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02:0082(8)NG
The decision of the Authority follows:
2 FLRA No. 8
NATIONAL TREASURY EMPLOYEES UNION
(Union)
and
U.S. CUSTOMS SERVICE,
REGION IX
(Activity)
FLRC No. 78A-29
DECISION ON NEGOTIABILITY ISSUES /1/
PROVISION I
ARTICLE 16, SECTION 3:
SECTION 3
A. THE EMPLOYER AGREES THAT WHEN AN EMPLOYEE HAS BEEN REASSIGNED DUE
TO THE ABOLISHMENT OF
HIS/HER POSITION, HE/SHE WILL BE CONSIDERED FIRST IF THAT POSITION IS
REESTABLISHED WITHIN ONE
(1) YEAR AND HE/SHE APPLIES FOR THE POSITION WITHIN FIFTEEN (15) DAYS
AFTER WRITTEN
NOTIFICATION IS GIVEN TO THE EMPLOYEE TO (SIC) ITS REESTABLISHMENT.
B. IF AN ABOLISHED POSITION IS REESTABLISHED WITHIN ONE (1) YEAR, IT
IS IN THE INTEREST OF
THE U.S. CUSTOMS SERVICE TO REASSIGN AN EMPLOYEE WHO APPLIES TO
HIS/HER FORMER POSITION AND
HE/SHE WILL BE REIMBURSED FOR RELOCATION EXPENSES TO THE EXTENT
AUTHORIZED UNDER FEDERAL
TRAVEL REGULATIONS.
C. IF THERE ARE TWO (2) OR MORE DISPLACED APPLICANTS FOR ANY
REESTABLISHED POSITION, THE
APPLICANT WITH THE GREATER AMOUNT OF CUSTOMS SERVICE WILL BE GIVEN
FIRST CONSIDERATION.
AGENCY DETERMINATION
THE AGENCY DETERMINED IN CONNECTION WITH THE SECTION 15 REVIEW
PROCESS /2/ THAT THE PROVISION VIOLATES SECTION 12(B)(2) OF THE ORDER
AND CONFLICTS WITH PROVISIONS OF THE FEDERAL PERSONNEL MANUAL AND IS
THEREFORE NONNEGOTIABLE. /3/
QUESTIONS HERE BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER ARTICLE 16, SECTION 3 CONFLICTS WITH
APPLICABLE CIVIL SERVICE DIRECTIVES OR VIOLATES SECTION 12(B)(2) OF THE
ORDER. /4/
OPINION
CONCLUSION: ARTICLE 16, SECTION 3 DOES NOT CONTRAVENE APPLICABLE
CIVIL SERVICE DIRECTIVES AND DOES NOT VIOLATE SECTION 12(B)(2) OF THE
ORDER. THEREFORE, THE AGENCY'S DETERMINATION OF NONNEGOTIABILITY WAS
IMPROPER AND, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND
REGULATIONS (44 FED.REG. 44740 ET SEQ.(1979), IS SET ASIDE. /5/
REASON: THIS CASE WAS PENDING BEFORE THE FEDERAL LABOR RELATIONS
COUNCIL IN JUNE 1978 AT WHICH TIME THE CIVIL SERVICE COMMISSION (CSC)
HAD PRIMARY RESPONSIBILITY FOR THE ISSUANCE AND INTERPRETATION OF THE
DIRECTIVES RELIED UPON THE AGENCY. THE COUNCIL, IN ACCORDANCE WITH ITS
ESTABLISHED PRACTICE, REQUESTED THE CSC TO INTERPRET ITS OWN DIRECTIVES
AS THEY PERTAINED TO THE DISPUTE IN THIS CASE. ON JANUARY 1, 1979, THE
COUNCIL'S FUNCTIONS WERE TRANSFERRED TO THE FEDERAL LABOR RELATIONS
AUTHORITY AND THE CSC'S RESPONSIBILITY FOR THE DIRECTIVES IN QUESTION
WERE TRANSFERRED TO THE OFFICE OF PERSONNEL MANAGEMENT (OPM).
SUBSEQUENTLY, THE OPM RESPONDED TO THE AUTHORITY, IN PERTINENT PART, AS
FOLLOWS:
THIS LETTER IS IN REPLY TO YOUR REQUEST FOR OUR OPINION CONCERNING
THE NEGOTIABILITY OF A
UNION PROPOSAL RELATING TO THE FILLING OF REESTABLISHED POSITIONS.
THE UNION PROPOSAL WOULD PROVIDE AS FOLLOWS:
ARTICLE 16, SECTION 3:
A. THE EMPLOYER AGREES THAT WHEN AN EMPLOYEE HAS BEEN REASSIGNED DUE
TO THE ABOLISHMENT OF
HIS/HER POSITION, HE/SHE WILL BE CONSIDERED FIRST IF THAT POSITION IS
REESTABLISHED WITHIN ONE
(1) YEAR AND HE/SHE APPLIES FOR THE POSITION WITHIN FIFTEEN (15) DAYS
AFTER WRITTEN
NOTIFICATION IS GIVEN TO THE EMPLOYEE OF ITS REESTABLISHMENT.
B. IF AN ABOLISHED POSITION IS REESTABLISHED WITHIN ONE (1) YEAR, IT
IS IN THE INTEREST OF
THE U.S. CUSTOMS SERVICE TO REASSIGN AN EMPLOYEE WHO APPLIES TO
HIS/HER FORMER POSITION AND
HE/SHE WILL BE REIMBURSED FOR RELOCATION EXPENSES TO THE EXTENT
AUTHORIZED UNDER FEDERAL
TRAVEL REGULATIONS.
C. IF THERE ARE TWO (2) OR MORE DISPLACED APPLICANTS FOR ANY
REESTABLISHED POSITION, THE
APPLICANT WITH THE GREATER AMOUNT OF CUSTOMS SERVICE WILL BE GIVEN
FIRST CONSIDERATION.
A REASSIGNMENT IS DEFINED IN ATTACHMENT 1 TO FPM LETTER 335-12,
REVISED MERIT PROMOTION
POLICY, DATED DECEMBER 28, 1978, "AS THE CHANGE OF AN EMPLOYEE FROM
ONE POSITION TO ANOTHER
WITHOUT PROMOTION OR DEMOTION." /6/
WHILE SUCH PERSONNEL ACTIONS NEED NOT BE MADE UNDER THE COMPETITIVE
PROCEDURES OF AN AGENCY
MERIT PROMOTION PLAN (PROVIDED THAT THE NEW POSITION HAS NO HIGHER
PROMOTION POTENTIAL), THEY
MUST BE MADE WITH REGARD TO APPLICABLE REQUIREMENTS OF THE MERIT
SYSTEM.
CIVIL SERVICE REGULATIONS AND INSTRUCTIONS REQUIRE NONCOMPETITIVE
CONSIDERATION FOR CERTAIN
CATEGORIES OF EMPLOYEES PRIOR TO ATTEMPTS TO FILL VACANCIES BY ANY
OTHER MEANS, INCLUDING
MERIT PROMOTION. FOR INSTANCE, SECTION 713.271 OF TITLE 5, CFR,
REQUIRES THAT PRIORITY
CONSIDERATION GRANTED AS REMEDIAL ACTION IN A DISCRIMINATION
COMPLAINT TAKES "PRECEDENCE OVER
PRIORITIES UNDER OTHER REGULATIONS IN THIS CHAPTER."
