18:0213(28)CA - Army, Army Corps of Engineers, Detroit District and AFGE Local 2130 -- 1985 FLRAdec CA



[ v18 p213 ]
18:0213(28)CA
The decision of the Authority follows:


 18 FLRA No. 28
 
 DEPARTMENT OF THE ARMY 
 U.S. ARMY CORPS OF ENGINEERS 
 DETROIT DISTRICT 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2130, AFL-CIO 
 Charging Party
 
                                            Case No. 5-CA-20218
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed.  The General Counsel and the Charging
 Party filed exceptions to the Judge's Decision, and the Respondent filed
 an opposition thereto.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order, as modified herein.
 
    Regarding the proposal at issue, which pertains to the competitive
 area to be used by the Respondent in effectuating a reduction-in-force,
 applicable regulations of the Office of Personnel Management (OPM),
 codified at 5 CFR 351.402, provide in relevant part as follows:
 
          Sec. 351.402 Competitive area.
 
          (a) Each agency shall establish competitive areas in which
       employees compete for retention under this part.
 
          (b) A competitive area may consist of all or part of an agency
       . . . . In the field, the minimum competitive area is an activity
       under separate administration within the local commuting area.  A
       competitive area must be defined solely in terms of an agency's
       organizational unit(s) and geographical location, and it must
       include all employees within the competitive area so defined.
 
 Consistent with the Judge's findings, and as supported by the record,
 the Charging Party's proposed competitive area was coextensive with the
 Charging Party's bargaining units.  In this connection, as argued by the
 Respondent before the Judge and here before the Authority, the proposed
 competitive area conflicts with the above-cited provisions of OPM
 regulations because it would not encompass all of the employees in the
 Respondent's organizational units and geographic locations, i.e., it
 would exclude certain persons employed in the same organizational
 subdivision and geographic locations as the unit employees, solely on
 the basis that they are not included in the units.  Accordingly, the
 proposal is outside the duty to bargain because it conflicts with a
 Government-wide regulation within the meaning of section 7117(a)(1) of
 the Statute, /1/ as alleged by the Respondent, and the Respondent
 therefore did not violate section 7116(a)(1) and (5) of the Statute by
 failing and refusing to bargain concerning the proposal.  /2/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 5-CA-20218 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., May 24, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    William M. Petty
    For Respondent
 
    Kevin M. Grile
    For Charging Party
 
    Claire Morrison, Esq.
    For General Counsel
 
    Before:  SAMUEL A. CHAITOVITZ, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding arising under the Federal Service
 Labor-Management Relations Statute, Chapter 71 of Title 5 of the
 U.S.Code, 5 U.S.C. 7101 et seq., 92 Stat. 1191 (hereinafter referred to
 as the Statute), and the Rules and Regulations of the Federal Labor
 Relations Authority (FLRA), 5 C.F.R.Chapter XIV, Sec. 2410 et seq.
 
    Pursuant to a charge filed on June 1, 1982 and amended on February 2,
 1983, by American Federation of Government Employees, Local 2130,
 AFL-CIO (hereinafter called AFGE Local 2130 or the Union) against the
 Department of the Army, U.S. Army Corps of Engineers, Detroit District
 (hereinafter called Respondent or COE Detroit DISTRICT), the General
 Counsel of the FLRA by the Director of Region 5, issued a Complaint and
 Notice of Hearing on February 17, 1983.  The Complaint alleges that
 Respondent violated Sections 7116(a)(1) and (5) of the Statute by
 failing and refusing since February 11, 1982 to negotiate with AFGE
 Local 2130 concerning the establishment of competitive areas to be
 utilized in reductions in force (RIF) actions.  COE Detroit District
 filed an Answer denying that it had violated the Statute.
 
    A hearing in this matter was conducted before the undersigned in
 Detroit, Michigan.  The General Counsel of the FLRA, the Respondent and
 AFGE Local 2130 were represented and afforded full opportunity to be
 heard, to examine and cross-examine witnesses, to introduce evidence and
 to argue orally.  The parties entered into extensive stipulations.  Post
 hearing briefs have been filed and have been fully considered.
 
