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 specif