11:0254(53)NG - NTEU and HHS, Region IV -- 1983 FLRAdec NG
[ v11 p254 ]
The decision of the Authority follows:
11 FLRA No. 53 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV Agency Case No. O-NG-573 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and presents issues relating to the negotiability of the following two Union proposals. Union Proposal 1 The "Competitive Area" will be established by the Agency as all of those positions under the personnel administration and authority of the Principal Regional Official of DHHS-Atlanta, Ga. within the commuting area of Atlanta, Georgia. Question Before the Authority The question is whether, as alleged by the Agency, Union Proposal 1 is inconsistent with an Agency regulation (HHS Personnel Manual Instruction 351-1-40) /1/ for which a compelling need exists, rendering the proposal outside the duty to bargain under section 7117(a)(2) of the Statute. /2/ Opinion Conclusion and Order: The Agency has not established that a compelling need exists for the Agency regulation which it asserts as a bar to negotiation of Union Proposal 1 and, therefore, the proposal is within the Agency's duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 1. /3/ Reasons: The proposal requires the Agency to bargain the "competitive area" /4/ in which bargaining unit employees who are affected by a reduction-in-force action will compete for retention in the Agency. Under applicable law and regulation, agencies retain discretion to determine such competitive areas in conformance with the standards established by the Office of Personnel Management (See 5 CFR 351.402). The Agency neither argues nor does it appear that the competitive area proposed by the union would be inconsistent with those standards. The only ground asserted by the Agency for its claim that Union Proposal 1 is nonnegotiable is that negotiation is barred by an Agency regulation for which a compelling need exists under the criteria prescribed by section 2424.11 of the Authority's Rules and Regulations. /5/ The Union is the exclusive representative of a bargaining unit consisting of all GS and WG professional and nonprofessional employees of the Agency's Region IV office, headquartered in Atlanta, Georgia. Region IV has six major organizational units (Operating Divisions) which the Agency states operate in a "semiautonomous manner programmatically within general departmental parameters administratively." Under the Agency regulation in question the clerical and wage rate employees within the Atlanta commuting area are in a single competitive area encompassing all six of the Agency's Operating Divisions and all other employees, with certain stated exceptions (see note 1, supra), are placed in six competitive areas corresponding to the Agency's Operating Divisions. Union Proposal 1 would group all employees in the Atlanta commuting area in a single competitive area. The Agency argues that the separate competitive areas for employees in each Operating Division established by Agency regulation are essential to prevent an intolerable amount of disruption that would occur if those employees were allowed to compete across organizational lines. The Agency claims in this connection that under the disputed proposal, "(m)inimally qualified employees could displace highly qualified employees in key positions." The Union argues, to the contrary, that safeguards exist within the regulatory scheme to prevent the type of disruption which the Agency claims will occur, and thus no compelling need exists for the Agency regulation. In agreement with the Union, the Authority finds that the Agency has not shown that its regulation is supported by a compelling need. In this regard, under 5 CFR 351.701(a)(4), the Agency retains the authority to prevent an employee with a retention standing from bumping into a position held by an employee with lower standing when such assignment would result in "undue interruption to the activity." /6/ Thus, even in the absence of the Agency regulation in question, the Agency could prevent the type of disruption it asserts would occur under the proposal. Therefore, although its regulation may be helpful or desirable, it is not "essential" within the meaning of section 2424.11(a) of the Authority's Rules and Regulations. Accordingly, since the Agency has not demonstrated a compelling need for the regulation which determines the competitive areas for Region IV and since the Union's configuration of a competitive area for Region IV appears consistent with the permissible scope for competitive areas prescribed pursuant to 5 CFR 351.402, Union Proposal 1 is within the duty to bargain. Union Proposal 2 If agency management alleges non-negotiability of any of the Union's proposals on the basis of "agency rule or regulation" pursuant to 5 USC 7117(a)(2), no implementation of any part of the RIF will take place until a negotiability determination is made by the FLRA. The union will move promptly to request such a determination. Question Before the Authority The question is whether Union Proposal 2 is inconsistent with the Agency's rights under section 7106(a) of the Statute, /7/ as alleged by the Agency. Opinion Conclusion and Order: This proposal is not inconsistent with the Agency's rights under section 7106(a) of the Statute. It is instead a negotiable procedure under section 7106(b)(2) of the Statute. /8/ Therefore, the proposal is within the Agency's duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning this proposal. /9/ Reasons: The Agency argues that the proposal would impose a delay which would be tantamount to preventing the Agency from exercising its section 7106(a) rights to layoff, reduce in grade or pay, or remove employees because a reduction-in-force action taken in response to budgetary or personnel ceiling constraints must be implemented at the time those constraints are imposed. The Agency contends, in this regard, that only through the prompt implementation of such an action can the action serve the purpose for which it was intended. In American Federation of Government Employees, Local 547, AFL-CIO and Veterans Administration Medical Center, Tampa, Florida, 4 FLRA No. 50 (1980), enforced sub nom. Veterans Administration Medical Center, Tampa, Florida v. FLRA, . . . F.2d . . . (11th Cir. 1982), the Authority found negotiable a proposal which required the Agency to delay a proposed personnel action which had been made the subject of a grievance or arbitration until the litigation had concluded. In examining the negotiability of that proposal, the Authority applied the statutory standard that a proposed procedure, under section 7106(b)(2) of the Statute, which does not prevent the agency from acting at all with respect to its management rights, is negotiable even if it causes a delay in the complete exercise of the rights involved. Under that standard, the instant proposal likewise is within the duty to bargain. /10/ In so concluding, the Authority emphasizes, as it did in Veterans Administration, that there is nothing in the proposal which would either prevent management from implementing a reduction-in-force action when required to do so by applicable law or regulation or which would prevent management from fulfilling any lawful responsibilities, duties, or obligations.