National Treasury Employees Union (Union) and U.S. Customs Service, Region IX (Activity) 

 



[ v02 p82 ]
02:0082(8)NG
The decision of the Authority follows:


 2 FLRA No. 8
 
 NATIONAL TREASURY EMPLOYEES UNION
 (Union)
 
 and
 
 U.S. CUSTOMS SERVICE,
 REGION IX
 (Activity)
 
                                            FLRC No. 78A-29
 
                   DECISION ON NEGOTIABILITY ISSUES /1/
 
                                PROVISION I
 
    ARTICLE 16, SECTION 3:
 
    SECTION 3
 
    A.  THE EMPLOYER AGREES THAT WHEN AN EMPLOYEE HAS BEEN REASSIGNED DUE
 TO THE ABOLISHMENT OF
 
    HIS/HER POSITION, HE/SHE WILL BE CONSIDERED FIRST IF THAT POSITION IS
 REESTABLISHED WITHIN ONE
 
    (1) YEAR AND HE/SHE APPLIES FOR THE POSITION WITHIN FIFTEEN (15) DAYS
 AFTER WRITTEN
 
    NOTIFICATION IS GIVEN TO THE EMPLOYEE TO (SIC) ITS REESTABLISHMENT.
 
    B.  IF AN ABOLISHED POSITION IS REESTABLISHED WITHIN ONE (1) YEAR, IT
 IS IN THE INTEREST OF
 
    THE U.S. CUSTOMS SERVICE TO REASSIGN AN EMPLOYEE WHO APPLIES TO
 HIS/HER FORMER POSITION AND
 
    HE/SHE WILL BE REIMBURSED FOR RELOCATION EXPENSES TO THE EXTENT
 AUTHORIZED UNDER FEDERAL
 
    TRAVEL REGULATIONS.
 
    C.  IF THERE ARE TWO (2) OR MORE DISPLACED APPLICANTS FOR ANY
 REESTABLISHED POSITION, THE
 
    APPLICANT WITH THE GREATER AMOUNT OF CUSTOMS SERVICE WILL BE GIVEN
 FIRST CONSIDERATION.
 
                           AGENCY DETERMINATION
 
    THE AGENCY DETERMINED IN CONNECTION WITH THE SECTION 15 REVIEW
 PROCESS /2/ THAT THE PROVISION VIOLATES SECTION 12(B)(2) OF THE ORDER
 AND CONFLICTS WITH PROVISIONS OF THE FEDERAL PERSONNEL MANUAL AND IS
 THEREFORE NONNEGOTIABLE.  /3/
 
                    QUESTIONS HERE BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER ARTICLE 16, SECTION 3 CONFLICTS WITH
 APPLICABLE CIVIL SERVICE DIRECTIVES OR VIOLATES SECTION 12(B)(2) OF THE
 ORDER.  /4/
 
                                  OPINION
 
    CONCLUSION:  ARTICLE 16, SECTION 3 DOES NOT CONTRAVENE APPLICABLE
 CIVIL SERVICE DIRECTIVES AND DOES NOT VIOLATE SECTION 12(B)(2) OF THE
 ORDER.  THEREFORE, THE AGENCY'S DETERMINATION OF NONNEGOTIABILITY WAS
 IMPROPER AND, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND
 REGULATIONS (44 FED.REG. 44740 ET SEQ.(1979), IS SET ASIDE.  /5/
 
    REASON:  THIS CASE WAS PENDING BEFORE THE FEDERAL LABOR RELATIONS
 COUNCIL IN JUNE 1978 AT WHICH TIME THE CIVIL SERVICE COMMISSION (CSC)
 HAD PRIMARY RESPONSIBILITY FOR THE ISSUANCE AND INTERPRETATION OF THE
 DIRECTIVES RELIED UPON THE AGENCY.  THE COUNCIL, IN ACCORDANCE WITH ITS
 ESTABLISHED PRACTICE, REQUESTED THE CSC TO INTERPRET ITS OWN DIRECTIVES
 AS THEY PERTAINED TO THE DISPUTE IN THIS CASE.  ON JANUARY 1, 1979, THE
 COUNCIL'S FUNCTIONS WERE TRANSFERRED TO THE FEDERAL LABOR RELATIONS
 AUTHORITY AND THE CSC'S RESPONSIBILITY FOR THE DIRECTIVES IN QUESTION
 WERE TRANSFERRED TO THE OFFICE OF PERSONNEL MANAGEMENT (OPM).
 SUBSEQUENTLY, THE OPM RESPONDED TO THE AUTHORITY, IN PERTINENT PART, AS
 FOLLOWS:
 
    THIS LETTER IS IN REPLY TO YOUR REQUEST FOR OUR OPINION CONCERNING
 THE NEGOTIABILITY OF A
 
    UNION PROPOSAL RELATING TO THE FILLING OF REESTABLISHED POSITIONS.
 
    THE UNION PROPOSAL WOULD PROVIDE AS FOLLOWS:
 
    ARTICLE 16, SECTION 3:
 
    A.  THE EMPLOYER AGREES THAT WHEN AN EMPLOYEE HAS BEEN REASSIGNED DUE
 TO THE ABOLISHMENT OF
 
    HIS/HER POSITION, HE/SHE WILL BE CONSIDERED FIRST IF THAT POSITION IS
 REESTABLISHED WITHIN ONE
 
    (1) YEAR AND HE/SHE APPLIES FOR THE POSITION WITHIN FIFTEEN (15) DAYS
 AFTER WRITTEN
 
    NOTIFICATION IS GIVEN TO THE EMPLOYEE OF ITS REESTABLISHMENT.
 
    B.  IF AN ABOLISHED POSITION IS REESTABLISHED WITHIN ONE (1) YEAR, IT
 IS IN THE INTEREST OF
 
    THE U.S. CUSTOMS SERVICE TO REASSIGN AN EMPLOYEE WHO APPLIES TO
 HIS/HER FORMER POSITION AND
 
    HE/SHE WILL BE REIMBURSED FOR RELOCATION EXPENSES TO THE EXTENT
 AUTHORIZED UNDER FEDERAL
 
    TRAVEL REGULATIONS.
 
    C.  IF THERE ARE TWO (2) OR MORE DISPLACED APPLICANTS FOR ANY
 REESTABLISHED POSITION, THE
 
    APPLICANT WITH THE GREATER AMOUNT OF CUSTOMS SERVICE WILL BE GIVEN
 FIRST CONSIDERATION.
 
    A REASSIGNMENT IS DEFINED IN ATTACHMENT 1 TO FPM LETTER 335-12,
 REVISED MERIT PROMOTION
 
    POLICY, DATED DECEMBER 28, 1978, "AS THE CHANGE OF AN EMPLOYEE FROM
 ONE POSITION TO ANOTHER
 
    WITHOUT PROMOTION OR DEMOTION." /6/
 
    WHILE SUCH PERSONNEL ACTIONS NEED NOT BE MADE UNDER THE COMPETITIVE
 PROCEDURES OF AN AGENCY
 
    MERIT PROMOTION PLAN (PROVIDED THAT THE NEW POSITION HAS NO HIGHER
 PROMOTION POTENTIAL), THEY
 
    MUST BE MADE WITH REGARD TO APPLICABLE REQUIREMENTS OF THE MERIT
 SYSTEM.
 
    CIVIL SERVICE REGULATIONS AND INSTRUCTIONS REQUIRE NONCOMPETITIVE
 CONSIDERATION FOR CERTAIN
 
    CATEGORIES OF EMPLOYEES PRIOR TO ATTEMPTS TO FILL VACANCIES BY ANY
 OTHER MEANS, INCLUDING
 
    MERIT PROMOTION.  FOR INSTANCE, SECTION 713.271 OF TITLE 5, CFR,
 REQUIRES THAT PRIORITY
 
    CONSIDERATION GRANTED AS REMEDIAL ACTION IN A DISCRIMINATION
 COMPLAINT TAKES "PRECEDENCE OVER
 
    PRIORITIES UNDER OTHER REGULATIONS IN THIS CHAPTER."
 
