21:0630(79)NG - NFFE, Local 29 and Army Corps of Eng's, Kansas City District, Kansas City, Mo. -- 1986 FLRAdec NG
[ v21 p630 ]
21:0630(79)NG
The decision of the Authority follows:
21 FLRA No. 79
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29
Union
and
U.S. ARMY CORPS OF ENGINEERS,
KANSAS CITY DISTRICT, KANSAS
CITY, MISSOURI
Agency
Case No. 0-NG-878
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and concerns the
negotiability of one proposal submitted during the course of mid-term
contract negotiations.
II. Union Proposal
Employees who have been downgraded because of
reduction-in-force actions will obtain repromotion to their former
grades as follows:
1. Repromotion to positions at their former grades and
competitive levels will be effected in accordance with seniority.
(The disputed portion of the proposal is underscored.)
A. Positions of the Parties
The Agency and the Office of Personnel Management (OPM) /1/ assert
that the proposal, by mandating the selection of repromotion eligible
employees solely on the basis of seniority, would interfere to an
excessive degree with the Agency's right to fill positions by making
selections from any appropriate source under section 7106(a)(2)(C) of
the Statute. The Agency and OPM further argue that the proposal is
outside the duty to bargain under section 7117(a)(1) of the Statute
because it is inconsistent with a Government-wide regulation, namely,
Requirement 4 of subchapter 1-4, chapter 335 of the Federal Personnel
Manual (FPM), which permits agencies to fill positions by making
selections from any appropriate source.
The Union argues first that the proposal is negotiable as an
"appropriate arrangement" within the meaning of section 7106(b)(3) of
the Statute, for employees adversely affected by the exercise of
management's right. In support of its position, the Union cites the
decision of the U.S. Courts of Appeals for the District of Columbia
Circuit in American Federation of Government Employees, AFL-CIO, Local
2782 v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir.
1983), reversing and remanding American Federation of Government
Employees, AFL-CIO, Local 2782 and Department of Commmerce, Bureau of
the Census, Washington, D.C., 7 FLRA 91 (1981). The Union also argues
that an agency is permitted to select a repromotion eligible for a
vacancy without going through competitive promotion procedures pursuant
to subchapter 1-5(c)(6) of chapter 335 of the FPM which provides as
follows:
c. Agencies may at their discretion except other actions from
their plans. These include, but are not limited to:
* * *
(6) Repromotion to a grade or position from which an employee
was demoted without personal cause and not at his or her request.
Thus, the Union claims its proposal constitutes an "exception" to
Requirement 4, subchapter 1-4 of FPM chapter 335 within the meaning of
subchapter 1-5(c)(6) of FPM chapter 335.
B. Analysis
The Agency states that the proposal "is, in all materiel respects,
identical to that" in the case cited above, which resulted in the
Authority's Decision and Order on Remand in AFGE, Local 2782 and Bureau
of the Census, 14 FLRA 801 (1984). The Union states that this proposal
"would only come into play after the agency decides to fill a vacant
position and there are repromotion eligibles who had previously
successfully competed for the position in that competitive level and
grade." In other words, according to the Union "these employees have
demonstrated their ability to successfully perform the duties of the
position." In support, the Union relied on the definition of competitive
level, currently set out in 51 Fed. Reg. 321 (1986) (to be codified at 5
C.F.R. 351.403). This definition provides in relevant part as follows:
Section 351.403 Competitive level.
(a) Each agency shall establish competitive levels consisting
of all positions in a competitive area which are in the same grade
. . . and classification series and which are similar enough in
duties, qualification requirements, pay schedules, and working
conditions so that the incumbent of one position could
successfully perform the critical elements of any other position
upon entry into it, without any loss of productivity beyond that
normally expected in the orientation of any new but fully
qualified employee . . .
This proposal, unlike the one in AFGE, Local 2782 and Bureau of the
Census, 14 FLRA 801 (1984), does not expressly permit the Agency to
decide whether to fill a vacant position or expressly permit the Agency
to make qualifications determinations. We find, however, in view of the
positions of the parties, that such requirements are implicit in the
proposal. Interpreted in this manner the proposal has the same effect
as the proposal in AFGE, Local 2782 and Bureau of the Census, 14 FLRA
801 (1984). In that case the Authority concluded that the proposal
constituted a negotiable appropriate arrangement under section
7106(b)(3) of the Statute. /2/
Accordingly, the Authority finds, for the reasons stated more fully
in that decision, the proposal here does not excessively interfere with
management's rights and, therefore, constitutes a negotiable appropriate
arrangement under section 7106(b)(3) of the Statute.
However, the Authority also concluded in its Decision and Order on
Remand in AFGE, Local 2782 and Bureau of the Census that while the
proposal constituted an appropriate arrangement under section
7106(b)(3), it nevertheless was outside the duty to bargain under
section 7117(a)(1) of the Statute because it was inconsistent with a
Government-wide regulation, that is, Requirement 4 of subchapter 1-4,
chapter 335 of the FPM, which would permit agencies to fill positions by
making selections from any appropriate source. This conclusion was not
altered by the Union's claim, proffered in its Motion for
Reconsideration of the Authority Decision and Order on Remand, that
based on subchapter 1-5(c)(6) of FPM chapter 335 its proposal
constituted an exception to Requirement 4 of subchapter 1-4, FPM chapter
335. In denying the Motion for Reconsideration (July 11, 1985) the
Authority found that while subchapter 1-5(c) authorized an agency to
except certain repromotions from its competitive selection procedures,
such FPM provision did not purport to authorize an agency to relinquish
its right under Requirement 4 of subchapter 1-4 to make selections from
this case, it would have the same effect as the proposal in AFGE, Local
2782 and Bureau of the Census. That is, the proposal would prevent the
Agency from making selections from any appropriate source. Thus, for
the reasons stated more fully in our Decision and Order on Remand in
AFGE, Local 2782 and Bureau of the Census, as affirmed in our denial of
the Union's Motion for Reconsideration, the proposal in this case also
violates Requirement 4 of subchapter 1-4, chapter 335 of the FPM, a
Government-wide regulation, and is outside the duty to bargain.
C. Conclusion
The Authority finds, therefore, for the reasons set forth in the
foregoing analysis, that the proposal in this case would not excessively
interfere with management's rights and, thus, that the proposal
constitutes an appropriate arrangement for employees adversely affected
by the exercise of such rights, within the meaning of section 7106(b)(3)
of the Statute. However, contrary to the Union's contention that the
proposal does not in any way conflict with Government-wide regulations,
the Authority concludes, based upon the analysis provided in our
Decision and Order on Remand in AFGE, Local 2782 and Bureau of the
Census, 14 FLRA 801 (1984), affirmed in the Authority's Decision and
Order on Motion for Reconsideration (July 11, 1985), petition for review
filed, No. 85-1562 (D.C. Cir. September 6, 1985), that the proposal
conflicts with FPM, chapter 335, subchapter 1-4, and, therefore, is
nonnegotiable under section 7117(a)(1) of the Statute.
III. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed.
Issued, Washington, D.C., April 30, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) OPM filed an amicus curiae brief in this case without opposition
from the Union.
(2) Subsequent to the filings in this case the Authority issued
National Associationof Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA No. 4 (1986), in which we specifically
adopted the rationale of the District of Columbia Circuit in AFGE, Local
2782. Thus, as we stated in the Kansas Army National Guard decision, we
will henceforth determine whether a proposal constitutes a negotiable
"appropriate arrangement" under section 1706(b)(3) of the Statute by
determining whether the proposal excessively interferes with the
exercise of management's rights.