18:0418(58)NG - AFGE Local 12 and Labor -- 1985 FLRAdec NG



[ v18 p418 ]
18:0418(58)NG
The decision of the Authority follows:


 18 FLRA No. 58
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 12
 Union 
 
 and 
 
 DEPARTMENT OF LABOR 
 Agency
 
                                            Case No. 0-NG-494
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Federal Labor
 Relations Authority (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 eight Union proposals
 concerning reduction-in-force (RIF) matters which arose during mid-term
 bargaining.  Upon careful consideration of the entire record, /1/
 including the parties' contentions, the Authority makes the following
 determinations.  /2/
 
                             Union Proposal 1
 
          1.01 EARLY RETIREMENT.  Before announcing RIF's, the Department
       shall implement a program of early retirement and will meet
       individually with employees eligible for optional or involuntary
       retirement to explain its benefits.
 
    In agreement with the Agency, the Authority concludes that this
 proposal requiring the Agency to implement an early retirement program
 when a RIF is contemplated is inconsistent with Federal law.  Thus, it
 is outside the duty to bargain under section 7117(a)(1) of the Statute.
 That is, the authorization for employees to apply for early retirement
 when their agency is undergoing a RIF is established by 5 U.S.C.
 8336(d).  /3/ This section, and its relevant legislative history,
 clearly establish that before an eligible employee may apply for early
 retirement the Office of Personnel Management (OPM) must approve the use
 of this special retirement authorization by determining that the agency
 is undergoing a major RIF.  /4/ Consequently, as the proposal would
 mandate that the Agency implement an early retirement program without
 the prior approval of OPM, it is inconsistent with Federal law and not
 within the duty to bargain.  /5/
 
                             Union Proposal 2
 
          1.02 PERSONNEL ACTIONS.  Before taking RIF action, the
       Department will utilize to the fullest extent various techniques
       to avoid a RIF or to reduce the impact by attrition, including:
 
          Freezing vacancies;
 
          Identifying continuing positions for which the Department faces
       shortages and reassigning career employees to vacant, continuing
       jobs unit-wide;
 
          Hiring only temporary personnel to fill vacancies created by
       reassignment where the work is temporary;
 
          Using voluntary overtime, when possible, to avoid increasing
       the permanent workforce;
 
          Training employees to prepare for reassignment to available
       vacant positions;
 
          Freezing Schedule C positions at the October 1, 1980 level.
 
    Union Proposal 2 would require the Agency to take certain specified
 personnel actions before conducting a RIF.  However, the personnel
 actions involved entail the exercise of various rights reserved to
 management pursuant to section 7106(a) of the Statute or matters which
 are negotiable only at management's election pursuant to section 7106(b)
 of the Statute.
 
    It is well established that pursuant to section 7106(a)(2)(A) of the
 Statute the right to assign an employee to a position includes the
 discretion to determine which employees will be assigned.  See American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980),
 affirmed sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C.
 Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
 Thus, a proposal which divests management of its discretion to assign
 employees is inconsistent with section 7106(a)(2)(A) of the Statute and
 is nonnegotiable.  American Federation of Government Employees, AFL-CIO,
 Local 3529 and Defense Contract Audit Agency, 3 FLRA 301 (1980).  In
 this connection, the portion of Proposal 2 which mandates that
 management reassign career employees to certain vacant positions
 effectively determines which employee will be assigned and is
 inconsistent with management's reserved right to assign employees.
 Similarly, the portion of the proposal which requires management to hire
 only temporary personnel to fill certain vacancies where the work is
 temporary prohibits management from accomplishing the temporary work by
 detailing or reassigning current employees in derogation of its reserved
 right to assign employees.  This portion of the proposal also requires
 management to exercise its right to "hire" pursuant to section
 7106(a)(2)(A) in a specified manner.  In this regard, the right to take
 actions pursuant to section 7106(a) of the Statute includes the right to
 decide not to take such actions.  These portions of the proposal,
 however, obligate management to exercise its reserved rights to "hire"
 and "assign" employees.  Thus, for this additional reason, they are
 outside the duty to bargain.  See National Treasury Employees Union and
 Internal Revenue Service, 2 FLRA 281 (1979) at 283.
 
