[ v14 p243 ]
14:0243(45)NG
The decision of the Authority follows:
14 FLRA No. 45
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE
Agency
Case No. O-NG-421
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises issues
concerning the negotiability of six provisions of two nationwide
agreements covering the district, region, and national offices (NORD)
and the service centers (Centers) which were disapproved by the Agency
head /1/ pursuant to section 7114(c) of the Statute. /2/
Provision 1
Article 2, Section 1
The provision in each agreement reads as follows:
In the administration of all matters covered by this Agreement,
the parties are governed by existing or future laws and
Government-wide rules or regulations in effect upon the effective
date of this Agreement.
Question Before the Authority
The question is whether this provision is inconsistent with Federal
law, as alleged by the Agency.
Opinion
Conclusion and Order: Provision 1 is not inconsistent with Federal
law and is within the duty to bargain. Accordingly, pursuant to section
2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the
Agency head shall rescind the disapproval of Provision 1, which was
bargained on and agreed to by the parties at the nationwide level. /3/
Reasons: Provision 1 provides that existing Federal laws,
Government-wide rules or regulations, and laws enacted after the
effective date of the negotiated agreement will prevail over terms of
the agreement in the event of a conflict. In essence then Provision 1
establishes that, whenever provisions contained in the negotiated
agreement conflict with Government-wide rules or regulations issued
after the date the agreement became effective, the agreement provisions
will prevail. According to the Agency, the provision by providing that
the terms of the negotiated agreement supersede the application of
subsequently issued Government-wide rules or regulations and agency
policies, rules and regulations, whenever there is a conflict, is
inconsistent with sections 7116(a)(7) and 7117(a)(1) and (2) of the
Statute. The Agency also contends the provision is outside the duty to
bargain under section 7117(a)(2) because it does not provide that Agency
policies, rules and regulations in effect upon the effective date of the
parties' agreement take precedence over conflicting provisions in the
agreement. /4/
With respect to subsequently issued regulations, the Authority
concludes that Provision 1 is to the same effect as the provisions
before the Authority in National Treasury Employees Union and Department
of the Treasury, U.S. Customs Service, 9 FLRA No. 138(1982), remanded as
to other matters sub nom. Department of the Treasury, U.S. Customs
Service v. FLRA No. 82-2225 (D.C. Cir. Jan. 19, 1984), wherein the
Authority concluded the disputed provisions were consistent with the
language of the Statute and its legislative history and thus were within
the duty to bargain. In that case, based upon sections 7116(a)(7) and
7117(a)(1) and (2) of the Statute, /5/ the Authority held that, once a
collective bargaining agreement becomes effective, subsequently issued
rules or regulations, with the exception of Government-wide rules or
regulations issued under 5 U.S.C. 2302, cannot nullify the terms of such
a collective bargaining agreement.
As to the contentions concerning Agency regulations in existence on
the effective date of the agreement, the Authority does not find support
for the Agency's claim that the provision is inconsistent with section
7117(a)(2) because it provides that the collective bargaining agreement
would supersede existing Agency regulations in the event of a conflict.
First, the provision itself does not purport to make Agency regulations
subordinate to conflicting agreement provisions. It simply does not
deal with the matter of Agency regulations. In any event, under section
7117(a)(2) of the Statute and section 2424.11 of the Authority's Rules
and Regulations, an agency has the burden of coming forward with
affirmative support for assertions that its regulations bar negotiations
on conflicting proposals because there is a "compelling need" for the
regulations. /6/ In the present case, the Agency head disapproved
Provision 1 without even claiming a conflict exists between any Agency
regulation and the agreement. Thus, it has made no showing whatsoever
to support a finding by the Authority that the provision is outside the
duty to bargain under section 7117(a)(2) of the Statute. /7/
Accordingly, since Provision 1 herein, which is essentially to the
same effect as the ones held to be negotiable in U.S. Customs Service,
is, for the reasons set forth above and in that case, within the duty to
bargain.
