American Federation of Government Employees, Local 2782, AFL-CIO (Union) and Department of Commerce, Bureau of the Census, Washington, DC (Agency)
[ v06 p314 ]
06:0314(56)NG
The decision of the Authority follows:
6 FLRA No. 56
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2782
Union
and
DEPARTMENT OF COMMERCE,
BUREAU OF THE CENSUS,
WASHINGTON, D.C.
Agency
Case No. O-NG-222
DECISION AND ORDER ON NEGOTIABILITY ISSUE
THIS PETITION FOR REVIEW 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.). THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE
FOLLOWING UNION PROPOSAL:
B: POLICY: IT IS THE AGENCY'S POLICY TO SPEEDILY REPROMOTE
BARGAINING UNIT EMPLOYEES WHO
HAVE BEEN INVOLUNTARILY DOWNGRADED WITHOUT PERSONAL CAUSE, EXCEPT
WHEN RETURNED TO THE GRADE
FROM WHICH TEMPORARILY PROMOTED. EXCEPT FOR GOOD CAUSE, SUCH
EMPLOYEES WILL BE REPROMOTED AT
THE FIRST OPPORTUNITY, AND THE PROCEDURES ESTABLISHED BELOW ARE MEANT
TO ENSURE THAT THIS WILL
HAPPEN.
J: RESOLUTION OF DISPUTES: DISPUTES OVER THE INTERPRETATION AND
APPLICATION OF THIS
REGULATION, INCLUDING CLAIMS BY AN EMPLOYEE THAT (S)HE SHOULD HAVE
BEEN SELECTED, WILL BE
RESOLVE THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE.
QUESTION BEFORE THE AUTHORITY
THE SPECIFIC QUESTION BEFORE THE AUTHORITY IS WHETHER THE UNION
PROPOSAL, WHICH PERTAINS TO THE REPROMOTION OF EMPLOYEES INVOLUNTARILY
DOWNGRADED WITHOUT PERSONAL CAUSE, IS INCONSISTENT WITH APPLICABLE
GOVERNMENT-WIDE RULES OR REGULATIONS (5 CFR 7.1 /1/ ; FEDERAL PERSONNEL
MANUAL (FPM) CHAPTER 335, SUBCHAPTER 1-4, REQUIREMENT 4 /2/ ; AND FPM
CHAPTER 335, SUBCHAPTER 1-6; /3/ AND/OR SECTION 7106(A)(2)(C) OF THE
STATUTE /4/ , AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE UNION PROPOSAL IS NOT INCONSISTENT WITH
THE RULES AND REGULATIONS RELIED UPON BY THE AGENCY OR WITH SECTION
7106(A)(2)(C) OF THE STATUTE. RATHER, THE PROPOSAL CONSTITUTES AN
APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY
MANAGEMENT'S
EXERCISE OF ITS STATUTORY AUTHORITY WHICH IS NEGOTIABLE UNDER SECTION
7106(B)(3) OF THE STATUTE /5/ . ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED
TO BY THE PARTIES) BARGAIN CONCERNING THE UNION PROPOSAL. /6/
REASONS: THE AGENCY CLAIMS THE DISPUTED PROPOSAL IS NONNEGOTIABLE
BECAUSE IT WOULD IMPROPERLY AFFECT ITS DISCRETION TO FILL OR NOT FILL
VACANT POSITIONS; TO CONSIDER CANDIDATES FOR SUCH VACANT POSITIONS FROM
ANY APPROPRIATE SOURCE; AND TO SELECT, IN FILLING SUCH POSITIONS, FROM
AMONG SUCH CANDIDATES. IN SUPPORT OF ITS POSITION THE AGENCY CITES,
INTER ALIA, PROVISIONS CONTAINED IN THE CIVIL SERVICE RULES AND THE FPM.
SINCE THE OFFICE OF PERSONNEL MANAGEMENT (OPM) HAS PRIMARY
RESPONSIBILITY FOR THE ISSUANCE AND INTERPRETATION OF THE CITED
PROVISIONS, THE AUTHORITY REQUESTED AN ADVISORY OPINION FROM OPM
PURSUANT TO SECTION 7105(I) OF THE STATUTE. OPM RESPONDED WITH AN
OPINION SUSTAINING THE AGENCY'S POSITION.
