Merit Systems Protection Board Professional Association and U.S. Merit Systems Protection Board (Authority decision, November 23, 1990)

Final FLRA decision. On remand from a court of appeals, the Authority dismisses a negotiability petition concerning reduction-in-force assignment rights. An aggrieved person may seek judicial review of this final order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). A petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The MSPB employees' association proposed giving bargaining unit employees bumping and retreat rights during a reduction in force. The Authority had found the proposal negotiable, but a federal appeals court reversed that decision. On remand, the Authority adopted the court's ruling that granting those rights only to unit employees conflicted with a government-wide rule requiring uniform treatment of excepted service employees. It dismissed the union's negotiability petition.

Decision snapshot

• Authority: Reduction-in-force assignment rights under 5 C.F.R. § 351.705(b)(2).
• Outcome: Negotiability petition dismissed on court remand.
• Key point: The proposal conflicted with the rule requiring uniform application of bumping and retreat rights within a reduction in force.

Full text (FLRA public release)

[ v38 p354 ]
38:0354(37)NG

The decision of the Authority follows:

38 FLRA No. 37

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

MERIT SYSTEMS PROTECTION BOARD
PROFESSIONAL

ASSOCIATION

(Union)

and

U.S. MERIT SYSTEMS PROTECTION BOARD

(Agency)

0-NG-1370

31 FLRA 258 (1988)

DECISION AND ORDER ON NEGOTIABILITY ISSUE ON
REMAND

November 23, 1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. U.S. Merit Systems Protection Board v. FLRA, 913 F.2d 976 (1990). In that decision, the court reversed the Authority's finding that the proposal in dispute in Merit Systems Protection Board Professional Association and Merit Systems Protection Board, 31 FLRA 258 (1988) (MSPB), was negotiable. The court remanded the case to the Authority to enter an appropriate order.

II. Background

In MSPB, the disputed proposal required that a unit employee affected by a reduction-in-force be "afforded second-round assignment rights to unit positions including bumping and retreat rights as provided at 5 C.F.R. Part 351, subpart G." 31 FLRA at 258. The Authority concluded that the proposal was negotiable. As relevant here, the Authority rejected the Agency's assertion that the proposal conflicted with 5 C.F.R. § 351.705(b)(2), which provides that if bump and retreat rights are provided to excepted service employees, the rights "[s]hall be uniformly and consistently applied in any one reduction in force[.]" The Authority concluded that the disputed proposal did not conflict with the regulation because the regulation did not "prohibit the Agency from considering unit status in determining whether and to what extent to grant 'bumping and retreat' rights to excepted service employees." MSPB, 31 FLRA at 261.

On review, the court found "no basis for the Authority's construction
[of the regulation], which would permit the extension of secondary assignment rights exclusively to bargaining unit [employees]." MSPB v. FLRA, 913 F.2d at 980. The court acknowledged that the U.S. Court of Appeals for the Fourth Circuit had affirmed the Authority's finding that a similar proposal was negotiable. Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990). The court found, however, that the Fourth Circuit had failed to provide "any persuasive justifiction" for its interpretation of 5 C.F.R.
§ 351.705(b)(2). MSPB v. FLRA, 913 F.2d at 980. The court concluded that, as the Agency had determined not to extend bump and retreat rights to nonunit excepted service employees, the proposal "calling for the extension of secondary rights exclusively to its members" was nonnegotiable because it conflicted with the Government-wide regulation. Id. The court remanded the case to the Authority "to strike [the] previous order to bargain and enter an order in accordance" with the court's opinion. Id.

III. Analysis and Conclusion

We adopt the court's opinion in MSPB v. FLRA as the law of the case. Consistent with that opinion, the disputed proposal is nonnegotiable because it conflicts with 5 C.F.R. § 351.705(b), a Government-wide regulation.

IV. Order

The petition for review is dismissed.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)