Association of Civilian Technicians, Delaware Chapter (Union) and National Guard Bureau, Delaware National Guard (Activity) (Authority decision, April 14, 1980)

Final FLRA decision. This is a final order resolving a negotiability appeal. An aggrieved person may petition an appropriate United States court of appeals for review within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The Association of Civilian Technicians proposed three successive areas of consideration for vacancy announcements at the Delaware National Guard: civilian technicians, other Guard members, and everyone else. The Guard argued that this would impose a hiring preference and restrict its right to select employees. The Authority read the proposal as a procedure for expanding the search, not a requirement to select anyone from a particular group. Because management could still choose from properly ranked candidates or another appropriate source, the Authority set aside the Guard's nonnegotiability determination. It made no judgment on the proposal's merits.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(C), (b)(2).
• Outcome: Agency's nonnegotiability determination set aside; proposal within the duty to bargain.
• Key point: A sequence for considering applicants did not require selection from any group.

Full text (FLRA public release)

[ v03 p57 ]

03:0057(9)NG

The decision of the Authority follows:

3 FLRA No. 9

ASSOCIATION OF CIVILIAN TECHNICIANS
DELAWARE CHAPTER
(Union)

and

NATIONAL GUARD BUREAU
DELAWARE NATIONAL GUARD
(Activity)

Case No. O-NG-104

DECISION ON NEGOTIABILITY ISSUE

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7101 ET SEG.).

UNION PROPOSAL

SECTION 3. POSITION ANNOUNCEMENT-- WHEN POSITIONS ARE ANNOUNCED,
DISTRIBUTION OF THE

ANNOUNCEMENTS WILL BE THROUGHOUT THE AREA OF CONSIDERATION AND WILL
CONTAIN, AS A MINIMUM, THE

FOLLOWING INFORMATION:

. . . .

E. AREA OF CONSIDERATION AS FOLLOWS

(1) 1ST AREA-- ALL CIVILIAN TECHNICIANS

(2) 2ND AREA-- ALL MEMBERS OF THE NATIONAL GUARD

(3) 3RD AREA-- ALL OTHERS

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL CONCERNING THE FILLING
OF VACANT POSITIONS IS A MATTER OUTSIDE THE DUTY TO BARGAIN ESTABLISHED
BY THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE OR VIOLATES
SECTION 7106(A)(2)(C) OF THE STATUTE, /1/ AS ALLEGED BY THE AGENCY.

OPINION

CONCLUSION: THE SUBJECT PROPOSAL IS WITHIN THE AGENCY'S DUTY TO
BARGAIN UNDER THE STATUTE AND DOES NOT VIOLATE SECTION 7106(A)(2)(C)
THEREOF. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (45 FED.REG. 3482 ET SEQ. (1980)), THE AGENCY'S
ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
IS SET ASIDE. /2/

REASONS: THE AGENCY ALLEGES THAT THE PROPOSAL IS NONNEGOTIABLE
BECAUSE IT ESTABLISHES A MANDATORY RANK ORDER PREFERENCE WHICH WOULD
OPERATE AS A CONSTRAINT ON MANAGEMENT'S AUTHORITY TO RECRUIT AND SELECT
EMPLOYEES FOR POSITIONS WITHIN THE AGENCY. TO THE CONTRARY, THE UNION'S
PROPOSAL WOULD NOT PREVENT MANAGEMENT FROM EXERCISING ITS RIGHT TO MAKE
SELECTIONS FROM AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR
PROMOTION OR FROM ANY OTHER APPROPRIATE SOURCE. RATHER IT MERELY
PROVIDES A PROCEDURE FOR DEFINING THE INITIAL AREA OF CONSIDERATION FOR
CANDIDATES UNDER THE AGENCY MERIT PLACEMENT PLAN AND FOR THE EXPANSION
OF THAT AREA OF CONSIDERATION, A MATTER CLEARLY NEGOTIABLE UNDER SECTION
7106(B)(2) OF THE STATUTE. /3/