    A LITERAL READING OF PART A OF THE UNION PROPOSAL WOULD REQUIRE THAT
 WHENEVER AN AGENCY
 
    DECIDES TO FILL A REESTABLISHED POSITION THAT HAS BEEN ABOLISHED
 WITHIN THE PAST YEAR, THE
 
    AGENCY MUST GIVE FIRST CONSIDERATION TO THE EMPLOYEE WHO HAD OCCUPIED
 THE POSITION PRIOR TO
 
    ITS ABOLISHMENT IF THAT EMPLOYEE APPLIES WITHIN 15 DAYS AFTER
 NOTIFICATION THAT THE POSITION
 
    HAS BEEN REESTABLISHED.  BECAUSE THAT PART OF THE PROPOSAL WOULD
 REQUIRE CONSIDERATION OF SUCH
 
    EMPLOYEES PRIOR TO OTHER EMPLOYEES WHO HAVE A STATUTORY, REGULATORY,
 OR FPM GRANTED RIGHT TO
 
    BE PLACED IN A CONSIDERED FOR THE POSITION, IT CONFLICTS WITH
 MANDATORY CIVIL SERVICE
 
    INSTRUCTIONS.
 
    HOWEVER, THERE WOULD BE NO BAR TO CONSIDERING AN EMPLOYEE WHOSE
 POSITION WAS ABOLISHED AND
 
    LATER ESTABLISHED AFTER ALL OTHER CANDIDATES ENTITLED TO PRIORITY OR
 SPECIAL CONSIDERATION BY
 
    STATUTE OR CIVIL SERVICE REGULATIONS OR INSTRUCTIONS HAD BEEN
 CONSIDERED.
 
    ANY CONSIDERATION GRANTED UNDER THE PROPOSAL COULD NOT EXTEND TO
 REQUIRING SELECTION OF ANY
 
    CANDIDATE FOR PROMOTION.  WHILE MANAGEMENT IS REQUIRED BY CIVIL
 SERVICE REGULATIONS OR
 
    INSTRUCTIONS TO GIVE NONCOMPETITIVE CONSIDERATION TO CERTAIN
 CANDIDATES, AND COULD PROPERLY BE
 
    REQUIRED BY PART A OF THE UNION PROPOSAL TO CONSIDER PREVIOUS
 OCCUPANTS OF REESTABLISHED
 
    POSITIONS PRIOR TO USE OF COMPETITIVE PROCEDURES, IT COULD NOT BE
 CONSTRAINED TO SELECT ANY
 
    PARTICULAR CANDIDATE OR EVEN TO SELECT FROM A GROUP OF PRIORITY OR
 SPECIAL CONSIDERATION
 
    CANDIDATES.  /7/
 
    THE MEANING OF PART B OF THE UNION PROPOSAL IS NOT CLEAR.  IF IT IS
 INTENDED THAT WHENEVER
 
    AN EMPLOYEE APPLIES FOR A REESTABLISHED POSITION THAT HE OR SHE
 FORMERLY OCCUPIED, MANAGEMENT
 
    WILL SELECT THAT EMPLOYEE BECAUSE IT WOULD BE IN MANAGEMENT'S BEST
 INTEREST TO DO SO, THAT
 
    PART OF THE PROPOSAL WOULD EFFECTIVELY NEGATE MANAGEMENT'S ABILITY TO
 MAKE A SELECTION
 
    DECISION.  IN THAT REGARD, RULE 7.1 OF THE CIVIL SERVICE RULES
 REQUIRES MANAGEMENT TO FILL
 
    POSITIONS IN THE COMPETITIVE SERVICE SOLELY ON THE BASIS OF MERIT AND
 FITNESS AND GRANTS
 
    MANAGEMENT THE RIGHT TO MAKE SELECTIONS FROM ANY APPROPRIATE SOURCE.
 
    HOWEVER, IF PART B OF THE PROPOSAL IS NO INTERPRETED AS EITHER
 LIMITING CONSIDERATION TO
 
    THE FORMER INCUMBENTS OF REESTABLISHED POSITIONS OR RESTRICTING
 MANAGEMENT FROM EXERCISING ITS
 
    RIGHT TO SELECT FROM ANY APPROPRIATE SOURCE, IT WOULD NOT CONFLICT
 WITH CIVIL SERVICE
 
    REGULATIONS AND INSTRUCTIONS.  SINCE THE GENERAL SERVICES
 ADMINISTRATION HAS RESPONSIBILITY
 
    FOR INTERPRETATION OF THE FEDERAL TRAVEL REGULATIONS, GSA WOULD BE
 THE APPROPRIATE AGENCY TO
 
    DETERMINE THE CONSISTENCY OF THAT PART OF PART B OF THE PROPOSAL
 CONCERNING THE PAYMENT OF
 
    RELOCATION EXPENSES WITH ITS REGULATIONS.
 
    PART C OF THE PROPOSAL WOULD NOT CONFLICT WITH CIVIL SERVICE
 REGULATIONS OR INSTRUCTIONS AS
 
    LONG AS ITS COVERAGE IS LIMITED TO THOSE INDIVIDUALS RECEIVING
 CONSIDERATION UNDER PART A SEE
 
    OUR DISCUSSION ABOVE ON THAT PART OF THE PROPOSAL) AND WOULD NOT
 SUPERSEDE OR LIMIT THE
 
    CONSIDERATION OF OTHERS ENTITLED TO PRIORITY OR SPECIAL CONSIDERATION
 BY CIVIL SERVICE LAW,
 
    REGULATIONS OR INSTRUCTIONS.
 
    IN SUMMARY, AS LONG AS PARTS A AND C OF THE PROPOSAL PROVIDE FOR ONLY
 CONSIDERATION OF
 
    COVERED EMPLOYEES AFTER ALL OTHER EMPLOYEES OTHERWISE ENTITLED TO
 PRIORITY OR SPECIAL
 
    CONSIDERATION, CIVIL SERVICE LAWS AND REGULATIONS WOULD NOT BAR
 NEGOTIATION OF THOSE PORTIONS
 
    OF THE PROPOSAL.  HOWEVER, IF PART B WOULD LIMIT THE MANAGEMENT
 DISCRETION GRANTED BY RULE
 
    7.1, THAT PORTION OF THE PROPOSAL WOULD CONFLICT WITH CIVIL SERVICE
 RULES AND REGULATIONS.
 
    BASED ON THE FOREGOING INTERPRETATION BY THE OPM OF ITS OWN
 DIRECTIVES, ARTICLE 16, SECTION 3 DOES NOT CONFLICT WITH THE DIRECTIVES
 OF THE OPM /8/ SINCE THE RECORD IN THE CASE SUPPORTS THE CONCLUSIONS
 THAT:  FIRST, ARTICLE 16, SECTION 3A. AND C. DOES NOT SUPERSEDE OR LIMIT
 THE CONSIDERATION OF OTHERS ENTITLED TO PRIORITY OR SPECIAL
 CONSIDERATION UNDER CIVIL SERVICE LAWS OR REGULATIONS;  BUT INSTEAD
 PROVIDES FOR THE CONSIDERATION OF COVERED EMPLOYEES AFTER ALL OTHER
 EMPLOYEES OTHERWISE ENTITLED TO PRIORITY OR SPECIAL CONSIDERATION HAVE
 RECEIVED SUCH CONSIDERATION;  /9/ AND, SECOND, SECTION 3B. OF ARTICLE 16
 NEITHER LIMITS CONSIDERATION TO FORMER INCUMBENTS OR REESTABLISHED
 POSITIONS NOR RESTRICTS MANAGEMENT FROM EXERCISING ITS RIGHT TO SELECT
 FROM ANY APPROPRIATE SOURCE (AND THE AUTHORITY SO INTERPRETS ARTICLE 16,
 SECTION 3 FOR THE PURPOSES OF THIS DECISION).
 
    ACCORDINGLY, THE AGENCY DETERMINATION THAT ARTICLE 16, SECTION 3 IS
 NONNEGOTIABLE BECAUSE IT VIOLATES REGULATIONS OF APPROPRIATE AUTHORITY
 OUTSIDE THE AGENCY WAS IN ERROR AND IS SET ASIDE.
 
