American Federation of Government Employees, Local 2782, AFL-CIO (Union) and Department of Commerce, Bureau of the Census, Washington, DC (Agency)

 



[ v06 p314 ]
06:0314(56)NG
The decision of the Authority follows:


 6 FLRA No. 56
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2782
 Union
 
 and
 
 DEPARTMENT OF COMMERCE,
 BUREAU OF THE CENSUS,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-222
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THIS PETITION FOR REVIEW 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.).  THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE
 FOLLOWING UNION PROPOSAL:
 
    B:  POLICY:  IT IS THE AGENCY'S POLICY TO SPEEDILY REPROMOTE
 BARGAINING UNIT EMPLOYEES WHO
 
    HAVE BEEN INVOLUNTARILY DOWNGRADED WITHOUT PERSONAL CAUSE, EXCEPT
 WHEN RETURNED TO THE GRADE
 
    FROM WHICH TEMPORARILY PROMOTED.  EXCEPT FOR GOOD CAUSE, SUCH
 EMPLOYEES WILL BE REPROMOTED AT
 
    THE FIRST OPPORTUNITY, AND THE PROCEDURES ESTABLISHED BELOW ARE MEANT
 TO ENSURE THAT THIS WILL
 
    HAPPEN.
 
    J:  RESOLUTION OF DISPUTES:  DISPUTES OVER THE INTERPRETATION AND
 APPLICATION OF THIS
 
    REGULATION, INCLUDING CLAIMS BY AN EMPLOYEE THAT (S)HE SHOULD HAVE
 BEEN SELECTED, WILL BE
 
    RESOLVE THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE SPECIFIC QUESTION BEFORE THE AUTHORITY IS WHETHER THE UNION
 PROPOSAL, WHICH PERTAINS TO THE REPROMOTION OF EMPLOYEES INVOLUNTARILY
 DOWNGRADED WITHOUT PERSONAL CAUSE, IS INCONSISTENT WITH APPLICABLE
 GOVERNMENT-WIDE RULES OR REGULATIONS (5 CFR 7.1 /1/ ;  FEDERAL PERSONNEL
 MANUAL (FPM) CHAPTER 335, SUBCHAPTER 1-4, REQUIREMENT 4 /2/ ;  AND FPM
 CHAPTER 335, SUBCHAPTER 1-6;  /3/ AND/OR SECTION 7106(A)(2)(C) OF THE
 STATUTE /4/ , AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION PROPOSAL IS NOT INCONSISTENT WITH
 THE RULES AND REGULATIONS RELIED UPON BY THE AGENCY OR WITH SECTION
 7106(A)(2)(C) OF THE STATUTE.  RATHER, THE PROPOSAL CONSTITUTES AN
 APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY
 MANAGEMENT'S
 EXERCISE OF ITS STATUTORY AUTHORITY WHICH IS NEGOTIABLE UNDER SECTION
 7106(B)(3) OF THE STATUTE /5/ .  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 THE UNION PROPOSAL.  /6/
 
    REASONS:  THE AGENCY CLAIMS THE DISPUTED PROPOSAL IS NONNEGOTIABLE
 BECAUSE IT WOULD IMPROPERLY AFFECT ITS DISCRETION TO FILL OR NOT FILL
 VACANT POSITIONS;  TO CONSIDER CANDIDATES FOR SUCH VACANT POSITIONS FROM
 ANY APPROPRIATE SOURCE;  AND TO SELECT, IN FILLING SUCH POSITIONS, FROM
 AMONG SUCH CANDIDATES.  IN SUPPORT OF ITS POSITION THE AGENCY CITES,
 INTER ALIA, PROVISIONS CONTAINED IN THE CIVIL SERVICE RULES AND THE FPM.
  SINCE THE OFFICE OF PERSONNEL MANAGEMENT (OPM) HAS PRIMARY
 RESPONSIBILITY FOR THE ISSUANCE AND INTERPRETATION OF THE CITED
 PROVISIONS, THE AUTHORITY REQUESTED AN ADVISORY OPINION FROM OPM
 PURSUANT TO SECTION 7105(I) OF THE STATUTE.  OPM RESPONDED WITH AN
 OPINION SUSTAINING THE AGENCY'S POSITION.
 
    PURSUANT TO SECTION 2429.15(B) OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2429.15(B)), THE PARTIES WERE GIVEN AN OPPORTUNITY TO
 COMMENT ON THE ADVISORY OPINION OF OPM.  THEIR SUBMISSIONS, AS WELL AS
 THE ADVISORY OPINION ITSELF, HAVE BEEN DULY CONSIDERED BY THE AUTHORITY.
 
