46:0145(15)NG - - NFFE, Forest Service Council and Agriculture, Forest Service, Region 6, Portland, OR Assoc. - - 1992 FLRAdec NG - - v46 p145



[ v46 p145 ]
46:0145(15)NG
The decision of the Authority follows:


46 FLRA No. 15

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

FOREST SERVICE COUNCIL

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE

REGION 6

PORTLAND, OREGON

(Agency)

0-NG-2012

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 20, 1992

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This case is before the Authority on 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 two proposals.(2)

The first sentence of Proposal 1 provides that when the Agency uses directed reassignments to accomplish a workforce reduction, the Agency will directly reassign from among qualified employees on the Employee Information Sharing System (EISS) list, a Forest Service-wide surplus employee list.(3) The second sentence of Proposal 1 provides that when the Agency decides to fill Region Six permanent vacant positions, the Agency will fill those positions either through a placement from the EISS list or through a directed reassignment of other qualified surplus employees. We find that Proposal 1 is negotiable as an appropriate arrangement for employees adversely affected by the exercise of management's right to lay off employees under section 7106(a)(2)(A) of the Statute.

Proposal 3 provides monetary incentives for employees to vacate surplus positions. We find that Proposal 3 is nonnegotiable under section 7117 of the Statute because it is inconsistent with 5 C.F.R. § 451.104(j), a Government-wide regulation.

II. Preliminary Matter

The Agency claims that Proposal 1 is inconsistent with the Statute and also argues that the proposal is inconsistent with Article 32.6 and Article 32.10 of the parties' Master Agreement.(4) Under section 7117 of the Statute and Part 2424 of the Authority's Rules and Regulations, we will consider a petition for review of a negotiability issue only where the parties disagree over whether a proposal is inconsistent with law, including the management rights provisions of section 7106 of the Statute, rule, or regulation. See National Federation of Federal Employees, Local 466 and U.S. Department of Agriculture, Forest Service, Regional Office, Atlanta, Georgia, 45 FLRA 1063, 1067 (1992. The Agency's claim that the proposal is inconsistent with the Statute meets the conditions for review of a negotiability dispute and, therefore, the Union is entitled to a decision from the Authority on the negotiability of that proposal. See National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Region 6, Portland, Oregon, 45 FLRA 242, 246 (1992) (Forest Service, Region 6).

The Agency's argument that the proposal is inconsistent with the Master Agreement is not a claim that the proposal is inconsistent with law, rule or regulation. Consequently, that claim is not properly before us under section 7117 of the Statute and Part 2424 of our Rules and Regulations. We note that the Agency's contractual claim does not preclude us from determining whether the proposal is inconsistent with the Statute. See id. The Agency's contractual claim, therefore, provides no basis for dismissing the petition for review. See id. at 247.

III. Proposal 1

C. When directed reassignments are used to accomplish a workforce reduction, Management will directly reassign from qualified employees on the EISS [list]. All Region Six permanent vacant positions shall be filled either through a placement from the EISS [list] or through directed reassignment of a qualified surplus employee.

A. Positions of the Parties

1. Agency

The Agency asserts that Proposal 1 conflicts with management's rights to assign employees to positions under section 7106(a)(2)(A) of the Statute and to make selections from any appropriate source under section 7106(a)(2)(C)(ii) of the Statute because it precludes management from directly reassigning a non-surplus employee to a vacant position within Region 6. In this regard, the Agency contends that the proposal does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Agency notes that, as explained by the Union, the first sentence of Proposal 1 would not be applicable if management directly reassigns an employee for a reason other than workforce reduction. The Agency states, however, that "the second sentence of the proposal does not contain that caveat; it requires that all vacant positions in [Region 6] shall be filled either through placement from the EISS [list] or through directed reassignment of a qualified surplus employee." Statement of Position at 11-12 (emphasis in original). The Agency contends that because the second sentence of the proposal, by its literal wording, allows no exceptions, Proposal 1 excessively interferes with management's rights.

