[ v16 p75 ]
16:0075(18)NG
The decision of the Authority follows:
16 FLRA No. 18
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29
Union
and
DEPARTMENT OF THE ARMY,
U.S. ARMY CORPS OF ENGINEERS,
KANSAS CITY DISTRICT,
KANSAS CITY, MISSOURI
Agency
Case No. O-NG-689
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in 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
concerning the negotiability of the two Union proposals. /1/ Upon
careful consideration of the entire record, including the parties'
contentions, the Authority makes the following determinations. /2/
Union Proposal 1
Management Initiated/Directed Reassignment
Section 1. When management (Employer) determines it is
necessary to reassign employees due to a staffing imbalance, lack
of work, shortage of funds, reorganization, or other reasons, the
Employer will first ask for volunteers from among the qualified
employees within that competitive area and level. If there are
too many volunteers, the employees with the greatest retention
standing will be given the reassignment. If there are two few or
no volunteers, the employees with the least retention standing
shall be given the reassignment.
Union Proposal 1 would require that selection for reassignments be
based on retention standing. That is, where proposed reassignments
attracted a strong degree of volunteer interest, the volunteers with the
greatest retention standing would be reassigned, but where little or no
volunteer interest was evidenced, the employees with the least retention
standing would be reassigned. In this respect, Union Proposal 1 is to
the same effect as Union Proposals IV through VI in American Federation
of Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 610-13 (1980),
enforced sub nom. Department of Defense v. Federal Labor Relations
Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, sub nom. AFGE
v. FLRA, 455 U.S. 945 (1982). In the cited case, the Authority found
the three proposals, requiring that selections for assignments to other
positions be based on seniority, to be inconsistent with the management
right, pursuant to section 7106(a)(2)(A) of the Statute, to assign
employees, because the proposals divested management of the discretion
to designate which particular employee would be reassigned. /3/
Contrary to the Union's contention, Union Proposal 1 is not identical
in coverage and effect to Union Proposal IV in National Treasury
Employees Union and Department of The Treasury, Internal Revenue
Service, 6 FLRA 508 (1981), which the Authority held to be within the
duty to bargain. The cited proposal in the Internal Revenue Service
case dealt exclusively with the reassignment of employees from one
location to another without an accompanying change in duties performed.
While Union Proposal 1, herein, addresses staffing imbalances, it is
also concerned with other causes for reassignment which would result in
changes in the work performed by the affected employees. /4/ Because
Union Proposal 1 would govern reassignments to positions with duties
different from those previously performed, it is distinguishable from
Union Proposal IV in Internal Revenue Service. Hence, for the reasons
stated in Air Force Logistics Command, Union Proposal 1 is not within
the duty to bargain.
Union Proposal 2
Section 3.
The following definition(s) shall apply:
Competitive Area: The geographic area that usually constitutes
one area for employment purposes. It includes any population
center (or two or more neighboring areas) and the surrounding
localities in which people live and reasonably can be expected to
travel in their usual employment.
It appears from the record that Union Proposal 2 is closely related
to the preceding proposal. That is, this proposal is applicable to the
management actions in Union Proposal 1. As previously observed (n. 4,
supra), some of the personnel actions enumerated in the first proposal
require application of reduction-in-force (RIF) procedures. Moreover,
the Union asserts that the definition of competitive area in Union
Proposal 1 is not inconsistent with the definition of that term as set
forth in Office of Personnel Management (OPM) regulations (5 CFR Part
351). Thus it is clear, in addition to any other application, Union
Proposal 2 would govern in a RIF situation.
According to the uncontroverted statement of the Agency, its
currently established competitive area includes "the entire District
(i.e., the District Office, all offices and all field agencies,
including dredges and towboats). Thus the competitive area, as
permitted under OPM regulations, extends beyond the local commuting area
and, in fact, encompasses several states (i.e., Kansas, Missouri, Iowa,
and Nebraska)." The Agency also states, again without contradiction,
that " . . . the competitive area (of the Agency) is composed of
bargaining unit employees and positions and nonbargaining unit employees
and positions." Further, according to the Agency, "Under the union's
proposal, the competitive area would be restricted to the local
commuting area but would still continue to be composed of bargaining
unit employees and positions and nonbargaining unit employees and
positions." /5/
Thus, the record establishes that the instant proposal, by redrawing
the Agency's competitive area, affects the working conditions of
employees outside the bargaining unit. That is, the proposal would
effectively narrow the area of competition in a RIF situation for
nonbargaining unit employees within the redrawn competitive area by
excluding positions outside the local commuting area, and would bar
those nonbargaining unit employees at remote Agency sites from competing
for positions within the local commuting area. The proposal therefore
is to the same effect as the proposal before the Authority in American
Federation of Government Employees, Local 32, AFL-CIO and Office of
Personnel Management, 14 FLRA No. 98 (1984), which sought to establish a
competitive area including both bargaining unit and nonbargaining unit
employees. Noting that the cited proposal would directly determine
conditions of employment of employees not within the bargaining unit,
the Authority held it to be nonnegotiable. Thus, based upon Office of
Personnel Management, and the reasons the cases cited therein, Union
Proposal 2 is not within the Agency's duty to bargain.
As to the Union's contention that the proposal is negotiable because
it would only apply to bargaining unit positions, /6/ it is noted that
the governing OPM RIF regulations, at 5 CFR 351.403, require that each
agency "establish competitive levels consisting of all positions in a
competitive area . . . ." Thus, the OPM regulations, which are
Government-wide, /7/ require uniform treatment of all employees within a
designated competitive area during a RIF. The instant proposal,
however, as explained by the Union, would require that contractual
procedures be applied to employees competing for bargaining unit
positions, but would not apply those procedures when employees compete
in a RIF for positions not within the bargaining unit. Consequently,
Union Proposal 2 is outside the duty to bargain, pursuant to section
7117(a)(1) of the Statute, because it is inconsistent with a
Government-wide regulation.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed. Issued, Washington, D.C., September 26, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Union withdrew its request for review of a third proposal
defining competitive level. Accordingly, that proposal is not
considered here.
/2/ The Union's motion to consolidate this case with Case No.
O-NG-672, involving the same parties, is hereby denied on the basis that
the issues in the two cases are not sufficiently alike to warrant
consolidation.
/3/ The Union's assertion that this proposal constitutes an
alternative to other methods of filling positions is unpersuasive in
that it is at odds with the language of the proposal which is mandatory
in nature and does not, on its face, provide for any alternatives in
making reassignments. In this connection, the Authority has
consistently held that it will not base a negotiability determination on
a union's statement of intent which is inconsistent with the express
language of the disputed proposal. See, e.g., American Federation of
Government Employees, AFL-CIO, Local 2955 and National Guard Bureau,
Office of the Adjutant General, Des Moines, Iowa, 5 FLRA 617 (1981).
/4/ In this connection, it is noted that the events triggering
operation of Union Proposal 1, i.e., lack of work, shortage of funds,
reorganization, are the same that mandate application of
reduction-in-force procedures under Office of Personnel Management
regulations. See 5 CFR 351.201(a). Under these regulations the
employee to be reassigned would be the one with the lowest retention
standing. See 5 CFR 351.602. Thus the proposal which, in certain
circumstances, would require reassignment of the employee with the
highest retention standing is also inconsistent with a Government-wide
regulation and outside the duty to bargain under section 7117(a)(1) of
the Statute. See, 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 212 (1982), n. 6.
/5/ Agency Statement of Position at 7.
/6/ Union Reply Brief at 4.
/7/ National Aeronautics and Space Administration, Headquarters, 8
FLRA 212 (1982), n. 6.