    THE AUTHORITY AGREES WITH OPM'S STATEMENT IN ITS ADVISORY OPINION
 THAT THE CRITICAL QUESTION IN THIS CASE IS WHETHER THE PROPOSAL
 OBLIGATES THE AGENCY "TO SELECT A PARTICULAR EMPLOYEE WHEN A VACANCY IS
 CREATED." HOWEVER, THE CONCLUSION THAT THE PROPOSAL WOULD REQUIRE SUCH A
 SELECTION AND, CONSEQUENTLY, WOULD CONFLICT WITH THE FPM, CIVIL SERVICE
 RULES AND/OR SECTION 7106(A)(2)(C) OF THE STATUTE IS BASED ON A
 MISINTERPRETATION OF THE PROPOSAL AND CANNOT BE SUSTAINED BY THE
 AUTHORITY.
 
    THE AGENCY CHARACTERIZES THE PROPOSAL AS DENYING MANAGEMENT
 DISCRETION "TO DECIDE NOT TO FILL A PARTICULAR VACANCY AT ALL,"
 REQUIRING MANAGEMENT TO "SELECT A QUALIFIED REPROMOTION ELIGIBLE" IN ALL
 CIRCUMSTANCES COVERED BY THE PROPOSAL, AND SUBJECTING TO ARBITRAL REVIEW
 "THE SELECTION DECISION ITSELF" IF A REPROMOTION ELIGIBLE IS NOT
 SELECTED.  THE UNION, ON THE OTHER HAND, ASSERTING THAT THE AGENCY HAS
 MISINTERPRETED THE PROPOSAL, EXPLAINS THE INTENDED MEANING AS FOLLOWS:
 
    (T)HE UNION'S PROPOSALS, IF ADOPTED, WOULD NOT PREVENT MANAGEMENT
 FROM DECIDING AND ACTING
 
    ON ANY SEC. 7106(A) MATTER. . . .  MANAGEMENT APPEARS TO CLAIM THAT
 COMPLIANCE WITH THE UNION
 
    PROPOSAL WOULD DENY IT AUTHORITY TO ACT IN AREAS LISTED IN SEC.
 7106(A), SPECIFICALLY, THAT OF
 
    MANAGEMENT'S RIGHT NOT TO FILL POSITIONS AND TO MAKE SELECTIONS FROM
 "ANY OTHER APPROPRIATE
 
    SOURCE." THE AGENCY INTERPRETS THE LANGUAGE OF THE PROPOSAL THAT
 REFERS TO REPROMOTION "AT
 
    THE FIRST OPPORTUNITY" AS DENYING IT THE DISCRETION TO DECIDE NOT TO
 FILL A PARTICULAR
 
    VACANCY, NOT TO MAKE A SELECTION FROM A LIST OF CANDIDATES, OR EVEN
 TO ABOLISH THE
 
    POSITION.  THE MANAGEMENT INTERPRETATION JERKS THE QUOTED LANGUAGE OF
 THE PROPOSAL OUT OF
 
    CONTEXT AND WILDLY DISTORTS ITS MEANING.  MANAGEMENT IGNORES THE
 CLAUSE WHICH INTRODUCES THE
 
    LANGUAGE QUOTED ABOVE:  "EXCEPT FOR GOOD CAUSE".  THE UNION DOES NOT
 TAKE THE POSITION THAT A
 
    MANAGEMENT DECISION NOT TO FILL A POSITION, NOT TO MAKE A SELECTION
 FROM A LIST OR EVEN TO
 
    ABOLISH A POSITION DOES NOT CONSTITUTE "GOOD CAUSE" WITHIN THE
 MEANING OF THE PROPOSAL. . . .
 