    THE AGENCY FURTHER CONTENDS THAT ARTICLE 16, SECTION 3A. AND C.,
 INSOFAR AS IT PROVIDES THAT CERTAIN EMPLOYEES WILL BE CONSIDERED FIRST
 FOR REESTABLISHED POSITIONS WITHIN THE AGENCY, CONSTITUTES AN
 IMPERMISSIBLE HIRING PREFERENCE, WHICH INTERFERES WITH MANAGEMENT'S
 RIGHT UNDER SECTION 12(B)(2) OF THE ORDER TO SELECT EMPLOYEES FOR
 POSITIONS IN THE AGENCY, AND IS, THEREFORE, NONNEGOTIABLE.  THE
 CONTENTION IS WITHOUT MERIT.
 
    BY ITS PLAIN LANGUAGE, ARTICLE 16, SECTION 3A. AND C. REQUIRES ONLY
 THAT THE AGENCY WILL GIVE CONSIDERATION TO CERTAIN EMPLOYEES FOR
 REESTABLISHED POSITIONS BEFORE THE AGENCY ACTUALLY SELECTS PARTICULAR
 EMPLOYEES FOR THOSE POSITIONS.  NOTHING IN THE LANGUAGE OF THE DISPUTED
 PROVISION REQUIRES AGENCY MANAGEMENT TO SELECT THE EMPLOYEES WHO ARE TO
 RECEIVE SUCH CONSIDERATION UNDER THE TERMS OF THE PROVISION.
 
    BY PROVIDING FOR "CONSIDERATION" RATHER THAN "SELECTION," ARTICLE 16,
 SECTION 3 IS CLEARLY DISTINGUISHABLE FROM THE PROPOSALS AT ISSUE IN THE
 COUNCIL'S DECISION IN NATIONAL MARITIME UNION AND NOAA.  /10/ IN THAT
 CASE THE COUNCIL FOUND THAT THE UNION PROPOSALS CALLING FOR THE AGENCY
 TO ACCORD HIRING PREFERENCE TO CERTAIN REQUIREMENT ON THE AGENCY TO HIRE
 CERTAIN INDIVIDUALS AHEAD OF OTHERS, THEREBY INTERFERING WITH
 MANAGEMENT'S RIGHT TO HIRE EMPLOYEES UNDER SECTION 12(B)(2) OF THE
 ORDER.  UNLIKE THOSE PROPOSALS, HOWEVER, IN THE PRESENT CASE ARTICLE 16,
 SECTION 3, AS NOTED ABOVE, PROVIDES ONLY THAT CERTAIN EMPLOYEES MUST BE
 CONSIDERED FIRST WHEN THE AGENCY IS FILLING CERTAIN REESTABLISHED
 POSITIONS AND DOES NOT REQUIRE THE AGENCY TO SELECT THOSE INDIVIDUALS.
 /11/ CONSEQUENTLY, ARTICLE 16, SECTION 3 DOES NOT DEPRIVE THE SELECTING
 OFFICIAL OF THE RESERVED DISCRETION INHERENT IN DECIDING AND ACTING IN
 THE SELECTION OF INDIVIDUALS FOR POSITIONS IN THE AGENCY.  HENCE, IT IS
 DISTINGUISHED IN THIS MATERIAL RESPECT FROM THE PROPOSALS HELD
 NONNEGOTIABLE IN NATIONAL MARITIME UNION AND NOAA.  ACCORDINGLY, THE
 PROVISION DOES NOT VIOLATE SECTION 12(B)(2) OF THE ORDER AND THE
 AGENCY'S CONTRARY DETERMINATION IS SET ASIDE.
 
                               PROVISION II
 
    ARTICLE 17, SECTION 2:
 
    SECTION 2
 
    A.  THE EMPLOYER AGREES THAT AN EMPLOYEE WHO IS DETAILED TO A
 BARGAINING UNIT POSITION OF A
 
    HIGHER GRADE FOR OVER THIRTY (30) CONSECUTIVE CALENDAR DAYS AND WHO
 MEETS THE APPROPRIATE
 
    QUALIFICATIONS AND TIME-IN-GRADE REQUIREMENTS AS SET FORTH BY STATUTE
 OR CIVIL SERVICE
 
    REGULATIONS WILL BE TEMPORARILY PROMOTED AND RECEIVE THE RATE OF PAY
 FOR THAT POSITION.  THE
 
    EMPLOYER AGREES TO REFRAIN FROM ROTATING DETAILS OF EMPLOYEES SOLELY
 TO AVOID COMPENSATION AT
 
    THE HIGHER LEVEL.
 
    B.  NOTHING IN THIS ARTICLE SHALL BE INTERPRETED AS AUTHORIZING A
 RETROACTIVE PROMOTION.
 
                           AGENCY DETERMINATION
 
    THE AGENCY DETERMINED THAT THE PROVISION VIOLATES SECTION 12(B)(2) OF
 THE ORDER AND THE TEMPORARY PROMOTION REQUIREMENTS OF THE FEDERAL
 PERSONNEL MANUAL.  /12/ ACCORDINGLY, THE AGENCY DETERMINED THE PROVISION
 IS NONNEGOTIABLE.
 
                    QUESTIONS HERE BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER ARTICLE 17, SECTION 2A. OF THE AGREEMENT
 VIOLATES SECTION 12(B)(2) OF THE ORDER /13/ OR CONFLICTS WITH THE
 TEMPORARY PROMOTION REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL.
 
                                 OPINION.
 
    CONCLUSION:  ARTICLE 17, SECTION 2A. DOES NOT VIOLATE SECTION
 12(B)(2) OF THE ORDER AND DOES NOT CONFLICT WITH THE TEMPORARY PROMOTION
 REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL.  THEREFORE, THE AGENCY'S
 DETERMINATION OF NONNEGOTIABILITY WAS IMPROPER AND, PURSUANT TO SECTION
 2424.8 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED.REG. 44740 ET
 SEQ.(1979)), IS SET ASIDE.  /14/
 
    REASONS:  THE AGENCY ARGUES THAT THE TEMPORARY PROMOTION PROVISION OF
 ARTICLE 17, SECTION 2A. INTERFERES WITH MANAGEMENT'S RIGHT TO PROMOTE
 EMPLOYEES AND THEREFORE VIOLATES SECTION 12(B)(2) OF THE ORDER, AND
 CONFLICTS WITH THE TEMPORARY PROMOTION REQUIREMENTS OF THE FEDERAL
 PERSONNEL MANUAL BY NOT SPECIFICALLY ADVERTING TO THAT DIRECTIVE'S
 120-DAY LIMITATION FOR DURATION OF TEMPORARY PROMOTIONS.  /15/ THESE
 CONTENTIONS ARE WITHOUT MERIT.
 
    ARTICLE 17, SECTION 2A. OF THE AGREEMENT, PROVIDING FOR THE TEMPORARY
 PROMOTION OF A BARGAINING UNIT EMPLOYEE DETAILED TO A HIGHER-GRADE
 POSITION FOR OVER 30 DAYS, BEARS NO MATERIAL DIFFERENCE FROM THE
 AGREEMENT PROVISION FOUND NEGOTIABLE BY THE COUNCIL IN THE NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES, LOCAL 122 AND VETERANS ADMINISTRATION,
 ATLANTA REGIONAL OFFICE, ATLANTA, GEORGIA CASE.  /16/ IN THAT CASE THE
 AGENCY TOOK THE POSITION THAT THE PROVISION INTERFERED WITH MANAGEMENT'S
 RIGHT TO PROMOTE EMPLOYEES UNDER SECTION 12(B)(2) OF THE ORDER AND, BY
 NOT SPECIFICALLY ADVERTING TO APPLICABLE TIME-IN-GRADE REQUIREMENTS FOR
 TEMPORARY PROMOTIONS ESTABLISHED BY THE FEDERAL PERSONNEL MANUAL, WAS IN
 CONFLICT WITH SUCH REQUIREMENTS.  AS TO THE ALLEGED CONFLICT WITH
 SECTION 12(B)(2) OF THE ORDER, THE COUNCIL STATED (AT 10 OF COUNCIL
 DECISION) AS FOLLOWS:
 
    THE "TEMPORARY PROMOTION" CALLED FOR BY THE DISPUTED PROVISION IS
 SIMPLY A MINISTERIAL ACT
 
    WHICH IMPLEMENTS THE DECISION AND ACTION TAKEN BY THE AGENCY ITSELF
 IN SELECTING AND ASSIGNING
 
    THE PARTICULAR EMPLOYEE TO THE HIGHER-GRADE POSITION.  NOTHING IN THE
 PROVISION INTERFERES IN
 
    ANY MANNER WITH THE RIGHT OF THE AGENCY TO
 
    MAKE SUCH DECISION OR ACCOMPLISH SUCH ACTION, AND THUS NOTHING IN THE
 PROVISION IMPAIRS THE
 
    AGENCY'S RIGHT TO DETERMINE WHETHER AND WHOM TEMPORARILY TO PROMOTE.
 ACCORDINGLY, WE FIND
 
    THAT THE DISPUTED PROVISION IS NOT VIOLATIVE OF SECTION 12(B)(2) OF
 THE ORDER.
 
