Department of Defense Dependents Schools, Europe (Activity) and Overseas Education Association (Union)

 4 FLRA No. 56
 
 DEPARTMENT OF DEFENSE
 DEPENDENTS SCHOOLS, EUROPE
 Activity
 
 and
 
 OVERSEAS EDUCATION ASSOCIATION
 Union
 
                                            Case No. O-AR-29
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR DANIEL E. MATTHEWS FILED BY THE AGENCY UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THIS DISPUTE INVOLVED THE
 ACTIVITY'S RETROACTIVE CORRECTION OF THE GRIEVANT'S INITIAL APPOINTMENT
 AS A LIBRARIAN.  IN 1977 THE ACTIVITY NOTIFIED THE GRIEVANT THAT AN
 ERROR HAD BEEN MADE IN HER INITIAL APPOINTMENT IN 1969 WHEN SHE HAD BEEN
 APPOINTED AT STEP 3 INSTEAD OF STEP 1 OF CLASS I.  IT WAS EXPLAINED THAT
 THE ERROR OCCURRED WHEN SHE WAS IMPROPERLY CREDITED FOR HER PRIOR
 EXPERIENCE AS A LIBRARIAN IN A PUBLIC LIBRARY.  THE GRIEVANT WAS ADVISED
 SUCH EXPERIENCE WAS NOT EXPERIENCE THAT WAS CREDITABLE FOR STEP PURPOSES
 AND THAT ACCORDINGLY HER INITIAL APPOINTMENT HAD BEEN RETROACTIVELY
 CORRECTED TO STEP 1.  THE GRIEVANT FILED A GRIEVANCE THAT WAS ULTIMATELY
 SUBMITTED TO ARBITRATION ON THE STIPULATED ISSUE OF WHETHER MANAGEMENT'S
 ACTION IN RETROACTIVELY READJUSTING THE GRIEVANT'S SALARY DOWNWARD WAS
 TAKEN IN ACCORDANCE WITH AGENCY REGULATIONS.
 
    IN HIS AWARD THE ARBITRATOR FIRST ACKNOWLEDGED THAT MANAGEMENT
 CLEARLY HAD THE AUTHORITY TO RETROACTIVELY CORRECT AN ERRONEOUS
 PERSONNEL ACTION.  NEVERTHELESS, THE ARBITRATOR CONCLUDED THAT FOR THE
 CORRECTION TO BE PROPER, IT MUST BE FOUND THAT THE ORIGINAL PERSONNEL
 ACTION VIOLATED CONTROLLING REGULATIONS THAT WERE EFFECTIVE AT THE TIME
 OF THE GRIEVANT'S APPOINTMENT IN 1969.  THE ARBITRATOR CONSIDERED THE
 DISPOSITIVE QUESTION TO BE WHETHER REGULATIONS IN EFFECT IN 1969
 PRECLUDED THE CREDITING OF EXPERIENCE IN A PUBLIC LIBRARY FOR STEP
 PURPOSES IN THE APPOINTMENT OF A LIBRARIAN.  ALTHOUGH THE ACTIVITY
 MAINTAINED THAT THE REGULATIONS APPLICABLE TO THE GRIEVANT'S APPOINTMENT
 DID PRECLUDE THE CREDITING OF PUBLIC LIBRARY EXPERIENCE, THE ARBITRATOR
 FOUND THE REGULATIONS TO BE IMPRECISE AND SUBJECT TO CONFLICTING
 INTERPRETATIONS AND FOUND NO RECORD OF ANY SUCH CONTEMPORANEOUS
 INTERPRETATION OF THE REGULATIONS.  THE ARBITRATOR FOUND THAT IT WAS NOT
 UNTIL 1975, WHEN THE AGENCY WAS REVIEWING PERSONNEL RECORDS TO COMPLY
 WITH A FEDERAL COURT JUDGMENT, THAT A PRECISE INTERPRETATION OF
 REGULATIONS APPLICABLE IN 1969 WAS PROVIDED.  HE ACKNOWLEDGED THAT THIS
 INTERPRETATION IN 1975 REQUIRED A LIBRARIAN APPLICANT TO HAVE TWO SCHOOL
 YEARS OF PROFESSIONAL EXPERIENCE IN AN EDUCATIONAL INSTITUTION.
 HOWEVER, HE NOTED THAT AT THE SAME TIME MANAGEMENT BROADLY AND VARIOUSLY
 INTERPRETED IN 1975 THE TERM "YEARS OF TEACHING EXPERIENCE" FROM THE
 FEDERAL COURT JUDGMENT THAT LED TO THE REVIEW OF THE GRIEVANT'S INITIAL
 APPOINTMENT.  IN THIS RESPECT HE OBSERVED THAT SCHOOL NURSES WERE
 CREDITED WITH "TEACHING EXPERIENCE" FOR NURSING EXPERIENCE IN A
 CONTROLLED SUPERVISED NURSING ENVIRONMENT AND THAT VOCATIONAL TEACHERS
 WERE CREDITED WITH "TEACHING EXPERIENCE" FOR JOURNEYMAN EXPERIENCE IN
 THE TRADE BEING TAUGHT.
 