PURSUANT TO SECTION 2429.15(B) OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2429.15(B)), THE PARTIES WERE GIVEN AN OPPORTUNITY TO
COMMENT ON THE ADVISORY OPINION OF OPM. THEIR SUBMISSIONS, AS WELL AS
THE ADVISORY OPINION ITSELF, HAVE BEEN DULY CONSIDERED BY THE AUTHORITY.
THE AUTHORITY AGREES WITH OPM'S STATEMENT IN ITS ADVISORY OPINION
THAT THE CRITICAL QUESTION IN THIS CASE IS WHETHER THE PROPOSAL
OBLIGATES THE AGENCY "TO SELECT A PARTICULAR EMPLOYEE WHEN A VACANCY IS
CREATED." HOWEVER, THE CONCLUSION THAT THE PROPOSAL WOULD REQUIRE SUCH A
SELECTION AND, CONSEQUENTLY, WOULD CONFLICT WITH THE FPM, CIVIL SERVICE
RULES AND/OR SECTION 7106(A)(2)(C) OF THE STATUTE IS BASED ON A
MISINTERPRETATION OF THE PROPOSAL AND CANNOT BE SUSTAINED BY THE
AUTHORITY.
THE AGENCY CHARACTERIZES THE PROPOSAL AS DENYING MANAGEMENT
DISCRETION "TO DECIDE NOT TO FILL A PARTICULAR VACANCY AT ALL,"
REQUIRING MANAGEMENT TO "SELECT A QUALIFIED REPROMOTION ELIGIBLE" IN ALL
CIRCUMSTANCES COVERED BY THE PROPOSAL, AND SUBJECTING TO ARBITRAL REVIEW
"THE SELECTION DECISION ITSELF" IF A REPROMOTION ELIGIBLE IS NOT
SELECTED. THE UNION, ON THE OTHER HAND, ASSERTING THAT THE AGENCY HAS
MISINTERPRETED THE PROPOSAL, EXPLAINS THE INTENDED MEANING AS FOLLOWS:
(T)HE UNION'S PROPOSALS, IF ADOPTED, WOULD NOT PREVENT MANAGEMENT
FROM DECIDING AND ACTING
ON ANY SEC. 7106(A) MATTER. . . . MANAGEMENT APPEARS TO CLAIM THAT
COMPLIANCE WITH THE UNION
PROPOSAL WOULD DENY IT AUTHORITY TO ACT IN AREAS LISTED IN SEC.
7106(A), SPECIFICALLY, THAT OF
MANAGEMENT'S RIGHT NOT TO FILL POSITIONS AND TO MAKE SELECTIONS FROM
"ANY OTHER APPROPRIATE
SOURCE." THE AGENCY INTERPRETS THE LANGUAGE OF THE PROPOSAL THAT
REFERS TO REPROMOTION "AT
THE FIRST OPPORTUNITY" AS DENYING IT THE DISCRETION TO DECIDE NOT TO
FILL A PARTICULAR
VACANCY, NOT TO MAKE A SELECTION FROM A LIST OF CANDIDATES, OR EVEN
TO ABOLISH THE
POSITION. THE MANAGEMENT INTERPRETATION JERKS THE QUOTED LANGUAGE OF
THE PROPOSAL OUT OF
CONTEXT AND WILDLY DISTORTS ITS MEANING. MANAGEMENT IGNORES THE
CLAUSE WHICH INTRODUCES THE
LANGUAGE QUOTED ABOVE: "EXCEPT FOR GOOD CAUSE". THE UNION DOES NOT
TAKE THE POSITION THAT A
MANAGEMENT DECISION NOT TO FILL A POSITION, NOT TO MAKE A SELECTION
FROM A LIST OR EVEN TO
ABOLISH A POSITION DOES NOT CONSTITUTE "GOOD CAUSE" WITHIN THE
MEANING OF THE PROPOSAL. . . .
