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 4 FLRA No. 33
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 LOCAL 1884
 Union
 
 and
 
 DEFENSE MAPPING AGENCY,
 HYDROGRAPHIC TOPOGRAPHIC CENTER
 PROVIDENCE, RHODE ISLAND
 Agency
 
                                            Case No. O-NG-25
 
                 DECISION AND ORDER 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 (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                              UNION PROPOSAL
 
    ARTICLE XVI.  PROMOTION
 
    SECTION 1.
 
    THE ACTIVITY WILL ADHERE TO THE PRINCIPLES AND SPIRIT OF FPM 335,
 MERIT PROMOTION.
 
    THE ACTIVITY WILL UTILIZE TO THE FULLEST EXTENT THE SKILLS AND
 TALENTS OF ITS HIGHLY
 
    QUALIFIED EMPLOYEES BEFORE EXPANDING THE AREA OF CONSIDERATION
 THEREBY MAXIMIZING
 
    OPPORTUNITIES FOR PROMOTION.
 
    CONSIDERATION IN FILLING VACANT POSITIONS WILL BE GIVEN FIRST TO
 EMPLOYEES WITHIN THE
 
    PROVIDENCE OFFICE, THE MINIMUM AREA OF CONSIDERATION AND TO VOLUNTARY
 APPLICANTS WITHIN DMA.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN AS A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE
 STATUTE /1/ OR IS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
 7106(A)(2)(C) OF THE STATUTE, /2/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE SUBJECT PROPOSAL IS WITHIN THE AGENCY'S
 DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE AND DOES NOT
 VIOLATE SECTION 7106(A)(2)(C) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2424.10,AS AMENDED BY 45 FED.REG. 48,575(1980)), IT IS ORDERED THAT THE
 AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
 BARGAIN CONCERNING THE SUBJECT PROPOSAL.  /3/
 
    REASONS:  THE AGENCY TAKES THE POSITION THAT THE PORTION OF THE
 UNION'S PROPOSAL WHICH DEFINES THE MINIMUM AREA OF CONSIDERATION AS THE
 EMPLOYEES WITHIN THE PROVIDENCE OFFICE CONFLICTS, INTER ALIA, WITH
 SECTION 7106(A)(2)(C) OF THE STATUTE.  CONTRARY TO THE AGENCY'S
 POSITION, THE UNION PROPOSAL IN DISPUTE MERELY WOULD ESTABLISH A
 PROCEDURE REQUIRING THAT CONSIDERATION IN FILLING VACANT POSITIONS FIRST
 BE GIVEN TO LOCAL EMPLOYEES.  IT BEARS NO MATERIAL DIFFERENCE FROM THE
 UNION PROPOSAL WHICH WAS BEFORE THE AUTHORITY AND HELD TO BE WITHIN THE
 DUTY TO BARGAIN UNDER THE STATUTE IN THE VETERANS ADMINISTRATION
 HOSPITAL, PERRY POINT CASE.  /4/ IN THAT CASE, THE AUTHORITY DETERMINED
 THAT A UNION PROPOSAL WHICH WOULD REQUIRE THAT CONSIDERATION IN FILLING
 VACANT POSITIONS FIRST BE GIVEN TO BARGAINING UNIT EMPLOYEES WAS WITHIN
 THE DUTY TO BARGAIN UNDER THE STATUTE.
 
    THEREFORE, FOR THE REASONS FULLY SET FORTH IN THE VETERANS
 ADMINISTRATION HOSPITAL, PERRY POINT CASE, THE PROPOSAL HERE IN DISPUTE
 MUST ALSO BE HELD TO BE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 19, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED:
 
    JOHN W. MULHOLLAND, DIRECTOR
 
    LABOR MANAGEMENT SERVICES DEPARTMENT
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
 
    1325 MASSACHUSETTS AVE., N.W.,
 
    WASHINGTON, D.C. 20005
 
    DAVID GREEN, DIRECTOR
 
    LABOR-MANAGEMENT RELATIONS
 
    DEPARTMENT OF DEFENSE
 
    OASD (MRA & L)
 
    ROOM 3D264, THE PENTAGON
 
    WASHINGTON, D.C. 20301
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   *          *          *          *
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   *          *          *          *
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION(.)
 
    /2/ SECTION 7106(A)(2)(C) PROVIDES AS FOLLOWS:
 
    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(.)
 
    /3/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /4/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 331
 AND VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, 2 FLRA NO.
 59(1980).  SEE ALSO ASSOCIATION OF CIVILIAN TECHNICIANS, DELAWARE
 CHAPTER AND NATIONAL GUARD BUREAU, DELAWARE NATIONAL GUARD, 3 FLRA NO.
 9(1980);  NATIONAL COUNCIL OF CSA LOCALS, A.F.G.E., AFL-CIO AND THE
 COMMUNITY SERVICES ADMINISTRATION, 3 FLRA NO. 13(1980);  AND NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1451 AND NAVY EXCHANGE, NAVAL
 ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA, 3 FLRA NO. 60(1980). 
 
 
 

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