    MANAGEMENT ALSO ARGUES THAT THE PROPOSALS REQUIRE IT TO SELECT A
 QUALIFIED REPROMOTION
 
    ELIGIBLE IN ALL COVERED CIRCUMSTANCES AND THEREBY USURPS ITS RIGHT TO
 MAKE SELECTIONS FROM ANY
 
    APPROPRIATE SOURCE.  THIS IS ANOTHER GROUNDLESS ASSERTION THAT
 IGNORES THE SAME CRITICAL
 
    INTRODUCTORY CLAUSE:  "EXCEPT FOR GOOD CAUSE".  THE UNION HAS NOT
 TAKEN THE POSITION ASCRIBED
 
    TO IT BY MANAGEMENT. DOCUMENTARY EVIDENCE SUBMITTED BY MANAGEMENT
 REBUTS ITS OWN
 
    ARGUMENT.  THE UNION MEMORANDUM SUBMITTED TO MANAGEMENT, AND ATTACHED
 AS TAB F TO MANAGEMENT'S
 
    STATEMENT OF POSITION, CLEARLY INDICATES THAT THE PROPOSALS NEITHER
 REQUIRE SELECTION (OF) A
 
    QUALIFIED REPROMOTION ELIGIBLE IN ALL CIRCUMSTANCES NOR USURPS
 MANAGEMENT'S RIGHT TO SELECT
 
    FROM ANY APPROPRIATE SOURCE.  AS THE TAB F MEMORANDUM FROM THE UNION
 TO MANAGEMENT STATES;
 
    " . . . PROPOSED B CONTAINS EXCEPT FOR GOOD CAUSE, SUCH EMPLOYEES . .
 . WILL BE REPROMOTED
 
    . . . A CASE THAT ANOTHER APPLICANT WAS BETTER QUALIFIED FOR THE JOB
 . . . WOULD CONSTITUTE
 
    SUCH A GOOD CAUSE FOR NOT SELECTING AN EMPLOYEE ELIGIBLE FOR
 REPROMOTION.
 
    GIVEN THIS CLEAR UNION STATEMENT, THE MANAGEMENT ARGUMENT HAS NO
 MERIT.  THUS, THE UNION
 
    PROPOSAL WOULD NOT PROHIBIT MANAGEMENT FROM EXERCISING ITS RIGHTS
 UNDER SEC. 7106(A).
 
   .          .          .          .
 
 
    MANAGEMENT ARGUES THAT UNDER SEC. 7117(A)(1) THE UNION PROPOSALS
 CANNOT BE THE SUBJECT OF
 
    BARGAINING BECAUSE THEY ARE INCONSISTENT WITH GOVERNMENT-WIDE
 REGULATIONS (5 CFR 7.1;  FPM
 
    CHAPTER 335, SUBCHAPTER 1-4, REQUIREMENT 4;  AND FPM CHAPTER 335,
 SUBCHAPTER 1-6).
 
   .          .          .          .
 
 
    EVEN IF THE REGULATIONS WERE SOMEHOW CONSTRUED AS A "GOVERNMENT-WIDE
 REGULATION", THE UNION
 
    PROPOSALS ARE NOT INCONSISTENT WITH THEM BECAUSE, AS PREVIOUSLY
 DEMONSTRATED, THEY DO NOT BAR
 
    MANAGEMENT FROM EXERCISING ITS RIGHTS UNDER SEC. 7106(A).
 
    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.
 
    LIKEWISE, THE PROPOSAL IS NOT INCONSISTENT WITH 5 CFR 7.1 AND FPM
 CHAPTER 335, SUBCHAPTER 1-4, REQUIREMENT 4, AS INTERPRETED BY OPM,
 BECAUSE OF THE UNION'S PREVIOUSLY DISCUSSED INTENTION THAT THE PROPOSAL
 REQUIRES CONSIDERATION BUT NOT SELECTION OF REPROMOTION ELIGIBLE
 EMPLOYEES.  THUS, THE UNION PROPOSAL EMBRACES AND DOES NOT CONFLICT WITH
 THE DISCRETION THAT THE APPOINTING OFFICIAL HAS IN FILLING VACANCIES
 UNDER THE CITED AUTHORITIES AND DOES NOT COMPEL THE AGENCY TO SELECT A
 PARTICULAR EMPLOYEE.  HENCE, THE AGENCY'S RIGHT TO SELECT FROM AMONG A
 GROUP OF BEST QUALIFIED CANDIDATES OR FROM OTHER APPROPRIATE SOURCES OR
 TO DECIDE NOT TO FILL POSITIONS IS NOT DENIED.
 
