a position would directly interfere with management's rights under section 7106(a)(2)(C) of the Statute. As outlined above, Union Proposals 1 and 2 establish a committee which would in this manner involve the Union in t he Agency selection process and, thus, are outside the duty to bargain. 4

Union Proposal 3

Section 4. When a request to fill a position is received by the CPO and the vacancy is to be filled by promotion, a promotion roster will be prepared and released within 10 workdays from receipt of the request. Employees within the unit, management officials, and supervisors may be called upon to assist in development of promotion rosters after Phase 1 and Phase 2 of PPRS have been accomplished when the CPO staff is affected by an excessive workload.

Question Before the Authority

The question is whether Union Proposal 3 is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. [ v11 p568 ]

Opinion

Conclusion and Order: Union Proposal 3 is a negotiable procedure under section 7106(b)(2) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning Union Proposal 3. 5

Reasons: Union Proposal 3 requires the Civilian Personnel Office (CPO) to prepare a promotion roster within ten (10) days of receipt of a request for fill a position by promotion and provides that management may utilize unit employees, management officials, or supervisors to assist in preparation of that roster whenever the CPO "is affected by an excessive Workload." In thus establishing a procedural time limit for completion of a promotion roster, the proposal at issue herein is substantively identical to Union Proposal V in American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA No. 97 (1982). In that decision, the Authority held that Union Proposal V, which required management to make a selection to fill a vacant position within two weeks of receipt of a certificate of eligible candidates or to cancel the vacancy, established a negotiable procedure under section 7106(b)(2) of the Statute. Thus, for the reasons set forth in Office of Personnel Management, Union Proposal 3 herein constitutes a negotiable procedure under section 7106(b)(2).

Moreover, contrary to the Agency's contention, Union Proposal 3 does not require management to assign the task of preparing a promotion roster to unit employees, management officials, or supervisors, but simply acknowledges the Agency's statutory discretion, in attempting to comply with the contractual time limit, to utilize employees outside the Civilian Personnel Office to perform that task if it chooses to do so. That is, under the disputed proposal, management retains the discretion to determine whether the workload of the CPO is excessive and, if so, whether or when to assign other employees the responsibility of preparing the promotion roster. As such, Union Proposal 3 is not inconsistent with management's right to assign work under section 7106(a)(2)(B) and is within the duty to bargain under the Statute. See National Labor Relations Board Union and National Labor Relations Board, Washington, D.C., 3 FLRA 508 (1980) (proposal precluding management from making certain assignments unless there is an operating need to do so is negotiable as a procedure under section 7106(b)(2) because it preserves management discretion to determine operating needs). [ v11 p569 ]

Union Proposal 4

Section 5. a. Screening of Phase 1 and Phase 2 of PPRS will be done to identify potentially qualified candidates and to obtain a list of eligibles for filling vacancies in the 17XX series. All other vacancies will be filled IAW Center Supplement 40-335.

b. Eligibility will be based on six years 17XX experience of which three years specialized experience was within the last 60 months.

Question Before the Authority

The question is whether Union Proposal 4 is inconsistent with management's right to select for appointment under section 7106(a)(2)(C) of the Statute, as alleged by the Agency.

Opinion

Conclusion and Order: Union Proposal 4 is inconsistent with section 7106(a)(2)(C) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the petition for review as to Union Proposal 4 be, and it hereby is dismissed.

Reasons: Union Proposal 4 sets forth certain preliminary steps to be followed and particular criteria to be employed in the process of developing a promotion certificate or roster. In particular, it requires the Agency, as an initial step in creating such a certificate or roster, to determine, first, which candidates meet the minimum qualification requirements for the position and, second, from among those who are minimally qualified, those candidates who meet the further eligibility criterion of a certain number of years of specialized experience in the specified job classifications. 6 However, eligibility criteria such as those established by the proposal, to the extent that they are not specifically provided for in the minimum qualifications standards established by the Office of Personnel Management for those positions, 7 constitute selective factors to be used in determining the best qualified candidates. In [ v11 p570 ] this regard, the Authority has held herein that management has the right under section 7106(a)(2)(C) to establish the selective factors to be used in evaluating candidates for promotion to a position. See the discussion of Union Proposals 1 and 2, supra. Thus, for the reasons set forth more fully above, Union Proposal 4, which would require the negotiation of a selective factor, directly interferes with management's right to select candidates for appointment under section 7106(a)(2)(C) of the Statute and is outside the duty to bargain. 8

