The National Council of CSA Locals, AFGE, AFL-CIO (Union) and The Community Services Administration (Activity) (Authority decision, April 28, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A union proposed limiting the area of consideration for vacancies when at least five qualified internal candidates were available. The Authority found the proposal would prevent management from considering other appropriate candidates. It sustained the agency’s nonnegotiability allegation under its statutory selection right.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(C).
• Outcome: Agency nonnegotiability allegation sustained.
• Key point: The proposal would restrict management’s choice of candidates.

Full text (FLRA public release)

[ v03 p84 ]

03:0084(13)NG

The decision of the Authority follows:

3 FLRA No. 13

THE NATIONAL COUNCIL OF CSA LOCALS,
A.F.G.E., AFL-CIO
(Union)

and

THE COMMUNITY SERVICES ADMINISTRATION
(Activity)

Case No. 0-NG-127

DECISION ON NEGOTIABILITY ISSUE

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5. U.S.C.SECTION 7101 ET SEQ.).

UNION PROPOSAL

ARTICLE 14, SECTION 12, MERIT PROMOTION-- IF FIVE IN-HOUSE EMPLOYEES
(INCLUDING SPECIAL

RECRUITMENT APPLICANTS) WITHIN THE AREA OF CONSIDERATION ARE RATED
QUALIFIED, THE AREA OF

CONSIDERATION SHALL NOT BE EXTENDED. IF LESS THAN FIVE SUCH
EMPLOYEES ARE RATED QUALIFIED, A

SELECTION MAY BE MADE OR THE AREA MAY BE EXTENDED, AT THE OPTION OF
THE SELECTING OFFICIAL.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL CONCERNING THE FILLING
OF VACANT POSITIONS IS A MATTER OUTSIDE THE DUTY TO BARGAIN ESTABLISHED
BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, OR VIOLATES
SECTION 7106(A)(2)(C) OF THE STATUTE, /1/ AS ALLEGED BY THE AGENCY.

OPINION

CONCLUSION: THE UNION'S PROPOSAL IS NOT WITHIN THE AGENCY'S DUTY TO
BARGAIN UNDER THE STATUTE AND VIOLATES SECTION 7106(A)(2)(C) THEREOF.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (45 FED.REG. 3482 ET SEQ.(1980)), THE AGENCY'S ALLEGATION
THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS
SUSTAINED.

REASONS: UNDER THE LANGUAGE OF SECTION 7106(A)(2)(C) OF THE STATUTE
MANAGEMENT HAS THE RIGHT, INTER ALIA, "WITH RESPECT TO FILLING
POSITIONS, TO MAKE SELECTIONS . . . " THE AGENCY INTERPRETS THE INTENT
OF THE PROPOSAL TO BE "THAT WHERE MANAGEMENT DOES NOT SELECT FROM THE
REFERENCED CERTIFICATE, IT CAN NOT FILL THE POSITION." THE PROPOSAL ON
ITS FACE IS SUBJECT TO THE INTERPRETATION SUGGESTED BY THE AGENCY AND,
IN THE ABSENCE OF ANY INDICATION IN THE RECORD THAT THE UNION INTENDED A
DIFFERENT MEANING, THE AGENCY'S INTERPRETATION IS ADOPTED FOR THE
PURPOSE OF THIS DECISION, I.E., THAT THE PROPOSAL WOULD OPERATE TO
PREVENT THE AGENCY FROM EXERCISING ITS RIGHT TO SELECT WITHIN THE
MEANING OF SECTION 7106(A)(2)(C) OF THE STATUTE. THUS, THE PROPOSAL
WOULD REQUIRE MANAGEMENT TO SELECT ONE OF THE FIVE QUALIFIED APPLICANTS
FROM WITHIN THE MINIMUM AREA OF CONSIDERATION, AND WOULD RESTRICT
MANAGEMENT'S DISCRETION TO CONSIDER OTHER CANDIDATES ONLY TO A SITUATION
WHERE THERE ARE LESS THAN FIVE QUALIFIED APPLICANTS WITHIN THE AREA OF
CONSIDERATION. ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE PROPOSAL
IS NOT WITHIN THE DUTY TO BARGAIN MUST BE SUSTAINED. /2/

ISSUED, WASHINGTON, D.C., APRIL 28, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. GRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ SECTION 7106(A)(2)(C) OF THE STATUTE (92 STAT. 1198) 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
APPOINTEES FROM--

(I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION; OR

(II) ANY OTHER APPROPRIATE SOURCE . . .

/2/ COMPARE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 331 AND VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND,
CASE NO. O-NG-17, 2 FLRA NO. 59 (JANUARY 17, 1980), WHEREIN THE
AUTHORITY CONCLUDED THAT A PROPOSAL WHICH WOULD REQUIRE ONLY THAT
CONSIDERATION BE GIVEN TO EMPLOYEES WITHIN THE BARGAINING UNIT IN
FILLING VACANT POSITIONS BUT WOULD NOT PREVENT MANAGEMENT FROM
CONSIDERING OTHER APPLICANTS, OR EXPANDING THE AREA OF CONSIDERATION
ONCE BARGAINING UNIT EMPLOYEES WERE CONSIDERED, OR USING ANY OTHER
APPROPRIATE SOURCE IN FILLING SUCH VACANCIES, DID NOT PREVENT MANAGEMENT
FROM EXERCISING ITS RESERVED RIGHT TO SELECT. COMPARE ALSO, ASSOCIATION
OF CIVILIAN TECHNICIANS, DELAWARE CHAPTER, CASE NO. O-NG-104, 2 FLRA NO.
9(APRIL 14, 1980).