21:0117(22)NG - AFGE, Local 2677 and HHS, Office of Community Services -- 1986 FLRAdec NG

 21 FLRA No. 22
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 2677
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICES, OFFICE OF COMMUNITY SERVICES
 Agency
 
                                            Case No. 0-NG-920
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of a single Union proposal.
 
    II.  Union Proposal
 
       Employees holding retained grade rights will be selected for any
       vacancy which is to be filled during the period of eligibility for
       retained grade if the vacancy is to be filled at or below the
       retained grade level and the qualification requirements are
       otherwise met.
 
    A. Positions of the Parties
 
    According to the Union, the proposal would apply to employees who are
 affected by reduction-in-force actions involving release from
 competitive levels but who are in a retained-grade status, and would
 require the Agency to select such employees for vacancies which the
 Agency has decided to fill during the period of retained-grade
 eligibility and for which the employees are qualified.  The Union argues
 that tie proposal constitutes an "appropriate arrangement", within the
 meaning of section 7106(b)(3) of the Statute for employees adversely
 affected by the exercise of management's rights.  In support of its
 position the Union cites the decision of the U.S. Court of Appeals for
 the District of Columbia Circuit in American Federation of Government
 Employees, AFL-CIO, Local 2782 v. Federal Labor Relations Authority, 702
 F.2d 1183 (D.C. Cir. 1983), reversing and remanding American Federation
 of Government Employees, AFL-CIO, Local 2782 and Department of Commerce,
 Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981).  The Union
 also contends that the proposal does not in any way conflict with
 Government-wide regulations.
 
    The record does not include any evidence of the position of the
 Agency.  The Agency failed to respond to the Union's request for an
 allegation of nonnegotiability and its statement of position was
 untimely filed.  /1/
 
    B. Analysis
 
    The Authority agrees with the Union, that the proposal in this case
 has the same effect as the proposal at issue in AFGE, Local 2782 and
 Bureau of the Census, 14 FLRA 801 (1984), and is dispositive of the
 issues presented here.  In that case the Authority concluded that the
 proposal constituted a negotiable appropriate arrangement under section
 7106(b)(3) of the Statute.  /2/ However, the Authority also concluded in
 its Decision and Order on Remand in AFGE, Local 2782 that the Proposal
 was nevertheless outside the duty to bargain under section 7117(a)(1) of
 the Statute because it was inconsistent with a Government-wide
 regulation.  Specifically, the proposal conflicted with Requirement 4 of
 subchapter 1-4, chapter 335 of the Federal Personnel Manual (FPM), which
 would permit agencies to fill positions by making selections from any
 appropriate source.  The proposal in this case would require the Agency
 to select only those employees who are affected by reduction-in-force
 actions involving release from competitive levels for vacancies which it
 has decided to fill during the period of retained- grade eligibility.
 By so doing, it would have the same effect as the proposal in AFGE,
 Local 2782 and Bureau of the Census and would prevent the Agency from
 making selections from any appropriate source.  Thus, for the reasons
 stated more fully in our Decision and Order on Remand in AFGE, Local
 2782 and Bureau of the Census, the Proposal in this case also violates
 Requirement 4 of subchapter 1-4, chapter 335 of the FPM, a
 Government-wide regulation, and is outside the duty to bargain.
 
    C. Conclusion
 
    For the reasons set forth above, the Authority finds that the
 proposal in this case conflicts with FPM, chapter 335, subchapter 1-4,
 and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute
 even though the proposal, absent such a conflict, would constitute an
 appropriate arrangement and be negotiated pursuant to section 7106(b)(3)
 of the Statute.
 
    III.  Order
 
    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., March 25, 1986
                                       (s)---
                                       Jerry L. Calhoun, Chairman
                                       (s)---
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ The records indicates that the Agency in this case received a
 copy of the Union's petition for review on October 28, 1983, and that
 the Agency's statement of position was not received by the Authority
 until December 1, 1983.  The record also indicates that the Agency
 requested, pursuant to section 2429.23(b) of the Authority's Rules and
 Regulations, a waiver of the expired time limit.  The Authority denied
 the Agency's request because it failed to demonstrate extraordinary
 circumstances.  Consequently, pursuant to section 2424.6(a) of the
 Authority's Rules and Regulations, the Agency's statement of position
 was untimely filed and was not considered in this case.
 
 
    /2/ Subsequent to the filings in this case the Authority issued
 National Association of Government Employees, Local R14-87 and Kansas
 Army National Guard, 21 FLRA No. 4 (1986), in which we specifically
 adopted the excessive interference test enunciated by the District of
 Columbia Circuit in AFGE, Local 2782, 702 F.2d 1183, as being applicable
 to all cases involving "appropriate arrangements" under section
 7106(b)(3) of the Statute.