Union Proposal 5

Section 6. After obtaining the experience eligibility listing, Phase 3 will be run in order to identify validated educational credits. This will be accomplished by coding computer records into four validated educational credit groups. Boggie codes will be used for this purpose. The Union - Management Panel will establish these codes as a joint effort. The four groups are as follows: GS-11 Curricula, non-functional; GS-11 Curricula, functional (CDC writer); GS-12 non-functional (TTGX, TTS); and GS-12 functional (CDC writer).

Union Proposal 6

Section 7. To rank experience eligibles add the following elements to arrive at a total score for each:

Points

Creditable education 100 maximum (convert quarter hours to semester hours)

Supervisor appraisals 100 maximum

Awards 3 maximum 203 total possible

The top five candidates will be referred to each vacancy - adding one name for each additional vacancy. [ v11 p571 ]

Question Before the Authority

The question is whether Union Proposals 5 and 6 are inconsistent with management's rights under section 7106(a)(2) of the Statute, as alleged by the Agency.

Opinion

Conclusion and Order: Union Proposals 5 and 6 are not inconsistent with management's rights under section 7106(a)(2) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning Union Proposals 5 and 6. 9

Reasons: Union Proposals 5 and 6 prescribe certain steps to be taken in evaluating the educational qualifications of those candidates who are eligible for further consideration and establish a system for ranking such candidates based on their educational qualifications, their performance appraisal, and any awards they might have received. In particular, based upon the record as a whole, Union Proposal 5 appears to require the application of certain computer codes (which are not explained in the record) to the educational records of eligible candidates so as to group them according to type. That is, Union Proposal 5 sets forth a set of procedures for the Agency to follow in determining the extent to which a candidate might possess an educational background relevant to the requirements of positions in the job categories specified in the proposal. Thus, it appears that the computer, or "boggie," codes referenced in the proposal function as a "crediting plan," as discussed in the Authority's Customs Service, Region II decision and which was held therein to be within the duty to bargain under the Statute. Moreover, since such crediting plans are themselves negotiable, the requirement that the "boggie codes" be developed by a joint labor-management committee is likewise negotiable. As the Authority has previously held in this regard, where matters related to the exercise of a management right are within the duty to bargain, a proposal for a joint labor-management committee to decide those matters is negotiable as a procedure under section 7106(b)(2) or as an appropriate arrangement under section 7106(b)(3) of the Statute. See National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, 2 FLRA 255 (1979); American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago, Illinois, 7 FLRA No. 34 (1981). [ v11 p572 ]

As to Union Proposal 6, on its face it prescribes the procedures management will follow to produce a final ranking of eligible candidates and specifies the number of best qualified candidates to be referred for consideration by the selecting official. Nothing in the language of the proposal or in the record of the case indicates that management is required to select from the candidates referred or is precluded from considering other sources for selection. Nor does the requirement that management rank candidates according to their score on the system set forth in the proposal in any way directly interfere with the Agency's right under section 7106(a)(2)(C) of the Statute to select from among properly ranked and certified candidates for appointment. Thus, Union Proposal 6 is within the duty to bargain under the Statute. See National Treasury Employees Union and National Treasury Employees Union Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983); National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA No. 52 (1983).

Union Proposal 7

Section 10. Employees who apply for promotions to their former positions or equivalent or intervening positions and who were demoted because of reduction-in-force shall be promoted to such former positions or intervening positions in inverse order of retention standing prior to filling the position by other promotion action, subject to the following criteria:

a. The employee's service in the higher rating was satisfactory.

b. The employee's conduct prior to the demotion and during the period subsequent to the demotion was satisfactory, based on an overall review of the employee's personnel record.

c. The employee meets current qualification standards for the position.

