23:0003(1)NG - NFFE Local 1450 and HUD -- 1986 FLRAdec NG



[ v23 p3 ]
23:0003(1)NG
The decision of the Authority follows:


 23 FLRA No. 1
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1450
 Union
 
 and
 
 U.S. DEPARTMENT OF HOUSING
 AND URBAN DEVELOPMENT
 Agency
 
                                            Case No. 0-NG-1171
 
                 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 provision of a negotiated agreement which was
 disapproved by the Agency head pursuant to section 7114(c) of the
 Statute.  /1/
 
                              II.  Provision
 
          Section 26:  Performance Appraisals
 
          Annual performance appraisals will be frozen at the time of the
       general RIF Notice.
 
          This provision does not determine the date on which the
       Employer will freeze other personnel actions.  In addition,
       Employer agrees to fill vacancies, for which affected Employees
       meet minimum X-118 standards, only with affected employees after
       issuance of the general RIF notice to maximize the number of
       positions available to affected employees.
 
                       A.  Positions of the Parties
 
    The Agency argues that the underline portion of this provision would
 interfere with its right, under section 7106(a)(2)(C)(ii) of the
 Statute, to fill positions from any appropriate source.
 
    The Union did not file a response in this case.
 
                               B.  Analysis
 
    The disputed portion of this provision, by its terms, would require
 the Agency to fill vacancies in a RIF situation only with affected
 employees who meet minimum X-118 standards.  In this regard, the
 provision herein is to the same effect as a provision in National
 Treasury Employees Union and Department of the Treasury, U.S. Customs
 Service, 9 FLRA 983 (1982), remanded as to other matters sub nom.
 Department of the Treasury, U.S. Customs Service v. Federal Labor
 Relations Authority, No. 82-2225 (D.C. Cir. Jan. 19, 1984), vacated by
 FLRA as to other matters, May 3, 1984, which provided in Article 12,
 sections 12A and B that for a 3-month period following a RIF affected
 employees be placed in vacant positions for which they qualify.  In that
 decision, the Authority held that the provision violated the Agency's
 right to choose among candidates from "any appropriate source" pursuant
 to section 7106(a)(2)(C)(ii) of the Statute.  Hence, for the reasons
 cited in U.S. Customs Service, the provision here in dispute must also
 be found to be outside the duty to bargain.
 
    While the Union does not argue that the disputed provision is an