AFGE Local 2823 and Veterans Administration Regional Office, Cleveland, Ohio (Authority decision, April 30, 1982)

Final FLRA decision. The Authority resolved a negotiability appeal and dismissed the union’s petition. An aggrieved person may seek judicial review in a United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 2823 proposed that the Cleveland Veterans Administration office use its promotion plan whenever it identified at least three high-quality candidates. The Authority found that the proposal would prevent the office from considering a wider pool or another appropriate source in those circumstances. That conflicted with management’s statutory selection right, so the Authority dismissed the negotiability petition.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(C).
• Outcome: Promotion-plan restriction held outside the duty to bargain; petition dismissed.
• Key point: A union proposal cannot force selection from one candidate source when the statute preserves other appropriate sources.

Full text (FLRA public release)

[ v08 p422 ]

08:0422(91)NG

The decision of the Authority follows:

8 FLRA No. 91

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2823
Union

and

VETERANS ADMINISTRATION
REGIONAL OFFICE
CLEVELAND, OHIO
Agency

Case No. O-NG-441

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 PRESENTS ISSUES RELATING TO THE NEGOTIABILITY OF THE FOLLOWING UNION
PROPOSAL.

MANAGEMENT RETAINS THE RIGHT TO SELECT FROM ANY APPROPRIATE
RECRUITMENT METHOD SUCH AS

REASSIGNMENT, APPOINTMENT, PROMOTION, TRANSFER, REINSTATEMENT, OR
DEMOTION. MANAGEMENT WILL

NOT USE A METHOD OTHER THAN THIS PROMOTION PLAN IF THREE OR MORE
HIGH-QUALITY CANDIDATES CAN

BE IDENTIFIED WITHIN THE MINIMUM OR EXTENDED AREA OF CONSIDERATION.
THIS REQUIREMENT MAY BE

WAIVED IF THE MINIMUM OR EXTENDED AREA OF CONSIDERATION DOES NOT
PROVIDE CONSIDERATION OF

CANDIDATES TO SATISFY THE FEORP (FEDERAL EQUAL OPPORTUNITY
RECRUITMENT PROGRAM) PLAN.

UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATION.
THE UNION DESCRIBES ITS PROPOSAL AS OPERATING IN THE FOLLOWING MANNER:

UNDER OUR PROPOSAL, A JOB ANNOUNCEMENT WOULD BE POSTED. ALL
APPLICANTS WOULD BE RATED AND

RANKED. IF THREE OR MORE OF THE RATED CANDIDATES WERE FOUND TO BE OF
HIGH QUALITY, THE

SELECTING OFFICIAL WOULD MAKE A DECISION WHETHER TO SELECT ONE OF THE
CANDIDATES OR TO NOT

FILL THE VACANCY. IF, ON THE OTHER HAND, THERE WERE NOT THREE HIGH
QUALITY CANDIDATES, THE

AREA OF CONSIDERATION COULD BE EXTENDED. IF, AFTER EXTENDING THE
AREA OR DECIDING NOT TO

EXTEND THE AREA, THREE HIGH QUALITY CANDIDATES COULD NOT BE FOUND,
MANAGEMENT COULD THEN

RECRUIT FROM ANY APPROPRIATE SOURCE. THIS IS WHERE MANAGEMENT WOULD
RETAIN ITS RIGHT TO

SELECT FROM OTHER APPROPRIATE SOURCES.

THUS, ACCORDING TO THE UNION, ITS PROPOSAL WOULD PREVENT THE AGENCY
FROM EXPANDING THE AREA OF CONSIDERATION OR MAKING A SELECTION FROM ANY
OTHER APPROPRIATE SOURCE IF THREE "HIGH QUALITY" CANDIDATES ARE
IDENTIFIED UNDER THE NEGOTIATED MERIT PROMOTION PROCEDURE.

IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1451 AND NAVY
EXCHANGE, NAVAL ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA, 3 FLRA 392
(1980), THE AUTHORITY HELD NONNEGOTIABLE A PROPOSAL WHICH WOULD HAVE
PREVENTED MANAGEMENT FROM EXPANDING THE AREA OF CONSIDERATION OR
SELECTING CANDIDATES FROM ANY OTHER APPROPRIATE SOURCE IF THE BARGAINING
UNIT PRODUCED THREE MINIMALLY QUALIFIED APPLICANTS. THE AUTHORITY FOUND
THE PROPOSAL TO BE INCONSISTENT WITH THE SELECTION RIGHTS OF MANAGEMENT
UNDER SECTION 7106(A)(2)(C) OF THE STATUTE. /1/

THE DISPUTED PROPOSAL IN THE PRESENT CASE BEARS NO MATERIAL
DIFFERENCE FROM THE ONE HELD NONNEGOTIABLE IN THE NAVY EXCHANGE
DECISION. HENCE, FOR THE REASONS FULLY SET FORTH IN THAT DECISION, THE
UNION PROPOSAL HEREIN IS NOT WITHIN THE DUTY TO BARGAIN UNDER SECTION
7106(A)(2)(C) OF THE STATUTE. 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., APRIL 30, 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 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(.)