[ v08 p460 ]
08:0460(97)NG
The decision of the Authority follows:
8 FLRA No. 97
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 32
Union
and
OFFICE OF PERSONNEL MANAGEMENT,
WASHINGTON, D.C.
Agency
Case No. O-NG-157
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN 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.). THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE FOLLOWING
PROPOSALS.
UNION PROPOSAL I
SECTION 2 OF ARTICLE 7
THIS ARTICLE CONTAINS THE PROCEDURES WHICH MANAGEMENT WILL USE IN
PROMOTING EMPLOYEES AND
OTHERWISE FILLING POSITIONS AND MAKING WORK ASSIGNMENTS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL I IS OUTSIDE THE DUTY TO
BARGAIN UNDER THE STATUTE BECAUSE IT IS INTENDED TO APPLY TO
NONBARGAINING UNIT POSITIONS, AS ALLEGED BY THE AGENCY. /1/
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL I DOES CONCERN CONDITIONS OF
EMPLOYMENT OF BARGAINING UNIT EMPLOYEES. THEREFORE, IT IS WITHIN THE
AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL I.
/2/
REASONS: NEITHER THE EXPRESS LANGUAGE OF UNION PROPOSAL I NOR THE
UNION'S STATED INTENT WITH RESPECT THERETO REQUIRE THAT THE PROPOSAL BE
CONSTRUED TO APPLY TO FILLING POSITIONS AND MAKING WORK ASSIGNMENTS
OUTSIDE THE BARGAINING UNIT, CONTRARY TO THE AGENCY'S CONTENTION. THE
AUTHORITY SO CONSTRUES THE PROPOSAL FOR PURPOSES OF THIS DECISION.
SINCE THE PROPOSAL APPLIES MERELY PREFATORY LANGUAGE CONCERNING
PROCEDURES FOR FILLING POSITIONS AND MAKING WORK ASSIGNMENTS WITHIN THE
BARGAINING UNIT, IT IS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.
SEE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND
PHILADELPHIA NAVAL SHIPYARD, 3 FLRA 437, 444-445(1980).
UNION PROPOSAL II
SECTION 3 OF ARTICLE 7
EXCEPT WHERE MANAGEMENT IS REQUIRED BY LAW, REGULATION, OR THIS
CONTRACT TO SELECT A
PARTICULAR PERSON, SELECTIONS FOR VACANCIES WILL BE MADE BY OFFICIALS
CHOOSING FROM A
CERTIFICATE OF BEST-QUALIFIED APPLICANTS FOR THE POSITION. THE
PARTIES MAY, FROM TIME TO
TIME, AGREE TO DEVIATIONS FROM THIS REQUIREMENT IN INDIVIDUAL CASES
OR CATEGORIES OF CASES,
WHEN THEY DEEM IT ADVISABLE FOR AFFIRMATIVE ACTION OR OTHER
LEGITIMATE PURPOSES. THE PARTIES
NOTE THAT THEY ARE IN DISAGREEMENT OVER THE AGENCY'S CLAIM THAT 5
U.S.C. 7106(A) GIVES IT THE
LEGAL RIGHT OR DUTY TO UNILATERALLY DISREGARD THE COMPETITIVE
ELECTION REQUIREMENT UNDER
CERTAIN CIRCUMSTANCES. THE MERITS OF THE MANAGEMENT CLAIM IN ANY
PARTICULAR CASE WILL BE
CONSIDERED BY THE PARTIES IN THEIR EFFORTS TO RESOLVE ANY OBLIGATION