    AS TO THE ALLEGED VIOLATION OF THE FEDERAL PERSONNEL MANUAL, THE
 COUNCIL FOUND THAT ARGUMENT ALSO WITHOUT MERIT STATING (AT 10-11 OF
 COUNCIL DECISION):
 
    ALTHOUGH THE PROVISION ITSELF DOES NOT SPECIFICALLY ADVERT TO
 TIME-IN-GRADE REQUIREMENTS,
 
    NOTHING IN THE PROVISION, NOR IN THE UNION'S STATED INTENT, PRECLUDES
 THE AGENCY FROM
 
    ENFORCING SUCH REQUIREMENTS IN THE IMPLEMENTATION OF THE PROVISION.
 FURTHER, AS THE COUNCIL
 
    HAS PREVIOUSLY INDICATED, UNDER SECTION 12(A) OF THE ORDER, THE
 PROVISIONS OF WHICH MUST BE
 
    INCLUDED IN EVERY AGREEMENT, THE ADMINISTRATION OF ANY AGREEMENT
 ENTERED INTO BY THE PARTIES
 
    WOULD BE SUBJECT TO EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
 APPROPRIATE AUTHORITIES,
 
    INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL.
 THEREFORE, SINCE THE AGREEMENT
 
    PROVISION DOES NOT CONFLICT WITH THE LEGAL TIME-IN-GRADE
 REQUIREMENTS, THE AGENCY'S CONTENTION
 
    FAILS TO STATE A GROUND FOR FINDING THE PROVISION NONNEGOTIABLE.
 
    IT IS CLEAR THAT THE COUNCIL'S DECISION IN VETERANS ADMINISTRATION,
 ATLANTA REGIONAL OFFICE IS DISPOSITIVE OF THE ISSUE OF NEGOTIABILITY
 WITH RESPECT TO THE DISPUTED PROVISION IN THE PRESENT CASE, BOTH AS TO
 THE ALLEGED CONFLICT WITH SECTION 12(B)(2) OF THE ORDER AND WITH THE
 TEMPORARY PROMOTION REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL.
 ACCORDINGLY, FOR THE REASONS STATED IN THAT CASE, ARTICLE 17, SECTION
 2A. DOES NOT CONFLICT WITH EITHER SECTION 12(B)(2) OF THE ORDER OR WITH
 REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL AND IS, THEREFORE,
 NEGOTIABLE.  /17/
 
                               PROVISION III
 
    ARTICLE 22, SECTION 10:
 
    SECTION 10
 
    ALL EMPLOYEES IN IDENTIFIED CAREER LADDER POSITIONS WORKING BELOW THE
 FULL (JOURNEYMAN)
 
    LEVEL WILL BE CERTIFIED AND PROMOTED ON THE FIRST DAY OF THE FIRST
 PAY PERIOD AFTER A PERIOD
 
    OF ONE (1) CALENDAR YEAR OR WHATEVER LESSER PERIOD MAY BE APPLICABLE
 PROVIDED THAT THE
 
    EMPLOYEE HAS DEMONSTRATED THE ABILITY TO PERFORM AT THE NEXT HIGHER
 GRADE LEVEL AND THERE IS
 
    SUFFICIENT HIGHER LEVEL WORK TO BE PERFORMED.
 
                           AGENCY DETERMINATION
 
    THE AGENCY DETERMINATION THAT THE PROVISION VIOLATES SECTION 12(B)(2)
 OF THE ORDER AND IS THEREFORE NONNEGOTIABLE.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROVISION VIOLATES SECTION 12(B)(2) OF
 THE ORDER.  /18/
 
                                  OPINION
 
    CONCLUSION:  THE PROVISION DOES NOT VIOLATE SECTION 12(B)(2) OF THE
 ORDER.  THEREFORE, THE AGENCY'S DETERMINATION OF NONNEGOTIABILITY WAS
 IMPROPER AND, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND
 REGULATIONS (44 FED.REG. 44740 ET SEQ.(1979)), IS SET ASIDE.  /19/
 
    REASONS:  THE AGENCY PRINCIPALLY CONTENDS THAT ARTICLE 22, SECTION 10
 INTERFERES WITH MANAGEMENT'S RIGHT TO PROMOTE OR NOT PROMOTE EMPLOYEES
 UNDER SECTION 12(B)(2) OF THE ORDER.  ON THE OTHER HAND, THE UNION
 ESSENTIALLY ARGUES THAT, WITH RESPECT TO CAREER-LADDER PROMOTIONS
 COVERED BY ARTICLE 22, SECTION 10, THE RIGHT RESERVED TO MANAGEMENT
 UNDER SECTION 12(B)(2) IS TO SELECT OR NOT SELECT AN EMPLOYEE FOR A
 CAREER-LADDER POSITION.  THE UNION'S POSITION HAS MERIT.
 
    THE RECORD DOES NOT INDICATE THAT THE TERMINOLOGY "CAREER-LADDER
 PROMOTION" AS USED BY THE PARTIES IN THE DISPUTED PROVISION IS INTENDED
 TO BE GIVEN A MEANING OTHER THAN ITS USUAL MEANING WHEN USED IN
 CONNECTION WITH FEDERAL PERSONNEL MATTERS.  IN THIS REGARD, THE FEDERAL
 PERSONNEL MANUAL PROVIDES IN RELEVANT PART AS FOLLOWS:  /20/
 
    A PROMOTION WITHOUT CURRENT COMPETITION WHEN AT AN EARLIER STAGE AN
 EMPLOYEE WAS SELECTED
 
    FROM A CIVIL SERVICE REGISTER OR UNDER COMPETITIVE PROMOTION
 PROCEDURES FOR AN ASSIGNMENT
 
    INTENDED TO PREPARE THE EMPLOYEE FOR THE POSITION BEING FILLED (THE
 INTENT MUST BE MADE A
 
    MATTER OF RECORD AND CAREER LADDERS MUST BE DOCUMENTED IN THE
 PROMOTION PLAN) . . . .
 
    THUS, IN ESSENCE, THE FEDERAL PERSONNEL MANUAL DEFINES A
 "CAREER-LADDER PROMOTION" AS THE NONCOMPETITIVE PROMOTION OF AN EMPLOYEE
 STAGE FOR CAREER LADDER POSITIONS, WITH THE RECORDED INTENTION OF
 PREPARING THE EMPLOYEES FOR SUCCESSIVE PROMOTIONS.  IT IS CLEAR THAT
 AGENCIES MAY PROMOTE INDIVIDUAL MEMBERS OF THE GROUP WHO, AS REQUIRED BY
 THE PROPOSAL, HAVE DEMONSTRATED ABILITY TO PERFORM AT THE NEXT HIGHER
 LEVEL, PROVIDED THAT THERE IS ENOUGH WORK AT THE FULL PERFORMANCE LEVEL
 FOR ALL THE EMPLOYEES IN THE GROUP.  A CAREER-LADDER PROMOTION, THEN, IS
 THE DIRECT CONSEQUENCE OF THE AGENCY'S DECIDING TO SELECT THE EMPLOYEE
 AND PLACING THE EMPLOYEE IN A CAREER-LADDER POSITION IN THE AGENCY.  IT
 FOLLOWS THAT THE AGENCY'S SELECTING AN EMPLOYEE FOR AND PLACING THAT
 EMPLOYEE IN A CAREER-LADDER POSITION ALSO CONSTITUTES THE AGENCY'S
 DECISION TO PROMOTE THAT EMPLOYEE NONCOMPETITIVELY AT APPROPRIATE STAGES
 IN THE EMPLOYEE'S CAREER UP TO THE FULL PERFORMANCE LEVEL OF THE
 POSITION ONCE THE REQUISITE CONDITIONS HAVE BEEN MET.  IN THIS REGARD,
 THE DISPUTED ARTICLE 22, SECTION 10 MERELY CALLS FOR THE AGENCY TO
 CERTIFY AND PROMOTE UNIT EMPLOYEES WHO ARE IN CAREER-LADDER POSITIONS
 WITHIN A SPECIFIED TIME PERIOD AFTER THOSE EMPLOYEES MEET CERTAIN
 CONDITIONS.
 
