American Federation of Government Employees, Local 2782, AFL-CIO (Union) and Department of Commerce, Bureau of the Census, Washington, DC (Agency) (Authority decision, October 30, 1981)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. 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 Census union proposed that an employee demoted through no fault of their own be selected for the first vacancy for which the employee qualified and the agency decided to fill. The Authority distinguished an earlier proposal that required only consideration of the employee. This proposal required selection and prevented management from choosing among qualified candidates. The Authority held it outside the duty to bargain and dismissed the petition.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(C), 5 U.S.C. § 7106(b)(3).
• Outcome: Repromotion proposal held nonnegotiable; petition dismissed.
• Key point: A mandatory selection rule interfered with management’s statutory selection right.

Full text (FLRA public release)

[ v07 p91 ]

07:0091(13)NG

The decision of the Authority follows:

7 FLRA No. 13

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2782
Union

and

DEPARTMENT OF COMMERCE,
BUREAU OF THE CENSUS,
WASHINGTON, D.C.
Agency

Case No. O-NG-352

DECISION AND ORDER ON NEGOTIABILITY ISSUE

THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE). THE ISSUE
PRESENTED IS THE NEGOTIABILITY OF THE FOLLOWING UNION PROPOSAL:

SECTION 5. NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, A
REPROMOTION ELIGIBLE

(I.E., AN EMPLOYEE DEMOTED THROUGH NO FAULT OF HIS OR HER OWN) WILL
BE SELECTED FOR THE FIRST

AVAILABLE VACANCY FOR WHICH HE OR SHE FULLY MEETS THE QUALIFICATION
STANDARDS AND WHICH THE

AGENCY DETERMINES TO FILL.

QUESTION BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE PROPOSAL, WHICH PERTAINS TO THE
REPROMOTION OF EMPLOYEES DOWNGRADED THROUGH NO FAULT OF THEIR OWN, IS
INCONSISTENT WITH SECTION 7106(A)(2)(C) OF THE STATUTE, /1/ AS ALLEGED
BY THE AGENCY.

OPINION

CONCLUSION AND ORDER: THE DISPUTED PROPOSAL IS INCONSISTENT WITH
SECTION 7106(A)(2)(C) OF THE STATUTE AND IS, THEREFORE, NOT WITHIN THE
DUTY TO BARGAIN. 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. /2/

REASONS: IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2782 AND DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON,
D.C., 6 FLRA NO. 56(1981), THE AUTHORITY FOUND THAT A PROPOSAL WHICH
PROVIDED, IN PERTINENT PART, THAT, "(E)XCEPT FOR GOOD CAUSE, (BARGAINING
UNIT EMPLOYEES INVOLUNTARILY DOWNGRADED WITHOUT PERSONAL CAUSE) WILL BE
REPROMOTED AT THE FIRST OPPORTUNITY," CONSTITUTED AN APPROPRIATE
ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE
OF
ITS AUTHORITY UNDER SECTION 7106(A) AND THEREFORE WAS WITHIN THE DUTY TO
BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE. /3/ IN SO FINDING, THE
AUTHORITY SPECIFICALLY RELIED UPON THE UNION'S INTERPRETATION OF ITS
PROPOSAL AS FOLLOWS:

THUS, THE UNION REASONABLY INTERPRETS ITS OWN PROPOSAL AS REQUIRING
THE AGENCY, WHEN IT

DECIDES TO FILL A VACANT BARGAINING UNIT POSITION FOR WHICH A
REPROMOTION ELIGIBLE EMPLOYEE IS

QUALIFIED, TO CONSIDER BUT NOT NECESSARILY TO SELECT THE REPROMOTION
ELIGIBLE

EMPLOYEE. ALTHOUGH THE AGENCY MUST HAVE "GOOD CAUSE" FOR EXERCISING
ITS DISCRETION NOT TO

PROMOTE THE REPROMOTION ELIGIBLE EMPLOYEE, "GOOD CAUSE" WOULD
INCLUDE, BUT NOT BE LIMITED TO,

SUCH CIRCUMSTANCES AS MANAGEMENT'S DECISION NOT TO FILL OR TO ABOLISH
THE VACANT POSITION OR

TO SELECT A BETTER QUALIFIED CANDIDATE FROM ANY APPROPRIATE SOURCE;
IN OTHER WORDS, "GOOD

CAUSE" AS USED IN THE UNION'S PROPOSAL WOULD ENCOMPASS THE RIGHTS
RESERVED TO MANAGEMENT UNDER

THE STATUTE.

