National Treasury Employees Union (Union) and Internal Revenue Service (Agency) 

 



[ v07 p275 ]
07:0275(42)NG
The decision of the Authority follows:


 7 FLRA No. 42
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 INTERNAL REVENUE SERVICE
 Agency
 
                                            Case No. O-NG-34
 
                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.
 7101-7135) (THE STATUTE).  THE ISSUES PRESENTED RELATE TO THE
 NEGOTIABILITY OF THE FOLLOWING FIVE UNION PROPOSALS.  /1/
 
                             UNION PROPOSAL 1
 
    ARTICLE 6, SECTION 3(K)(2).
 
    A STEWARD, CHIEF STEWARD OR CHAPTER PRESIDENT WHO ENTERS A WORK AREA
 PURSUANT TO THIS
 
    SECTION WILL CHECK-IN WITH THE SUPERVISOR IN THAT WORK AREA.  THE
 CHIEF STEWARD AND CHAPTER
 
    PRESIDENT AND STEWARD WILL HAVE CLEARANCE TO ENTER ALL WORK AREAS.
 (ONLY THE UNDERSCORED
 
    PORTION OF THE PROPOSAL IS IN DISPUTE).
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS INCONSISTENT WITH
 SECTION 7106(A)(1) OF THE STATUTE /2/ AND IS, THEREFORE, OUTSIDE OF THE
 DUTY TO BARGAIN, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNDERSCORED PORTION OF THE PROPOSAL IS
 INCONSISTENT WITH MANAGEMENT'S RIGHT TO DETERMINE THE AGENCY'S INTERNAL
 SECURITY PRACTICES UNDER SECTION 7106(A)(1) OF THE STATUTE;  THEREFORE,
 IT IS NOT WITHIN THE DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
 IT IS ORDERED THAT THE PETITION FOR REVIEW OF THE DISPUTED PORTION OF
 THE PROPOSAL BE, AND IT HEREBY IS DISMISSED.
 
    REASONS:  SECTION 7106(A)(1) OF THE STATUTE RESERVES TO MANAGEMENT
 THE RIGHT TO DETERMINE INTERNAL SECURITY PRACTICES.  THE INTERNAL
 SECURITY PRACTICES OF THE AGENCY HEREIN INCLUDE THOSE PRACTICES WHICH
 DIRECTLY RELATE TO AND ARE PART OF THE AGENCY'S PLAN TO PROTECT THE
 PRIVACY OF TAXPAYERS BY GUARDING AGAINST THE UNAUTHORIZED DISCLOSURE OF
 TAX INFORMATION AT ITS FACILITIES.  SEE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 15 AND DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE, NORTH ATLANTIC REGION, 2 FLRA 875(1980).  IN
 THAT CASE, ALSO INVOLVING THE INTERNAL REVENUE SERVICE, THE AUTHORITY
 HELD THAT A PROPOSAL REQUIRING ALL IDENTIFICATION CARDS "TO BE DONE AWAY
 WITH" OR THAT IDENTIFICATION CARDS OR CREDENTIALS BE ISSUED TO EMPLOYEES
 WITH INSTRUCTIONS ONLY TO CARRY THEM AND PRODUCE THEM IF CHALLENGED
 WOULD INTERFERE WITH MANAGEMENT'S DETERMINATION THAT THE VISIBLE DISPLAY
 OF IDENTIFICATION CARDS OR BADGES IS AN ESSENTIAL COMPONENT OF THE
 AGENCY'S INTERNAL SECURITY PRACTICES.
 
    IN THE PRESENT CASE, PREVENTION OF THE UNAUTHORIZED DISCLOSURE OF TAX
 INFORMATION IS THE BASIS OF THE AGENCY'S CLAIM THAT THE UNION'S PROPOSAL
 VIOLATES ITS INTERNAL SECURITY PLAN.  THAT IS, THE AGENCY HAS
 ESTABLISHED A PRACTICE OF RESTRICTING ACCESS TO CERTAIN WORK AREAS AND
 ALLOWING ONLY EMPLOYEES ON OFFICIAL BUSINESS TO ENTER THOSE AREAS SO AS
 TO CONTROL ACCESS TO AND PREVENT UNAUTHORIZED DISCLOSURE OF TAX DATA.
 THE PROPOSAL, WHICH WOULD ALLOW UNION REPRESENTATIVES TO ENTER "ALL WORK
 ARES," DIRECTLY INTERFACES WITH THIS PRACTICE AND WOULD HAVE THE EFFECT
 OF NEGATING OR REVERSING IT.  THUS, THE PROPOSAL IS INCONSISTENT WITH
 SECTION 7106(A)(1) OF THE STATUTE AND IS OUTSIDE OF THE DUTY TO BARGAIN.
 