THE PROPOSAL IS NOT IN CONFLICT WITH SECTION 7106(A)(2)(C) OF THE
STATUTE WHICH RESERVES TO MANAGEMENT THE AUTHORITY TO SELECT EMPLOYEES
FROM AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION OR
FROM ANY OTHER APPROPRIATE SOURCE. AS THE UNION ITSELF STATED IN ITS
RESPONSE:

WE DISAGREE WITH THE AGENCY'S CONTENTION THAT THE UNION'S PROPOSAL IN
THIS CASE ESTABLISHES

A "PREFERENCE" METHOD OF SELECTION TO AVAILABLE POSITIONS IN THE
AGENCY. THE PROCEDURAL

ASPECTS OF ANNOUNCEMENTS, AS PROVIDED FOR IN THE UNION'S PROPOSALS
ARE NOT SELECTIVE IN NATURE

AS THEY DO NOT REQUIRE SELECTION.

SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 331 AND
VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, CASE NO.
O-NG-17, 2 FLRA 59 (JANUARY 17, 1980), WHEREIN THE AUTHORITY CONCLUDED
THAT A PROPOSAL WHICH WOULD REQUIRE ONLY THAT CONSIDERATION BE GIVEN TO
EMPLOYEES WITHIN THE BARGAINING UNIT IN FILLING VACANT POSITIONS BUT
WOULD NOT PREVENT MANAGEMENT FROM CONSIDERING OTHER APPLICANTS, OR
EXPANDING THE AREA OF CONSIDERATION ONCE BARGAINING UNIT EMPLOYEES WERE
CONSIDERED, OR USING ANY OTHER APPROPRIATE SOURCE IN FILLING SUCH
VACANCIES, DID NOT PREVENT MANAGEMENT FROM EXERCISING ITS RESERVED RIGHT
TO SELECT. IN THAT CASE THE AUTHORITY POINTED OUT THAT THE PROPOSAL WAS
CONCERNED ONLY WITH LIMITING THE AREA OF SUCH INTENSIVE SEARCH AND WOULD
REQUIRE ONLY THAT CONSIDERATION BE GIVEN TO EMPLOYEES WITHIN THE
BARGAINING UNIT IN FILLING VACANT POSITIONS. THE AUTHORITY NOTED THAT
THE PROPOSAL WOULD EXPRESSLY PERMIT AGENCY EMPLOYEES FROM OUTSIDE THE
MINIMUM AREA OF CONSIDERATION TO APPLY FOR POSITIONS COVERED BY THE
PROVISION, AND WOULD NOT LIMIT MANAGEMENT CONSIDERATION OF SUCH
APPLICANTS. MOREOVER, IT WOULD NOT PREVENT MANAGEMENT FROM EXPANDING
THE AREA OF INTENSIVE SEARCH FOR ELIGIBLE CANDIDATES OR FROM MAKING
SELECTIONS FROM ANY APPROPRIATE SOURCE ONCE THE MINIMUM AREA OF
CONSIDERATION WAS CONSIDERED. THE PROPOSAL HEREIN DOES NOT PRECLUDE THE
AGENCY FROM EXPANDING THE AREA OF CONSIDERATION FOR ELIGIBLE CANDIDATES,
NOR DOES IT REQUIRE THAT ANY EMPLOYEE BE SELECTED FROM ONE OF THE THREE
DESIGNATED AREAS OF CONSIDERATION.

IN VIEW OF THE FOREGOING, THE PROPOSAL AT ISSUE IS A MATTER WITHIN
THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE, AND THE AGENCY'S
DETERMINATION OF NON-NEGOTIABILITY MUST BE SET ASIDE.

ISSUED, WASHINGTON, D.C., APRIL 14, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER, III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ SECTION 7106(A)(2)(C) OF THE STATUTE (92 STAT. 1198) PROVIDES:

SECTION 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 . . .

/2/ IN DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSAL.

/3/ SECTION 7106(B)(2) OF THE STATUTE (92 STAT. 1199) PROVIDES:

SECTION 7106. MANAGEMENT RIGHTS.

. . . .

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM

NEGOTIATING--

. . . .

(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY

AUTHORITY UNDER THIS SECTION.