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38 FLRA No. 117

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2429

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

HEADQUARTERS SPACE SYSTEMS DIVISION

LOS ANGELES, CALIFORNIA

(Agency)

0-NG-1765

DECISION AND ORDER ON NEGOTIABILITY ISSUE

January 15, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a petition for review filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one proposal regarding the implementation of the Agency's program providing employment opportunities for military spouses.

The proposal would preclude consideration of military spouse applicants until after bargaining unit applicants have been considered for selection to a vacant position. We find that the proposal is nonnegotiable under section 7106(a)(2)(C) of the Statute.

II. Background

The Military Family Act of 1985 (the Act) is contained in title VIII of the Department of Defense Authorization Act, 1986. Section 806 of the Act provides for employment opportunities for military spouses and states in pertinent part:

(b) Regulations.--The Secretary of Defense shall prescribe regulations--

. . . .

(2) to provide preference to qualified spouses of members of the Armed Forces in hiring for any civilian position in the Department of Defense if the spouse is among persons determined to be best qualified for the position and if the position is located in the same geographical area as the permanent duty station of the member.

10 U.S.C. § 113 note. Pub. L. 99-145, Title VIII, §§ 801 to 813, Nov. 8, 1985, 99 Stat. 678-82, as amended Pub. L. 99-661, Title VI, § 653, Nov. 14, 1986, 100 Stat. 3890; Pub. L. 100-180, Div. A, Title VI, § 635, Dec. 4, 1987, 101 Stat. 1106; Pub. L. 100-456, Div. A, Title V, § 524, Sept. 29, 1988, 102 Stat. 1975. The legislative history reiterates that qualified military spouses are to be afforded preference in hiring for positions for which they are qualified in the same geographic area where the member is stationed. H.R. Rep. No. 81, 99th Cong., 1st Sess. 2 (1985), reprinted in U.S. Code Cong. & Ad. News 472, 598-99.

The Agency prepared regulations to implement section 806 of the Act, AFR 40-314, Military Spouse Preference. The Agency requested proposals from the Union for impact and implementation bargaining. On April 15, 1988, the Union submitted the first proposal set forth below. The parties met and bargained but did not reach agreement. On October 13, 1989, the Agency declared the Union's April 15, 1988, proposal to be nonnegotiable.

III. Procedural Issues

On October 24, 1989, the Union filed a petition for review with the Authority as to its April 15, 1988, proposal. The Union also wrote the Agency on October 24, 1989, requesting that the Agency cease any implementation of its spouse preference program until negotiations were completed. The Union submitted another proposal, set forth below, with its letter to the Agency. The Agency filed its statement of position on January 10, 1990, and included, as an attachment, a copy of a letter to the Union dated December 12, 1989, in which the Agency declared the October 24, 1989, proposal to be nonnegotiable.

The Agency argues that the Union's petition for review should be dismissed as not properly before the Authority. The Agency contends that the Union's petition for review is moot because the proposal submitted to the Authority is no longer in contention and has been superseded by the October 24, 1989, proposal. Statement of Position at 2.

In its response to the Agency's statement of position, the Union claims that it did not receive the Agency's letter of December 12, 1989, until the Agency's statement of position was received. The Union appeals the December 12, 1989, allegation by the Agency that its October 24, 1989 proposal is nonnegotiable and requests that the Authority issue a decision on the negotiability of the October 24, 1989, proposal. Reply Brief at 1, 2.

The Union argues that the language of its October 24, 1989, proposal is basically the same as its earlier proposal. The Union asserts that the October 24, 1989, proposal is the April 15, 1988, proposal written out for clarification rather than referring to the collective bargaining agreement articles. Id.

We have reviewed the April 15 and October 24 proposals and find that the latter proposal is simply a restatement of the earlier proposal. We agree with the Union's description of the October 24 proposal as being the April 15 proposal written out for clarification. We find, therefore, that the October 24 proposal is not a substitute for the April 15 proposal. The Union's petition for review is not moot.

Because the April 15 and October 24 proposals are not different in substance and because both parties have fully expressed their positions as to the proposals, we will consider them as one proposal in the interest of assisting the parties in resolving this negotiability dispute.

IV. The Proposal

The April 15, 1988 Proposal

Section B: Administration of Preference

3. For bargaining unit positions, the CBA Article XVI, Section C shall apply.

4. Claim for Preference--For bargaining unit positions, the CBA, Article XVI, Section C shall apply.

8d. This section does not apply to bargaining unit positions.

The October 24, 1989 Proposal

Section B--Administration of Preference.

3. Employment Information and Assistance. Spouse preference will not conflict with or violate the provisions of Article XVI, Placement and Promotion, Section C. Merit Promotion. Area of Consideration. The minimum area of consideration is all activities in the local commuting area serviced by the Space Systems Division Civilian Personnel Office.

4. Claim for Preference. Military spouses are not eligible for concurrent employment consideration. Candidates eligible for competitive consideration under the Space Systems Division Merit Promotion Plan shall be considered and interviewed prior to expanding the area of consideration. Concurrent consideration will only be given to best qualified candidates outside the minimum area of consideration when necessary to insure a supply of qualified candidates or to provide for recruitment efforts to comply with Federal Equal Opportunity Recruitment Program and the selection from among the best qualified.

