American Federation of Government Employees, Local 32, AFL-CIO (Union) and Office of Personnel Management, Washington, DC (Agency)

 



[ v08 p460 ]
08:0460(97)NG
The decision of the Authority follows:


 8 FLRA No. 97
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 32
 Union
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-157
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    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) (5 U.S.C. 7101
 ET SEQ.).  THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE FOLLOWING
 PROPOSALS.
 
                             UNION PROPOSAL I
 
    SECTION 2 OF ARTICLE 7
 
    THIS ARTICLE CONTAINS THE PROCEDURES WHICH MANAGEMENT WILL USE IN
 PROMOTING EMPLOYEES AND
    OTHERWISE FILLING POSITIONS AND MAKING WORK ASSIGNMENTS.
 
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL I IS OUTSIDE THE DUTY TO
 BARGAIN UNDER THE STATUTE BECAUSE IT IS INTENDED TO APPLY TO
 NONBARGAINING UNIT POSITIONS, AS ALLEGED BY THE AGENCY.  /1/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL I DOES CONCERN CONDITIONS OF
 EMPLOYMENT OF BARGAINING UNIT EMPLOYEES.  THEREFORE, IT IS WITHIN THE
 AGENCY'S DUTY TO BARGAIN UNDER 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 AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL I.
  /2/
 
    REASONS:  NEITHER THE EXPRESS LANGUAGE OF UNION PROPOSAL I NOR THE
 UNION'S STATED INTENT WITH RESPECT THERETO REQUIRE THAT THE PROPOSAL BE
 CONSTRUED TO APPLY TO FILLING POSITIONS AND MAKING WORK ASSIGNMENTS
 OUTSIDE THE BARGAINING UNIT, CONTRARY TO THE AGENCY'S CONTENTION.  THE
 AUTHORITY SO CONSTRUES THE PROPOSAL FOR PURPOSES OF THIS DECISION.
 SINCE THE PROPOSAL APPLIES MERELY PREFATORY LANGUAGE CONCERNING
 PROCEDURES FOR FILLING POSITIONS AND MAKING WORK ASSIGNMENTS WITHIN THE
 BARGAINING UNIT, IT IS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.
 SEE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND
 PHILADELPHIA NAVAL SHIPYARD, 3 FLRA 437, 444-445(1980).
 
                             UNION PROPOSAL II
 
    SECTION 3 OF ARTICLE 7
 
    EXCEPT WHERE MANAGEMENT IS REQUIRED BY LAW, REGULATION, OR THIS
 CONTRACT TO SELECT A
 
    PARTICULAR PERSON, SELECTIONS FOR VACANCIES WILL BE MADE BY OFFICIALS
 CHOOSING FROM A
    CERTIFICATE OF BEST-QUALIFIED APPLICANTS FOR THE POSITION.  THE
 PARTIES MAY, FROM TIME TO
    TIME, AGREE TO DEVIATIONS FROM THIS REQUIREMENT IN INDIVIDUAL CASES
 OR CATEGORIES OF CASES,
    WHEN THEY DEEM IT ADVISABLE FOR AFFIRMATIVE ACTION OR OTHER
 LEGITIMATE PURPOSES.  THE PARTIES
    NOTE THAT THEY ARE IN DISAGREEMENT OVER THE AGENCY'S CLAIM THAT 5
 U.S.C. 7106(A) GIVES IT THE
    LEGAL RIGHT OR DUTY TO UNILATERALLY DISREGARD THE COMPETITIVE
 ELECTION REQUIREMENT UNDER
    CERTAIN CIRCUMSTANCES.  THE MERITS OF THE MANAGEMENT CLAIM IN ANY
 PARTICULAR CASE WILL BE
    CONSIDERED BY THE PARTIES IN THEIR EFFORTS TO RESOLVE ANY OBLIGATION
 OF ARBITRATORS TO
    INTERPRET CONTRACT PROVISIONS IN LIGHT OF GOVERNING LAW. THE PARTIES
 NOTE FURTHER THAT AN
    ARBITRATION AWARD ORDERING REMEDIES CONTRARY TO GOVERNING LAW MAY BE
 OVERTURNED ON APPEAL TO
    THE FEDERAL LABOR RELATIONS AUTHORITY.
 