    Based upon the entire record /3/ in this matter, my observation of
 the witnesses and their demeanor, and from my evaluation of the
 evidence, I make the following:
 
                             Findings of Fact
 
    At all times material herein Respondent has operated facilities at
 Detroit, Michigan known as the U.S. Army Corps of Engineers, Detroit
 District, hereinafter called the Detroit District and George Evans has
 occupied the position of Detroit District's Chief of Management-Employee
 Relations, and is an agent of Respondent.
 
    The Detroit District encompasses employees in the Detroit
 Metropolitan area (within a 200 mile radius of Detroit), Sault Ste.
 Marie, Michigan;  Fox River and Kewaunee, Wisconsin;  and Duluth,
 Minnesota.
 
    At all times relevant herein AFGE Local 2130 has been recognized as
 the exclusive representative for the following four units within the
 Detroit District:  (a) All eligible nonsupervisory employees of the
 floating plant of the Detroit District except those employees of the
 floating plant assigned to or under the operational control of the Sault
 Ste. Marie, Michigan Area Office, the Fox River, Wisconsin Project
 Office, the Kewaunee, Wisconsin Project Office, and the Area Office at
 Duluth, Minnesota;  (b) all eligible nonsupervisory employees of the
 Detroit Boatyard;  (c) all eligible nonsupervisory nonprofessional
 employees of the Construction-Operations Division, U.S. Army Engineer
 District, Detroit, located at Project Offices, Field Offices, and their
 sub-offices, except for those employees assigned to or under the
 operational control of the Sault Ste. Marie, Michigan Area Office, the
 Fox River, Wisconsin Project Office, and the Kewaunee, Wisconsin Project
 Office;  and (d) all eligible nonsupervisory, nonprofessional employees
 of the Detroit District Office in Detroit, Michigan.  Each has the usual
 exclusions.
 
    At all times relevant herein, the following other unions have been
 recognized as the exclusive representative for the unit within the
 Detroit District of the U.S. Army Corps of Engineers described as
 follows:  (a) AFGE Local 830 represents a unit of all nonprofessional
 employees of the Area Office at Sault Ste. Marie, Michigan, excluding
 supervisors and the other customary exclusions;  (b) AFGE Local 660
 represents a unit of all nonprofessional employees assigned to or under
 the operational control of the Fox River, Wisconsin Project Office,
 excluding supervisors and the other customary exclusions;  (c) AFGE
 Local 2882 represents a unit of all nonprofessional employees assigned
 to or under the operational control of the Kewaunee, Wisconsin Project
 Office, excluding supervisors and the other customary exclusions;  and
 (d) AFGE Local 2626 represents a unit of all employees serving aboard
 the floating plant assigned to the Area Office at Duluth, Minnesota,
 excluding supervisors and the other customary exclusions.
 
    The four units for which AFGE Local 2130 is the exclusive
 representative cover employees in the Metropolitan Detroit Area and
 approximately 200 miles beyond.
 
    The Detroit District had four RIFs between 1975 and 1981 and in all
 of these the competitive area was the Detroit District.  Further, this
 district wide competitive area has been set forth in the Respondent's
 Personnel Regulations at least as far back as May 30, 1978.  /4/
 
    Melborn Pelton, Jr. has been the President of AFGE Local 2130 for
 about eight years.  Pelton testified that he was aware of only one prior
 RIF, presumably the one in 1975.  Further Pelton was unaware of the
 competitive area used in any RIF prior to 1982.  The 1975 RIF affected
 employees represented by AFGE Local 2130.  None of the other three prior
 RIFs involved employees who worked within the units represented by AFGE
 Local 2130.  Further, the Detroit District in 1975 was not composed of
 exactly the same geographic area as it was in 1982.
 
    In January 1982 AFGE Local 2130 President Pelton was informed by
 James MacKenzie, Detroit District Personnel Officer, that a RIF was to
 occur within the Detroit District and that notices to employees might
 have to be issued as early as February 1, 1982.  Pelton asked to bargain
 about the impact of the RIF.
 
    On February 11, 1982 the representatives of the Detroit District and
 AFGE Local 2130 met to negotiate concerning the RIF.  AFGE Local 2130
 presented 12 proposals, including one involving the competitive area.
 /5/ The Detroit District submitted 11 counter proposals, including one
 involving the competitive area.  /6/ The parties reached agreement on
 all but two proposals, one concerning the competitive area.
 Respondent's agent George Evans took the position that the Detroit
 District could not negotiate concerning the competitive area and that it
 had to insist upon its counter proposal.
 
