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The decision of the Authority follows:
21 FLRA No. 91 NATIONAL TREASURY EMPLOYEES UNION Union and INTERNAL REVENUE SERVICE Agency Case No. 0-NG-1124 DECISION AND 0RDER 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). The issue presented concerns the negotiability of the following provision contained in local agreements disapproved during review of those agreements by the Agency head under Section 7114(c) of the Statute: /1/ Article 13, Section 15 (NORD) Article 13, Section 17 (NCA) Once the deadline for filing a grievance or other complaint has passed an employee who has not filed a grievance or complaint or had one filed in their behalf may only be given priority consideration pursuant to an order issued by a higher level authority. II. Positions of the Parties The Agency contends that the provision would prohibit it from granting priority consideration to employees adversely affected by an improper promotion action. It therefore concludes that the provision conflicts with the merit system principle set forth at 5 U.S.C., Section 2301(b)(1) which provides that selection and advancement should be determined on the basis of "relative ability, knowledge, and skills, after fair and open competition," and the implementing OPM regulation set forth at 5 CFT 335.103. The Agency also argues that the provision would prevent it from applying the necessary corrective remedy for an improper promotion action as required by Federal Personnel Manual (FPM) chapter 335, Appendix A, section A-4(c). The Union states that its intent with respect to the provision is to prevent the Agency from giving priority consideration for promotion to an employee unless that employee filed a grievance or complaint, or priority consideration was ordered by a higher authority such as OPM, EEOC, or FLRA. Union Reply Brief at 4-5. The Union contends that the provision is not inconsistent with either merit system principles or the FPM. The Union also argues that under Authority precedent the Agency should be prohibited from granting remedies to employees who have not filed timely claims. III. Analysis The authority has held, on the basis of the legislative history of the Civil Service Reform Act of 1978, /2/ that a merit system principle such as Section 2301(b)(1) may not be the basis for finding a proposal nonnegotiable unless the proposal is contrary to a law, rule or regulation implementing or directly concerning the principle. See American Federation of Government Employees, AFL-CIO, Local 987 and Headquarters, Warner Robins Air Force Logistics Command, Robins Air Force Base, Georgia, 8 FLRA 667, 676-77 (1982) (Union Proposal IV); Association of Civilian Technicians, Inc., Pennsylvania State Council and Adjutant General, Department of Military Affairs, Pennsylvania, 4 FLRA 77, 80-81 (1080). The implementing regulation cited by the Agency, 5 CFT 335.103, requires an agency to make selections for promotion "according to merit." However, contrary to the Agency's contentions, the provision would not interfere with the Agency's exercise of its discretion to make promotions on the basis of merit. 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), the Authority held that a proposal which would have required the agency to repromote employees who were involuntarily downgraded without personal cause at the first opportunity "except for good cause" was within the duty to bargain. The Authority found that the proposal merely required the agency to consider but not necessarily select the repromotion eligible employee. Thus, the proposal in that case by requiring the agency to give priority consideration to certain employees did not prevent the agency from considering or selecting candidates for promotion from other sources. See also National Treasury Employees Union and Internal Revenue Service, 7 FLRA 275 (1981) (Union Proposals 2-4). Similarly, simply because the provision in dispute here would prohibit the Agency from granting priority consideration to certain employees in the unit of exclusive recognition represented by the Union herein, the provision would not prevent the Agency from considering those employees as candidates for promotion and, consequently, making selections for promotion "according to merit." Additionally, we find that the disputed provision is not in conflict with Federal Personnel Manual (FPM) chapter 335, Appendix A, Section A-4(c). /3/ We therefore need not decide whether that section of the FPM is a Government wide rule or regulation within the meaning of Section 7117 (a)(1) of the Statute which would bar negotiation on a conflicting union proposal. That FPM section provides that an affected employee "may be given priority consideration" and that agencies "may make the final determination" regarding corrective action. (Emphasis added). Thus, under the FPM provision, an agency is given discretion concerning whether to grant priority consideration. To the extent that an agency has discretion with respect to a matter affecting the conditions of employment of employees represented by a union in a bargaining unit, that matter is within the agency's duty to bargain. National Treasury Employees Union, Chapter 6, and Internal Revenue Service, New Orleans District, 3 FLRA 747, 759-60 (1980). Just as an agency has discretion to grant priority consideration, see Department of Commerce, Bureau of the Census, supra, the Authority finds that an agency also has discretion not to grant priority consideration as a remedy for a flawed promotion action. However, contrary to the Union's assertion, nothing in our precedent prohibits an agency from granting a remedy to an employee who has not filed a timely claim. IV. Conclusion For the reasons set forth above, the Authority finds the provision to be within the duty to bargain. /4/ V. Order 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 disputed provision, which was bargained on and agreed to by the parties at the local level. Issued, Washington, D.C., May 12, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier, III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Agency withdrew its objections and the Union withdrew its appeal concerning the negotiability of one additional provision concerning placement of personnel. The Union also withdrew its appeal as to four additional provisions concerning performance evaluations, promotion ranking panels, and sick leave. These provisions will not be considered further here. (2) The Joint Explanatory Statement of the Conference Committee for the Civil Service Reform Act stated: Unless a law, rule, or regulation implementing or directly concerning the principles is violated (as under Section 2302(b)(11), the principles themselves may not be made the basis of a legal action by an employee or an agency. S. Rep. No. 95-1272, 95th Cong., 2d Sess. 128(1978). (3) Federal Personnel Manual chapter 335, Appendix A, section A-4(c) provides: A-4. Corrective Actions c. Action involving nonselected employees. (1) If the action taken to correct the erroneous promotion was to require that the position be vacated, an employee who was not promoted or given proper consideration because of the violation (that is, an employee in the best qualified group but was not) may be considered for promotion to the vacated position before candidates are considered under a new promotion or other placement action. (2) If the corrective action did not include vacating the position, an employee who was not promoted or given proper consideration because of the violation may be given priority consideration under a new promotion or other placement action. Agencies may make the final determination on how they will handle actions involving nonselected employees, except when actions are mandated by law or regulation. (4) In finding the disputed provision to be within the duty to bargain, the Authority makes no judgment as to its merits.