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48 FLRA No. 18

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF PRISON LOCALS

LOCAL 3974

(Union)

and

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

MCKEAN, PENNSYLVANIA

(Agency)

0-NG-2133

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DECISION AND ORDER ON A NEGOTIABILITY ISSUE

August 13, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.⁽¹⁾

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 a proposal that requires the Agency to give employees preference in filling vacancies before hiring from any other source. We find that the proposal is nonnegotiable because it directly interferes with management's right under section 7106(a)(2)(C) of the Statute to make selections for appointments and it does not constitute an arrangement within the meaning of section 7106(b)(3).

II. Preliminary Matter

The Agency maintains that the Authority lacks jurisdiction to consider the petition for review. In this regard, the Agency contends that the petition does not meet the requirements for an appeal of an allegation of nonnegotiability under section 7117(c) of the Statute. More specifically, the Agency asserts that the Council of Prison Locals, rather than Local 3974, holds exclusive recognition for the bargaining unit to which the disputed proposal applies and that the Agency has no statutory duty to bargain with Local 3974 over the matter proposed. Additionally, the Agency claims that by submitting its negotiability appeal directly to the Authority rather than utilizing procedures established for review of local agreements that are set forth in section 7114(c)(4), the appeal is "contrary to the spirit, if not the letter," of that section. Statement of Position at 8. The Agency also argues that the proposal is inconsistent with a provision in the master agreement that exists between the Agency and the Council of Prison Locals and that the Union's pursuit of the proposal constitutes: (1) an attempt to unilaterally coerce the Agency to bargain over a midterm modification of that agreement; and (2) a repudiation of that agreement.⁽²⁾

The Agency's arguments concern the duty to bargain in the specific circumstances of this case. Under section 7117(c) of the Statute and Part 2424.1 of the Authority's Regulations, the Authority will consider a petition for review of a negotiability issue where the parties disagree over whether a proposal conflicts with law, rule or regulation. See, for example, National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 45 FLRA 52, 55 (1992) (Defense Mapping Agency, Louisville). Under longstanding Authority precedent, where this condition for review of negotiability issues has been met, a union is entitled to a decision by the Authority as to whether its proposals are within the duty to bargain under the Statute notwithstanding the fact that additional issues--for example, whether an agency is obligated to bargain under the terms of a master agreement--may exist. See, for example, American Federation of Government Employees, National Border Patrol Council, Local 2544 and U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona, 46 FLRA 930, 936-37 (1992) (Border Patrol), petition for review filed, No. 93-70137 (9th Cir. Feb. 8, 1993); American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984). To the extent that there are additional issues regarding the duty to bargain in the specific circumstances of a case, we have held that those issues should be resolved in other appropriate proceedings. Accordingly, the claimed existence of threshold duty to bargain questions does not prevent us from determining the negotiability of proposals that are otherwise properly before us. Compare American Federation of Government Employees, Local 1864 and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 45 FLRA 691 (1992) (in circumstances where there was no dispute that collective bargaining over the subject that was the focus of the proposals involved in a negotiability petition had terminated and future bargaining over those particular proposals was speculative, the Authority dismissed the petition without prejudice to the union's right to file another petition for review at such time that the conditions governing review were met).

Nothing in the Agency's arguments in this case warrants reversal of our longstanding precedent in this regard. See Border Patrol, 46 FLRA at 937. Further, insofar as the court's decision in U.S. Department of Justice, Immigration and Naturalization Service, U.S. Border Patrol Western Region v. FLRA, No. 91-70259 (9th Cir. Aug. 17, 1992), wherein the court declined to review an Authority negotiability decision pending resolution of duty to bargain issues in a related unfair labor practice proceeding, is inconsistent with our precedent, we disagree with that decision. Consequently, we will determine whether the proposal at issue in this case is nonnegotiable because it is inconsistent with law, rule, or regulation.

III. The Proposal

In order to enhance career advancement opportunities for Federal Bureau of Prisons employees, the parties agree that current employees will be given first consideration for all vacancies. In addition to being first consideration [sic] the parties agree that where all qualifications are relatively equal the Federal Bureau of Prisons employee will be given preference before hiring from any other source.

IV. Positions of the Parties

The Agency contends that this proposal directly interferes with its management right to make selections from any appropriate source under section 7106(a)(2)(C)(ii) of the Statute. The Agency argues that the proposal would require consideration of Bureau of Prisons employees before outside applicants could be considered for vacancies at the Federal Correctional Institution, McKean, Pennsylvania. According to the Agency, under the proposal it could select an outside candidate only when the qualifications of that candidate were more than "relatively equal" to any Bureau of Prisons applicant. The Agency asserts that under Authority precedent, proposals that prevent an agency from giving concurrent consideration to outside applicants directly interfere with management's right to select from any appropriate source.

The Agency also contends that this proposal does not constitute a negotiable arrangement under section 7106(b)(3) of the Statute. The Agency maintains that the proposal is not an "arrangement" because it does not address adverse effects flowing from the exercise of a management right, but, rather, seeks to create a benefit for employees. The Agency contends that, even assuming that the proposal were an arrangement, it is not "appropriate" because it excessively interferes with the exercise of management's right to make selections for appointments from any appropriate source. In this regard, the Agency argues that this proposal would prevent it from selecting an outside candidate for a vacancy except in narrow circumstances and that this limitation would serve to discourage the Agency from surveying appropriate sources for the most qualified candidate. In particular, the Agency contends that this proposal would inhibit its ability to recruit candidates from underrepresented groups pursuant to affirmative action plans. Relying on Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990) and American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1488 (1992) (Health Care Financing Administration), the Agency asserts that this proposal is not negotiable under section 7106(b)(3) of the Statute.

