Naval Underwater Systems Center, Newport and Federal Union of Scientists and Engineers, NAGE Local R1-144 (Authority decision, February 10, 1983)

Final FLRA decision. The Authority dismissed an unfair labor practice complaint on a stipulated record. An aggrieved person may seek judicial review of this final order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). A petition does not itself stay the order.

Plain-English summary

The Navy introduced scoring factors for EEO experience when filling supervisory vacancies without notifying the union. The union alleged that the change required bargaining over its impact and implementation. The Authority held that procedures for filling supervisory posts did not concern bargaining unit conditions of employment. It dismissed the complaint because the Navy had no duty to bargain over those factors.

Decision snapshot

• Authority: Conditions of employment and bargaining duty under 5 U.S.C. §§ 7103(a)(12) and 7116(a)(5).
• Outcome: Complaint dismissed on the merits; no bargaining duty found.
• Key point: Procedures for filling supervisory positions lay outside the bargaining duty in this case.

Full text (FLRA public release)

[ v11 p316 ]

11:0316(66)CA

The decision of the Authority follows:

11 FLRA No. 66

DEPARTMENT OF THE NAVY
NAVAL UNDERWATER SYSTEMS CENTER,
NEWPORT, RHODE ISLAND
Respondent

and

FEDERAL UNION OF SCIENTISTS AND ENGINEERS/
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-144 Charging Party

Case No. 1-CA-355

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record, including the stipulation of facts, accompanying exhibits, and the contentions of the parties, the Authority finds:

The complaint alleges that the Respondent failed to bargain in good faith with the Charging Party (NAGE), in violation of section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), by unilaterally establishing Equal Employment Opportunity (EEO) factors to be used in evaluating eligible employees when filling supervisory vacancies, thereby changing existing conditions of employment without furnishing NAGE an opportunity to negotiate on the impact and implementation thereof.

In May 1976, NAGE was certified as the exclusive representative of all professional, nonsupervisory employees at the Respondent's Newport, Rhode Island, facility. There is no collective bargaining agreement in effect between the parties. On February 28, 1980, the Respondent issued a memorandum concerning "EEO Factors to be Used When Filling Supervisory Vacancies" with an enclosure entitled "Crediting Plans For EEO Factors for First, Second and Third Level Supervisor," for distribution to all employees. This memorandum established point scores for EEO experience to be used by rating panels when evaluating applicants for such supervisory positions. The Respondent did not notify NAGE of the issuance of the aforementioned memo and crediting plans. On April 15, 1980, NAGE requested bargaining over the impact and implementation of the memo and crediting plans. The Respondent refused to bargain and thereafter implemented the memorandum and crediting plans on June 1, 1980.

The General Counsel contends that, while the "Respondent was obligated to negotiate, on request, the impact and implementation of the
. . . memorandum only if the memorandum changed conditions of employment," /1/ there was such a change in conditions of employment in this case. The Authority disagrees and therefore concludes that the refusal to bargain did not constitute a violation of section 7116(a)(1) and (5) of the Statute. Thus, it is well settled that procedures for filling supervisory positions are matters outside the duty to bargain under the Statute because such procedures by definition concern non-bargaining unit positions. See, e.g., National Federation of Federal Employees, Locals 1707, 1737 and 1708 and Headquarters, Louisiana Air and Army National Guard, New Orleans, Louisiana, 9 FLRA No. 19 (1982) and International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980) at 441. In the instant case, the record reveals that the memorandum and crediting plans were designed specifically to facilitate the rating of applicants for first, second and third level supervisory positions. Therefore, and for the reasons set forth in the cases cited above, the Respondent had no obligation under the Statute to bargain concerning the memorandum and crediting plans as such matters do not concern conditions of employment of bargaining unit employees within the meaning of section 7103(a)(12) of the Statute. Accordingly, the complaint shall be dismissed.

ORDER

IT IS ORDERED that the complaint in Case No. 1-CA-355 be, and it hereby is, dismissed.

Issued, Washington, D.C., February 10, 1983

Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ The General Counsel cites Department of the Navy, Supervisor of Shipbuilding, Conversion and Repair, Groton, Connecticut, 4 FLRA No. 78 (1980), wherein the Authority concluded that "management has no duty under the Statute to notify and bargain with a labor organization before taking action concerning matters which do not constitute changes in 'conditions of employment' within the meaning of section 7103(a)(12) of the Statute."