Provision 2
Article 8, Section 1A
These provisions read:
(NORD) The Employer agrees that an employee who is detailed to
a position of higher grade for thirty (30) calendar days or more
will be temporarily promoted and receive the rate of pay for the
position to which he/she is temporarily promoted. The Employer
further agrees to refrain from rotating assignments of employees
to avoid compensation at the higher level.
(Service Centers) The Employer agrees that an employee who is
detailed to a position of higher grade for thirty (30) calendar
days or more will be temporarily promoted and receive the rate of
pay for the position to which he or she is temporarily promoted.
The Employer further agrees to refrain from rotating assignments
of employees to avoid compensation at the higher level. However,
this section shall not apply to assignment of groups of employees
between functions in a Center to meet fluctuations in workload.
(Only the underscored language is in dispute.)
Question Before the Authority
The question is whether, as alleged by the Agency, Provision 2 is
inconsistent with management's right to assign employees under section
7106(a)(2)(A) of the Statute.
Opinion
Conclusion and Order: Provision 2 is inconsistent with the right to
assign employees under section 7106(a)(2)(A) and thus is outside the
duty to bargain. Accordingly, pursuant to section 2424.10 of the
Authority's Rules and Regulations, IT IS ORDERED that the petition for
review of this disputed provision be, and it hereby is, dismissed.
Reasons: The Union states that this provision is intended to prevent
management from detailing employees to avoid paying higher compensation.
/8/ In this regard, the Union argues that, since the provision would
bar detailing for only that reason, management's right to assign
employees under section 7106(a)(2)(A) would not be violated because
management would retain the discretion to detail employees for any other
reason. The Union further argues that the provision is intended to be
identical in effect to a proposal found negotiable in American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604(1980)
(Proposal XV), enforced sub nom. Department of Defense v. FLRA, 659
F.2d 1104 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455
U.S. 945, 102 S.Ct. 1443(1982), which required temporary promotion of
employees detailed to perform duties of higher graded positions.
As to the latter argument, the provision in this case is clearly
distinguishable from the proposal found to be within the duty to bargain
in Wright-Patterson. The proposal in that case simply required
promotion after the agency exercised its right to assign. The provision
herein by its plain language would actually prevent management from
rotating assignments.
It is well established that under section 7106(a)(2)(A) of the
Statute /9/ the right to assign an employee to a position includes the
discretion to determine which employee will be assigned. See American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604(1980),
enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C.
Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct.
1443(1982). Thus, a proposal which divests management of its discretion
to assign employees is inconsistent with section 7106(a)(2)(A) of the
Statute and therefore nonnegotiable. American Federation of Government
Employees, AFL-CIO, Local 3529 and Defense Contract Audit Agency, 3 FLRA
301(1980). In this connection, a proposal which would have required
work assignments to be rotated weekly was held to be nonnegotiable
because it would conflict with management's right to assign employees
under section 7106(a)(2)(A). Management would have been restricted in
making new assignments, or in modifying, terminating, or continuing
existing ones as it deemed necessary or desirable. American Federation
of Government Employees, AFL-CIO, Local 695 and Department of the
Treasury, U.S. Mint, Denver, Colorado, 3 FLRA 43(1980).
Based on the Union's interpretation of this provision, it would bar
management's rotating assignments of employees for the purpose of
avoiding the temporary promotion of such employees. Contrary to the
Union's argument, a provision which would substantively restrict
management's exercise of its right to assign employees would directly
interfere with that right and, thus, is outside the duty to bargain.
See National Federation of Federal Employees, Local 1650 and U.S. Forest
Service, Angeles National Forest, 12 FLRA No. 114(1983) (Union Proposal
1). Since the provision in the present case would substantively
restrict management's right to rotate employee assignments, it would
directly interfere with section 7106(a)(2)(A) of the Statute and is
outside the duty to bargain.