MANAGEMENT ALSO ARGUES THAT THE PROPOSALS REQUIRE IT TO SELECT A
QUALIFIED REPROMOTION
ELIGIBLE IN ALL COVERED CIRCUMSTANCES AND THEREBY USURPS ITS RIGHT TO
MAKE SELECTIONS FROM ANY
APPROPRIATE SOURCE. THIS IS ANOTHER GROUNDLESS ASSERTION THAT
IGNORES THE SAME CRITICAL
INTRODUCTORY CLAUSE: "EXCEPT FOR GOOD CAUSE". THE UNION HAS NOT
TAKEN THE POSITION ASCRIBED
TO IT BY MANAGEMENT. DOCUMENTARY EVIDENCE SUBMITTED BY MANAGEMENT
REBUTS ITS OWN
ARGUMENT. THE UNION MEMORANDUM SUBMITTED TO MANAGEMENT, AND ATTACHED
AS TAB F TO MANAGEMENT'S
STATEMENT OF POSITION, CLEARLY INDICATES THAT THE PROPOSALS NEITHER
REQUIRE SELECTION (OF) A
QUALIFIED REPROMOTION ELIGIBLE IN ALL CIRCUMSTANCES NOR USURPS
MANAGEMENT'S RIGHT TO SELECT
FROM ANY APPROPRIATE SOURCE. AS THE TAB F MEMORANDUM FROM THE UNION
TO MANAGEMENT STATES;
" . . . PROPOSED B CONTAINS EXCEPT FOR GOOD CAUSE, SUCH EMPLOYEES . .
. WILL BE REPROMOTED
. . . A CASE THAT ANOTHER APPLICANT WAS BETTER QUALIFIED FOR THE JOB
. . . WOULD CONSTITUTE
SUCH A GOOD CAUSE FOR NOT SELECTING AN EMPLOYEE ELIGIBLE FOR
REPROMOTION.
GIVEN THIS CLEAR UNION STATEMENT, THE MANAGEMENT ARGUMENT HAS NO
MERIT. THUS, THE UNION
PROPOSAL WOULD NOT PROHIBIT MANAGEMENT FROM EXERCISING ITS RIGHTS
UNDER SEC. 7106(A).
. . . .
MANAGEMENT ARGUES THAT UNDER SEC. 7117(A)(1) THE UNION PROPOSALS
CANNOT BE THE SUBJECT OF
BARGAINING BECAUSE THEY ARE INCONSISTENT WITH GOVERNMENT-WIDE
REGULATIONS (5 CFR 7.1; FPM
CHAPTER 335, SUBCHAPTER 1-4, REQUIREMENT 4; AND FPM CHAPTER 335,
SUBCHAPTER 1-6).
. . . .
EVEN IF THE REGULATIONS WERE SOMEHOW CONSTRUED AS A "GOVERNMENT-WIDE
REGULATION", THE UNION
PROPOSALS ARE NOT INCONSISTENT WITH THEM BECAUSE, AS PREVIOUSLY
DEMONSTRATED, THEY DO NOT BAR
MANAGEMENT FROM EXERCISING ITS RIGHTS UNDER SEC. 7106(A).
THUS, THE UNION REASONABLY INTERPRETS ITS OWN PROPOSAL AS REQUIRING
THE AGENCY, WHEN IT DECIDES TO FILL A VACANT BARGAINING UNIT POSITION
FOR WHICH A REPROMOTION ELIGIBLE EMPLOYEE IS QUALIFIED, TO CONSIDER BUT
NOT NECESSARILY TO SELECT THE REPROMOTION ELIGIBLE EMPLOYEE. ALTHOUGH
THE AGENCY MUST HAVE "GOOD CAUSE" FOR EXERCISING ITS DISCRETION NOT TO
PROMOTE THE REPROMOTION ELIGIBLE EMPLOYEE, "GOOD CAUSE" WOULD INCLUDE,
BUT NOT BE LIMITED TO, SUCH CIRCUMSTANCES AS MANAGEMENT'S DECISION NOT
TO FILL OR TO ABOLISH THE VACANT POSITION OR TO SELECT A BETTER
QUALIFIED CANDIDATE FROM ANY APPROPRIATE SOURCE; IN OTHER WORDS, "GOOD
CAUSE" AS USED IN THE UNION'S PROPOSAL WOULD ENCOMPASS THE RIGHTS
RESERVED TO MANAGEMENT UNDER THE STATUTE.