A LITERAL READING OF PART A OF THE UNION PROPOSAL WOULD REQUIRE THAT
WHENEVER AN AGENCY
DECIDES TO FILL A REESTABLISHED POSITION THAT HAS BEEN ABOLISHED
WITHIN THE PAST YEAR, THE
AGENCY MUST GIVE FIRST CONSIDERATION TO THE EMPLOYEE WHO HAD OCCUPIED
THE POSITION PRIOR TO
ITS ABOLISHMENT IF THAT EMPLOYEE APPLIES WITHIN 15 DAYS AFTER
NOTIFICATION THAT THE POSITION
HAS BEEN REESTABLISHED. BECAUSE THAT PART OF THE PROPOSAL WOULD
REQUIRE CONSIDERATION OF SUCH
EMPLOYEES PRIOR TO OTHER EMPLOYEES WHO HAVE A STATUTORY, REGULATORY,
OR FPM GRANTED RIGHT TO
BE PLACED IN A CONSIDERED FOR THE POSITION, IT CONFLICTS WITH
MANDATORY CIVIL SERVICE
INSTRUCTIONS.
HOWEVER, THERE WOULD BE NO BAR TO CONSIDERING AN EMPLOYEE WHOSE
POSITION WAS ABOLISHED AND
LATER ESTABLISHED AFTER ALL OTHER CANDIDATES ENTITLED TO PRIORITY OR
SPECIAL CONSIDERATION BY
STATUTE OR CIVIL SERVICE REGULATIONS OR INSTRUCTIONS HAD BEEN
CONSIDERED.
ANY CONSIDERATION GRANTED UNDER THE PROPOSAL COULD NOT EXTEND TO
REQUIRING SELECTION OF ANY
CANDIDATE FOR PROMOTION. WHILE MANAGEMENT IS REQUIRED BY CIVIL
SERVICE REGULATIONS OR
INSTRUCTIONS TO GIVE NONCOMPETITIVE CONSIDERATION TO CERTAIN
CANDIDATES, AND COULD PROPERLY BE
REQUIRED BY PART A OF THE UNION PROPOSAL TO CONSIDER PREVIOUS
OCCUPANTS OF REESTABLISHED
POSITIONS PRIOR TO USE OF COMPETITIVE PROCEDURES, IT COULD NOT BE
CONSTRAINED TO SELECT ANY
PARTICULAR CANDIDATE OR EVEN TO SELECT FROM A GROUP OF PRIORITY OR
SPECIAL CONSIDERATION
CANDIDATES. /7/
THE MEANING OF PART B OF THE UNION PROPOSAL IS NOT CLEAR. IF IT IS
INTENDED THAT WHENEVER
AN EMPLOYEE APPLIES FOR A REESTABLISHED POSITION THAT HE OR SHE
FORMERLY OCCUPIED, MANAGEMENT
WILL SELECT THAT EMPLOYEE BECAUSE IT WOULD BE IN MANAGEMENT'S BEST
INTEREST TO DO SO, THAT
PART OF THE PROPOSAL WOULD EFFECTIVELY NEGATE MANAGEMENT'S ABILITY TO
MAKE A SELECTION
DECISION. IN THAT REGARD, RULE 7.1 OF THE CIVIL SERVICE RULES
REQUIRES MANAGEMENT TO FILL
POSITIONS IN THE COMPETITIVE SERVICE SOLELY ON THE BASIS OF MERIT AND
FITNESS AND GRANTS
MANAGEMENT THE RIGHT TO MAKE SELECTIONS FROM ANY APPROPRIATE SOURCE.
HOWEVER, IF PART B OF THE PROPOSAL IS NO INTERPRETED AS EITHER
LIMITING CONSIDERATION TO
THE FORMER INCUMBENTS OF REESTABLISHED POSITIONS OR RESTRICTING
MANAGEMENT FROM EXERCISING ITS
RIGHT TO SELECT FROM ANY APPROPRIATE SOURCE, IT WOULD NOT CONFLICT
WITH CIVIL SERVICE
REGULATIONS AND INSTRUCTIONS. SINCE THE GENERAL SERVICES
ADMINISTRATION HAS RESPONSIBILITY
FOR INTERPRETATION OF THE FEDERAL TRAVEL REGULATIONS, GSA WOULD BE
THE APPROPRIATE AGENCY TO
DETERMINE THE CONSISTENCY OF THAT PART OF PART B OF THE PROPOSAL
CONCERNING THE PAYMENT OF
RELOCATION EXPENSES WITH ITS REGULATIONS.
PART C OF THE PROPOSAL WOULD NOT CONFLICT WITH CIVIL SERVICE
REGULATIONS OR INSTRUCTIONS AS
LONG AS ITS COVERAGE IS LIMITED TO THOSE INDIVIDUALS RECEIVING
CONSIDERATION UNDER PART A SEE
OUR DISCUSSION ABOVE ON THAT PART OF THE PROPOSAL) AND WOULD NOT
SUPERSEDE OR LIMIT THE
CONSIDERATION OF OTHERS ENTITLED TO PRIORITY OR SPECIAL CONSIDERATION
BY CIVIL SERVICE LAW,
REGULATIONS OR INSTRUCTIONS.
IN SUMMARY, AS LONG AS PARTS A AND C OF THE PROPOSAL PROVIDE FOR ONLY
CONSIDERATION OF
COVERED EMPLOYEES AFTER ALL OTHER EMPLOYEES OTHERWISE ENTITLED TO
PRIORITY OR SPECIAL
CONSIDERATION, CIVIL SERVICE LAWS AND REGULATIONS WOULD NOT BAR
NEGOTIATION OF THOSE PORTIONS
OF THE PROPOSAL. HOWEVER, IF PART B WOULD LIMIT THE MANAGEMENT
DISCRETION GRANTED BY RULE
7.1, THAT PORTION OF THE PROPOSAL WOULD CONFLICT WITH CIVIL SERVICE
RULES AND REGULATIONS.
BASED ON THE FOREGOING INTERPRETATION BY THE OPM OF ITS OWN
DIRECTIVES, ARTICLE 16, SECTION 3 DOES NOT CONFLICT WITH THE DIRECTIVES
OF THE OPM /8/ SINCE THE RECORD IN THE CASE SUPPORTS THE CONCLUSIONS
THAT: FIRST, ARTICLE 16, SECTION 3A. AND C. DOES NOT SUPERSEDE OR LIMIT
THE CONSIDERATION OF OTHERS ENTITLED TO PRIORITY OR SPECIAL
CONSIDERATION UNDER CIVIL SERVICE LAWS OR REGULATIONS; BUT INSTEAD
PROVIDES FOR THE CONSIDERATION OF COVERED EMPLOYEES AFTER ALL OTHER
EMPLOYEES OTHERWISE ENTITLED TO PRIORITY OR SPECIAL CONSIDERATION HAVE
RECEIVED SUCH CONSIDERATION; /9/ AND, SECOND, SECTION 3B. OF ARTICLE 16
NEITHER LIMITS CONSIDERATION TO FORMER INCUMBENTS OR REESTABLISHED
POSITIONS NOR RESTRICTS MANAGEMENT FROM EXERCISING ITS RIGHT TO SELECT
FROM ANY APPROPRIATE SOURCE (AND THE AUTHORITY SO INTERPRETS ARTICLE 16,
SECTION 3 FOR THE PURPOSES OF THIS DECISION).
ACCORDINGLY, THE AGENCY DETERMINATION THAT ARTICLE 16, SECTION 3 IS
NONNEGOTIABLE BECAUSE IT VIOLATES REGULATIONS OF APPROPRIATE AUTHORITY
OUTSIDE THE AGENCY WAS IN ERROR AND IS SET ASIDE.
THE AGENCY FURTHER CONTENDS THAT ARTICLE 16, SECTION 3A. AND C.,
INSOFAR AS IT PROVIDES THAT CERTAIN EMPLOYEES WILL BE CONSIDERED FIRST
FOR REESTABLISHED POSITIONS WITHIN THE AGENCY, CONSTITUTES AN
IMPERMISSIBLE HIRING PREFERENCE, WHICH INTERFERES WITH MANAGEMENT'S
RIGHT UNDER SECTION 12(B)(2) OF THE ORDER TO SELECT EMPLOYEES FOR
POSITIONS IN THE AGENCY, AND IS, THEREFORE, NONNEGOTIABLE. THE
CONTENTION IS WITHOUT MERIT.
