15:0465(97)NG - NFFE Local 1900 and HUD -- 1984 FLRAdec NG

 15 FLRA No. 97
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1900
 Union
 
 and
 
 DEPARTMENT OF HOUSING AND
 URBAN DEVELOPMENT
 Agency
 
                                            Case No. O-NG-665
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    This petition for review comes before the Federal Labor Relations
 Authority pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and raises the question
 of the negotiability of the following Union proposal:  /1/
 
                              Stay of Action
 
          In the event an affected employee appeals a questionable or
       otherwise prohibited personnel practice or action, management
       agrees to stop RIF action until the employee has exercised the
       right to appeal to the Merit Systems Protection Board and a
       decision has been rendered by that Board.
 
    Upon careful consideration of the entire record, including the
 contentions of the parties, the Authority makes the following
 determination.  The proposal would require management to stay a
 reduction-in-force (RIF) action pending the outcome of an appeal to the
 Merit Systems Protection Board (MSPB) of a questionable or otherwise
 prohibited personnel practice or action.  Consequently, the proposal
 would merely delay management from effectuating a reduction-in-force
 until the Merit Systems Protection Board issues a decision.  In National
 Treasury Employees Union and Department of the Treasury, U.S. Customs
 Service, 9 FLRA 629 (1982), reversed and remanded sub nom. National
 Treasury Employees Union v. Federal Labor Relations Authority, 712 F.2d
 669 (D.C. Cir. 1983), decision on remand September 28, 1983, the
 Authority determined on remand that Proposal 2, which would stay
 execution of an adverse personnel action pending, inter alia, appeal to
 the Merit Systems Protection Board, constitutes a negotiable procedure.
 The Authority made this determination based on the reasoning in the
 Court's Opinion and the Authority's decision in American Federation of
 Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange
 Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 152 (1979),
 enforced sub nom. Department of Defense v. Federal Labor Relations
 Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
 FLRA, 455 U.S. 945 (1982), that a proposal which merely delayed but did
 not prevent the agency from acting at all to exercise a specified
 management right is within the duty to bargain.  The proposal herein is
 materially to the same effect as the proposal in the National Treasury
 Employees Union case.
 
    Accordingly, for the reasons stated in National Treasury Employees
 Union, IT IS ORDERED that the Agency shall upon request (or as otherwise
 agreed to by the parties) bargain concerning the Union's proposal.  /2/
 
    Issued, Washington, D.C., August 9, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Authority hereby grants the Union's request to amend its
 petition for review to reflect its proposal as amended since it was the
 amended proposal to which the Agency addressed its statement of
 position.
 
 
    /2/ In deciding that the proposal is within the duty to bargain, the
 Authority makes no judgment as to its merits.