International Federation of Professional and Technical Engineers, AFL-CIO, NASA Headquarters Professional Association (Union) and National Aeronautics and Space Administration, Headquarters, Washington, DC (Agency)



[ v08 p212 ]
08:0212(46)NG
The decision of the Authority follows:


 8 FLRA No. 46
 
 INTERNATIONAL FEDERATION OF PROFESSIONAL
 AND TECHNICAL ENGINEERS, AFL-CIO, NASA
 HEADQUARTERS PROFESSIONAL ASSOCIATION
 (Union)
 
 and
 
 NATIONAL AERONAUTICS AND SPACE
 ADMINISTRATION, HEADQUARTERS, WASHINGTON, D.C.
 (Agency)
 
                                            Case No. 0-NG-99
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D) AND (E) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C.
 7101-7135).
 
                              UNION PROPOSAL
 
    IN ANY REDUCTION-IN-FORCE (RIF) ACTION, MEMBERS OF THE BARGAINING
 UNIT WHO ARE RELEASED
 
    FROM THEIR COMPETITIVE LEVELS WILL BE PERMITTED TO BUMP OTHER
 EMPLOYEES WHO ARE WITHIN THE
 
    SAME SUBGROUP IN OTHER COMPETITIVE LEVELS.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE SCOPE OF
 THE DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE /1/ OR, AS ALLEGED
 BY THE AGENCY, IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT CONCERNS
 POSITIONS AND EMPLOYEES OUTSIDE THE BARGAINING UNIT.  /2/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN UNDER SECTION 7117 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2424.10(1981), IT IS ORDERED THAT THE PETITION FOR REVIEW OF THIS
 DISPUTED PROPOSAL BE DISMISSED.
 
    REASONS:  THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF A UNIT
 INCLUDING SCIENTISTS, ENGINEERS AND LIFE SCIENCE TECHNICIANS EMPLOYED AT
 THE AGENCY'S HEADQUARTERS IN THE WASHINGTON, D.C. AREA.  ACCORDING TO
 THE UNCONTRADICTED STATEMENTS OF THE AGENCY IN THE RECORD, THIS UNIT
 INCLUDES APPROXIMATELY 300 OF THE AGENCY'S 1500 HEADQUARTERS EMPLOYEES.
 IN ADDITION, THE AGENCY EMPLOYS ALMOST 23,000 EMPLOYEES IN ELEVEN MAJOR
 FIELD INSTALLATIONS AND SEVERAL FIELD OFFICES NATIONWIDE, MOST OF WHOM
 ARE REPRESENTED EXCLUSIVELY IN A NUMBER OF UNITS BY THE PETITIONING
 UNION AS WELL AS SEVERAL OTHER UNIONS.
 
    THE PROPOSAL IS CONCERNED WITH CERTAIN REASSIGNMENT RIGHTS IN A
 REDUCTION IN FORCE, AS EXPLAINED IN DETAIL BELOW.
 
    THE PHRASE "REDUCTION IN FORCE" (RIF) REFERS TO THE PROCESS A FEDERAL
 AGENCY CAN INITIATE, UPON THE OCCURRENCE OF VARIOUS ADMINISTRATIVE
 CONDITIONS, TO ELIMINATE POSITIONS IN THE AGENCY AND TO TAKE APPROPRIATE
 ACTION WITH RESPECT TO EMPLOYEES WHO HAD OCCUPIED THE ABOLISHED
 POSITIONS. AS RELEVANT HEREIN, A RIF MUST BE CARRIED OUT IN ACCORDANCE
 WITH REGULATIONS ISSUED BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM)
 PURSUANT TO STATUTE.  /3/ UNDER THESE REGULATIONS, UPON THE OCCURRENCE
 OF THE PREREQUISITE CONDITIONS, INCLUDING LACK OF WORK, SHORTAGE OF
 FUNDS OR AGENCY REORGANIZATION (5 CFR 351.201(A)), AN AGENCY MAY DECIDE
 TO INITIATE A RIF.  IT MUST DETERMINE THE NUMBERS AND TYPES OF POSITIONS
 TO BE ELIMINATED AND IDENTIFY THE EMPLOYEES WHO WILL BE AFFECTED
 THEREBY.  AFFECTED EMPLOYEES MUST BE IDENTIFIED CONSISTENT WITH THE
 SCOPE OF COMPETITION DELINEATED IN THE REGULATIONS, AS FURTHER EXPLAINED
 HEREIN, BASED ON TWO CRITERIA:  COMPETITIVE AREA AND COMPETITIVE LEVEL.
 
    A "COMPETITIVE AREA" IS, IN ESSENCE, THE PART OF AN AGENCY WITHIN
 WHICH AN EMPLOYEE WHO OCCUPIED AN ABOLISHED POSITION MAY COMPETE WITH
 OTHER EMPLOYEES TO DETERMINE, ULTIMATELY, WHICH OF THEM WILL BE RETAINED
 IN THE AGENCY.  A COMPETITIVE AREA IS DEFINED IN ORGANIZATIONAL AND
 GEOGRAPHIC TERMS.  IT TYPICALLY WOULD INCLUDE A PART OF AN AGENCY IN
 WHICH EMPLOYEES ARE ASSIGNED UNDER A SINGLE ADMINISTRATIVE AUTHORITY (5
 CFR 351.402) BUT NEED NOT EXTEND BEYOND A PARTICULAR COMMUTING AREA
 (FEDERAL PERSONNEL MANUAL, CHAP. 351, SUBCHAP. 2-2.B).
 
