14:0243(45)NG - NTEU and Treasury, IRS -- 1984 FLRAdec NG



[ v14 p243 ]
14:0243(45)NG
The decision of the Authority follows:


 14 FLRA No. 45
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE
 Agency
 
                                            Case No. O-NG-421
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues
 concerning the negotiability of six provisions of two nationwide
 agreements covering the district, region, and national offices (NORD)
 and the service centers (Centers) which were disapproved by the Agency
 head /1/ pursuant to section 7114(c) of the Statute.  /2/
 
                                Provision 1
 
    Article 2, Section 1
 
    The provision in each agreement reads as follows:
 
          In the administration of all matters covered by this Agreement,
       the parties are governed by existing or future laws and
       Government-wide rules or regulations in effect upon the effective
       date of this Agreement.
 
                       Question Before the Authority
 
    The question is whether this provision is inconsistent with Federal
 law, as alleged by the Agency.
 
                                  Opinion
 
    Conclusion and Order:  Provision 1 is not inconsistent with Federal
 law and is within the duty to bargain.  Accordingly, pursuant to section
 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the
 Agency head shall rescind the disapproval of Provision 1, which was
 bargained on and agreed to by the parties at the nationwide level.  /3/
 
    Reasons:  Provision 1 provides that existing Federal laws,
 Government-wide rules or regulations, and laws enacted after the
 effective date of the negotiated agreement will prevail over terms of
 the agreement in the event of a conflict.  In essence then Provision 1
 establishes that, whenever provisions contained in the negotiated
 agreement conflict with Government-wide rules or regulations issued
 after the date the agreement became effective, the agreement provisions
 will prevail.  According to the Agency, the provision by providing that
 the terms of the negotiated agreement supersede the application of
 subsequently issued Government-wide rules or regulations and agency
 policies, rules and regulations, whenever there is a conflict, is
 inconsistent with sections 7116(a)(7) and 7117(a)(1) and (2) of the
 Statute.  The Agency also contends the provision is outside the duty to
 bargain under section 7117(a)(2) because it does not provide that Agency
 policies, rules and regulations in effect upon the effective date of the
 parties' agreement take precedence over conflicting provisions in the
 agreement.  /4/
 
    With respect to subsequently issued regulations, the Authority
 concludes that Provision 1 is to the same effect as the provisions
 before the Authority in National Treasury Employees Union and Department
 of the Treasury, U.S. Customs Service, 9 FLRA No. 138(1982), remanded as
 to other matters sub nom.  Department of the Treasury, U.S. Customs
 Service v. FLRA No. 82-2225 (D.C. Cir. Jan. 19, 1984), wherein the
 Authority concluded the disputed provisions were consistent with the
 language of the Statute and its legislative history and thus were within
 the duty to bargain.  In that case, based upon sections 7116(a)(7) and
 7117(a)(1) and (2) of the Statute, /5/ the Authority held that, once a
 collective bargaining agreement becomes effective, subsequently issued
 rules or regulations, with the exception of Government-wide rules or
 regulations issued under 5 U.S.C. 2302, cannot nullify the terms of such
 a collective bargaining agreement.
 
    As to the contentions concerning Agency regulations in existence on
 the effective date of the agreement, the Authority does not find support
 for the Agency's claim that the provision is inconsistent with section
 7117(a)(2) because it provides that the collective bargaining agreement
 would supersede existing Agency regulations in the event of a conflict.
 First, the provision itself does not purport to make Agency regulations
 subordinate to conflicting agreement provisions.  It simply does not
 deal with the matter of Agency regulations.  In any event, under section
 7117(a)(2) of the Statute and section 2424.11 of the Authority's Rules
 and Regulations, an agency has the burden of coming forward with
 affirmative support for assertions that its regulations bar negotiations
 on conflicting proposals because there is a "compelling need" for the
 regulations.  /6/ In the present case, the Agency head disapproved
 Provision 1 without even claiming a conflict exists between any Agency
 regulation and the agreement.  Thus, it has made no showing whatsoever
 to support a finding by the Authority that the provision is outside the
 duty to bargain under section 7117(a)(2) of the Statute.  /7/
 
    Accordingly, since Provision 1 herein, which is essentially to the
 same effect as the ones held to be negotiable in U.S. Customs Service,
 is, for the reasons set forth above and in that case, within the duty to
 bargain.
 
