18:0238(30)NG - AFSCME Local 2830 and Justice, Office of Juvenile Justice and Delinquency Prevention -- 1985 FLRAdec NG

 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.