    IN VIEW OF THE FOREGOING, IT IS CLEAR THAT IN THE CONTEXT OF SECTION
 12(B)(2) OF THE ORDER, A CAREER-LADDER PROMOTION AS REFERENCED IN
 ARTICLE 22, SECTION 10 WOULD BE SIMPLY A MINISTERIAL ACT IMPLEMENTING
 THE AGENCY'S EARLIER DECISION MADE PURSUANT TO ITS RESERVED DISCRETION
 UNDER SECTION 12(B)(2), TO SELECT AND PLACE THE EMPLOYEE INVOLVED IN A
 CAREER-LADDER POSITION IN THE AGENCY, WITH THE INTENTION OF PREPARING
 THE EMPLOYEE FOR SUCCESSIVE NONCOMPETITIVE PROMOTIONS WHERE ANY
 CONDITIONS PRESCRIBED BY THE FPM ARE OTHERWISE MET.  AS SUCH, THE
 DISPUTED PROVISION DOES NOT INTERFERE IN ANY WAY WITH THE AGENCY'S RIGHT
 UNDER SECTION 12(B)(2) TO PROMOTE OR TO NOT PROMOTE EMPLOYEES.  /21/
 ACCORDINGLY, CONSISTENT WITH COUNCIL PRECEDENT, ARTICLE 22, SECTION 10
 OF THE PARTIES' AGREEMENT DOES NOT VIOLATE SECTION 12(B)(2) OF THE
 ORDER.
 
                               PROVISION IV
 
    ARTICLE 35, SECTION 3:
 
    SECTION 3
 
    THE EMPLOYER AGREES THAT WHERE, THROUGH ADMINISTRATIVE ERROR OR
 OVERSIGHT, AN EMPLOYEE
 
    RECEIVES A MONETARY PAYMENT ABOVE THAT TO WHICH HE OR SHE WOULD
 OTHERWISE BE ENTITLED, SAID
 
    OVERPAYMENT SHALL BE WAIVED UPON A SHOWING THAT:
 
    1.  THE AMOUNT INVOLVED IS NOT MORE THAN FIVE HUNDRED DOLLARS
 ($500.00) OR THE EQUIVALENT;
 
    2.  THE EMPLOYEE WAS NOT RESPONSIBLE FOR THE ERROR;  AND
 
    3.  COLLECTION ACTION UNDER THE CLAIM WOULD BE AGAINST EQUITY AND
 GOOD CONSCIENCE AND NOT
 
    IN THE BEST INTERESTS OF THE U.S. GOVERNMENT, THAT IS, NOTICE OF THE
 MISTAKEN OVERPAYMENT WAS
 
    NOT BROUGHT TO THE EMPLOYEE'S ATTENTION BY THE EMPLOYER WITHIN FIVE
 (5) CALENDAR DAYS OF THE
 
    PAYMENT.
 
                           AGENCY DETERMINATION
 
    THE AGENCY DETERMINED THAT THE PROVISION VIOLATES THE REGULATIONS OF
 THE COMPTROLLER GENERAL AND IS THEREFORE NONNEGOTIABLE.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROVISION CONFLICTS WITH THE REQUIREMENTS
 OF THE COMPTROLLER GENERAL GOVERNING WAIVERS OF OVERPAYMENTS OF $500 OR
 LESS MADE TO EMPLOYEES THROUGH ADMINISTRATIVE OVERSIGHT.  /22/
 
                                  OPINION
 
    CONCLUSION:  THE PROVISION CONFLICTS WITH THE REGULATIONS OF THE
 COMPTROLLER GENERAL GOVERNING WAIVERS OF OVERPAYMENTS OF $500 OR LESS
 MADE TO EMPLOYEES THROUGH ADMINISTRATIVE OVERSIGHT.  THEREFORE, THE
 AGENCY'S DETERMINATION OF NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO
 SECTION 2424.8 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED.REG.
 44740 ET SEQ.(1979)), IS SUSTAINED.
 
    REASONS:  BECAUSE THE CASE CONCERNS ISSUES WITHIN THE JURISDICTION OF
 THE GENERAL ACCOUNTING OFFICE, THE AUTHORITY REQUESTED A DECISION FROM
 THE COMPTROLLER GENERAL AS TO WHETHER THE PROPOSAL VIOLATES APPLICABLE
 LAW AND REGULATION.
 
    THE COMPTROLLER GENERAL'S DECISION IN THE MATTER, B-194626, AUGUST 9,
 1979, IS SET FORTH, IN PERTINENT PART, BELOW:
 
    THIS DECISION IS IN RESPONSE TO THE REQUEST FROM THE FEDERAL LABOR
 RELATIONS AUTHORITY,
 
    FLRC NO. 78A-29, CONCERNING THE LEGALITY OF A PROVISION IN A LOCALLY
 NEGOTIATED COLLECTIVE
 
    BARGAINING AGREEMENT ON WAIVER OF ERRONEOUS PAYMENTS OF PAY AND
 ALLOWANCES.  THE QUESTION
 
    PRESENTED FOR OUR DECISION IS WHETHER THE PROVISION IN THE NEGOTIATED
 AGREEMENT CONFLICTS WITH
 
    THE STANDARDS FOR WAIVER OF CLAIMS ISSUED BY OUR OFFICE AND CONTAINED
 IN 4 C.F.R. PART 91 ET
 
    SEQ.
 
    THE FEDERAL LABOR RELATIONS AUTHORITY IS CONSIDERING THE
 NEGOTIABILITY OF SEVERAL
 
    PROVISIONS OF A COLLECTIVE BARGAINING AGREEMENT ENTERED INTO BY THE
 U.S. CUSTOMS SERVICE,
 
    REGION IX, AND THE NATIONAL TREASURY EMPLOYEES UNION.  THE PROVISION
 OF THE AGREEMENT WHICH IS
 
    THE SUBJECT OF OUR DECISION PROVIDES, IN ARTICLE 35, SECTION 3, AS
 FOLLOWS:
 
    "THE EMPLOYER AGREES THAT WHERE, THROUGH ADMINISTRATIVE ERROR OR
 OVERSIGHT, AN EMPLOYEE
 
    RECEIVES A MONETARY PAYMENT ABOVE THAT TO WHICH HE OR SHE WOULD
 OTHERWISE BE ENTITLED, SAID
 
    OVERPAYMENT SHALL BE WAIVED UPON A SHOWING THAT:
 
    "1.  THE AMOUNT INVOLVED IS NOT MORE THAN FIVE HUNDRED DOLLARS
 ($500.00) OR THE EQUIVALENT;
 
    "2.  THE EMPLOYEE WAS NOT RESPONSIBLE FOR THE ERROR;  AND
 
    "3.  COLLECTION ACTION UNDER THE CLAIM WOULD BE AGAINST EQUITY AND
 GOOD CONSCIENCE AND NOT
 
    IN THE BEST INTERESTS OF THE U.S. GOVERNMENT, THAT IS, NOTICE OF THE
 MISTAKEN OVERPAYMENT WAS
 
    NOT BROUGHT TO THE EMPLOYEE'S ATTENTION BY THE EMPLOYER WITHIN FIVE
 (5) CALENDAR DAYS OF THE
 
    PAYMENT."
 
