[ v21 p117 ]
The decision of the Authority follows:
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.