    The parties met again on May 4 and 5, 1982 and discussed the
 impending RIF.  The parties reached agreement on one of the two issues
 that had not been agreed to at the February 11 meeting.  The parties did
 not reach agreement as to competitive area.  Detroit District's
 representatives reiterated its position that the competitive area was
 not negotiable because it had already been determined to be
 district-wide and that it had been determined by the Office of the Corps
 of Engineers in Washington, D.C.  /7/
 
    There were no further negotiating sessions after May 5, 1982 and at
 no time subsequent to May 5 did the parties negotiate about or agree to
 the competitive area.
 
    As part of the RIF procedure Respondent abolished 103 positions.  On
 or about March 29, 1982 RIF notices were issued to 109 employees
 affected by the RIF.  Sixty-eight of the employees were affected because
 their positions were being abolished, approximately 16 were in units
 represented by AFGE Local 2130.  The remaining 41 employees were
 affected because they were subject to displacement by other employees
 with higher retention standings.  The March 29, 1982 RIF notices had an
 effective date of June 11, 1982 for separations and June 13, 1982 for
 position changes.  By letters dated June 11, 1982, the effective date
 for separations was extended to September 4, 1982 and for position
 changes to September 5, 1982.  From the original 109 RIF notices issued
 on March 29, 1982, 33 employees were separated from the Federal Service
 on September 4, 1982.  Three of these latter employees had been in units
 represented by Local 2130.
 
                     Discussion and Conclusions of Law
 
    The Complaint alleges that Respondent violated Sections 7116(a)(1)
 and (5) of the Statute by the following conduct:
 
    "Commencing on or about February 11, 1982, and continuing to date, at
 the Activity, Respondent, by George D. Evans, has failed and refused to
 negotiate with the Union concerning the establishment of competitive
 areas to be utilized in reductions in force actions and has conducted
 reductions in force without having negotiated with the Union as to the
 competitive areas thereof."
 
    In the instant case AFGE Local 2130 upon being notified in January
 1982 of the intended RIF asked to bargain about the impact and
 procedures for implementing the RIF and submitted 12 proposals,
 including one stating that the competitive area for the RIF should be
 the combined area represented by AFGE Local 2130.  /8/ The Detroit
 District submitted 11 counter proposals, including one involving the
 competitive area.  The parties reached agreement on all but two
 proposals, one of which concerned the competitive area, with the Detroit
 District contending that it could not negotiate concerning the
 competitive area and it had to insist upon its proposal.  The parties
 met again and reached agreement on one of the two remaining open issues,
 but they did not reach agreement as to the competitive area.  The
 Detroit District reiterated its position that the competitive area was
 not negotiable because it had already been determined to be
 district-wide and that such determination had been made by the Office of
 the Corps of Engineers in Washington, D.C.
 
    The record establishes that there was an existing practice that
 during RIF's the competitive area was district wide.  This competitive
 area had been utilized during four prior RIF's in the Detroit District,
 including at least one that involved units represented by AFGE Local
 2130.  Further this competitive area was set forth in Respondent's
 Personnel Regulations.  In such circumstances AFGE Local 2130 must be
 presumed to have been aware that in RIF situations Respondent used a
 district wide competitive area.
 
    Respondent and the General Counsel of the FLRA, apparently agree that
 if there was an established practice with respect to competitive area,
 Respondent was not obliged to bargain about it.  General Counsel of the
 FLRA argues that there was no such practice.  This position is rejected,
 as discussed above, and it is concluded that there was an established
 practice that in cases of RIF the competitive area was district wide.
 Nevertheless the scope of the competition area is still negotiable.
 Section 7106 of the Statute sets forth, inter alia, a series of
 management rights including the right to determine the "number of
 employees" needed and those who will be assigned to work.  However, this
 section also provides that nothing will preclude the agency from
 negotiating concerning the procedures to observed in exercising its
 authority and arrangements for employees adversely affected.  Thus in
 the case of a RIF, although an agency need not negotiate its
 determination to have a RIF, it is required to negotiate concerning the
 methods for implementing a RIF, including the competitive area and
 bumping rights.  Thus in the instant case Respondent, once it determined
 to institute a RIF, was obliged to negotiate with AFGE Local 2130
 concerning the competitive area.  /9/
 
