[ v06 p361 ]
06:0361(66)NG
The decision of the Authority follows:
6 FLRA No. 66
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES LOCAL 1332
Union
and
HEADQUARTERS, U.S. ARMY MATERIEL
DEVELOPMENT AND READINESS
COMMAND, ALEXANDRIA, VIRGINIA
Agency
Case No. O-NG-93
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E)
AND (D) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE) (5 U.S.C. 7101 ET SEQ.). THE ISSUE PRESENTED IS THE
NEGOTIABILITY OF THE FOLLOWING PROPOSALS:
UNION PROPOSALS I AND II
ARTICLE XI-- INTERNAL PLACEMENT AND PROMOTION PROCEDURE
SECTION A.
ALL PERSONNEL ACTIONS INVOLVING CAREER PROGRESSION SHALL BE CONSONANT
WITH THE SPIRIT AND
INTENT OF THE MERIT SYSTEM, AND THE CIVIL SERVICE REFORM ACT. THE
EMPLOYER AGREES TO CONDUCT
TRAINING SESSIONS FOR ALL EMPLOYEES TO ENHANCE THEIR UNDERSTANDING OF
THE MERIT SYSTEM, AND TO
ASSURE FAIR, EQUITABLE, AND CONSISTENT PRACTICES IN CARRYING OUT
PLACEMENT AND PROMOTION
PROCEDURES. THIS ARTICLE SHALL APPLY TO ALL PROMOTION AND PLACEMENT
ACTIONS FOR FILLING MERIT
PROMOTION AND DA CAREER MANAGEMENT PROGRAM POSITIONS IN HQ DARCOM,
SERVICE SUPPORT ACTIVITY,
PERSONNEL SUPPORT AGENCY AND SECURITY ASSISTANCE CENTER FOR ALL JOB
SERIES AND GRADES THROUGH
GS-15. (ONLY THE UNDERLINED PORTION OF THE PROPOSAL IS IN DISPUTE.)
SECTION D. ALL PERSONNEL ACTIONS, INCLUDING ARMY CAREER MANAGEMENT
PROGRAM VACANCIES,
INVOLVING PROMOTIONS, APPOINTMENT OR TRANSFER TO A POSITION SHALL BE
ACCOMPLISHED UNDER THE
PROVISIONS OF THIS ARTICLE.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE DISPUTED PORTION OF UNION PROPOSAL I AND
PROPOSAL II, RELATING TO ALL PLACEMENT AND MERIT PROMOTION ACTIONS
WITHIN THE DESCRIBED ORGANIZATIONAL ELEMENTS, ARE OUTSIDE THE DUTY TO
BARGAIN AS SET FORTH IN SECTION 7117(A)(1) OF THE STATUTE, /1/ AS
ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: TO THE EXTENT THAT UNION PROPOSALS I AND II
CONCERN PROMOTION PROCEDURES FOR BARGAINING UNIT POSITIONS, THEY ARE
WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE. HOWEVER, TO THE EXTENT
THAT THE PROPOSALS WOULD APPLY THEIR PROMOTION PROCEDURES TO THE FILLING
OF NONBARGAINING UNIT POSITIONS (E.G., SUPERVISORY AND MANAGERIAL
POSITIONS), THEY ARE NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY, AND
THE AGENCY HAS ELECTED NOT TO NEGOTIATE. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
OTHERWISE AGREED TO BY THE PARTIES) BARGAIN ON UNION PROPOSALS I AND II
ONLY TO THE EXTENT THAT THEY ARE CONCERNED WITH BARGAINING UNIT
POSITIONS. IT IS FURTHER ORDERED THAT THE UNION'S PETITION FOR REVIEW
WITH RESPECT TO PROPOSALS I AND II, TO THE EXTENT THE PROPOSALS CONCERN
NONBARGAINING UNIT POSITIONS, BE, AND IT HEREBY IS, DISMISSED.