LIKEWISE, THE PROPOSAL IS NOT INCONSISTENT WITH 5 CFR 7.1 AND FPM
CHAPTER 335, SUBCHAPTER 1-4, REQUIREMENT 4, AS INTERPRETED BY OPM,
BECAUSE OF THE UNION'S PREVIOUSLY DISCUSSED INTENTION THAT THE PROPOSAL
REQUIRES CONSIDERATION BUT NOT SELECTION OF REPROMOTION ELIGIBLE
EMPLOYEES. THUS, THE UNION PROPOSAL EMBRACES AND DOES NOT CONFLICT WITH
THE DISCRETION THAT THE APPOINTING OFFICIAL HAS IN FILLING VACANCIES
UNDER THE CITED AUTHORITIES AND DOES NOT COMPEL THE AGENCY TO SELECT A
PARTICULAR EMPLOYEE. HENCE, THE AGENCY'S RIGHT TO SELECT FROM AMONG A
GROUP OF BEST QUALIFIED CANDIDATES OR FROM OTHER APPROPRIATE SOURCES OR
TO DECIDE NOT TO FILL POSITIONS IS NOT DENIED.
IT HAS OFTEN BEEN EMPHASIZED IN AUTHORITY DECISIONS THAT UNDER
SECTION 7106(B)(3) OF THE STATUTE THERE IS A DUTY TO BARGAIN APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE
OF ITS AUTHORITY UNDER SECTION 7106(A). /7/ IN THIS CONNECTION, THE
AUTHORITY HAS STATED THAT A PROPOSAL WHICH WOULD ESTABLISH A GENERAL,
NONQUANTITATIVE REQUIREMENT BY WHICH THE APPLICATION OF ACTIONS TAKEN BY
MANAGEMENT PURSUANT TO SECTION 7106 OF THE STATUTE MAY SUBSEQUENTLY BE
EVALUATED IN A GRIEVANCE BY AN EMPLOYEE WHO BELIEVES THAT HE HAS BEEN
ADVERSELY AFFECTED BY THE APPLICATION OF THE ACTION TO HIM, IS WITHIN
THE DUTY TO BARGAIN. /8/ UNDER THE PLAIN LANGUAGE OF SECTION 7106(A),
OF COURSE, "NOTHING" IN THE STATUTE SHALL "AFFECT THE AUTHORITY" OF AN
AGENCY TO EXERCISE THE RIGHTS ENUMERATED THEREIN. HENCE, NO MATTER
COULD BE GRIEVED UNDER A PROCEDURE NEGOTIATED PURSUANT TO SECTION 7121
OF THE STATUTE /9/ WHICH WOULD DENY THE AUTHORITY OF AN AGENCY TO
EXERCISE ITS STATUTORY RIGHTS UNDER SECTION 7106. /10/
IN THE PRESENT CASE, IT IS CLEAR THAT AN EMPLOYEE WHO HAS BEEN
INVOLUNTARILY REDUCED IN GRADE WITHOUT PERSONAL CAUSE HAS BEEN ADVERSELY
AFFECTED BY VIRTUE OF SUCH MANAGEMENT ACTION. THUS, THE UNION CAN
PROPERLY NEGOTIATE "APPROPRIATE ARRANGEMENTS" FOR SUCH AN EMPLOYEE
WHICH, AS THE DISPUTED PROPOSAL IN EFFECT REQUIRES, MANDATE
CONSIDERATION FOR AVAILABLE HIGHER LEVEL VACANCIES. ADMITTEDLY, UNDER
THE PROPOSAL, IF THE AGENCY WERE TO SELECT SOMEONE ELSE TO FILL A VACANT
POSITION WHICH MIGHT HAVE BEEN FILLED BY THE REPROMOTION ELIGIBLE
EMPLOYEE, THE LATTER COULD IN A GRIEVANCE RAISE THE ISSUE OF WHETHER THE
CONTRACTUAL REQUIREMENT, "GOOD CAUSE", HAS BEEN MET BY THE AGENCY.
HOWEVER, INSOFAR AS THE PROPOSAL ESTABLISHES A GENERAL, NONQUANTITATIVE
CONTRACTUAL REQUIREMENT, "GOOD CAUSE", BY WHICH THE APPLICATION OF
SELECTION PROCEDURES UTILIZED BY THE AGENCY MAY SUBSEQUENTLY BE
EVALUATED IN A GRIEVANCE BY A REPROMOTION ELIGIBLE WHO BELIEVES THAT HE
HAS NOT BEEN ACCORDED THE CONSIDERATION TO WHICH HE IS ENTITLED FOR THE
HIGHER LEVEL VACANCY, AND THE AUTHORITY SO INTERPRETS THE PROPOSAL FOR
THE PURPOSE OF THIS DECISION, THE PROPOSAL DOES NOT PURPORT TO AUTHORIZE
GRIEVANCES WHICH WOULD DENY THE AGENCY'S RIGHTS UNDER SECTION 7106.