                                Provision 2
 
    Article 8, Section 1A
 
    These provisions read:
 
          (NORD) The Employer agrees that an employee who is detailed to
       a position of higher grade for thirty (30) calendar days or more
       will be temporarily promoted and receive the rate of pay for the
       position to which he/she is temporarily promoted.  The Employer
       further agrees to refrain from rotating assignments of employees
       to avoid compensation at the higher level.
 
          (Service Centers) The Employer agrees that an employee who is
       detailed to a position of higher grade for thirty (30) calendar
       days or more will be temporarily promoted and receive the rate of
       pay for the position to which he or she is temporarily promoted.
       The Employer further agrees to refrain from rotating assignments
       of employees to avoid compensation at the higher level.  However,
       this section shall not apply to assignment of groups of employees
       between functions in a Center to meet fluctuations in workload.
 
          (Only the underscored language is in dispute.)
 
                       Question Before the Authority
 
    The question is whether, as alleged by the Agency, Provision 2 is
 inconsistent with management's right to assign employees under section
 7106(a)(2)(A) of the Statute.
 
                                  Opinion
 
    Conclusion and Order:  Provision 2 is inconsistent with the right to
 assign employees under section 7106(a)(2)(A) and thus is outside the
 duty to bargain.  Accordingly, pursuant to section 2424.10 of the
 Authority's Rules and Regulations, IT IS ORDERED that the petition for
 review of this disputed provision be, and it hereby is, dismissed.
 
    Reasons:  The Union states that this provision is intended to prevent
 management from detailing employees to avoid paying higher compensation.
  /8/ In this regard, the Union argues that, since the provision would
 bar detailing for only that reason, management's right to assign
 employees under section 7106(a)(2)(A) would not be violated because
 management would retain the discretion to detail employees for any other
 reason.  The Union further argues that the provision is intended to be
 identical in effect to a proposal found negotiable in American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604(1980)
 (Proposal XV), enforced sub nom.  Department of Defense v. FLRA, 659
 F.2d 1104 (D.C. Cir. 1981), cert. denied sub nom.  AFGE v. FLRA, 455
 U.S. 945, 102 S.Ct. 1443(1982), which required temporary promotion of
 employees detailed to perform duties of higher graded positions.
 
    As to the latter argument, the provision in this case is clearly
 distinguishable from the proposal found to be within the duty to bargain
 in Wright-Patterson.  The proposal in that case simply required
 promotion after the agency exercised its right to assign.  The provision
 herein by its plain language would actually prevent management from
 rotating assignments.
 
    It is well established that under section 7106(a)(2)(A) of the
 Statute /9/ the right to assign an employee to a position includes the
 discretion to determine which employee will be assigned.  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. FLRA, 659 F.2d 1140 (D.C.
 Cir. 1981), cert. denied sub nom.  AFGE v. FLRA, 455 U.S. 945, 102 S.Ct.
 1443(1982).  Thus, a proposal which divests management of its discretion
 to assign employees is inconsistent with section 7106(a)(2)(A) of the
 Statute and therefore nonnegotiable.  American Federation of Government
 Employees, AFL-CIO, Local 3529 and Defense Contract Audit Agency, 3 FLRA
 301(1980).  In this connection, a proposal which would have required
 work assignments to be rotated weekly was held to be nonnegotiable
 because it would conflict with management's right to assign employees
 under section 7106(a)(2)(A).  Management would have been restricted in
 making new assignments, or in modifying, terminating, or continuing
 existing ones as it deemed necessary or desirable.  American Federation
 of Government Employees, AFL-CIO, Local 695 and Department of the
 Treasury, U.S. Mint, Denver, Colorado, 3 FLRA 43(1980).
 