REASONS: IN ITS STATEMENT OF POSITION THE AGENCY CONTENDS THAT THE
DISPUTED PORTION OF UNION PROPOSAL I AND PROPOSAL II ARE NOT WITHIN THE
DUTY TO BARGAIN BECAUSE THEY SEEK TO APPLY THE NEGOTIATED MERIT
PROMOTION PROCEDURE TO THE FILLING OF SUPERVISORY AND MANAGERIAL
POSITIONS OUTSIDE THE BARGAINING UNIT. IN RESPONSE TO THIS CONTENTION,
THE UNION STATED:
(W)E FEEL THAT THE PROCEDURES FOR FILLING (SUPERVISORY AND
MANAGERIAL) POSITIONS DO APPLY
TO BARGAINING UNIT EMPLOYEES AND SHOULD BE COVERED BY THE CONTRACT,
EVEN THOUGH THE POSITIONS
THEMSELVES DO NOT FALL IN THE BARGAINING UNIT. . . . WE ARE NOT
TRYING TO BARGAIN ON
PROCEDURES FOR FILLING ANY POSITIONS WHICH DO NOT HAVE AN IMPACT
DIRECTLY UPON A UNIT
EMPLOYEE. WE SEEK ONLY TO COVER POSITIONS FOR WHICH UNIT MEMBERS
APPLY.
THUS, ACCORDING TO BOTH PARTIES, THE DISPUTED PORTION OF PROPOSAL I
AND PROPOSAL II ARE INTENDED TO INCORPORATE WITHIN THE MERIT PROMOTION
PLAN SUPERVISORY AND MANAGEMENT OFFICIAL POSITIONS. IN THIS REGARD, THE
DISPUTED PROPOSALS HEREIN BEAR NO MATERIAL DIFFERENCE FROM THE UNION
PROPOSAL BEFORE THE AUTHORITY IN INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS, LOCAL F-61 AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO.
66(1980), WHICH WOULD HAVE, INTER ALIA, APPLIED NEGOTIATED PROMOTION
PROCEDURES TO NONBARGAINING UNIT SUPERVISORY POSITIONS. IN THAT CASE,
THE AUTHORITY FOUND THAT THE PROPOSAL, TO THE EXTENT IT APPLIED TO THE
FILLING OF NONUNIT SUPERVISORY POSITIONS, DID NOT RELATE TO THE
CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES AND, THEREFORE,
WHILE NOT PROHIBITED FROM BEING BARGAINED, WAS NEGOTIABLE ONLY AT THE
ELECTION OF THE AGENCY. ACCORDINGLY, AS THE AGENCY HAD ELECTED NOT TO
BARGAIN ON SUCH MATTERS, THE AUTHORITY HELD THE PROPOSAL TO BE
NONNEGOTIABLE TO THAT EXTENT.
FOR THE REASONS FULLY SET FORTH IN THE PHILADELPHIA NAVAL SHIPYARD
CASE, THE DISPUTED PORTION OF UNION PROPOSAL I AND PROPOSAL II, HEREIN,
TO THE EXTENT THAT THEY LIKEWISE SEEK TO ENCOMPASS NONBARGAINING UNIT
POSITIONS, MUST ALSO BE FOUND TO BE NEGOTIABLE ONLY AT THE AGENCY'S
ELECTION.
UNION PROPOSAL III
SECTION C. IF ON THE INITIAL SEARCH AT LEAST ONE HIGHLY QUALIFIED
UNIT EMPLOYEE APPLICANT
IS FOUND, THE EMPLOYER AGREES TO SELECT AND PROMOTE THIS HIGHLY
QUALIFIED APPLICANT TO
ENCOURAGE A HIGH LEVEL OF UNIT EMPLOYEE PERFORMANCE AND TO STRIVE TO
RETAIN AND PROMOTE ALL
CAPABLE AND QUALIFIED UNIT EMPLOYEES. THE INITIAL SEARCH WILL
INCLUDE ONLY THOSE APPLICANTS
FROM THE AREA DESCRIBED IN SECTION F OF THIS ARTICLE. FOR THE
INITIAL SEARCH, NO ADVERTISING
WILL BE MADE OUTSIDE THE AREA DESCRIBED IN SECTION F OF THIS ARTICLE.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL III IS INCONSISTENT WITH THE
AUTHORITY OF THE AGENCY TO MAKE SELECTIONS UNDER SECTION 7106(A)(2)(C)
OF THE STATUTE, /2/ AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL III IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO MAKE SELECTIONS UNDER SECTION 7106(A)(2)(C) OF THE
STATUTE AND, THEREFORE, THE DUTY TO BARGAIN DOES NOT EXTEND TO THIS
MATTER. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION PROPOSAL
III BE, AND IT HEREBY IS, DISMISSED.