Provision 3
Article 13, Section 4B (NORD)
Article 12, Section 4B (Center)
The provision in each agreement reads:
The Employer agrees that work will not be reassigned for the
purpose of avoiding reclassification during a classification
appeal.
Question Before the Authority
The question is whether, as alleged by the Agency, Provision 3 is
inconsistent with management's right to assign work under section
7106(a)(2)(B) of the Statute.
Opinion
Conclusion and Order: Provision 3 is not inconsistent with section
7106(a)(2)(B) and is within the duty to bargain. Accordingly, pursuant
to section 2424.10 of the Authority's Rules and Regulations, IT IS
ORDERED that the Agency head shall rescind the disapproval of Provision
3, which was bargained on and agreed to by the parties at the nationwide
level. /10/
Reasons: The Union explains the intent of this provision as follows:
"If an employee has filed a classification appeal pursuant to 5 C.F.R.
511.603, we want the employer not to reassign work only during the
appeal and only if its motive is to avoid a reclassification." /11/
Based upon the Union's interpretation, which is consistent with the
language of the provision, the provision would simply require that
reassignments of work pertaining to employees and positions involved in
classification appeals will be delayed until completion of the appeal if
they are intended to negate the basis for the appeal.
It is now well established that the Statute does not preclude
negotiation of a proposed procedure merely because it would delay action
involving the exercise of a management right. Rather, section
7106(b)(2) of the Statute /12/ authorizes an exclusive representative to
negotiate fully on procedures except to the extent that such
negotiations would prevent agency management from acting at all. /13/
Thus, contrary to the Agency's allegation that the provision would
interfere with its right to assign work under section 7106(a)(2)(B) of
the Statute, there is nothing in the record to indicate that a delay
with respect to a reassignment of work pending the decision in a
classification appeal would prevent the Agency from acting at all with
respect to such right. Therefore, Provision 3 is not inconsistent with
section 7106(a)(2)(B) but sets forth a procedure which is within the
duty to bargain under section 7106(b)(2) of the Statute.
Provision 4
Article 21, Section 3 (Center) provides:
A. The Employer agrees to consider requests for assignments to
prime shift vacancies from employees assigned to second or third
shifts, on the following basis:
1. Employees must be qualified for the vacant position; and
2. Employees who have been assigned to the second or third
shift or combination thereof for the longest period will be given
first consideration.
B. The Employer agrees to grant requests for assignments to
prime shift vacancies if an employee has served on the second or
third shifts or a combination thereof for more than one (1)
complete year provided that granting such requests shall be
contingent on the conditions of (1) and (2) of (A) above.
(Only Section 3B is in dispute.)
Question Before the Authority
The question is whether, as alleged by the Agency, this provision is
inconsistent with management's right under section 7106(a)(2)(A) to
assign employees and with its right under section 7106(a)(2)(C) to make
selections when filling positions. /14/
Opinion
Conclusion and Order: This provision is not inconsistent with
section 7106(a)(2) of the Statute and is within the duty to bargain.
/15/ Accordingly, pursuant to section 2424.10 of the Authority's Rules
and Regulations, IT IS ORDERED that the Agency head shall rescind the
disapproval of Provision 4, which was bargained on and agreed to by the
parties at the nationwide level. /16/
Reasons: Based on the record, Provision 4 concerns the assignment of
employees from the second or third shift to the prime shift. Such
assignments to shifts do not involve different positions or different
duties, but only involve employees' performing the duties of their
positions during a different shift of work. See American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613(1980), enforced
sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981),
cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443(1982).
Thus, in American Federation of Government Employees, AFL-CIO, National
Joint Council of Food Inspection Locals and Department of Agriculture,
Food Safety and Quality Service, Washington, D.C., 9 FLRA No. 74(1982),
a proposal that solely concerned which employee among those in the
bargaining unit to whom management in its discretion had already
assigned the work involved would be selected to perform such work in an
overtime status when management determined that overtime was required
was found to be negotiable. Cf. American Federation of Government
Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 5 FLRA No. 15(1981) (Criteria for selecting which
employee will temporarily perform previously assigned duties at a
different location are within the duty to bargain). Therefore, contrary
to the Agency, Provision 4 herein, which is concerned with the shifts
established by management on which employees will perform the duties of
their positions, is not outside the duty to bargain under section
7106(a)(2)(A) of the Statute.
