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The decision of the Authority follows:
23 FLRA No. 1 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1450 Union and U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Agency Case No. 0-NG-1171 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one provision of a negotiated agreement which was disapproved by the Agency head pursuant to section 7114(c) of the Statute. /1/ II. Provision Section 26: Performance Appraisals Annual performance appraisals will be frozen at the time of the general RIF Notice. This provision does not determine the date on which the Employer will freeze other personnel actions. In addition, Employer agrees to fill vacancies, for which affected Employees meet minimum X-118 standards, only with affected employees after issuance of the general RIF notice to maximize the number of positions available to affected employees. A. Positions of the Parties The Agency argues that the underline portion of this provision would interfere with its right, under section 7106(a)(2)(C)(ii) of the Statute, to fill positions from any appropriate source. The Union did not file a response in this case. B. Analysis The disputed portion of this provision, by its terms, would require the Agency to fill vacancies in a RIF situation only with affected employees who meet minimum X-118 standards. In this regard, the provision herein is to the same effect as a provision in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982), remanded as to other matters sub nom. Department of the Treasury, U.S. Customs Service v. Federal Labor Relations Authority, No. 82-2225 (D.C. Cir. Jan. 19, 1984), vacated by FLRA as to other matters, May 3, 1984, which provided in Article 12, sections 12A and B that for a 3-month period following a RIF affected employees be placed in vacant positions for which they qualify. In that decision, the Authority held that the provision violated the Agency's right to choose among candidates from "any appropriate source" pursuant to section 7106(a)(2)(C)(ii) of the Statute. Hence, for the reasons cited in U.S. Customs Service, the provision here in dispute must also be found to be outside the duty to bargain. While the Union does not argue that the disputed provision is an appropriate arrangement under section 7106(b)(3) of the Statute, /2/ the Authority notes that the provision is similar to union proposal 2 in National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA No. 105 (1986), which the Authority found to be an excessive interference with management's right to fill positions and, thus, not an appropriate arrangement under section 7106(b)(3). As indicated in Kansas Army National Guard, management's right to make selections for vacant positions includes the right to decide to fill or not fill a position and the right to determine the qualifications necessary to perform the work of the position. Management therefore retains the right in filling a position to determine whether any qualifications, in addition to basic qualification requirements such as those set forth in the X-118 standards, are necessary to accomplish the work of a position. In this case, the provision in dispute would effectively preclude the Agency from determining the requisite qualifications for vacant positions, that is, any qualifications beyond the minimum requirements of the X-118 standards. Such a total abrogation of management's right to act in this respect excessively interferes with management's right to fill positions and, therefore, is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See American Federation of Government Employees, Local 1799 and Department of the Army, Aberdeen Proving Ground, Maryland, 22 FLRA No. 62, slip op. at 6(1986). Furthermore, the provision is inconsistent with a Government-wide regulation, Requirement 4 of subchapter 1-4, chapter 335 of the Federal Personnel Manual, because it would prevent the Agency from making selections from any appropriate source in filling vacant positions. See American Federation of Government Employees, AFL-CIO, Local 2677 and Department of Health and Human Services, Office of Community Services, 21 FLRA No. 22 (1986). C. Conclusion Therefore, for the above reasons, the Authority finds that the provision in dispute is not within the duty to bargain. III. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., August 6, 1986. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Agency withdrew its allegation that the duty to bargain did not extend to a second provision concerning criteria to be used when taking an adverse action based on unacceptable performance. Hence, that provision will not be considered herein. (2) The Authority has determined that proposals which concern "arrangements" for employees adversely affected by the exercise of management rights are negotiable unless the arrangement excessively interferes with the exercise of those rights. National Association of Government Employees, Local R14-87, and Kansas Army National Guard, 21 FLRA No. 4 (1986).