BY ITS PLAIN LANGUAGE, ARTICLE 16, SECTION 3A. AND C. REQUIRES ONLY
THAT THE AGENCY WILL GIVE CONSIDERATION TO CERTAIN EMPLOYEES FOR
REESTABLISHED POSITIONS BEFORE THE AGENCY ACTUALLY SELECTS PARTICULAR
EMPLOYEES FOR THOSE POSITIONS. NOTHING IN THE LANGUAGE OF THE DISPUTED
PROVISION REQUIRES AGENCY MANAGEMENT TO SELECT THE EMPLOYEES WHO ARE TO
RECEIVE SUCH CONSIDERATION UNDER THE TERMS OF THE PROVISION.
BY PROVIDING FOR "CONSIDERATION" RATHER THAN "SELECTION," ARTICLE 16,
SECTION 3 IS CLEARLY DISTINGUISHABLE FROM THE PROPOSALS AT ISSUE IN THE
COUNCIL'S DECISION IN NATIONAL MARITIME UNION AND NOAA. /10/ IN THAT
CASE THE COUNCIL FOUND THAT THE UNION PROPOSALS CALLING FOR THE AGENCY
TO ACCORD HIRING PREFERENCE TO CERTAIN REQUIREMENT ON THE AGENCY TO HIRE
CERTAIN INDIVIDUALS AHEAD OF OTHERS, THEREBY INTERFERING WITH
MANAGEMENT'S RIGHT TO HIRE EMPLOYEES UNDER SECTION 12(B)(2) OF THE
ORDER. UNLIKE THOSE PROPOSALS, HOWEVER, IN THE PRESENT CASE ARTICLE 16,
SECTION 3, AS NOTED ABOVE, PROVIDES ONLY THAT CERTAIN EMPLOYEES MUST BE
CONSIDERED FIRST WHEN THE AGENCY IS FILLING CERTAIN REESTABLISHED
POSITIONS AND DOES NOT REQUIRE THE AGENCY TO SELECT THOSE INDIVIDUALS.
/11/ CONSEQUENTLY, ARTICLE 16, SECTION 3 DOES NOT DEPRIVE THE SELECTING
OFFICIAL OF THE RESERVED DISCRETION INHERENT IN DECIDING AND ACTING IN
THE SELECTION OF INDIVIDUALS FOR POSITIONS IN THE AGENCY. HENCE, IT IS
DISTINGUISHED IN THIS MATERIAL RESPECT FROM THE PROPOSALS HELD
NONNEGOTIABLE IN NATIONAL MARITIME UNION AND NOAA. ACCORDINGLY, THE
PROVISION DOES NOT VIOLATE SECTION 12(B)(2) OF THE ORDER AND THE
AGENCY'S CONTRARY DETERMINATION IS SET ASIDE.
PROVISION II
ARTICLE 17, SECTION 2:
SECTION 2
A. THE EMPLOYER AGREES THAT AN EMPLOYEE WHO IS DETAILED TO A
BARGAINING UNIT POSITION OF A
HIGHER GRADE FOR OVER THIRTY (30) CONSECUTIVE CALENDAR DAYS AND WHO
MEETS THE APPROPRIATE
QUALIFICATIONS AND TIME-IN-GRADE REQUIREMENTS AS SET FORTH BY STATUTE
OR CIVIL SERVICE
REGULATIONS WILL BE TEMPORARILY PROMOTED AND RECEIVE THE RATE OF PAY
FOR THAT POSITION. THE
EMPLOYER AGREES TO REFRAIN FROM ROTATING DETAILS OF EMPLOYEES SOLELY
TO AVOID COMPENSATION AT
THE HIGHER LEVEL.
B. NOTHING IN THIS ARTICLE SHALL BE INTERPRETED AS AUTHORIZING A
RETROACTIVE PROMOTION.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PROVISION VIOLATES SECTION 12(B)(2) OF
THE ORDER AND THE TEMPORARY PROMOTION REQUIREMENTS OF THE FEDERAL
PERSONNEL MANUAL. /12/ ACCORDINGLY, THE AGENCY DETERMINED THE PROVISION
IS NONNEGOTIABLE.
QUESTIONS HERE BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER ARTICLE 17, SECTION 2A. OF THE AGREEMENT
VIOLATES SECTION 12(B)(2) OF THE ORDER /13/ OR CONFLICTS WITH THE
TEMPORARY PROMOTION REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL.
OPINION.
CONCLUSION: ARTICLE 17, SECTION 2A. DOES NOT VIOLATE SECTION
12(B)(2) OF THE ORDER AND DOES NOT CONFLICT WITH THE TEMPORARY PROMOTION
REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL. THEREFORE, THE AGENCY'S
DETERMINATION OF NONNEGOTIABILITY WAS IMPROPER AND, PURSUANT TO SECTION
2424.8 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED.REG. 44740 ET
SEQ.(1979)), IS SET ASIDE. /14/
REASONS: THE AGENCY ARGUES THAT THE TEMPORARY PROMOTION PROVISION OF
ARTICLE 17, SECTION 2A. INTERFERES WITH MANAGEMENT'S RIGHT TO PROMOTE
EMPLOYEES AND THEREFORE VIOLATES SECTION 12(B)(2) OF THE ORDER, AND
CONFLICTS WITH THE TEMPORARY PROMOTION REQUIREMENTS OF THE FEDERAL
PERSONNEL MANUAL BY NOT SPECIFICALLY ADVERTING TO THAT DIRECTIVE'S
120-DAY LIMITATION FOR DURATION OF TEMPORARY PROMOTIONS. /15/ THESE
CONTENTIONS ARE WITHOUT MERIT.
ARTICLE 17, SECTION 2A. OF THE AGREEMENT, PROVIDING FOR THE TEMPORARY
PROMOTION OF A BARGAINING UNIT EMPLOYEE DETAILED TO A HIGHER-GRADE
POSITION FOR OVER 30 DAYS, BEARS NO MATERIAL DIFFERENCE FROM THE
AGREEMENT PROVISION FOUND NEGOTIABLE BY THE COUNCIL IN THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 122 AND VETERANS ADMINISTRATION,
ATLANTA REGIONAL OFFICE, ATLANTA, GEORGIA CASE. /16/ IN THAT CASE THE
AGENCY TOOK THE POSITION THAT THE PROVISION INTERFERED WITH MANAGEMENT'S
RIGHT TO PROMOTE EMPLOYEES UNDER SECTION 12(B)(2) OF THE ORDER AND, BY
NOT SPECIFICALLY ADVERTING TO APPLICABLE TIME-IN-GRADE REQUIREMENTS FOR
TEMPORARY PROMOTIONS ESTABLISHED BY THE FEDERAL PERSONNEL MANUAL, WAS IN
CONFLICT WITH SUCH REQUIREMENTS. AS TO THE ALLEGED CONFLICT WITH
SECTION 12(B)(2) OF THE ORDER, THE COUNCIL STATED (AT 10 OF COUNCIL
DECISION) AS FOLLOWS:
THE "TEMPORARY PROMOTION" CALLED FOR BY THE DISPUTED PROVISION IS
SIMPLY A MINISTERIAL ACT
WHICH IMPLEMENTS THE DECISION AND ACTION TAKEN BY THE AGENCY ITSELF
IN SELECTING AND ASSIGNING
THE PARTICULAR EMPLOYEE TO THE HIGHER-GRADE POSITION. NOTHING IN THE
PROVISION INTERFERES IN
ANY MANNER WITH THE RIGHT OF THE AGENCY TO
MAKE SUCH DECISION OR ACCOMPLISH SUCH ACTION, AND THUS NOTHING IN THE
PROVISION IMPAIRS THE
AGENCY'S RIGHT TO DETERMINE WHETHER AND WHOM TEMPORARILY TO PROMOTE.