2. Union

The Union states that the first sentence of the proposal would apply only when management takes action to reduce the workforce and there is an employee on the EISS list who is qualified, as determined by management, to perform the duties of a vacant position. According to the Union, the first sentence would not apply if management: (1) could not find a qualified employee on the EISS list; or (2) was "directly reassigning an employee for a reason other than workforce reduction (emergency, mission needs, convenience)." Petition, Statement of Meaning at 1.

The Union further states that the second sentence of Proposal 1, read together with Section 6 of Article 32 of the Master Agreement, provides that when management selects an employee to fill a vacant position, it must first consider and select an employee on the EISS list, unless no employee on the list is qualified or management has a legitimate job-related reason for not selecting a qualified employee on the list. According to the Union, "[i]f management needed a certain employee who possessed qualifications for a job that no one on the EISS [list] possessed, management would be free to reassign or select that employee for that job." Response at 2. The Union disputes the Agency's assertion that the second sentence of the proposal "'allows no exception.'" Id. at 3. The Union contends that the only time that management would be restricted in the exercise of its rights under section 7106 of the Statute is "when management wanted to reassign or select a non-surplus employee and had no job-related reason for the selection or reassignment." Id. The Union asserts that this restriction is a "minor interference" with management's rights and claims that, without the proposed restriction, management could "defeat the mechanism of the surplus employee article of the contract." Id. The Union contends that the proposal is an appropriate arrangement.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 1 is negotiable.

1. The Meaning of the Proposal

As in Forest Service, Region 6, the parties are in dispute as to the composition of the EISS list. The Union claims that the EISS list is "logically equivalent" to "'all surplus employees.'" Statement of Meaning attached to Petition for Review at 1. The Agency claims that only surplus employees who are willing to accept a reassignment outside the local commuting area and who request placement are placed on the EISS list. Because the EISS list is significant to a negotiability determination only insofar as it is a source from which management may fill vacant positions, the composition of the list is irrelevant for purposes of our decision.

The first sentence of Proposal 1 does not require management to use directed reassignments of surplus employees to reduce the workforce. Rather, by its terms, the first sentence requires management to reassign qualified surplus employees from the EISS list only when management decides to use directed reassignments to reduce the workforce. According to the Union, management would not be required to use the EISS list when making directed reassignments if there is no qualified employee on the list or if the reassignment is not for the purpose of workforce reduction, but for mission needs, emergency, or convenience. The Union's explanation is consistent with the wording of the first sentence and we will adopt that interpretation for purposes of this decision.

The second sentence requires that all vacant positions in Region 6 be filled either from the EISS list or by other qualified surplus employees. The Union asserts that the second sentence does not require management to fill positions and that it is intended to limit management's ability to fill vacant positions by directed reassignment of non-surplus employees to only those reassignments that are for job-related reasons. The Union contends that the second sentence must be interpreted by reference to Article 32, Section 6 of the Master Agreement. Article 32, Section 6 of the Master Agreement conditions the use of the EISS list on management's decision to fill vacant positions and provides that nonselection of employees on the EISS list must be for job-related reasons. We find no reason in the record to interpret the second sentence of the proposal in a manner that is inconsistent with Article 32, Section 6 of the Master Agreement. Therefore, we find that the Union's interpretation of the second sentence is consistent with the wording of the proposal and we will adopt it for purposes of this decision.

We note that certain aspects of Proposal 1 are confusing--for example, the apparent inconsistency between the limitation in the first sentence to the EISS list and the reference in the second sentence to both the EISS list and other qualified surplus employees and the resulting lack of clarity as to the intended operation of the proposal as a whole. However, it is clear that, as stated above, the proposal imposes limitations on management's ability to fill vacant positions with non-surplus employees. For purposes of this decision, we construe the two sentences of the proposal as requiring management, after it decides to fill a vacant position, to fill the position with a surplus employee instead of a non-surplus employee unless management determines that there are no qualified surplus employees for the vacant position or management has a job-related reason for not selecting a qualified surplus employee.

