[ v23 p569 ]
23:0569(79)NG
The decision of the Authority follows:
23 FLRA No. 79
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29
Union
and
KANSAS CITY DISTRICT, CORPS OF
ENGINEERS, KANSAS CITY, MISSOURI
Agency
Case No. 0-NG-1050
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of three Union proposals. /1/
II. Union Proposal 1
ARTICLE 14
Section 3. a. It is agreed that the Employer will utilize, to
the maximum extent possible, the knowledge, skills and ability of
its employees. Therefore, consideration will be first given
bargaining unit employees in the filling of bargaining unit
positions. The employer will not solicit applications from
outside the minimum area of consideration, the Kansas City
District, or call for an OPM register of candidates if three or
more highly/best qualified candidates are identified within the
minimum area of consideration.
b. If the minimum area of consideration fails to yield at
least three best qualified candidates or, if after consideration
is given to best qualified candidates within the bargaining unit,
the employer may expand the area of consideration to all the
highly qualified candidates within the bargaining unit, if
necessary. After consideration of the highly qualified unit
employees, the employer may expand the area of consideration to
other appropriate sources, if necessary. (Within this proposal,
only the underscored portion is in dispute.)
A. Positions of the Parties
The Agency states that, if both sections (a) and (b) of Union
Proposal 1 are considered together, the proposal is negotiable under the
Authority's holding in American Federation of Government Employees,
AFL-CIO, Local 331 and Veterans Administration Hospital, Perry Point,
Maryland, 2 FLRA 427 (1980). However, the Agency contends that, because
it made no allegation that section (b) of the proposal was outside the
duty to bargain, the Authority should consider the negotiability of
section (a) alone. It argues that section (a) of the proposal violates
its right to select under section 7106(a)(2)(C) of the Statute in that
it would prohibit the Agency from expanding the area of consideration or
selecting from any appropriate source.
The Union contends that both sections (a) and (b) were presented to
the Agency and that both sections should, therefore, be considered in
determining the negotiability of Union Proposal 1. It argues that the
proposal does not prevent management from expanding the area of
consideration after first considering unit employees and is within the
duty to bargain.
B. Analysis and Conclusion
The Authority rejects the Agency's contention that only section (a)
should be considered in determining the negotiability of Union Proposal
1. Section (b) of the Union's proposal qualifies the language of
section (a) -- that is, section (b) provides that the Agency may expand
the area of consideration to additional sources after first considering
the sources described in section (a). We find that the proposal should,
therefore, be read as a whole. The Agency's contention that the
proposal should not be read in its entirety because it declared only
section (a) of the proposal to be nonnegotiable is without merit.
We find, as conceded by the Agency, that Union Proposal 1 is to the
same effect as the proposal that the Authority found to be within the
duty to bargain in the VA Hospital, Perry Point case. The proposal in
that case similarly would have required the agency to consider unit
employees for vacant positions prior to expanding the minimum area of
consideration. The Authority held that the proposal in VA Hospital,
Perry Point did not violate the agency's right to make selections from
any appropriate source in that it only required the agency to give
consideration to, but not to select, unit employees for vacant
positions. Accordingly, for the reasons set forth more fully in VA
Hospital, Perry Point, Union Proposal 1 is within the duty to bargain.
III. Union Proposals 2 and 3
ARTICLE 14
(Union Proposal 2)
Section 4 -- Crediting Plan.
a. The Employer will establish ad hoc committees for the
purpose of establishing the levels of knowledge, skills and
ability (KSAs) for each job element (crediting plan), to be used
in rating and ranking applicants. The Union will be notified
prior to the establishment of such committees and may recommend
unit employees for membership on the committee. At a minimum,
committee members must have occupied a position at a grade
equivalent to the grade at which the position will be filled and
must be capable of making an informed decision regarding the job
elements, criteria and qualifications pertinent to the
occupational field of the position.
b. The Crediting Plan will be based solely on job-related
criteria and must be consistent with the major job elements in the
performance standards for the position. The committee will
establish four levels of rating for each job element of the
Crediting Plan. These four levels will be expressed as narrative
statements of the KSAs necessary to obtain a particular level.
These levels are as follows:
(1) Outstanding -- candidates KSAs in this element exceed
expectations to such an extent that it warrants special
consideration: 4 Points
(2) Superior -- candidates KSAs in this element are clearly
above that expected of a fully competent employee: 3 Points
(3) Satisfactory -- candidates KSAs in this element are
expected to be that of a fully competent employee: 2 Points
(4) Marginal -- candidates KSAs in this element are weak but of
some value: 1 Point
For Wage Grade positions, the Crediting Plans will have an
additional section for "Basic Eligibility," listing the set of
approved standard KSA elements in OPM Handbook X-118C and will
describe both the 2 point (barely acceptable) and 1 point (weak
but of some value), levels for each element. (Within this
proposal, only the underscored portion is in dispute.)