REASONS: UNION PROPOSAL III, WHICH PLAINLY MANDATES THAT IF THE
INITIAL SEARCH WITHIN THE BARGAINING UNIT /3/ LOCATES ONE HIGHLY
QUALIFIED CANDIDATE FOR A VACANCY, THE CANDIDATE SO IDENTIFIED MUST BE
SELECTED AND PROMOTED INTO THE VACANCY, BEARS NO MATERIAL DIFFERENCE
FROM THE PROPOSAL WHICH WAS BEFORE THE AUTHORITY AND HELD TO BE
NONNEGOTIABLE IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1451
AND NAVY EXCHANGE, NAVAL ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA, 3
FLRA NO. 60(1980). IN THAT CASE, THE AUTHORITY DETERMINED THAT THE
PROPOSAL, REQUIRING THE AGENCY TO SELECT ONE OF THE THREE QUALIFIED
APPLICANTS FROM WITHIN THE MINIMUM AREA OF CONSIDERATION AND ALLOWING
CONSIDERATION OF OTHER CANDIDATES ONLY IF THERE WERE LESS THAN THREE
QUALIFIED APPLICANTS WITHIN THE AREA OF CONSIDERATION, OPERATED TO
PREVENT THE AGENCY FROM EXERCISING ITS RIGHT TO SELECT WITHIN THE
MEANING OF SECTION 7106(A)(2)(C) OF THE STATUTE. UNION PROPOSAL III,
HERE, IS EVEN MORE RESTRICTIVE IN THAT IT WOULD FORECLOSE FURTHER SEARCH
IF ONLY ONE HIGHLY QUALIFIED APPLICANT WERE LOCATED IN THE AREA OF
CONSIDERATION AND, A FORTIORI, MUST ALSO BE HELD UNDER THE STATUTE TO BE
NONNEGOTIABLE FOR THE REASONS FULLY SET FORTH IN THE NAVAL
ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA CASE.
UNION PROPOSAL IV
SECTION F. THE AREA OF CONSIDERATION FOR FILLING ALL VACANCIES UNDER
THE MERIT PROMOTION
PLAN AND DA CAREER MANAGEMENT PROGRAM (CPR 950-1) WILL BE HQ DARCOM,
INCLUDING PERSONNEL
SUPPORT AGENCY, SERVICE SUPPORT ACTIVITY AND SECURITY ASSISTANCE
CENTER. IF THERE IS AT LEAST
ONE HIGHLY QUALIFIED CANDIDATE FOR THE VACANCY WITHIN THIS AREA OF
CONSIDERATION WHO WILL ACCEPT THE POSITION, THE AREA WILL NOT BE
EXPANDED.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER UNION PROPOSAL IV RELATING TO THE AREA OF
CONSIDERATION FOR FILLING VACANCIES UNDER THE MERIT PROMOTION PROCEDURE
IS OUTSIDE THE DUTY TO BARGAIN AS SET FORTH IN SECTION 7117(A)(1) OF THE
STATUTE AND WHETHER THE SECOND SENTENCE OF THE PROPOSAL IS INCONSISTENT
WITH THE AGENCY'S AUTHORITY TO MAKE SELECTIONS UNDER SECTION
7106(A)(2)(C) OF THE STATUTE, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: TO THE EXTENT UNION PROPOSAL IV WOULD
ESTABLISH THE AREA OF CONSIDERATION FOR POSITIONS WITHIN THE BARGAINING
UNIT, IT IS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE. HOWEVER, TO
THE EXTENT UNION PROPOSAL IV WOULD PREVENT THE AGENCY FROM EXPANDING THE
AREA OF CONSIDERATION IF IT YIELDS A SINGLE HIGHLY QUALIFIED, AVAILABLE
CANDIDATE, IT IS INCONSISTENT WITH THE AGENCY'S AUTHORITY TO MAKE
SELECTIONS UNDER SECTION 7106(A)(2)(C) OF THE STATUTE AND, THEREFORE,
THE DUTY TO BARGAIN DOES NOT EXTEND TO THIS MATTER. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR
AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL
IV ONLY TO THE EXTENT THAT IT WOULD ESTABLISH THE AREA OF CONSIDERATION
FOR BARGAINING UNIT POSITIONS. IT IS FURTHER ORDERED THAT THE UNION'S
PETITION FOR REVIEW RELATING TO PROPOSAL IV, TO THE EXTENT THE PROPOSAL
WOULD PREVENT THE EXPANSION OF THE AREA OF CONSIDERATION IF A SINGLE
HIGHLY QUALIFIED CANDIDATE IS FOUND WITHIN THE BARGAINING UNIT, BE, AND
IT HEREBY IS, DISMISSED.