8d. Applicant Rating and Referral. Once the competitive screening process is completed, the spouse preference applicant is rated in accordance with the provisions of the Collective Bargaining Agreement, Article XVI, Section C and the Space Systems Division Merit Promotion Plan.

V. Positions of the Parties

A. The Agency

Aside from the procedural argument raised by the Agency and discussed above, the Agency contends that the proposal violates the military spouse preference statute and directly interferes with management's retained right to select from appropriate sources. Statement of Position at 2.

The Agency argues that the Military Family Act of 1985^(*) "requires that qualified spouses of members of the Armed Forces be given hiring preference for positions above grade GS-1 if they are determined to be the best qualified and if the position is located in the same geographical area as the permanent duty station of the member." Statement of Position at 5-6 (emphasis in original). The Agency contends that the proposal violates that statutory requirement.

The Agency claims that the proposal is inconsistent with the Act on several points. The Agency maintains that the proposal's limit on the initial area of consideration is inconsistent with the Act. The Agency asserts that the proposal does not allow for the Act's provision for the concurrent employment consideration of a spouse as a former or current Federal employee. The Agency argues that the Union's rejection of paragraph 8.d of AFR 40-314, which implements the Act and provides for spouse selection, is an attempt by the Union to exclude bargaining unit positions from the application of the Act. The Agency states that the spouse preference program originates with law, not with its regulation. Id. at 6.

The Agency also contends that the proposal directly interferes with management's retained right under section 7106(a)(2)(c)(ii) to select from appropriate sources and, therefore, is not a negotiable procedure under section 7106(b)(2). Id.

The Agency argues that the effect of the proposal is to preclude management from considering applicants from external spouse preference sources until it has finished ranking and considering eligible internal merit promotion candidates. The Agency asserts that, as a result, it would have to consider its current employee-applicants before it could consider other qualified candidates from the full realm of candidates. Id. at 7. The Agency cites Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) (Treasury, BATF), reversing National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 26 FLRA 497 (1987) (Proposal 2), in which the court held that a proposal requiring management to consider bargaining unit applicants before soliciting or considering applicants from outside the unit was nonnegotiable under section 7106(a)(2)(C) of the Statute.

B. The Union

The Union states that it intends to leave the parties' current labor agreement provisions on area of consideration and merit promotion procedures undisturbed. Petition for Review at 3. The Union indicates that its intention is to continue the limited area of consideration within the bargaining unit before outside candidates are considered, except when necessary to insure a supply of qualified candidates or to provide for recruitment efforts to comply with the equal employment opportunity program. Id.

The Union contends that the Agency's military spouse preference program can be implemented without violating the parties' agreement. The Union indicates that the initial rating and ranking procedures can be followed using the Agency's automated process, without any unnecessary delay before expanding the area of consideration. Id.; Reply Brief at 3. The Union argues that paragraph 8.d of the Agency's AFR 40-314 regulation, which states that "a referred spouse preference eligible must be selected," violates the parties' agreement and merit principles. The Union states that it does not wish to change the collective bargaining agreement. Petition for Review at 3.

The Union states that it "is not stopping the selection of a military spouse, after [the Agency] compl[ies] with the CBA [collective bargaining agreement]. The current minimum area of consideration is proper and substantiated by [Authority precedent]. The Union does not want to change this article. There is no compelling need in existence for this provision. We are negotiating a regulation, not a law." Id.

VI. Analysis and Conclusions

We find that the proposal directly interferes with management's right to make selections for appointments under section 7106(a)(2)(C) of the Statute and is, therefore, nonnegotiable.

A. The Meaning of the Proposal

Section 3 of the proposal requires that management follow Article XVI, Section C of the parties' negotiated agreement. The text of the pertinent portions of Article XVI, Section C of the parties' agreement is included as an appendix to this decision. Section C.1. of the parties' agreement establishes, as the minimum area of consideration for vacancies, the activities in the local commuting area serviced by the Space Division Civilian Personnel Office. That section also provides that eligible candidates from the division are to be considered and interviewed prior to expanding the area of consideration. The effect of section 3 of the proposal, therefore, is to require the Agency to observe the merit promotion procedures of the parties' agreement concerning area of consideration, which would result in excluding from initial consideration military spouse candidates who are not in the bargaining unit.

Section 4 of the proposal requires that management follow the portion of Article XVI, Section C of the parties' negotiated agreement that limits the initial area of consideration to eligible candidates in the Space Systems Division. The agreement permits expansion of the area of consideration only when necessary to insure a supply of qualified candidates or to provide for recruitment efforts to comply with the equal opportunity program. Section 4 of the proposal would not permit concurrent employment consideration for military spouses, except in the limited circumstance described above.