 
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL II IS INCONSISTENT WITH THE
 AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C) OF THE STATUTE /3/ TO
 MAKE SELECTIONS FOR APPOINTMENTS, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL II IS INCONSISTENT WITH THE
 AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C)(II) OF THE STATUTE TO
 MAKE SELECTIONS FOR APPOINTMENTS FROM APPROPRIATE SOURCES OTHER THAN THE
 ONE DESCRIBED BY SECTION 7106(A)(2)(C)(I) AND IS THEREFORE NOT WITHIN
 THE DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR B424.10(1981)), IT IS ORDERED
 THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION
 PROPOSAL II BE, AND IT HEREBY IS, DISMISSED.  /4/
 
    REASONS:  THE EXPRESS LANGUAGE OF UNION PROPOSAL II REQUIRES, INTER
 ALIA, THAT THE AGENCY MAKE SELECTIONS FOR FILLING VACANCIES FROM A
 CERTIFICATE OF BEST-QUALIFIED APPLICANTS EXCEPT WHERE LAW, REGULATION OR
 THE AGREEMENT BETWEEN THE PARTIES REQUIRE THAT A PARTICULAR PERSON BE
 SELECTED OR UNLESS THE PARTIES AGREE TO OTHER EXCEPTIONS.  MOREOVER, THE
 UNION EXPLAINS THE INTENDED MEANING OF UNION PROPOSAL II AS REQUIRED
 "MANAGEMENT (TO) CREATE ONE SINGLE CERTIFICATE CONTAINING THE
 BEST-QUALIFIED APPLICANTS FROM ALL SOURCES . . . .  THIS WOULD ENSURE
 THAT THE SELECTION WOULD BE MADE FROM THE BEST QUALIFIED OF ALL THE
 APPLICANTS . . . ."
 
    THUS, THE EXPRESS LANGUAGE OF UNION PROPOSAL II AND THE UNION'S
 STATED INTENT WITH RESPECT TO THE PROPOSAL MAKE IT CLEAR THAT UNDER THE
 PROPOSAL THE AGENCY WOULD BE RESTRICTED TO MAKING SELECTIONS FOR
 APPOINTMENTS FROM AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR
 PROMOTION UNDER SECTION 71-6(A)(2)(C)(I) OF THE STATUTE AND AS A
 COROLLARY THERETO, THE AGENCY COULD NOT MAKE SELECTIONS FOR APPOINTMENTS
 FROM ANY OTHER APPROPRIATE SOURCE UNDER SECTION 7106(A)(2)(C)(II) OF THE
 STATUTE SUCH AS REEMPLOYMENT PRIORITY LISTS, REINSTATEMENT, TRANSFER,
 HANDICAPPED, OR VETERANS READJUSTMENT ELIGIBLES, OR THOSE WITHIN REACH
 ON AN APPROPRIATE OFFICE OF PERSONNEL MANAGEMENT CERTIFICATE.  /5/ SINCE
 THE PROPOSAL WOULD PRECLUDE THE AGENCY FROM MAKING SELECTIONS DIRECTLY
 FROM APPROPRIATE SOURCES OTHER THAN CERTIFICATES, IT IS INCONSISTENT
 WITH SECTION 7106(A)(2)(C)(II) OF THE STATUTE AND THEREFORE IS NOT
 WITHIN THE DUTY TO BARGAIN.
 
                            UNION PROPOSAL III
 
    SECTION 4 OF ARTICLE 7
 
    EACH EMPLOYEE BELOW THE JOURNEYMAN LEVEL IN A CAREER LADDER WILL BE
 PROMOTED TO THE NEXT
    HIGHER GRADE UPON MEETING THE QUALIFICATION REQUIREMENTS AND
 DEMONSTRATING THE ABILITY TO
    PERFORM AT THE HIGHER LEVEL.  THE JOURNEYMAN LEVEL WILL BE THAT GRADE
 FOR WHICH THERE IS WORK
    AVAILABLE FOR ALL MEMBERS OF THE CAREER LADDER GROUP.  TO THE EXTENT
 POSSIBLE, THE AGENCY WILL
    DOCUMENT AND MAKE KNOWN TO AFFECTED EMPLOYEES THE EXISTENCE AND RANGE
 OF EACH CAREER LADDER.
 
 
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL III IS INCONSISTENT WITH THE
 AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C) OF THE STATUTE TO MAKE
 SELECTIONS FOR APPOINTMENTS, AND, IF NOT, WHETHER IT CONCERNS A MATTER
 RELATING TO THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES OR POSITIONS
 ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT, OR TOUR OF
 DUTY, WHICH, UNDER SECTION 7106(B)(1) OF THE STATUTE, /6/ IS NEGOTIABLE
 ONLY AT THE ELECTION OF THE AGENCY.
 
