American Federation of Government Employees, Local 2823 (Union) and Veterans Administration, Regional Office, Cleveland, Ohio (Agency) 

 8 FLRA No. 91
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2823
 Union
 
 and
 
 VETERANS ADMINISTRATION
 REGIONAL OFFICE
 CLEVELAND, OHIO
 Agency
 
                                            Case No. O-NG-441
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    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 PRESENTS ISSUES RELATING TO THE NEGOTIABILITY OF THE FOLLOWING UNION
 PROPOSAL.
 
    MANAGEMENT RETAINS THE RIGHT TO SELECT FROM ANY APPROPRIATE
 RECRUITMENT METHOD SUCH AS
 
    REASSIGNMENT, APPOINTMENT, PROMOTION, TRANSFER, REINSTATEMENT, OR
 DEMOTION.  MANAGEMENT WILL
 
    NOT USE A METHOD OTHER THAN THIS PROMOTION PLAN IF THREE OR MORE
 HIGH-QUALITY CANDIDATES CAN
 
    BE IDENTIFIED WITHIN THE MINIMUM OR EXTENDED AREA OF CONSIDERATION.
 THIS REQUIREMENT MAY BE
 
    WAIVED IF THE MINIMUM OR EXTENDED AREA OF CONSIDERATION DOES NOT
 PROVIDE CONSIDERATION OF
 
    CANDIDATES TO SATISFY THE FEORP (FEDERAL EQUAL OPPORTUNITY
 RECRUITMENT PROGRAM) PLAN.
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATION.
 THE UNION DESCRIBES ITS PROPOSAL AS OPERATING IN THE FOLLOWING MANNER:
 
    UNDER OUR PROPOSAL, A JOB ANNOUNCEMENT WOULD BE POSTED.  ALL
 APPLICANTS WOULD BE RATED AND
 
    RANKED.  IF THREE OR MORE OF THE RATED CANDIDATES WERE FOUND TO BE OF
 HIGH QUALITY, THE
 
    SELECTING OFFICIAL WOULD MAKE A DECISION WHETHER TO SELECT ONE OF THE
 CANDIDATES OR TO NOT
 
    FILL THE VACANCY.  IF, ON THE OTHER HAND, THERE WERE NOT THREE HIGH
 QUALITY CANDIDATES, THE
 
    AREA OF CONSIDERATION COULD BE EXTENDED.  IF, AFTER EXTENDING THE
 AREA OR DECIDING NOT TO
 
    EXTEND THE AREA, THREE HIGH QUALITY CANDIDATES COULD NOT BE FOUND,
 MANAGEMENT COULD THEN
 
    RECRUIT FROM ANY APPROPRIATE SOURCE.  THIS IS WHERE MANAGEMENT WOULD
 RETAIN ITS RIGHT TO
 
    SELECT FROM OTHER APPROPRIATE SOURCES.
 
    THUS, ACCORDING TO THE UNION, ITS PROPOSAL WOULD PREVENT THE AGENCY
 FROM EXPANDING THE AREA OF CONSIDERATION OR MAKING A SELECTION FROM ANY
 OTHER APPROPRIATE SOURCE IF THREE "HIGH QUALITY" CANDIDATES ARE
 IDENTIFIED UNDER THE NEGOTIATED MERIT PROMOTION PROCEDURE.
 
    IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1451 AND NAVY
 EXCHANGE, NAVAL ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA, 3 FLRA 392
 (1980), THE AUTHORITY HELD NONNEGOTIABLE A PROPOSAL WHICH WOULD HAVE
 PREVENTED MANAGEMENT FROM EXPANDING THE AREA OF CONSIDERATION OR
 SELECTING CANDIDATES FROM ANY OTHER APPROPRIATE SOURCE IF THE BARGAINING
 UNIT PRODUCED THREE MINIMALLY QUALIFIED APPLICANTS.  THE AUTHORITY FOUND
 THE PROPOSAL TO BE INCONSISTENT WITH THE SELECTION RIGHTS OF MANAGEMENT
 UNDER SECTION 7106(A)(2)(C) OF THE STATUTE.  /1/
 
    THE DISPUTED PROPOSAL IN THE PRESENT CASE BEARS NO MATERIAL
 DIFFERENCE FROM THE ONE HELD NONNEGOTIABLE IN THE NAVY EXCHANGE
 DECISION.  HENCE, FOR THE REASONS FULLY SET FORTH IN THAT DECISION, THE
 UNION PROPOSAL HEREIN IS NOT WITHIN THE DUTY TO BARGAIN UNDER 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 (1981)), IT IS
 ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND IT HEREBY IS,
 DISMISSED.
 
    ISSUED, WASHINGTON, D.C., APRIL 30, 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 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(.)