U.S. Federal Labor Relations Authority

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12:0545(104)NG - AFGE Local 2578 and GSA, National Archives and Records Service -- 1983 FLRAdec NG

[ v12 p545 ]
The decision of the Authority follows:

 12 FLRA No. 104
                                            Case No. O-NG-640
    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
          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
    /2/ The Trust Fund employees to which the proposal refers are
 excepted service employees hired by the National Archives Trust Fund
    /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.