OF ARBITRATORS TO
INTERPRET CONTRACT PROVISIONS IN LIGHT OF GOVERNING LAW. THE PARTIES
NOTE FURTHER THAT AN
ARBITRATION AWARD ORDERING REMEDIES CONTRARY TO GOVERNING LAW MAY BE
OVERTURNED ON APPEAL TO
THE FEDERAL LABOR RELATIONS AUTHORITY.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL II IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C) OF THE STATUTE /3/ TO
MAKE SELECTIONS FOR APPOINTMENTS, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL II IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C)(II) OF THE STATUTE TO
MAKE SELECTIONS FOR APPOINTMENTS FROM APPROPRIATE SOURCES OTHER THAN THE
ONE DESCRIBED BY SECTION 7106(A)(2)(C)(I) AND IS THEREFORE NOT WITHIN
THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR B424.10(1981)), IT IS ORDERED
THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION
PROPOSAL II BE, AND IT HEREBY IS, DISMISSED. /4/
REASONS: THE EXPRESS LANGUAGE OF UNION PROPOSAL II REQUIRES, INTER
ALIA, THAT THE AGENCY MAKE SELECTIONS FOR FILLING VACANCIES FROM A
CERTIFICATE OF BEST-QUALIFIED APPLICANTS EXCEPT WHERE LAW, REGULATION OR
THE AGREEMENT BETWEEN THE PARTIES REQUIRE THAT A PARTICULAR PERSON BE
SELECTED OR UNLESS THE PARTIES AGREE TO OTHER EXCEPTIONS. MOREOVER, THE
UNION EXPLAINS THE INTENDED MEANING OF UNION PROPOSAL II AS REQUIRED
"MANAGEMENT (TO) CREATE ONE SINGLE CERTIFICATE CONTAINING THE
BEST-QUALIFIED APPLICANTS FROM ALL SOURCES . . . . THIS WOULD ENSURE
THAT THE SELECTION WOULD BE MADE FROM THE BEST QUALIFIED OF ALL THE
APPLICANTS . . . ."
THUS, THE EXPRESS LANGUAGE OF UNION PROPOSAL II AND THE UNION'S
STATED INTENT WITH RESPECT TO THE PROPOSAL MAKE IT CLEAR THAT UNDER THE
PROPOSAL THE AGENCY WOULD BE RESTRICTED TO MAKING SELECTIONS FOR
APPOINTMENTS FROM AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR
PROMOTION UNDER SECTION 71-6(A)(2)(C)(I) OF THE STATUTE AND AS A
COROLLARY THERETO, THE AGENCY COULD NOT MAKE SELECTIONS FOR APPOINTMENTS
FROM ANY OTHER APPROPRIATE SOURCE UNDER SECTION 7106(A)(2)(C)(II) OF THE
STATUTE SUCH AS REEMPLOYMENT PRIORITY LISTS, REINSTATEMENT, TRANSFER,
HANDICAPPED, OR VETERANS READJUSTMENT ELIGIBLES, OR THOSE WITHIN REACH
ON AN APPROPRIATE OFFICE OF PERSONNEL MANAGEMENT CERTIFICATE. /5/ SINCE
THE PROPOSAL WOULD PRECLUDE THE AGENCY FROM MAKING SELECTIONS DIRECTLY
FROM APPROPRIATE SOURCES OTHER THAN CERTIFICATES, IT IS INCONSISTENT
WITH SECTION 7106(A)(2)(C)(II) OF THE STATUTE AND THEREFORE IS NOT
WITHIN THE DUTY TO BARGAIN.
