[ v12 p545 ]
The decision of the Authority follows:
12 FLRA No. 104 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2578, AFL-CIO Union and GENERAL SERVICES ADMINISTRATION, NATIONAL ARCHIVES AND RECORDS SERVICE Agency Case No. O-NG-640 DECISION AND ORDER ON NEGOTIABILITY ISSUE This petition for review comes before the Authority pursuant to section 7105(a)(2)(D) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues relating to the negotiability of the following Union proposal which arose in the context ; of negotiations relating to a reduction-in-force (RIF) conducted by the Agency: Trust Fund employees will have the same retreat and bumping rights of the competitive service. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Contrary to the Agency's position, the Authority finds that the petition is neither moot nor procedurally defective. Although service of a copy of the petition on the Agency head may have been defective initially, the Union later perfected service and, thus, cured the defect in accordance with established Authority practice. See American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 5 FLRA No. 71 (1981). Moreover, the Authority finds that the Agency's actions in unilaterally extending bumping and retreat rights to Trust Fund employees involved in the RIF neither resolved nor rendered moot the question of whether such matters are subject to bargaining. /2/ With respect to the merits of the negotiability issue, the Agency in its declaration of nonnegotiability asserted that the proposal conflicts with a higher level agency regulation, specifically GSA Order OAD P 5410.1, Paragraph 160(b). /3/ However, the Agency has not elaborated upon this assertion in its statement of position. It appears that the Agency is, in essence, contending that negotiation of the proposal is barred inasmuch as a compelling need exists for the cited regulation. /4/ However, the Agency has submitted no affirmative support upon which the Authority could base a finding that a compelling need exists for the regulation. Accordingly, for the reasons stated in American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451 (1980), the Agency's argument in this regard must be rejected. Noting particularly that no other grounds have been raised by the Agency as barring negotiation of the proposal, and none are readily apparent, the Authority concludes that the proposal is within the duty to bargain. /5/ 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 on the proposal. Issued, Washington, D.C., August 12, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In its response to the Agency's statement of position, the Union contends that, at the bargaining table, it modified the proposal to read, "Excepted service including Trust Fund employees will have the same retreat and bumping rights of the competitive service." However, this Decision is limited to the proposal as it was presented in the Union's petition and to which the Agency addressed its statement of position. /2/ The Trust Fund employees to which the proposal refers are excepted service employees hired by the National Archives Trust Fund Board. /3/ OAD P 5410.1, Paragraph 160(b) provides: b. Employees serving in excepted positions under excepted appointments. Employees in the excepted service have rights only to positions in their own competitive level. When reached for reduction in force in their own competitive level, they may not displace employees in any other competitive level. /4/ See Section 7117(a)(2) and (3) of the Statute. /5/ In deciding that the proposal is within the duty to bargain, the Authority makes no judgment as to its merits.