09:0158(21)NG - NTEU and NTEU Chapter 213 and Energy, Washington, DC -- 1982 FLRAdec NG (Authority decision, June 23, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving a negotiability appeal under 5 U.S.C. § 7117. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A union proposed that all bargaining unit vacancies be filled under the Department of Energy headquarters classification and placement plan. The Authority found that the proposal restricted management’s statutory choice of candidates from appropriate sources. It dismissed the negotiability petition.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(C).
• Outcome: Proposal held nonnegotiable; petition dismissed.
• Key point: Management retained the statutory right to choose among appropriate sources for appointments.

Full text (FLRA public release)

[ v09 p158 ]

09:0158(21)NG

The decision of the Authority follows:

9 FLRA No. 21

NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 213
Union

and

DEPARTMENT OF ENERGY,
WASHINGTON, D.C.
Agency

Case No. 0-NG-205

DECISION AND ORDER ON NEGOTIABILITY ISSUE

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 (THE STATUTE),
AND RAISES ISSUES REGARDING THE NEGOTIABILITY OF THE FOLLOWING UNION
PROPOSAL. /1/

UNION PROPOSAL

ALL BARGAINING UNIT VACANCIES OCCURRING AFTER OCTOBER 21, 1979 WILL
BE FILLED IN ACCORDANCE

WITH THE DOE HEADQUARTERS CLASSIFICATION AND PLACEMENT PLAN.

UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
CONTENTIONS OF THE PARTIES, THE AUTHORITY MAKES THE FOLLOWING
DETERMINATION. UNDER SECTION 7106(A)(2)(C) OF THE STATUTE, /2/
MANAGEMENT HAS THE RIGHT, IN FILLING POSITIONS, TO MAKE APPOINTMENTS
FROM PROMOTION CERTIFICATES OR FROM ANY OTHER APPROPRIATE SOURCE. THE
PROPOSAL IN THIS CASE WOULD REQUIRE THE AGENCY, WHEN IT DECIDES TO FILL
A VACANT BARGAINING UNIT POSITION, NOT ONLY TO CONSIDER BUT TO SELECT A
PARTICIPANT OF THE AGENCY'S "CLASSIFICATION AND PLACEMENT PLAN."
MOREOVER, IN THIS REGARD, THE UNION SPECIFICALLY STATES THAT "(T)HE
EFFECT OF THIS PROPOSAL WOULD REQUIRE MANAGEMENT TO FILL BARGAINING UNIT
VACANCIES OCCURRING AFTER THE IMPLEMENTATION OF DOE HEADQUARTERS
DOWNGRADINGS . . . WITH PLAN PARTICIPANTS AND PRECLUDE NON-PLAN
PARTICIPANTS FROM BEING LATERALLY REASSIGNED OR TRANSFERRED INTO SUCH
VACANCIES." THEREFORE, THE PROPOSAL DIRECTLY INTERFERES WITH THE
AGENCY'S AUTHORITY TO MAKE SELECTIONS FOR APPOINTMENTS FROM PROMOTION
CERTIFICATES OR ANY OTHER APPROPRIATE SOURCE UNDER SECTION 7106(A)(2)(C)
OF THE STATUTE AND IS NOT WITHIN THE DUTY TO BARGAIN. SEE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2782 AND DEPARTMENT
OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON, D.C., 7 FLRA NO. 13
(1981).

ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE UNION'S
PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., JUNE 23, 1982

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ THE UNION ALSO FILED AN UNFAIR LABOR PRACTICE CHARGE BASED UPON
THE SAME MATTER. PURSUANT TO SECTIONS 2423.5 AND 2424.5 OF THE
AUTHORITY'S RULES AND REGULATIONS, THE UNION ELECTED TO PROCEED WITH THE
UNFAIR LABOR PRACTICE CHARGE (3-CA-579) AND TO HAVE THE NEGOTIABILITY
APPEAL HELD IN ABEYANCE. THE CHARGE WAS LATER WITHDRAWN PURSUANT TO AN
INFORMAL SETTLEMENT AGREEMENT BETWEEN THE PARTIES.

/2/ SECTION 7106(A)(2)(C) PROVIDES AS FOLLOWS:

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(.)