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 2 FLRA No. 96
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, INTERNATIONAL COUNCIL OF UNITED
 STATES MARSHALS SERVICE LOCALS
 (Union)
 
 and
 
 DEPARTMENT OF JUSTICE, UNITED STATES
 MARSHALS SERVICE
 (Activity)
 
                                           Case No. 0-NG-118
 
                      DECISION 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 (5 U.S.C. 7101 ET SEQ.).
 
                              UNION PROPOSAL
 
                ARTICLE XXXIV, SECTION 31-- MERIT PROMOTION
 
    THE EMPLOYER WILL ANNOUNCE ALL VACANCIES FOR WHICH BARGAINING UNIT
 EMPLOYEES ARE ELIGIBLE TO APPLY REGARDLESS OF HOW THE VACANCIES ARE TO
 BE FILLED.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL VIOLATES SECTION 7106(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
 OR ESTABLISHES A NEGOTIABLE PROCEDURE, UNDER SECTION 7106(B)(2), WHICH
 MANAGEMENT OFFICIALS WILL OBSERVE IN FILLING VACANCIES.  /1/
 
                                  OPINION
 
    CONCLUSION:  THE UNION'S PROPOSAL ESTABLISHES A NEGOTIABLE PROCEDURE
 UNDER SECTION 7106(B)(2) OF THE STATUTE.  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 UNION'S PROPOSAL
 IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.  /2/
 
    REASONS:  THE LANGUAGE OF THE UNION'S PROPOSAL WOULD REQUIRE THE
 ACTIVITY TO ANNOUNCE ALL VACANCIES FOR WHICH BARGAINING UNIT EMPLOYEES
 ARE ELIGIBLE TO APPLY.  THE AGENCY CONTENDS, HOWEVER, THAT THE PROPOSAL
 WOULD NOT ONLY REQUIRE MANAGEMENT TO INFORM THE UNION OF VACANT
 POSITIONS BUT ALSO TO ACCEPT AND CONSIDER APPLICATIONS FROM BARGAINING
 UNIT EMPLOYEES AS A PRECONDITION TO THE EXERCISE OF ITS RIGHT TO MAKE
 SELECTIONS, EVEN WHERE MANAGEMENT HAS DECIDED NOT TO FILL POSITIONS
 THROUGH MERIT PROMOTION BUT RATHER FROM "ANY OTHER APPROPRIATE SOURCE"
 PURSUANT TO ITS RESERVED RIGHT UNDER SECTION 7106 (A)(2)(C) OF THE
 STATUTE (SUPRA NOTE 1).  THE UNION ASSERTS, ON THE OTHER HAND, THAT ITS
 PROPOSAL "MERELY REQUIRES THAT THE AGENCY ANNOUNCE VACANCIES" AND, AS
 SUCH, IS A PROCEDURE WITHIN THE MEANING OF SECTION 7106(B)(2) WHICH
 MANAGEMENT WILL OBSERVE IN EXERCISING ITS RESERVED RIGHTS UNDER SECTION
 7106 (A) AND (B)(1) OF THE STATUTE RATHER THAN AN INTERFERENCE WITH ANY
 SUCH RIGHTS.
 
    IN LIGHT OF ITS PLAIN LANGUAGE AND INTENDED MEANING, THE PROPOSAL
 MERELY REQUIRES MANAGEMENT TO ANNOUNCE VACANCIES FOR WHICH BARGAINING
 UNIT EMPLOYEES ARE ELIGIBLE TO APPLY, BUT DOES NOT REQUIRE MANAGEMENT TO
 CONSIDER OR SELECT ELIGIBLE APPLICANTS FROM WITHIN THE BARGAINING UNIT
 IN FILLING VACANCIES.  /3/ RATHER, UNDER THE UNION'S INTERPRETATION OF
 ITS OWN PROPOSAL, WHICH IS ADOPTED FOR PURPOSES OF THIS DECISION,
 "(T)HIS PROPOSAL IS BASED SOLELY ON THE UNION'S CONCERN THAT MANAGEMENT
 INFORM BARGAINING UNIT EMPLOYEES OF THE MANNER IN WHICH . . .  VACANCIES
 ARE TO BE FILLED." FURTHER, THE AGENCY HAS FAILED TO DEMONSTRATE THAT
 SUCH A PROPOSAL IS INCONSISTENT WITH CHAPTER 335 OF THE FEDERAL
 PERSONNEL MANUAL OR WITH MANAGEMENT'S RIGHT TO FILL FIRST-LEVEL
 SUPERVISORY POSITIONS.
 
    FOR THE FOREGOING REASONS, THE PROPOSAL AT ISSUE ESTABLISHES A
 NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE AND,
 ACCORDINGLY, THE AGENCY'S ALLEGATION THAT SUCH PROPOSAL IS NOT WITHIN
 THE DUTY TO BARGAIN IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 29, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106 OF THE STATUTE PROVIDES, IN RELEVANT PART, 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--
 
    (A) TO HIRE, ASSIGN, LAY OFF, AND RETAIN EMPLOYEES IN THE AGENCY, OR
 TO SUSPEND, REMOVE,
 
    REDUCE IN GRADE OR PAY, OR TAKE DISCIPLINARY ACTION AGAINST SUCH
 EMPLOYEES;
 
   *          *          *          *
 
 
    (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;  . . .
 
    (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/ 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.
 
    /3/ IN THIS REGARD, SEE NATIONAL TREASURY EMPLOYEES UNION AND
 INTERNAL REVENUE SERVICE, CASE NO. O-NG-109, 2 FLRA NO. 33 (DEC. 21,
 1979), REPORT NO. . . ., WHEREIN THE AUTHORITY CONCLUDED THAT A PROPOSAL
 WHICH WOULD REQUIRE MANAGEMENT IN THE FIRST INSTANCE TO "ANNOUNCE" A
 CERTAIN NUMBER OF VACANT POSITIONS AS UPWARD MOBILITY POSITIONS
 ESTABLISHED ONLY A PROCEDURAL REQUIREMENT WHICH WAS WITHIN THE DUTY TO
 BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE AND DID NOT CONFLICT
 WITH MANAGEMENT'S RIGHTS UNDER SECTION 7106(A) OF THE STATUTE.  SEE ALSO
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 331 AND
 VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, CASE NO.
 O-NG-17, 2 FLRA NO. 59 (JAN. 17, 1980), REPORT NO.  . . . .
 
 
 

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