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL III IS NEITHER INCONSISTENT
 WITH THE AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C) OF THE STATUTE
 TO MAKE SELECTIONS FOR APPOINTMENTS, NOR WITH THE AGENCY'S AUTHORITY TO
 DETERMINE THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES OR POSITIONS
 ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT, OR TOUR OF
 DUTY, WHICH UNDER SECTION 7106(B)(1) OF THE STATUTE, IS NEGOTIABLE ONLY
 AT THE ELECTION OF THE AGENCY.  THEREFORE, IT IS WITHIN THE AGENCY'S
 DUTY TO BARGAIN UNDER 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 AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED
 TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL III.  /7/
 
    REASONS:  THE RECORD DOES NOT INDICATE THAT THE TERMINOLOGY "CAREER
 LADDER PROMOTION" AS USED IN UNION PROPOSAL III IS INTENDED TO BE GIVEN
 A MEANING OTHER THAN ITS USUAL MEANING WHEN USED IN CONNECTION WITH
 FEDERAL PERSONNEL MATTERS.  IN THIS REGARD, PERSONNEL MANUAL CHAPTER
 335, SUBCHAPTER 1-5(C)(1)(A) DESCRIBES A CAREER PROMOTION AS INCLUDING:
 
    A PROMOTION WITHOUT CURRENT COMPETITION WHEN AT AN EARLIER STAGE AN
 EMPLOYEE WAS SELECTED
    FROM A CIVIL SERVICE REGISTER OR UNDER COMPETITIVE PROMOTION
 PROCEDURES FOR AN ASSIGNMENT
    INTENDED TO PREPARE THE EMPLOYEE FOR THE POSITION BEING FILLED (THE
 INTENT MUST BE MADE A
    MATTER OF RECORD AND CAREER LADDERS MUST BE DOCUMENTED IN THE
 PROMOTION PLAN) . . . .
 
    THUS, IN ESSENCE, THE FEDERAL PERSONNEL MANUAL DEFINES A "CAREER
 LADDER PROMOTION" AS THE NONCOMPETITIVE PROMOTION OF AN EMPLOYEE WHO IS
 PART OF A GROUP SELECTED COMPETITIVELY AT AN EARLIER STAGE FOR CAREER
 LADDER POSITIONS, WITH THE RECORDED INTENTION OF PREPARING THE EMPLOYEES
 FOR SUCCESSIVE PROMOTIONS.  IT IS CLEAR UNDER THE FEDERAL PERSONNEL
 MANUAL THAT THE AGENCY COULD PROMOTE INDIVIDUAL MEMBERS OF THE GROUP
 WHO, AS REQUIRED BY THE PROPOSAL HEREIN, HAVE DEMONSTRATED ABILITY TO
 PERFORM AT THE NEXT HIGHER LEVEL, PROVIDED THAT THERE IS ENOUGH WORK AT
 THE FULL PERFORMANCE LEVEL /8/ FOR ALL EMPLOYEES IN THE GROUP.  A CAREER
 LADDER PROMOTION, THEN, IS THE DIRECT RESULT OF THE AGENCY'S DECIDING TO
 SELECT THE EMPLOYEE AND PLACING THE EMPLOYEE IN A CAREER LADDER POSITION
 IN THE AGENCY.  IT FOLLOWS THAT THE AGENCY'S SELECTING AN EMPLOYEE FOR
 AND PLACING THAT EMPLOYEE IN A CAREER LADDER POSITION ALSO CONSTITUTES
 THE AGENCY'S DECISION TO PROMOTE THAT EMPLOYEE NONCOMPETITIVELY AT
 APPROPRIATE STAGES IN THE EMPLOYEE'S CAREER UP TO THE FULL PERFORMANCE
 LEVEL OF THE POSITION ONCE THE REQUISITE CONDITIONS HAVE BEEN MET.
 