    IN VIEW OF THESE CIRCUMSTANCES, THE ARBITRATOR RULED THE ACTIVITY'S
 CORRECTION COULD ONLY BE SUPPORTED IF THE APPOINTMENT ERROR WAS CLEAR
 AND WAS IN VIOLATION OF THE PLAIN WORDS OF LAW OR REGULATION.
 OTHERWISE, HE EXPLAINED, A DECISION PENALIZING AN EMPLOYEE EIGHT YEARS
 AFTER THE FACT BASED ON AN INTERPRETATION FIRST PROVIDED SIX YEARS AFTER
 THE ALLEGED ERRONEOUS PERSONNEL ACTION COULD NOT MEET ANY REASONABLE
 STANDARD OF FAIRNESS.  IN THIS RESPECT THE ARBITRATOR FOUND NO EVIDENCE
 TO SHOW THAT MANAGEMENT HAD ISSUED CLARIFYING INSTRUCTIONS OF APPLICABLE
 LAW OR REGULATION IN 1969 OR PREVIOUSLY;  HE FOUND NO EVIDENCE TO SHOW
 THAT THE INTERPRETATION ON WHICH THE ACTIVITY RELIED WAS CONSISTENTLY
 APPLIED IN 1969 OR IN ANY YEAR PRIOR TO 1975;  AND HE FOUND NO EVIDENCE
 THAT THIS INTERPRETATION (THAT CREDITABLE LIBRARIAN EXPERIENCE MUST HAVE
 BEEN GAINED IN AN EDUCATIONAL INSTITUTION) WAS NOT MADE FOR THE FIRST
 TIME IN 1975.  FOR THESE REASONS THE ARBITRATOR HELD THAT THE EVIDENCE
 DID NOT CLEARLY SHOW THAT THE APPOINTMENT OF THE GRIEVANT AT STEP 3
 VIOLATED REGULATIONS IN 1969.  ACCORDINGLY, THE ARBITRATOR MADE THE
 FOLLOWING AWARD:
 
    I FIND THAT THE (ACTIVITY'S) ACTION IN READJUSTING THE GRIEVANT'S
 SALARY DOWNWARD TWO STEPS
 
    IN GRADE, EFFECTIVE RETROACTIVELY, WAS NOT TAKEN IN ACCORDANCE WITH
 AGENCY REGULATIONS AND THE
 
    GRIEVANCE IS SUSTAINED
 
    AND
 
    I DIRECT THAT THE DOWNGRADING BE CANCELLED, THAT THE GRIEVANT BE
 RESTORED TO THE
 
    STEPS-IN-GRADE THAT SHE WOULD HAVE ATTAINED DURING HER EMPLOYMENT,
 BUT FOR THE DOWNGRADING,
 
    AND THAT SHE RECEIVE ALL SALARY PAYMENTS AND ANY OTHER CORRESPONDING
 BENEFITS TO WHICH SHE
 
    WOULD HAVE BEEN ENTITLED.
 
    THE AGENCY HAS FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 CFR PART 2411(1978),
 AS AMENDED BY SECTION 2400.5 OF THE AUTHORITY'S TRANSITION RULES, 5 CFR
 2400.5(1980), WHICH REMAIN OPERATIVE WITH RESPECT TO THIS CASE TO THE
 EXTENT THAT THEY ARE CONSISTENT WITH THE PROVISIONS OF SECTION 7122(A)
 OF THE STATUTE (5 U.S.C. 7122(A)).  THE AGENCY REQUESTS THAT THE
 AUTHORITY ACCEPT ITS PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD ON
 THE BASIS OF ITS FOUR EXCEPTIONS THAT ARE DISCUSSED BELOW.  THE UNION
 DID NOT FILE AN OPPOSITION.
 
    PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES AND SECTION 7122(A)
 OF THE STATUTE, THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WHERE IT APPEARS, BASED ON THE FACTS AND
 CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD IS DEFICIENT
 BECAUSE IT IS CONTRARY TO LAW, REGULATION, OR THE ORDER, OR ON OTHER
 GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT THE
 AWARD IS ARBITRARY AND CAPRICIOUS.  IN SUPPORT OF THIS EXCEPTION, THE
 AGENCY PRINCIPALLY ASSERTS THAT THE AWARD IS ARBITRARY AND CAPRICIOUS
 BECAUSE THE ARBITRATOR PLACED AN UNDUE AND IMPROPER BURDEN OF PROOF ON
 THE ACTIVITY TO SHOW THAT IT DID NOT ACCEPT PUBLIC LIBRARY EXPERIENCE AS
 CREDITABLE FOR STEP PURPOSES IN 1969.
 
    PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES AND SECTION 7122(A)
 OF THE STATUTE, THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
 ARBITRATION AWARD WHERE IT APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES
 DESCRIBED IN THE PETITION, THAT AN EXCEPTION PRESENTS A GROUND SIMILAR
 TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.  FEDERAL COURTS IN PRIVATE SPECTOR LABOR-MANAGEMENT
 RELATIONS CASES HAVE CONSISTENTLY RULED THAT UNLESS A SPECIFIC STANDARD
 OF PROOF IS EXPRESSLY PROVIDED, THE ARBITRATOR MAY ESTABLISH WHATEVER
 STANDARD OF PROOF THAT THE ARBITRATOR CONSIDERS APPROPRIATE AND THE
 ARBITRATOR'S AWARD IS NOT SUBJECT TO REVIEW ON THAT BASIS.  E.G.,
 AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, DISTRICT
 LOCAL NO. 540 V. NEUHOFF BROS. PACKERS, INC. 481 F.2D 817 (5TH CIR.
 1973);  GENERAL DRIVERS, HELPERS AND TRUCK TERMINAL EMPLOYEES, LOCAL NO.
 120 V. SEARS, ROEBUCK & CO., 535 F.2D 1072 (8TH CIR. 1976).  THIS
 PRINCIPLE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR CASES IS LIKEWISE
 APPLICABLE TO AUTHORITY REVIEW OF ARBITRATION AWARDS IN THE FEDERAL
 SECTOR.  /1/ IN THIS CASE THE AGENCY HAS NOT ASSERTED NOR DOES IT APPEAR
 THAT A SPECIFIC STANDARD OF PROOF WAS EXPRESSLY PROVIDED.  THEREFORE,
 THE ARBITRATOR WAS FREE TO ESTABLISH WHATEVER STANDARD OF PROOF THAT HE
 CONSIDERED APPROPRIATE.  ACCORDINGLY, THE AGENCY'S EXCEPTION PROVIDES NO
 BASIS FOR ACCEPTANCE OF ITS PETITION FOR REVIEW UNDER SECTION 2411.32 OF
 THE AMENDED RULES.
 
    IN ITS SECOND EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT THE
 AWARD IS CONTRARY TO NONDISCRETIONARY ADMINISTRATIVE POLICIES AND
 REGULATIONS.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY ESSENTIALLY
 ARGUES THAT ALTHOUGH THE ARBITRATOR RULED THAT THE ACTIVITY'S ACTION
 COULD ONLY BE SUPPORTED IF THE GRIEVANT'S APPOINTMENT AT STEP 3 WAS IN
 CLEAR VIOLATION OF THE PLAIN WORDS OF REGULATIONS, HE THEN IGNORED THE
 PLAIN WORDS OF REGULATIONS APPLICABLE IN 1969.  IN THIS RESPECT THE
 AGENCY CITES THE REQUIREMENT OF DEPARTMENT OF THE ARMY CIVILIAN
 PERSONNEL CIRCULAR 18 THAT FOR APPOINTMENT TO STEP 3, A LIBRARIAN MUST
 HAVE "(T)WO SCHOOL YEARS OF EXPERIENCE AS A TEACHER AND/OR LIBRARIAN."
 THE AGENCY ALSO CITES THE PROVISION OF THE ARMY AIR FORCE WAGE BOARD
 LETTER OF 1966 THAT "(E)ACH NEW APPOINTMENT OF A TEACHER TO ANY CLASS
 WHO MEETS MINIMUM QUALIFICATION REQUIREMENTS AND WHO HAS TWO OR MORE
 YEARS OF TEACHING EXPERIENCE WILL BE APPOINTED TO STEP 3 . . . . " BASED
 ON THIS REGULATORY LANGUAGE OF "SCHOOL YEARS OF EXPERIENCE" AND
 "TEACHING EXPERIENCE," THE AGENCY ARGUES THAT THE ARBITRATOR COULD NOT
 CONCLUDE THAT A PUBLIC LIBRARY WAS A SCHOOL OR THAT A LIBRARIAN IN A
 PUBLIC LIBRARY WAS A TEACHER.  THUS, THE AGENCY MAINTAINS THAT THE AWARD
 IS CONTRARY TO REGULATIONS IN EFFECT IN 1969 AND POLICY PUBLISHED IN
 1975 THAT CLEARLY RESTATED THE 1969 REGULATORY REQUIREMENTS PRECLUDING
 THE CREDITING OF PUBLIC LIBRARY EXPERIENCE FOR STEP PURPOSES.
 