Section 8.d of the proposal requires that military spouse preference applicants be rated only after the competitive screening process is completed. Article XVI, Section C of the parties' agreement provides for the initial consideration of unit candidates, and allows for expansion of the minimum area of consideration only when there are insufficient candidates, or when necessary for recruitment purposes for the equal opportunity program. Section 8.d of the proposal would mean that military spouse preference candidates would not be rated and ranked in relation to unit candidates and would not be considered with those candidates.

B. The Proposal Directly Interferes with Management's Right to Select Under Section 7106(a)(2)(C)

The effect of the subsections of the proposal, separately and collectively, is to retain priority consideration for bargaining unit employees for vacancies in bargaining unit positions. The proposal would preclude the rating, ranking or consideration of military spouse applicants until after bargaining unit applicants have been considered. Under the proposal, lists of bargaining unit employees rated best-qualified would be referred to selecting officials. The lists would not include the names of any military spouse applicants who are not bargaining unit employees.

In National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886, 888-90 (1990) (Tennessee Air National Guard), we held that proposals that require an agency "to rank and consider current employees before soliciting or considering outside applications places a substantive limit on management's right to select employees from any appropriate source under section 7106(a)(2)(C)." Id. at 888. In reaching that conclusion, we agreed with the position of the United States Court of Appeals for the District of Columbia Circuit in Treasury, BATF.

The court ruled, in Treasury, BATF, that a proposal requiring an agency to rank and consider current employees before soliciting or considering outside applications places a substantive limit on management's right to select employees from any appropriate source under section 7106(a)(2)(C) of the Statute. Id. at 822. The court stated:

The practical consequence of the proposal is clear: management may not consider or even solicit applications from outside the agency until it has finished ranking and considering eligible agency applications. As a result, the agency will make its initial employment decisions before it is permitted to inform itself of the qualifications of the full range of potential candidates for the position it seeks to fill. Thus the effect of the proposal is to narrow the universe of the candidates that section 7106(a)(2)(C) is intended to guarantee management the right to consider.

Treasury, BATF, 857 F.2d at 822. Moreover, the court also noted that even though management would not ultimately be precluded from considering candidates from outside the agency, the proposal would exert pressure on the agency to promote bargaining unit employees rather than leave a position unfilled during the time it would take to initiate and complete a search for outside candidates. Accordingly, the court concluded that the proposal was nonnegotiable. Id. at 823.

Although the Agency in the present case could ultimately fill a vacant position with a best-qualified military spouse applicant, the proposal would preclude management from rating, ranking and considering the military spouse applicant until after the merit placement process for currently employed bargaining unit employees had been completed. Consequently, the effect of the proposal is to preclude management from "assessing the 'full range of potential candidates' when it makes its initial employment decisions." Tennessee Air National Guard at 889.

We conclude, therefore, that the disputed proposal in this case would have a similar effect to the one held nonnegotiable by the court in Treasury, BATF, 857 F.2d at 822-23. While the proposal would not preclude management from soliciting candidates, including military spouse candidates, from outside the unit until unit employees have been considered, the proposal would preclude rating and ranking of military spouse candidates until unit candidates have been considered. Therefore, just as the proposal in Treasury, BATF inhibited management's ability to look beyond the agency for potential employees, the proposal in this case would inhibit management's ability to look beyond bargaining unit employees to best-qualified military spouse applicants. See also Tennessee Air National Guard at 889-90.

Because the proposal would preclude the rating, ranking, referral and consideration of military spouse applicants until after the merit placement process for bargaining unit employees had been completed, it would have the same practical consequence described by the court: the selecting official would be under pressure, similar to the pressure described by the court in Treasury, BATF, 857 F.2d at 822, to select a bargaining unit employee rather than leave a position unfilled during the time that it would take to expand the area of consideration and obtain the rating, ranking and referral of military spouse candidates. Based on the foregoing, we conclude that the proposal places a substantive limit on, and thereby directly interferes with, management's right to select employees from any appropriate source. Consequently, the proposal is not a procedure within the meaning of section 7106(b)(2) and is nonnegotiable.

Because the Union has not argued that the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3), we do not address that issue. See Association of Civilian Technicians and U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island, 38 FLRA No. 84 (1990), slip op. at 9. Further, because we have determined that the proposal is nonnegotiable under section 7106(a)(2)(C) of the Statute, we do not reach the issue of whether the proposal is inconsistent with the Military Family Act and, therefore, nonnegotiable under section 7117(a)(1) of the Statute.

VII. Order

The petition for review is dismissed.

APPENDIX

ARTICLE XVI

PLACEMENT AND PROMOTION

Section C. Merit Promotion.

1. Area of consideration. The minimum area of consideration is all activities in the local commuting area serviced by the Space Division Civilian Personnel Office.

(a) Candidates eligible for competitive consideration under the Space Division Merit Promotion Plan shall be considered and interviewed prior to expanding the area of consideration.

(b) Concurrent consideration will only be given to best qualified candidates outside the minimum area of consideration when necessary to insure a supply of qualified candidates or to provide for recruitment efforts to comply with Federal Equal Opportunity Recruitment Program and the selection from among the best qualified.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The Agency quotes the Act as originally enacted and twice amended, but does not reflect the most recent amendment to the Act.

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