Question Before the Authority

The question is whether Union Proposal 7 is inconsistent with management's rights under section 7106(a)(2)(C) of the Statute, as alleged by the Agency. [ v11 p573 ]

Opinion

Conclusion and Order: Union Proposal 7 is inconsistent with management's right to make selections for appointments under section 7106(a)(2)(C) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the petition for review as to Union Proposal 7 be, and it hereby is, dismissed.

Reasons: Union Proposal 7 requires the Agency, under the conditions specified, to repromote employees who have been demoted as a result of a reduction-in-force. In this regard, Union Proposal 7 is substantively identical to the proposal at issue in American Federation of Government Employees, AFL - CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA No. 13 (1981), appeal docketed sub nom. American Federation of Government Employees, Local 2782 v. Federal Labor Relations Authority, No. 81-2386 (D.C. Cir. Dec. 29, 1981). In that decision, the Authority held that a proposal requiring employees demoted through no fault of their own to be selected for available vacancies for which they were qualified directly interfered with management's right to choose among candidates from "any appropriate source" pursuant to section 7106(a)(2)(C)(ii) of the Statute. Contrary to the Union's statements, Union Proposal 7, on its face, does more than require that employees demoted through no fault of their own "be placed on the 'special consideration,' or 'priority placement' list before a competitive listing is furnished to the selecting official." By its terms, it requires the Agency to select an employee from such lists. In this regard, the Authority has consistently held that it will not base a negotiability decision on a Union's statement of intent which is clearly inconsistent with the language of the disputed proposal. See, e.g., American Federation of Government Employees, AFL - CIO, Local 2955 and National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa, 5 FLRA No. 86 (1981). Therefore, for the reasons more fully set forth in Bureau of the Census, the Union's proposal herein must also be held to be outside the duty to bargain. See also American Federation of Government Employees, AFL - CIO, Local 1533 and Naval Supply Center, Oakland, California, 8 FLRA No. 6 (1982); American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA No. 97 (1982) (Union Proposal VI), appeal docketed sub nom. American Federation of Government Employees, Local 32 v. Federal Labor Relations Authority, Nos. 82-1756 and 1757 (D.C. Cir. July 6, 1982); American Federation of Government Employees, AFL - CIO, Local 987 and Headquarters, Warner Robins Air Force Base, Georgia, 8 FLRA No. 116 (1982) (Union Proposal III); and National Treasury

[ v11 p574 ] Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA No. 138 (1982).

 

Issued, Washington, D.C., March 10, 1983

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY

 

[ v11 p575 ]

FOOTNOTES

Footnote 1 See, e.g., Agency Statement of Position at 2, and Union Response to Agency Statement of Position at 2.

Footnote 2 A brief summary of the relevant aspects of merit promotion procedures and of their use in the selection of candidates for appointment to vacant positions is to be found in National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983). For a more detailed discussion of such procedures, see Federal Personnel Manual (FPM) Supplement 335-1, Appendix B, which distinguishes between "selective factors" and "crediting plans."

Footnote 3 Section 7106(a)(2)(C) provides as follows: 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- (2) in accordance with applicable laws-- (C) with respect to filling positions, to make selections for appointments from-- (i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source(.)

Footnote 4 In view of this decision, the Authority finds it unnecessary to rule on the Agency's additional allegation as to the discloseability of PEPs.

Footnote 5 In deciding that Union Proposal 3 is within the duty to bargain, the Authority makes no judgment as to its merits.

Footnote 6 For general background on this aspect of selection procedures in the Federal personnel system, see FPM Supplement 335-1, Appendix B, section B-4.

Footnote 7 See OPM Handbook X-118, Qualification Standards, GS-1710 and GS-1712.

Footnote 8 In view of this decision, the Authority finds it unnecessary to address the Agency's additional contention that Union Proposal 4 is inconsistent with OPM Handbook X-118.

Footnote 9 In deciding that Union Proposals 5 and 6 are within the duty to bargain, the Authority makes no judgment as to their merits.

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