    IT HAS OFTEN BEEN EMPHASIZED IN AUTHORITY DECISIONS THAT UNDER
 SECTION 7106(B)(3) OF THE STATUTE THERE IS A DUTY TO BARGAIN APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE
 OF ITS AUTHORITY UNDER SECTION 7106(A).  /7/ IN THIS CONNECTION, THE
 AUTHORITY HAS STATED THAT A PROPOSAL WHICH WOULD ESTABLISH A GENERAL,
 NONQUANTITATIVE REQUIREMENT BY WHICH THE APPLICATION OF ACTIONS TAKEN BY
 MANAGEMENT PURSUANT TO SECTION 7106 OF THE STATUTE MAY SUBSEQUENTLY BE
 EVALUATED IN A GRIEVANCE BY AN EMPLOYEE WHO BELIEVES THAT HE HAS BEEN
 ADVERSELY AFFECTED BY THE APPLICATION OF THE ACTION TO HIM, IS WITHIN
 THE DUTY TO BARGAIN.  /8/ UNDER THE PLAIN LANGUAGE OF SECTION 7106(A),
 OF COURSE, "NOTHING" IN THE STATUTE SHALL "AFFECT THE AUTHORITY" OF AN
 AGENCY TO EXERCISE THE RIGHTS ENUMERATED THEREIN.  HENCE, NO MATTER
 COULD BE GRIEVED UNDER A PROCEDURE NEGOTIATED PURSUANT TO SECTION 7121
 OF THE STATUTE /9/ WHICH WOULD DENY THE AUTHORITY OF AN AGENCY TO
 EXERCISE ITS STATUTORY RIGHTS UNDER SECTION 7106.  /10/
 
    IN THE PRESENT CASE, IT IS CLEAR THAT AN EMPLOYEE WHO HAS BEEN
 INVOLUNTARILY REDUCED IN GRADE WITHOUT PERSONAL CAUSE HAS BEEN ADVERSELY
 AFFECTED BY VIRTUE OF SUCH MANAGEMENT ACTION.  THUS, THE UNION CAN
 PROPERLY NEGOTIATE "APPROPRIATE ARRANGEMENTS" FOR SUCH AN EMPLOYEE
 WHICH, AS THE DISPUTED PROPOSAL IN EFFECT REQUIRES, MANDATE
 CONSIDERATION FOR AVAILABLE HIGHER LEVEL VACANCIES.  ADMITTEDLY, UNDER
 THE PROPOSAL, IF THE AGENCY WERE TO SELECT SOMEONE ELSE TO FILL A VACANT
 POSITION WHICH MIGHT HAVE BEEN FILLED BY THE REPROMOTION ELIGIBLE
 EMPLOYEE, THE LATTER COULD IN A GRIEVANCE RAISE THE ISSUE OF WHETHER THE
 CONTRACTUAL REQUIREMENT, "GOOD CAUSE", HAS BEEN MET BY THE AGENCY.
 HOWEVER, INSOFAR AS THE PROPOSAL ESTABLISHES A GENERAL, NONQUANTITATIVE
 CONTRACTUAL REQUIREMENT, "GOOD CAUSE", BY WHICH THE APPLICATION OF
 SELECTION PROCEDURES UTILIZED BY THE AGENCY MAY SUBSEQUENTLY BE
 EVALUATED IN A GRIEVANCE BY A REPROMOTION ELIGIBLE WHO BELIEVES THAT HE
 HAS NOT BEEN ACCORDED THE CONSIDERATION TO WHICH HE IS ENTITLED FOR THE
 HIGHER LEVEL VACANCY, AND THE AUTHORITY SO INTERPRETS THE PROPOSAL FOR
 THE PURPOSE OF THIS DECISION, THE PROPOSAL DOES NOT PURPORT TO AUTHORIZE
 GRIEVANCES WHICH WOULD DENY THE AGENCY'S RIGHTS UNDER SECTION 7106.
 THUS, A REPROMOTION ELIGIBLE WHO WAS NOT SELECTED FOR REPROMOTION MAY,
 IN A GRIEVANCE OF SUCH ACTION PURSUANT TO SECTION 7121 OF THE STATUTE
 RAISE THE ISSUE OF WHETHER THE SELECTION PROCEDURES AS APPLIED TO HIM
 MEET THE CONTRACTUAL, "GOOD CAUSE", REQUIREMENT.  SUCH REVIEW BY AN
 ARBITRATOR WOULD NOT REQUIRE THE AGENCY TO SELECT A PARTICULAR EMPLOYEE,
 INCLUDING A REPROMOTION ELIGIBLE, TO FILL A VACANCY OR LIMIT SELECTION
 TO A PARTICULAR SOURCE.  IT WOULD NOT SUBJECT TO ARBITRATION THE
 SELECTION DECISION ITSELF OR RESULT IN THE SUBSTITUTION OF THE
 ARBITRATOR'S JUDGMENT FOR THAT OF THE AGENCY.  THE ARBITRATOR WOULD
 SIMPLY DETERMINE IF THE SELECTION PROCEDURES USED BY THE AGENCY, AS
 APPLIED TO THE REPROMOTION ELIGIBLE GRIEVANT, COMPLIED WITH THE "GOOD
 CAUSE" REQUIREMENT OF THE PARTIES' AGREEMENT.  /11/
 