    THE UNION STATES THAT IT "MERELY SEEKS TO NEGOTIATE A PROCEDURE WHICH
 ENSURES EQUAL UNION REPRESENTATION TO ALL EMPLOYEES IN EVERY WORK AREA,"
 AND CHARACTERIZES ITS PROPOSAL AS SEEKING TO IMPLEMENT STATUTORY
 REPRESENTATION RIGHTS AND DUTIES.  HOWEVER, THIS CHARACTERIZATION CANNOT
 SERVE TO NEGATE THE AUTHORITY'S CONCLUSION THAT THE PROPOSAL IS
 INCONSISTENT WITH A STATUTORILY PROTECTED MANAGEMENT RIGHT.
 NEVERTHELESS, IT SHOULD BE NOTED THAT OUR DECISION THAT THE PARTICULAR
 PROPOSAL IN DISPUTE IS NONNEGOTIABLE NEED NOT PREVENT THE UNION FROM
 REPRESENTING THE INTERESTS OF ALL BARGAINING UNIT EMPLOYEES, REGARDLESS
 OF WORK AREA.  THE RECORD INDICATES THAT THE AGENCY HAS DEMONSTRATED A
 WILLINGNESS TO PROVIDE MEETING PLACES OUTSIDE THE RESTRICTED WORK AREAS
 AND TO PROVIDE AGENCY ESCORTS FOR UNION REPRESENTATIVES CONDUCTING
 HEALTH AND SAFETY INSPECTIONS AND INSPECTING OFFICIAL BULLETIN BOARDS
 INSIDE THE RESTRICTED WORK AREAS.  MOREOVER, ADDITIONAL PROCEDURES AND
 PRACTICES COULD BE NEGOTIATED BETWEEN THE PARTIES WHICH WOULD NOT NEGATE
 AN ESSENTIAL COMPONENT OF THE AGENCY'S INTERNAL SECURITY PLAN AND AT THE
 SAME TIME WOULD ENABLE THE UNION TO ACHIEVE ITS STATED PURPOSE OF
 IMPLEMENTING ITS STATUTORY RIGHTS AND DUTIES WITH RESPECT TO THE
 REPRESENTATION OF EMPLOYEES.
 
                            UNION PROPOSALS 2-4
 
                             UNION PROPOSAL 2
 
    ARTICLE 7, SECTION 2(A)(2), 2(A)(3), 2(A)(7), 2(A)(8), AND 2(A)(9).
 
    A.  THE TERMS OF THIS ARTICLE WILL APPLY TO THE FOLLOWING PLACEMENT
 ACTIONS:
 
   .          .          .          .
 
 
    2.  FILLING OF A POSITION BY REASSIGNMENT, TRANSFER OR REINSTATEMENT;
 
    3.  FILLING OF A POSITION WHEN OTHER THAN BARGAINING UNIT EMPLOYEES
 ARE TO BE CONSIDERED;
 
   .          .          .          .
 
 
    7.  FILLING A POSITION ABOVE THE JOURNEYMAN LEVEL BY A NEW HIRE;
 
    8.  SELECTING EMPLOYEES FOR OVERSEAS ASSIGNMENTS;  AND
 
    9.  FILLING A POSITION BY REASSIGNMENT OR TRANSFER OF A
 NON-BARGAINING UNIT EMPLOYEE TO A
 
    BARGAINING UNIT POSITION.
 
                             UNION PROPOSAL 3
 
    ARTICLE 7, SECTION 3.
 
    A.  THE AREA OF CONSIDERATION FOR A POSTED VACANCY IN A DISTRICT
 SHALL BE EMPLOYEES IN THE
 
    DISTRICT IN WHICH THE VACANCY OCCURS.  THE AREA OF CONSIDERATION FOR
 A POSTED VACANCY IN THE
 
    NATIONAL OFFICE SHALL BE EMPLOYEES IN THE NATIONAL OFFICE ASSISTANT
 COMMISSIONER (AREA) WHERE
 
    THE VACANCY OCCURS.  THE AREA OF CONSIDERATION FOR POSTED VACANCIES
 FOR PROFESSIONAL POSITIONS
 
    IN THE REGION SHALL BE REGIONAL-OFFICE WIDE AND COMMUTING AREA WIDE
 FOR NON-PROFESSIONAL
 
    POSITIONS;  PROVIDED THAT THE AREA FOR CONSIDERATION FOR A POSTED
 VACANT APPEALS OFFICER
 
    POSITION AT GS-13 AND BELOW SHALL BE REGIONAL-OFFICE WIDE AND AT
 OTHER IRS ACTIVITIES WITHIN
 
    THE COMMUTING AREA IN WHICH THE VACANCY OCCURS.
 
    B.  VOLUNTARY APPLICATIONS FROM OUTSIDE ONE OF THE AREAS OF
 CONSIDERATION AS DESCRIBED
 
    ABOVE SHALL BE CONSIDERED ONLY WHEN CIRCUMSTANCES OF AN EXTRAORDINARY
 NATURE (E.G., LOSS OF
 
    HEALTH OF THE AFFECTED EMPLOYEE OR IMMEDIATE FAMILY) EXIST.
 
    C.  IF THE AREA OF CONSIDERATION DOES NOT YIELD THREE HIGHLY
 QUALIFIED CANDIDATES, THE
 
    EMPLOYER MAY CONSIDER APPLICANTS FROM OTHER SOURCES.
 