Likewise, the Agency's contention that the provision is inconsistent
with section 7106(a)(2)(C) of the Statute cannot be sustained. Section
7106(a)(2)(C) is concerned with filling positions. Provision 4, as
already stated, does not involve assignments to different positions.
Hence, section 7106(a)(2)(C) is inapplicable to bar negotiations on this
provision. Moreover, should an employee's move to the prime shift under
the provision result in management's filling a vacant position on the
second or third shift, nothing in the provision would effect the manner
in which management makes its selection. Thus, the provision is not
outside the duty to bargain under section 7106(a)(2)(C) of the Statute.
Provision 5
Article 25, Section 2C (NORD) provides:
1. Any WAE employee within six (6) calendar months of full
retirement eligibility (i.e., Office of Personnel Management
requirements for age, length of service and one (1) full year
service out of last two (2) years before separation) who is in an
active duty status may request exemption in writing from the
requirements of this Agreement.
2. Any such employee as described in 1 above will be granted
exemption from competitive placement in a non-duty status for a
period of no longer than six months from the date he/she would
otherwise be furloughed and such employee will be retained in an
active duty status to the extent the work is available until the
date of reaching full eligibility. (Only the underscored language
is in dispute).
Article 24, Section 4B (Service Centers) provides:
A. Any WAE employee within six (6) calendar months of full
retirement eligibility (i.e. Office of Personnel Management
requirements for age, length of service and one full year service
out of last two years before separation) who is in an active duty
status may request exemption in writing from the requirements of
this agreement.
B. Any such employee as described in A above will be granted
exemption from competitive placement in a non-duty status for a
period of no longer than six (6) calendar months from the date
he/she would otherwise be furloughed and such employee will be
retained in an active duty status until the date of reaching full
eligibility. (Only the underscored language is in dispute.)
Question Before the Authority
The question is whether, as alleged by the Agency, this provision is
inconsistent with management's right under section 7106(a)(2)(A) of the
Statute to layoff employees.
Opinion
Conclusion and Order: The provision is inconsistent with
management's right to layoff employees under section 7106(a)(2)(A) of
the Statute and, thus, is outside the duty to bargain. Accordingly,
pursuant to section 2424.10 of the Authority's Rules and Regulations, IT
IS ORDERED that the petition for review of this disputed provision be,
and it hereby is, dismissed.
Reasons: With respect to these provisions, the Agency states as
follows: /17/
Both contract provisions establish the requirement that, where
a WAE employee is within six months of full retirement
eligibility, in an active duty status, and requests an exemption
from certain furlough/recall provisions in writing, management
will grant the employee exemption from normal procedures for
placement in a non-duty status for a period up to six months and
will further retain such employee in an active duty status until
reaching full retirement eligibility.
The Agency contends that these provisions would interfere with
management's rights to determine which WAE employees to layoff or to
retain in an active duty status under section 7106(a)(2)(A) of the
Statute. /18/ The Union argues that the parties have "merely agreed to
a 'stay' (of no more than six months) of the decision to furlough an
individual close to retirement." /19/ Hence, the provisions would only
delay but would not prevent the exercise of the management right
involved and are negotiable. /20/
In American Federation of Government Employees, AFL-CIO, Local 3805
and Federal Home Loan Bank Board, Boston District Office, 5 FLRA No.