    It is also well established that the right "to assign work" pursuant
 to section 7106(a)(2)(B) of the Statute includes the right to determine
 the particular duties which will be assigned, /6/ the particular
 employee to whom or position to which the work will be assigned /7/ and
 when work assignments will be accomplished.  /8/
 
    In this respect, the portion of Proposal 2 which would obligate
 management to assign work in an overtime status in lieu of increasing
 the permanent work force involves a determination as to when the work
 will be accomplished as well as of the particular individuals who will
 be assigned to perform it and is, therefore, inconsistent with
 management's right to assign work.  See, e.g., American Federation of
 Government Employees, AFL-CIO, National Joint Council of Food Inspection
 Locals and Department of Agriculture, Food Safety and Quality Service,
 Washington, D.C., 9 FLRA 663 (1980) at 664.
 
    Those portions of the proposal which would require the Agency to
 freeze certain vacancies, i.e., to refrain from filling vacant
 positions, bear no material difference from the proposal which the
 Authority held outside the duty to bargain in National Federation of
 Federal Employees (NFFE) Local 1332 and Headquarters, U.S. Army Materiel
 Development and Readiness Command, Alexandria, Virginia, 3 FLRA 611
 (1980).  In that case, the Authority determined that the proposed freeze
 on hiring from outside sources until personnel actions under the RIF
 were completed concerned a matter negotiable only at the election of the
 Agency since it was directly and integrally related to the statutory
 right of management to determine "numbers, types, and grades of
 employees" assigned pursuant to section 7106(b)(1) of the Statute.
 Thus, for the reasons fully set forth in U.S. Army Materiel Development
 and Readiness Command, those portions of Proposal 2 which would require
 the Agency to freeze vacancies must be held to be negotiable only at the
 election of the Agency.  Since the Agency has elected not to negotiate
 on this matter, these portions of the proposal are not within the duty
 to bargain.
 
    Finally, that portion of the proposal which requires management to
 train employees for available vacant positions concerns both the
 assignment of work pursuant to section 7106(a)(2)(B) of the Statute and
 a determination of the "numbers, types, and grades of employees"
 assigned pursuant to section 7106(b)(1) of the Statute.  Specifically,
 to the extent this portion of the proposal presumes that management will
 fill vacant positions it is integrally related to the statutory right to
 determine "numbers, types, and grades of employees assigned" which is a
 matter negotiable only at the election of the Agency.  See, e.g.,
 National Federation of Federal Employees, Local 1650 and U.S. Forest
 Service, Angeles National Forest, 12 FLRA 611 (1983) (Union Proposal 2).
  In addition, to the extent this portion of the proposal would require
 the Agency to assign training to employees to enable them to prepare for
 reassignment to available vacant positions, it involves the assignment
 of work pursuant to section 7106(a)(2)(B) of the Statute.  American
 Federation of Government Employees, AFL-CIO, Local 1923 and Department
 of Health and Human Services, Social Security Administration, 9 FLRA 899
 (1982).
 
    Consequently, by conditioning management's right to "layoff" /9/
 pursuant to section 7106(a)(2)(A) of the Statute on the prior exercise
 of other management rights in a prescribed manner, the proposal
 interferes with these rights individually and collectively.  See
 American Federation of Government Employees, AFL-CIO, Local 3004 and
 Department of the Air Force, Otis Air Force Base, Massachusetts, 9 FLRA
 723 (1982).  Therefore, the proposal is inconsistent with section
 7106(a)(2)(A) of the Statute and is outside the duty to bargain.  /10/
 
                             Union Proposal 3
 
          1.03 LEAVE WITHOUT PAY.  Employees wishing to take extended
       LWOP will be encouraged to do so.  Upon returning to work, the
       employees may return to the job they left or to a similar job.
       Their job may be filled during the LWOP.
 