BY CONTRAST, THE DISPUTED PROPOSAL IN THIS CASE WOULD REQUIRE THE
AGENCY, WHEN IT DECIDES TO FILL A VACANT BARGAINING UNIT POSITION FOR
WHICH A REPROMOTION ELIGIBLE EMPLOYEE IS QUALIFIED, NOT ONLY TO CONSIDER
BUT TO SELECT THE REPROMOTION ELIGIBLE EMPLOYEE. THE UNION CONCEDES
THAT ITS PROPOSAL "WOULD, IN EFFECT, NULLIFY SECTION 7106(A)(2)(C) UNDER
CERTAIN CIRCUMSTANCES . . . ," BUT CONTENDS THAT AN AGENCY'S RIGHT TO
SELECT FROM ANY APPROPRIATE SOURCE "MUST GIVE WAY . . . TO HIGHER,
HUMANITARIAN, VALUES IN CERTAIN CIRCUMSTANCES . . . (SUCH AS) WHEN THE
AGENCY DETERMINES TO ABOLISH OCCUPIED POSITIONS." /4/ HOWEVER, AS
PREVIOUSLY QUOTED HEREIN (NOTE 1, SUPRA), SECTION 7106(A)(2)(C)
EXPLICITLY REQUIRES THAT NOTHING IN THIS CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL, IN FILLING POSITIONS, TO MAKE
APPOINTMENTS FROM PROMOTION CERTIFICATES OR FROM ANY OTHER APPROPRIATE
SOURCE. THUS, THE STATUTE EXCLUDES FROM THE DUTY TO BARGAIN A PROPOSAL
SUCH AS THE ONE HERE INVOLVED WHICH WOULD PREVENT MANAGEMENT FROM
CONSIDERING OTHER APPLICANTS OR USING ANY OTHER APPROPRIATE SOURCES OF
CANDIDATES IN FILING A VACANCY. THE DISPUTED PROPOSAL IN THIS CASE
WOULD DIRECTLY INTERFERE WITH THE EXERCISE OF MANAGEMENT'S RIGHTS UNDER
SECTION 7106(A)(2)(C) TO CHOOSE AMONG CANDIDATES FROM APPROPRIATE
SOURCES IN FILLING A VACANCY AND, CONSEQUENTLY, CANNOT BE DEEMED AN
"APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED" BY
MANAGEMENT'S EXERCISE OF ITS STATUTORY RIGHTS, WITHIN THE MEANING OF
SECTION 7106(B)(3) OF THE STATUTE. /5/

ACCORDINGLY, THE AUTHORITY FINDS THAT THE PROPOSAL IS INCONSISTENT
WITH SECTION 7106(A)(2)(C) OF THE STATUTE AND THEREFORE CONCLUDES THAT
THE UNION'S PETITION FOR REVIEW MUST BE DISMISSED.

ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981.

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:

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/ IN VIEW OF THE AUTHORITY'S CONCLUSION THAT THE DISPUTED PROPOSAL
VIOLATES SECTION 7106(A)(2)(C) OF THE STATUTE AND THUS IS NONNEGOTIABLE,
IT IS UNNECESSARY TO CONSIDER THE AGENCY'S FURTHER CONTENTION THAT THE
PROPOSAL ALSO IS INCONSISTENT WITH GOVERNMENT-WIDE RULES OR REGULATIONS.

/3/ SECTION 7106(B)(3) PROVIDES:

SEC. 7106 MANAGEMENT RIGHTS

. . . .

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM

NEGOTIATING--

. . . .

(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY

AUTHORITY UNDER THIS SECTION . . . .

/4/ UNION RESPONSE TO THE AGENCY'S STATEMENT OF POSITION, AT PAGE 4.

/5/ SEE THE NATIONAL COUNCIL OF CSA LOCALS, AFGE, AFL-CIO AND THE
COMMUNITY SERVICES ADMINISTRATION, 3 FLRA NO. 13(1980); NATIONAL
FEDERATION OF FEDERAL EMPLOYEES LOCAL 1451 AND NAVY EXCHANGE, NAVAL
ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA, 3 FLRA NO. 60(1980). COMPARE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 331 AND
VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, 2 FLRA NO.
59(1980); ASSOCIATION OF CIVILIAN TECHNICIANS, DELAWARE CHAPTER AND
NATIONAL GUARD BUREAU, DELAWARE NATIONAL GUARD, 3 FLRA NO. 9(1980); AND
ASSOCIATION OF CIVILIAN TECHNICIANS, INC., PENNSYLVANIA STATE COUNCIL
AND ADJUTANT GENERAL, DEPARTMENT OF MILITARY AFFAIRS, PENNSYLVANIA, 4
FLRA NO. 10(1980).