26:0650(80)NG - AFGE Local 32 and OPM -- 1987 FLRAdec NG

 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.