NTEU and Treasury Bureau of Governmental Financial Operations (Authority decision, June 28, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on a negotiability petition. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A local agreement directed the bureau to consider qualified employees facing separation before filling vacancies from outside, absent just cause. The Authority read the provision as preserving management's choice of a better qualified candidate or another lawful option. It held the provision negotiable as an appropriate arrangement and ordered the agency to rescind its disapproval.

Decision snapshot

• Authority: Appropriate arrangements under 5 U.S.C. § 7106(b)(3).
• Outcome: Agency head disapproval rescinded.
• Key point: Considering displaced employees did not compel their selection.

Full text (FLRA public release)

[ v18 p787 ]

18:0787(96)NG

The decision of the Authority follows:

18 FLRA No. 96

NATIONAL TREASURY EMPLOYEES UNION
Union

and

DEPARTMENT OF THE TREASURY,
BUREAU OF GOVERNMENTAL FINANCIAL
OPERATIONS
Agency

Case No. 0-NG-758

DECISION AND ORDER ON NEGOTIABILITY ISSUE

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises an issue concerning the negotiability of one provision of a negotiated agreement which was disapproved by the Agency head pursuant to section 7114(c) of the Statute. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. /1/

Union Provision

Vacancies will not be filled from outside the Bureau, absent just cause, if employees facing separation are qualified and available for such vacancies.

Contrary to the Agency's claim, the provision herein is to the same effect as the Union proposal 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) which the Authority found to be negotiable pursuant to section 7106(b)(3) of the Statute. The proposal in that case provided that employees involuntarily downgraded without personal cause would be "(e)xcept for good cause . . . repromoted at the first opportunity." In that case, the Authority noted that the Union reasonably interpreted the language of its proposal as only requiring the Agency to consider but not necessarily to select a repromotion eligible employee for a vacant position. The Authority determined that as used in the Union's proposal, "good cause" for deciding not to promote a repromotion eligible employee would include "management's decision not to fill or to abolish the vacant position or to select a better qualified candidate from any appropriate source." /2/ Thus, based on the Union's reasonable interpretation of its proposal, the Authority concluded that the proposal did not conflict with management's right to select employees pursuant to section 7106(a) of the Statute but, rather, constituted an appropriate arrangement within the meaning of section 7106(b)(3) for employees adversely affected by management's exercise of its statutory authority.

In the instant case, the Union specifically states that the provision permits the Agency "to fill positions and make selections for appointment from properly ranked and certified candidates for promotion or any other appropriate source." /3/ Consequently, for reasons stated in Bureau of the Census, the instant provision is also within the duty to bargain pursuant to section 7106(b)(3) of the Statute.

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 Union provision which was bargained on and agreed to by the parties at the local level. /4/ Issued, Washington, D.C., June 28, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ The Agency's contention that the Union's petition for review should be dismissed for failure to comply with the requirement of section 2424.4(a)(2) of the Authority's Rules and Regulations that the Union furnish an explicit statement of the meaning of the proposal cannot be sustained. The Authority finds that the Union's statement that "this proposal is clear on its face" and "permits the BGFO to fill positions, and make selections for appointment from among properly ranked and certified candidates for promotion or any other appropriate source" is consistent with the clear meaning of the proposal and constitutes sufficient compliance with the Authority's Rules and Regulations. See American Federation of Government Employees, AFL-CIO, Local 3004 and Department of the Army and Air Force, National Guard Bureau, 15 FLRA No. 58 (1984) at n. 1.

/2/ Bureau of the Census, at 319.

/3/ Union Petition for Review at 2.

/4/ In deciding that the subject provision is within the duty to bargain, the Authority makes no judgment as to its merits.