THUS, A REPROMOTION ELIGIBLE WHO WAS NOT SELECTED FOR REPROMOTION MAY,
IN A GRIEVANCE OF SUCH ACTION PURSUANT TO SECTION 7121 OF THE STATUTE
RAISE THE ISSUE OF WHETHER THE SELECTION PROCEDURES AS APPLIED TO HIM
MEET THE CONTRACTUAL, "GOOD CAUSE", REQUIREMENT. SUCH REVIEW BY AN
ARBITRATOR WOULD NOT REQUIRE THE AGENCY TO SELECT A PARTICULAR EMPLOYEE,
INCLUDING A REPROMOTION ELIGIBLE, TO FILL A VACANCY OR LIMIT SELECTION
TO A PARTICULAR SOURCE. IT WOULD NOT SUBJECT TO ARBITRATION THE
SELECTION DECISION ITSELF OR RESULT IN THE SUBSTITUTION OF THE
ARBITRATOR'S JUDGMENT FOR THAT OF THE AGENCY. THE ARBITRATOR WOULD
SIMPLY DETERMINE IF THE SELECTION PROCEDURES USED BY THE AGENCY, AS
APPLIED TO THE REPROMOTION ELIGIBLE GRIEVANT, COMPLIED WITH THE "GOOD
CAUSE" REQUIREMENT OF THE PARTIES' AGREEMENT. /11/
FURTHER, IN THIS REGARD, THE AGENCY'S AND OPM'S POSITION THAT A
GRIEVANCE RELATED TO NONSELECTION OF A REPROMOTION ELIGIBLE IS NOT
APPROPRIATE UNDER FPM CHAPTER 335, SUBCHAPTER 1-6 CANNOT BE SUSTAINED.
WHILE OPM REGULATIONS MAY LIMIT THE SCOPE OF AGENCY GRIEVANCE
PROCEDURES, SUCH REGULATIONS MAY NOT BE APPLIED IN A MANNER INCONSISTENT
WITH THE SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES ALLOWED UNDER SECTION
7121 OF THE STATUTE. /12/ SECTION 7121 OF THE STATUTE PROVIDES FOR
BROAD SCOPE GRIEVANCE PROCEDURES. AS STATED WITH RESPECT TO SECTION
7121 IN THE CONFERENCE REPORT ACCOMPANYING THE FINAL VERSION OF THE BILL
WHICH WAS SUBSEQUENTLY ENACTED AND SIGNED INTO LAW:
ALL MATTERS THAT UNDER THE PROVISIONS OF LAW COULD BE SUBMITTED TO
THE GRIEVANCE PROCEDURES
SHALL IN FACT BE WITHIN THE SCOPE OF ANY GRIEVANCE PROCEDURE
NEGOTIATED BY THE PARTIES UNLESS
THE PARTIES AGREE AS PART OF THE COLLECTIVE BARGAINING PROCESS THAT
CERTAIN MATTERS SHALL NOT
BE COVERED BY THE GRIEVANCE PROCEDURES. JOINT EXPLANATORY STATEMENT
OF THE COMMITTEE ON
CONFERENCE, H.R. REP. NO. 1717, 95TH CONG., 2D SESS. 157, REPRINTED
IN (1978) U.S. CODE
CONG. & AD. NEWS 2860, 2891.