(Union Proposal 3)
Section 5 -- Candidate Evaluation.
a. The Employer will rate and rank all bargaining unit
applicants prior to expanding the area of consideration and/or
when two or more unit employees apply for a position to be filled.
The Employer will establish a rating and ranking panel on all
positions where there are three or more qualified bargaining unit
applicants. The Union will be notified prior to the establishment
of such a panel and may recommend unit employees for membership on
the panel. At a minimum, panel members must have occupied a
position at a grade equivalent to the grade at which the position
will be filled and must be capable of making an informed decision
regarding the job elements, criteria and qualifications relative
to the crediting plan and not be a candidate for the position.
All materials used by rating and ranking panels shall be sanitized
of names and social security numbers.
b. The candidate evaluation will consist of two parts. The
first part will be the supervisor's appraisal which will consist
of a "Task Level Questionnaire", in which the supervisor will
identify one of the four narrative levels of each job element,
which closest describes the candidates demonstrated knowledge,
skill or ability. The second part of the candidate evaluation
will be the candidate's questionnaire, in which the candidate will
provide a narrative description of his/her knowledge, skills, or
ability for each job element. The candidate's questionnaire will
then be compared against the crediting plan for his/her rating on
each job element. A mathematical average will be computed for the
supervisor's questionnaire (SQ), and the candidate's questionnaire
(CQ); each will then be placed in the following formula to arrive
at the candidate's overall rating, ((SQ x .25) + (CQ x .75)) x 25
equals Overall rating. To the overall rating points will be
added, as follows:
DEGREE POINTS
PhD equals 10
MS or MA equals 7
BS or BA equals 5
Associate Degrees equals 2
12-60 Credit Hours equals 1
PERFORMANCE RATING POINTS
Exceptional equals 3
Highly Successful equals 2
Fully Successful equals 1
Candidates and their ratings will be listed on the Selection
and Referral List in numerical order, with the highest rated
candidate first and lowest rated candidate last. In cases where
two or more candidates have the same numerical rating, the service
computation date will be used as a tie-break with the most senior
listed first. (Within this proposal, only the underscored portion
is in dispute.)
A. Positions of the Parties
The Agency contends that Union Proposals 2 and 3 would require it to
negotiate concerning the content of crediting plans in violation of its
rights under section 7106(a)(2)(B) and (C) of the Statute to determine
the personnel by which agency operations will be performed and to make
selections for appointments. The Agency also incorporates arguments
made by the Office of Personnel Management (OPM) concerning the
Authority's decision in National Treasury Employees Union and NTEU
Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA
209 (1983), enforcement denied sub nom. U.S. Customs Service, Region II
v. Federal Labor Relations Authority, 739 F.2d 829 (2d Cir. 1984). OPM
contends that bargaining over the content of crediting plans (1)
violates management's rights to select, assign work, and determine the
personnel by which agency operations will be conducted; and (2) is
inconsistent with various laws and Government-wide regulations,
including 5 C.F.R. Section 335.103 and Federal Personnel Manual (FPM)
Supplement 335-1.
The Union contends that Proposals 2 and 3 can be distinguished from
the proposals in U.S. Customs Service, Region II. It argues that the
proposals in that case specifically defined the evaluation criteria and
measurement tools by which candidates would be ranked but that the
proposals in dispute here leave those determinations to a
management-appointed committee. The Union argues that subsection (b) of
Proposal 2 here merely states the number of rating levels to be applied
in judging candidates based on the knowledge, skills, abilities and
other factors (KSAOs) which the committee has determined to be relevant.
The Union claims, therefore, that Proposal 2 reserves greater authority
to the Agency than the proposals in U.S. Customs Service, Region II. It
further argues that subsection (b) of Proposal 3 is also distinguishable
from the proposals in that case because the proposal leaves the bulk of
the overall rating to the committee's assessment of a candidate's KSAOs
and a supervisory evaluation -- both management determinations. It also
argues that subsection (a) of Proposal 3 is not concerned with the
content of the Agency's crediting plan at all, and does not prevent
management from expanding the area of consideration or selecting a
candidate from any other appropriate source. Also, the Union disputes
the arguments contained in the OPM statement.