REASONS: THE FIRST SENTENCE OF THIS PROPOSAL CONCERNS "AREA OF
CONSIDERATION." AS PREVIOUSLY DISCUSSED WITH RESPECT TO UNION PROPOSALS
I AND II HEREIN, SUCH A PROMOTION PROCEDURE IS NOT WITHIN THE DUTY TO
BARGAIN TO THE EXTENT IT WOULD APPLY TO NONBARGAINING UNIT SUPERVISORY
AND MANAGERIAL POSITIONS. HOWEVER, TO THE EXTENT UNION PROPOSAL IV
WOULD PRESCRIBE THE AREA OF CONSIDERATION FOR POSITIONS WITHIN THE
BARGAINING UNIT, IT BEARS NO MATERIAL DIFFERENCE FROM THE PROPOSAL WHICH
WAS BEFORE THE AUTHORITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 331 AND VETERANS ADMINISTRATION HOSPITAL, PERRY POINT,
MARYLAND, 2 FLRA NO. 59(1980) AND HELD TO BE NEGOTIABLE. IN THAT CASE,
THE AUTHORITY, FINDING THE PROPOSAL DID NOT PREVENT MANAGEMENT FROM
CONSIDERING OTHER APPLICANTS OR FROM EXPANDING THE AREA OF SEARCH ONCE
BARGAINING UNIT CANDIDATES WERE CONSIDERED AND DID NOT PRECLUDE
MANAGEMENT FROM MAKING SELECTIONS FROM ANY APPROPRIATE SOURCE, HELD THE
PROPOSAL TO BE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE. THE FIRST
SENTENCE OF UNION PROPOSAL IV, HEREIN, STANDING ALONE, IS ALSO WITHIN
THE DUTY TO BARGAIN, FOR THE REASONS FULLY STATED IN VETERANS
ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND.
THE SECOND SENTENCE OF UNION PROPOSAL IV, HOWEVER, WOULD HAVE A
SIMILAR EFFECT AS UNION PROPOSAL III, HEREIN, WHICH WAS FOUND TO BE
OUTSIDE THE DUTY TO BARGAIN. THAT IS, WHILE THE SECOND SENTENCE OF
PROPOSAL IV DOES NOT MANDATE THE SELECTION AND PROMOTION OF THE SINGLE
CANDIDATE IDENTIFIED WITHIN THE PRESCRIBED AREA OF CONSIDERATION, IT
DOES PROHIBIT MANAGEMENT FROM EXPANDING THE AREA OF CONSIDERATION. THE
PROPOSAL, BY FORECLOSING EXPANSION OF THE AREA OF CONSIDERATION IN THE
CIRCUMSTANCES DESCRIBED, IS INCONSISTENT WITH THE AGENCY'S AUTHORITY TO
MAKE SELECTIONS FROM AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES OR
FROM ANY OTHER APPROPRIATE SOURCE UNDER SECTION 7106(A)(2)(C) OF THE
STATUTE. /4/ CONSEQUENTLY, THE SECOND SENTENCE OF UNION PROPOSAL IV
MUST BE HELD TO BE NONNEGOTIABLE UNDER THE STATUTE.