UNION PROPOSAL III
SECTION 4 OF ARTICLE 7
EACH EMPLOYEE BELOW THE JOURNEYMAN LEVEL IN A CAREER LADDER WILL BE
PROMOTED TO THE NEXT
HIGHER GRADE UPON MEETING THE QUALIFICATION REQUIREMENTS AND
DEMONSTRATING THE ABILITY TO
PERFORM AT THE HIGHER LEVEL. THE JOURNEYMAN LEVEL WILL BE THAT GRADE
FOR WHICH THERE IS WORK
AVAILABLE FOR ALL MEMBERS OF THE CAREER LADDER GROUP. TO THE EXTENT
POSSIBLE, THE AGENCY WILL
DOCUMENT AND MAKE KNOWN TO AFFECTED EMPLOYEES THE EXISTENCE AND RANGE
OF EACH CAREER LADDER.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL III IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C) OF THE STATUTE TO MAKE
SELECTIONS FOR APPOINTMENTS, AND, IF NOT, WHETHER IT CONCERNS A MATTER
RELATING TO THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES OR POSITIONS
ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT, OR TOUR OF
DUTY, WHICH, UNDER SECTION 7106(B)(1) OF THE STATUTE, /6/ IS NEGOTIABLE
ONLY AT THE ELECTION OF THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL III IS NEITHER INCONSISTENT
WITH THE AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C) OF THE STATUTE
TO MAKE SELECTIONS FOR APPOINTMENTS, NOR WITH THE AGENCY'S AUTHORITY TO
DETERMINE THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES OR POSITIONS
ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT, OR TOUR OF
DUTY, WHICH UNDER SECTION 7106(B)(1) OF THE STATUTE, IS NEGOTIABLE ONLY
AT THE ELECTION OF THE AGENCY. THEREFORE, IT IS WITHIN THE AGENCY'S
DUTY TO BARGAIN UNDER THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED
TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL III. /7/
REASONS: THE RECORD DOES NOT INDICATE THAT THE TERMINOLOGY "CAREER
LADDER PROMOTION" AS USED IN UNION PROPOSAL III IS INTENDED TO BE GIVEN
A MEANING OTHER THAN ITS USUAL MEANING WHEN USED IN CONNECTION WITH
FEDERAL PERSONNEL MATTERS. IN THIS REGARD, PERSONNEL MANUAL CHAPTER
335, SUBCHAPTER 1-5(C)(1)(A) DESCRIBES A CAREER PROMOTION AS INCLUDING:
A PROMOTION WITHOUT CURRENT COMPETITION WHEN AT AN EARLIER STAGE AN
EMPLOYEE WAS SELECTED
FROM A CIVIL SERVICE REGISTER OR UNDER COMPETITIVE PROMOTION
PROCEDURES FOR AN ASSIGNMENT
INTENDED TO PREPARE THE EMPLOYEE FOR THE POSITION BEING FILLED (THE
INTENT MUST BE MADE A
MATTER OF RECORD AND CAREER LADDERS MUST BE DOCUMENTED IN THE
PROMOTION PLAN) . . . .
THUS, IN ESSENCE, THE FEDERAL PERSONNEL MANUAL DEFINES A "CAREER
LADDER PROMOTION" AS THE NONCOMPETITIVE PROMOTION OF AN EMPLOYEE WHO IS
PART OF A GROUP SELECTED COMPETITIVELY AT AN EARLIER STAGE FOR CAREER
LADDER POSITIONS, WITH THE RECORDED INTENTION OF PREPARING THE EMPLOYEES
FOR SUCCESSIVE PROMOTIONS. IT IS CLEAR UNDER THE FEDERAL PERSONNEL
MANUAL THAT THE AGENCY COULD PROMOTE INDIVIDUAL MEMBERS OF THE GROUP
WHO, AS REQUIRED BY THE PROPOSAL HEREIN, HAVE DEMONSTRATED ABILITY TO
PERFORM AT THE NEXT HIGHER LEVEL, PROVIDED THAT THERE IS ENOUGH WORK AT
THE FULL PERFORMANCE LEVEL /8/ FOR ALL EMPLOYEES IN THE GROUP. A CAREER
LADDER PROMOTION, THEN, IS THE DIRECT RESULT OF THE AGENCY'S DECIDING TO
SELECT THE EMPLOYEE AND PLACING THE EMPLOYEE IN A CAREER LADDER POSITION
IN THE AGENCY. IT FOLLOWS THAT THE AGENCY'S SELECTING AN EMPLOYEE FOR
AND PLACING THAT EMPLOYEE IN A CAREER LADDER POSITION ALSO CONSTITUTES
THE AGENCY'S DECISION TO PROMOTE THAT EMPLOYEE NONCOMPETITIVELY AT
APPROPRIATE STAGES IN THE EMPLOYEE'S CAREER UP TO THE FULL PERFORMANCE
LEVEL OF THE POSITION ONCE THE REQUISITE CONDITIONS HAVE BEEN MET.