    The FLRA has recognized that the competitive area in the case of RIFs
 is a condition of employment and is negotiable, see e.g. National
 Treasury Employees Union and Department of Health and Human Services,
 Region IV, 11 FLRA 254 (1983);  and American Federation of Government
 Employees and General Services Administration, 11 FLRA 261 (1983) and
 see also Department of Health and Human Services, Food and Drug
 Administration, Region II, Case No. 2-CA-1162, OALJ-84-05 (1983).  Thus,
 in the instant case, when Respondent determined to institute the RIF in
 question, AFGE Local 2130 was entitled to bargain concerning competitive
 areas, so long as its proposal was not inconsistent with law, rule or
 regulation, /10/ and so long as AFGE Local 2130 had not waived its
 right.
 
    The FLRA has held, " . . . agencies may establish competitive areas
 through negotiation so long as such competitive areas are in conformance
 with standards promulgated by OPM and are not otherwise inconsistent
 with law, rule and regulation . . . ." American Federation of Government
 Employees and General Services Administration, supra at 261.  /11/
 
    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 212 (1982) (hereinafter called the NASA case) the union proposal
 provided that "members of the bargaining unit who are released from
 their competitive levels will be permitted to bump other employees who
 are in the same subgroup in other competitive levels." The FLRA stated
 that while an employer is requested to negotiate with the union
 concerning matters which are conditions of employment of employees in a
 bargaining unit, the duty to bargain does not extend to matters
 concerning employees outside the bargaining unit.  Thus an employer is
 not obliged to bargain concerning a proposal that would prescribe the
 rights of employees outside the bargaining unit.  The FLRA concluded
 "the necessary effect of the proposal in these circumstances would be to
 require the Agency to bargain over matters concerning positions and
 employees outside the bargaining unit . . . such matters are not within
 the duty to bargain." id at 216.  In Service Employees' International
 Union, AFL-CIO, Local 556 and Department of the Army, Office of the
 Adjutant General, Hale Koa Hotel, Honolulu, Hawaii, 9 FLRA 687 (1982)
 (hereinafter called the Hale Koa Hotel case), the union proposed the
 establishment of a competitive area for RIF purposes which included
 bargaining unit employees and employees in another unit of exclusive
 representation.  The FLRA concluded that the proposal was non-negotiable
 because the proposal determined the condition of employment of non-unit
 employees.  Under the proposal unit employees would be given rights to
 non-unit positions, and non-unit employees could be displaced from their
 employment.
 
    The General Counsel of the FLRA contends that the NASA case, supra,
 and the Hale Koa Hotel case, supra, are distinguishable from the subject
 case because they were attempts by the unions to directly affect the
 conditions of employment of non-unit employees.  It is urged that the
 proposal in the instant case is restricted solely to employees
 represented by AFGE Local 2130 and the only effect would be to exclude
 non-unit employees from this competitive area.  This latter effect is
 presumably too indirect to bar negotiability.
 
    General Counsel of the FLRA further relies upon National Treasury
 Employees Union and Department of Health and Human Services, Region IV,
 supra;  and National Treasury Employees Union and Department of Health
 and Human Services, Region II, 11 FLRA 266 (1983), in which the FLRA
 found the Union's proposals concerning competitive area to be
 negotiable.  These cases deal almost exclusively with a defense that
 there was a compelling need for a uniform agency rule or regulation.  In
 rejecting this defense and finding the proposals negotiable the FLRA
 does not discuss or make any findings of fact whether the proposals
 would have any effect upon either unrepresented employees or employees
 in units not represented by NTEU.
 
    Although the argument of the General Counsel of the FLRA that the
 union's right to bargain about a competitive area may be somewhat
 illusory is appealing because almost any such proposal will have some
 effect upon employees not represented by AFGE Local 2130, I am
 constrained to conclude that the NASA case, supra, and Hale Koa Hotel
 case, supra, govern the subject case.  Thus, the competitive area
 proposed by AFGE Local 2130 would, in effect, prohibit non-unit
 employees from bumping into jobs within the four-units represented by
 AFGE Local 2130.  The Union proposal would, therefore, in RIF situations
 affect the rights of employees outside the units represented by the
 Union.  Because this proposal would determine rights of employees
 outside the bargaining units, it is nonnegotiable and does not impose a
 bargaining obligation upon Respondent.  In so holding I agree with the
 analysis of the Administrative Law Judge in Department of Health and
 Human Services, Food and Drug Administration, Region II, supra.
 Accordingly, I conclude that Respondent has not refused to bargain in
 violation of Sections 7116(a)(1) and (5) of the Statute.
 