UNION PROPOSAL V
SECTION H . . . SPECIAL QUALIFICATION REQUIREMENTS MUST BE SUPPORTED
BY A WRITTEN CRITICAL
ANALYSIS OF THE DUTIES OF THE POSITION AND WILL NOT BE USED AS THE
SOLE MEANS TO DISQUALIFY AN
APPLICANT. SKILL, KNOWLEDGE, APTITUDE, AND PERSONAL CHARACTERISTICS
(SKAP) CODE NUMBERS WILL
NOT BE USED AS QUALIFICATION REQUIREMENTS. REGISTRATION IN A CAREER
PROGRAM, THE COMPLETION
OR SUBMISSION OF A SKAP OR SIMILAR CAREER PROGRAM RATING SYSTEM,
SHALL NOT BE REQUIRED FOR
CONSIDERATION FOR ANY VACANCY. ON INITIAL SEARCH, THE AREA OF
CONSIDERATION ON THE
ANNOUNCEMENT SHALL BE LIMITED TO THAT DESCRIBED IN SECTION F OF THIS
ARTICLE.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL V IS INCONSISTENT WITH A
GOVERNMENT-WIDE REGULATION AND/OR AN AGENCY REGULATION FOR WHICH A
COMPELLING NEED EXISTS AND IS, THEREFORE, NONNEGOTIABLE, AS ALLEGED BY
THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL V IS NOT INCONSISTENT WITH
EITHER A GOVERNMENT-WIDE REGULATION OR AN AGENCY REGULATION FOR WHICH
THERE IS A COMPELLING NEED, WITHIN THE MEANING OF SECTION 7117(A)(2) OF
THE STATUTE, /5/ AND IS THEREFORE WITHIN THE AGENCY'S DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
CONCERNING UNION PROPOSAL V. /6/
REASONS: THE AGENCY CONTENDS THAT UNION PROPOSAL V VIOLATES AN
AGENCY REGULATION, CIVILIAN PERSONNEL REGULATION (CPR) 950-1 WHICH
ESTABLISHES THE ARMY CAREER MANAGEMENT SYSTEM. THE AGENCY ASSERTS THAT:
THE CENTRAL INVENTORY AND REFERRAL FEATURE OF THE ARMY CAREER
MANAGEMENT SYSTEM IS
ESSENTIAL TO THE MANAGEMENT OF THE ARMY IN MEETING WORLD-WIDE
STAFFING NEEDS, FORECASTING
MANPOWER REQUIREMENTS, MEETING AFFIRMATIVE ACTION OBJECTIVES, AND
PLACING ADVERSELY AFFECTED
EMPLOYEES, ALL OF WHICH ARE FUNDAMENTAL TO ACCOMPLISHING THE MISSION
OF THE ARMY. FOR THESE
REASONS, IT IS CONSIDERED THAT A COMPELLING NEED EXISTS FOR AN AGENCY
REGULATION WHICH GOVERNS
THE BASIC POLICIES AND PROGRAM REQUIREMENTS FOR INTAKE, ASSIGNMENT,
CAREER MANAGEMENT AND
DEVELOPMENT OF PERSONNEL IN DESIGNATED OCCUPATIONS THROUGHOUT THE
DEPARTMENT OF THE ARMY. /7/
THE AGENCY ALSO CONTENDS THAT, SINCE CPR 950-1 INCORPORATES AND
APPLIES FEDERAL MERIT PROMOTION REQUIREMENTS SET FORTH IN FEDERAL
PERSONNEL MANUAL (FPM) CHAPTER 335 TO KEY AGENCY POSITIONS IN SOME 21
OCCUPATIONAL FIELDS OR CAREER PROGRAMS, THE INSTANT PROPOSAL, IN
VIOLATING THE AGENCY REGULATION, ALSO IS INCONSISTENT WITH FPM CHAPTER
335, A GOVERNMENT-WIDE REGULATION.
CPR 950-1 ESTABLISHES A CENTRALIZED, COMPUTERIZED SYSTEM FOR
IDENTIFYING CANDIDATES FOR VACANCIES IN OCCUPATIONAL FIELDS COVERED BY
THE REGULATION. CENTRAL INVENTORIES OF REGISTRANTS IN THE VARIOUS
CAREER FIELDS ARE ESTABLISHED AT AGENCY HEADQUARTERS AND SUBORDINATE
COMMANDS. MINIMUM AREAS OF CONSIDERATION, BASED ON GRADE LEVELS, HAVE
BEEN ESTABLISHED FOR EACH CAREER PROGRAM. AS THE GRADES OF VACANCIES
ASCEND, THE MINIMUM AREA OF CONSIDERATION EXPANDS. THUS, IN GENERAL,
THE MINIMUM AREA OF CONSIDERATION FOR COVERED POSITIONS AT GRADE GS-13
AND ABOVE IS AGENCY-WIDE. THE AREA OF CONSIDERATION IS NORMALLY
COMMAND-WIDE FOR POSITIONS ONE GRADE BELOW THE AGENCY-WIDE LEVEL. LOCAL
MERIT PROMOTION PLANS ARE USED IN FILLING CAREER PROGRAM VACANCIES BELOW
THOSE LEVELS.
