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U.S. Federal Labor Relations Authority

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18:0787(96)NG - NTEU and Treasury, Bureau of Governmental Financial Operations -- 1985 FLRAdec NG

[ v18 p787 ]
The decision of the Authority follows:

 18 FLRA No. 96
                                            Case No. 0-NG-758
    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 provision of a negotiated agreement
 which was disapproved by the Agency head pursuant to section 7114(c) of
 the Statute.  Upon careful consideration of the entire record, including
 the parties' contentions, the Authority makes the following
 determination.  /1/
                              Union Provision
          Vacancies will not be filled from outside the Bureau, absent
       just cause, if employees facing separation are qualified and
       available for such vacancies.
    Contrary to the Agency's claim, the provision herein is to the same
 effect as the Union proposal in American Federation of Government
 Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the
 Census, Washington, D.C., 6 FLRA 314 (1981) which the Authority found to
 be negotiable pursuant to section 7106(b)(3) of the Statute.  The
 proposal in that case provided that employees involuntarily downgraded
 without personal cause would be "(e)xcept for good cause . . .
 repromoted at the first opportunity." In that case, the Authority noted
 that the Union reasonably interpreted the language of its proposal as
 only requiring the Agency to consider but not necessarily to select a
 repromotion eligible employee for a vacant position.  The Authority
 determined that as used in the Union's proposal, "good cause" for
 deciding not to promote a repromotion eligible employee would include
 "management's decision not to fill or to abolish the vacant position or
 to select a better qualified candidate from any appropriate source." /2/
 Thus, based on the Union's reasonable interpretation of its proposal,
 the Authority concluded that the proposal did not conflict with
 management's right to select employees pursuant to section 7106(a) of
 the Statute but, rather, constituted an appropriate arrangement within
 the meaning of section 7106(b)(3) for employees adversely affected by
 management's exercise of its statutory authority.
    In the instant case, the Union specifically states that the provision
 permits the Agency "to fill positions and make selections for
 appointment from properly ranked and certified candidates for promotion
 or any other appropriate source." /3/ Consequently, for reasons stated
 in Bureau of the Census, the instant provision is also within the duty
 to bargain pursuant to section 7106(b)(3) of the Statute.
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall rescind its disapproval
 of the Union provision which was bargained on and agreed to by the
 parties at the local level.  /4/ Issued, Washington, D.C., June 28, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Agency's contention that the Union's petition for review
 should be dismissed for failure to comply with the requirement of
 section 2424.4(a)(2) of the Authority's Rules and Regulations that the
 Union furnish an explicit statement of the meaning of the proposal
 cannot be sustained.  The Authority finds that the Union's statement
 that "this proposal is clear on its face" and "permits the BGFO to fill
 positions, and make selections for appointment from among properly
 ranked and certified candidates for promotion or any other appropriate
 source" is consistent with the clear meaning of the proposal and
 constitutes sufficient compliance with the Authority's Rules and
 Regulations.  See American Federation of Government Employees, AFL-CIO,
 Local 3004 and Department of the Army and Air Force, National Guard
 Bureau, 15 FLRA No. 58 (1984) at n. 1.
    /2/ Bureau of the Census, at 319.
    /3/ Union Petition for Review at 2.
    /4/ In deciding that the subject provision is within the duty to
 bargain, the Authority makes no judgment as to its merits.