ACCORDINGLY, WE FIND
THAT THE DISPUTED PROVISION IS NOT VIOLATIVE OF SECTION 12(B)(2) OF
THE ORDER.
AS TO THE ALLEGED VIOLATION OF THE FEDERAL PERSONNEL MANUAL, THE
COUNCIL FOUND THAT ARGUMENT ALSO WITHOUT MERIT STATING (AT 10-11 OF
COUNCIL DECISION):
ALTHOUGH THE PROVISION ITSELF DOES NOT SPECIFICALLY ADVERT TO
TIME-IN-GRADE REQUIREMENTS,
NOTHING IN THE PROVISION, NOR IN THE UNION'S STATED INTENT, PRECLUDES
THE AGENCY FROM
ENFORCING SUCH REQUIREMENTS IN THE IMPLEMENTATION OF THE PROVISION.
FURTHER, AS THE COUNCIL
HAS PREVIOUSLY INDICATED, UNDER SECTION 12(A) OF THE ORDER, THE
PROVISIONS OF WHICH MUST BE
INCLUDED IN EVERY AGREEMENT, THE ADMINISTRATION OF ANY AGREEMENT
ENTERED INTO BY THE PARTIES
WOULD BE SUBJECT TO EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES,
INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL.
THEREFORE, SINCE THE AGREEMENT
PROVISION DOES NOT CONFLICT WITH THE LEGAL TIME-IN-GRADE
REQUIREMENTS, THE AGENCY'S CONTENTION
FAILS TO STATE A GROUND FOR FINDING THE PROVISION NONNEGOTIABLE.
IT IS CLEAR THAT THE COUNCIL'S DECISION IN VETERANS ADMINISTRATION,
ATLANTA REGIONAL OFFICE IS DISPOSITIVE OF THE ISSUE OF NEGOTIABILITY
WITH RESPECT TO THE DISPUTED PROVISION IN THE PRESENT CASE, BOTH AS TO
THE ALLEGED CONFLICT WITH SECTION 12(B)(2) OF THE ORDER AND WITH THE
TEMPORARY PROMOTION REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL.
ACCORDINGLY, FOR THE REASONS STATED IN THAT CASE, ARTICLE 17, SECTION
2A. DOES NOT CONFLICT WITH EITHER SECTION 12(B)(2) OF THE ORDER OR WITH
REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL AND IS, THEREFORE,
NEGOTIABLE. /17/
PROVISION III
ARTICLE 22, SECTION 10:
SECTION 10
ALL EMPLOYEES IN IDENTIFIED CAREER LADDER POSITIONS WORKING BELOW THE
FULL (JOURNEYMAN)
LEVEL WILL BE CERTIFIED AND PROMOTED ON THE FIRST DAY OF THE FIRST
PAY PERIOD AFTER A PERIOD
OF ONE (1) CALENDAR YEAR OR WHATEVER LESSER PERIOD MAY BE APPLICABLE
PROVIDED THAT THE
EMPLOYEE HAS DEMONSTRATED THE ABILITY TO PERFORM AT THE NEXT HIGHER
GRADE LEVEL AND THERE IS
SUFFICIENT HIGHER LEVEL WORK TO BE PERFORMED.
AGENCY DETERMINATION
THE AGENCY DETERMINATION THAT THE PROVISION VIOLATES SECTION 12(B)(2)
OF THE ORDER AND IS THEREFORE NONNEGOTIABLE.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE PROVISION VIOLATES SECTION 12(B)(2) OF
THE ORDER. /18/
OPINION
CONCLUSION: THE PROVISION DOES NOT VIOLATE SECTION 12(B)(2) OF THE
ORDER. THEREFORE, THE AGENCY'S DETERMINATION OF NONNEGOTIABILITY WAS
IMPROPER AND, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND
REGULATIONS (44 FED.REG. 44740 ET SEQ.(1979)), IS SET ASIDE. /19/
REASONS: THE AGENCY PRINCIPALLY CONTENDS THAT ARTICLE 22, SECTION 10
INTERFERES WITH MANAGEMENT'S RIGHT TO PROMOTE OR NOT PROMOTE EMPLOYEES
UNDER SECTION 12(B)(2) OF THE ORDER. ON THE OTHER HAND, THE UNION
ESSENTIALLY ARGUES THAT, WITH RESPECT TO CAREER-LADDER PROMOTIONS
COVERED BY ARTICLE 22, SECTION 10, THE RIGHT RESERVED TO MANAGEMENT
UNDER SECTION 12(B)(2) IS TO SELECT OR NOT SELECT AN EMPLOYEE FOR A
CAREER-LADDER POSITION. THE UNION'S POSITION HAS MERIT.
THE RECORD DOES NOT INDICATE THAT THE TERMINOLOGY "CAREER-LADDER
PROMOTION" AS USED BY THE PARTIES IN THE DISPUTED PROVISION IS INTENDED
TO BE GIVEN A MEANING OTHER THAN ITS USUAL MEANING WHEN USED IN
CONNECTION WITH FEDERAL PERSONNEL MATTERS. IN THIS REGARD, THE FEDERAL
PERSONNEL MANUAL PROVIDES IN RELEVANT PART AS FOLLOWS: /20/
A PROMOTION WITHOUT CURRENT COMPETITION WHEN AT AN EARLIER STAGE AN
EMPLOYEE WAS SELECTED
FROM A CIVIL SERVICE REGISTER OR UNDER COMPETITIVE PROMOTION
PROCEDURES FOR AN ASSIGNMENT
INTENDED TO PREPARE THE EMPLOYEE FOR THE POSITION BEING FILLED (THE
INTENT MUST BE MADE A
MATTER OF RECORD AND CAREER LADDERS MUST BE DOCUMENTED IN THE
PROMOTION PLAN) . . . .
THUS, IN ESSENCE, THE FEDERAL PERSONNEL MANUAL DEFINES A
"CAREER-LADDER PROMOTION" AS THE NONCOMPETITIVE PROMOTION OF AN EMPLOYEE
STAGE FOR CAREER LADDER POSITIONS, WITH THE RECORDED INTENTION OF
PREPARING THE EMPLOYEES FOR SUCCESSIVE PROMOTIONS. IT IS CLEAR THAT
AGENCIES MAY PROMOTE INDIVIDUAL MEMBERS OF THE GROUP WHO, AS REQUIRED BY
THE PROPOSAL, HAVE DEMONSTRATED ABILITY TO PERFORM AT THE NEXT HIGHER
LEVEL, PROVIDED THAT THERE IS ENOUGH WORK AT THE FULL PERFORMANCE LEVEL
FOR ALL THE EMPLOYEES IN THE GROUP. A CAREER-LADDER PROMOTION, THEN, IS
THE DIRECT CONSEQUENCE OF THE AGENCY'S DECIDING TO SELECT THE EMPLOYEE
AND PLACING THE EMPLOYEE IN A CAREER-LADDER POSITION IN THE AGENCY. IT
FOLLOWS THAT THE AGENCY'S SELECTING AN EMPLOYEE FOR AND PLACING THAT
EMPLOYEE IN A CAREER-LADDER POSITION ALSO CONSTITUTES THE AGENCY'S
DECISION TO PROMOTE THAT EMPLOYEE NONCOMPETITIVELY AT APPROPRIATE STAGES
IN THE EMPLOYEE'S CAREER UP TO THE FULL PERFORMANCE LEVEL OF THE
POSITION ONCE THE REQUISITE CONDITIONS HAVE BEEN MET. IN THIS REGARD,
THE DISPUTED ARTICLE 22, SECTION 10 MERELY CALLS FOR THE AGENCY TO
CERTIFY AND PROMOTE UNIT EMPLOYEES WHO ARE IN CAREER-LADDER POSITIONS
WITHIN A SPECIFIED TIME PERIOD AFTER THOSE EMPLOYEES MEET CERTAIN
CONDITIONS.