    ON THE BASIS OF THE ABOVE, IT IS CLEAR THAT A CAREER LADDER
 PROMOTION, AS REFERENCED IN THE PROPOSAL, WOULD MERELY BE A MINISTERIAL
 ACT IMPLEMENTING THE AGENCY'S EARLIER DECISION MADE PURSUANT TO ITS
 DISCRETION UNDER SECTION 7106(1)(2)(C) TO SELECT AND PLACE THE EMPLOYEE
 INVOLVED IN A CAREER LADDER POSITION, WITH THE INTENTION OF PREPARING
 THE EMPLOYEE FOR SUCCESSIVE NONCOMPETITIVE PROMOTIONS WHEN THE
 CONDITIONS PRESCRIBED BY THE PROPOSAL AND THE FEDERAL PERSONNEL MANUAL
 ARE OTHERWISE MET.  AS SUCH, THE PROPOSAL CONSTITUTES A NEGOTIABLE
 PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE /9/ WHICH DOES NOT
 DIRECTLY INTERFERE WITH THE AGENCY'S RIGHT TO MAKE SELECTIONS FOR
 APPOINTMENTS UNDER SECTION 7106(A)(2)(C) OF THE STATUTE.  /10/
 
    LIKEWISE, UNION PROPOSAL III DOES NOT DIRECTLY INTERFERE WITH THE
 AGENCY'S AUTHORITY TO DETERMINE THE NUMBERS, TYPES, AND GRADES OF
 EMPLOYEES OR POSITIONS UNDER SECTION 7106(B)(1) OF THE STATUTE BECAUSE
 THE PROPOSAL DOES NOT SEEK TO ESTABLISH THESE MATTERS BUT RATHER LEAVES
 THAT FUNCTION TO THE AGENCY.  UNDER THE PROPOSAL THE AGENCY RETAINS THE
 AUTHORITY TO DECIDE WHAT POSITIONS, HOW MANY POSITIONS, AND THE GRADE
 LEVEL OF THE POSITIONS WHICH WILL BE ESTABLISHED AS CAREER LADDER
 POSITIONS AND THEREFORE UNION PROPOSAL III IS WITHIN THE AGENCY'S DUTY
 TO BARGAIN.
 
                             UNION PROPOSAL IV
 
    SECTION 7 OF ARTICLE 7
 
    UNLESS THE MATTER IS OUTSIDE THE SCOPE OF BARGAINING, THE PARTIES
 WILL IN THEIR
    NEGOTIATIONS OVER AFFIRMATIVE ACTION DETERMINE THE NUMBER AND TYPES
 OF VACANCIES TO BE
    RESERVED FOR FILLING THROUGH THE UPWARD MOBILITY PROGRAM EACH YEAR.
 
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL IV IS INCONSISTENT WITH THE
 AGENCY'S AUTHORITY TO HIRE AND ASSIGN EMPLOYEES UNDER SECTION
 7106(A)(2)(A) OF THE STATUTE.  /11/
 
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL IV IS INCONSISTENT WITH THE
 AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(A) OF THE STATUTE TO HIRE
 AND ASSIGN EMPLOYEES.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION
 PROPOSAL IV BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  UNION PROPOSAL IV WHICH DEALS WITH THE NUMBER AND TYPES OF
 VACANCIES TO BE RESERVED FOR FILLING THROUGH THE UPWARD MOBILITY PROGRAM
 BEARS NO MATERIAL DIFFERENCE FROM THE UNION PROPOSAL WHICH WAS BEFORE
 THE AUTHORITY, AND HELD NOT TO BE WITHIN THE AGENCY'S DUTY TO BARGAIN
 UNDER THE STATUTE, IN THE NATIONAL TREASURY EMPLOYEES UNION CASE.  /12/
 IN THAT CASE, THE AUTHORITY DETERMINED THAT A UNION PROPOSAL REQUIRING
 THE AGENCY TO FILL A CERTAIN PERCENTAGE OF POSITIONS THROUGH UPWARD
 MOBILITY WAS INCONSISTENT WITH THE AGENCY'S AUTHORITY UNDER SECTION
 7106(A)(2)(A) OF THE STATUTE TO HIRE AND ASSIGN EMPLOYEES.  FOR THE
 REASONS FULLY SET FORTH IN THE NATIONAL TREASURY EMPLOYEES UNION CASE,
 THE PROPOSAL HERE IN DISPUTE MUST ALSO BE HELD NOT TO BE WITHIN THE DUTY
 TO BARGAIN UNDER THE STATUTE SINCE IT IS INCONSISTENT WITH THE AGENCY'S
 AUTHORITY TO HIRE AND ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF
 THE STATUTE.
 
