26:0650(80)NG - AFGE Local 32 and OPM -- 1987 FLRAdec NG
[ v26 p650 ]
The decision of the Authority follows:
26 FLRA No. 80 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32, AFL-CIO Union and OFFICE OF PERSONNEL MANAGEMENT Agency Case No. 0-NG-975 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of the following proposal: /1/ The list will then be forwarded to the selecting official who will give full consideration to all candidates and make a selection based on fairness and equity. (Only the underscored portion is in dispute.) II. Positions of the Parties According to the Agency the disputed portion of the proposal is outside the duty to bargain because it would limit management's rights under section 7106(a)(2)(A) and (B) of the Statute to hire, assign, direct, lay off and retain employees and to determine the personnel by which its operations shall be conducted; management's right under section 7106(a)(2)(C) of the Statute to make selections for appointments from (i) among properly ranked and certified candidates for promotion or (ii) any other appropriate source; and management's right under section 7106(b)(1) to determine the numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty. The Agency further contends that the proposal conflicts with section 7121(c)(4) of the Statute, which excludes from the coverage of any negotiated grievance procedure matters concerning, among other things, "appointments." III. Analysis and Conclusion Although the Agency objects to this proposal on a number of grounds it has provided no specific arguments supporting its claims that the proposal violates its rights under section 7106(a)(2)(A) and (B) to hire, assign, direct, lay off and retain employees in the agency and to determine the personnel by which agency operations are conducted. The Agency also has not provided any specific arguments supporting its claim that the proposal violates its right under section 7106(b)(1) to determine the numbers, types and grades of employees or positions assigned. Thus, since the Agency has failed to indicate in what manner this proposal violates these enumerated management rights, and no other basis for substantiating the Agency's claims is apparent, we reject these claims. The Agency's additional contentions that the proposal violates its right to select under section 7106(a)(2)(C) and that the proposal violates section 7121(c)(4) are based on its interpretation that inclusion of the disputed language would result in review by an arbitrator of the Agency's right to make selections and appointments. The Agency argues that the phrase, "based on fairness and equity," is vague and subject to widely differing interpretations. The Agency notes that similar language appears in 5 U.S.C. section 2301(b)(2) and is well defined in that context. The Agency claims that if the disputed language refers to that statute it is unnecessary and thus, its inclusion in this proposal suggests that something other than merit principles will also control the selection process. Statement of Position at 4. For the reasons that follow, we disagree with these contentions. The Authority has consistently held that general provisions requiring management to exercise its statutory rights under section 7106 in compliance with law are within the duty to bargain. See, for example, American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshalls Service Locals and Department of Justice, U.S. Marshalls Service, 11 FLRA 672, 677 (1983) (Proposal 4). As noted above, the disputed language in this proposal concerning "fairness and equity" is contained in 5 U.S.C. section 2301(b)(2), which sets forth the merit system principles that are to govern all applicants and employees for employment in the Federal work force. Specifically, section 2301(b)(2) provides as follows: All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights. (underscoring provided.) Contrary to the Agency's interpretation of the disputed portion of the proposal, we find that the proposal constitutes a general provision which merely requires management to exercise its statutory rights under section 7106 in compliance with law. Further, whether the disputed language is necessary from the Agency's point of view is not relevant to whether the proposal is within the statutory duty to bargain. We turn now to the Agency's contention that the proposal would result in review by an arbitrator of the Agency's decision to make selections and appointments. We note that it is well established that in disputed selection action cases where an arbitrator finds that the selection process did not conform to applicable requirements the arbitrator may order the selection action rerun or reconstructed as corrective action. See Local R-1-185, National Association of Government Employees and the Adjutant General of the State of Connecticut, 26 FLRA No. 36 (1987). However, the Authority has repeatedly indicated that the incumbent employee in these cases is entitled to be retained in the position pending corrective action unless it is specifically determined that the incumbent could not originally have been properly selected under law and regulation and the parties' collective bargaining agreement. See, for example, American Federation of Government Employees, Local 1546 and Sharpe Army Depot, Department of the Army, Lathrop, California, 16 FLRA 1122 (1984). There is nothing in the express language of this proposal or in the record in this case which indicates that an arbitrator in reviewing a selection action claimed to be unfair or inequitable would be empowered to act in any manner that is inconsistent with applicable law. Thus, the Agency retains its rights to make selections and appointments under this proposal. We therefore conclude that as the Agency has not sustained its contentions that this proposal violates sections 7106(a)(2)(C) and 7121(c)(4) of the Statute it is within the duty to bargain. IV. Order The Agency must upon request (or as otherwise agreed to by the parties) bargain concerning the proposal. /2/ Issued, Washington, D.C., April 27, 1987. /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member /s/ Jean McKee Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) A second proposal was withdrawn by the Union and will not be considered further. (2) In deciding that the proposal is within the duty to bargain, we make no judgment as to its merits.