16:0807(111)NG - NFFE Local 108 and Agriculture, Farmers Home Administration -- 1984 FLRAdec NG



[ v16 p807 ]
16:0807(111)NG
The decision of the Authority follows:


 16 FLRA No. 111
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 108
 Union
 
 and
 
 U.S. DEPARTMENT OF AGRICULTURE,
 FARMERS HOME ADMINISTRATION
 Agency
 
                                            Case No. 0-NG-785
 
                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 raises issues
 relating to the negotiability of two Union proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
    Article 25.3
 
          UNION REPRESENTATION & RETENTION REGISTER
 
          The Union will name a representative and an alternate to assist
       in formulation of the Retention Registers during the life of the
       RIF.  The representative's duty station will be within the
       commuting area of Little Rock.  In the event the alternate is
       outside the Little Rock area, the Employer agrees to pay travel
       and per diem only for that person.
 
          The named representatives will be temporarily relieved from
       their work assignments in order to assist in formulation of the
       Retention Registers.  The representatives' Performance Appraisal
       will not in any way be affected by the time spent working with the
       Employer.
 
          The representative and the Employer will formulate the
       Retention Registers to insure that error or omission will be
       corrected immediately.  (Only the underlined portions of the
       proposal are in dispute.)
 
    Union Proposal 1, in effect, would require Union participation in the
 formulation of the retention register.  The formulation of the retention
 register determines the relative standing of competing employees for
 reduction-in-force purposes.  /2/ In this respect, an employee's
 standing on the retention register determines which employees are to be
 retained when an agency must conduct a RIF, i.e., 5 CFR 351.
 
    In agreement with the Agency, the Authority concludes that the
 portions of Union Proposal 1 in dispute and addressed by the parties
 interfere with management's right to layoff employees under section
 7106(a)(2)(A) of the Statute.  /3/ The Authority has consistently held
 that the management rights enumerated in section 7106 include more than
 merely the right to decide to take the final actions specified.
 Instead, it also encompasses the right to take certain actions integral
 to the exercise of management's rights, such as to discuss and
 deliberate concerning the relevant factors upon which such a
 determination will be made.  In this regard, in National Federation of
 Federal Employees, Local 1431 and Veterans Administration Medical
 Center, East Orange, New Jersey, 9 FLRA 998 (1982), the Authority, based
 upon the reasoning in National Federation of Federal Employees, Local
 1167 and Department of the Air Force, Headquarters, 31st Combat Support
 Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981),
 enforced sub non. National Federation of Federal Employees v. FLRA, 681
 F.2d 886 (D.C. Cir. 1982), relevantly held that a proposal requiring
 union representation on a Professional Standards Board and a Position
 Management Committee would allow the union to interject itself into the
 decisionmaking process, thereby interfering with management's rights
 under section 7106 of the Statute.
 
    In the present case, the Union contends that the formulation of the
 retention register is a mechanical process and that its participation
 would be solely for the purpose of detecting errors or omissions.
 However, the Authority concludes that the formulation of the retention
 register necessarily involves the exercise of managerial judgment in
 applying relevant regulations to implement management's decision to
 layoff employees.  In this respect, the proposal would allow the Union
 to participate in the determination of the relative standing of
 competing employees and hence to participate in the determination of
 which employees are to be retained in the event of a RIF.  Thus, the
 proposal herein would include the Union in the decision-making process
 and therefore interferes with management's right to layoff employees
 under section 7106(a)(2)(A) of the Statute.
 
                             Union Proposal 2
 
          An employee who does not accept or declines an offer must do so
       within 14 days of the issuance of the specific Reduction in Force
       Notice and will be separated through the RIF procedures.  The
       Specific Notice of RIF will be thirty (30) days and may not be
       extended.  (Only the underlined portion of the proposal is in
       dispute.)
 
    Contrary to the Agency's contention, Union Proposal 2 does not
 interfere with management's right to layoff and retain employees under
 section 7106(a)(2)(A).  The proposal requires that a specific notice of
 reduction-in-force be 30 days and may not be extended.  Thus, the
 proposal herein is a procedure which would not prevent the Agency from
 acting at all to layoff and/or retain employees.  /4/ See American
 Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air
 Force Exchange Service, Dix-MGuire Exchange, Fort Dix, New Jersey, 2
 FLRA 152 (1979), enforces sub nom. Department of Defense v. FLRA, 659
 F.2d 1140 (D.C. Cir. 1981), cert. denied sub non. AFGE v. FLRA, 455 U.S.
 945 (1982).
 
    The Agency additionally contends that in certain emergency situations
 where the notice period had expired the proposal would place the Agency
 in the position of violating the provision of the Anti-Deficiency Act,
 31 U.S.C. 1341, which prohibits the expenditure or obligation of funds
 that have not been appropriated.  However, the Union states that its
 proposal is not intended to supercede 5 CFR 351.805 which states that an
 action taken by an agency after the date stated in the specific notice
 will not generally be invalid for that reason.  Thus, the Union concedes
 that under the regulation the Agency would have the authority to take
 action beyond the 30 day notice period of the proposal in emergency
 situations.  In light of this interpretation, which the Authority adopts
 for purposes of this decision, the Authority finds that the proposal
 does not violate applicable law and regulation.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as to
 Union Proposal 1, be, and it hereby is, dismissed.  Furthermore, IT IS
 ORDERED that the Agency shall upon request (or as otherwise agreed to by
 the parties) bargain concerning Union Proposal 2.  /5/
 
    Issued, Washington, D.C., December 13, 1984
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       /s/ Ronald W. Haughton
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its response to the Agency's Statement of Position, the Union
 withdrew its petition for review as to part of one proposal.
 
 
    /2/ For a discussion of reduction-in-force, 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).
 
 
    /3/ Section 7106 of the Statute provides, in relevant part, as
 follows:
 
          Section 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 . . . layoff . . . employees . . . (.)
 
 
    /4/ Section 7106(b)(2) provides:
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from