94(1981), the Authority determined that a proposal which required that
incumbent bank examiners remain assigned to their present duty stations
did not merely delay the exercise of the agency's right to eliminate
certain official duty stations but prevented the agency from eliminating
those duty stations insofar as the incumbent bank examiners were
concerned and, thus, the proposal was found to be outside the duty to
bargain. The "stay" of no more than six months involved herein would
have an effect analogous to that of the delay proposed in Federal Home
Loan Bank Board. That is, the provisions in dispute herein would
prevent the Agency from acting at all to layoff those covered WAE
employees who request exemption from layoff and then retire within six
months.
As to the right to layoff employees, in National Treasury Employees
Union and Internal Revenue Service, 7 FLRA No. 42(1981), the Authority
found that a proposal which compelled the layoff of particular WAE
employees directly interfered with the agency's discretion to determine
which employees to layoff and was outside the duty to bargain under
section 7106(a)(2)(A) of the Statute. Further, the Authority has
decided that a proposal which in effect preserved absolute employment
security for bargaining unit employees directly interfered with the
agency's right to "layoff" those employees and was outside the duty to
bargain under section 7106(a)(2)(A) of the Statute. American Federation
of Government Employees, AFL-CIO, National Council of EEOC Locals and
Equal Employment Opportunity Commission, 10 FLRA No. 1(1982) (Union
Proposal 3). Thus, in the present case, by preventing the Agency from
laying off any WAE employee who is within six months of full retirement
eligibility, the provisions interfere with the Agency's discretion to
determine which employees to layoff, once the Agency has decided it is
necessary to layoff any WAE employees. Therefore, the Authority must
find that these provisions are inconsistent with management's right to
layoff employees under section 7106(a)(2)(A) of the Statute and are
outside the duty to bargain. /21/
Provision 6
Article 29, Section 1A (NORD)
Article 28, Section 1A (center)
The provisions in each agreement read as follows:
Reassignments will not be used in lieu of discipline. When an
involuntary reassignment is necessary due to a staffing imbalance,
the employee at the affected post of duty with the least IRS
length of service who meets the position requirements will be
reassigned. (Only the underscored language is in dispute.)
Question Before the Authority
The question is whether, as alleged by the Agency, the provision is
inconsistent with management's right to assign employees under section
7106(a)(2)(A) of the Statute.
Opinion
Conclusion and Order: This provision is not inconsistent with
section 7106(a)(2)(A) of the Statute and is within the duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency head shall rescind the
disapproval of Provision 6, which was bargained on and agreed to by the
parties at the nationwide level. /22/
Reasons: This provision requires management to select employees by
inverse seniority when it chooses to use involuntary reassignment to
correct a staffing imbalance. The Union states that under the provision
management retains the discretion to limit the selection to qualified
employees.
Based on the plain language of this provision and Union statements in
the record, this provision is substantively to the same effect as
Proposal IV before the Authority in National Treasury Employees Union
and Department of the Treasury, Internal Revenue Service, 6 FLRA No.
97(1981). The proposal in that case also involved involuntary
reassignments in connection with a staffing imbalance and provided that,
"If there are too few volunteers, the (qualified) employees with the
least IRS Service Computation date shall be given the reassignment." The
Authority found that the proposal was not inconsistent with management's
rights to assign employees under section 7106(a)(2)(A) or to assign work
under section 7106(a)(2)(B) of the Statute and was within the duty to
bargain. In this regard, the Authority found that the proposal did not
inhibit management in determining that workload considerations required
reassignments and that selections for reassignments under the proposal
would be from among employees already chosen by management to perform
duties substantially similar to those required in the new assignments.
Therefore, for the reasons set forth in Internal Revenue Service,
Provision 6 herein is within the duty to bargain.
Issued, Washington, D.C., April 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Contrary to the Union's assertions, the agreement provisions were
properly disapproved within the meaning of section 7114(c) by "the head
of the agency" or his designee, in this case, the Assistant Secretary of
Administration, Department of Treasury. See 5 U.S.C. 101, 105;
American Federation of Government Employees, AFL-CIO, Local 3656 and
Federal Trade Commission, Boston Regional Office, Massachusetts, 4 FLRA
No. 92(1980); National Treasury Employees Union and Department of the
Treasury, Internal Revenue Service, 13 FLRA No. 93(1983).