2. Direct Interference

Although, as noted above, certain aspects of Proposal 1 are confusing, it is clear that the proposal limits the sources from which management can reassign employees when filling vacant positions. Proposals that require management, when it decides to fill a vacant position, to fill that position from a particular source directly interfere with management's right, when filling a vacant position, to select from any appropriate source under section 7106(a)(2)(C)(ii) of the Statute. See American Federation of Government Employees Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1468 (1992) (Health Care Financing Administration); International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 357-58 (1988) (Army Engineer District, Nashville). Because Proposal 1 requires management, after it decides to fill a vacant position, to fill the position with a surplus employee instead of a non-surplus employee in certain situations, the proposal dictates the sources from which management will fill vacant positions. Consequently, consistent with Health Care Financing Administration and Army Engineer District, Nashville, we find that the first sentence of Proposal 1 directly interferes with management's right under section 7106(a)(2)(C)(ii) of the Statute.

Moreover, the proposal establishes a substantive criterion of job-relatedness governing the reassignment of non-surplus employees to fill vacant positions. Proposals that place restrictions and impose conditions on the exercise of management's right under section 7106(a)(2)(A) of the Statute to assign employees interfere with that right. For example, American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 210, 217-18 (1988).

Because the proposal imposes a substantive criterion governing the reassignment of non-surplus employees and restricts the sources from which management can fill vacant positions, we find that the proposal directly interferes with management's rights to assign employees, under section 7106(a)(2)(A), and, when filling positions, to select from appropriate sources under section 7106(a)(2)(C)(ii). See, for example, Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1415 (1991). Consequently, Proposal 1 is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

3. Appropriate Arrangement

In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 29-33 (1986) (Kansas Army National Guard), the Authority developed an analytical framework to determine whether a proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Under that framework, we determine whether the proposal is intended as an arrangement for employees who may be adversely affected by the exercise of management's rights. If we find that the proposal is intended as an arrangement, we determine whether that arrangement is appropriate or whether it excessively interferes with the exercise of management's rights. In determining whether a proposal excessively interferes with the exercise of a management right, we weigh the benefits conferred on employees by the proposal against the burden imposed on the exercise of management's rights.

Applying the Kansas Army National Guard framework, we find that Proposal 1 is intended as an arrangement for employees adversely affected by the exercise of management's right to lay off employees under section 7106(a)(2)(A) of the Statute. When management designates employees as "surplus" due to a lack of funding for their positions, those employees are subject to release from their employment pursuant to a reduction-in-force (RIF). The proposal is intended to mitigate the adverse effects on employees of being designated "surplus," and thus subject to a RIF, by requiring management, when it decides to fill vacant positions, to select the employees who will be reassigned from among qualified surplus employees.

In sum, the proposal benefits surplus employees by limiting the circumstances under which management will reassign non-surplus employees to vacant positions and by requiring the reassignment of qualified surplus employees in certain situations.

As to the burden imposed by the proposal on the exercise of management's rights, we found above that the proposal takes effect only after management has decided to use directed reassignments to fill vacant positions in certain situations. We also found that the proposal requires management to reassign only qualified surplus employees. Thus, under the proposal, management retains the discretion as to whether to use directed reassignments of surplus employees to fill vacant positions and would not be required to fill a vacant position through the directed reassignment of an unqualified surplus employee.

Moreover, although as noted above the intended operation of the proposal is somewhat confusing, it is clear that the most stringent limitation that the proposal would impose on management is that it would restrict to some degree management's ability to use non-surplus employees to fill vacant positions. Management would be permitted to fill vacant positions with non-surplus employees if there is no qualified surplus employee available or if filling a position with a non-surplus employee is necessary for job-related reasons. The Agency has not identified any interest, and none is apparent to us, that would be served by the directed reassignment of a non-surplus employee for reasons that are not job-related. See, for example, American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 41 FLRA 618, 624 (1992). We find, therefore, that the burden imposed on management's rights is minimal.

