National Federation of Federal Employees, Local 1900 and Department of Housing and Urban Development (Authority decision, August 9, 1984)

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

NFFE Local 1900 proposed pausing a HUD reduction in force action while an affected employee appealed a personnel action to the Merit Systems Protection Board. The Authority found that the proposal would delay the agency's action until the Board decided the appeal, but would not prevent HUD from acting altogether. Applying its precedent on delayed personnel actions, it held the stay to be a negotiable procedure and ordered bargaining upon request. The outcome is vacated because the agency's nonnegotiability position was set aside.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Stay proposal within the duty to bargain; bargaining ordered on request.
• Key point: A procedure that delays a reduction in force pending an MSPB decision can be negotiable when it does not eliminate management's ability to act.

Full text (FLRA public release)

[ v15 p465 ]

15:0465(97)NG

The decision of the Authority follows:

15 FLRA No. 97

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1900
Union

and

DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
Agency

Case No. O-NG-665

DECISION AND ORDER ON NEGOTIABILITY ISSUE

This petition for review comes before the Federal Labor Relations Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and raises the question of the negotiability of the following Union proposal: /1/

Stay of Action

In the event an affected employee appeals a questionable or otherwise prohibited personnel practice or action, management agrees to stop RIF action until the employee has exercised the right to appeal to the Merit Systems Protection Board and a decision has been rendered by that Board.

Upon careful consideration of the entire record, including the contentions of the parties, the Authority makes the following determination. The proposal would require management to stay a reduction-in-force (RIF) action pending the outcome of an appeal to the Merit Systems Protection Board (MSPB) of a questionable or otherwise prohibited personnel practice or action. Consequently, the proposal would merely delay management from effectuating a reduction-in-force until the Merit Systems Protection Board issues a decision. In National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 629 (1982), reversed and remanded sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 712 F.2d 669 (D.C. Cir. 1983), decision on remand September 28, 1983, the Authority determined on remand that Proposal 2, which would stay execution of an adverse personnel action pending, inter alia, appeal to the Merit Systems Protection Board, constitutes a negotiable procedure. The Authority made this determination based on the reasoning in the Court's Opinion and the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 152 (1979), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), that a proposal which merely delayed but did not prevent the agency from acting at all to exercise a specified management right is within the duty to bargain. The proposal herein is materially to the same effect as the proposal in the National Treasury Employees Union case.

Accordingly, for the reasons stated in National Treasury Employees Union, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning the Union's proposal. /2/

Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ The Authority hereby grants the Union's request to amend its petition for review to reflect its proposal as amended since it was the amended proposal to which the Agency addressed its statement of position.

/2/ In deciding that the proposal is within the duty to bargain, the Authority makes no judgment as to its merits.