/2/ The Agency's request to file a supplement to its statement of
position is denied pursuant to section 2424.8 of the Authority's Rules
and Regulations (5 CFR 2424.8) since the record provides sufficient
information upon which the Authority can base its decision. Therefore,
the Authority has not considered such supplement in reaching its
decision herein.
/3/ In deciding that this provision is within the duty to bargain,
the Authority makes no judgment as to its merits.
/4/ Agency Statement of Position at 5.
/5/ Sections 7116(a)(7) and 7117(a)(1) and (2) provide:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
* * * *
(7) to enforce any rule or regulation (other than a rule or
regulation implementing section 2302 of this title) which is in
conflict with any applicable collective bargaining agreement if
the agreement was in effect before the date the rule or regulation
was prescribed(.)
and
Sec. 7117. Duty to bargain in good faith; compelling need; duty to
consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
(2) The duty to bargain in good faith shall, to the extent not
inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
/6/ See American Federation of Government Employees, AFL-CIO, Local
1928 and Department of the Navy, Naval Air Development Center,
Warminster, Pennsylvania, 2 FLRA 450(1980).
/7/ See National Treasury Employees Union and Department of the
Treasury, Internal Revenue Service, 13 FLRA No. 93(1983).
/8/ Union Reply Brief at 12-14.
/9/ Section 7106(a)(2)(A) provides in relevant part:
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--
(A) to . . . assign . . . employees in the agency . . . (.)
/10/ In deciding that this provision is within the duty to bargain,
the Authority makes no judgment as to its merits.
/11/ Union Reply Brief at 17.
/12/ Section 7106(b)(2) provides:
Sec. 7106. Management rights
* * * *
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
* * * *
(2) procedures which management officials of the agency will
observe in exercising any authority under this section (.)
/13/ American Federation of Government Employees, AFL-CIO, Local 1999
and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New
Jersey, 2 FLRA 153(1979), enforced sub nom. Department of Defense v.
FLRA 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
FLRA, 455 U.S. 945, 102 S.Ct. 1443(1982).
/14/ Section 7106(a)(2) provides in relevant part:
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--
(A) to hire, assign, direct, layoff, and retain employees in
the agency . . .;
* * * *
(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(.)
/15/ In deciding that this provision is within the duty to bargain,
the Authority makes no judgment as to its merits.
/16/ The Union requests that the Authority find the Agency did not
disapprove Article 21, Section 3B or, alternatively, that the Authority
not consider the Agency contentions set forth in its Statement of
Position, since the Agency's statement misquotes the language of Article
21, Section 3 as set forth in the Center's agreement. These requests
are denied. The Agency head disapproved this provision of the agreement
by its Article and Section number alleging that Article 21, Section 3B
(Centers) "infringes on management's right to assign and/or select
employees in violation of Sections 7106(a)(2)(A) and (a)(2)(C) of the
CSRA." Therefore, there is no question that the Agency head knew which
provision he was disapproving pursuant to section 7114(c)(2) of the
Statute and the reasons for the disapproval, which reasons were
reiterated in the Agency's Statement of Position. Thus, the Authority's
decision herein is based on the provision set forth in Article 21,
Section 3B of the Center's agreement and the Agency's contentions have
been considered.
/17/ Agency Statement of Position at 31.
/18/ Section 7106(a)(2)(A) provides in relevant part:
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--
(A) to . . . layoff, and retain employees in the agency . . .
(.)
/19/ Union Reply Brief at 20.
/20/ Union Reply Brief at 22-23.
/21/ Since the Authority concludes these provisions are nonnegotiable
based on section 7106(a)(2)(A) of the Statute, it is unnecessary to
consider the additional contentions of the Agency.
/22/ In deciding that the provision is within the duty to bargain,
the Authority makes no judgment as to its merits.