American Federation of Government Employees, Local 1533, AFL-CIO (Union) and Naval Supply Center, Oakland, California (Agency) 

 8 FLRA No. 6
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1533
 Union
 
 and
 
 NAVAL SUPPLY CENTER
 OAKLAND, CALIFORNIA
 Agency
 
                                            Case No. 0-NG-263
 
                DECISION AND ORDER ON NEGOTIABILITY APPEAL
 
    THE PETITION FOR REVIEW IN 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),
 AND RAISES THE QUESTION OF THE NEGOTIABILITY OF A UNION
 PROPOSAL.  UPON
 CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 PARTIES'
 CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATIONS.
 
                              UNION PROPOSAL
 
    EMPLOYEE REPROMOTION AFTER REDUCTION-IN-FORCE. 
 REPROMOTION WILL BE
 IN RETENTION ORDER AND
 
    WILL BE APPLIED AS VACANCIES OCCUR.
 
    IN AGREEMENT WITH THE AGENCY, THE AUTHORITY CONCLUDES THAT
 THE
 PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT WOULD
 DIRECTLY
 INTERFERE WITH MANAGEMENT'S RIGHTS UNDER SECTION 7106(A)(2)(C) /1/
 OF
 THE STATUTE BY REQUIRING THE AGENCY TO SELECT REPROMOTION
 ELIGIBLE
 EMPLOYEES IN RETENTION ORDER AFTER A REDUCTION-IN-FORCE AS
 VACANCIES
 OCCUR.  IN THIS REGARD, THE PROPOSAL BEARS NO MATERIAL
 DIFFERENCE FROM
 THE PROPOSAL FOUND NONNEGOTIABLE PURSUANT TO SECTION
 7106(A)(2)(C) IN
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 2782 AND
 DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON,
 D.C., 7 FLRA
 NO. 13(1981), APPEAL DOCKETED, NO.  81-2386 (D.C. CIR. DEC. 29, 1981).
 FOR THE REASONS FULLY SET FORTH THEREIN, THE PROPOSAL HERE IN
 DISPUTE
 MUST LIKEWISE BE FOUND NONNEGOTIABLE.  /2/
 
    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.  /3/
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
 
                       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, IN RELEVANT PART, 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(.)
 
    /2/ THE UNION CONTENDS, IN ESSENCE, THAT THE PROPOSAL WOULD
 NOT
 RESTRICT MANAGEMENT'S RIGHT TO SELECT EMPLOYEES OR REQUIRE
 MANAGEMENT TO
 FILL VACANCIES.  THIS CONTENTION IS INCONSISTENT WITH THE EXPRESS
 LANGUAGE OF THE PROPOSAL AND THEREFORE IS REJECTED.  IN THIS
 REGARD, IT
 IS NOTED THAT IF THE PROPOSAL WERE REVISED TO PERMIT
 MANAGEMENT TO
 EXERCISE ITS RIGHTS UNDER SECTION 7106 AND TO SET FORTH A
 PROCEDURE
 WHICH MANAGEMENT WOULD FOLLOW IN THE EXERCISE OF SUCH RIGHTS,
 SUCH A
 PROPOSAL WOULD BE NEGOTIABLE UNDER SECTION 7106(B)(2) OF THE
 STATUTE.
 SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1999 AND
 ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
 DIX, NEW
 JERSEY, 2 FLRA 152(1979), ENFORCED SUB NOM. DEPARTMENT OF
 DEFENSE V.
 FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981).
 
    /3/ IN REACHING THE MERITS HEREIN, THE AUTHORITY CONCLUDES,
 CONTRARY
 TO THE AGENCY'S CONTENTION, THAT THE AGENCY'S UNREQUESTED
 ALLEGATION
 DOES NOT MAKE THIS PETITION FOR REVIEW UNTIMELY.  SEE SECTION
 2424.3 OF
 THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.3).  RATHER, THE
 PETITION WAS TIMELY FILED, FOLLOWING THE UNION'S REQUEST FOR AN
 ALLEGATION AND THE AGENCY'S RESPONSE THERETO.  SEE AMERICAN
 FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3385 AND FEDERAL HOME
 LOAN BANK
 BOARD, DISTRICT 7, CHICAGO, ILLINOIS, 7 FLRA NO. 58(1981).