09:0816(104)NG - AFSCME Local 29l0 and Library of Congress, Washington, DC -- 1982 FLRAdec NG

 9 FLRA No. 104
 
 AMERICAN FEDERATION OF
 STATE, COUNTY AND
 MUNICIPAL EMPLOYEES,
 AFL-CIO, LOCAL 2910
 Union
 
 and
 
 LIBRARY OF CONGRESS,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-470
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE 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 PROPOSAL.
 
                              UNION PROPOSAL
 
    ONLY EMPLOYEES WHO OCCUPIED BARGAINING UNIT POSITIONS IMMEDIATELY
 PRIOR TO PLACEMENT MAY BE
 
    PLACED INTO OTHER BARGAINING UNIT POSITIONS IN A REDUCTION-IN-FORCE
 OR I;  A SELECTION UNDER A
 
    PRIORITY PLACEMENT PLAN.  PERSONS FROM OUTSIDE A BARGAINING UNIT MAY
 NOT BE PLACED INTO
 
    BARGAINING UNIT POSITIONS EXCEPT PURSUANT TO ARTICLE XVIII, MERIT
 EMPLOYMENT AND PROMOTIONS,
 
    OF THE COLLECTIVE BARGAINING AGREEMENT.
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATION.
 UNDER SECTION 7106(A)(2)(C) OF THE STATUTE, /1/ MANAGEMENT HAS THE
 RIGHT, IN FILLING POSITIONS, TO MAKE APPOINTMENTS FROM PROMOTION
 CERTIFICATES OR FROM ANY OTHER APPROPRIATE SOURCE.  IN THIS REGARD, THE
 AUTHORITY HELD NEGOTIABLE A PROPOSAL WHICH ESTABLISHED A CONTRACTUAL
 REQUIREMENT FOR MANAGEMENT TO USE THE COMPETITIVE PROCEDURE OUTLINED IN
 THE MERIT PROMOTION PLAN TO IDENTIFY CANDIDATES WHO WILL BE CONSIDERED
 FIRST FOR THE PLACEMENT ACTIONS SPECIFIED IN THE PROPOSAL, BUT NEITHER
 REQUIRED A SELECTION TO BE MADE FROM THAT GROUP OF CANDIDATES NOR
 PREVENTED MANAGEMENT FROM EXERCISING ITS STATUTORY RIGHT UNDER SECTION
 7106(A)(2)(C)(II) TO MAKE A SELECTION FROM "ANY OTHER APPROPRIATE
 SOURCE" ONCE MANAGEMENT HAD SATISFIED THE CONTRACTUAL REQUIREMENT.
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 909 AND
 DEPARTMENT OF THE ARMY, HEADQUARTERS, MILITARY TRAFFIC MANAGEMENT
 COMMAND, WASHINGTON, D.C., 6 FLRA NO. 96(1981), RECONSIDERATION DENIED,
 APR. 12, 1982.  SEE ALSO NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL
 REVENUE SERVICE, 7 FLRA NO. 42(1981).
 
    THE EXPRESS LANGUAGE OF THE DISPUTED PROPOSAL IN THE PRESENT CASE, IN
 CONTRAST, WOULD PREVENT THE CONSIDERATION AND SELECTION OF CANDIDATES
 WHO WERE NOT IN BARGAINING UNIT POSITIONS PRIOR TO VARIOUS SPECIFIED
 ACTIONS EXCEPT PURSUANT TO THE "MERIT EMPLOYMENT AND PROMOTIONS"
 PROCEDURES OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  IN THAT
 EVENT, EVEN IF, AS THE UNION CLAIMS, THE PROPOSAL WOULD NOT REQUIRE THE
 AGENCY TO FILL BARGAINING UNIT VACANCIES WITH EMPLOYEES WHO HAD HELD
 BARGAINING UNIT POSITIONS PRIOR TO ONE OF THE SPECIFIED ACTIONS, THE
 PROPOSAL WOULD LIMIT THE AGENCY'S CONSIDERATION AND SELECTION OF OTHER
 CANDIDATES TO ONLY THOSE CANDIDATES WHO APPLIED AND COMPETED UNDER THE
 CONTRACTUAL "MERIT EMPLOYMENT AND PROMOTIONS" PROCEDURES.  THUS, THE
 FULL EFFECT OF THE PROPOSAL WOULD BE THAT, IN A REDUCTION IN FORCE OR
 SELECTION UNDER A PRIORITY PLACEMENT PLAN, MANAGEMENT COULD SELECT ONLY
 FROM CANDIDATES WHO APPLIED UNDER THE PARTIES' CONTRACTUAL COMPETITIVE
 PROCEDURES OR FROM THOSE EMPLOYEES WHO HELD BARGAINING UNIT POSITIONS
 PRIOR TO BEING AFFECTED BY A REDUCTION IN GRADE OR REDUCTION IN FORCE
 ACTION.  THE PROPOSAL, HOWEVER, WOULD NOT ALLOW A SELECTION TO BE MADE
 FROM OTHER APPROPRIATE SOURCES.  THUS, THE PROPOSAL WOULD DIRECTLY
 INTERFERE WITH THE EXERCISE OF MANAGEMENT'S RIGHTS UNDER SECTION
 7106(A)(2)(C)(II) TO CHOOSE AMONG CANDIDATES FROM ANY APPROPRIATE SOURCE
 IN FILLING BARGAINING UNIT POSITIONS AND IS OUTSIDE THE DUTY TO BARGAIN.
  /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 OF THE UNION'S PROPOSAL BE, AND IT HEREBY IS, DISMISSED.  /3/
 
    ISSUED, WASHINGTON, D.C., AUGUST 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:
 
    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(.)
 
    /2/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
 FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE 0ASE, OHIO, 2 FLRA
 604(1980), ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR
 RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981), CERT. DENIED SUB
 NOM. AFGE V. FLRA, U.S.  , 102 S.CT. 1443(1982) (PROPOSAL PROVIDING
 MANAGEMENT THE OPTION IN MAKING CERTAIN SELECTIONS TO USE COMPETITIVE
 PROCEDURES WHICH ULTIMATELY PRESERVED THE RIGHT TO SELECT FROM ANY
 APPROPRIATE SOURCE, AS AN ALTERNATIVE TO SENIORITY, WAS NEGOTIABLE).
 
    /3/ IN VIEW OF THE DECISION THAT SECTION 7106(A)(2)(C) OF THE STATUTE
 BARS NEGOTIATION ON THE PROPOSAL, IT IS UNNECESSARY TO CONSIDER THE
 REMAINING CONTENTIONS OF THE AGENCY.