11:0254(53)NG - NTEU and HHS, Region IV -- 1983 FLRAdec NG

[ v11 p254 ]
The decision of the Authority follows:

 11 FLRA No. 53
                                            Case No. O-NG-573
    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/
 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
    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
                             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
                       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.
 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.
    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.  Moreover, the Agency, of course, is not required to agree
 to the proposal.  The bargaining process lends itself to a consideration
 of the consequences of the proposal and should matters of concern to the
 Agency, such as the potential for unreasonable delay under the proposal,
 prevent the parties from reaching agreement, such considerations could
 be presented to the Federal Service Impasses Panel in a proceeding to
 resolve a negotiation impasse pursuant to section 7119 of the Statute.
 Further, decisions of the Panel indicate that the reasonableness of any
 proposal at issue is a paramount consideration in determining what
 contract language will be imposed.  /11/ Issued, Washington, D.C.,
 February 3, 1983
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ HHS Personnel Manual Instruction 351-1-40 establishes the
 Agency's competitive areas and provides in pertinent part:
          351-1-40 COMPETITIVE AREAS
          A. The normal subdivisions of the Department for reduction in
       force are outlined below:
                                .  .  .  .
          5.  Positions under a regional office's appointing authority
       form competitive areas as follows:
          a.  *Each PHS Hospital, SSA Program Service Center, and SSA
       Data Operations Center is a separate competitive area.*
          b.  *Positions within the Indian Health Service within each
       commuting area form a competitive area.*
          c.  All other clerical, secretarial, and wage rate positions in
       a commuting area constitute a competitive area.
          d.  For positions other than those covered by 5.a., b., or c.
       above, separate competitive areas are established region-wide
       within each of the following components:  Office of Secretary,
       Public Health Service, Health Care Financing Administration,
       *Office of Child Support Enforcement,* Office of Human Development
       Services, and Social Security Administration.
    /2/ Section 7117(a)(2) provides:
    Sec. 7117.  Duty to bargain in good faith;  compelling need;  duty to
                                .  .  .  .
          (2) The duty to bargain in good faith shall, to the extent not
       inconsistent with Federal law or any Government-wide rule or
       regulation, extend to matters which are the subject of any agency
       rule or regulation referred to in paragraph (3) of this subsection
       only if the Authority has determined under subsection (b) of this
       section that no compelling need (as determined under regulations
       prescribed by the Authority) exists for the rule or regulation.
    /3/ In deciding that Union Proposal 1 is within the duty to bargain,
 the Authority, of course, makes no judgment as to its merits.
    /4/ 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).
    /5/ Section 2424.11 provides as follows:
    Sec. 2424.11 Illustrative criteria.
          A compelling need exists for an agency rule or regulation
       concerning any condition of employment when the agency
       demonstrates that the rule or regulation meets one or more of the
       following illustrative criteria:
          (a) The rule or regulation is essential, as distinguished from
       helpful or desirable, to the accomplishment of the mission or the
       execution of functions of the agency or primary national
       subdivision in a manner which is consistent with the requirements
       of an effective and efficient government.
          (b) The rule or regulation is necessary to insure the
       maintenance of basic merit principles.
          (c) The rule or regulation implements a mandate to the agency
       or primary national subdivision under law or other outside
       authority, which implementation is essentially nondiscretionary in
    /6/ Reassignment rights in a reduction-in-force are discussed in
 International Federation of Professional and Technical Engineers,
 AFL-CIO, NASA Headquarters Professional Association and National
 Aeronautics and Space Administration, Headquarters, Washington, D.C., 8
 FLRA No. 46 (1982).
    /7/ Section 7106(a) provides, in relevant part:
    Sec. 7106.  Management rights
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
                                .  .  .  .
          (2) in accordance with applicable laws--
          (A) to hire, assign, direct, layoff, and retain employees in
       the agency, or to suspend, rem