IN VIEW OF THE FOREGOING, IT IS CLEAR THAT IN THE CONTEXT OF SECTION
12(B)(2) OF THE ORDER, A CAREER-LADDER PROMOTION AS REFERENCED IN
ARTICLE 22, SECTION 10 WOULD BE SIMPLY A MINISTERIAL ACT IMPLEMENTING
THE AGENCY'S EARLIER DECISION MADE PURSUANT TO ITS RESERVED DISCRETION
UNDER SECTION 12(B)(2), TO SELECT AND PLACE THE EMPLOYEE INVOLVED IN A
CAREER-LADDER POSITION IN THE AGENCY, WITH THE INTENTION OF PREPARING
THE EMPLOYEE FOR SUCCESSIVE NONCOMPETITIVE PROMOTIONS WHERE ANY
CONDITIONS PRESCRIBED BY THE FPM ARE OTHERWISE MET. AS SUCH, THE
DISPUTED PROVISION DOES NOT INTERFERE IN ANY WAY WITH THE AGENCY'S RIGHT
UNDER SECTION 12(B)(2) TO PROMOTE OR TO NOT PROMOTE EMPLOYEES. /21/
ACCORDINGLY, CONSISTENT WITH COUNCIL PRECEDENT, ARTICLE 22, SECTION 10
OF THE PARTIES' AGREEMENT DOES NOT VIOLATE SECTION 12(B)(2) OF THE
ORDER.
PROVISION IV
ARTICLE 35, SECTION 3:
SECTION 3
THE EMPLOYER AGREES THAT WHERE, THROUGH ADMINISTRATIVE ERROR OR
OVERSIGHT, AN EMPLOYEE
RECEIVES A MONETARY PAYMENT ABOVE THAT TO WHICH HE OR SHE WOULD
OTHERWISE BE ENTITLED, SAID
OVERPAYMENT SHALL BE WAIVED UPON A SHOWING THAT:
1. THE AMOUNT INVOLVED IS NOT MORE THAN FIVE HUNDRED DOLLARS
($500.00) OR THE EQUIVALENT;
2. THE EMPLOYEE WAS NOT RESPONSIBLE FOR THE ERROR; AND
3. COLLECTION ACTION UNDER THE CLAIM WOULD BE AGAINST EQUITY AND
GOOD CONSCIENCE AND NOT
IN THE BEST INTERESTS OF THE U.S. GOVERNMENT, THAT IS, NOTICE OF THE
MISTAKEN OVERPAYMENT WAS
NOT BROUGHT TO THE EMPLOYEE'S ATTENTION BY THE EMPLOYER WITHIN FIVE
(5) CALENDAR DAYS OF THE
PAYMENT.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PROVISION VIOLATES THE REGULATIONS OF
THE COMPTROLLER GENERAL AND IS THEREFORE NONNEGOTIABLE.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE PROVISION CONFLICTS WITH THE REQUIREMENTS
OF THE COMPTROLLER GENERAL GOVERNING WAIVERS OF OVERPAYMENTS OF $500 OR
LESS MADE TO EMPLOYEES THROUGH ADMINISTRATIVE OVERSIGHT. /22/
OPINION
CONCLUSION: THE PROVISION CONFLICTS WITH THE REGULATIONS OF THE
COMPTROLLER GENERAL GOVERNING WAIVERS OF OVERPAYMENTS OF $500 OR LESS
MADE TO EMPLOYEES THROUGH ADMINISTRATIVE OVERSIGHT. THEREFORE, THE
AGENCY'S DETERMINATION OF NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO
SECTION 2424.8 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED.REG.
44740 ET SEQ.(1979)), IS SUSTAINED.
REASONS: BECAUSE THE CASE CONCERNS ISSUES WITHIN THE JURISDICTION OF
THE GENERAL ACCOUNTING OFFICE, THE AUTHORITY REQUESTED A DECISION FROM
THE COMPTROLLER GENERAL AS TO WHETHER THE PROPOSAL VIOLATES APPLICABLE
LAW AND REGULATION.
THE COMPTROLLER GENERAL'S DECISION IN THE MATTER, B-194626, AUGUST 9,
1979, IS SET FORTH, IN PERTINENT PART, BELOW:
THIS DECISION IS IN RESPONSE TO THE REQUEST FROM THE FEDERAL LABOR
RELATIONS AUTHORITY,
FLRC NO. 78A-29, CONCERNING THE LEGALITY OF A PROVISION IN A LOCALLY
NEGOTIATED COLLECTIVE
BARGAINING AGREEMENT ON WAIVER OF ERRONEOUS PAYMENTS OF PAY AND
ALLOWANCES. THE QUESTION
PRESENTED FOR OUR DECISION IS WHETHER THE PROVISION IN THE NEGOTIATED
AGREEMENT CONFLICTS WITH
THE STANDARDS FOR WAIVER OF CLAIMS ISSUED BY OUR OFFICE AND CONTAINED
IN 4 C.F.R. PART 91 ET
SEQ.
THE FEDERAL LABOR RELATIONS AUTHORITY IS CONSIDERING THE
NEGOTIABILITY OF SEVERAL
PROVISIONS OF A COLLECTIVE BARGAINING AGREEMENT ENTERED INTO BY THE
U.S. CUSTOMS SERVICE,
REGION IX, AND THE NATIONAL TREASURY EMPLOYEES UNION. THE PROVISION
OF THE AGREEMENT WHICH IS
THE SUBJECT OF OUR DECISION PROVIDES, IN ARTICLE 35, SECTION 3, AS
FOLLOWS:
"THE EMPLOYER AGREES THAT WHERE, THROUGH ADMINISTRATIVE ERROR OR
OVERSIGHT, AN EMPLOYEE
RECEIVES A MONETARY PAYMENT ABOVE THAT TO WHICH HE OR SHE WOULD
OTHERWISE BE ENTITLED, SAID
OVERPAYMENT SHALL BE WAIVED UPON A SHOWING THAT:
"1. THE AMOUNT INVOLVED IS NOT MORE THAN FIVE HUNDRED DOLLARS
($500.00) OR THE EQUIVALENT;
"2. THE EMPLOYEE WAS NOT RESPONSIBLE FOR THE ERROR; AND
"3. COLLECTION ACTION UNDER THE CLAIM WOULD BE AGAINST EQUITY AND
GOOD CONSCIENCE AND NOT
IN THE BEST INTERESTS OF THE U.S. GOVERNMENT, THAT IS, NOTICE OF THE
MISTAKEN OVERPAYMENT WAS
NOT BROUGHT TO THE EMPLOYEE'S ATTENTION BY THE EMPLOYER WITHIN FIVE
(5) CALENDAR DAYS OF THE
PAYMENT."
THE CUSTOMS SERVICE ARGUES THAT THIS PROVISION IS INCONSISTENT WITH
THE STANDARDS FOR
WAIVER ISSUED BY OUR OFFICE, PARTICULARLY 4 C.F.R. SEC. 91.5(C),
SINCE THE NEGOTIATED
AGREEMENT WOULD PERMIT AN EMPLOYEE WHO HAS NOT MADE REASONABLE
INRUIRIES AS TO THE CORRECTNESS
OF A PAYMENT TO RETAIN THE OVERPAYMENT. THE UNION CONTENDS THAT THE
PROVISION IS CONSISTENT
WITH THE RULES, REGULATIONS, AND DECISIONS OF OUR OFFICE WITH REGARD
TO THE STANDARDS FOR
WAIVER.
UNDER THE AUTHORITY OF 5 U.S.C. 5584(1976) A CLAIM FOR THE UNITED
STATES ARISING OUT OF AN
ERRONEOUS PAYMENT OF PAY OR ALLOWANCES MAY BE WAIVED IF COLLECTION
WOULD BE AGAINST EQUITY AND
GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES.
SUCH WAIVER MAY BE MADE
BY THE HEAD OF THE AGENCY WHEN THE CLAIM IS IN AN AMOUNT AGGREGATING
NOT MORE THAN $500 AND BY
THE COMPTROLLER GENERAL FOR CLAIMS EXCEEDING $500 PROVIDED "THE
WAIVER IS MADE IN ACCORDANCE
WITH STANDARDS WHICH THE COMPTROLLER GENERAL SHALL PRESCRIBE." 5
U.S.C. 5584(A). THE LAW
PROVIDES FURTHER THAT THIS AUTHORITY FOR WAIVER MAY NOT BE EXERCISED
IF THERE EXISTS, IN
CONNECTION WITH THE CLAIM, AN INDICATION OF FRAUD, MISREPRESENTATION,
FAULT, OR LACK OF GOOD
FAITH ON THE PART OF THE EMPLOYEE OR ANY OTHER PERSON HAVING AN
INTEREST IN OBTAINING A WAIVER
OF THE CLAIM. 5 U.S.C. 5584(B).
THE STANDARDS FOR WAIVER, PROMULGATED BY THIS OFFICE UNDER 5
U.S.C.5584, ARE CONTAINED IN 4
C.F.R. PART 91 ET SEQ. THESE REGULATIONS PROVIDE, IN SECTION
91.5(C), THAT A CLAIM MAY BE
WAIVED WHENEVER:
"(C) COLLECTION ACTION UNDER THE CLAIM WOULD BE AGAINST EQUITY AND
GOOD CONSCIENCE AND NOT
IN THE BEST INTERESTS OF THE UNITED STATES. GENERALLY THESE CRITERIA
WILL BE MET BY A FINDING
THAT THE ERRONEOUS PAYMENT OF PAY OR ALLOWANCES OCCURRED THROUGH
ADMINISTRATIVE ERROR AND THAT
THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF
GOOD FAITH ON THE PART OF
THE EMPLOYEE OR MEMBER OR ANY OTHER PERSON HAVING AN INTEREST IN
OBTAINING A WAIVER OF THE
CLAIM. ANY SIGNIFICANT UNEXPLAINED INCREASE IN PAY OR ALLOWANCES
WHICH WOULD REQUIRE A
REASONABLE PERSON TO MAKE INQUIRY CONCERNING THE CORRECTNESS OF HIS
PAY OR ALLOWANCES,
ORDINARILY WOULD PRECLUDE A WAIVER WHEN THE EMPLOYEE OR MEMBER FAILS
TO BRING THE MATTER TO
THE ATTENTION OF APPROPRIATE OFFICIALS. WAIVER OF OVERPAYMENTS OF
PAY AND ALLOWANCES UNDER
THIS STANDARD NECESSARILY MUST DEPEND UPON THE FACTS EXISTING IN THE
PARTICULAR CASE * * * ."
OUR DECISIONS HAVE HELD THAT WHETHER AN EMPLOYEE WHO RECEIVES AN
ERRONEOUS PAYMENT IS FREE
FROM FAULT IN THE MATTER, CAN ONLY BE DETERMINED BY A CAREFUL
ANALYSIS OF ALL PERTINENT FACTS,
NOT ONLY THOSE GIVING RISE TO THE OVERPAYMENT BUT THOSE INDICATING
WHETHER THE EMPLOYEE
REASONABLY COULD HAVE BEEN EXPECTED TO HAVE BEEN AWARE THAT AN ERROR
HAD BEEN MADE. IF UNDER
THE CIRCUMSTANCES INVOLVED A REASONABLE MAN WOULD HAVE MADE INQUIRY
AS TO THE CORRECTNESS OF
THE PAYMENT AND THE EMPLOYEE INVOLVED DID NOT DO SO, THEN, IN OUR
OPINION, THE EMPLOYEE COULD
NOT BE SAID TO BE FREE FROM FAULT AND THE CLAIM AGAINST HIM SHOULD
NOT BE WAIVED. B-177629,
FEBRUARY 22, 1973; AND B-15663, JUNE 11, 1969. SEE ALSO GILBERT G.
QUINTERO, B-183558, APRIL
23, 1975.
IN THE PRESENT CASE, THE COLLECTIVE BARGAINING AGREEMENT PROVISION
DOES NOT PROVIDE FOR AN
INQUIRY INTO THE FACTS SURROUNDING THE OVERPAYMENT. INSTEAD, THE
AGREEMENT IMPOSES A BURDEN
UPON THE AGENCY TO NOTIFY THE EMPLOYEE WITHIN 5 DAYS OF THE MISTAKEN
PAYMENT OR LOSE ITS RIGHT
TO COLLECT THE OVERPAYMENT. FURTHERMORE, AS THE U.S. CUSTOMS SERVICE
HAS POINTED OUT, THE
COLLECTIVE BARGAINING AGREEMENT DOES NOT TAKE INTO CONSIDERATION THE
OBLIGATION OF THE
EMPLOYEE TO MAKE INQUIRIES AS TO THE CORRECTNESS OF A SIGNIFICANT
UNEXPLAINED INCREASE IN PAY
OR ALLOWANCES. SEE 4 C.F.R. SEC. 91.5(C).
AS AN EXAMPLE OF THE DUTY TO MAKE REASONABLE INQUIRIES, WE HAVE HELD
THAT WHERE AN EMPLOYEE
HAS RECORDS WHICH, IF REVIEWED, WOULD INDICATE AN OVERPAYMENT, AND
THE EMPLOYEE FAILS TO
REVIEW SUCH DOCUMENTS FOR ACCURACY OR OTHERWISE FAILS TO TAKE
CORRECTIVE ACTION, HE IS NOT
WITHOUT FAULT AND WAIVER WILL BE DENIED. SEE ROOSEVELT W. ROYALS,
B-188822, JUNE 1, 1977, AND
DECISIONS CITED THEREIN. AN EMPLOYEE HAS THE RESPONSIBILITY TO
VERIFY THE INFORMATION
PROVIDED ON HIS PAYROLL CHANGE SLIPS OR LEAVE AND EARNING STATEMENTS,
AND WHERE A REASONABLE
MAN WOULD HAVE MADE INQUIRY BUT THE EMPLOYEE DID NOT, THEN HE IS NOT
FREE FROM FAULT AND THE
CLAIM MAY NOT BE WAIVED. JOHN J. DOYLE, B-191295, JULY 7, 1978; AND
SIMON B. GUEDEA B-189385,
AUGUST 10, 1977.
THE PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT IN QUESTION HERE
MAKES NO MENTION OF
THE OBLIGATION OF AN EMPLOYEE TO REVIEW RECORDS OR DOCUMENTS IN HIS
POSSESSION FOR ACCURACY OR
TO OTHERWISE INQUIRE AS TO THE CORRECTNESS OF A SIGNIFICANT
UNEXPLAINED INCREASE IN PAY. THE
REQUIREMENT THAT AN OVERPAYMENT BE WAIVED IF THE AGENCY HAS NOT
NOTIFIED THE EMPLOYEE OF THE
ERROR WITHIN 5 DAYS DOES NOT TAKE INTO CONSIDERATION OTHER FACTS
WHICH ARE RELEVANT IN
DETERMINING IF THE EMPLOYEE IS FREE FROM FAULT.
ACCORDINGLY, WE CONCLUDE THAT THE COLLECTIVE BARGAINING AGREEMENT
PROVISION IS NOT
CONSISTENT WITH THE PROVISIONS OF 5 U.S.C. 5584 OR THE STANDARDS FOR
WAIVER SET FORTH IN 4
C.F.R. PART
91, AND SUCH PROVISION COULD NOT BE LEGALLY IMPLEMENTED.