    PURSUANT TO SECTION 7122(A)(1) OF THE STATUTE, THE AUTHORITY WILL
 GRANT A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD WHERE IT APPEARS,
 BASED ON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
 AWARD IS DEFICIENT "BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR
 REGULATION." WITHOUT DECIDING WHETHER THE REGULATIONS SET FORTH BY THE
 AGENCY CONSTITUTE A "RULE, OR REGULATION" WITHIN THE MEANING OF SECTION
 7122(A)(1) OF THE STATUTE, THE AUTHORITY FINDS THAT THE AGENCY HAS
 FAILED TO DESCRIBE FACTS AND CIRCUMSTANCES TO SUPPORT ITS CONTENTION
 THAT THE AWARD IS CONTRARY TO THE CITED REGULATIONS.  SPECIFICALLY, THE
 AGENCY HAS FAILED TO DEMONSTRATE THAT THE ARBITRATOR'S AWARD, FINDING
 THE ACTIVITY'S ACTION WAS NOT TAKEN IN ACCORDANCE WITH REGULATIONS, IS
 ITSELF CONTRARY TO THOSE REGULATIONS.  IN REACHING HIS AWARD, THE
 ARBITRATOR OBSERVED THAT THE ACTIVITY FAILED TO PROVIDE ANY
 CONTEMPORANEOUS INTERPRETATION OF APPLICABLE REGULATIONS THAT CLEARLY
 PRECLUDED THE CREDITING OF THE GRIEVANT'S PRIOR EXPERIENCE FOR STEP
 PURPOSES IN 1969 WHEN SHE WAS APPOINTED.  THE AGENCY HERE FAILS TO
 PROVIDE ANY CONTEMPORANEOUS INTERPRETATION OF THOSE 1969 REGULATIONS
 THAT DEMONSTRATES IN WHAT MANNER THIS AWARD IS CONTRARY TO SUCH
 REGULATIONS.  RATHER, THE AGENCY APPEARS TO BE ATTEMPTING TO RELITIGATE
 THE MERITS OF THE GRIEVANCE BEFORE THE AUTHORITY.  THIS NEITHER SUPPORTS
 ITS EXCEPTION THAT THE AWARD IS CONTRARY TO REGULATION NOR PROVIDES A
 BASIS ON WHICH THE AUTHORITY WILL REVIEW THE ARBITRATOR'S AWARD.  /2/ IN
 THIS RESPECT THE AGENCY ARGUES BEFORE THE AUTHORITY THAT THE REGULATIONS
 USED WORDS OF "PLAIN MEANING" THAT SOMEHOW JUSTIFIED THE ACTION TAKEN BY
 THE ACTIVITY AND THAT SOMEHOW WARRANTS THE ACCEPTANCE BY THE AUTHORITY
 OF THE AGENCY'S PETITION ON THE GROUND THAT THE AWARD IS CONTRARY TO THE
 REGULATIONS IN WHICH THOSE WORDS APPEAR.  HOWEVER, THE ACTIVITY MADE
 PRECISELY THE SAME ARGUMENTS TO THE ARBITRATOR WHO REJECTED THEM ON THE
 BASIS OF THE EVIDENCE PRESENTED TO HIM.  THE ARBITRATOR RECOGNIZED THAT
 THE REGULATIONS WERE EXPRESSED IN TERMS OF THE VAST MAJORITY OF AGENCY
 EMPLOYEES WHO WERE TEACHERS, THUS ACCOUNTING FOR THE USE OF THE TERMS
 "TEACHING" AND "SCHOOL YEARS." WITHOUT ANY CONTEMPORANEOUS
 INTERPRETATION OF THESE REGULATIONS, THE ARBITRATOR RECOGNIZED THAT THE
 MEANING OF THESE REGULATIONS WAS NOT "PLAIN" BUT IMPRECISE AND THAT THIS
 REQUIRED FLEXIBILITY.  HE NOTED THAT EVEN AFTER 1975 WHEN AUTHORITATIVE
 INTERPRETATIONS OF APPLICABLE REGULATIONS HAD BEEN PROVIDED, THE
 ACTIVITY WAS NEVERTHELESS EXERCISING CONSIDERABLE FLEXIBILITY AS TO
 OTHER CATEGORIES OF EMPLOYEES BY BROADLY INTERPRETING AND APPLYING THE
 REQUIREMENT OF "YEARS OF TEACHING EXPERIENCE." THUS, IN RENDERING HIS
 AWARD, THE ARBITRATOR EMPHASIZED THE ACTIVITY CREDITED SCHOOL NURSES FOR
 "TEACHING EXPERIENCE" FOR ANY NURSING EXPERIENCE IN A CONTROLLED
 SUPERVISED NURSING ENVIRONMENT.  HE EMPHASIZED THE ACTIVITY CREDITED
 VOCATIONAL TEACHERS FOR "TEACHING EXPERIENCE" FOR ANY JOURNEYMAN
 EXPERIENCE IN THE TRADE BEING TAUGHT.  FOR THESE REASONS, THE
 ARBITRATOR'S AWARD WAS THAT THE ACTIVITY'S ACTION AGAINST THE GRIEVANT
 WAS NOT TAKEN IN ACCORDANCE WITH REGULATIONS.  IN THESE CIRCUMSTANCES,
 THE AGENCY HAS FAILED TO DEMONSTRATE THAT REGULATIONS APPLICABLE IN 1969
 PRECLUDE THE AWARD MADE BY THE ARBITRATOR.  THEREFORE, THIS EXCEPTION
 PROVIDES NO BASIS FOR ACCEPTANCE OF THE AGENCY'S PETITION FOR REVIEW
 UNDER SECTION 2411.32 OF THE AMENDED RULES.
 
