11:0261(54)NG - AFGE and GSA -- 1983 FLRAdec NG
[ v11 p261 ]
The decision of the Authority follows:
11 FLRA No. 54 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES Union and GENERAL SERVICES ADMINISTRATION Agency Case No. O-NG-521 DECISION AND ORDER ON NEGOTIABILITY ISSUE This case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues relating to the negotiability of the following Union proposal. Section 8. Competitive areas to be used in the reduction-in-force will be negotiated by the parties following the briefing session referred to in section 7. Impasses will be resolved in the manner provided by law. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. In agreement with the Union, the Authority finds that this proposal, concerning competitive areas to be used in the event of a reduction-in-force (RIF) is within the duty to bargain. In this regard, agencies must establish competitive areas for RIF purposes consistent with the regulatory requirements promulgated by the Office of Personnel Management (OPM) pursuant to 5 U.S.C. 3502. Such regulations, however, provide only guidelines with respect to certain matters and, hence, allow for the exercise of discretion by agencies. See 5 CFR 352.402. It is well established that an agency's discretion concerning a matter affecting the conditions of employment of its employees, which discretion is not intended to be sole and exclusive, must be exercised through negotiations with the exclusive representative of such employees, upon request. See, e.g., National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980). Thus, agencies may establish competitive areas through negotiation so long as such competitive areas are in conformance with the standards promulgated by OPM and are not otherwise inconsistent with law, rule or regulation. See National Treasury Employees Union and Department of Health and Human Services, Region IV, 11 FLRA No. 53 (1983). The disputed proposal herein would not require the Agency to act in excess of its discretion under applicable OPM regulations or to agree to use any particular competitive area which would be inconsistent with applicable law or regulation. /1/ In this respect, the proposal bears no material difference from Union Proposal 2 in International Brotherhood of Electrical Workers, AFL-CIO, Local 121 and U.S. Government Printing Office, Washington, D.C., 8 FLRA No. 35 (1982). In that case, the Authority found the proposal, requiring negotiation on the establishment of training programs for affected employees in the event of a RIF, did not interfere with the exercise of management's rights under the Statute and, hence, was within the duty to bargain. Similarly, in the present case it has not been established in the record that the disputed proposal would interfere with management rights and no such interference is otherwise apparent. Consequently, it is concluded that such proposal is concerned with "appropriate arrangements" for employees who would be adversely affected by management's exercise, under section 7106(a)(2), of its right to "layoff" employees in a RIF, which arrangements are within the duty to bargain under section 7106(b)(3) of the Statute. 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 the Union proposal. /2/ 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/ Thus, it is unnecessary to reach the Agency's argument that the proposal is inconsistent with an Agency regulation for which there is a compelling need under the criteria in section 2424.11 of the Authority's Rules and Regulations. /2/ In deciding that the proposal is within the duty to bargain, the Authority makes no judgment as to its merits.