                             UNION PROPOSAL V
 
    SECTION 14 OF ARTICLE 7
 
    UNLESS THE SELECTING OFFICIAL CHOOSES TO CANCEL THE VACANCY, THE
 SELECTION WILL BE MADE
    WITHIN TWO WEEKS OF THE RECEIPT OF THE CERTIFICATE.
 
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL V IS INCONSISTENT WITH THE
 AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C) OF THE STATUTE TO MAKE
 SELECTIONS FOR APPOINTMENTS.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL V IS NOT INCONSISTENT WITH THE
 AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(C) OF THE STATUTE TO MAKE
 SELECTIONS FOR APPOINTMENTS.  THEREFORE, IT IS WITHIN THE AGENCY'S DUTY
 TO BARGAIN UNDER 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 AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
 THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL V.  /13/
 
    REASONS:  THIS PROPOSAL WOULD REQUIRE THAT WHEN THE AGENCY SEEKS TO
 FILL A VACANT POSITION FROM A CERTIFICATE OF ELIGIBLE CANDIDATES IT WILL
 MAKE ITS SELECTION, IF ANY, WITHIN TWO WEEKS OR CANCEL THE VACANCY.
 THUS, THE PROPOSAL WOULD ESTABLISH A PROCEDURAL TIME LIMIT FOR THE
 AGENCY'S EXERCISE OF ITS RIGHTS PURSUANT TO SECTION 7106(A)(2)(C) OF THE
 STATUTE TO FILL THE POSITION FROM A PARTICULAR CERTIFICATE OF
 CANDIDATES.  ON ITS FACE, THE PROPOSAL ONLY WOULD APPLY WHERE MANAGEMENT
 HAS CHOSEN A CERTIFICATE AS THE SOURCE FROM WHICH IT WISHES TO CONSIDER
 CANDIDATES AND/OR MAKE A SELECTION;  IT WOULD NOT HAVE THE EFFECT OF
 PREVENTING THE AGENCY FROM CONSIDERING AND SELECTING A CANDIDATE FROM
 ANY OTHER APPROPRIATE SOURCE.  MOREOVER, THE PROPOSAL WOULD NOT REQUIRE
 THE AGENCY TO SELECT FORM A CERTIFICATE WITHIN TWO WEEKS, OR PREVENT THE
 AGENCY FROM REESTABLISHING THE VACANCY AND OBTAINING ADDITIONAL
 CERTIFICATES IN THE EVENT THE PROCEDURAL TIME LIMIT EXPIRES BEFORE A
 SELECTION HAS BEEN MADE.  THEREFORE, THE PROPOSAL CONCERNS THE
 "PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE" IN
 EXERCISING THEIR RIGHTS AND IS NEGOTIABLE UNDER SECTION 7106(B)(2) OF
 THE STATUTE.
 
                             UNION PROPOSAL VI
 
    SECTION 15 OF ARTICLE 7
 
    NORWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT, A REPROMOTION
 ELIGIBLE (I.E., AN
    EMPLOYEE DEMOTED THROUGH NO FAULT OF HIS OR HER OWN) WILL BE SELECTED
 FOR THE FIRST VACANCY AT
    HIS OR HER FORMER GRADE LEVEL WHICH MANAGEMENT WOULD OTHERWISE FILL
 COMPETITIVELY, FOR WHICH
    THE EMPLOYEE IS QUALIFIED AND FOR WHICH HE OR SHE APPLIES, UNLESS
 THERE ARE PERSUASIVE REASONS
    FOR PASSING THE EMPLOYEE OVER.  AN EMPLOYEE WILL RETAIN THIS
 ELIGIBILITY UNTIL REPROMOTED TO HIS OR HER FORMER GRADE.
 
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL VI, WHICH PERTAINS TO THE
 REPROMOTION OF EMPLOYEES INVOLUNTARILY DEMOTED WITHOUT PERSONAL CAUSE,
 IS INCONSISTENT WITH SECTION 7106(A)(2)(C) OF THE STATUTE, AS ALLEGED BY
 THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL VI IS INCONSISTENT WITH SECTION
 7106(A)(-)(C) OF THE STATUTE AND THEREFORE IS NOT WITHIN THE AGENCY'S
 DUTY TO BARGAIN UNDER 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 PORTION OF THE UNION'S PETITION FOR REVIEW
 RELATING TO UNION PROPOSAL VI BE, AND IT HEREBY IS, DISMISSED.  /14/
 