    Based on the Union's interpretation of this provision, it would bar
 management's rotating assignments of employees for the purpose of
 avoiding the temporary promotion of such employees.  Contrary to the
 Union's argument, a provision which would substantively restrict
 management's exercise of its right to assign employees would directly
 interfere with that right and, thus, is outside the duty to bargain.
 See National Federation of Federal Employees, Local 1650 and U.S. Forest
 Service, Angeles National Forest, 12 FLRA No. 114(1983) (Union Proposal
 1).  Since the provision in the present case would substantively
 restrict management's right to rotate employee assignments, it would
 directly interfere with section 7106(a)(2)(A) of the Statute and is
 outside the duty to bargain.
 
                                Provision 3
 
    Article 13, Section 4B (NORD)
 
    Article 12, Section 4B (Center)
 
    The provision in each agreement reads:
 
          The Employer agrees that work will not be reassigned for the
       purpose of avoiding reclassification during a classification
       appeal.
 
                       Question Before the Authority
 
    The question is whether, as alleged by the Agency, Provision 3 is
 inconsistent with management's right to assign work under section
 7106(a)(2)(B) of the Statute.
 
                                  Opinion
 
    Conclusion and Order:  Provision 3 is not inconsistent with section
 7106(a)(2)(B) and is within the duty to bargain.  Accordingly, pursuant
 to section 2424.10 of the Authority's Rules and Regulations, IT IS
 ORDERED that the Agency head shall rescind the disapproval of Provision
 3, which was bargained on and agreed to by the parties at the nationwide
 level.  /10/
 
    Reasons:  The Union explains the intent of this provision as follows:
  "If an employee has filed a classification appeal pursuant to 5 C.F.R.
 511.603, we want the employer not to reassign work only during the
 appeal and only if its motive is to avoid a reclassification." /11/
 Based upon the Union's interpretation, which is consistent with the
 language of the provision, the provision would simply require that
 reassignments of work pertaining to employees and positions involved in
 classification appeals will be delayed until completion of the appeal if
 they are intended to negate the basis for the appeal.
 
    It is now well established that the Statute does not preclude
 negotiation of a proposed procedure merely because it would delay action
 involving the exercise of a management right.  Rather, section
 7106(b)(2) of the Statute /12/ authorizes an exclusive representative to
 negotiate fully on procedures except to the extent that such
 negotiations would prevent agency management from acting at all.  /13/
 Thus, contrary to the Agency's allegation that the provision would
 interfere with its right to assign work under section 7106(a)(2)(B) of
 the Statute, there is nothing in the record to indicate that a delay
 with respect to a reassignment of work pending the decision in a
 classification appeal would prevent the Agency from acting at all with
 respect to such right.  Therefore, Provision 3 is not inconsistent with
 section 7106(a)(2)(B) but sets forth a procedure which is within the
 duty to bargain under section 7106(b)(2) of the Statute.
 
                                Provision 4
 
    Article 21, Section 3 (Center) provides:
 
          A. The Employer agrees to consider requests for assignments to
       prime shift vacancies from employees assigned to second or third
       shifts, on the following basis:
 
          1.  Employees must be qualified for the vacant position;  and
 
          2.  Employees who have been assigned to the second or third
       shift or combination thereof for the longest period will be given
       first consideration.
 
          B.  The Employer agrees to grant requests for assignments to
       prime shift vacancies if an employee has served on the second or
       third shifts or a combination thereof for more than one (1)
       complete year provided that granting such requests shall be
       contingent on the conditions of (1) and (2) of (A) above.
 
          (Only Section 3B is in dispute.)
 
                       Question Before the Authority
 
    The question is whether, as alleged by the Agency, this provision is
 inconsistent with management's right under section 7106(a)(2)(A) to
 assign employees and with its right under section 7106(a)(2)(C) to make
 selections when filling positions.  /14/
 
                                  Opinion
 
    Conclusion and Order:  This provision is not inconsistent with
 section 7106(a)(2) of the Statute and is within the duty to bargain.
 /15/ Accordingly, pursuant to section 2424.10 of the Authority's Rules
 and Regulations, IT IS ORDERED that the Agency head shall rescind the
 disapproval of Provision 4, which was bargained on and agreed to by the
 parties at the nationwide level.  /16/
 
