21:0730(91)NG - NTEU and IRS -- 1986 FLRAdec NG

 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.