American Federation of Government Employees, Local 1533 and Naval Supply Center Oakland (Authority decision, February 4, 1982)

Final FLRA decision. The Authority held the union's repromotion proposal outside the duty to bargain and dismissed the negotiability appeal. An aggrieved person may petition an appropriate United States court of appeals for review within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 1533 proposed that employees affected by a reduction in force be repromoted in retention order as vacancies arose at the Naval Supply Center in Oakland. The agency argued that the proposal would restrict its right to select employees for appointments. The Authority agreed that the proposal's wording required selection in a fixed order and directly interfered with that management right. It dismissed the union's petition on the merits. The decision imposed no penalty.

Decision snapshot

• Authority: 5 U.S.C. §§ 7105(a)(2)(E) and 7106(a)(2)(C).
• Outcome: Repromotion proposal held nonnegotiable; petition dismissed.
• Key point: A mandatory retention-order selection rule intruded on management's right to choose candidates for vacancies.

Full text (FLRA public release)

[ v08 p33 ]

08:0033(6)NG

The decision of the Authority follows:

8 FLRA No. 6

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1533
Union

and

NAVAL SUPPLY CENTER
OAKLAND, CALIFORNIA
Agency

Case No. 0-NG-263

DECISION AND ORDER ON NEGOTIABILITY APPEAL

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 THE QUESTION OF THE NEGOTIABILITY OF A UNION
PROPOSAL. UPON
CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES'
CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
DETERMINATIONS.

UNION PROPOSAL

EMPLOYEE REPROMOTION AFTER REDUCTION-IN-FORCE.
REPROMOTION WILL BE
IN RETENTION ORDER AND

WILL BE APPLIED AS VACANCIES OCCUR.

IN AGREEMENT WITH THE AGENCY, THE AUTHORITY CONCLUDES THAT
THE
PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT WOULD
DIRECTLY
INTERFERE WITH MANAGEMENT'S RIGHTS UNDER SECTION 7106(A)(2)(C) /1/
OF
THE STATUTE BY REQUIRING THE AGENCY TO SELECT REPROMOTION
ELIGIBLE
EMPLOYEES IN RETENTION ORDER AFTER A REDUCTION-IN-FORCE AS
VACANCIES
OCCUR. IN THIS REGARD, THE PROPOSAL BEARS NO MATERIAL
DIFFERENCE FROM
THE PROPOSAL FOUND NONNEGOTIABLE PURSUANT TO SECTION
7106(A)(2)(C) IN
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), APPEAL DOCKETED, NO. 81-2386 (D.C. CIR. DEC. 29, 1981).
FOR THE REASONS FULLY SET FORTH THEREIN, THE PROPOSAL HERE IN
DISPUTE
MUST LIKEWISE BE FOUND NONNEGOTIABLE. /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 BE, AND IT HEREBY IS, DISMISSED. /3/

ISSUED, WASHINGTON, D.C., FEBRUARY 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, IN RELEVANT PART, 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(.)

/2/ THE UNION CONTENDS, IN ESSENCE, THAT THE PROPOSAL WOULD
NOT
RESTRICT MANAGEMENT'S RIGHT TO SELECT EMPLOYEES OR REQUIRE
MANAGEMENT TO
FILL VACANCIES. THIS CONTENTION IS INCONSISTENT WITH THE EXPRESS
LANGUAGE OF THE PROPOSAL AND THEREFORE IS REJECTED. IN THIS
REGARD, IT
IS NOTED THAT IF THE PROPOSAL WERE REVISED TO PERMIT
MANAGEMENT TO
EXERCISE ITS RIGHTS UNDER SECTION 7106 AND TO SET FORTH A
PROCEDURE
WHICH MANAGEMENT WOULD FOLLOW IN THE EXERCISE OF SUCH RIGHTS,
SUCH A
PROPOSAL WOULD BE NEGOTIABLE UNDER SECTION 7106(B)(2) OF THE
STATUTE.
SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1999 AND
ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
DIX, NEW
JERSEY, 2 FLRA 152(1979), ENFORCED SUB NOM. DEPARTMENT OF
DEFENSE V.
FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981).

/3/ IN REACHING THE MERITS HEREIN, THE AUTHORITY CONCLUDES,
CONTRARY
TO THE AGENCY'S CONTENTION, THAT THE AGENCY'S UNREQUESTED
ALLEGATION
DOES NOT MAKE THIS PETITION FOR REVIEW UNTIMELY. SEE SECTION
2424.3 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.3). RATHER, THE
PETITION WAS TIMELY FILED, FOLLOWING THE UNION'S REQUEST FOR AN
ALLEGATION AND THE AGENCY'S RESPONSE THERETO. SEE AMERICAN
FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3385 AND FEDERAL HOME
LOAN BANK
BOARD, DISTRICT 7, CHICAGO, ILLINOIS, 7 FLRA NO. 58(1981).