    IN ITS THIRD EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT THE
 AWARD IS CONTRARY TO SECTION 12(B)(2) OF EXECUTIVE ORDER 11491, AS
 AMENDED, AND SECTION 7106(A)(2)(A) OF THE STATUTE (5 U.S.C.
 7106(A)(2)(A)).  /3/ IN SUPPORT OF (PAGE 6 MISSING)
 
    ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S
 AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET
 FORTH IN SECTION 2411.32 OF THE AMENDED RULES OF PROCEDURE.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 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 OF THE FEDERAL LABOR RELATIONS AUTHORITY IN
 THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE PARTIES LISTED:
 
    MR. PAUL WOLFE
 
    DEPARTMENT OF DEFENSE
 
    OFFICE OF DEPENDENTS SCHOOLS
 
    2461 EISENHOWER AVENUE
 
    ALEXANDRIA, VIRGINIA 22301
 
    MR. DON PURCELL
 
    OVERSEAS EDUCATION ASSOCIATION
 
    UNISERV CENTER, EUROPE
 
    BOX 63
 
    APO NEW YORK, NEW YORK 09710
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE LEGISLATIVE HISTORY OF THE STATUTE MAKES IT CLEAR THAT THE
 SCOPE OF THE AUTHORITY'S REVIEW OF ARBITRATION AWARDS IS TO BE VERY
 NARROW SIMILAR TO THE SCOPE OF JUDICIAL REVIEW OF AN ARBITRATOR'S AWARD
 IN THE PRIVATE SECTOR.  S. REP. NO. 95-1272, 95TH CONG., 2D SESS.
 153(1978).  SEE FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION
 AND FEDERAL AVIATION ADMINISTRATION, ALBUQUERQUE AIRWAY FACILITIES
 SECTOR, SOUTHWEST REGION, 2 FLRA NO.  85(1980) AT 36N.1.
 
    /2/ FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION AND
 FEDERAL AVIATION ADMINISTRATION, ALBUQUERQUE AIRWAY FACILITIES SECTOR,
 SOUTHWEST REGION, 2 FLRA NO.  85(1980).
 
    /3/ SECTION 12(B)(2) PERTINENTLY PROVIDES:
 
    SEC. 12.  BASIC PROVISIONS OF AGREEMENTS.
 
   *          *          *          *
 
 
    (B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
 ACCORDANCE WITH APPLICABLE LAWS
 
    AND REGULATIONS--
 
   *          *          *          *
 
 
    (2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
 POSITIONS WITHIN THE AGENCY
 
    . . . (.)
 
    SECTION 7106(A)(2)(A) PERTINENTLY 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--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY . . . (.)