ON THE BASIS OF THE ABOVE, IT IS CLEAR THAT A CAREER LADDER
PROMOTION, AS REFERENCED IN THE PROPOSAL, WOULD MERELY BE A MINISTERIAL
ACT IMPLEMENTING THE AGENCY'S EARLIER DECISION MADE PURSUANT TO ITS
DISCRETION UNDER SECTION 7106(1)(2)(C) TO SELECT AND PLACE THE EMPLOYEE
INVOLVED IN A CAREER LADDER POSITION, WITH THE INTENTION OF PREPARING
THE EMPLOYEE FOR SUCCESSIVE NONCOMPETITIVE PROMOTIONS WHEN THE
CONDITIONS PRESCRIBED BY THE PROPOSAL AND THE FEDERAL PERSONNEL MANUAL
ARE OTHERWISE MET. AS SUCH, THE PROPOSAL CONSTITUTES A NEGOTIABLE
PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE /9/ WHICH DOES NOT
DIRECTLY INTERFERE WITH THE AGENCY'S RIGHT TO MAKE SELECTIONS FOR
APPOINTMENTS UNDER SECTION 7106(A)(2)(C) OF THE STATUTE. /10/
LIKEWISE, UNION PROPOSAL III DOES NOT DIRECTLY INTERFERE WITH THE
AGENCY'S AUTHORITY TO DETERMINE THE NUMBERS, TYPES, AND GRADES OF
EMPLOYEES OR POSITIONS UNDER SECTION 7106(B)(1) OF THE STATUTE BECAUSE
THE PROPOSAL DOES NOT SEEK TO ESTABLISH THESE MATTERS BUT RATHER LEAVES
THAT FUNCTION TO THE AGENCY. UNDER THE PROPOSAL THE AGENCY RETAINS THE
AUTHORITY TO DECIDE WHAT POSITIONS, HOW MANY POSITIONS, AND THE GRADE
LEVEL OF THE POSITIONS WHICH WILL BE ESTABLISHED AS CAREER LADDER
POSITIONS AND THEREFORE UNION PROPOSAL III IS WITHIN THE AGENCY'S DUTY
TO BARGAIN.
UNION PROPOSAL IV
SECTION 7 OF ARTICLE 7
UNLESS THE MATTER IS OUTSIDE THE SCOPE OF BARGAINING, THE PARTIES
WILL IN THEIR
NEGOTIATIONS OVER AFFIRMATIVE ACTION DETERMINE THE NUMBER AND TYPES
OF VACANCIES TO BE
RESERVED FOR FILLING THROUGH THE UPWARD MOBILITY PROGRAM EACH YEAR.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL IV IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO HIRE AND ASSIGN EMPLOYEES UNDER SECTION
7106(A)(2)(A) OF THE STATUTE. /11/
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL IV IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(A) OF THE STATUTE TO HIRE
AND ASSIGN EMPLOYEES. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION
PROPOSAL IV BE, AND IT HEREBY IS, DISMISSED.
REASONS: UNION PROPOSAL IV WHICH DEALS WITH THE NUMBER AND TYPES OF
VACANCIES TO BE RESERVED FOR FILLING THROUGH THE UPWARD MOBILITY PROGRAM
BEARS NO MATERIAL DIFFERENCE FROM THE UNION PROPOSAL WHICH WAS BEFORE
THE AUTHORITY, AND HELD NOT TO BE WITHIN THE AGENCY'S DUTY TO BARGAIN
UNDER THE STATUTE, IN THE NATIONAL TREASURY EMPLOYEES UNION CASE. /12/
IN THAT CASE, THE AUTHORITY DETERMINED THAT A UNION PROPOSAL REQUIRING
THE AGENCY TO FILL A CERTAIN PERCENTAGE OF POSITIONS THROUGH UPWARD
MOBILITY WAS INCONSISTENT WITH THE AGENCY'S AUTHORITY UNDER SECTION
7106(A)(2)(A) OF THE STATUTE TO HIRE AND ASSIGN EMPLOYEES. FOR THE
REASONS FULLY SET FORTH IN THE NATIONAL TREASURY EMPLOYEES UNION CASE,
THE PROPOSAL HERE IN DISPUTE MUST ALSO BE HELD NOT TO BE WITHIN THE DUTY
TO BARGAIN UNDER THE STATUTE SINCE IT IS INCONSISTENT WITH THE AGENCY'S
AUTHORITY TO HIRE AND ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF
THE STATUTE.
