American Federation of Government Employees, Local 3296 and National Guard Bureau, Alaska National Guard (Authority decision, October 14, 1988)

Final FLRA decision. The Authority finds the disputed portions of two promotion and placement provisions outside the duty to bargain and dismisses the petition as to those provisions. An aggrieved person may seek judicial review of this final Authority order within 60 days after issuance under 5 U.S.C. § 7123(a); filing does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

AFGE Local 3296 challenged the Alaska National Guard's disapproval of two negotiated hiring provisions. One would stop additional candidate lists once a list contained five names. The other would require full consideration of bargaining unit applicants before looking elsewhere and limit use of outside candidates. The Authority found that both restrictions interfered with management's right to select from any appropriate source. It rejected the union's claim that the provisions were merely procedures and found no identified adverse employee effect to support treating them as appropriate arrangements. The petition was dismissed as to these two provisions.

Decision snapshot

• Authority: Selection rights under 5 U.S.C. § 7106(a)(2)(C)(ii).
• Outcome: Disputed portions of Provisions 6 and 7 found nonnegotiable; petition dismissed as to them.
• Key point: Candidate-list limits that block consideration of other sources restrict management's statutory selection right.

Full text (FLRA public release)

[ v33 p99 ]
33:0099(13)NG

The decision of the Authority follows:

33 FLRA No. 13

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 3296

and

NATIONAL GUARD
BUREAU

ALASKA NATIONAL
GUARD

0-NG-1534

DECISION AND ORDER ON NEGOTIABILITY
ISSUES

October 14, 1988

Before Chairman Calhoun and Member
McKee.

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). It concerns the negotiability of two provisions of a negotiated agreement which was disapproved by the head of the Agency under section 7114(c) of the Statute.(1) The provisions involve management's right to make selections for appointments from any appropriate source under section 7106(a)(2)(C)(ii) of the Statute.

We find that the disputed portions of Provisions 6 and 7 interfere with the right to make selections for appointments from any appropriate source under section 7106(a)(2)(C)(ii). We also find that the provisions do not constitute negotiable procedures under section 7106(b)(2) or appropriate arrangements under section 7106(b)(3).

II. Provision 6

Article 15, Section 3.c - CERTIFICATE OF
ELIGIBLES:

Following the determination of basic eligibility and evaluation of candidates, the SPMO will provide the nomination official with a certificate of eligible candidates in accordance with the following:

a. Certificate 1 - Fully qualified candidates from Area 1(2), and if advertised at a lower grade, then less than fully qualified candidates from Area 1. No more than five (5) names will be on this Certificate of fully qualified candidates nor more than five (5) names of less than fully qualified candidates. Names on the certificate will be placed there in accordance with the procedures established in the State Merit Promotion Plan. (footnote added.)

b. Certificate 2 - Fully qualified candidates from Area 2 and if advertised at a lower grade, then less than fully qualified candidates from Area 2. No more than five (5) names will be on this Certificate and will be placed there in accordance with the procedures established in the State Merit Promotion Plan.

c. Five (5) candidates on any certificate will close any and all subsequent Certificates and Areas for consideration and referral to the nominating supervisor.

Provision 7

Article 15, Section 5 - PLACEMENT(3)

The placement procedure will only be used if
required training or abilities of applicants would compromise mission accomplishment and may only be used within the procedures outlined in Section 3 or 4. In either case, the nomination official must insure that all Area I personnel have been fully considered before other applicants are interviewed and considered. If an Area I candidate is considered suitable and/or better qualified, Management should make every attempt to place the applicant; however, Management may use an open selection procedure for placement of the best qualified candidate in a certain specified hard-to-fill highly specialized positions; regardless of the area of consideration.

[Only the underlined portions are in
dispute.]

A. Positions of the Parties

The Agency contends that the underlined portions of Provisions 6 and 7 violate the Agency's right to fill vacancies by selection from any appropriate source under section 7106(a)(2)(C)(ii) of the Statute.

The Union contends that the disputed portions of the provisions are procedures under section 7106(b)(2) and do not interfere with management's right to select from any appropriate source. It also contends that the provisions are appropriate arrangements under section 7106(b)(3). The Union argues that Provision 6 describes how certificates are developed by the servicing personnel office and referred to the nomination official. The Union maintains that Provision 6 does not require management to select a candidate from the certificate. Union Response at 4-5. The Union argues that under Provision 7 management can consider candidates from outside the bargaining unit after management determines that the qualifications of bargaining unit candidates are not sufficient to do the work necessary to accomplish the Agency's mission. Union Response at 5-6.

B. Analysis and Conclusion

For the following reasons, we conclude that the disputed portions of Provisions 6 and 7 are outside the duty to bargain. They interfere with the right to make selections for appointments from any appropriate source under section 7106(a)(2)(C)(ii) and do not constitute negotiable procedures under section 7106(b)(2) or appropriate arrangements under section 7106(b)(3).