The Union concedes that this proposal directly interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. However, the Union contends that the proposal does not excessively interfere with that right and is negotiable under section 7106(b)(3) as an appropriate arrangement. The Union states that under the proposal, the Agency may select from an "outside" source "at anytime" [sic] as long as the outside candidate has better qualifications than candidates who are already employed by the Bureau of Prisons. Response at 2. According to the Union, this proposal benefits current employees by providing them with increased career advancement opportunities. The Union argues that denial of the proposed benefit would adversely affect current Bureau of Prisons employees by restricting their "upward mobility." Id. at 3. In response to the Agency's argument concerning its ability to hire candidates from underrepresented groups, the Union contends that the proposal would present no impediment to such recruitment because the qualifications of internal candidates would not be "relatively equal" to that of the candidate from an underrepresented group. Id.

V. Analysis and Conclusions

As the Union acknowledges, this proposal directly interferes with management's right to select employees for appointments in filling positions under section 7106(a)(2)(C) of the Statute. That management right reserves to the agency the discretion to determine the source from which it will make a selection. See, for example, Defense Mapping Agency, Louisville, 45 FLRA at 78. It also reserves to the agency the discretion to determine which candidates are better qualified than others when considering candidates for selection when filling a vacancy. Id. Thus, a tie-breaking procedure is negotiable if management is able to determine the source from which it will select and whether candidates are equally qualified for the position. See, for example, Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 793 (1987) (proposal that required the agency to use seniority as a tie-breaker if management determined that two or more employees were equally qualified and where management had determined to make the selection from one source, found negotiable because it did not interfere with management's right under section 7106(a)(2)(C) of the Statute), aff'd as to other matters, 872 F.2d 1032 (D.C. Cir. 1988). This proposal would prevent the selection of an outside candidate for a vacancy unless that candidate was better qualified than any candidates who were currently Bureau of Prisons employees.⁽³⁾ Consequently, it directly interferes with management's right to make selections for appointments in filling positions.

Now we turn to the question of whether this proposal is negotiable under section 7106(b)(3) as an appropriate arrangement notwithstanding the fact that it directly interferes with a management right. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 29-33 (1986) (Kansas Army National Guard), the Authority developed a framework to determine whether a proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Under that framework, we determine whether the proposal is intended as an arrangement for employees who may be adversely affected by the exercise of management's rights. If we find that the proposal is intended as an arrangement, we determine whether that arrangement is appropriate or whether it excessively interferes with the exercise of management's rights.

Applying the framework established in Kansas Army National Guard, we find that this proposal does not constitute an arrangement within the meaning of section 7106(b)(3) of the Statute. In order for us to conclude that a proposal is intended as an arrangement under section 7106(b)(3), the record must demonstrate that the proposal seeks to mitigate the adverse effects on employees of the exercise of a management right.⁽⁴⁾ Id. at 31. Thus, a proposal is not an arrangement merely because employees would be adversely affected by the denial of a benefit provided by the proposal. See Border Patrol, 46 FLRA at 960; National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 45 FLRA 1256, 1258-59 (1992).

This proposal seeks a benefit for employees. The adverse effects that the Union identifies in support of its claim that this proposal constitutes an appropriate arrangement flow from the denial of the benefit sought. It is not apparent from the record that the proposal otherwise seeks to ameliorate adverse effects that flow from the exercise of a management right. Compare, for example, Kansas Army National Guard (the Authority concluded that a provision requiring that when filling specified vacancies management must select an employee who had been demoted through reduction-in-force and, thus, adversely affected by the exercise of a management right constituted an appropriate arrangement under section 7106(b)(3)). Consequently, we conclude that this proposal is not an arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute. In view of this conclusion, it is not necessary to determine whether the proposal excessively interferes with management's right to make selections under section 7106(a)(2)(C) of the Statute.

Accordingly, the proposal is nonnegotiable.

VI. Order

The petition for review is dismissed.

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

1. Member Armendariz' concurring opinion is set forth below at note 4.

2. In its response, the Union contends that the particular master agreement on which the Agency initially relied in making this argument expired and has been replaced by a new contract. The Agency submitted a supplemental statement acknowledging that the status of the master agreement is as claimed by the Union and correcting some of its previous arguments to reflect the agreement that is currently in effect. In view of the fact that the Agency's additional submission is limited to correcting erroneous information in its statement of position, we grant permission for its submission.

3. The Union states that under this proposal, the Agency may select from an outside source at any time as long as the outside candidate has better qualifications than candidates who are current Bureau of Prisons employees. This statement is consistent with the wording of the proposal and we reject the Agency's characterization of this proposal as preventing concurrent consideration of outside and inside candidates. Compare Health Care Financing Administration, 44 FLRA at 1494 (proposal requiring that first consideration be given to bargaining unit employees but which did not prevent the agency from concurrently soliciting candidates from other appropriate sources was a negotiable procedure) with National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886, 889-90 (1990) (proposal precluding management from soliciting or considering outside candidates for bargaining unit positions until after the merit placement process for unit employees was completed directly interfered with management's right under section 7106(a)(2)(C) of the Statute).

4. Member Armendariz, concurring.

Consistent with United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992) and United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992), and my separate opinion in National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 47 FLRA 705 (1993) (Member Armendariz, concurring in part and dissenting in part), in my view in order for a proposal to constitute an arrangement within the meaning of section 7106(b)(3) of the Statute it must be narrowly tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect as a result of an exercise of a management right.

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