    To the extent that this proposal would obligate the Agency to grant
 an employee's request for leave without pay (LWOP) without regard to the
 necessity for the employee's services during the period covered by the
 request it is inconsistent with management's right, pursuant to section
 7106(a)(2)(B), to assign work.  In this regard, the Authority noted, in
 National Treasury Employees Union and Department of the Treasury, Bureau
 of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. National
 Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), that
 the right "to assign work" pursuant to section 7106(a)(2)(B) of the
 Statute "includes the right to assign general continuing duties, to make
 specific periodic work assignments to employees, to determine when such
 assignments will occur and to determine when the work which has been
 assigned will be performed." To the extent that Proposal 3 would have
 the effect of removing management's discretion to deny LWOP it would
 effectively nullify the Agency's ability to determine when assigned work
 will be performed and, thus, violates management's right pursuant to
 section 7106(a)(2)(B) of the Statute "to assign work." See American
 Federation of Government Employees, AFL-CIO, Local 2263 and Department
 of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air
 Force Base, New Mexico, 15 FLRA No. 126 (1984) (Proposal 4).
 
                             Union Proposal 4
 
          1.04 JOB SHARING PLANS.  Before the RIF is conducted,
       management shall make job sharing proposals to Local 12.  As a
       part of these proposals, management shall consider DOL's
       experiment now underway in California.
 
    The Authority concludes that Proposal 4 improperly would place a
 substantive condition (offering job sharing proposals) upon the Agency's
 ability to conduct a RIF.  Hence, this proposal directly interferes with
 the Agency's right to "layoff" employees pursuant to section
 7106(a)(2)(A) of the Statute.  Furthermore, the substance of the
 condition prescribed in the proposal concerns the number of employees
 assigned to an organizational subdivision, work project, or tour of duty
 which is a matter negotiable only at the election of the Agency pursuant
 to section 7106(b)(1) of the Statute.  Specifically in this respect,
 this proposal essentially would require management, as a precondition to
 exercising its statutory right to layoff employees, to propose and
 negotiate over utilizing two or more part-time employees to perform a
 job that was previously performed by one full-time employee.  Thus, by
 its express terms, the proposal falls within the scope of section
 7106(b)(1) of the Statute.  /11/ Consequently, as Proposal 4 directly
 interferes with management's right to "layoff" pursuant to section
 7106(a)(2)(A) of the Statute it is outside the duty to bargain.
 
                             Union Proposal 5
 
          1.05 EMPLOYMENT LEVEL.  Employment levels will not be reduced
       through RIF below the current Congressional authorized ceiling.
 
    This proposal expressly would prohibit the Agency from conducting a
 RIF to reduce its employment level, i.e., the actual number of
 employees, unless such employment level exceeded its current, authorized
 ceiling.  In this regard, however, an agency has a right to layoff
 employees and therefore may seek to reduce employment levels for reasons
 such as a lack of work, a shortage of funds or as a result of a
 reorganization.  See 5 CFR 351.201 (1984 Supp.).  Thus, as this proposal
 would place substantive limits on management's right to "layoff"
 employees pursuant to section 7106(a)(2)(A) of the Statute it is not
 within the duty to bargain.  /12/
 
                             Union Proposal 6
 
          1.06 CONTRACTS.  Management shall immediately freeze and
       suspend all consulting and contracting-out services and shall
       continue such suspension while providing a complete list of
       consultants and service contracting-out from October 1, 1980 to
       the present;  management shall provide Local 12 information
       demonstrating compliance with Article 19 and shall demonstrate
       compliance with revised OMB Circular A-76, particularly the 60-day
       notice provision, when a threshold for capital investment or
       operating costs will be exceeded by proposed expansion,
       modernization or upgrade.
 