    WITHIN EACH COMPETITIVE AREA IN AN AGENCY THE REGULATIONS REQUIRE
 POSITIONS TO BE CATEGORIZED INTO COMPETITIVE LEVELS IN ORDER TO GROUP
 EMPLOYEES WHO WILL COMPETE AGAINST ONE ANOTHER FOR RETENTION IN THE
 AGENCY WHEN POSITIONS ARE ABOLISHED.  A "COMPETITIVE LEVEL" CONSISTS OF
 ALL THE POSITIONS IN A COMPETITIVE AREA WHICH ARE AT THE SAME GRADE OR
 OCCUPATIONAL LEVEL AND WHICH ARE SUFFICIENTLY ALIKE IN VARIOUS SPECIFIC
 RESPECTS SO THAT THE INCUMBENT OF ANY ONE POSITION MAY BE ASSIGNED TO
 ANY OF THE OTHER POSITIONS WITHOUT CHANGING THE TERMS OF HIS APPOINTMENT
 OR UNDULY INTERRUPTING THE WORK PROGRAM (5 CFR 351.403).
 
    THE REGULATIONS FURTHER SPECIFY THAT WITHIN EACH COMPETITIVE LEVEL,
 EMPLOYEES WILL COMPETE FOR RETENTION IN THE AGENCY BASED ON THEIR
 RELATIVE RETENTION STANDING.  THE "RETENTION STANDING" OF AN EMPLOYEE IS
 HIS OR HER RANK RELATIVE TO THE OTHER EMPLOYEES IN THE COMPETITIVE LEVEL
 BASED ON TENURE, MILITARY PREFERENCE, LENGTH OF SERVICE, AND PERFORMANCE
 RATING.  MORE PARTICULARLY, EACH COMPETITIVE LEVEL MUST BE DIVIDED INTO
 TENURE GROUPS I, II AND III (ROUGHLY CONSISTING OF, RESPECTIVELY, CAREER
 EMPLOYEES, CAREER-CONDITIONAL EMPLOYEES AND EMPLOYEES WITH INDEFINITE
 APPOINTMENTS).  EACH OF THESE GROUPS, ITSELF, THEN MUST BE SUBDIVIDED
 INTO SUBGROUPS AD, A AND B (ESSENTIALLY CONSISTING OF, RESPECTIVELY,
 EMPLOYEES WITH VETERAN PREFERENCE PLUS A CERTAIN EXTENT OF DISABILITY,
 EMPLOYEES WITH VETERAN PREFERENCE NOT INCLUDED IN SUBGROUP AD, AND
 EMPLOYEES WITHOUT VETERAN PREFERENCE) (5 CFR 351.501).  EMPLOYEES ARE
 RANKED WITHIN EACH SUBGROUP BY THE LENGTH OF THEIR SERVICE (5 0CFR
 351.503).
 
    ONCE THE RETENTION STANDING OF EMPLOYEES IS DETERMINED THROUGH
 APPLICATION OF THE ABOVE DESCRIBED MECHANISMS, AN AGENCY MAY "RELEASE"
 EMPLOYEES FORM THEIR COMPETITIVE LEVEL IN INVERSE ORDER OF THEIR
 STANDING (5 CFR 351.602), SUBJECT TO CERTAIN REASSIGNMENT RIGHTS THE
 EMPLOYEES INVOLVED MAY HAVE.
 
    THE REGULATIONS PRESCRIBE CERTAIN REASSIGNMENT RIGHTS FOR AFFECTED
 EMPLOYEES AND, ALSO, PROVIDE THAT AGENCIES MAY GRANT OTHERS.  IN THIS
 CONNECTION, THE REGULATIONS REQUIRE AGENCIES UNDER CERTAIN CIRCUMSTANCES
 TO AFFORD EMPLOYEES BEING RELEASED FROM THEIR COMPETITIVE LEVEL IN A RIF
 THE RIGHT, AMONG OTHERS, TO DISPLACE EMPLOYEES OCCUPYING POSITIONS IN
 LOWER SUBGROUPS IN OTHER COMPETITIVE LEVELS.  FOR EXAMPLE, AN AFFECTED
 EMPLOYEE IN GROUP I, SUBGROUP A COULD DISPLACE AN EMPLOYEE IN GROUP I,
 SUBGROUP B, IN ANOTHER COMPETITIVE LEVEL.  THIS DISPLACEMENT PROCESS
 COMMONLY IS REFERRED TO AS "BUMPING."
 