We find that the benefits to surplus employees, who would otherwise be released from employment in a RIF, of the limitations imposed by the proposal on management's ability to fill vacant positions and of the requirements for the reassignment of surplus employees to vacant positions greatly outweigh the minimal burden on the exercise of management's rights that would result from the proposal. Therefore, the proposal does not excessively interfere with management's rights to assign employees, under section 7106(a)(2)(A), and, when filling vacant positions, to select from any appropriate source, under section 7106(a)(2)(C)(ii) of the Statute. Consequently, Proposal 1 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See, for example, American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 255-58 (1990); American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1035-38 (1988), reversed as to other matters Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989).

Accordingly, Proposal 1 is negotiable.

IV. Proposal 3

E. As an incentive to vacate surplus positions, Management will offer cash awards as identified in FSH 6109.13, 33.2--3,--4 to employees who are willing to use the process expediently. Such awards will be: within 60 days, $10,000; within 90 days, $5,000; within 120 days, $2,500.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 3 mandates specified cash awards for employees who vacate surplus positions within specified time frames. However, according to the Agency, the Union has not explained what event activates the 60, 90, or 120-day time limits. The Agency assumes that the "clock starts ticking when the surplus employee's name first appears on the EISS [list], and stops ticking when he/she formally vacates that position either by accepting or being directly reassigned to another position within the FS [Forest Service], finding another job outside FS (either private industry or another Federal position), retiring, or quitting." Statement at 14. The Agency asserts that it may not be possible to find other positions within the Forest Service for all surplus employees.

The Agency claims that Proposal 3 is inconsistent with applicable laws, rules, and regulations and that no statutory authority exists under which the proposed "incentive cash awards" could be paid. Id. The Agency contends that, absent statutory authority to expend appropriated funds for that purpose, the Agency cannot authorize and issue the cash awards prescribed by the proposal.

The Agency argues that 5 C.F.R. Part 451, which contains Office of Personnel Management (OPM) regulations implementing chapter 45 of title 5 of the United States Code, does not authorize payment of funds for the proposed awards. According to the Agency, the purpose of the proposal does not fall within any of the categories of awards specified in OPM regulations. Moreover, the Agency asserts, even if the proposed awards could be paid, 5 C.F.R. § 451.104(j) provides that such awards shall not be mandatory. The Agency contends that, under the proposal, management would have no discretion as to payment of the award. Therefore, the Agency argues that the proposal is inconsistent with 5 C.F.R. §§ 451.103 and 451.104(j), which are Government-wide regulations under section 7117(c)(2) of the Statute.

Moreover, the Agency argues that Proposal 3 would be inconsistent with other laws and regulations in certain circumstances. In particular, the Agency argues that 5 U.S.C. § 4302 pertains to rewarding employees' performance and that the time in which an employee vacates a position is not a matter concerning the performance of the employee's official duties.

Finally, because the Union explained that the cash award would be payable to a surplus employee if the employee retired or quit, the Agency argues that the proposal would be a form of severance pay for such employees. According to the Agency, 5 U.S.C. § 5595(a)(2)(iv) specifically precludes awarding severance pay to an employee who is eligible to retire on an immediate annuity.

2. Union

The Union states that Proposal 3 establishes an incentive system to pay bonuses to surplus employees for vacating their positions. According to the Union, the proposal seeks to establish a monetary incentive for employees to help solve management's problem of having too many employees. The Union contends that 5 C.F.R. Part 451 is the regulatory basis for the proposal. The Union also asserts that the granting of incentive awards is discretionary under 5 C.F.R. Part 451 and, therefore, that the proposal is negotiable.

B. Analysis and Conclusions

We find that Proposal 3 is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with 5 C.F.R. § 451.104(j), a Government-wide regulation.