    FURTHER, IN THIS REGARD, THE AGENCY'S AND OPM'S POSITION THAT A
 GRIEVANCE RELATED TO NONSELECTION OF A REPROMOTION ELIGIBLE IS NOT
 APPROPRIATE UNDER FPM CHAPTER 335, SUBCHAPTER 1-6 CANNOT BE SUSTAINED.
 WHILE OPM REGULATIONS MAY LIMIT THE SCOPE OF AGENCY GRIEVANCE
 PROCEDURES, SUCH REGULATIONS MAY NOT BE APPLIED IN A MANNER INCONSISTENT
 WITH THE SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES ALLOWED UNDER SECTION
 7121 OF THE STATUTE.  /12/ SECTION 7121 OF THE STATUTE PROVIDES FOR
 BROAD SCOPE GRIEVANCE PROCEDURES.  AS STATED WITH RESPECT TO SECTION
 7121 IN THE CONFERENCE REPORT ACCOMPANYING THE FINAL VERSION OF THE BILL
 WHICH WAS SUBSEQUENTLY ENACTED AND SIGNED INTO LAW:
 
    ALL MATTERS THAT UNDER THE PROVISIONS OF LAW COULD BE SUBMITTED TO
 THE GRIEVANCE PROCEDURES
 
    SHALL IN FACT BE WITHIN THE SCOPE OF ANY GRIEVANCE PROCEDURE
 NEGOTIATED BY THE PARTIES UNLESS
 
    THE PARTIES AGREE AS PART OF THE COLLECTIVE BARGAINING PROCESS THAT
 CERTAIN MATTERS SHALL NOT
 
    BE COVERED BY THE GRIEVANCE PROCEDURES.  JOINT EXPLANATORY STATEMENT
 OF THE COMMITTEE ON
 
    CONFERENCE, H.R. REP. NO. 1717, 95TH CONG., 2D SESS. 157, REPRINTED
 IN (1978) U.S. CODE
 
    CONG. & AD. NEWS 2860, 2891.
 
    THE LIST OF MATTERS EXCLUDED FROM PERMISSIBLE COVERAGE WITHIN
 NEGOTIATED GRIEVANCE PROCEDURES BY SECTION 7121(C) OF THE STATUTE DOES
 NOT ADVERT TO THE NONSELECTION OF A REPROMOTION ELIGIBLE BASED ON "GOOD
 CAUSE" AS INTERPRETED HEREIN.  FURTHERMORE, NEITHER THE AGENCY NOR OPM
 REFERS TO ANY OTHER PROVISION OF LAW WHICH WOULD OPERATE TO EXCLUDE THE
 MATTER FROM COVERAGE.  THUS, ON THEIR FACE, GRIEVANCE PROCEDURES
 NEGOTIATED UNDER SECTION 7121 OF THE STATUTE COVER SUCH MATTERS UNLESS
 THE PARTIES EXCLUDE THEM THROUGH BARGAINING.  /13/
 
    ACCORDINGLY, THE AUTHORITY FINDS THAT THE PROPOSAL, AS REASONABLY
 INTERPRETED BY THE UNION, IS NOT INCONSISTENT WITH THE AUTHORITIES
 RELIED UPON BY THE AGENCY AND IS NEGOTIABLE UNDER SECTION 7106(B)(3) OF
 THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., JULY 23, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 CFR 7.1 PROVIDES:
 
    SECTION 7.1 DISCRETION IN FILLING VACANCIES.
 
    IN HIS DISCRETION, AN APPOINTING OFFICER MAY FILL ANY POSITION IN THE
 COMPETITIVE SERVICE EITHER BY COMPETITIVE APPOINTMENT FROM A CIVIL
 SERVICE REGISTER OR BY NONCOMPETITIVE SELECTION OF A PRESENT OR FORMER
 FEDERAL EMPLOYEE, IN ACCORDANCE WITH THE CIVIL SERVICE REGULATIONS.  HE
 SHALL EXERCISE HIS DISCRETION IN ALL PERSONNEL ACTIONS SOLELY ON THE
 BASIS OF MERIT AND FITNESS AND WITHOUT REGARD TO POLITICAL OR RELIGIOUS
 AFFILIATIONS, MARITAL STATUS, OR RACE.
 
