American Federation of Government Employees, Local 2782, AFL-CIO (Union) and Department of Commerce, Bureau of the Census, Washington, DC (Agency)

 7 FLRA No. 13
 
 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-352
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).  THE ISSUE
 PRESENTED IS THE NEGOTIABILITY OF THE FOLLOWING UNION PROPOSAL:
 
    SECTION 5.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, A
 REPROMOTION ELIGIBLE
 
    (I.E., AN EMPLOYEE DEMOTED THROUGH NO FAULT OF HIS OR HER OWN) WILL
 BE SELECTED FOR THE FIRST
 
    AVAILABLE VACANCY FOR WHICH HE OR SHE FULLY MEETS THE QUALIFICATION
 STANDARDS AND WHICH THE
 
    AGENCY DETERMINES TO FILL.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROPOSAL, WHICH PERTAINS TO THE
 REPROMOTION OF EMPLOYEES DOWNGRADED THROUGH NO FAULT OF THEIR OWN, IS
 INCONSISTENT WITH SECTION 7106(A)(2)(C) OF THE STATUTE, /1/ AS ALLEGED
 BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE DISPUTED PROPOSAL IS INCONSISTENT WITH
 SECTION 7106(A)(2)(C) OF THE STATUTE AND IS, THEREFORE, NOT WITHIN THE
 DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED.  /2/
 
    REASONS:  IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2782 AND DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON,
 D.C., 6 FLRA NO. 56(1981), THE AUTHORITY FOUND THAT A PROPOSAL WHICH
 PROVIDED, IN PERTINENT PART, THAT, "(E)XCEPT FOR GOOD CAUSE, (BARGAINING
 UNIT EMPLOYEES INVOLUNTARILY DOWNGRADED WITHOUT PERSONAL CAUSE) WILL BE
 REPROMOTED AT THE FIRST OPPORTUNITY," CONSTITUTED AN APPROPRIATE
 ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE
 OF
 ITS AUTHORITY UNDER SECTION 7106(A) AND THEREFORE WAS WITHIN THE DUTY TO
 BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE.  /3/ IN SO FINDING, THE
 AUTHORITY SPECIFICALLY RELIED UPON THE UNION'S INTERPRETATION OF ITS
 PROPOSAL AS FOLLOWS:
 
    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.
 
    BY CONTRAST, THE DISPUTED PROPOSAL IN THIS CASE WOULD REQUIRE THE
 AGENCY, WHEN IT DECIDES TO FILL A VACANT BARGAINING UNIT POSITION FOR
 WHICH A REPROMOTION ELIGIBLE EMPLOYEE IS QUALIFIED, NOT ONLY TO CONSIDER
 BUT TO SELECT THE REPROMOTION ELIGIBLE EMPLOYEE.  THE UNION CONCEDES
 THAT ITS PROPOSAL "WOULD, IN EFFECT, NULLIFY SECTION 7106(A)(2)(C) UNDER
 CERTAIN CIRCUMSTANCES . . . ," BUT CONTENDS THAT AN AGENCY'S RIGHT TO
 SELECT FROM ANY APPROPRIATE SOURCE "MUST GIVE WAY . . . TO HIGHER,
 HUMANITARIAN, VALUES IN CERTAIN CIRCUMSTANCES . . . (SUCH AS) WHEN THE
 AGENCY DETERMINES TO ABOLISH OCCUPIED POSITIONS." /4/ HOWEVER, AS
 PREVIOUSLY QUOTED HEREIN (NOTE 1, SUPRA), SECTION 7106(A)(2)(C)
 EXPLICITLY REQUIRES THAT NOTHING IN THIS CHAPTER SHALL AFFECT THE
 AUTHORITY OF ANY MANAGEMENT OFFICIAL, IN FILLING POSITIONS, TO MAKE
 APPOINTMENTS FROM PROMOTION CERTIFICATES OR FROM ANY OTHER APPROPRIATE
 SOURCE.  THUS, THE STATUTE EXCLUDES FROM THE DUTY TO BARGAIN A PROPOSAL
 SUCH AS THE ONE HERE INVOLVED WHICH WOULD PREVENT MANAGEMENT FROM
 CONSIDERING OTHER APPLICANTS OR USING ANY OTHER APPROPRIATE SOURCES OF
 CANDIDATES IN FILING A VACANCY.  THE DISPUTED PROPOSAL IN THIS CASE
 WOULD DIRECTLY INTERFERE WITH THE EXERCISE OF MANAGEMENT'S RIGHTS UNDER
 SECTION 7106(A)(2)(C) TO CHOOSE AMONG CANDIDATES FROM APPROPRIATE
 SOURCES IN FILLING A VACANCY AND, CONSEQUENTLY, CANNOT BE DEEMED AN
 "APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED" BY
 MANAGEMENT'S EXERCISE OF ITS STATUTORY RIGHTS, WITHIN THE MEANING OF
 SECTION 7106(B)(3) OF THE STATUTE.  /5/
 
    ACCORDINGLY, THE AUTHORITY FINDS THAT THE PROPOSAL IS INCONSISTENT
 WITH SECTION 7106(A)(2)(C) OF THE STATUTE AND THEREFORE CONCLUDES THAT
 THE UNION'S PETITION FOR REVIEW MUST BE DISMISSED.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                       LEON B. APPLEWHAITE, MEMBER.
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7106(A)(2)(C) 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/ IN VIEW OF THE AUTHORITY'S CONCLUSION THAT THE DISPUTED PROPOSAL
 VIOLATES SECTION 7106(A)(2)(C) OF THE STATUTE AND THUS IS NONNEGOTIABLE,
 IT IS UNNECESSARY TO CONSIDER THE AGENCY'S FURTHER CONTENTION THAT THE
 PROPOSAL ALSO IS INCONSISTENT WITH GOVERNMENT-WIDE RULES OR REGULATIONS.
 
    /3/ SECTION 7106(B)(3) PROVIDES:
 
    SEC. 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 . . . .
 
    /4/ UNION RESPONSE TO THE AGENCY'S STATEMENT OF POSITION, AT PAGE 4.
 
    /5/ SEE THE NATIONAL COUNCIL OF CSA LOCALS, AFGE, AFL-CIO AND THE
 COMMUNITY SERVICES ADMINISTRATION, 3 FLRA NO. 13(1980);  NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES LOCAL 1451 AND NAVY EXCHANGE, NAVAL
 ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA, 3 FLRA NO.  60(1980).  COMPARE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 331 AND
 VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, 2 FLRA NO.
 59(1980);  ASSOCIATION OF CIVILIAN TECHNICIANS, DELAWARE CHAPTER AND
 NATIONAL GUARD BUREAU, DELAWARE NATIONAL GUARD, 3 FLRA NO. 9(1980);  AND
 ASSOCIATION OF CIVILIAN TECHNICIANS, INC., PENNSYLVANIA STATE COUNCIL
 AND ADJUTANT GENERAL, DEPARTMENT OF MILITARY AFFAIRS, PENNSYLVANIA, 4
 FLRA NO. 10(1980).