BASED ON THE FOREGOING DECISION BY THE COMPTROLLER GENERAL, ARTICLE
35, SECTION 3 CONFLICTS WITH THE REGULATIONS OF THE COMPTROLLER GENERAL
GOVERNING CONDITIONS FOR WAIVER OF CLAIMS FOR OVERPAYMENTS TO EMPLOYEES
AND IS, THEREFORE, NONNEGOTIABLE. ACCORDINGLY, THE AGENCY'S
DETERMINATION OF NONNEGOTIABILITY IS SUSTAINED.
ISSUED, WASHINGTON, D.C., NOVEMBER 15,1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ IN ACCORDANCE WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT.1224), THIS CASE IS DECIDED SOLELY ON THE BASIS OF E.O.
11491, AS AMENDED, AND AS IF THE STATUTE "HAD NOT BEEN ENACTED." IN THIS
REGARD, THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING
OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT
WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.
/2/ SECTION 15 OF E.O.11491, AS AMENDED, PROVIDES:
SEC.15. APPROVAL OF AGREEMENT. AN AGREEMENT WITH A LABOR
ORGANIZATION AS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN A UNIT IS SUBJECT TO THE APPROVAL OF
THE HEAD OF THE AGENCY OR
AN OFFICIAL DESIGNATED BY HIM. AN AGREEMENT SHALL BE APPROVED WITHIN
FORTY-FIVE DAYS FROM THE
DATE OF ITS EXECUTION IF IT CONFORMS TO APPLICABLE LAWS, THE ORDER,
EXISTING PUBLISHED AGENCY
POLICIES AND REGULATIONS (UNLESS THE AGENCY HAS GRANTED AN EXCEPTION
TO A POLICY OR
REGULATION) AND REGULATIONS OF OTHER APPROPRIATE AUTHORITIES. AN
AGREEMENT WHICH HAS NOT BEEN
APPROVED OR DISAPPROVED WITHIN FORTY-FIVE DAYS FROM THE DATE OF ITS
EXECUTION SHALL GO INTO
EFFECT WITHOUT THE REQUIRED APPROVAL OF THE AGENCY HEAD AND SHALL BE
BINDING ON THE PARTIES
SUBJECT TO THE PROVISIONS OF LAW, THE ORDER AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES
OUTSIDE THE AGENCY. A LOCAL AGREEMENT SUBJECT TO A NATIONAL OR OTHER
CONTROLLING AGREEMENT AT
A HIGHER LEVEL SHALL BE APPROVED UNDER THE PROCEDURES OF THE
CONTROLLING AGREEMENT, OR, IF
NONE, UNDER AGENCY REGULATIONS.
/3/ THE AGENCY DETERMINED THAT ARTICLE 16, SECTION 3 OF THE AGREEMENT
WAS INCONSISTENT WITH THE FEDERAL PERSONNEL MANUAL CHAPTER 335 WHICH WAS
THEN IN EFFECT WITHOUT REFERENCE TO SPECIFIC PROVISIONS OF THAT
DIRECTIVE.
/4/ SECTION 12(B)(2) OF THE ORDER PROVIDES IN PART:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
. . . .
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
. . . .
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE
AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY
ACTION AGAINST EMPLOYEES
. . .
/5/ IN SO DECIDING THAT THE SUBJECT PROVISION WAS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROVISION.
/6/ OUR ANALYSIS OF THE NEGOTIABILITY OF THIS UNION PROPOSAL IS BASED
ON THE ASSUMPTION THAT THE TERM "REASSIGNMENT" IN THE PROPOSAL HAS THE
SAME MEANING AS THAT IN FPM LETTER 335-12.
/7/ IN KIRK ARMY HOSPITAL, FLRC NO. 72A-18, THE COUNCIL HAD OCCASION
TO CITE FPM CHAPTER 335, SUBCHAPTER 4-3(C)(2), AND COMMENTED THAT "WITH
RESPECT TO THE REPROMOTION RIGHTS OF SUCH EMPLOYEES, THE FPM PLAINLY
STATES THAT, EVEN THOUGH THEY ARE ENTITLED TO "'SPECIAL CONSIDERATION'",
THEY ARE "'NOT GUARANTEED PROMOTION.'" IN OTHER WORDS, A SELECTION
DECISION REMAINS TO BE MADE BY THE SELECTING OFFICIAL." SEE ALSO
COMMISSION OPINIONS IN WARREN AIR FORCE BASE, FLRC NO. 75A-127, AND
TOOELE ARMY DEPOT, FLRC NO. 75A-104.
/8/ WE NOTE THAT THE PARTIES IN THIS CASE DO NOT CONTEND THAT ARTICLE
16, SECTION 3B. VIOLATES THE FEDERAL TRAVEL REGULATIONS, AND RESEARCH
FAILED TO REVEAL ANY SUCH VIOLATION.
/9/ SEE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 122 AND
VETERANS ADMINISTRATION, ATLANTA REGIONAL OFFICE, ATLANTA, GEORGIA, FLRC
NO. 77A-94 (NOV. 8,1978), REPORT NO. 159, AT 9-11 OF COUNCIL DECISION
RULING THE AGENCY'S CONTENTION, THAT AN AGREEMENT PROVISION WAS
NONNEGOTIABLE BECAUSE IT DID NOT SPECIFICALLY MAKE THE PROVISION SUBJECT
TO LEGAL TIME-IN-GRADE REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL,
FAILED TO STATE A GROUND FOR FINDING THE PROVISION NONNEGOTIABLE. THE
COUNCIL NOTED THAT, UNDER SECTION 12(A) OF THE ORDER, THE PROVISIONS OF
WHICH MUST BE INCLUDED IN EVERY AGREEMENT, THE ADMINISTRATION OF ANY
AGREEMENT ENTERED INTO BY THE PARTIES WOULD BE SUBJECT TO EXISTING OR
FUTURE LAWS AND THE REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING
POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL. SEE ALSO INFRA PP.
8-9 OF THIS DECISION.
/10/ NATIONAL MARITIME UNION OF AMERICAN, AFL-CIO AND NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION, 5 FLRC 497 (FLRC NO. 76A-79
(JUNE 21, 1977), REPORT NO.128). THE UNION PROPOSALS AT ISSUE IN THAT
CASE PROVIDED:
PROPOSAL NO.1:
THAT HIRING PREFERENCE BE GIVEN TO APPLICANTS WHO HAVE ENDORSEMENTS
OF U.S. COAST GUARD FOR
THE POSITIONS THEY SEEK.
PROPOSAL NO. 2:
EMPLOYEES WHO HAVE SATISFACTORILY COMPLETED 90 DAYS OF EMPLOYMENT AND
ARE THEREAFTER LAID
OFF SHOULD BE GIVEN REHIRE PREFERENCE FOR POSITIONS IN THE SAME
DEPARTMENT OVER INEXPERIENCED
SEAMEN APPLICANTS WHEN POSITIONS ABOARD NOAA AGENCY VESSELS BECOME
AVAILABLE.
/11/ CF. AFGE (NATIONAL BORDER PATROL COUNCIL AND NATIONAL INS
COUNCIL) AND IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF
JUSTICE, 5 FLRC 808 (FLRC NO. 76A-68 (AUG. 31, 1977), REPORT NO. 136)
(UNION PROPOSAL THAT AN APPLICANT FROM OUTSIDE THE AGENCY WOULD NOT BE
CONSIDERED FOR APPOINTMENT OR TRANSFER UNLESS CERTAIN CONDITIONS WERE
MET HELD VIOLATIVE OF SECTION 12(B)(2) OF THE ORDER SINCE IT WOULD
REQUIRE MANAGEMENT TO SELECT FROM AMONG INTERNAL CANDIDATES AHEAD OF ALL
OTHER APPLICANTS).
/12/ THE TEMPORARY PROMOTION REQUIREMENTS THEN IN EFFECT RELIED UPON
BY THE AGENCY ARE THOSE WHICH WERE CONTAINED IN FEDERAL PERSONNEL
MANUAL, CHAPTER 335, SUBCHAPTER 4-3, WHICH PROVIDED IN PART:
4-3. PROMOTIONS AS EXCEPTIONS TO COMPETITIVE PROCEDURES
. . . .
E. PROMOTION TO A HIGHER GRADE FOR 120 DAYS OR LESS. AN AGENCY MAY
MAKE A TEMPORARY
PROMOTION LIMITED TO 120 DAYS OR LESS AS AN EXCEPTION TO COMPETITIVE
PROMOTION
PROCEDURES. THIS EXCEPTION IS NOT TO BE USED TO CIRCUMVENT
COMPETITIVE PROMOTION REQUIREMENTS
BY A SERIES OF TEMPORARY HIGHER-LEVEL ASSIGNMENTS. THEREFORE,
COMPETITIVE PROMOTION
PROCEDURES MUST BE USED IF AFTER COMPLETING THE PERIOD OF SERVICE
UNDER TEMPORARY PROMOTION AN
EMPLOYEE WILL HAVE SPENT MORE THAN 120 DAYS (PRIOR SERVICE UNDER
DETAILS AND PREVIOUS
TEMPORARY PROMOTIONS INCLUDED) IN HIGH-GRADE POSITIONS DURING THE
PRECEDING YEAR.
THESE REQUIREMENTS ARE NOW CONTAINED IN THE REVISED FEDERAL PERSONNEL
MANUAL, CHAP. 335, SUBCHAP.1-5(C)(4).
/13/ SEE SUPRA. N.4.
14 IN SO DECIDING THAT THE SUBJECT PROVISION WAS WITHIN DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROVISION.
/15/ SEE SUPRA, N. 10.
/16/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 122 AND VETERANS
ADMINISTRATION, ATLANTA REGIONAL OFFICE, ATLANTA, GEORGIA, FLRC NO.
77A-94 (NOV. 8, 1978), REPORT NO. 159, AT 8-11 OF COUNCIL DECISION. THE
AGREEMENT PROVISION IN DISPUTE IN THAT CASE, AS HERE PERTINENT, REQUIRED
THAT AN EMPLOYEE TEMPORARILY PLACED IN A HIGHER-GRADE POSITION WOULD BE
TEMPORARILY PROMOTED, IF THE ASSIGNMENT EXCEEDED 60 DAYS.
/17/ THERE IS NO DISPUTE IN THIS CASE WITH RESPECT TO THE
NEGOTIABILITY OF THE SECOND SENTENCE OF ARTICLE 17, SECTION 2A., WHICH
PROVIDES THAT THE AGENCY WILL REFRAIN FROM ROTATING DETAILS OF EMPLOYEES
SOLELY TO AVOID COMPENSATION AT THE HIGHER LEVEL, AND THIS PORTION OF
THE PROVISION DOES NOT AFFECT THE AUTHORITY'S DETERMINATION THAT ARTICLE
17, SECTION 2A. DOES NOT VIOLATE SECTION 12(B) OF THE ORDER. CF.
PHILADELPHIA METAL TRADES COUNCIL, AFL-CIO AND PHILADELPHIA NAVAL
SHIPYARD, PHILADELPHIA, PENNSYLVANIA, 1 FLRC 456, 458-60 (FLRC NO.
72A-40 (JUNE 29, 1973), REPORT NO. 41) (PROPOSAL THAT AGENCY NOT MAKE
OVERTIME ASSIGNMENTS FOR THE SOLE PURPOSE OF DENYING OVERTIME WORK TO
UNIT EMPLOYEES HELD NEGOTIABLE UNDER SECTION 11(A) OF THE ORDER).
/18/ SEE SUPRA. N. 4.
/19/ IN SO DECIDING THAT THE SUBJECT PROVISION WAS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROVISION.
/20/ FEDERAL PERSONNEL MANUAL, CHAP. 335, SUBCHAP. 1-5(C)(1)(A).
/21/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 122 AND VETERANS
ADMINISTRATION, ATLANTA REGIONAL OFFICE, ATLANTA, GEORGIA, FLRC NO.
77A-94 (NOV. 8, 1978), REPORT NO. 159, AT 10 OF COUNCIL DECISION
(AGREEMENT PROVISION CALLING FOR TEMPORARY PROMOTION OF UNIT EMPLOYEES
UPON ASSIGNMENT FOR MORE THAN 60 DAYS TO A HIGHER-GRADE POSITION NOT
VIOLATIVE OF SECTION 12(B)(2) OF THE ORDER SINCE THE TEMPORARY PROMOTION
IS SIMPLY A MINISTERIAL ACT WHICH IMPLEMENTS THE DECISION AND ACTION
TAKEN BY THE AGENCY ITSELF IN SELECTING AND ASSIGNING THE PARTICULAR
EMPLOYEE TO THE HIGHER-GRADE POSITION).
/22/ THE COMPTROLLER GENERAL'S REGULATIONS GOVERNING OVERPAYMENTS ARE
SET FORTH IN 4 C.F.R. SEC. 91.1 ET SEQ. AND PROVIDE IN PERTINENT PART:
SUBCHAPTER G- STANDARDS FOR WAIVER OF CLAIMS FOR ERRONEOUS PAYMENT OF
PAY AND ALLOWANCES
PART 91 - STANDARDS FOR WAIVER
. . . .
SEC. 91.4 WAIVER OF CLAIMS FOR ERRONEOUS PAYMENT OF PAY AND
ALLOWANCES.
. . . .
(B) THE HEAD OF THE AGENCY OR THE SECRETARY CONCERNED, AS
APPROPRIATE, MAY WAIVE IN WHOLE
OR IN PART A CLAIM OF THE UNITED STATES IN AN AMOUNT AGGREGATING NOT
MORE THAN $500, WITHOUT
REGARD TO ANY REPAYMENTS, AGAINST ANY PERSON ARISING OUT OF AN
ERRONEOUS PAYMENT OF PAY OR
ALLOWANCES TO OR ON BEHALF OF AN EMPLOYEE OR MEMBER WHEN ALL OF THE
CONDITIONS SET OUT IN
SEC. 91.5 ARE PRESENT . . . .
SEC. 91.5 CONDITIONS FOR WAIVER OF CLAIMS.
CLAIMS OF THE UNITED STATES ARISING OUT OF AN ERRONEOUS PAYMENT OF
PAY OR ALLOWANCES MAY BE
WAIVED IN WHOLE OR IN PART IN ACCORDANCE WITH THE PROVISIONS OF SEC.
91.4 WHENEVER:
. . . .
(C) COLLECTION ACTION UNDER THE CLAIM WOULD BE AGAINST EQUITY AND
GOOD CONSCIENCE AND NOT
IN THE BEST INTERESTS OF THE UNITED STATES. GENERALLY THESE CRITERIA
WILL BE MET BY A FINDING
THAT THE ERRONEOUS PAYMENT OF PAY OR ALLOWANCES OCCURRED THROUGH
ADMINISTRATIVE ERROR AND THAT
THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF
GOOD FAITH ON THE PART OF
THE EMPLOYEE OR MEMBER OR ANY PERSON HAVING AN INTEREST IN OBTAINING
A WAIVER OF THE
CLAIM. ANY SIGNIFICANT UNEXPLAINED INCREASE IN PAY OR ALLOWANCES
WHICH WOULD REQUIRE A
REASONABLE PERSON TO MAKE INQUIRY CONCERNING THE CORRECTNESS OF HIS
PAY OR ALLOWANCES,
ORDINARILY WOULD PRECLUDE A WAIVER WHEN THE EMPLOYEE OR MEMBER FAILS
TO BRING THE MATTER TO
THE ATTENTION OF APPROPRIATE OFFICIALS. WAIVER OF OVERPAYMENTS OF
PAY AND ALLOWANCES UNDER
THIS STANDARD NECESSARILY MUST DEPEND UPON THE FACTS EXISTING IN THE
PARTICULAR CASE . . .