WITH REGARD TO POSITIONS AT GRADE LEVELS COVERED BY THE CENTRAL
INVENTORIES, THE AGENCY HAS CONDUCTED ANALYSES OF SUBSTANTIALLY ALL
OCCUPATIONS INCLUDED IN CAREER PROGRAMS AND THEREBY IDENTIFIED THE
SKILLS, KNOWLEDGES, ABILITIES AND PERSONAL CHARACTERISTICS (SKAP) WHICH
ARE CONSIDERED NECESSARY FOR SUCCESSFUL PERFORMANCE IN POSITIONS
INCLUDED IN INDIVIDUAL CAREER PROGRAMS. ACCORDING TO THE AGENCY, IN
DETERMINING THE SKAP ELEMENTS, IT TOOK INTO ACCOUNT NOT ONLY THE NEEDS
OF LOCAL INSTALLATIONS BUT ALSO THE LONG RANGE NEEDS OF THE AGENCY
ITSELF. THE IDENTIFIED SKAP ELEMENTS FORM THE BASIS FOR CONSIDERING,
EVALUATING, AND COMPARING CANDIDATES FOR REFERRAL TO MANAGERS SEEKING TO
FILL CAREER PROGRAM VACANCIES.
THE AGENCY CONSTRUES UNION PROPOSAL V AS BARRING THE USE OF SKAP
ELEMENTS, AND ELIMINATING THE REQUIREMENTS FOR REGISTRATION AND
APPRAISAL IN ACCORDANCE WITH CPR 950-1. ACCORDINGLY, THE AGENCY ASSERTS
THAT THE PROPOSAL "WOULD HAVE THE EFFECT OF SUPPLANTING THE CAREER
MANAGEMENT SYSTEM IN THE BARGAINING UNIT" AND ULTIMATELY IMPACT
ADVERSELY ON THE AGENCY-WIDE PROGRAM.
THE UNION TAKES THE POSITION THAT THE AGENCY HAS MISINTERPRETED THE
SKAP CODE PORTION OF THE PROPOSAL. IN THIS REGARD, THE UNION
SPECIFICALLY STATED THAT THE PROPOSAL "STATES ONLY THAT THE SKAP CODES
WILL NOT 0E USED AS QUALIFICATION REQUIREMENTS. IT DOES NOT STATE THAT
MANAGEMENT CANNOT CONSIDER THESE CODES. THE PROPOSAL ONLY MEANS THAT IT
IS NOT NECESSARY FOR A PERSON TO BE REGISTERED IN THIS (CAREER) PROGRAM
IN ORDER FOR THE EMPLOYEE TO BE CONSIDERED FOR A PARTICULAR VACANCY."
THE LANGUAGE OF THE PROPOSAL ITSELF IS CONSISTENT WITH THE UNION'S
STATEMENT AS TO ITS MEANING WHICH THE AUTHORITY ADOPTS FOR THE PURPOSE
OF THIS DECISION. THUS, UNION PROPOSAL V DOES NOT SEEK TO ELIMINATE
SKILLS, KNOWLEDGES, ABILITIES, AND PERSONAL CHARACTERISTICS AS ELEMENTS
IN RANKING CANDIDATES FOR VACANCIES WITHIN THE BARGAINING UNIT. RATHER,
IT ONLY SEEKS TO ELIMINATE THE EXCLUSIVE USE OF SKAP CODE NUMBERS IN
RANKING BARGAINING UNIT EMPLOYEES WHO APPLY FOR UNIT VACANCIES. THE
EFFECT OF THE PROPOSAL, AS REFLECTED IN ITS LANGUAGE AND THE INTENT OF
THE UNION, WOULD BE TO PREVENT THE SUMMARY DISQUALIFICATION OF OTHERWISE
ELIGIBLE BARGAINING UNIT CANDIDATES BASED ON THEIR FAILURE TO BE
REGISTERED IN THE APPLICABLE CAREER PROGRAM. THE PROPOSAL DOES NOT
REQUIRE THAT THE SUBSTANTIVE INFORMATION TO BE USED IN RATING APPLICANTS
FROM WITHIN THE BARGAINING UNIT BE DIFFERENT IN CONTENT FROM THAT
EMPLOYED IN RATING COMPETITORS FROM OUTSIDE THE BARGAINING UNIT. ON THE
CONTRARY, IT MERELY PERMITS BARGAINING UNIT EMPLOYEES TO BE RATED BASED
ON DATA WHICH IS DIFFERENT IN FORM ONLY. MOREOVER, WHILE THE PROPOSAL
PROHIBITS THE USE OF COMPUTERIZED SKAP CODES WHEN CONSIDERING BARGAINING
UNIT EMPLOYEES FOR BARGAINING UNIT POSITIONS, IT CANNOT PRECLUDE THE USE
OF CODED INFORMATION IN IDENTIFYING AND RANKING CANDIDATES FROM OUTSIDE
THE BARGAINING UNIT OR IN TAKING PERSONNEL ACTIONS AFFECTING CAREER
PROGRAM POSITIONS OUTSIDE THE UNIT. IN THE LATTER REGARD, THE AGENCY
STATES, "POSITIONS AT THE (COMMAND) OR (AGENCY) REFERRAL GRADE LEVELS
ARE TYPICALLY REPRESENTATIVE OF FIRST LEVEL OR HIGHER SUPERVISORY OR
STAFF LEVEL POSITIONS IN EACH OF THE CAREER FIELDS." THUS, IT IS CLEAR
THAT UNION PROPOSAL V WOULD NOT BE APPLICABLE TO THE FILLING OF A
MAJORITY OF POSITIONS FOR WHICH CENTRALIZED REFERRAL IS PRESCRIBED BY
CPR 950-1.