    THE CUSTOMS SERVICE ARGUES THAT THIS PROVISION IS INCONSISTENT WITH
 THE STANDARDS FOR
 
    WAIVER ISSUED BY OUR OFFICE, PARTICULARLY 4 C.F.R. SEC. 91.5(C),
 SINCE THE NEGOTIATED
 
    AGREEMENT WOULD PERMIT AN EMPLOYEE WHO HAS NOT MADE REASONABLE
 INRUIRIES AS TO THE CORRECTNESS
 
    OF A PAYMENT TO RETAIN THE OVERPAYMENT.  THE UNION CONTENDS THAT THE
 PROVISION IS CONSISTENT
 
    WITH THE RULES, REGULATIONS, AND DECISIONS OF OUR OFFICE WITH REGARD
 TO THE STANDARDS FOR
 
    WAIVER.
 
    UNDER THE AUTHORITY OF 5 U.S.C. 5584(1976) A CLAIM FOR THE UNITED
 STATES ARISING OUT OF AN
 
    ERRONEOUS PAYMENT OF PAY OR ALLOWANCES MAY BE WAIVED IF COLLECTION
 WOULD BE AGAINST EQUITY AND
 
    GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES.
 SUCH WAIVER MAY BE MADE
 
    BY THE HEAD OF THE AGENCY WHEN THE CLAIM IS IN AN AMOUNT AGGREGATING
 NOT MORE THAN $500 AND BY
 
    THE COMPTROLLER GENERAL FOR CLAIMS EXCEEDING $500 PROVIDED "THE
 WAIVER IS MADE IN ACCORDANCE
 
    WITH STANDARDS WHICH THE COMPTROLLER GENERAL SHALL PRESCRIBE." 5
 U.S.C. 5584(A).  THE LAW
 
    PROVIDES FURTHER THAT THIS AUTHORITY FOR WAIVER MAY NOT BE EXERCISED
 IF THERE EXISTS, IN
 
    CONNECTION WITH THE CLAIM, AN INDICATION OF FRAUD, MISREPRESENTATION,
 FAULT, OR LACK OF GOOD
 
    FAITH ON THE PART OF THE EMPLOYEE OR ANY OTHER PERSON HAVING AN
 INTEREST IN OBTAINING A WAIVER
 
    OF THE CLAIM.  5 U.S.C. 5584(B).
 
    THE STANDARDS FOR WAIVER, PROMULGATED BY THIS OFFICE UNDER 5
 U.S.C.5584, ARE CONTAINED IN 4
 
    C.F.R. PART 91 ET SEQ.  THESE REGULATIONS PROVIDE, IN SECTION
 91.5(C), THAT A CLAIM MAY BE
 
    WAIVED WHENEVER:
 
    "(C) COLLECTION ACTION UNDER THE CLAIM WOULD BE AGAINST EQUITY AND
 GOOD CONSCIENCE AND NOT
 
    IN THE BEST INTERESTS OF THE UNITED STATES.  GENERALLY THESE CRITERIA
 WILL BE MET BY A FINDING
 
    THAT THE ERRONEOUS PAYMENT OF PAY OR ALLOWANCES OCCURRED THROUGH
 ADMINISTRATIVE ERROR AND THAT
 
    THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF
 GOOD FAITH ON THE PART OF
 
    THE EMPLOYEE OR MEMBER OR ANY OTHER PERSON HAVING AN INTEREST IN
 OBTAINING A WAIVER OF THE
 
    CLAIM.  ANY SIGNIFICANT UNEXPLAINED INCREASE IN PAY OR ALLOWANCES
 WHICH WOULD REQUIRE A
 
    REASONABLE PERSON TO MAKE INQUIRY CONCERNING THE CORRECTNESS OF HIS
 PAY OR ALLOWANCES,
 
    ORDINARILY WOULD PRECLUDE A WAIVER WHEN THE EMPLOYEE OR MEMBER FAILS
 TO BRING THE MATTER TO
 
    THE ATTENTION OF APPROPRIATE OFFICIALS.  WAIVER OF OVERPAYMENTS OF
 PAY AND ALLOWANCES UNDER
 
    THIS STANDARD NECESSARILY MUST DEPEND UPON THE FACTS EXISTING IN THE
 PARTICULAR CASE * * * ."
 
    OUR DECISIONS HAVE HELD THAT WHETHER AN EMPLOYEE WHO RECEIVES AN
 ERRONEOUS PAYMENT IS FREE
 
    FROM FAULT IN THE MATTER, CAN ONLY BE DETERMINED BY A CAREFUL
 ANALYSIS OF ALL PERTINENT FACTS,
 
    NOT ONLY THOSE GIVING RISE TO THE OVERPAYMENT BUT THOSE INDICATING
 WHETHER THE EMPLOYEE
 
    REASONABLY COULD HAVE BEEN EXPECTED TO HAVE BEEN AWARE THAT AN ERROR
 HAD BEEN MADE.  IF UNDER
 
    THE CIRCUMSTANCES INVOLVED A REASONABLE MAN WOULD HAVE MADE INQUIRY
 AS TO THE CORRECTNESS OF
 
    THE PAYMENT AND THE EMPLOYEE INVOLVED DID NOT DO SO, THEN, IN OUR
 OPINION, THE EMPLOYEE COULD
 
    NOT BE SAID TO BE FREE FROM FAULT AND THE CLAIM AGAINST HIM SHOULD
 NOT BE WAIVED.  B-177629,
 
    FEBRUARY 22, 1973;  AND B-15663, JUNE 11, 1969.  SEE ALSO GILBERT G.
 QUINTERO, B-183558, APRIL
 
    23, 1975.
 
    IN THE PRESENT CASE, THE COLLECTIVE BARGAINING AGREEMENT PROVISION
 DOES NOT PROVIDE FOR AN
 
    INQUIRY INTO THE FACTS SURROUNDING THE OVERPAYMENT.  INSTEAD, THE
 AGREEMENT IMPOSES A BURDEN
 
    UPON THE AGENCY TO NOTIFY THE EMPLOYEE WITHIN 5 DAYS OF THE MISTAKEN
 PAYMENT OR LOSE ITS RIGHT
 
    TO COLLECT THE OVERPAYMENT.  FURTHERMORE, AS THE U.S. CUSTOMS SERVICE
 HAS POINTED OUT, THE
 
    COLLECTIVE BARGAINING AGREEMENT DOES NOT TAKE INTO CONSIDERATION THE
 OBLIGATION OF THE
 
    EMPLOYEE TO MAKE INQUIRIES AS TO THE CORRECTNESS OF A SIGNIFICANT
 UNEXPLAINED INCREASE IN PAY
 
    OR ALLOWANCES.  SEE 4 C.F.R. SEC. 91.5(C).
 
    AS AN EXAMPLE OF THE DUTY TO MAKE REASONABLE INQUIRIES, WE HAVE HELD
 THAT WHERE AN EMPLOYEE
 
    HAS RECORDS WHICH, IF REVIEWED, WOULD INDICATE AN OVERPAYMENT, AND
 THE EMPLOYEE FAILS TO
 
    REVIEW SUCH DOCUMENTS FOR ACCURACY OR OTHERWISE FAILS TO TAKE
 CORRECTIVE ACTION, HE IS NOT
 
    WITHOUT FAULT AND WAIVER WILL BE DENIED.  SEE ROOSEVELT W.  ROYALS,
 B-188822, JUNE 1, 1977, AND
 
    DECISIONS CITED THEREIN.  AN EMPLOYEE HAS THE RESPONSIBILITY TO
 VERIFY THE INFORMATION
 
    PROVIDED ON HIS PAYROLL CHANGE SLIPS OR LEAVE AND EARNING STATEMENTS,
 AND WHERE A REASONABLE
 
    MAN WOULD HAVE MADE INQUIRY BUT THE EMPLOYEE DID NOT, THEN HE IS NOT
 FREE FROM FAULT AND THE
 
    CLAIM MAY NOT BE WAIVED.  JOHN J. DOYLE, B-191295, JULY 7, 1978;  AND
 SIMON B. GUEDEA B-189385,
 
    AUGUST 10, 1977.
 