    Proposal 6, like the other proposals in this case, was proffered in
 the context of mid-term negotiations wherein the Union sought to
 negotiate various restrictions on the Agency's right to conduct a RIF,
 i.e., to layoff employees.  There is no indication in the record herein
 that the freeze and suspension of all contracting out and consulting
 services required by the proposal was intended as a temporary measure
 only to last until the Agency furnished the information described in the
 proposal to the Union.  Rather, this proposal, in the context of
 negotiations in which it was proposed, is susceptible to the
 interpretation that it was intended to place limitations on the Agency's
 ability to conduct a RIF.  Therefore, in this regard, the Authority
 concludes that Proposal 6, like Proposals 2 and 4 above, also improperly
 would establish a substantive condition (freezing consulting and
 contracting out determinations) upon the Agency's right to "layoff"
 pursuant to section 7106(a)(2)(A) of the Statute.  Furthermore, the
 condition prescribed in Proposal 6, namely, freezing and suspending all
 contracting out, itself, directly interferes with the exercise of
 management's right to make determinations with respect to contracting
 out.  See 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) (Proposal
 1), affirmed sub nom. National Federation of Federal Employees, Local
 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982).  Thus, Proposal 6 herein
 would directly interfere with these management rights, individually and
 collectively, by conditioning the exercise of one upon the exercise of
 the other in the prescribed manner.  Proposal 6, consequently, is
 inconsistent with section 7106(a)(2)(A) of the Statute and outside the
 duty to bargain.
 
                             Union Proposal 7
 
          2.03 DETAILS.  For each person placed on detail, evidence will
       be furnished the Union that these people have position
       descriptions, bona fide personnel papers, noting the beginning and
       ending dates of the detail, and the performance criteria for the
       job.
 
    The Agency contends that Proposal 7 concerns matters relating to
 details which are covered by the parties' agreement and that management
 was proposing no mid-term changes which "go beyond the scope of the
 agreement." In this regard, and as previously stated in this decision,
 (note 2, supra), the Authority will decide only the negotiability issues
 presented under section 7105(a)(2)(E).  Further, to the extent that
 there are factual issues in dispute between the parties concerning the
 duty to bargain, in the specific circumstances of this case, such issues
 should be raised in other appropriate proceedings.  Therefore, since the
 Agency has made no claim that this proposal is inconsistent with law,
 rule or regulation, and no such inconsistency is otherwise apparent, the
 proposal is within the duty to bargain.  /13/
 
                             Union Proposal 8
 
          2.04 RATIO.  An equal portion of supervisory and
       non-supervisory positions will be abolished, and the
       employee-supervisory ratio before the RIF will be maintained
       during and following the RIF consistent with Secretary Notice
       17-65, as amended.
 
    The Authority concludes that Proposal 8 directly interferes with
 management's right to "layoff" employees, pursuant to section
 7106(a)(2)(A) of the Statute.  Specifically, this proposal would have
 the effect of determining the particular positions management would be
 obligated to abolish in a given RIF.  That is, once management decided
 to abolish a number of employee positions it would then be obligated
 under this proposal to abolish a proportionate number of supervisory
 positions.  Thus, by compelling the abolishment of particular positions
 the proposal directly interferes with the Agency's discretion to
 determine which positions will be abolished and which employees to
 layoff pursuant to section 7106(a)(2)(A) of the Statute.  Consequently,
 the proposal is not within the duty to bargain.  See National Treasury
 Employees Union and Internal Revenue Service, 7 FLRA 275 (1981)
 (Proposal 5).
 
    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 7.
  IT IS FURTHER ORDERED that the petition for review as it relates to
 Union Proposals 1, 2, 3, 4, 5, 6 and 8, be, and it hereby is, dismissed.
  Issued, Washington, D.C., June 13, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union did not file a Reply Brief in this case.
 
 
    /2/ The Agency contends that certain proposals or portions of them
 a