Hawaii Federal Employees Metal Trades Council, AFL-CIO (Union) and Department of the Navy, Navy Public Works Center, Pearl Harbor, Hawaii (Activity)  

 04 FLRA No. 3
 
 HAWAII FEDERAL EMPLOYEES
 METAL TRADES COUNCIL, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF THE NAVY
 NAVY PUBLIC WORKS CENTER,
 PEARL HARBOR, HAWAII
 Activity
 
                                            Case No. O-NG-64
 
                     DECISION ON NEGOTIABILITY ISSUES
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                             UNION PROPOSAL I
 
    BASED ON THE RECORD IN THE CASE, THE UNDERLINED PORTION OF THE
 STATEMENT WHICH FOLLOWS REFLECTS THE MUTUAL UNDERSTANDING OF THE PARTIES
 WITH RESPECT TO THE MATTER IN DISPUTE:
 
    SECTION 1.  THE EMPLOYER AND THE UNION AGREE THAT ALL VACANT
 POSITIONS WHICH ARE FILLED
 
    SHOULD BE FILLED ON THE BASIS OF MERIT AND EFFICIENCY, IN ACCORDANCE
 WITH THIS AGREEMENT AND
 
    APPLICABLE REGULATIONS, WITH THE OBJECTIVE OF SELECTING FROM AMONG
 THE BEST QUALIFIED PERSONS
 
    AVAILABLE.  THE INITIAL AREA OF CONSIDERATION FOR PROMOTION TO
 POSITIONS WITHIN THE UNIT AND
 
    TO GRADED NONPROFESSIONAL FIRST LINE SUPERVISORY POSITIONS SHALL BE
 THE NAVY PUBLIC WORKS
 
    CENTER, PEARL HARBOR, EXCEPT, WHERE THE EMPLOYER DETERMINES THAT
 SUFFICIENT REASON EXISTS
 
    WHICH JUSTIFIES ESTABLISHING A WIDER AREA OF CONSIDERATION FOR A
 SPECIFIC POSITION, HE MAY DO
 
    SO AFTER NOTIFICATION TO THE UNION.  FURTHERMORE, IN CASES WHERE THE
 NAVY PUBLIC WORKS CENTER,
 
    PEARL HARBOR IS THE INITIAL AREA OF CONSIDERATION AND DOES NOT
 PRODUCE THREE (3) HIGHLY
 
    QUALIFIED CANDIDATES, THE AREA OF CONSIDERATION MAY BE SYSTEMATICALLY
 EXTENDED, FOLLOWING
 
    NOTIFICATION TO THE UNION.  IF ANY HIGHLY QUALIFIED CANDIDATE FROM
 THE NAVY PUBLIC WORKS
 
    CENTER, PEARL HARBOR IS CONSIDERED, BUT NOT SELECTED, THE UNION WILL
 BE NOTIFIED IN
 
    WRITING.  IT IS UNDERSTOOD THAT VOLUNTARY APPLICATIONS FROM NAVY
 EMPLOYEES MUST BE ACCEPTED
 
    AND EVALUATED ON THE SAME BASIS AS PWC PEARL EMPLOYEES AS PROVIDED BY
 CSC AND THE DEPARTMENT
 
    OF THE NAVY REGULATIONS REGARDLESS OF THE SPECIFIC AREA OF
 CONSIDERATION.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL RELATING TO PERMANENT
 PROMOTIONS TO FIRST LINE SUPERVISORY POSITIONS IS OUTSIDE THE DUTY TO
 BARGAIN IN GOOD FAITH UNDER THE STATUTE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE SUBJECT PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN IN
 GOOD FAITH UNDER SECTION 7117(A)(1) OF THE STATUTE /1/ TO THE EXTENT
 THAT IT WOULD APPLY TO THE FILLING OF SUPERVISORY POSITIONS OUTSIDE THE
 BARGAINING UNIT.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10), THE AGENCY'S
 ALLEGATION THAT THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN IS
 SUSTAINED.
 