UNION PROPOSAL V
SECTION 14 OF ARTICLE 7
UNLESS THE SELECTING OFFICIAL CHOOSES TO CANCEL THE VACANCY, THE
SELECTION WILL BE MADE
WITHIN TWO WEEKS OF THE RECEIPT OF THE CERTIFICATE.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL V IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C) OF THE STATUTE TO MAKE
SELECTIONS FOR APPOINTMENTS.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL V IS NOT INCONSISTENT WITH THE
AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C) OF THE STATUTE TO MAKE
SELECTIONS FOR APPOINTMENTS. THEREFORE, IT IS WITHIN THE AGENCY'S DUTY
TO BARGAIN UNDER THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10
OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL V. /13/
REASONS: THIS PROPOSAL WOULD REQUIRE THAT WHEN THE AGENCY SEEKS TO
FILL A VACANT POSITION FROM A CERTIFICATE OF ELIGIBLE CANDIDATES IT WILL
MAKE ITS SELECTION, IF ANY, WITHIN TWO WEEKS OR CANCEL THE VACANCY.
THUS, THE PROPOSAL WOULD ESTABLISH A PROCEDURAL TIME LIMIT FOR THE
AGENCY'S EXERCISE OF ITS RIGHTS PURSUANT TO SECTION 7106(A)(2)(C) OF THE
STATUTE TO FILL THE POSITION FROM A PARTICULAR CERTIFICATE OF
CANDIDATES. ON ITS FACE, THE PROPOSAL ONLY WOULD APPLY WHERE MANAGEMENT
HAS CHOSEN A CERTIFICATE AS THE SOURCE FROM WHICH IT WISHES TO CONSIDER
CANDIDATES AND/OR MAKE A SELECTION; IT WOULD NOT HAVE THE EFFECT OF
PREVENTING THE AGENCY FROM CONSIDERING AND SELECTING A CANDIDATE FROM
ANY OTHER APPROPRIATE SOURCE. MOREOVER, THE PROPOSAL WOULD NOT REQUIRE
THE AGENCY TO SELECT FORM A CERTIFICATE WITHIN TWO WEEKS, OR PREVENT THE
AGENCY FROM REESTABLISHING THE VACANCY AND OBTAINING ADDITIONAL
CERTIFICATES IN THE EVENT THE PROCEDURAL TIME LIMIT EXPIRES BEFORE A
SELECTION HAS BEEN MADE. THEREFORE, THE PROPOSAL CONCERNS THE
"PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE" IN
EXERCISING THEIR RIGHTS AND IS NEGOTIABLE UNDER SECTION 7106(B)(2) OF
THE STATUTE.