1. The Right to Make Selections for Appointments from
   Other Appropriate Sources

Article 15 (Placement and Promotion) of the parties' collective bargaining agreement describes merit promotion procedures. The disputed portion of Provision 6 requires that "any and all subsequent Certificates and Areas" would be closed for consideration and referral to the nominating supervisor when "any certificate" had five candidates on it. "Certificate" means a list of fully or less than fully qualified candidates by area of consideration. Union Response at 4. The disputed portion of Provision 7 would require management to select a bargaining unit applicant from the certificate unless it could explain how the selection would compromise the accomplishment of the Agency's mission.

Management has the right to make selections for
appointments from among properly ranked and certified candidates for promotion under section 7106(a)(2)(C)(i) or from any appropriate source under section 7106(a)(2)(C)(ii). Proposals prohibiting expansion of the area of consideration if the initial area produces a specified number of candidates interfere with management's right to select. Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 135-36 (1988). Proposals that limit management to filling positions from among properly ranked and certified candidates under section 7106(a)(2)(C)(i) preclude management from making selections directly from other appropriate sources under section 7106(a)(2)(C)(ii), such as reemployment, repromotion, transfer, or reinstatement eligibles. American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587, 1601-02 (1987), petition for review filed as to other matters sub nom. U.S. Marine Corps, Marine Corps Logistics Base Nonappropriated Fund Instrumentality, Albany, GA v. FLRA, No. 88-8006 (11th Cir. Jan. 5, 1988).

The Union argues that the disputed portion of Provision 6 "is a procedure by which certificates are developed and referred by the servicing personnel office to the nomination official." Union Response at 5. We reject the Union's assertion that the disputed portion is procedural. The wording of the disputed portion states that any certificate with five candidates on it will close "any and all subsequent Certificates and Areas for consideration and referral to the nominating supervisor." The provision would preclude management from developing subsequent certificates, expanding the area of consideration, or considering other appropriate sources in the circumstances described. Provision 6 goes to the substance of management's right to make selections for appointments under section 7106(a)(2)(C), which preserves management's right to make selections directly from sources other than certificates of qualified candidates. See Marine Corps Nonappropriated Fund Instrumentality, 29 FLRA at 1602.

The Union also argues that the disputed portion of Provision 7 ensures that "consideration of inhouse candidates occurs, but [does not] lock the employer into selecting from the certificates or prevent selecting an outside candidate after considering the bargaining unit applicants." Union Response at 6. The disputed wording does more than provide a procedure for priority consideration of bargaining unit applicants. It limits management's right to make selections from any appropriate source. Management could not consider sources of qualified applicants from outside the bargaining unit unless it established that the training and abilities of bargaining unit applicants were inadequate and selection of such applicants would compromise mission accomplishment.

2. Appropriate Arrangements for Employees
   Adversely Affected

We turn now to the question of whether the disputed portions of Provisions 6 and 7 are appropriate arrangements for employees adversely affected by the exercise of management's right to make selections for appointments. The threshold question is whether the provisions are "arrangements" for employees adversely affected by management's exercise of this right. In order for us to address this question, the Union must identify the effects or foreseeable effects on employees which flow from the exercise of that right and how those effects are adverse. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986).

The Union argues that the provisions are appropriate arrangements for employees affected by management exercising its right to make selections for appointments. It argues that the provisions are (1) arrangements because they are operative when the employer determines to fill a position; and (2) appropriate because management retains the right to select from another appropriate source, to determine qualifications to perform a particular position, and to determine whether bargaining unit applicants are qualified. Union Response at 8.

The Union has not shown how management's selection of a particular candidate for a vacancy would adversely affect bargaining unit employees. In fact, the Union does not state that employees are adversely affected; the Union states only that "employees [are] affected by the exercise of [management's right to select.]" Union Response at 7. Instead of addressing adverse effects, the Union addresses the organizational benefits of selecting an in-house candidate rather than one from outside the Agency.

In the absence of evidence which identifies (1) the effects or foreseeable effects on employees from management's decision to select a particular candidate for a vacancy; and (2) how those effects are adverse, we need not determine whether these provisions are "appropriate arrangements" within the meaning of section 7106(b)(3). See Federal Employees Metal Trades Council of Charleston and Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 29 FLRA 1422, 1426 (1987).

III. Order

The petition for review as to Provisions 6 and 7 is dismissed.

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

1. We will not consider in this
   decision seven additional provisions which were contained in the petition for review. The Agency withdrew its disapproval of Provision 3 (Article 11, Section 2) and Provision 4 (Article 13, Section 4). On April 7, 1988, the parties agreed to a collective bargaining agreement amendment which resolved the dispute over Provision 1 (Article 1, Section 3), Provision 2 (Article 4, Section 6), Provision 5, (Article 13, Section 5), Provision 8 (Article 15, Section 7), and Provision 9 (Article 18, Section 1).

2. 2 "Area 1" as used in the
   parties' collective bargaining agreement means members of the Alaska National Guard. "Area 2" is all other eligible candidates. Article 15, Section 1.

3. "Placement" as used in the parties'
   collective bargaining agreement means recruitment from outside the bargaining unit. Union Response at 5.