    Reasons:  Based on the record, Provision 4 concerns the assignment of
 employees from the second or third shift to the prime shift.  Such
 assignments to shifts do not involve different positions or different
 duties, but only involve employees' performing the duties of their
 positions during a different shift of work.  See American Federation of
 Government Employees, AFL-CIO and Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613(1980), enforced
 sub nom.  Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981),
 cert. denied sub nom.  AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443(1982).
  Thus, in American Federation of Government Employees, AFL-CIO, National
 Joint Council of Food Inspection Locals and Department of Agriculture,
 Food Safety and Quality Service, Washington, D.C., 9 FLRA No. 74(1982),
 a proposal that solely concerned which employee among those in the
 bargaining unit to whom management in its discretion had already
 assigned the work involved would be selected to perform such work in an
 overtime status when management determined that overtime was required
 was found to be negotiable.  Cf. American Federation of Government
 Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
 Force Base, Ohio, 5 FLRA No. 15(1981) (Criteria for selecting which
 employee will temporarily perform previously assigned duties at a
 different location are within the duty to bargain).  Therefore, contrary
 to the Agency, Provision 4 herein, which is concerned with the shifts
 established by management on which employees will perform the duties of
 their positions, is not outside the duty to bargain under section
 7106(a)(2)(A) of the Statute.
 
    Likewise, the Agency's contention that the provision is inconsistent
 with section 7106(a)(2)(C) of the Statute cannot be sustained.  Section
 7106(a)(2)(C) is concerned with filling positions.  Provision 4, as
 already stated, does not involve assignments to different positions.
 Hence, section 7106(a)(2)(C) is inapplicable to bar negotiations on this
 provision.  Moreover, should an employee's move to the prime shift under
 the provision result in management's filling a vacant position on the
 second or third shift, nothing in the provision would effect the manner
 in which management makes its selection.  Thus, the provision is not
 outside the duty to bargain under section 7106(a)(2)(C) of the Statute.
 
                                Provision 5
 
    Article 25, Section 2C (NORD) provides:
 
          1.  Any WAE employee within six (6) calendar months of full
       retirement eligibility (i.e., Office of Personnel Management
       requirements for age, length of service and one (1) full year
       service out of last two (2) years before separation) who is in an
       active duty status may request exemption in writing from the
       requirements of this Agreement.
 
          2.  Any such employee as described in 1 above will be granted
       exemption from competitive placement in a non-duty status for a
       period of no longer than six months from the date he/she would
       otherwise be furloughed and such employee will be retained in an
       active duty status to the extent the work is available until the
       date of reaching full eligibility.  (Only the underscored language
       is in dispute).
 
    Article 24, Section 4B (Service Centers) provides:
 
          A. Any WAE employee within six (6) calendar months of full
       retirement eligibility (i.e. Office of Personnel Management
       requirements for age, length of service and one full year service
       out of last two years before separation) who is in an active duty
       status may request exemption in writing from the requirements of
       this agreement.
 
          B.  Any such employee as described in A above will be granted
       exemption from competitive placement in a non-duty status for a
       period of no longer than six (6) calendar months from the date
       he/she would otherwise be furloughed and such employee will be
       retained in an active duty status until the date of reaching full
       eligibility.  (Only the underscored language is in dispute.)
 
                       Question Before the Authority
 
    The question is whether, as alleged by the Agency, this provision is
 inconsistent with management's right under section 7106(a)(2)(A) of the
 Statute to layoff employees.
 
                                  Opinion
 
    Conclusion and Order:  The provision is inconsistent with
 management's right to layoff employees under section 7106(a)(2)(A) of
 the Statute and, thus, is outside the duty to bargain.  Accordingly,
 pursuant to section 2424.10 of the Authority's Rules and Regulations, IT
 IS ORDERED that the petition for review of this disputed provision be,
 and it hereby is, dismissed.
 
    Reasons:  With respect to these provisions, the Agency states as
 follows:  /17/
 
          Both contract provisions establish the requirement that, where
       a WAE employee is within six months of full retirement
       eligibility, in an active duty status, and requests an exemption
       from certain furlough/recall provisions in writing, management
       will grant the employee exemption from normal procedures for
       placement in a non-duty status for a period up to six months and
       will further retain such employee in an active duty status until
       reaching full retirement eligibility.
 