                             UNION PROPOSAL 4
 
    ARTICLE 7, SECTION 4(D)
 
    VACANCIES NOT SET FORTH IN A VACANCY ANNOUNCEMENT MAY NOT BE FILLED
 EXCEPT THROUGH THE
 
    POSTING OF A NEW VACANCY ANNOUNCEMENT.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS PRINCIPALLY ALLEGED BY THE AGENCY, THESE
 PROPOSALS ARE OUTSIDE THE DUTY TO BARGAIN BECAUSE THEY ARE INCONSISTENT
 WITH MANAGEMENT'S RIGHT TO MAKE SELECTIONS WITH RESPECT TO FILLING
 POSITIONS UNDER SECTION 7106(A)(2)(C) OF THE STATUTE /3/ AND/OR WITH
 CHAPTER 335 OF THE FEDERAL PERSONNEL MANUAL (FPM).  /4/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSALS ARE NOT INCONSISTENT
 WITH SECTION 7106(A)(2(C) OF THE STATUTE OR WITH THE MERIT PROMOTION
 REQUIREMENTS OF CHAPTER 335 OF THE FPM AND ARE NOT OTHERWISE OUTSIDE THE
 DUTY TO BARGAIN.  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 SUBJECT PROPOSALS.  /5/
 
    REASONS:  BASED ON THE RECORD, ARTICLE 7 OF THE COLLECTIVE BARGAINING
 AGREEMENT CONCERNS THE USE OF COMPETITIVE PROCEDURES FOR FILING
 BARGAINING UNIT VACANCIES.  THE ONLY PROVISIONS OF ARTICLE 7 WHICH ARE
 IN DISPUTE ARE UNION PROPOSALS 2, 3, AND 4.  SPECIFICALLY, PROPOSAL 2
 WOULD ENUMERATE THE PERSONNEL ACTIONS COVERED BY THE COMPETITIVE
 PROCEDURES PROVIDED IN ARTICLE 7 FOR FILLING BARGAINING UNIT POSITIONS;
 PROPOSAL 3 WOULD DEFINE THE INITIAL AREA OF CONSIDERATION IN WHICH THERE
 WOULD BE INTENSIVE SEARCH FOR CANDIDATES TO FILL POSITIONS;  AND
 PROPOSAL 4 WOULD REQUIRE THE ANNOUNCEMENT AND POSTING OF ALL BARGAINING
 UNIT VACANCIES.  THE PROPOSALS, ACCORDING TO THE UNION, ARE NOT INTENDED
 TO LIMIT WHO COULD BE CONSIDERED OR SELECTED BY THE AGENCY TO FILL UNIT
 VACANCIES;  RATHER, THEY ARE INTENDED ONLY TO REQUIRE THE USE OF CERTAIN
 INITIAL PROCEDURES IN SEEKING TO FILL SUCH VACANCIES.
 
    AMONG ITS NUMEROUS CONTENTIONS, THE AGENCY PRINCIPALLY TAKES THE
 POSITION THAT THE PROPOSALS TAKEN TOGETHER INTERFERE WITH MANAGEMENT'S
 RIGHTS UNDER SECTION 7106(A)(2)(C)(II) OF THE STATUTE AND ARE
 INCONSISTENT WITH FPM CHAPTER 335 BY REQUIRING THE USE OF CERTAIN
 PROCEDURES BEFORE MANAGEMENT CAN EXERCISE ITS RIGHT TO MAKE SELECTIONS
 FROM ANY APPROPRIATE SOURCE WHEN FILLING VACANCIES.
 
    THE AUTHORITY NOTES THAT THE PROPOSALS IN QUESTION ARE INTENDED,
 ACCORDING TO THE UNION, TO REQUIRE THE USE OF COMPETITIVE PROCEDURES IN
 IDENTIFYING THE INITIAL SOURCE OF CANDIDATES TO BE CONSIDERED, BUT THEY
 ARE NOT INTENDED TO BAR SUBSEQUENT CONSIDERATION OF CANDIDATES FROM ANY
 OTHER APPROPRIATE SOURCE.  THE LANGUAGE OF THE PROPOSALS IS SUSCEPTIBLE
 TO THIS INTERPRETATION, WHICH THE AUTHORITY ADOPTS.  /6/ THUS, THE
 INSTANT PROPOSALS WOULD PRESERVE THE DISCRETION INHERENT IN MANAGEMENT'S
 RIGHT TO MAKE SELECTIONS UNDER SECTION 7106(A)(2)(C) /7/ AND THEY ARE
 NOT INCONSISTENT WITH FPM CHAPTER 335.  SEE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 604(1980), ENFORCED SUB
 NOM.  DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . .  .
 F.2D . . . (D.C. CIR. 1981), WHERE THE AUTHORITY HELD NEGOTIABLE A
 PROPOSAL WHICH PROVIDED FOR THE USE OF COMPETITIVE PROCEDURES BUT
 PRESERVED MANAGEMENT'S RIGHT TO SELECT EMPLOYEES FOR ASSIGNMENT FROM ANY
 APPROPRIATE SOURCE.
 
