National Union of Compliance Officers and Labor-Management Services Administration (Authority decision, August 3, 1982)

Final FLRA decision. This is a final Authority order. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The National Union of Compliance Officers proposed staffing procedures for short temporary promotions, including supervisory positions. The Authority held that the agency was not required to bargain over procedures for filling supervisory positions outside the bargaining unit. Because the agency had declined to bargain, it dismissed the petition.

Decision snapshot

• Authority: 5 U.S.C. § 7112(b)(1).
• Outcome: Proposal held outside the duty to bargain; petition dismissed.
• Key point: Staffing procedures for supervisory positions were negotiable only at the agency’s election.

Full text (FLRA public release)

[ v09 p735 ]

09:0735(91)NG

The decision of the Authority follows:

9 FLRA No. 91

NATIONAL UNION OF COMPLIANCE
OFFICERS, IND.
Union

and

U.S. DEPARTMENT OF LABOR
LABOR-MANAGEMENT SERVICES
ADMINISTRATION
Agency

Case No. O-NG-490

DECISION AND ORDER ON NEGOTIABILITY ISSUE

THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), AND RAISES ISSUES
RELATING TO THE NEGOTIABILITY OF THE FOLLOWING UNION PROPOSAL.

PROMOTIONS FOR 120 CALENDAR DAYS OR LESS, FOR WHICH UNIT EMPLOYEES
ARE ELIGIBLE TO COMPETE,

SHALL BE SUBJECT TO INTERNAL COMPETITIVE MERIT STAFFING PROCEDURES
PURSUANT TO THE

U.D. DEPARTMENT OF LABOR'S MERIT STAFFING PLAN AND ARTICLE II OF THE
NUCO/LMSA COLLECTIVE

BARGAINING AGREEMENT WITH THE FOLLOWING MODIFICATIONS:

A. ACTIONS UNDER A PROMOTION PLAN, WHETHER IN IDENTIFICATION,
QUALIFICATION, EVALUATION,

OR SELECTION OF CANDIDATES, OR ANY OTHER PHASE OF THE PROMOTION
PROCESS SHALL BE MADE WITHOUT

REGARD TO POLITICAL, RELIGIOUS, OR LABOR ORGANIZATION AFFILIATION OR
NON-AFFILIATION, MARITAL

STATUS, RACE, COLOR, SEX, NATIONAL ORIGIN, NON-QUALIFYING (SIC)
PHYSICAL HANDICAP, OR AGE, AND

SHALL NOT BE BASED ON ANY CRITERIA THAT ARE NOT JOB RELATED,
INCLUDING FAVORITISM BASED ON

PERSONAL RELATIONSHIP, PATRONAGE OR NEPOTISM.

B. LMSA WILL AVOID PREFERENTIAL MANAGEMENT PRACTICES WHICH MAY LEAD
EMPLOYEES TO BELIEVE

THAT A PERSON WAS PRESELECTED FOR A VACANCY OR THAT SELECTION WAS
BASED ON FAVORITISM. THESE

PRACTICES INCLUDE ACTIONS TAKEN BY MANAGEMENT DESIGNED TO GIVE
PREFERENCE IN PROMOTION TO A

PREDETERMINED INDIVIDUAL OR GROUP OF INDIVIDUALS SUCH AS ASSIGNING AN
EMPLOYEE TO SERVE AS AN

UNDERSTUDY, WITHOUT COMPETITION, SINGLING OUT ONE OR A GROUP OF
EMPLOYEES FOR SPECIAL TRAINING

OR ASSIGNING CERTAIN EMPLOYEES TO MORE DIFFICULT DUTIES WITH THE
INTENT OF TRAINING THEM FOR

HIGHER GRADE WORK. THESE PRACTICES TEND TO UNDERMINE EMPLOYEE
CONFIDENCE IN THE SYSTEM AND

GIVE RISE TO COMPLAINTS EVEN THOUGH THE SELECTION WAS PROPER.

C. LMSA AGREES THAT OUTSIDE APPLICANTS SELECTED FOR A VACANCY MUST
BE BETTER QUALIFIED

THAN BARGAINING UNIT APPLICANTS.

D. THE PHRASE "FOR WHICH UNIT EMPLOYEES ARE ELIGIBLE TO COMPETE"
SHALL BE SUBSTITUTED FOR

ALL REFERENCES TO THE PHRASE "IN THE UNIT" FOUND UNDER ARTICLE II OF
THE NUCO/LMSA COLLECTIVE

BARGAINING AGREEMENT.

UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATION.
THE RECORD IN THIS CASE INDICATES THAT THIS PROPOSAL WOULD PRESCRIBE THE
PROCEDURES WHICH MANAGEMENT MUST FOLLOW IN FILLING SUPERVISORY POSITIONS
ON A TEMPORARY BASIS. SUCH POSITIONS ARE EXCLUDED FROM APPROPRIATE
BARGAINING UNITS BY SECTION 7112(B)(1) OF THE STATUTE AND, WHILE AN
AGENCY IS NOT PROHIBITED FROM BARGAINING ON PROCEDURES FOR FILLING SUCH
POSITIONS, IT IS NOT OBLIGATED TO DO SO. INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL F-61 AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA 438
(1980) (PROPOSAL III).

ACCORDINGLY, SINCE THE AGENCY HAS ELECTED NOT TO BARGAIN ON THIS
PROPOSAL, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND
IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., AUGUST 3, 1982

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY