11:0238(50)NG - AFGE and HQ, Air Force Logistics Command, Wright- Patterson AFB, OH -- 1983 FLRAdec NG

 11 FLRA No. 50
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Union
 
 and
 
 HEADQUARTERS, AIR FORCE LOGISTICS
 COMMAND, WRIGHT-PATTERSON AIR FORCE
 BASE, OHIO
 Agency
 
                                            Case No. O-NG-378
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    This case comes before the Authority pursuant to section
 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations
 Statute (the Statute) and presents threshold procedural questions and
 issues concerning the negotiability of four Union proposals.  /1/ Upon
 careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.
 
    The Agency initially contends that the petition for review was
 untimely filed and should be dismissed.  According to the record, the
 relevant facts are as follows:  In negotiations, the Agency took the
 position that Union Proposals 1, 3, 4, and 6 were nonnegotiable and so
 notified the Union by a statement dated July 17, 1980.  Subsequently, by
 letters dated August 11 and 18, 1980, the Union requested an Agency
 allegation concerning the duty to bargain on the matters encompassed in
 the proposals.  The Agency allegation rendered in response to the
 Union's request was received by the Union on September 9, 1980 and the
 Union filed the instant petition with the Authority on September 17,
 1980.
 
    Under section 2424.3 of the Authority's Rules and Regulations, a
 union has the right to request in writing that an agency serve it with a
 written allegation that matters proposed are outside the duty to
 bargain.  American Federation of Government Employees, AFL-CIO, Local
 3385 and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7
 FLRA No. 58 (1981).  The Union herein made such a request and filed its
 appeal within fifteen days from the date it received the Agency's
 response, as required by section 2424.3.  Therefore, the petition was
 timely filed and the Agency's request to dismiss on this basis is
 denied.
 
    The Agency further requests that the petition for review be dismissed
 since the Union has failed to identify the proposals in dispute and to
 provide a full and detailed response to the Agency's determination of
 nonnegotiability as required by section 2424.7 of the Rules and
 Regulations.  However, section 2424.7 concerns only the Union's response
 to the Agency's statement of position;  it is inapplicable to the
 initial sufficiency of a petition for review, the content of which is
 governed by section 2424.4.  By setting forth a copy of the proposal and
 the Agency's allegation, the Union complied with the substantive
 requirements for a petition for review.  /2/
 
                          Union Proposals 1 and 3
 
          1.  Employees with pay retention will continue to be afforded
       priority consideration without any restrictions such as being
       limited to the same pay system.
 
          3.  No changes will be made in not requiring competitive
       procedures for selection of candidates from RPL for higher grade
       positions than the employee(s) left.
 
    The Agency contends only that Air Force Regulation 40-335 generally
 bars negotiation over these proposals.  Under section 7117(a)(2) of the
 Statute and subpart B of Part 2424 of the Authority's Rules and
 Regulations, an agency regulation can bar negotiation of a conflicting
 union proposal only if a compelling need exists for such regulation.  In
 this connection, the agency bears the burden of coming forward with
 affirmative support for its assertion that the regulation in question
 bars negotiations because there is a compelling need.  /3/ In the
 instant case, the Agency has failed to identify or submit for the
 Authority's consideration, as required by section 2424.6(a)(2) of the
 Rules and Regulations, the specific provision of internal agency rule or
 regulation upon which it relies.  It follows that the Agency has failed
 to demonstrate that the proposals would conflict with any such rules or
 regulation.  Under these circumstances, the Authority finds that the
 Agency has failed to support its allegation that the Union's proposals
 are barred from negotiations because they conflict with an internal
 agency rule or regulation for which a compelling need exists.  National
 Treasury Employees Union and Department of Health and Human Services,
 Region X, Seattle, Washington, 5 FLRA No. 93 (1981).  The Agency has not
 alleged that these proposals are in any other manner inconsistent with
 applicable law, rule, or regulation and no such inconsistency is
 apparent.  Accordingly, pursuant to section 2424.10 of the Authority's
 Rules and Regulations, IT IS ORDERED that the Agency shall upon request
 (or as otherwise agreed to by the parties) bargain concerning Union
 Proposals 1 and 3.  /4/
 
                             Union Proposal 4
 
          4.  No changes will be made in the requirement of Air Force
       employees on OPM certificate having to be on the merit promotion
       certificate before they can be promoted.
 
    Section 7106(a)(2)(C) of the Statute reserves to management the right
 to make selections for appointments from among properly ranked and
 certified candidates for promotion or from any other appropriate source.
  The proposal, however, would prevent the Agency from selecting Air
 Force employees from one such source-OPM certificates /5/ -unless they
 also are on the Agency's merit promotion certificate.  Thus, the
 proposal would directly interfere with management's right under section
 7106(a)(2)(C)(ii) of the Statute by precluding the Agency from making
 selections from any appropriate source and, therefore, is outside the
 duty to bargain.  American Federation of Government Employees, AFL-CIO,
 Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA
 No. 97 (1982) (Union Proposal II), appeal docketed sub nom. OPM v. FLRA,
 Nos. 82-1756 and 1757 (D.C. Cir. July 6, 1982).  Accordingly, pursuant
 to section 2424.10 of the Authority's Rules and Regulations, IT IS
 ORDERED that the Union's petition for review as to this proposal be, and
 it hereby is, dismissed.
 