    IN ADDITION, THE AGENCY ARGUES THAT THE PROPOSALS, BY REQUIRING THE
 USE OF COMPETITIVE PROCEDURES BEFORE IT CAN EXERCISE ITS RIGHT TO SELECT
 FROM ANY OTHER APPROPRIATE SOURCE, WOULD SO DELAY SELECTION AS TO
 EFFECTIVELY NEGATE THAT RIGHT.  SECTION 7106 OF THE STATUTE SPECIFIES,
 IN SUBSECTION (A), VARIOUS RIGHTS RESERVED TO AGENCY MANAGEMENT.
 SECTION 7106(B)(2), HOWEVER, PROVIDES THAT THE ENUMERATION OF MANAGEMENT
 RIGHTS IN SUBSECTION (A) DOES NOT PRECLUDE THE NEGOTIATION OF PROCEDURES
 WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING THOSE RIGHTS.  /8/
 IN THIS REGARD, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE,
 FORT DIX, NEW JERSEY, 2 FLRA 153(1979), ENFORCED SUB NOM.  DEPARTMENT OF
 DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D . . .  (D.C.
 CIR. 1981), THE AUTHORITY, UPON REVIEWING THE LEGISLATIVE HISTORY OF THE
 STATUTE AS IT PERTAINS TO SECTION 7106(B)(2), CONCLUDED THAT CONGRESS,
 WHEN IT ENACTED SUBSECTION (B)(2), INTENDED TO AUTHORIZE AN EXCLUSIVE
 REPRESENTATIVE TO NEGOTIATE FULLY ON PROCEDURES EXCEPT TO THE EXTENT
 THAT SUCH NEGOTIATIONS WOULD PREVENT AGENCY MANAGEMENT FROM ACTING AT
 ALL WITH RESPECT TO THE SPECIFIED MANAGEMENT RIGHT.  IN THE PRESENT
 CASE, THERE IS NO INDICATION IN THE RECORD THAT REQUIRING THE AGENCY TO
 USE COMPETITIVE PROCEDURES PRIOR TO EXERCISING ITS RIGHT TO MAKE
 SELECTIONS FROM ANY OTHER APPROPRIATE SOURCE WOULD IN EFFECT PREVENT THE
 AGENCY FROM ACTING AT ALL WITH RESPECT THERETO.
 
    THE AGENCY RAISES A NUMBER OF OTHER CONTENTIONS PARTICULARLY WITH
 RESPECT TO THE NEGOTIABILITY OF UNION PROPOSAL 2 WHICH SPECIFIES THE
 PLACEMENT ACTIONS THAT WOULD INITIALLY HAVE TO BE POSTED AND PROCESSED
 PURSUANT TO THE COMPETITIVE PROCEDURES.  IN THIS REGARD, THE AGENCY
 CONTENDS THAT THE ONLY PERSONNEL ACTIONS WHICH MAY BE COVERED BY
 NEGOTIATED COMPETITIVE PROCEDURES ARE THOSE WHICH INVOLVE A "PROMOTION"
 UNDER SECTION 7106(A)(2)(C)(I);  THUS, A SELECTION FROM "ANY OTHER
 APPROPRIATE SOURCE" UNDER SECTION 7106(A)(2)(C)(II) (SUCH AS
 REASSIGNMENT, TRANSFER, OR REINSTATEMENT AS REFERRED TO IN SUBSECTION 2
 OF UNION PROPOSAL 2) MAY NOT BE SUBJECT TO SUCH PROCEDURES.  HOWEVER, IN
 DIX-MCGUIRE, SUPRA, THE AUTHORITY HELD, WITHOUT MAKING THE DISTINCTION
 URGED BY THE AGENCY HEREIN, THAT PROCEDURES WHICH MANAGEMENT WILL
 OBSERVE IN EXERCISING ITS STATUTORY RIGHTS ARE TO BE NEGOTIATED EXCEPT
 TO THE EXTENT THAT SUCH PROCEDURES WOULD PREVENT THE AGENCY FROM ACTING
 AT ALL.  THUS, PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EXERCISING
 ITS RIGHT TO FILL POSITIONS UNDER EITHER SUBSECTION OF SECTION
 7106(A)(2)(C) ARE SUBJECT TO NEGOTIATION WHERE, AS HERE, SUCH PROCEDURES
 WOULD PRESERVE THE AGENCY'S OPTION ULTIMATELY TO MAKE SELECTIONS AS IT
 DEEMS APPROPRIATE.
 