    /2/ FPM CHAPTER 335, SUBCHAPTER 1-4, REQUIREMENT 4 PROVIDES:
 
    SELECTION PROCEDURES WILL PROVIDE FOR MANAGEMENT'S RIGHT TO SELECT OR
 NOT SELECT FROM AMONG A GROUP OF BEST QUALIFIED CANDIDATES.  THEY WILL
 ALSO PROVIDE FOR MANAGEMENT'S RIGHT TO SELECT FROM OTHER APPROPRIATE
 SOURCES, SUCH AS REEMPLOYMENT PRIORITY LISTS, REINSTATEMENT, TRANSFER,
 HANDICAPPED, OR VETERANS READJUSTMENT ELIGIBLES OR THOSE WITHIN REACH ON
 AN APPROPRIATE OPM CERTIFICATE.  IN DECIDING WHICH SOURCE OR SOURCES TO
 USE, AGENCIES HAVE AN OBLIGATION TO DETERMINE WHICH IS MOST LIKELY TO
 BEST MEET THE AGENCY MISSION OBJECTIVES, CONTRIBUTE FRESH IDEAS AND NEW
 VIEWPOINTS, AND MEET THE AGENCY'S AFFIRMATIVE ACTION GOALS.
 
    /3/ FPM CHAPTER 335, SUBCHAPTER 1-6 PROVIDES:
 
    1-6 GRIEVANCES
 
    EMPLOYEES HAVE THE RIGHT TO FILE A COMPLAINT RELATING TO A PROMOTION
 ACTION.  SUCH COMPLAINTS SHALL BE RESOLVED UNDER APPROPRIATE GRIEVANCE
 PROCEDURES.  THE STANDARDS FOR ADJUDICATING COMPLAINTS ARE SET FORTH IN
 PART 300 OF TITLE 5, CODE OF FEDERAL REGULATIONS.  WHILE THE PROCEDURES
 USED BY AN AGENCY TO IDENTIFY AND RANK QUALIFIED CANDIDATES ARE PROPER
 SUBJECTS FOR FORMAL COMPLAINTS OR GRIEVANCES, NONSELECTION FROM AMONG A
 GROUP OF PROPERLY RANKED AND CERTIFIED CANDIDATES IS NOT AN APPROPRIATE
 BASIS FOR A FORMAL COMPLAINT OR GRIEVANCE.  THERE IS NO RIGHT OF APPEAL
 TO THE OPM, BUT THE OPM MAY CONDUCT INVESTIGATIONS OF SUBSTANTIAL
 VIOLATIONS OF OPM REQUIREMENTS.
 
    /4/ SECTION 7106(A)(2)(C) PROVIDES:
 
    SECTION 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(.)
 
    /5/ SECTION 7106(B)(3) PROVIDES:
 
    SECTION 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 . . .
 
    /6/ IN SO DECIDING THAT THE UNION PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /7/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 3656 AND FEDERAL TRADE COMMISSION, BOSTON REGIONAL OFFICE,
 MASSACHUSETTS, 4 FLRA NO.  92(1980) AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
 MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120(1980).
 
    /8/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1622 AND DEPARTMENT OF THE ARMY, FORT MEADE, MARYLAND, 4 FLRA NO.
 66(1980).
 
    /9/ SECTION 7121 PROVIDES IN PERTINENT PART:
 
    SECTION 7121.  GRIEVANCE PROCEDURES
 
    (A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
 COLLECTIVE BARGAINING AGREEMENT SHALL PROVIDE PROCEDURES FOR THE
 SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY.  EXCEPT
 AS PROVIDED IN SUBSECTIONS (D) AND (E) OF THIS SECTION, THE PROCEDURES
 SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCE WHICH FALL
 WITHIN ITS COVERAGE.
 
    (2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
 THE APPLICATION OF THE GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN
 THE AGREEMENT.
 
    (B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
 OF THIS SECTION SHALL--
 
    (1) BE FAIR AND SIMPLE
 
    (2) PROVIDE FOR EXPEDITIOUS PROCESSING, AND
 
    (3) INCLUDE PROCEDURES THAT--
 
    (A) ASSURE AN EXCLUSIVE REPRESENTATIVE, THE RIGHT, IN ITS OWN BEHALF
 OR ON BEHALF OF ANY
 
    EMPLOYEE IN THE UNIT REPRESENTED BY THE EXCLUSIVE REPR