    The Agency contends that these provisions would interfere with
 management's rights to determine which WAE employees to layoff or to
 retain in an active duty status under section 7106(a)(2)(A) of the
 Statute.  /18/ The Union argues that the parties have "merely agreed to
 a 'stay' (of no more than six months) of the decision to furlough an
 individual close to retirement." /19/ Hence, the provisions would only
 delay but would not prevent the exercise of the management right
 involved and are negotiable.  /20/
 
    In American Federation of Government Employees, AFL-CIO, Local 3805
 and Federal Home Loan Bank Board, Boston District Office, 5 FLRA No.
 94(1981), the Authority determined that a proposal which required that
 incumbent bank examiners remain assigned to their present duty stations
 did not merely delay the exercise of the agency's right to eliminate
 certain official duty stations but prevented the agency from eliminating
 those duty stations insofar as the incumbent bank examiners were
 concerned and, thus, the proposal was found to be outside the duty to
 bargain.  The "stay" of no more than six months involved herein would
 have an effect analogous to that of the delay proposed in Federal Home
 Loan Bank Board.  That is, the provisions in dispute herein would
 prevent the Agency from acting at all to layoff those covered WAE
 employees who request exemption from layoff and then retire within six
 months.
 
    As to the right to layoff employees, in National Treasury Employees
 Union and Internal Revenue Service, 7 FLRA No. 42(1981), the Authority
 found that a proposal which compelled the layoff of particular WAE
 employees directly interfered with the agency's discretion to determine
 which employees to layoff and was outside the duty to bargain under
 section 7106(a)(2)(A) of the Statute.  Further, the Authority has
 decided that a proposal which in effect preserved absolute employment
 security for bargaining unit employees directly interfered with the
 agency's right to "layoff" those employees and was outside the duty to
 bargain under section 7106(a)(2)(A) of the Statute.  American Federation
 of Government Employees, AFL-CIO, National Council of EEOC Locals and
 Equal Employment Opportunity Commission, 10 FLRA No. 1(1982) (Union
 Proposal 3).  Thus, in the present case, by preventing the Agency from
 laying off any WAE employee who is within six months of full retirement
 eligibility, the provisions interfere with the Agency's discretion to
 determine which employees to layoff, once the Agency has decided it is
 necessary to layoff any WAE employees.  Therefore, the Authority must
 find that these provisions are inconsistent with management's right to
 layoff employees under section 7106(a)(2)(A) of the Statute and are
 outside the duty to bargain.  /21/
 
                                Provision 6
 
    Article 29, Section 1A (NORD)
 
    Article 28, Section 1A (center)
 
    The provisions in each agreement read as follows:
 
          Reassignments will not be used in lieu of discipline.  When an
       involuntary reassignment is necessary due to a staffing imbalance,
       the employee at the affected post of duty with the least IRS
       length of service who meets the position requirements will be
       reassigned.  (Only the underscored language is in dispute.)
 
                       Question Before the Authority
 
    The question is whether, as alleged by the Agency, the provision is
 inconsistent with management's right to assign employees under section
 7106(a)(2)(A) of the Statute.
 
                                  Opinion
 
    Conclusion and Order:  This provision is not inconsistent with
 section 7106(a)(2)(A) of the Statute and is within the duty to bargain.
 Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency head shall rescind the
 disapproval of Provision 6, which was bargained on and agreed to by the
 parties at the nationwide level.  /22/
 
    Reasons:  This provision requires management to select employees by
 inverse seniority when it chooses to use involuntary reassignment to
 correct a staffing imbalance.  The Union states that under the provision
 management retains the discretion to limit the selection to qualified
 employees.
 