    THE AGENCY ALSO ARGUES THAT REQUIRING IT TO APPLY COMPETITIVE
 PROCEDURES TO REASSIGNMENTS (SUBSECTIONS 2 AND 9 OF PROPOSAL 2) AND TO
 THE SELECTION OF EMPLOYEES FOR OVERSEAS ASSIGNMENTS (SUBSECTION 8 OF
 PROPOSAL 2) IS INCONSISTENT WITH ITS RIGHTS, RESPECTIVELY, TO ASSIGN
 EMPLOYEES AND TO ASSIGN WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE
 STATUTE.  /9/ NEITHER OF THESE ARGUMENTS CAN BE SUSTAINED SINCE, AS
 STATED PREVIOUSLY, THE PROPOSED PROCEDURES ONLY REQUIRE CERTAIN
 CANDIDATES BE CONSIDERED BEFORE OTHERS AND THUS DO NOT INTERFERE WITH
 MANAGEMENT'S EXERCISE OF ANY OF ITS RIGHTS UNDER THE STATUTE.
 
    FINALLY, WITH RESPECT TO UNION PROPOSAL 2, THE AGENCY ARGUES THAT THE
 ACT OF FILLING A POSITION BY REASSIGNMENT OR TRANSFER OF A
 NON-BARGAINING UNIT EMPLOYEE TO A BARGAINING UNIT POSITION (SUBSECTION 9
 OF THE PROPOSAL) DOES NOT CONCERN CONDITIONS OF EMPLOYMENT OF BARGAINING
 UNIT EMPLOYEES WITHIN THE MEANING OF SECTION 7103(A)(12) AND (14) OF THE
 STATUTE /10/ AND, THUS, THERE IS NO DUTY TO BARGAIN OVER THIS MATTER.
 THIS AGENCY ARGUMENT LIKEWISE CANNOT BE SUSTAINED.  UNION PROPOSALS 2,
 3, AND 4, AS RELEVANT HERE, WOULD ESTABLISH PROCEDURES FOR FILLING
 VACANCIES WITHIN THE BARGAINING UNIT WHICH WOULD HAVE TO BE FOLLOWED
 BEFORE SUCH VACANCIES COULD BE FILLED BY A NON-BARGAINING UNIT EMPLOYEE.
  PROCEDURES CONCERNING SUCH BARGAINING UNIT VACANCIES CLEARLY CONCERN
 PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS,
 I.E., CONDITIONS OF EMPLOYMENT, OF BARGAINING UNIT EMPLOYEES WITHIN THE
 MEANING OF SECTION 7103(A)(12) AND (14).  /11/
 
    WITH RESPECT TO UNION PROPOSAL 3, SECTION A CONCERNS THE INITIAL AREA
 OF CONSIDERATION IN WHICH AN INTENSIVE SEARCH FOR CANDIDATES TO FILL
 POSITIONS WOULD BE MADE.  THE UNION STATES THAT THIS SECTION PROVIDES A
 PROCEDURE WHEREBY EMPLOYEES FROM WITHIN THE AREA DEFINED IN THE PROPOSAL
 WHO APPLY ARE ORDINARILY CONSIDERED FIRST FOR VACANCIES.  FURTHER, THE
 UNION ASSERTS THAT THE PROPOSAL IS NOT INTENDED TO PREVENT ANYONE
 OUTSIDE THE INITIAL AREA OF CONSIDERATION FROM APPLYING FOR VACANCIES OR
 TO PREVENT THE AGENCY FROM EXPANDING THE AREA OF CONSIDERATION OR FROM
 MAKING SELECTIONS FROM ANY APPROPRIATE SOURCE.
 
    UNION PROPOSAL 3, IN ALL RELEVANT RESPECTS, BEARS NO MATERIAL
 DIFFERENCE FROM THE PROPOSAL HELD NEGOTIABLE IN ASSOCIATION OF CIVILIAN
 TECHNICIANS, DELAWARE CHAPTER AND NATIONAL GUARD BUREAU, DELAWARE
 NATIONAL GUARD, 3 FLRA NO. 9(1980).  IN THAT CASE, THE AUTHORITY FOUND
 THAT A PROPOSAL WHICH DESIGNATED THE INITIAL AND INCREMENTALLY EXPANDED
 AREAS OF CONSIDERATION MERELY PROVIDED A NEGOTIABLE PROCEDURE UNDER
 SECTION 7106(B)(2) FOR DEFINING SUCH AREAS OF CONSIDERATION.  IN
 CONCLUDING THAT THE PROPOSAL DID NOT CONFLICT WITH MANAGEMENT'S RIGHT TO
 MAKE SELECTIONS, THE AUTHORITY RELIED ON ITS DECISION IN AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 331 AND VETERANS
 ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, 2 FLRA 428(1980),
 STATING THE PRINCIPLE OF THAT EARLIER DECISION TO BE AS FOLLOWS:  /12/
 
    (THE) PROPOSAL WHICH WOULD REQUIRE ONLY THAT CONSIDERATION BE GIVEN
 TO EMPLOYEES WITHIN THE
 
    BARGAINING UNIT IN FILLING VACANT POSITIONS BUT WOULD NOT PREVENT
 MANAGEMENT FROM CONSIDERING
 
    OTHER APPLICANTS, OR EXPANDING THE AREA OF CONSIDERATION ONCE
 BARGAINING UNIT EMPLOYEES WERE
 
    CONSIDERED, OR USING ANY OTHER APPROPRIATE SOURCE IN FILLING SUCH
 VACANCIES, DID NOT PREVENT
 
    MANAGEMENT FROM EXERCISING ITS RESERVED RIGHT TO SELECT.
 
