38:0354(37)NG - - Merit Systems Protection Board Professional Association and Merit Systems Protection Board - - 1990 FLRAdec NG - - v38 p354
[ v38 p354 ]
The decision of the Authority follows:
38 FLRA No. 37
FEDERAL LABOR RELATIONS AUTHORITY
MERIT SYSTEMS PROTECTION BOARD PROFESSIONAL
U.S. MERIT SYSTEMS PROTECTION BOARD
31 FLRA 258 (1988)
DECISION AND ORDER ON NEGOTIABILITY ISSUE ON REMAND
November 23, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. U.S. Merit Systems Protection Board v. FLRA, 913 F.2d 976 (1990). In that decision, the court reversed the Authority's finding that the proposal in dispute in Merit Systems Protection Board Professional Association and Merit Systems Protection Board, 31 FLRA 258 (1988) (MSPB), was negotiable. The court remanded the case to the Authority to enter an appropriate order.
In MSPB, the disputed proposal required that a unit employee affected by a reduction-in-force be "afforded second-round assignment rights to unit positions including bumping and retreat rights as provided at 5 C.F.R. Part 351, subpart G." 31 FLRA at 258. The Authority concluded that the proposal was negotiable. As relevant here, the Authority rejected the Agency's assertion that the proposal conflicted with 5 C.F.R. § 351.705(b)(2), which provides that if bump and retreat rights are provided to excepted service employees, the rights "[s]hall be uniformly and consistently applied in any one reduction in force[.]" The Authority concluded that the disputed proposal did not conflict with the regulation because the regulation did not "prohibit the Agency from considering unit status in determining whether and to what extent to grant 'bumping and retreat' rights to excepted service employees." MSPB, 31 FLRA at 261.
On review, the court found "no basis for the Authority's construction [of the regulation], which would permit the extension of secondary assignment rights exclusively to bargaining unit [employees]." MSPB v. FLRA, 913 F.2d at 980. The court acknowledged that the U.S. Court of Appeals for the Fourth Circuit had affirmed the Authority's finding that a similar proposal was negotiable. Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990). The court found, however, that the Fourth Circuit had failed to provide "any persuasive justifiction" for its interpretation of 5 C.F.R. § 351.705(b)(2). MSPB v. FLRA, 913 F.2d at 980. The court concluded that, as the Agency had determined not to extend bump and retreat rights to nonunit excepted service employees, the proposal "calling for the extension of secondary rights exclusiv