    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.  /15/ 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 RECORD IN THE PRESENT CASE INDICATES THAT THE PHRASE
 "PERSUASIVE REASONS" IN UNION PROPOSAL VI WAS NOT INTENDED TO INCLUDE
 SUCH REASONS 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, "PERSUASIVE REASONS" AS USED IN
 THIS PROPOSAL WOULD NOT ENCOMPASS THE RIGHTS RESERVED TO MANAGEMENT
 UNDER THE STATUTE.  HENCE, UNION PROPOSAL VI 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.  /16/
 ACCORDINGLY, UNION PROPOSAL VI IS INCONSISTENT WITH SECTION
 7106(A)(2)(C) OF THE STATUTE AND THEREFORE IS NOT WITHIN THE DUTY TO
 BARGAIN.
 
    ISSUED, WASHINGTON, D.C., MAY 7, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2
 AND DEPARTMENT OF THE ARMY, MILITARY DISTRICT OF WASHINGTON, 4 FLRA NO.
 60(1980) IN WHICH THE AUTHORITY ANALYZED THE DUTY TO BARGAIN UNDER THE
 STATUTE AND CONCLUDED THAT:  "(T)HE DUTY TO BARGAIN APPLIES ONLY TO
 THOSE CONDITIONS OF EMPLOYMENT WHICH AFFECT EMPLOYEES WITHIN THE
 BARGAINING UNIT."
 
    /2/ IN DECIDING THAT UNION PROPOSAL I IS WITHIN THE DUTY TO BARGAIN,
 THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERIT.
 
    /3/ 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(.)
 
    /4/ IN VIEW OF THE AUTHORITY'S CONCLUSION THAT UNION PROPOSAL II IS
 INCONSISTENT WITH SECTION 7106(A)(2)(C) OF THE STATUTE, AND THEREFORE
 NOT WITHIN THE DUTY TO BARGAIN, IT IS UNNECESSARY TO CONSIDER THE
 AGENCY'S FURTHER CONTENTION THAT THE PROPOSAL IS ALSO INCONSISTENT WITH
 PROVISIONS SET FORTH IN THE FEDERAL PERSONNEL MANUAL.
 
    /5/ SEE FEDERAL PERSONNEL MANUAL, CHAPTER 335, SUBCHAPTER 1-4,
 REQUIREMENT 4, WHEREIN THESE SOURCES ARE ENUMERATED.
 
    /6/ SECTION 7106(B)(1) PROVIDES IN PERTINENT PART:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   *          *          *          *
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY(.)
 
    /7/ IN DECIDING THAT UNION PROPOSAL III IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERIT.
 
    /8/ UNION PROPOSAL III USES THE TERMINOLOGY "JOURNEYMAN LEVEL" BUT
 THE RECORD DOES NOT INDICATE THAT THIS PHRASE HAS A DIFFERENT MEANING
 FROM "FULL PERFORMANCE LEVEL," THE TERMINOLOGY USED IN THE FEDERAL
 PERSONNEL MANUAL.
 
    /9/ SECTION 7106(B)(2) PROVIDES:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   *          *          *          *
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   *          *          *          *
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION(.)
 
    /10/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
 FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA
 603, 610-614(1980), ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL
 LABOR RELATIONS AUTHORITY, 659 F.2D 1140(D.C. CIR.  1981).
 
    /11/ SECTION 7106(A)(2)(A) PROVIDES IN PERTINENT PART:
 
    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--
 
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    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, . . . ASSIGN, . . . EMPLOYEES IN THE AGENCY(.)
 
    /12/ NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE SERVICE,
 2 FLRA 280 (1979).
 
    /13/ IN DECIDING THAT UNION PROPOSAL V IS WITHIN THE DUTY TO BARGAIN,
 THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERIT.
 
    /14/ IN VIEW OF THE AUTHORITY'S CONCLUSION THAT UNION PROPOSAL VI IS
 INCONSISTENT WITH SECTION 7106(A)(2)(C) OF THE STATUTE, AND THEREFORE
 NOT WITHIN THE DUTY TO BARGAIN, IT IS UNNECESSARY TO CONSIDER THE
 AGENCY'S FURTHER CONTENTION THAT THE PROPOSAL ALSO IS INCONSISTENT WITH
 A GOVERNMENT-WIDE RULE OR REGULATION.
 
    /15?  SECTION 7106(B)(3) PROVIDES:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   *          *          *          *
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM NEGOTIATING--
 
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