    CONSEQUENTLY, FOR THE REASONS SET FORTH IN GREATER DETAIL IN DELAWARE
 NATIONAL GUARD, AND CONTRARY TO THE AGENCY'S ARGUMENTS HEREIN, UNION
 PROPOSAL 3 IS NEGOTIABLE SINCE IT MERELY PROVIDES A PROCEDURE FOR
 DEFINING THE INITIAL ARE OF CONSIDERATION WHEN FILLING THE VACANCIES
 INVOLVED;  INDEED, PARAGRAPH C THEREOF EXPRESSLY CONTEMPLATES THAT " . .
 . THE EMPLOYER MAY CONSIDER APPLICANTS FROM OTHER SOURCES." THUS, THIS
 PROPOSAL DOES NOT CONFLICT WITH SECTION 7106(A)(2)(C) OF THE STATUTE OF
 FPM CHAPTER 335.  /13/ THE PROCEDURE WOULD NOT PREVENT THE AGENCY FROM
 ACTING AT ALL TO EXERCISE ITS STATUTORY AUTHORITY /14/ AND IS WITHIN THE
 DUTY TO BARGAIN UNDER SECTION 7106(B)(2).  /15/
 
    LASTLY, WITH RESPECT TO UNION PROPOSAL 4 CONCERNING THE POSTING OF
 VACANCY ANNOUNCEMENTS PRIOR TO FILLING VACANCIES IN BARGAINING UNIT
 POSITIONS, THIS PROPOSAL MERELY WOULD INSURE THAT ALL BARGAINING UNIT
 VACANCIES ARE ANNOUNCED SO THAT UNIT EMPLOYEES HAVE THE OPPORTUNITY TO
 APPLY FOR AND TO BE WITHIN THE INITIAL AREA OF CONSIDERATION.  IN
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INTERNATIONAL
 COUNCIL OF UNITED STATES MARSHALS SERVICE LOCALS AND DEPARTMENT OF
 JUSTICE, UNITED STATES MARSHALS SERVICE, 2 FLRA 765(1980), THE AUTHORITY
 FOUND THAT A PROPOSAL WHICH REQUIRED MANAGEMENT TO ANNOUNCE ALL
 VACANCIES FOR WHICH BARGAINING UNIT EMPLOYEES WERE ELIGIBLE TO APPLY DID
 NOT REQUIRE MANAGEMENT TO SELECT FROM WITHIN THE BARGAINING UNIT.
 THEREFORE, THE AUTHORITY DECIDED THAT THE PROPOSAL ESTABLISHED A
 NEGOTIABLE PROCEDURE.  BASED ON THE MARSHALS SERVICE DECISION, UNION
 PROPOSAL 4, WHICH REQUIRES THE AGENCY HEREIN TO ANNOUNCE ALL VACANCIES
 IN THE BARGAINING UNIT BUT DOES NOT REQUIRE IT TO SELECT FROM WITHIN THE
 UNIT, IS NOT INCONSISTENT WITH SECTION 7106(A)(2)(C) OF THE STATUTE OR
 FPM CHAPTER 335 AND IS WITHIN THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL 5
 
    ARTICLE 25, SECTION 1(D):
 
    THE FOLLOWING FACTORS AND WEIGHTS WILL BE USED IN EVALUATING WAE
 EMPLOYEES:
 
    QUALITY 7
 
    JOB KNOWLEDGE 5
 
    DEALINGS WITH TAXPAYERS 5
 
    UTILIZATION OF TIME 5
 
    ORAL EXPRESSION 2
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS INCONSISTENT WITH
 SECTION 7106(A)(2) OF THE STATUTE /16/ AND, THEREFORE, IS OUTSIDE THE
 DUTY TO BARGAIN, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL IS INCONSISTENT WITH MANAGEMENT'S
 RIGHT TO LAYOFF EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE
 AND, THEREFORE, IS NOT WITHIN THE DUTY TO BARGAIN.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR REVIEW OF THE
 DISPUTED PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  A WAE EMPLOYEE, AS EXPLAINED BY THE UNION, IS A "TEMPORARY"
 OR "SEASONAL" EMPLOYEE WHO IS USED BY THE AGENCY PRIMARILY DURING THE
 TAX FILING SEASON AND MAY BE FURLOUGHED WITHOUT THE PROTECTION OF
 ADVERSE ACTION PROCEDURES.  WHILE, ON ITS FACE, THE PROPOSAL IS
 CONCERNED ONLY WITH THE FACTORS AND WEIGHTS THE AGENCY WILL USE TO
 EVALUATE THE PERFORMANCE OF SUCH EMPLOYEES, THE UNION GOES ON TO EXPLAIN
 THAT THE INTENDED PURPOSE OF THE PROPOSAL IS TO INSURE THE USE OF WHAT
 THE UNION VIEWS TO BE EQUITABLE FURLOUGH AND RECALL PROCEDURES.  MORE
 PARTICULARLY, THE INTENT IS TO ESTABLISH A RANKING METHOD OR PROCEDURE
 REQUIRING THE AGENCY, ONCE IT DECIDES TO FURLOUGH WAE EMPLOYEES, TO
 IDENTIFY WHICH SUCH EMPLOYEES BY ORDER OF RANK BASED ON THE CRITERIA SET
 FORTH IN THE PROPOSAL.  IN THIS REGARD, THE UNION STATES THAT "THE
 EMPLOYEE WITH THE LOWEST EVALUATION IS FIRST FURLOUGHED AND LAST
 RECALLED."
 
