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 9 FLRA No. 21
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 213
 Union
 
 and
 
 DEPARTMENT OF ENERGY,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. 0-NG-205
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    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 (THE STATUTE),
 AND RAISES ISSUES REGARDING THE NEGOTIABILITY OF THE FOLLOWING UNION
 PROPOSAL.  /1/
 
                              UNION PROPOSAL
 
    ALL BARGAINING UNIT VACANCIES OCCURRING AFTER OCTOBER 21, 1979 WILL
 BE FILLED IN ACCORDANCE
 
    WITH THE DOE HEADQUARTERS CLASSIFICATION AND PLACEMENT PLAN.
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 CONTENTIONS OF THE PARTIES, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATION.  UNDER SECTION 7106(A)(2)(C) OF THE STATUTE, /2/
 MANAGEMENT HAS THE RIGHT, IN FILLING POSITIONS, TO MAKE APPOINTMENTS
 FROM PROMOTION CERTIFICATES OR FROM ANY OTHER APPROPRIATE SOURCE.  THE
 PROPOSAL IN THIS CASE WOULD REQUIRE THE AGENCY, WHEN IT DECIDES TO FILL
 A VACANT BARGAINING UNIT POSITION, NOT ONLY TO CONSIDER BUT TO SELECT A
 PARTICIPANT OF THE AGENCY'S "CLASSIFICATION AND PLACEMENT PLAN."
 MOREOVER, IN THIS REGARD, THE UNION SPECIFICALLY STATES THAT "(T)HE
 EFFECT OF THIS PROPOSAL WOULD REQUIRE MANAGEMENT TO FILL BARGAINING UNIT
 VACANCIES OCCURRING AFTER THE IMPLEMENTATION OF DOE HEADQUARTERS
 DOWNGRADINGS . . . WITH PLAN PARTICIPANTS AND PRECLUDE NON-PLAN
 PARTICIPANTS FROM BEING LATERALLY REASSIGNED OR TRANSFERRED INTO SUCH
 VACANCIES." THEREFORE, THE PROPOSAL DIRECTLY INTERFERES WITH THE
 AGENCY'S AUTHORITY TO MAKE SELECTIONS FOR APPOINTMENTS FROM PROMOTION
 CERTIFICATES OR ANY OTHER APPROPRIATE SOURCE UNDER SECTION 7106(A)(2)(C)
 OF THE STATUTE AND IS NOT WITHIN THE DUTY TO BARGAIN.  SEE 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).
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE UNION'S
 PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 23, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE UNION ALSO FILED AN UNFAIR LABOR PRACTICE CHARGE BASED UPON
 THE SAME MATTER.  PURSUANT TO SECTIONS 2423.5 AND 2424.5 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE UNION ELECTED TO PROCEED WITH THE
 UNFAIR LABOR PRACTICE CHARGE (3-CA-579) AND TO HAVE THE NEGOTIABILITY
 APPEAL HELD IN ABEYANCE.  THE CHARGE WAS LATER WITHDRAWN PURSUANT TO AN
 INFORMAL SETTLEMENT AGREEMENT BETWEEN THE PARTIES.
 
    /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(.) 
 
 
 

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