IN SUMMARY, THE AGENCY HAS FAILED TO SUSTAIN ITS ASSERTION THAT THE
PORTION OF CPR 950-1 WHICH REQUIRES IDENTIFICATION AND RANKING OF
CANDIDATES BY THE SOLE MEANS OF COMPUTERIZED SKAP CODES IS ESSENTIAL, AS
OPPOSED TO HELPFUL OR DESIRABLE, TO THE ACCOMPLISHMENT OF THE AGENCY'S
MISSION OR THE EXECUTION OF ITS FUNCTIONS IN AN EFFICIENT MANNER WITHIN
THE MEANING OF SECTION 2424.11(A). ACCORDINGLY, THE AUTHORITY
DETERMINES THAT NO COMPELLING NEED EXISTS FOR THIS PORTION OF CPR 950-1
TO BAR NEGOTIATIONS ON UNION PROPOSAL V.
AS TO THE AGENCY'S DERIVATIVE CLAIM THAT UNION PROPOSAL V IS
INCONSISTENT WIT, FPM REQUIREMENTS FOR MERIT PROMOTION PROGRAMS WHICH
ARE IMPLEMENTED IN CPR 950-1, THIS ASSERTION IS ALSO BASED ON A
MISAPPREHENSION AS TO THE PROPOSAL'S INTENT WITH RESPECT TO SKAP CODES.
THUS, THE AGENCY ASSERTS THAT THE BAN ON USE OF SKAP CODES VIOLATES THE
FPM CHAPTER 335 REQUIREMENT THAT MERIT PROMOTION PLANS INCLUDE JOB
RELATED CRITERIA, IN ADDITION TO THE BASIC QUALIFICATIONS REQUIREMENTS,
WHICH ARE ESSENTIAL TO SATISFACTORY PERFORMANCE IN INDIVIDUAL POSITIONS.
THE BAN, THE AGENCY ALSO CONTENDS, WOULD RESULT IN INEQUITABLE
TREATMENT OF EMPLOYEES OUTSIDE THE BARGAINING UNIT. HOWEVER, AS NOTED
ABOVE IN EXAMINING THE COMPELLING NEED ASSERTIONS OF THE AGENCY, THE
PROPOSAL DOES NOT BAR THE USE OF SKAP INFORMATION AND THE AGENCY HAS
MISINTERPRETED THE PROPOSAL IN THIS REGARD. THEREFORE, THE PROPOSAL IS
NOT IN CONFLICT WITH FPM REQUIREMENTS, AS ALLEGED BY THE AGENCY.
FINALLY, THE AGENCY'S ASSERTION THAT THE PROPOSAL IS NOT WITHIN THE
DUTY TO BARGAIN BECAUSE IT PRESCRIBES AN AREA OF CONSIDERATION NARROWER
THAN THAT SET FORTH IN BOTH THE FPM AND CPR 950-1 FOR POSITIONS AT
HIGHER GRADE LEVELS, PARTICULARLY GRADES GS-13 AND ABOVE, CANNOT BE
SUSTAINED. WITH REGARD TO FPM CHAPTER 335, IT NO LONGER PRESCRIBES
AGENCY-WIDE MINIMUM AREAS OF CONSIDERATION FOR POSITIONS AT GRADE GS-14
AND ABOVE AND, CONSEQUENTLY, THE PROPOSAL DOES NOT CONFLICT WITH IT IN
THIS RESPECT. AS TO CPR 950-1, THE AGENCY FAILS TO SHOW THAT ITS
REQUIREMENT THAT MINIMUM AREAS OF CONSIDERATION FOR HIGHER LEVEL
POSITIONS BE EITHER COMMAND OR AGENCY-WIDE IS ESSENTIAL, AS
DISTINGUISHED FROM HELPFUL OR DESIRABLE, TO THE ACCOMPLISHMENT OF ITS
MISSION UNDER THE CRITERION SET FORTH IN SECTION 2424.11(A) OF THE
AUTHORITY'S RULES AND REGULATIONS. THEREFORE, THE AUTHORITY DETERMINES
THAT NO COMPELLING NEED EXISTS FOR THIS PORTION OF CPR 950-1 TO BAR
NEGOTIATION ON UNION PROPOSAL V. MOREOVER, THE DISCUSSION OF THE
NEGOTIABILITY OF AREAS OF CONSIDERATION WITH RESPECT TO UNION PROPOSAL
IV, HEREIN, IS EQUALLY APPLICABLE TO THIS PARALLEL ASPECT OF UNION
PROPOSAL V.