    IT IS CLEAR THAT UNDER THE STATUTE A PROPOSAL WHICH WOULD DIRECTLY
 INTERFERE WITH THE EXERCISE OF THE MANAGEMENT RIGHTS SPECIFIED IN
 SECTION 7106 IS BARRED FROM NEGOTIATIONS /17/ AND, THUS, WOULD NOT
 ESTABLISH A PROCEDURE WHICH WOULD BE NEGOTIABLE PURSUANT TO SECTION
 7106(B)(2) OF THE STATUTE.  (SEE NOTE 8, SUPRA.) THUS, IN AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1603 AND NAVY
 EXCHANGE, NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, 3 FLRA NO.
 1(1980), THE AUTHORITY HELD TO BE OUTSIDE THE DUTY TO BARGAIN A PROPOSAL
 WHICH WOULD HAVE REQUIRED THE AGENCY TO SEPARATE CERTAIN CATEGORIES OF
 EMPLOYEES BEFORE IT COULD REDUCE BELOW A SPECIFIED LEVEL THE HOURS OF
 WORK PER WEEK OF OTHER CATEGORIES OF EMPLOYEES.  THE AUTHORITY FOUND
 THAT THE PROPOSAL DIRECTLY INTERFERED WITH THE AGENCY'S DISCRETION TO
 DETERMINE WHETHER TO REMOVE (I.E., TO "SEPARATE") EMPLOYEES AND IF SO,
 WHICH EMPLOYEES TO REMOVE, IN VIOLATION OF SECTION 7106(A)(2)(A) OF THE
 STATUTE.
 
    SIMILARLY, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
 AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO,
 2 FLRA 604(1980), ENFORCED SUB NOM.  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D . . . (D.C.
 CIR. 1981), THE AUTHORITY HELD TO BE OUTSIDE THE DUTY TO BARGAIN
 PROPOSALS WHICH WOULD HAVE COMPELLED THE SELECTION OF PARTICULAR
 INDIVIDUALS FOR TEMPORARY ASSIGNMENT TO OTHER POSITIONS BECAUSE SUCH
 PROPOSALS DIRECTLY INTERFERED WITH THE RIGHT OF THE AGENCY TO ASSIGN
 EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE.
 
    LIKEWISE, IN THE PRESENT CASE, CONTRARY TO THE UNION'S EXPLANATION AS
 TO THE PURPOSE OF THE PROPOSAL, I.E., TO ESTABLISH FURLOUGH AND RECALL
 PROCEDURES, THE PROPOSAL DIRECTLY INTERFERES WITH MANAGEMENT'S RIGHT TO
 LAYOFF EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE. THAT IS,
 BASED ON THE UNION'S PREVIOUSLY QUOTED STATEMENT, THE PROPOSAL WOULD
 REQUIRE THE AGENCY TO "FURLOUGH" A PARTICULAR EMPLOYEE, I.E., "THE
 EMPLOYEE WITH THE LOWEST EVALUATION" UNDER THE PROPOSED RANKING SCHEME,
 ONCE IT HAD DECIDED TO "FURLOUGH" (I.E., IN THE WORDS OF THE STATUTE, TO
 "LAYOFF") AT ALL.  BY COMPELLING THE LAYOFF OF PARTICULAR EMPLOYEES, THE
 PROPOSAL DIRECTLY INTERFERES WITH THE AGENCY'S DISCRETION TO DETERMINE
 WHICH EMPLOYEES TO LAYOFF AND, THUS, DOES NOT SET FORTH A NEGOTIABLE
 PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE.  THEREFORE, THE
 PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN.
 