    Based on the plain language of this provision and Union statements in
 the record, this provision is substantively to the same effect as
 Proposal IV before the Authority in National Treasury Employees Union
 and Department of the Treasury, Internal Revenue Service, 6 FLRA No.
 97(1981).  The proposal in that case also involved involuntary
 reassignments in connection with a staffing imbalance and provided that,
 "If there are too few volunteers, the (qualified) employees with the
 least IRS Service Computation date shall be given the reassignment." The
 Authority found that the proposal was not inconsistent with management's
 rights to assign employees under section 7106(a)(2)(A) or to assign work
 under section 7106(a)(2)(B) of the Statute and was within the duty to
 bargain.  In this regard, the Authority found that the proposal did not
 inhibit management in determining that workload considerations required
 reassignments and that selections for reassignments under the proposal
 would be from among employees already chosen by management to perform
 duties substantially similar to those required in the new assignments.
 Therefore, for the reasons set forth in Internal Revenue Service,
 Provision 6 herein is within the duty to bargain.
 
    Issued, Washington, D.C., April 6, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Contrary to the Union's assertions, the agreement provisions were
 properly disapproved within the meaning of section 7114(c) by "the head
 of the agency" or his designee, in this case, the Assistant Secretary of
 Administration, Department of Treasury.  See 5 U.S.C. 101, 105;
 American Federation of Government Employees, AFL-CIO, Local 3656 and
 Federal Trade Commission, Boston Regional Office, Massachusetts, 4 FLRA
 No. 92(1980);  National Treasury Employees Union and Department of the
 Treasury, Internal Revenue Service, 13 FLRA No. 93(1983).
 
 
    /2/ The Agency's request to file a supplement to its statement of
 position is denied pursuant to section 2424.8 of the Authority's Rules
 and Regulations (5 CFR 2424.8) since the record provides sufficient
 information upon which the Authority can base its decision.  Therefore,
 the Authority has not considered such supplement in reaching its
 decision herein.
 
 
    /3/ In deciding that this provision is within the duty to bargain,
 the Authority makes no judgment as to its merits.
 
 
    /4/ Agency Statement of Position at 5.
 
 
    /5/ Sections 7116(a)(7) and 7117(a)(1) and (2) provide:
 
    Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
                                  * * * *
 
          (7) to enforce any rule or regulation (other than a rule or
       regulation implementing section 2302 of this title) which is in
       conflict with any applicable collective bargaining agreement if
       the agreement was in effect before the date the rule or regulation
       was prescribed(.)
 
                                    and
 
    Sec. 7117.  Duty to bargain in good faith;  compelling need;  duty to
 consult
 
          (a)(1) Subject to paragraph (2) of this subsection, the duty to
       bargain in good faith shall, to the extent not inconsistent with
       any Federal law or any Government-wide rule or regulation, extend
       to matters which are the subject of any rule or regulation only if
       the rule or regulation is not a Government-wide rule or
       regulation.
 
          (2) The duty to bargain in good faith shall, to the extent not
       inconsistent with Federal law or any Government-wide rule or
       regulation, extend to matters which are the subject of any agency
       rule or regulation referred to in paragraph (3) of this subsection
       only if the Authority has determined under subsection (b) of this
       section that no compelling need (as determined under regulations
       prescribed by the Authority) exists for the rule or regulation.
 
 
    /6/ See American Federation of Government Employees, AFL-CIO, Local
 1928 and Department of the Navy, Naval Air Development Center,
 Warminster, Pennsylvania, 2 FLRA 450(1980).
 
 
    /7/ See National Treasury Employees Union and Department of the
 Treasury, Internal Revenue Service, 13 FLRA No. 93(1983).
 
 
    /8/ Union Reply Brief at 12-14.
 
 
    /9/ Section 7106(a)(2)(A) provides in relevant 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 . . . assign . . . employees in the agency . . . (.)
 
 
    /10/ In deciding that this provision is within the duty to bargain,
 the Authority makes no judgment as to its merits.
 
 
    /11/ Union Reply Brief at 17.
 
 
    /12/ 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 (.)
 
 
    /13/ 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.
 FLRA 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom.  AFGE v.
 FLRA, 455 U.S. 945, 102 S.Ct. 1443(1982).
 
 
    /14/ Section 7106(a)(2) provides in relevant 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, direct, layoff, and retain employees in
       the agency . . .;
 
                                  * * * *
 
          (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(.)
 
 
    /15/ In deciding that this provision is within the duty to bargain,
 the Authority makes no judgment as to its merits.
 
 
    /