THE LIST OF MATTERS EXCLUDED FROM PERMISSIBLE COVERAGE WITHIN
NEGOTIATED GRIEVANCE PROCEDURES BY SECTION 7121(C) OF THE STATUTE DOES
NOT ADVERT TO THE NONSELECTION OF A REPROMOTION ELIGIBLE BASED ON "GOOD
CAUSE" AS INTERPRETED HEREIN. FURTHERMORE, NEITHER THE AGENCY NOR OPM
REFERS TO ANY OTHER PROVISION OF LAW WHICH WOULD OPERATE TO EXCLUDE THE
MATTER FROM COVERAGE. THUS, ON THEIR FACE, GRIEVANCE PROCEDURES
NEGOTIATED UNDER SECTION 7121 OF THE STATUTE COVER SUCH MATTERS UNLESS
THE PARTIES EXCLUDE THEM THROUGH BARGAINING. /13/
ACCORDINGLY, THE AUTHORITY FINDS THAT THE PROPOSAL, AS REASONABLY
INTERPRETED BY THE UNION, IS NOT INCONSISTENT WITH THE AUTHORITIES
RELIED UPON BY THE AGENCY AND IS NEGOTIABLE UNDER SECTION 7106(B)(3) OF
THE STATUTE.
ISSUED, WASHINGTON, D.C., JULY 23, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ 5 CFR 7.1 PROVIDES:
SECTION 7.1 DISCRETION IN FILLING VACANCIES.
IN HIS DISCRETION, AN APPOINTING OFFICER MAY FILL ANY POSITION IN THE
COMPETITIVE SERVICE EITHER BY COMPETITIVE APPOINTMENT FROM A CIVIL
SERVICE REGISTER OR BY NONCOMPETITIVE SELECTION OF A PRESENT OR FORMER
FEDERAL EMPLOYEE, IN ACCORDANCE WITH THE CIVIL SERVICE REGULATIONS. HE
SHALL EXERCISE HIS DISCRETION IN ALL PERSONNEL ACTIONS SOLELY ON THE
BASIS OF MERIT AND FITNESS AND WITHOUT REGARD TO POLITICAL OR RELIGIOUS
AFFILIATIONS, MARITAL STATUS, OR RACE.
/2/ FPM CHAPTER 335, SUBCHAPTER 1-4, REQUIREMENT 4 PROVIDES:
SELECTION PROCEDURES WILL PROVIDE FOR MANAGEMENT'S RIGHT TO SELECT OR
NOT SELECT FROM AMONG A GROUP OF BEST QUALIFIED CANDIDATES. THEY WILL
ALSO PROVIDE FOR MANAGEMENT'S RIGHT TO SELECT FROM OTHER APPROPRIATE
SOURCES, SUCH AS REEMPLOYMENT PRIORITY LISTS, REINSTATEMENT, TRANSFER,
HANDICAPPED, OR VETERANS READJUSTMENT ELIGIBLES OR THOSE WITHIN REACH ON
AN APPROPRIATE OPM CERTIFICATE. IN DECIDING WHICH SOURCE OR SOURCES TO
USE, AGENCIES HAVE AN OBLIGATION TO DETERMINE WHICH IS MOST LIKELY TO
BEST MEET THE AGENCY MISSION OBJECTIVES, CONTRIBUTE FRESH IDEAS AND NEW
VIEWPOINTS, AND MEET THE AGENCY'S AFFIRMATIVE ACTION GOALS.
/3/ FPM CHAPTER 335, SUBCHAPTER 1-6 PROVIDES:
1-6 GRIEVANCES
EMPLOYEES HAVE THE RIGHT TO FILE A COMPLAINT RELATING TO A PROMOTION
ACTION. SUCH COMPLAINTS SHALL BE RESOLVED UNDER APPROPRIATE GRIEVANCE
PROCEDURES. THE STANDARDS FOR ADJUDICATING COMPLAINTS ARE SET FORTH IN
PART 300 OF TITLE 5, CODE OF FEDERAL REGULATIONS. WHILE THE PROCEDURES
USED BY AN AGENCY TO IDENTIFY AND RANK QUALIFIED CANDIDATES ARE PROPER
SUBJECTS FOR FORMAL COMPLAINTS OR GRIEVANCES, NONSELECTION FROM AMONG A
GROUP OF PROPERLY RANKED AND CERTIFIED CANDIDATES IS NOT AN APPROPRIATE
BASIS FOR A FORMAL COMPLAINT OR GRIEVANCE. THERE IS NO RIGHT OF APPEAL
TO THE OPM, BUT THE OPM MAY CONDUCT INVESTIGATIONS OF SUBSTANTIAL
VIOLATIONS OF OPM REQUIREMENTS.
/4/ SECTION 7106(A)(2)(C) 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
APPOINTMENTS FROM--
(I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION; OR
(II) ANY OTHER APPROPRIATE SOURCE(.)