    AS RELEVANT TO THE DISPUTE IN THE PRESENT CASE, THE REGULATIONS OF
 OPM DO NOT REQUIRE, BUT ALLOW, AGENCIES TO PERMIT AFFECTED EMPLOYEES
 SIMILARLY TO BUMP EMPLOYEES OF LOWER RETENTION STANDING IN THE SAME
 SUBGROUP IN OTHER COMPETITIVE LEVELS (5 CFR 351.705(A)(2)).  IF AN
 AGENCY DOES PERMIT BUMPING IN THE SAME SUBGROUP, THE REGULATIONS PROVIDE
 THAT SUCH BUMPING "SHALL BE UNIFORMLY APPLIED IN ANY ONE REDUCTION IN
 FORCE" (5 CFR 351.705(B)(2)).
 
    HENCE, UNDER THE GOVERNING REGULATIONS OF OPM, AN AGENCY HAS
 DISCRETION WHETHER IT WILL ALLOW BUMPING WITHIN THE SAME SUBGROUP AS
 WOULD BE REQUIRED BY THE DISPUTED PROPOSAL IN THE PRESENT CASE, PROVIDED
 THAT, IF THE AGENCY ALLOWS SUCH BUMPING AT ALL, IT MUST BE ALLOWED
 UNIFORMLY IN ANY ONE RIF.
 
    TURNING NOW TO THE PRESENT DISPUTE, UNDER THE RECORD, THE AGENCY IN
 EFFECT STATES AND THE UNION TACITLY CONCEDES THAT THE COMPETITIVE AREA
 IN THE AGENCY'S HEADQUARTERS, WHICH ENCOMPASSES THE BARGAINING UNIT HERE
 INVOLVED, ALSO ENCOMPASSES POSITIONS AND EMPLOYEES WHICH ARE NOT WITHIN
 THE BARGAINING UNIT.  FURTHERMORE, IT IS CLEAR THAT WHATEVER POLICY THE
 AGENCY ADOPTS, EITHER UNILATERALLY OR THROUGH NEGOTIATIONS, WITH RESPECT
 TO BUMPING IN THE SAME SUBGROUP WOULD HAVE TO BE APPLIED UNIFORMLY IN
 ANY ONE RIF, UNDER OPM REGULATIONS.  FINALLY, INSOFAR AS APPEARS FROM
 THE RECORD, THE UNION INTENDED ITS PROPOSAL TO BE APPLIED IN A MANNER
 CONSISTENT WITH THESE APPLICABLE OPM REGULATIONS.  BASED ON THESE
 CONSIDERATIONS, THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE
 NEGOTIATIONS ON THE PROPOSAL WOULD AS THE AGENCY ARGUES, "ALLOW THE UNIT
 TO BARGAIN FOR THE ENTIRE ACTIVITY, INCLUDING EMPLOYEES IT DOES NOT
 REPRESENT . . . "
 
    IT IS WELL SETTLED IN THIS REGARD THAT MATTERS WHICH ARE CONDITIONS
 OF EMPLOYMENT OF EMPLOYEES IN A BARGAINING UNIT AND ARE WITHIN THE
 DISCRETION OF THE AGENCY INVOLVED ARE WITHIN THE DUTY TO BARGAIN.  THE
 AGENCY MUST IF REQUESTED EXERCISE ITS DISCRETION THROUGH NEGOTIATIONS
 WITH THE EXCLUSIVE REPRESENTATIVE TO THE EXTENT CONSISTENT WITH
 APPLICABLE LAW AND REGULATIONS.  /4/ IT IS EQUALLY WELL SETTLED, ON THE
 OTHER HAND, THAT THE DUTY TO BARGAIN DOES NOT EXTEND TO MATTERS
 CONCERNING POSITIONS AND EMPLOYEES OUTSIDE THE BARGAINING UNIT.  /5/
 THUS, IF THE UNION PROPOSAL IN THE PRESENT DISPUTE WOULD PRESCRIBE THE
 RIGHTS OF EMPLOYEES OUTSIDE THE BARGAINING UNIT, THE PROPOSAL GENERALLY
 WOULD NOT BE WITHIN THE DUTY TO BARGAIN.
 
    AS ALREADY INDICATED, IT APPEARS FROM THE RECORD AND THE LANGUAGE OF
 THE DISPUTED PROPOSAL THAT THE UNION INTENDED ITS PROPOSAL TO BE APPLIED
 CONSISTENT WITH OPM REGULATIONS. /6/ AS FURTHER INDICATED, APPLICABLE
 OPM REGULATIONS REQUIRE THE BUMPING RIGHTS WHICH ARE THE SUBJECT OF THE
 DISPUTED PROPOSAL TO BE APPLIED UNIFORMLY IN ANY ONE RIF.  MOREOVER, THE
 RECORD SUPPORTS A FINDING THAT A RIF POTENTIALLY AFFECTING POSITIONS AND
 EMPLOYEES IN THE BARGAINING UNIT WOULD ALSO POTENTIALLY AFFECT POSITIONS
 AND EMPLOYEES NOT IN THE BARGAINING UNIT.  HENCE, UNDER THESE
 CIRCUMSTANCES