                             Union Proposal 6
 
          6.  Voluntary reassignment/changes to lower grade candidates
       will continue to not be required to be ranked with promotion
       candidates.
 
    Union Proposal 6 would preclude management from applying competitive
 procedures to volunteers for reassignment or demotion (changes to a
 lower grade).  However, section 1-5a(5) of chapter 335 of the Federal
 Personnel Manual (FPM) /6/ requires that competitive procedures be
 applied to personnel actions which would reassign or demote an employee
 to a position which has more promotion potential than the position last
 held by the employee except as permitted by reduction-in-force
 regulations.  Thus, in agreement with the Agency, the Authority finds
 that the proposal would prevent the use of competitive procedures in
 circumstances where such procedures are required by the FPM.
 
    The remaining question is whether the applicable provision of the FPM
 constitutes a Government-wide rule or regulation within the meaning of
 section 7117(a)(1) of the Statute so as to bar negotiation of the
 conflicting proposal.  Section 335.103 of part 335 of title 5, Code of
 Federal Regulations, requires each agency to adopt and administer a
 "program designed to insure a systematic means of selection for
 promotion according to merit.  The promotion program shall conform with
 the standards and requirements of OPM." These requirements for agency
 merit promotion plans, as mentioned above, are set forth in chapter 335
 of the FPM and are applicable to Federal civilian employees in the
 competitive service within the executive branch of the Government.  /7/
 Thus, FPM chapter 335 is generally applicable to the Federal civilian
 work force and is "Government-wide" within the meaning of section
 7117(a)(1) of the Statute.  National Treasury Employees Union, Chapter 6
 and Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980).
 
    As to whether FPM chapter 335, section 1-5a(5) constitutes a "rule or
 regulation" within the meaning of section 7117(a)(1), the OPM, as stated
 previously, establishes standards and requirements with which agency
 promotion programs must conform.  See 5 CFR 335.103.  The requirements
 regarding agency procedures for promoting employees set forth in chapter
 335 constitute OPM's determination of the policies necessary to insure
 that agency promotion procedures are based on merit.  Subchapter 1-5
 sets forth a binding requirement that competitive procedures must apply
 to all promotions under section 335.102 of the civil service regulations
 and to certain enumerated personnel actions, including those in dispute
 here.  Thus, the Authority concludes that section 1-5a(5) thereof is a
 Government-wide rule or regulation.  See National Federation of Federal
 Employees, Local 1497 and Department of the Air Force, Lowry Air Force
 Base, Colo., 9 FLRA No. 20 (1982).  Since, as noted above, Union
 Proposal 6 is inconsistent with section 1-5a(5), the Authority
 determines that the proposal is not within the duty to bargain pursuant
 to section 7117(a)(1) of the Statute.  Accordingly, pursuant to section
 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the
 Union's petition for review as to this proposal be, and it hereby is,
 dismissed.  Issued, Washington, D.C., February 3, 1983
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Authority hereby grants the Union's request to withdraw its
 petition for review as to Union Proposals 5 and 7.  Further, pursuant to
 the Authority's discretion set forth in section 7117(b)(3) of the
 Statute, the Union's request for a hearing is denied since the record is
 sufficient to enable the Authority to render a decision herein.
 
 
    /2/ The Authority notes that section 2424.4 was amended during the
 pendency of this case to additionally require an explicit statement of
 the meaning attributed to the proposal by the exclusive representative.
 
 
    /3/ See American Federation of Government Employees, AFL-CIO, Local
 1928 and Department of the Navy, Naval Air Development Center,
 Warminster, Pennsylvania, 2 FLRA 450, 454 (1980).
 
 
    /4/ In deciding that Union Proposals 1 and 3 are within the duty to
 bargain, the Authority, of course, makes no judgment as to their merits.
 
 
    /5/ See Federal Personnel Manual, chapter 335, subchapter 1-4,
 Requirement 4, which enumerates various appropriate sources.
 
 
    /6/ Section 1-5a(5) provides:
 
    1-5.  COVERED PERSONNEL ACTIONS
 
    a.  Competitive procedures in agency promotion plans apply to all
 promotions under Section 335.102 of the civil service regulations and to
 the following actions.
 
                                .  .  .  .
 
          (5) Reassignment or demotion to a position with more promotion
       potential than the position last held (except as permitted by
       reduction-in-force regulations).
 
 
    /7/ See 5 U.S.C. 3301-02, 3361;  5 CFR 210.101(b);  E.O. 10577 and
 E.O. 9830.