Proposal 3 mandates that management grant "awards" to employees who agree to vacate surplus positions within specified time periods. The Union claims that the awards provided in Proposal 3 are authorized under 5 C.F.R. Part 451, which implements chapter 45 of title 5 of the United States Code dealing with incentive awards. The Union cites no other statutory authorization for the proposed awards. The Agency contends that the provisions relied on by the Union do not authorize the type of award proposed by Proposal 3.

However, we do not need to decide whether those provisions authorize the proposed awards. Even assuming that the awards required by the proposal constitute the types of awards covered by those provisions, as claimed by the Union, the proposal is inconsistent with the regulatory requirements governing the granting of those awards. Specifically, Proposal 3 requires the Agency to pay the awards in the amounts specified to employees who agree to vacate surplus positions and, therefore, removes any discretion from the Agency as to whether to make the award or the amount of the award.

The Authority has found that 5 C.F.R. Part 451 constitutes a Government-wide regulation within the meaning of section 7117 of the Statute. National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 38 FLRA 1605, 1610-11 (1991). 5 C.F.R. § 451.104(j) requires that the decision to grant an incentive award under Part 451, including the amount of the award, be reviewed and approved by an official of the agency who is at a higher level than the official who made the initial decision. 5 C.F.R. § 451.104(j) is similar to 5 C.F.R. § 430.504(d), which replaced 5 C.F.R. § 430.503(c)(1). See 56 Fed. Reg. 20333 (May 3, 1991).

5 C.F.R. § 430.504(d), which deals with performance awards and which parallels 5 C.F.R. § 451.104(j), requires that performance awards made under 5 C.F.R. Part 430 be approved by an official of the agency who is at a higher level than the official who made the initial decision to make the award. Proposals that mandate performance awards are inconsistent with 5 C.F.R. § 430.504(d) because they prevent the agency from deciding to disapprove such awards. See National Association of Government Employees and U.S. Department of Defense, National Guard Bureau, Connecticut Army and Air National Guard, Hartford, Connecticut, 40 FLRA 33, 36-38 (1991).

We find no reason to conclude that the terms of 5 C.F.R. § 451.104(j), dealing with incentive awards, should be interpreted differently from the identical terms found in 5 C.F.R. § 430.504(d), dealing with performance awards. Consequently, we conclude that because the proposal mandates the granting of awards to employees who agree to vacate surplus positions, and thus precludes management from deciding whether to make the award and from deciding the amount of any such award, the proposal is inconsistent with 5 C.F.R. § 451.104(j), the only basis for such awards claimed by the Union.

The disbursement of appropriated funds must be authorized by statute. See, for example, National Association of Regional Councils v. Costle, 564 F.2d 583, 586 (D.C. Cir. 1977). See also Office of Personnel Management v. Richmond, 496 U.S. 414, 432 (1990). Thus, the use of appropriated funds in the form of incentive awards for employees must be authorized by statute. The Union claims that the awards provided in Proposal 3 are authorized under 5 C.F.R. Part 451, which implements chapter 45 of title 5 of the United States Code dealing with incentive awards. The Union provides no other statutory basis for the awards required by Proposal 3 and none is apparent to us. However, as noted above, we need not decide whether the awards provided in Proposal 3 are authorized by chapter 45 of title 5 of the United States Code because the proposal is inconsistent with the regulatory conditions governing the granting of awards under that statutory authorization. The parties bear the burden of creating a record on which the Authority can make a negotiability determination. A party failing to meet its obligation acts at its peril. See, for example, Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 820-21 (1991).

Because Proposal 3 is inconsistent with 5 C.F.R. § 451.104(j), we find that the proposal is nonnegotiable under section 7117(a)(1) of the Statute. Accordingly, we will not consider the Agency's other arguments concerning the nonnegotiability of the proposal.

V. Order

The Agency must, upon request or as otherwise agreed to by the parties, bargain on Proposal 1.(5) The petition for review as to Proposal 3 is dismissed.

