The National Council of CSA Locals, AFGE, AFL-CIO (Union) and The Community Services Administration (Activity) 

 3 FLRA No. 13
 
 THE NATIONAL COUNCIL OF CSA LOCALS,
 A.F.G.E., AFL-CIO
 (Union)
 
 and
 
 THE COMMUNITY SERVICES ADMINISTRATION
 (Activity)
 
                                            Case No. 0-NG-127
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
 TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (5.  U.S.C.SECTION 7101 ET SEQ.).
 
                              UNION PROPOSAL
 
    ARTICLE 14, SECTION 12, MERIT PROMOTION-- IF FIVE IN-HOUSE EMPLOYEES
 (INCLUDING SPECIAL
 
    RECRUITMENT APPLICANTS) WITHIN THE AREA OF CONSIDERATION ARE RATED
 QUALIFIED, THE AREA OF
 
    CONSIDERATION SHALL NOT BE EXTENDED.  IF LESS THAN FIVE SUCH
 EMPLOYEES ARE RATED QUALIFIED, A
 
    SELECTION MAY BE MADE OR THE AREA MAY BE EXTENDED, AT THE OPTION OF
 THE SELECTING OFFICIAL.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL CONCERNING THE FILLING
 OF VACANT POSITIONS IS A MATTER OUTSIDE THE DUTY TO BARGAIN ESTABLISHED
 BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, OR VIOLATES
 SECTION 7106(A)(2)(C) OF THE STATUTE, /1/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE UNION'S PROPOSAL IS NOT WITHIN THE AGENCY'S DUTY TO
 BARGAIN UNDER THE STATUTE AND VIOLATES SECTION 7106(A)(2)(C) THEREOF.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (45 FED.REG. 3482 ET SEQ.(1980)), THE AGENCY'S ALLEGATION
 THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS
 SUSTAINED.
 
    REASONS:  UNDER THE LANGUAGE OF SECTION 7106(A)(2)(C) OF THE STATUTE
 MANAGEMENT HAS THE RIGHT, INTER ALIA, "WITH RESPECT TO FILLING
 POSITIONS, TO MAKE SELECTIONS . .  . " THE AGENCY INTERPRETS THE INTENT
 OF THE PROPOSAL TO BE "THAT WHERE MANAGEMENT DOES NOT SELECT FROM THE
 REFERENCED CERTIFICATE, IT CAN NOT FILL THE POSITION." THE PROPOSAL ON
 ITS FACE IS SUBJECT TO THE INTERPRETATION SUGGESTED BY THE AGENCY AND,
 IN THE ABSENCE OF ANY INDICATION IN THE RECORD THAT THE UNION INTENDED A
 DIFFERENT MEANING, THE AGENCY'S INTERPRETATION IS ADOPTED FOR THE
 PURPOSE OF THIS DECISION, I.E., THAT THE PROPOSAL WOULD OPERATE TO
 PREVENT THE AGENCY FROM EXERCISING ITS RIGHT TO SELECT WITHIN THE
 MEANING OF SECTION 7106(A)(2)(C) OF THE STATUTE.  THUS, THE PROPOSAL
 WOULD REQUIRE MANAGEMENT TO SELECT ONE OF THE FIVE QUALIFIED APPLICANTS
 FROM WITHIN THE MINIMUM AREA OF CONSIDERATION, AND WOULD RESTRICT
 MANAGEMENT'S DISCRETION TO CONSIDER OTHER CANDIDATES ONLY TO A SITUATION
 WHERE THERE ARE LESS THAN FIVE QUALIFIED APPLICANTS WITHIN THE AREA OF
 CONSIDERATION.  ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE PROPOSAL
 IS NOT WITHIN THE DUTY TO BARGAIN MUST BE SUSTAINED.  /2/
 
    ISSUED, WASHINGTON, D.C., APRIL 28, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. GRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106(A)(2)(C) OF THE STATUTE (92 STAT. 1198) PROVIDES:
 
    SECTION 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
 APPOINTEES FROM--
 
    (I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION;  OR
 
    (II) ANY OTHER APPROPRIATE SOURCE . . .
 
    /2/ COMPARE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 331 AND VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND,
 CASE NO. O-NG-17, 2 FLRA NO. 59 (JANUARY 17, 1980), WHEREIN THE
 AUTHORITY CONCLUDED THAT A 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.  COMPARE ALSO, ASSOCIATION
 OF CIVILIAN TECHNICIANS, DELAWARE CHAPTER, CASE NO. O-NG-104, 2 FLRA NO.
  9(APRIL 14, 1980).