B. Analysis and Conclusions
Union Proposals 2 and 3 concern the process by which the Agency
evaluates candidates for positions -- that is, the Agency's "crediting
plan." In The Montana Air Chapter of Association of Civilian Technicians
and U.S. Department of the Air Force, Montana Air National Guard, 19
FLRA No. 112 (1985), the Authority adopted the decision of the United
States Court of Appeals for the District of Columbia Circuit in
Department of the Treasury, U.S. Customs Service v. Federal Labor
Relations Authority, 762 F.2d 1119 (D.C. Cir. 1985) and held that a
proposal which assigned points for crediting plan purposes solely on the
basis of seniority was inconsistent with 5 C.F.R. Section 300.103(a).
/2/ The Authority found that section 300.103(a) required that crediting
plans, like other employment practices, be derived from a job analysis,
and that the union had not demonstrated that any job analysis had been
conducted which linked seniority to success in the particular
position(s) in question.
The Union contends that Proposals 2 and 3 in dispute here are
different than the type of proposals in Montana Air National Guard
because its proposals allow the Agency to determine the KSAOs relevant
to the position. However, while the proposals in dispute here do not
define the applicable KSAOs, they do set forth how much weight those
KSAOs are to be given in evaluating candidates. For example, subsection
(b) of Proposal 2 would apply the same point scale to each KSAO -- that
is, under the proposal, each of the KSAOs is presumed to be of equal
value in evaluating the candidate under the crediting plan.
Additionally, subsection (b) of Proposal 3 would establish the
respective weights to be given to the supervisory evaluation and the
candidates' responses, and would add additional points to a candidate's
overall rating based upon education and performance ratings. Contrary
to the Union's contentions, these provisions are not procedures but
instead concern the substantive aspects of the Agency's crediting plan.
As to subsection (b) of Proposal 2, nothing in the Union's
submissions would indicate that its proposed assignment of equal weight
to all KSAOs is in any way derived from a job analysis. Additionally,
the Union has not demonstrated that subsection (b) of Proposal 3 is
based on a job analysis which shows a connection between performance in
a current position or degrees held by a candidate and success in the
position(s) for which candidates are applying. See National Association
of Government Employees, Local R7-23 and Department of the Air Force,
Headquarters 375th Air Base Group (MAC), Scott Air Force Base, Illinois,
21 FLRA No. 115 (1986). Accordingly, for the reasons set forth in the
Montana Air National Guard decision, subsection (b) of Proposal 2 and
subsection (b) of Proposal 3 are inconsistent with 5 C.F.R. Section
300.103(a) and are outside the duty to bargain under section 7117(a)(1)
of the Statute. In view of this decision, it is unnecessary for us to
decide whether those sections also violate management's rights or are
inconsistent with the laws and regulations cited by OPM.
The Agency, in its Statement of Position, does not state any specific
objection to subsection (a) of Union Proposal 3. Rather, the Agency
makes only general objections concerning the content of crediting plans.
Subsection (a) of Proposal 3, however, is not concerned with the
content of the Agency's crediting plan. Instead, subsection (a)
discussed above, would require the Agency to (1) rate and rank
bargaining unit applicants prior to expanding the area of consideration
for a position and (2) use a panel for the rating and ranking process
where there are three or more qualified bargaining unit applicants. The
Union states that its proposal is not intended to require the Agency to
select a unit employee and does not preclude the Agency from expanding
the area of consideration. Union Response at 3-4, 10. We agree with
the Union's interpretation and find that, like Union Proposal 1,
subsection (a) of Proposal 3 constitutes a procedure which does not
directly interfere with the Agency's rights. Additionally, because
subsection (a) is not concerned with the content of the Agency's
crediting plan, we find that the arguments raised in the OPM statement
are inapplicable. Accordingly, we conclude that subsection (a) of Union
Proposal 3 is within the duty to bargain.
IV. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the Agency shall upon request, or as otherwise agreed
to by the parties, bargain concerning Union Proposal 1 and subsection
(a) of Union Proposal 3. /3/ IT IS FURTHER ORDERED that the Union's
petition for review as to Union Proposal 2 and as to subsection (b) of
Union Proposal 3 be, and it hereby is, dismissed.
Issued, Washington, D.C., October 14, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union withdrew its appeal as to one additional proposal
concerning the removal of probationary employees. This proposal will
not be considered further here.
(2) 5 C.F.R. Section 300.103(a) reads in pertinent part:
Section 300.103 Basic Requirements
(a) Job analysis. Each employment practice of the Federal
Government generally, and of individual agencies, shall be based
on a job analysis to identify:
(1) The basic duties and responsibilities;
(2) The knowledges, skills, and abilities required to perform
the duties and responsibilities; and
(3) The factors that are important in evaluating candidates.
The job analysis may cover a single position or group of
positions, or an occupation or group of occupations, having common
characteristics.
(3) In finding these proposals within the duty to bargain, the
Authority makes no judgment as to their merits.