UNION PROPOSAL VI
SECTION 15 OF ARTICLE 7
NORWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT, A REPROMOTION
ELIGIBLE (I.E., AN
EMPLOYEE DEMOTED THROUGH NO FAULT OF HIS OR HER OWN) WILL BE SELECTED
FOR THE FIRST VACANCY AT
HIS OR HER FORMER GRADE LEVEL WHICH MANAGEMENT WOULD OTHERWISE FILL
COMPETITIVELY, FOR WHICH
THE EMPLOYEE IS QUALIFIED AND FOR WHICH HE OR SHE APPLIES, UNLESS
THERE ARE PERSUASIVE REASONS
FOR PASSING THE EMPLOYEE OVER. AN EMPLOYEE WILL RETAIN THIS
ELIGIBILITY UNTIL REPROMOTED TO HIS OR HER FORMER GRADE.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL VI, WHICH PERTAINS TO THE
REPROMOTION OF EMPLOYEES INVOLUNTARILY DEMOTED WITHOUT PERSONAL CAUSE,
IS INCONSISTENT WITH SECTION 7106(A)(2)(C) OF THE STATUTE, AS ALLEGED BY
THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL VI IS INCONSISTENT WITH SECTION
7106(A)(-)(C) OF THE STATUTE AND THEREFORE IS NOT WITHIN THE AGENCY'S
DUTY TO BARGAIN UNDER THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
IT IS ORDERED THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW
RELATING TO UNION PROPOSAL VI BE, AND IT HEREBY IS, DISMISSED. /14/
REASONS: IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2782 AND DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON,
D.C., 6 FLRA NO. 56 (1981), THE AUTHORITY FOUND THAT A PROPOSAL WHICH
PROVIDED, IN PERTINENT PART, THAT, "(E)XCEPT FOR GOOD CAUSE, (BARGAINING
UNIT EMPLOYEES INVOLUNTARILY DOWNGRADED WITHOUT PERSONAL CAUSE) WILL BE
REPROMOTED AT THE FIRST OPPORTUNITY," CONSTITUTED AN APPROPRIATE
ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE
OF
ITS AUTHORITY UNDER SECTION 7106(A) AND THEREFORE WAS WITHIN THE DUTY TO
BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE. /15/ IN SO FINDING,
THE AUTHORITY SPECIFICALLY RELIED UPON THE UNION'S INTERPRETATION OF ITS
PROPOSAL AS FOLLOWS:
THUS, THE UNION REASONABLY INTERPRETS ITS OWN PROPOSAL AS REQUIRING
THE AGENCY, WHEN IT
DECIDES TO FILL A VACANT BARGAINING UNIT POSITION FOR WHICH A
REPROMOTION ELIGIBLE EMPLOYEE IS
QUALIFIED, TO CONSIDER BUT NOT NECESSARILY TO SELECT THE REPROMOTION
ELIGIBLE
EMPLOYEE. ALTHOUGH THE AGENCY MUST HAVE "GOOD CAUSE" FOR EXERCISING
ITS DISCRETION NOT TO
PROMOTE THE REPROMOTION ELIGIBLE EMPLOYEE, "GOOD CAUSE" WOULD
INCLUDE, BUT NOT BE LIMITED TO,
SUCH CIRCUMSTANCES AS MANAGEMENT'S DECISION NOT TO FILL OR TO ABOLISH
THE VACANT POSITION OR
TO SELECT A BETTER QUALIFIED CANDIDATE FROM ANY APPROPRIATE SOURCE;
IN OTHER WORDS, "GOOD
CAUSE" AS USED IN THE UNION'S PROPOSAL WOULD ENCOMPASS THE RIGHTS
RESERVED TO MANAGEMENT UNDER THE STATUTE.
BY CONTRAST, THE RECORD IN THE PRESENT CASE INDICATES THAT THE PHRASE
"PERSUASIVE REASONS" IN UNION PROPOSAL VI WAS NOT INTENDED TO INCLUDE
SUCH REASONS AS MANAGEMENT'S DECISION NOT TO FILL OR TO ABOLISH THE
VACANT POSITION OR TO SELECT A BETTER QUALIFIED CANDIDATE FROM ANY
APPROPRIATE SOURCE; IN OTHER WORDS, "PERSUASIVE REASONS" AS USED IN
THIS PROPOSAL WOULD NOT ENCOMPASS THE RIGHTS RESERVED TO MANAGEMENT
UNDER THE STATUTE. HENCE, UNION PROPOSAL VI WOULD DIRECTLY INTERFERE
WITH THE EXERCISE OF MANAGEMENT'S RIGHTS UNDER SECTION 7106(A)(2)(C) TO
CHOOSE AMONG CANDIDATES FROM APPROPRIATE SOURCES IN FILLING A VACANCY
AND, CONSEQUENTLY, CANNOT BE DEEMED AN "APPROPRIATE ARRANGEMENT FOR
EMPLOYEES ADVERSELY AFFECTED" BY MANAGEMENT'S EXERCISE OF ITS STATUTORY
RIGHTS, WITHIN THE MEANING OF SECTION 7106(B)(3) OF THE STATUTE. /16/
ACCORDINGLY, UNION PROPOSAL VI IS INCONSISTENT WITH SECTION
7106(A)(2)(C) OF THE STATUTE AND THEREFORE IS NOT WITHIN THE DUTY TO
BARGAIN.