/5/ SECTION 7106(B)(3) PROVIDES:
SECTION 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING--
. . . .
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION . . .
/6/ IN SO DECIDING THAT THE UNION PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.
/7/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3656 AND FEDERAL TRADE COMMISSION, BOSTON REGIONAL OFFICE,
MASSACHUSETTS, 4 FLRA NO. 92(1980) AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120(1980).
/8/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1622 AND DEPARTMENT OF THE ARMY, FORT MEADE, MARYLAND, 4 FLRA NO.
66(1980).
/9/ SECTION 7121 PROVIDES IN PERTINENT PART:
SECTION 7121. GRIEVANCE PROCEDURES
(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
COLLECTIVE BARGAINING AGREEMENT SHALL PROVIDE PROCEDURES FOR THE
SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY. EXCEPT
AS PROVIDED IN SUBSECTIONS (D) AND (E) OF THIS SECTION, THE PROCEDURES
SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCE WHICH FALL
WITHIN ITS COVERAGE.
(2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
THE APPLICATION OF THE GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN
THE AGREEMENT.
(B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
OF THIS SECTION SHALL--
(1) BE FAIR AND SIMPLE
(2) PROVIDE FOR EXPEDITIOUS PROCESSING, AND
(3) INCLUDE PROCEDURES THAT--
(A) ASSURE AN EXCLUSIVE REPRESENTATIVE, THE RIGHT, IN ITS OWN BEHALF
OR ON BEHALF OF ANY
EMPLOYEE IN THE UNIT REPRESENTED BY THE EXCLUSIVE REPRESENTATIVE, TO
PRESENT AND PROCESS
GRIEVANCES;
(B) ASSURE SUCH AN EMPLOYEE THE RIGHT TO PRESENT A GRIEVANCE ON THE
EMPLOYEE'S OWN BEHALF,
AND ASSURE THE EXCLUSIVE REPRESENTATIVE THE RIGHT TO BE PRESENT
DURING THE GRIEVANCE
PROCEEDING; AND
(C) PROVIDE THAT ANY GRIEVANCE NOT SATISFACTORILY SETTLED UNDER THE
NEGOTIATED GRIEVANCE
PROCEDURE SHALL BE SUBJECT TO BINDING ARBITRATION WHICH MAY BE
INVOKED BY EITHER THE EXCLUSIVE
REPRESENTATIVE OR THE AGENCY.
(C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
RESPECT TO ANY GRIEVANCE CONCERNING--
(1) ANY CLAIMED VIOLATION OF SUBCHAPTER III OF CHAPTER 73 OF THIS
TITLE (RELATING TO
PROHIBITED POLITICAL ACTIVITIES)
(2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;
(3) A SUSPENSION OR REMOVAL UNDER SECTION 7532 OF THIS TITLE;
(4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT; OR
(5) THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
REDUCTION IN GRADE OR
PAY OF AN EMPLOYEE.
/10/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1968 AND DEPARTMENT OF TRANSPORTATION, SAINT LAWRENCE SEAWAY DEPARTMENT
CORPORATION, MASSENA, NEW YORK, 5 FLRA NO. 14(1980).
/11/ CF. NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL
REVENUE SERVICE, NEW ORLEANS DISTRICT OFFICE, 1 FLRA NO. 102(1979),
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND
OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120(1980)
AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1622 AND
DEPARTMENT OF THE ARMY, FORT MEADE, MARYLAND, 4 FLRA NO. 66(1980).
/12/ THE SUBSTANCE OF FPM CHAPTER 335, SUBCHAPTER 1-6 WAS FIRST
PROMULGATED BEFORE THE EFFECTIVE DATE OF THE STATUTE AND THUS COULD NOT
HAVE TAKEN SECTION 7121 INTO CONSIDERATION.
/13/ SEE, IN THIS REGARD, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3669 AND VETERANS ADMINISTRATION MEDICAL
CENTER, MINNEAPOLIS, MINNESOTA, 3 FLRA NO. 48(1980), AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3354 AND U.S. DEPARTMENT OF
AGRICULTURE, FARMERS HOME ADMINISTRATION, ST. LOUIS, MISSOURI, 3 FLRA
NO. 50(1980) AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R12-132 AND CALIFORNIA NATIONAL GUARD, 5 FLRA NO. 25(1981).