National Federation of Federal Employees, Local 1451 (Union) and Navy Exchange, Naval Administrative Command, Orlando, Florida (Activity)

 3 FLRA No. 60
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1451
 (Union)
 
 and
 
 NAVY EXCHANGE, NAVAL ADMINISTRATIVE
 COMMAND, ORLANDO, FLORIDA
 (Activity)
 
                                            Case No. 0-NG-160
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
                              UNION PROPOSAL
 
    CONSIDERATION OF OUTSIDE APPLICANTS MAY BE UNDERTAKEN WHEN THERE ARE
 LESS THAN THREE MINIMALLY QUALIFIED INTERNAL APPLICANTS BEING CONSIDERED 
 FOR THE PROMOTIONAL VACANCY AND WHEN THE QUALIFICATION SCREENING COMMITTEE 
 DETERMINES THAT NO QUALIFIED CANDIDATES ARE AMONG THE APPLICANTS, EXTERNAL 
 RECRUITMENT WILL BE EFFECTED.  THIS SHALL NOT EXCLUDE CONCURRENT 
 CONSIDERATION OF VOLUNTEER APPLICANTS OR CONSIDERATION OF RE-PROMOTION OR 
 SPECIAL CONSIDERATION ELIGIBLES.  HOWEVER, VACANCY ANNOUNCEMENTS WILL BE 
 POSTED ONLY IN THE MINIMUM AREA OF CONSIDERATION.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROPOSAL WHICH CONCERNS THE FILLING OF
 PROMOTIONAL VACANCIES VIOLATES SECTION 7106(A)(2)(C) OF THE STATUTE, /1/
 AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL VIOLATES SECTION 7106(A)(2)(C) OF THE
 STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS, 45 F.R.  3513, THE AGENCY'S ALLEGATION THAT THE
 DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
 
    REASONS:  IN ITS STATEMENT OF POSITION FILED WITH THE AUTHORITY
 PURSUANT TO SECTION 7117(C)(3) OF THE STATUTE, THE AGENCY ARGUES, IN
 ESSENCE, THAT THE PROPOSAL WOULD NEGATE THE ACTIVITY'S RIGHT TO SELECT
 FROM AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION OR
 FROM ANY OTHER APPROPRIATE SOURCE WITHIN THE MEANING OF SECTION
 7106(A)(2)(C) BY LIMITING THE CONSIDERATION OF OUTSIDE APPLICANTS TO
 INSTANCES WHEN THERE ARE FEWER THAN THREE MINIMALLY QUALIFIED INTERNAL
 APPLICANTS BEING CONSIDERED FOR THE PROMOTIONAL VACANCY AND WHEN A
 QUALIFICATION SCREENING COMMITTEE DETERMINES THAT THERE ARE NO QUALIFIED
 CANDIDATES AMONG THE APPLICANTS.  THE AGENCY FURTHER ARGUES THAT THE
 PROPOSAL WOULD IN FACT REQUIRE THE PROMOTION OF AN INTERNAL UNIT
 EMPLOYEE IF THREE MINIMALLY QUALIFIED EMPLOYEES ARE AVAILABLE.  ON ITS
 FACE, THE DISPUTED PROPOSAL IS SUBJECT TO THE INTERPRETATION SUGGESTED
 BY THE AGENCY.  SINCE THERE IS NO INDICATION IN THE RECORD THAT THE
 UNION INTENDED THE PROPOSAL TO HAVE A DIFFERENT MEANING, THE AGENCY'S
 INTERPRETATION IS ADOPTED FOR THE PURPOSE OF THIS DECISION.
 
    AS NOTED ABOVE, SECTION 7106(A)(2)(C) RESERVES TO MANAGEMENT THE
 RIGHT, WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FROM AMONG
 PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION OR FROM ANY OTHER
 APPROPRIATE SOURCE.  THE PROPOSAL HERE INVOLVED, WHICH WOULD RESTRICT
 MANAGEMENT'S RIGHT TO CONSIDER PROPERLY RANKED AND CERTIFIED CANDIDATES
 FOR PROMOTION OR OUTSIDE APPLICANTS (WITH THE EXCEPTION OF VOLUNTEER
 APPLICANTS OR RE-PROMOTION OR SPECIAL CONSIDERATION ELIGIBLES) WOULD
 INFRINGE UPON THE EXERCISE OF THE RIGHT TO SELECT.  THUS, IN THIS CASE
 IS DISTINGUISHABLE FROM 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 (JAN.  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.  /2/
 
    FURTHERMORE, AS THE AGENCY NOTES, TO THE EXTENT THAT THE PROPOSAL
 WOULD REQUIRE THE SELECTION OF AN INTERNAL UNIT EMPLOYEE IF THREE
 MINIMALLY QUALIFIED EMPLOYEES ARE AVAILABLE, THE PROPOSAL WOULD CONFLICT
 WITH SECTION 7106(A)(2)(C) OF THE STATUTE.  /3/
 
    ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN
 THE DUTY TO BARGAIN IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., JUNE 11, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106(A)(2)(C) OF THE STATUTE (92 STAT. 1198) PROVIDES:
 
    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--
 
   .          .          .          .
 
 
    (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 . . .
 
    /2/ COMPARE ALSO ASSOCIATION OF CIVILIAN TECHNICIANS, DELAWARE
 CHAPTER AND NATIONAL GUARD BUREAU, DELAWARE NATIONAL GUARD, CASE NO.
 O-NG-104, 3 FLRA NO. 9 (APRIL 4, 1980).
 
    /3/ SEE THE NATIONAL COUNCIL OF CSA LOCALS, A.F.G.E., AFL-CIO AND THE
 COMMUNITY SERVICES ADMINISTRATION, CASE NO. O-NG-127, 3 FLRA NO. 13
 (APRIL 28, 1980), IN WHICH THE AUTHORITY FOUND NONNEGOTIABLE A PROPOSAL
 WHICH WOULD REQUIRE SELECTION FROM WITHIN A MINIMUM AREA OF
 CONSIDERATION AND WOULD PERMIT THE AGENCY TO CONSIDER OTHER CANDIDATES
 ONLY IF THE MINIMUM AREA OF CONSIDERATION DID NOT YIELD A CERTAIN
 SPECIFIED NUMBER OF QUALIFIED EMPLOYEES.