[ v18 p238 ]
The decision of the Authority follows:
18 FLRA No. 30 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 2830, AFL-CIO Union and DEPARTMENT OF JUSTICE, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION Agency Case No. 0-NG-971 DECISION AND ORDER ON NEGOTIABILITY ISSUE The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises an issue concerning the negotiability of one Union proposal. Upon careful consideration of the entire record, /1/ including the parties' contentions, the Authority makes the following determinations. Union Proposal When an employee who is listed, or is entitled to be listed in the Department of Justice's Priority Placement and Referral System is denied a position in the Department outside the JSIA Agencies and OJJDP, the employee may challenge that denial and take the Department to arbitration through this Agreement's grievance and arbitration articles. As a preliminary matter, the Agency contends that the petition for review in this case is moot, untimely and procedurally defective. These contentions will be considered in turn. With regard to its claim of mootness, the Agency argues that the actual language of the instant proposal was not submitted to the Agency for review until the Union had requested a negotiability determination on such language on February 27, 1984, or subsequent to February 2, 1984, when the parties had initialed off on a reduction-in-force (RIF) article which did not include such a clause or a provision for reopening negotiations. Thus, the Agency concludes, since the parties have agreed to a RIF article without the disputed language, such matter is not subject to further negotiations during the term of the agreement. The Agency's contention cannot be sustained. The record in this case discloses that the subject matter of the disputed proposal was discussed during the parties' negotiations. /2/ Further, it appears that prior to final execution of the agreement, without the disputed language, a memorandum of understanding was entered into in which the Union specifically states that "execution of this agreement is not intended by the Union to waive (the proposal in dispute herein)." /3/ In this regard, the Authority decides only the negotiability issues presented under section 7105(a)(2)(E) of the Statute. To the extent that there are factual issues in dispute between the parties concerning the duty to bargain in the specific circumstances of this case, i.e., whether the Union has waived its right to negotiate the language at issue herein by agreeing to a RIF article which does not contain such language, such issues should be raised in other appropriate proceedings. American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984). As previously noted, the Agency also argues that the Union's petition for review in this case was untimely filed. However, the Agency's written negotiability determination was dated March 6, 1984, and the Union's petition for review was filed with the Authority on March 21, 1984, or within the time limits established by section 2424.3 of the Authority's Rules and Regulations. Thus, the Union's petition for review was timely filed in this case. The Agency also claims that the Union's petition for review is procedurally defective in that it does not contain an explicit statement of meaning attributed to the proposal as required by section 2424.4(a)(2) of the Authority's Rules and Regulations. This contention cannot be sustained. The Union's petition for review in this case clearly sets out the purpose of the proposal in dispute and further, the Agency makes no claim that the proposal is ambiguous or that it was otherwise unable to provide a negotiability determination on the specific language of the proposal. Turning now to the disputed proposal in this case, the Authority notes that the Union holds exclusive recognition only for employees in the Justice System Improvement Act (JSIA) Agencies and in the Office of Juvenile Justice and Delinquency Prevention (OJJDP). Consequently, the instant proposal, by requiring that certain employees be allowed to challenge non-selection for positions outside the JSIA Agencies and OJJDP, would allow application of the parties' grievance procedure to positions outside the bargaining unit. In this regard, the proposal is to the same effect as proposals in American Federation of Government Employees, National Council of Social Security Administration Field Operations Locals, AFL-CIO and Social Security Administration, Office of Field Operations, Baltimore, Maryland, 17 FLRA No. 6 (1985) (Union Proposals 1, 3 and (5), which, taken together, would have allowed application of the parties' grievance procedure to employees outside the bargaining unit. In that case, the Authority found the proposals to be outside the duty to bargain because they applied to employees or positions outside the bargaining unit, that is, the proposals did not concern conditions of employment of bargaining unit employees. Hence, since the instant proposal, on its face, would allow application of the parties' Agreement to positions outside the bargaining unit, it is, based upon Social Security Administration, Office of Field Operations, and the reasons and case cited therein, not within the duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., May 24, 1985 Henry B. Frazier, III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union did not file a Reply Brief in this case. /2/ Agency Statement of Position at 2, 3. /3/ Id. at n. 1.