American Federation of Government Employees, Local 1884, AFL-CIO (Union) and Defense Mapping Agency, Hydrographic Topographic Center, Providence, Rhode Island (Agency) (Authority decision, September 19, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A union proposed that a Defense Mapping Agency center in Providence first consider local employees and voluntary applicants within the agency for vacant positions. The agency said the proposal interfered with its right to select candidates. The Authority found that the proposal governed consideration procedures without requiring any selection and ordered bargaining on request.

Decision snapshot

• Authority: 5 U.S.C. § 7106(b)(2), 5 U.S.C. § 7117.
• Outcome: Agency nonnegotiability position rejected; bargaining ordered.
• Key point: A first-consideration procedure did not compel the agency to select a particular candidate.

Full text (FLRA public release)

[ v04 p224 ]

04:0224(33)NG

The decision of the Authority follows:

4 FLRA No. 33

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
LOCAL 1884
Union

and

DEFENSE MAPPING AGENCY,
HYDROGRAPHIC TOPOGRAPHIC CENTER
PROVIDENCE, RHODE ISLAND
Agency

Case No. O-NG-25

DECISION AND ORDER ON NEGOTIABILITY ISSUE

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

UNION PROPOSAL

ARTICLE XVI. PROMOTION

SECTION 1.

THE ACTIVITY WILL ADHERE TO THE PRINCIPLES AND SPIRIT OF FPM 335,
MERIT PROMOTION.

THE ACTIVITY WILL UTILIZE TO THE FULLEST EXTENT THE SKILLS AND
TALENTS OF ITS HIGHLY

QUALIFIED EMPLOYEES BEFORE EXPANDING THE AREA OF CONSIDERATION
THEREBY MAXIMIZING

OPPORTUNITIES FOR PROMOTION.

CONSIDERATION IN FILLING VACANT POSITIONS WILL BE GIVEN FIRST TO
EMPLOYEES WITHIN THE

PROVIDENCE OFFICE, THE MINIMUM AREA OF CONSIDERATION AND TO VOLUNTARY
APPLICANTS WITHIN DMA.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE DUTY TO
BARGAIN AS A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE
STATUTE /1/ OR IS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
7106(A)(2)(C) OF THE STATUTE, /2/ AS ALLEGED BY THE AGENCY.

OPINION

CONCLUSION AND ORDER: THE SUBJECT PROPOSAL IS WITHIN THE AGENCY'S
DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE AND DOES NOT
VIOLATE SECTION 7106(A)(2)(C) OF THE STATUTE. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10,AS AMENDED BY 45 FED.REG. 48,575(1980)), IT IS ORDERED THAT THE
AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
BARGAIN CONCERNING THE SUBJECT PROPOSAL. /3/

REASONS: THE AGENCY TAKES THE POSITION THAT THE PORTION OF THE
UNION'S PROPOSAL WHICH DEFINES THE MINIMUM AREA OF CONSIDERATION AS THE
EMPLOYEES WITHIN THE PROVIDENCE OFFICE CONFLICTS, INTER ALIA, WITH
SECTION 7106(A)(2)(C) OF THE STATUTE. CONTRARY TO THE AGENCY'S
POSITION, THE UNION PROPOSAL IN DISPUTE MERELY WOULD ESTABLISH A
PROCEDURE REQUIRING THAT CONSIDERATION IN FILLING VACANT POSITIONS FIRST
BE GIVEN TO LOCAL EMPLOYEES. IT BEARS NO MATERIAL DIFFERENCE FROM THE
UNION PROPOSAL WHICH WAS BEFORE THE AUTHORITY AND HELD TO BE WITHIN THE
DUTY TO BARGAIN UNDER THE STATUTE IN THE VETERANS ADMINISTRATION
HOSPITAL, PERRY POINT CASE. /4/ IN THAT CASE, THE AUTHORITY DETERMINED
THAT A UNION PROPOSAL WHICH WOULD REQUIRE THAT CONSIDERATION IN FILLING
VACANT POSITIONS FIRST BE GIVEN TO BARGAINING UNIT EMPLOYEES WAS WITHIN
THE DUTY TO BARGAIN UNDER THE STATUTE.

THEREFORE, FOR THE REASONS FULLY SET FORTH IN THE VETERANS
ADMINISTRATION HOSPITAL, PERRY POINT CASE, THE PROPOSAL HERE IN DISPUTE
MUST ALSO BE HELD TO BE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.

ISSUED, WASHINGTON, D.C., SEPTEMBER 19, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

CERTIFICATE OF SERVICE

COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED:

JOHN W. MULHOLLAND, DIRECTOR

LABOR MANAGEMENT SERVICES DEPARTMENT

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

1325 MASSACHUSETTS AVE., N.W.,

WASHINGTON, D.C. 20005

DAVID GREEN, DIRECTOR

LABOR-MANAGEMENT RELATIONS

DEPARTMENT OF DEFENSE

OASD (MRA & L)

ROOM 3D264, THE PENTAGON

WASHINGTON, D.C. 20301

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

/1/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES AS FOLLOWS:

SEC. 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(.)

/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
APPOINTMENTS FROM--

(I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION; OR

(II) ANY OTHER APPROPRIATE SOURCE(.)

/3/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSAL.

/4/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 331
AND VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, 2 FLRA NO.
59(1980). SEE ALSO ASSOCIATION OF CIVILIAN TECHNICIANS, DELAWARE
CHAPTER AND NATIONAL GUARD BUREAU, DELAWARE NATIONAL GUARD, 3 FLRA NO.
9(1980); NATIONAL COUNCIL OF CSA LOCALS, A.F.G.E., AFL-CIO AND THE
COMMUNITY SERVICES ADMINISTRATION, 3 FLRA NO. 13(1980); AND NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1451 AND NAVY EXCHANGE, NAVAL
ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA, 3 FLRA NO. 60(1980).