ISSUED, WASHINGTON, D.C., MAY 7, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2
AND DEPARTMENT OF THE ARMY, MILITARY DISTRICT OF WASHINGTON, 4 FLRA NO.
60(1980) IN WHICH THE AUTHORITY ANALYZED THE DUTY TO BARGAIN UNDER THE
STATUTE AND CONCLUDED THAT: "(T)HE DUTY TO BARGAIN APPLIES ONLY TO
THOSE CONDITIONS OF EMPLOYMENT WHICH AFFECT EMPLOYEES WITHIN THE
BARGAINING UNIT."
/2/ IN DECIDING THAT UNION PROPOSAL I IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERIT.
/3/ SECTION 7106(A)(2)(C) PROVIDES:
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(.)
/4/ IN VIEW OF THE AUTHORITY'S CONCLUSION THAT UNION PROPOSAL II IS
INCONSISTENT WITH SECTION 7106(A)(2)(C) OF THE STATUTE, AND THEREFORE
NOT WITHIN THE DUTY TO BARGAIN, IT IS UNNECESSARY TO CONSIDER THE
AGENCY'S FURTHER CONTENTION THAT THE PROPOSAL IS ALSO INCONSISTENT WITH
PROVISIONS SET FORTH IN THE FEDERAL PERSONNEL MANUAL.
/5/ SEE FEDERAL PERSONNEL MANUAL, CHAPTER 335, SUBCHAPTER 1-4,
REQUIREMENT 4, WHEREIN THESE SOURCES ARE ENUMERATED.
/6/ SECTION 7106(B)(1) PROVIDES IN PERTINENT PART:
SEC. 7106. MANAGEMENT RIGHTS
* * * *
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR
POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY(.)
/7/ IN DECIDING THAT UNION PROPOSAL III IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERIT.
/8/ UNION PROPOSAL III USES THE TERMINOLOGY "JOURNEYMAN LEVEL" BUT
THE RECORD DOES NOT INDICATE THAT THIS PHRASE HAS A DIFFERENT MEANING
FROM "FULL PERFORMANCE LEVEL," THE TERMINOLOGY USED IN THE FEDERAL
PERSONNEL MANUAL.
/9/ SECTION 7106(B)(2) PROVIDES:
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(.)
/10/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA
603, 610-614(1980), ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL
LABOR RELATIONS AUTHORITY, 659 F.2D 1140(D.C. CIR. 1981).
/11/ SECTION 7106(A)(2)(A) PROVIDES IN PERTINENT PART:
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, . . . EMPLOYEES IN THE AGENCY(.)
/12/ NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE SERVICE,
2 FLRA 280 (1979).
/13/ IN DECIDING THAT UNION PROPOSAL V IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERIT.
/14/ IN VIEW OF THE AUTHORITY'S CONCLUSION THAT UNION PROPOSAL VI IS
INCONSISTENT WITH SECTION 7106(A)(2)(C) OF THE STATUTE, AND THEREFORE
NOT WITHIN THE DUTY TO BARGAIN, IT IS UNNECESSARY TO CONSIDER THE
AGENCY'S FURTHER CONTENTION THAT THE PROPOSAL ALSO IS INCONSISTENT WITH
A GOVERNMENT-WIDE RULE OR REGULATION.
/15? SECTION 7106(B)(3) PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
* * * *
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING--
* * * *
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/16/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2782
AND DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON, D.C., 7
FLRA NO. 13(1981), APPEAL DOCKETED SUB NOM. AFGE, LOCAL 2782 V. FEDERAL
LABOR RELATIONS AUTHORITY, NO. 81-2386 (D.C. CIR. DEC. 29, 1981).