23:0003(1)NG - NFFE Local 1450 and HUD -- 1986 FLRAdec NG

 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).