    A PROPOSAL EXPLICITLY DRAFTED TO CONFORM TO THE UNION'S STATED
 PURPOSE IN SEEKING TO NEGOTIATE THIS PROPOSAL, I.E., TO ESTABLISH
 EQUITABLE FURLOUGH AND RECALL PROCEDURES, WOULD BE WITHIN THE AGENCY'S
 DUTY TO BARGAIN.  SUCH A PROPOSAL WOULD NOT BE INCONSISTENT WITH SECTION
 7106(A)(2)(A) OF THE STATUTE IN THAT IT WOULD CONCERN PROCEDURES
 MANAGEMENT WILL FOLLOW IN EXERCISING ITS RIGHTS UNDER SECTION
 7106(A)(2)(A), WITHOUT IMPOSING A LIMITATION AS THE INSTANT PROPOSAL
 DOES, SUCH AS REQUIRING THE AGENCY TO "FURLOUGH" PARTICULAR EMPLOYEES,
 WHICH WOULD PREVENT THE EXERCISE OF THE RIGHT.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 25, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE UNION'S PETITION FOR REVIEW INCLUDED TWO ADDITIONAL PROPOSALS
 ENTITLED "ARTICLE 7,SECTION 6(A)" AND "ARTICLE 7, SECTION 5(F),"
 RESPECTIVELY.  HOWEVER, THE AGENCY, IN ITS STATEMENT OF POSITION,
 WITHDREW ITS ALLEGATION OF NONNEGOTIABILITY WITH RESPECT TO THE FORMER.
 AS TO THE LATTER, IT STATED, WITHOUT SUBSEQUENT CONTRADICTION BY THE
 UNION, THAT IT HAD NOT ALLEGED THE PROPOSAL WAS NONNEGOTIABLE.
 THEREFORE, THE DISPUTE BETWEEN THE PARTIES AS TO BOTH PROPOSALS HAS BEEN
 RENDERED MOOT AND THEY WILL NOT BE FURTHER CONSIDERED HEREIN.
 
    /2/ SECTION 7106(A)(1) OF THE STATUTE 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--
 
    (1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
 EMPLOYEES, AND INTERNAL
 
    SECURITY PRACTICES OF THE AGENCY(.)
 
    /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/ FPM CHAPTER 335, SUBCHAPTER 1, PROVIDES IN RELEVANT PART:
 
    1-4.  MERIT PROMOTION REQUIREMENTS
 
    REQUIREMENT 1
 
    EACH AGENCY MUST ESTABLISH PROCEDURES FOR PROMOTING EMPLOYEES WHICH
 ARE BASED ON MERIT AND
 
    ARE AVAILABLE IN WRITING TO CANDIDATES.  AGENCIES MUST LIST
 APPROPRIATE EXCEPTIONS, INCLUDING
 
    THOSE REQUIRED BY LAW OR REGULATION (SEE 1-5).  ACTIONS UNDER A
 PROMOTION PLAN-- WHETHER
 
    IDENTIFICATION, QUALIFICATION, EVALUATION, OR SELECTION OF
 CANDIDATES-- SHALL BE MADE WITHOUT
 
    REGARD TO POLITICAL, RELIGIOUS, OR LABOR ORGANIZATION AFFILIATION OR
 NONAFFILIATION, MARITAL
 
    STATUS, RACE, COLOR, SEX, NATIONAL ORIGIN, NONDISQUALIFYING PHYSICAL
 HANDICAP, OR AGE, AND
 
    SHALL BE BASED SOLELY ON JOB-RELATED CRITERIA.
 
   .          .          .          .
 
 
    REQUIREMENT 4
 
    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.
 
    /5/ IN DECIDING THAT THE SUBJECT PROPOSALS ARE WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THEIR MERITS.
 
    /6/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 331 AND VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, 2
 FLRA 428(1980).
 
    /7/ THE AUTHORITY, MOREOVER, DOES NOT CONSTRUE THESE PROPOSALS AS
 REQUIRING COMPETITIVE PROCEDURES TO BE EMPLOYED IN SITUATIONS WHERE
 NON-COMPETITIVE PROCEDURES FOR FILLING A VACANCY MAY BE MANDATED BY LAW
 OR APPROPRIATE REGULATION.
 
    /8/ SECTION 7106(B)(2) OF THE STATUTE 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(.)
 
    /9/ SECTION 7106(A)(2)(A) AND (B) 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--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED(.)
 
    /10/ SECTION 7103(A)(12) AND (14) PROVIDES
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   .          .          .          .
 
 
    (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTING SUCH
 
    EMPLOYEES . . . .
 
   .          .          .          .
 
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
 AND MATTERS, WHETHER
 
    ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
 CONDITIONS . . . .
 
    /11/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 2 AND DEPARTMENT OF THE ARMY, MILITARY DISTRICT OF WASHINGTON, 4 FLRA
 NO. 60(1980).
 
    /12/ ASSOCIATION OF CIVILIAN TECHNICIANS, DELAWARE CHAPTER AND
 NATIONAL GUARD BUREAU, DELAWARE NATIONAL GUARD, 3 FLRA NO. 9(1980) AT 3.
 
    /13/ THE AGENCY MAKES NUMEROUS OTHER ARGUMENTS WITH RESPECT TO ITS
 ABILITY TO CONSIDER AND SELECT QUALIFIED APPLICANTS OR APPLICANTS FROM
 SPECIFIED APPROPRIATE SOURCES, ALL OF WHICH ARE BASED ON ITS ASSUMPTION
 THAT THE PROPOSAL CONSTITUTES A RESTRICTION ON THE APPLICANTS MANAGEMENT
 COULD CONSIDER AND SELECT.  BASED UPON THE AUTHORITY'S FINDING THAT THE
 PROPOSAL MERELY SETS FORTH