21:0730(91)NG - NTEU and IRS -- 1986 FLRAdec NG

[ v21 p730 ]
The decision of the Authority follows:

 21 FLRA No. 91
                                            Case No. 0-NG-1124
                         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).  The issue presented
 concerns the negotiability of the following provision contained in local
 agreements disapproved during review of those agreements by the Agency
 head under Section 7114(c) of the Statute:  /1/
                       Article 13, Section 15 (NORD)
                       Article 13, Section 17 (NCA)
          Once the deadline for filing a grievance or other complaint has
       passed an employee who has not filed a grievance or complaint or
       had one filed in their behalf may only be given priority
       consideration pursuant to an order issued by a higher level
                       II.  Positions of the Parties
    The Agency contends that the provision would prohibit it from
 granting priority consideration to employees adversely affected by an
 improper promotion action.  It therefore concludes that the provision
 conflicts with the merit system principle set forth at 5 U.S.C., Section
 2301(b)(1) which provides that selection and advancement should be
 determined on the basis of "relative ability, knowledge, and skills,
 after fair and open competition," and the implementing OPM regulation
 set forth at 5 CFT 335.103.  The Agency also argues that the provision
 would prevent it from applying the necessary corrective remedy for an
 improper promotion action as required by Federal Personnel Manual (FPM)
 chapter 335, Appendix A, section A-4(c).
    The Union states that its intent with respect to the provision is to
 prevent the Agency from giving priority consideration for promotion to
 an employee unless that employee filed a grievance or complaint, or
 priority consideration was ordered by a higher authority such as OPM,
 EEOC, or FLRA.  Union Reply Brief at 4-5.  The Union contends that the
 provision is not inconsistent with either merit system principles or the
 FPM.  The Union also argues that under Authority precedent the Agency
 should be prohibited from granting remedies to employees who have not
 filed timely claims.
                              III.  Analysis
    The authority has held, on the basis of the legislative history of
 the Civil Service Reform Act of 1978, /2/ that a merit system principle
 such as Section 2301(b)(1) may not be the basis for finding a proposal
 nonnegotiable unless the proposal is contrary to a law, rule or
 regulation implementing or directly concerning the principle.  See
 American Federation of Government Employees, AFL-CIO, Local 987 and
 Headquarters, Warner Robins Air Force Logistics Command, Robins Air
 Force Base, Georgia, 8 FLRA 667, 676-77 (1982) (Union Proposal IV);
 Association of Civilian Technicians, Inc., Pennsylvania State Council
 and Adjutant General, Department of Military Affairs, Pennsylvania, 4
 FLRA 77, 80-81 (1080).  The implementing regulation cited by the Agency,
 5 CFT 335.103, requires an agency to make selections for promotion
 "according to merit." However, contrary to the Agency's contentions, the
 provision would not interfere with the Agency's exercise of its
 discretion to make promotions on the basis of merit.  In American
 Federation of Government Employees, AFL-CIO, Local 2782 and Department
 of Commerce, Bureau of the Census, Washington,D.C., 6 FLRA 314 (1981),
 the Authority held that a proposal which would have required the agency
 to repromote employees who were involuntarily downgraded without
 personal cause at the first opportunity "except for good cause" was
 within the duty to bargain.  The Authority found that the proposal
 merely required the agency to consider but not necessarily select the
 repromotion eligible employee.  Thus, the proposal in that case by
 requiring the agency to give