    REASONS:  THE PROPOSAL HERE IN DISPUTE WHICH DEALS WITH THE INITIAL
 AREA OF CONSIDERATION FOR PROMOTION TO GRADED NONPROFESSIONAL FIRST LINE
 SUPERVISORY POSITIONS BEARS NO MATERIAL DIFFERENCE FROM THE UNION
 PROPOSAL WHICH WAS BEFORE THE AUTHORITY AND HELD TO BE NEGOTIABLE ONLY
 AT THE ELECTION OF THE AGENCY IN THE PHILADELPHIA NAVAL SHIPYARD CASE.
 /2/ IN THAT CASE, THE AUTHORITY DETERMINED THAT A UNION PROPOSAL WHICH
 WOULD HAVE APPLIED PROPOSED PROMOTION PROCEDURES TO NONBARGAINING UNIT
 SUPERVISORY POSITIONS DID NOT RELATE TO THE CONDITIONS OF EMPLOYMENT OF
 BARGAINING UNIT EMPLOYEES, AND, THEREFORE WAS NEGOTIABLE ONLY AT THE
 ELECTION OF THE AGENCY.  FOR THE REASONS FULLY SET FORTH IN THE
 PHILADELPHIA NAVAL SHIPYARD CASE, THE PROPOSAL HERE IN DISPUTE MUST ALSO
 BE HELD UNDER THE STATUTE TO BE NEGOTIABLE ONLY AT THE AGENCY'S
 ELECTION, WHICH ELECTION THE AGENCY HAS DECLINED TO EXERCISE IN THIS
 CASE.
 
                             UNION PROPOSAL II
 
    THE UNDERLINED PORTION OF THE STATEMENT WHICH FOLLOWS REFLECTS THE
 MUTUAL UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE MATTER IN
 DISPUTE:
 
    SECTION 6.  THE EMPLOYER AGREES TO TEMPORARILY PROMOTE ANY EMPLOYEE
 OFFICIALLY ASSIGNED FOR
 
    TWO (2) CALENDAR WEEKS OR MORE TO A FIRST LEVEL SUPERVISORY POSITION
 OR A NON-SUPERVISORY
 
    POSITION WHICH IS CLASSIFIED AT A HIGHER LEVEL, PROVIDED THE EMPLOYEE
 MEETS THE EXPERIENCE AND
 
    TRAINING REQUIREMENTS FOR PROMOTION AND THE PERSONNEL ACTION IS
 PROCESSED IN ACCORDANCE WITH
 
    APPLICABLE REGULATIONS.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN IN GOOD FAITH UNDER THE STATUTE, AS ALLEGED BY THE AGENCY,
 BECAUSE IT RELATES TO SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT.
 
                                  OPINION
 
    CONCLUSION:  THE SUBJECT PROPOSAL CONCERNS MATTERS WITHIN THE DUTY TO
 BARGAIN IN GOOD FAITH UNDER SECTION 7117(A)(1) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10), THE AGENCY'S ALLEGATION THAT THE DISPUTED
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.  IN SO DECIDING
 THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE AUTHORITY
 MAKES NO JUDGMENT AS TO THE MERITS OF THE PROPOSAL.
 
    REASONS:  THE PROPOSAL HERE IN DISPUTE WHICH CONCERNS THE TEMPORARY
 PROMOTION OF AN EMPLOYEE OFFICIALLY ASSIGNED FOR TWO CALENDAR WEEKS OR
 MORE TO A FIRST LINE SUPERVISORY POSITION, BEARS NO MATERIAL DIFFERENCE
 FROM THE UNION PROPOSALS WHICH WERE BEFORE AUTHORITY AND HELD TO BE
 WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE IN THE AIR FORCE LOGISTICS
 COMMAND, WRIGHT-PATTERSON AIR FORCE BASE AND THE NAVAL AIR REWORK
 FACILITY CASES.  /3/ IN THOSE CASES, THE AUTHORITY DETERMINED THAT UNION
 PROPOSALS WHICH WOULD REQUIRE THE TEMPORARY PROMOTION OF EMPLOYEES
 OFFICIALLY ASSIGNED TO A HIGHER GRADED POSITION, OR TO THE DUTIES OF A
 HIGHER GRADED POSITION FOR CERTAIN SPECIFIED TIME PERIODS, WERE WITHIN
 THE DUTY TO BARGAIN UNDER THE STATUTE.  THEREFORE, FOR THE REASONS FULLY
 SET FORTH IN THE AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE
 BASE AND THE NAVAL AIR REWORK FACILITY CASES, THE PROPOSAL HERE IN
 DISPUTE MUST ALSO BE HELD TO BE WITHIN THE DUTY TO BARGAIN UNDER THE
 STATUTE.
 
    ISSUED, WASHINGTON, D.C. AUGUST 12, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7117(A) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD COMPELLING NEED;  DUTY TO CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    /2/ INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND
 PHILADELPHIA NAVAL SHIPYARD, CASE NO. O-NG-6, 3 FLRA NO. 66 (JUNE 24,
 1980) AT 8 OF THE DECISION.
 
    /3/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
 FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, CASE NO.
 O-NG-40, 2 FLRA NO.  77, (JAN. 31, 1980), AT 25 TO 27 OF DECISION.
 METHODS AND STANDARDS ASSOCIATION AND NAVAL AIR REWORK FACILITY, NAVAL
 AIR STATION, PENSACOLA, FLORIDA, CASE NO. O-NG-41, 2 FLRA NO. 34, (DEC.
 21, 1979).