    THE PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT IN QUESTION HERE
 MAKES NO MENTION OF
 
    THE OBLIGATION OF AN EMPLOYEE TO REVIEW RECORDS OR DOCUMENTS IN HIS
 POSSESSION FOR ACCURACY OR
 
    TO OTHERWISE INQUIRE AS TO THE CORRECTNESS OF A SIGNIFICANT
 UNEXPLAINED INCREASE IN PAY.  THE
 
    REQUIREMENT THAT AN OVERPAYMENT BE WAIVED IF THE AGENCY HAS NOT
 NOTIFIED THE EMPLOYEE OF THE
 
    ERROR WITHIN 5 DAYS DOES NOT TAKE INTO CONSIDERATION OTHER FACTS
 WHICH ARE RELEVANT IN
 
    DETERMINING IF THE EMPLOYEE IS FREE FROM FAULT.
 
    ACCORDINGLY, WE CONCLUDE THAT THE COLLECTIVE BARGAINING AGREEMENT
 PROVISION IS NOT
 
    CONSISTENT WITH THE PROVISIONS OF 5 U.S.C. 5584 OR THE STANDARDS FOR
 WAIVER SET FORTH IN 4
 
    C.F.R.  PART
 
    91, AND SUCH PROVISION COULD NOT BE LEGALLY IMPLEMENTED.
 
    BASED ON THE FOREGOING DECISION BY THE COMPTROLLER GENERAL, ARTICLE
 35, SECTION 3 CONFLICTS WITH THE REGULATIONS OF THE COMPTROLLER GENERAL
 GOVERNING CONDITIONS FOR WAIVER OF CLAIMS FOR OVERPAYMENTS TO EMPLOYEES
 AND IS, THEREFORE, NONNEGOTIABLE.  ACCORDINGLY, THE AGENCY'S
 DETERMINATION OF NONNEGOTIABILITY IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 15,1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ IN ACCORDANCE WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT.1224), THIS CASE IS DECIDED SOLELY ON THE BASIS OF E.O.
 11491, AS AMENDED, AND AS IF THE STATUTE "HAD NOT BEEN ENACTED." IN THIS
 REGARD, THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING
 OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT
 WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.
 
    /2/ SECTION 15 OF E.O.11491, AS AMENDED, PROVIDES:
 
    SEC.15. APPROVAL OF AGREEMENT.  AN AGREEMENT WITH A LABOR
 ORGANIZATION AS THE EXCLUSIVE
 
    REPRESENTATIVE OF EMPLOYEES IN A UNIT IS SUBJECT TO THE APPROVAL OF
 THE HEAD OF THE AGENCY OR
 
    AN OFFICIAL DESIGNATED BY HIM.  AN AGREEMENT SHALL BE APPROVED WITHIN
 FORTY-FIVE DAYS FROM THE
 
    DATE OF ITS EXECUTION IF IT CONFORMS TO APPLICABLE LAWS, THE ORDER,
 EXISTING PUBLISHED AGENCY
 
    POLICIES AND REGULATIONS (UNLESS THE AGENCY HAS GRANTED AN EXCEPTION
 TO A POLICY OR
 
    REGULATION) AND REGULATIONS OF OTHER APPROPRIATE AUTHORITIES.  AN
 AGREEMENT WHICH HAS NOT BEEN
 
    APPROVED OR DISAPPROVED WITHIN FORTY-FIVE DAYS FROM THE DATE OF ITS
 EXECUTION SHALL GO INTO
 
    EFFECT WITHOUT THE REQUIRED APPROVAL OF THE AGENCY HEAD AND SHALL BE
 BINDING ON THE PARTIES
 
    SUBJECT TO THE PROVISIONS OF LAW, THE ORDER AND THE REGULATIONS OF
 APPROPRIATE AUTHORITIES
 
    OUTSIDE THE AGENCY.  A LOCAL AGREEMENT SUBJECT TO A NATIONAL OR OTHER
 CONTROLLING AGREEMENT AT
 
    A HIGHER LEVEL SHALL BE APPROVED UNDER THE PROCEDURES OF THE
 CONTROLLING AGREEMENT, OR, IF
 
    NONE, UNDER AGENCY REGULATIONS.
 
    /3/ THE AGENCY DETERMINED THAT ARTICLE 16, SECTION 3 OF THE AGREEMENT
 WAS INCONSISTENT WITH THE FEDERAL PERSONNEL MANUAL CHAPTER 335 WHICH WAS
 THEN IN EFFECT WITHOUT REFERENCE TO SPECIFIC PROVISIONS OF THAT
 DIRECTIVE.
 
    /4/ SECTION 12(B)(2) OF THE ORDER PROVIDES IN PART:
 
    SEC. 12.  BASIC PROVISIONS OF AGREEMENTS.  EACH AGREEMENT BETWEEN AN
 AGENCY AND A LABOR
 
    ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
 
   .          .          .          .
 
 
    (B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
 ACCORDANCE WITH APPLICABLE LAWS
 
    AND REGULATIONS--
 
   .          .          .          .
 
 
    (2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
 POSITIONS WITHIN THE
 
    AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY
 ACTION AGAINST EMPLOYEES
 
    . . .
 
    /5/ IN SO DECIDING THAT THE SUBJECT PROVISION WAS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROVISION.
 
    /6/ OUR ANALYSIS OF THE NEGOTIABILITY OF THIS UNION PROPOSAL IS BASED
 ON THE ASSUMPTION THAT THE TERM "REASSIGNMENT" IN THE PROPOSAL HAS THE
 SAME MEANING AS THAT IN FPM LETTER 335-12.
 
    /7/ IN KIRK ARMY HOSPITAL, FLRC NO. 72A-18, THE COUNCIL HAD OCCASION
 TO CITE FPM CHAPTER 335, SUBCHAPTER 4-3(C)(2), AND COMMENTED THAT "WITH
 RESPECT TO THE REPROMOTION RIGHTS OF SUCH EMPLOYEES, THE FPM PLAINLY
 STATES THAT, EVEN THOUGH THEY ARE ENTITLED TO "'SPECIAL CONSIDERATION'",
 THEY ARE "'NOT GUARANTEED PROMOTION.'" IN OTHER WORDS, A SELECTION
 DECISION REMAINS TO BE MADE BY THE SELECTING OFFICIAL." SEE ALSO
 COMMISSION OPINIONS IN WARREN AIR FORCE BASE, FLRC NO. 75A-127, AND
 TOOELE ARMY DEPOT, FLRC NO. 75A-104.
 
    /8/ WE NOTE THAT THE PARTIES IN THIS CASE DO NOT CONTEND THAT ARTICLE
 16, SECTION 3B. VIOLATES THE FEDERAL TRAVEL REGULATIONS, AND RESEARCH
 FAILED TO REVEAL ANY SUCH VIOLATION.
 
    /9/ SEE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 122 AND
 VETERANS ADMINISTRATION, ATLANTA REGIONAL OFFICE, ATLANTA, GEORGIA, FLRC
 NO. 77A-94 (NOV. 8,1978), REPORT NO. 159, AT 9-11 OF COUNCIL DECISION
 RULING THE AGENCY'S CONTENTION, THAT AN AGREEMENT PROVISION WAS
 NONNEGOTIABLE BECAUSE IT DID NOT SPECIFICALLY MAKE THE PROVISION SUBJECT
 TO LEGAL TIME-IN-GRADE REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL,
 FAILED TO STATE A GROUND FOR FINDING THE PROVISION NONNEGOTIABLE.  THE
 COUNCIL NOTED THAT, UNDER SECTION 12(A) OF THE ORDER, THE PROVISIONS OF
 WHICH MUST BE INCLUDED IN EVERY AGREEMENT, THE ADMINISTRATION OF ANY
 AGREEMENT ENTERED INTO BY THE PARTIES WOULD BE SUBJECT TO EXISTING OR
 FUTURE LAWS AND THE REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING
 POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL.  SEE ALSO INFRA PP.
 8-9 OF THIS DECISION.
 
