[ v11 p238 ]
The decision of the Authority follows:
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.