Chairman McKee, Dissenting in part

I join in my colleagues' analysis and conclusions regarding Proposal 3. However, I would dismiss the Union's petition for review of Proposal 1.

Although it is clear that Proposal 1 requires the Agency, under certain conditions, to fill certain positions with certain "surplus" employees, it is not clear how the proposal would operate. For example, the Union states that the second sentence of the proposal would not require the Agency to assign an employee on the EISS list if no qualified employee was on the list or if it had a job-related reason for not selecting such employee. However, the Union does not explain, and it is not apparent to me, how the Agency could have a job-related reason for failing to select a qualified employee. Similarly, the second sentence of the proposal provides for the filling of positions through placement from the EISS list or directed reassignment of a qualified surplus employee. However, as the Union states that the EISS list is composed of qualified surplus employees, it is unclear whether, in fact, the second sentence actually provides the Agency with a choice in filling positions.

The parties bear the burden of creating a record on which negotiability determinations can be made. For example, National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). A party failing to satisfy its burden acts at its peril. Id. In my view, the burden of explaining a proposal's meaning and application is not unfair or onerous and, for obvious reasons, is one that can be satisfied only by the proposal's proponent: here, the Union.

In this case, the Union has not provided an understandable explanation of a proposal which, as my colleagues acknowledge, is confusing. Even if I were to agree that one reasonably could conclude that the proposal, on its face, directly interfered with the exercise of management's rights, I could not, in these circumstances, adequately assess the benefits to employees and burdens on management's rights necessary to make an appropriate arrangement determination. I note, in this regard, that such determinations are made by "weighing the competing practical needs of employees and managers." National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA at 31-32 (1986). Without a clear proposal, or a clear understanding of how an unclear proposal is to operate, I am unable to identify the practical needs or weigh them.

In this case, Proposal 1 is not clear and the Union fails to clearly explain it. Accordingly, I would dismiss the petition for review as to Proposal 1.

APPENDIX

ARTICLE 32

SURPLUS EMPLOYEE PLACEMENT

1. The identification of positions surplus to the needs of the Forest Service is a Management responsibility. This Article provides the procedures to be used in the placement of surplus employees. Management will provide the Union an opportunity to negotiate on the adverse impacts and implementation and will inform the Union of any changes. Negotiations will be in accordance with Article 11, Section 3.

. . . .

5. Surplus Employee List. All employees in surplus positions who are willing to accept positions outside of their local commuting area will be placed on a Service-wide Surplus Employee List (also known as the Employee Information Sharing System or EISS). Within 10 days of receipt of the employee data sheet by the servicing personnel office, this list shall be updated and shall be accessible through the servicing personnel office. A copy of this list, including updates, will be given to the Union upon request. They may designate occupational and geographical preferences. Management will furnish each surplus employee with (a) an employee data sheet describing the information needed from the employee, instructions on filling out the form, how the list works, and any condition under which their name may be removed from the system; and (b) an employee skill sheet describing their qualifications.

After the responses to the Employee Data Sheet and Skill Sheet are received, Management will discuss and modify the questionnaire with each employee to ensure clear understanding of the geographical preferences shown.

Surplus employees will remain on the Surplus Employee List until they have been placed in a funded position or other action has been taken.

6. Filling Vacant Positions: When Management decides to fill vacancies, qualified employees on the Surplus Employee List shall receive first consideration. Nonselection of employees from the Surplus Employee List shall be based on legitimate job-related reasons. Management shall endeavor to meet employees' geographical preferences in the order shown on the Employee Data Sheet and occupational qualifications as reflected on the Skills Sheet.

. . . .

10. Nothing in this Article affects Management's rights to reassign employees in accordance with 5 CFR-335.102.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Chairman McKee's dissenting opinion as to Proposal 1 is set forth after the majority opinion.

2. The Agency withdrew its allegation that Proposal 2 was nonnegotiable. Accordingly, we will not consider Proposal 2