    /10/ NATIONAL MARITIME UNION OF AMERICAN, AFL-CIO AND NATIONAL
 OCEANIC AND ATMOSPHERIC ADMINISTRATION, 5 FLRC 497 (FLRC NO. 76A-79
 (JUNE 21, 1977), REPORT NO.128).  THE UNION PROPOSALS AT ISSUE IN THAT
 CASE PROVIDED:
 
    PROPOSAL NO.1:
 
    THAT HIRING PREFERENCE BE GIVEN TO APPLICANTS WHO HAVE ENDORSEMENTS
 OF U.S. COAST GUARD FOR
 
    THE POSITIONS THEY SEEK.
 
    PROPOSAL NO. 2:
 
    EMPLOYEES WHO HAVE SATISFACTORILY COMPLETED 90 DAYS OF EMPLOYMENT AND
 ARE THEREAFTER LAID
 
    OFF SHOULD BE GIVEN REHIRE PREFERENCE FOR POSITIONS IN THE SAME
 DEPARTMENT OVER INEXPERIENCED
 
    SEAMEN APPLICANTS WHEN POSITIONS ABOARD NOAA AGENCY VESSELS BECOME
 AVAILABLE.
 
    /11/ CF. AFGE (NATIONAL BORDER PATROL COUNCIL AND NATIONAL INS
 COUNCIL) AND IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF
 JUSTICE, 5 FLRC 808 (FLRC NO. 76A-68 (AUG. 31, 1977), REPORT NO. 136)
 (UNION PROPOSAL THAT AN APPLICANT FROM OUTSIDE THE AGENCY WOULD NOT BE
 CONSIDERED FOR APPOINTMENT OR TRANSFER UNLESS CERTAIN CONDITIONS WERE
 MET HELD VIOLATIVE OF SECTION 12(B)(2) OF THE ORDER SINCE IT WOULD
 REQUIRE MANAGEMENT TO SELECT FROM AMONG INTERNAL CANDIDATES AHEAD OF ALL
 OTHER APPLICANTS).
 
    /12/ THE TEMPORARY PROMOTION REQUIREMENTS THEN IN EFFECT RELIED UPON
 BY THE AGENCY ARE THOSE WHICH WERE CONTAINED IN FEDERAL PERSONNEL
 MANUAL, CHAPTER 335, SUBCHAPTER 4-3, WHICH PROVIDED IN PART:
 
    4-3.  PROMOTIONS AS EXCEPTIONS TO COMPETITIVE PROCEDURES
 
   .          .          .          .
 
 
    E.  PROMOTION TO A HIGHER GRADE FOR 120 DAYS OR LESS.  AN AGENCY MAY
 MAKE A TEMPORARY
 
    PROMOTION LIMITED TO 120 DAYS OR LESS AS AN EXCEPTION TO COMPETITIVE
 PROMOTION
 
    PROCEDURES.  THIS EXCEPTION IS NOT TO BE USED TO CIRCUMVENT
 COMPETITIVE PROMOTION REQUIREMENTS
 
    BY A SERIES OF TEMPORARY HIGHER-LEVEL ASSIGNMENTS.  THEREFORE,
 COMPETITIVE PROMOTION
 
    PROCEDURES MUST BE USED IF AFTER COMPLETING THE PERIOD OF SERVICE
 UNDER TEMPORARY PROMOTION AN
 
    EMPLOYEE WILL HAVE SPENT MORE THAN 120 DAYS (PRIOR SERVICE UNDER
 DETAILS AND PREVIOUS
 
    TEMPORARY PROMOTIONS INCLUDED) IN HIGH-GRADE POSITIONS DURING THE
 PRECEDING YEAR.
 
    THESE REQUIREMENTS ARE NOW CONTAINED IN THE REVISED FEDERAL PERSONNEL
 MANUAL, CHAP. 335, SUBCHAP.1-5(C)(4).
 
    /13/ SEE SUPRA. N.4.
 
    14 IN SO DECIDING THAT THE SUBJECT PROVISION WAS WITHIN DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROVISION.
 
    /15/ SEE SUPRA, N. 10.
 
    /16/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 122 AND VETERANS
 ADMINISTRATION, ATLANTA REGIONAL OFFICE, ATLANTA, GEORGIA, FLRC NO.
 77A-94 (NOV. 8, 1978), REPORT NO. 159, AT 8-11 OF COUNCIL DECISION.  THE
 AGREEMENT PROVISION IN DISPUTE IN THAT CASE, AS HERE PERTINENT, REQUIRED
 THAT AN EMPLOYEE TEMPORARILY PLACED IN A HIGHER-GRADE POSITION WOULD BE
 TEMPORARILY PROMOTED, IF THE ASSIGNMENT EXCEEDED 60 DAYS.
 
    /17/ THERE IS NO DISPUTE IN THIS CASE WITH RESPECT TO THE
 NEGOTIABILITY OF THE SECOND SENTENCE OF ARTICLE 17, SECTION 2A., WHICH
 PROVIDES THAT THE AGENCY WILL REFRAIN FROM ROTATING DETAILS OF EMPLOYEES
 SOLELY TO AVOID COMPENSATION AT THE HIGHER LEVEL, AND THIS PORTION OF
 THE PROVISION DOES NOT AFFECT THE AUTHORITY'S DETERMINATION THAT ARTICLE
 17, SECTION 2A.  DOES NOT VIOLATE SECTION 12(B) OF THE ORDER.  CF.
 PHILADELPHIA METAL TRADES COUNCIL, AFL-CIO AND PHILADELPHIA NAVAL
 SHIPYARD, PHILADELPHIA, PENNSYLVANIA, 1 FLRC 456, 458-60 (FLRC NO.
 72A-40 (JUNE 29, 1973), REPORT NO. 41) (PROPOSAL THAT AGENCY NOT MAKE
 OVERTIME ASSIGNMENTS FOR THE SOLE PURPOSE OF DENYING OVERTIME WORK TO
 UNIT EMPLOYEES HELD NEGOTIABLE UNDER SECTION 11(A) OF THE ORDER).
 
    /18/ SEE SUPRA. N. 4.
 
    /19/ IN SO DECIDING THAT THE SUBJECT PROVISION WAS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROVISION.
 
    /20/ FEDERAL PERSONNEL MANUAL, CHAP. 335, SUBCHAP. 1-5(C)(1)(A).
 
    /21/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 122 AND VETERANS
 ADMINISTRATION, ATLANTA REGIONAL OFFICE, ATLANTA, GEORGIA, FLRC NO.
 77A-94 (NOV. 8, 1978), REPORT NO. 159, AT 10 OF COUNCIL DECISION
 (AGREEMENT PROVISION CALLING FOR TEMPORARY PROMOTION OF UNIT EMPLOYEES
 UPON ASSIGNMENT FOR MORE THAN 60 DAYS TO A HIGHER-GRADE POSITION NOT
 VIOLATIVE OF SECTION 12(B)(2) OF THE ORDER SINCE THE TEMPORARY PROMOTION
 IS SIMPLY A MINISTERIAL ACT WHICH IMPLEMENTS THE DECISION AND ACTION
 TAKEN BY THE AGENCY ITSELF IN SELECTING AND ASSIGNING THE PARTICULAR
 EMPLOYEE TO THE HIGHER-GRADE POSITION).
 
    /22/ THE COMPTROLLER GENERAL'S REGULATIONS GOVERNING OVERPAYMENTS ARE
 SET FORTH IN 4 C.F.R. SEC. 91.1 ET SEQ. AND PROVIDE IN PERTINENT PART:
 
    SUBCHAPTER G- STANDARDS FOR WAIVER OF CLAIMS FOR ERRONEOUS PAYMENT OF
 PAY AND ALLOWANCES
 
    PART 91 - STANDARDS FOR WAIVER
 
   .          .          .          .
 
 
    SEC. 91.4 WAIVER OF CLAIMS FOR ERRONEOUS PAYMENT OF PAY AND
 ALLOWANCES.
 
   .          .          .          .
 
 
    (B) THE HEAD OF THE AGENCY OR THE SECRETARY CONCERNED, AS
 APPROPRIATE, MAY WAIVE IN WHOLE
 
    OR IN PART A CLAIM OF THE UNITED STATES IN AN AMOUNT AGGREGATING