    Having concluded that Respondent did not violate Sections 7116(a)(1)
 and (5) of the Statute it is recommended the Authority adopt the
 following order:
 
                                   ORDER
 
    It is hereby ordered that the Complaint herein be, and the same
 hereby is, dismissed.
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  February 14, 1984
 
    Washington, DC
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 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, 215 n. 6 (1982).
 
 
    /2/ Regarding the Judge's basis for concluding that the proposal is
 outside the duty to bargain, see American Federation of Government
 Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA
 No. 98 (1984), n. 2 and accompanying text.
 
 
    /3/ The transcript is corrected as follows:
 
          (From the first day of hearing)
 
          Page 46, line 6, from concluded to precluded
 
          Page 48, line 15, from A.F.G. to A.F.G.E.
 
          Page 52, line 4, from Petty to Grile
 
          Page 52, line 7, from Petty to Grile
 
          Page 52, line 19, from Petty to Grile
 
          Page 53, line 1, from Petty to Grile
 
          Page 53, line 5, from Petty to Grile
 
          Page 53, line 14, from Petty to Grile
 
          Page 54, line 12, from Petty to Grile
 
          Page 54, line 14, from Answers to answer
 
          Page 54, line 15, from client to complaint
 
          Page 56, line 22, from was a meeting to was not a meeting
 
          Page 62, line 11, from headquartered to headquarters
 
          (From the second day of hearing)
 
          Page 34, line 22, from I believe to I don't believe
 
          Page 97, line 24, from X party to ex parte
 
 
    /4/ The regulations speak in terms of FOA (Field Operating Activity),
 the equivalent of a district.
 
 
    /5/ The Union requested that the competitive area be the combined
 area of the four units represented by AFGE Local 2130.
 
 
    /6/ The Detroit District's counter proposal stated that the
 competitive area shall be the entire Detroit District.
 
 
    /7/ In finding that the Detroit District had taken the position that
 the competitive area would be district-wide and that such determination
 was non-negotiable I credit the testimony of Pelton and, in this
 respect, I do not credit Respondent's witnesses.  I find that Pelton's
 version is more consistent with the surrounding facts and circumstances.
  In this regard I note that the Respondent's regulations provided for a
 District-wide competitive area, that such competitive area had been in
 effect during past RIFs, that Respondent had advised other unions
 involved that the competitive area would be district wide and that the
 RIF was imminent.  In these circumstances I find Pelton's version is
 reasonable and credible.  I do not credit the version, as described by
 Respondent's witnesses, because I find it highly unlikely that, in the
 aforegoing described circumstances, Respondent's representatives would
 negotiate concerning the scope of the competitive area, were open to
 suggestions and were willing to listen to and consider alternative
 proposals concerning the competitive area.
 
 
    /8/ A competitive area is defined in 5 CFR 351.402.  The term refers
 to the part of an agency within which an employee, who occupies an
 abolished position, may compete with other employees to determine which
 one shall be retained in the agency.  The area may be described in
 organizational and geographic terms.  Typically, the competitive area
 includes a part of an agency wherein employees are assigned under a
 single administrative authority.  Under 351.402(c) and (d) smaller and
 larger areas than the standard may be established.
 
 
    /9/ Since the competitive area is a condition of employment,
 Respondent is required to negotiate concerning it, even if no RIF were
 imminent.  However in the absence of an impending RIF, since there would
 be no imminent change, the negotiability determination concerning
 competitive area would be resolved by the negotiability procedures of
 the Statute.
 
 
    /10/ National Treasury Employees Union and Department of Health and
 Human Services, Region IV, supra.
 
 
    /11/ This reference by the FLRA to "rule and regulation" necessarily
 refers to some government wide rule and regulation and not an agency's
 own rule and regulation.  This must be so because the FLRA cited in
 support of its holding, National Treasury Employees Union and Department
 of Health and Human Services, Region IV, supra, in which it found the
 union proposals concerning competitive area negotiable, even thou