ACCORDINGLY, FOR THE REASONS STATED, UNION PROPOSAL V MUST BE HELD TO
BE WITHIN THE AGENCY'S DUTY TO BARGAIN.
ISSUED, WASHINGTON, D.C., AUGUST 5, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; 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/ SECTION 7106(A)(2)(C) PROVIDES AS FOLLOWS:
SEC. 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
APPOINTMENT FROM--
(I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION; OR
(II) ANY OTHER APPROPRIATE SOURCE(.)
/3/ "SECTION F," REFERENCED IN THIS PROPOSAL, IN PART PROVIDES IN
ESSENCE THAT THE INITIAL SEARCH WILL BE LIMITED TO THE BARGAINING UNIT
(SEE UNION PROPOSAL IV, HEREIN).
/4/ SEE, THE NATIONAL COUNCIL OF CSA LOCALS, A.F.G.E., AFL-CIO AND
THE COMMUNITY SERVICES ADMINISTRATION, 3 FLRA NO. 13(1980).
/5/ SECTION 7117(A)(2) PROVIDES:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
. . . .
(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
INCONSISTENT WITH FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION,
EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY AGENCY RULE OR REGULATION
REFERRED TO IN PARAGRAPH (3) OF THIS SUBSECTION ONLY IF THE AUTHORITY
HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO COMPELLING
NEED (AS DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY)
EXISTS FOR THE RULE OR REGULATION.
/6/ IN SO DECIDING THAT UNION PROPOSAL V IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.
/7/ THE AGENCY ASSERTIONS ADDRESS, IN SUBSTANCE BUT WITHOUT CITATION,
THE ILLUSTRATIVE CRITERIA FOR DETERMINING COMPELLING NEED FOR AGENCY
RULES AND REGULATIONS WHICH WERE IN EFFECT PURSUANT TO SECTION 7135(B)
OF THE STATUTE BEFORE ISSUANCE OF THE AUTHORITY'S RULES AND REGULATIONS
IN THEIR CURRENT FORM. THE ILLUSTRATIVE CRITERIA SET FORTH IN THE
CURRENT RULES AND REGULATIONS, ISSUED DURING THE PENDENCY OF THIS CASE,
CLARIFY AND CONSOLIDATE THE PRIOR PROVISIONS IN A MANNER HAVING NO
BEARING ON THE RESOLUTION OF THE PRESENT DISPUTE (SEE 5 CFR 2413.2(1978)
AND 45 F.R. 3482, 3485, 3513(1980)). HENCE, THIS DECISION REFERS TO THE
CURRENT ILLUSTRATIVE CRITERIA (5 CFR 2424.11(1981)) WHICH, IN RELEVANT
PART, PROVIDE AS FOLLOWS:
SEC. 2424.11 ILLUSTRATIVE CRITERIA.
A COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING
ANY CONDITION OF
EMPLOYMENT WHEN THE AGENCY DEMONSTRATES THAT THE RULE OR REGULATION
MEETS ONE OR MORE OF THE
FOLLOWING ILLUSTRATIVE CRITERIA:
(A) THE RULE OR REGULATION IS ESSENTIAL, AS DISTINGUISHED FROM
HELPFUL OR DESIRABLE, TO THE
ACCOMPLISHMENT OF THE MISSION OR THE EXECUTION OF FUNCTIONS OF THE
AGENCY OR PRIMARY NATIONAL
SUBDIVISION IN A MANNER WHICH IS CONSISTENT WITH THE REQUIREMENTS OF
AN EFFECTIVE AND
EFFICIENT GOVERNMENT.