19:0224(24)NG - NTEU and DOE -- 1985 FLRAdec NG



[ v19 p224 ]
19:0224(24)NG
The decision of the Authority follows:


 19 FLRA No. 24
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Union
 
 and
 
 DEPARTMENT OF ENERGY
 Agency
 
                                            Case No. O-NG-983
 
                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 following three Union proposals.
 Upon careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Bargaining unit employees distributing union insurance
       brochures as described in Article 8 will do so on official time.
 
    Union Proposal 1 would require the Agency to grant official time to
 bargaining unit employees distributing brochures for a Union-sponsored
 health insurance plan.  The Agency contends that a bargaining unit
 employee must be, or must become, a Union member to enroll in that
 health insurance plan.  As such, the Agency argues that the distribution
 of this material, in effect, violates section 7131(b) of the Statute.
 The Authority agrees with this Agency argument.
 
    Section 7131(b) of the Statute /1/ requires that activities relating
 to the internal business of a labor organization be performed by an
 employee while that employee is in a non-duty status, i.e., not on duty
 time.  Solicitation of membership is an activity which is related to the
 internal business of a labor organization.  /2/ In this regard, the
 Union contends that the primary purpose of distributing the brochure is
 "an attempt by the Union to make all bargaining unit employees aware of
 the benefits available under the Union-sponsored health plan . . .. Any
 'solicitation' of membership which occurs is secondary to the offer of
 federal health insurance coverage." (Union Reply Brief at 2).  However,
 the Authority concludes that, whether incidental or otherwise,
 solicitation of union membership is clearly in violation of section
 7131(b).  Cf. American Federation of Government Employees, Local 1778,
 AFL-CIO and Department of the Air Force Headquarters, 438th Air Base
 Group (MAC), McGuire Air Force Base, 10 FLRA 346 (1982) (wherein the
 Authority determined that although the solicitation of membership was
 only incidental to the performance of activities for which official time
 had properly been granted, such solicitation was nevertheless in
 violation of section 7131(b)).
 
    As to the facts herein, the record indicates that neither bargaining
 unit employees nor other Federal employees are eligible to participate
 in the Union-sponsored health plan unless the employee is or becomes a
 member of the Union.  Therefore, contrary to the Union's assertion, the
 proposal is inapposite to Union Proposal 6 in National Treasury
 Employees Union and Department of the Treasury, Internal Revenue
 Service, 6 FLRA 508 (1981).  The Authority determined, in that case,
 that the distributing of union announcement cards aided in implementing
 the labor-management relationship and was not solely related to the
 institutional structure of the union.  The distribution of the
 announcement cards was found to serve the function of advising or
 reminding members of the bargaining unit that the union was their
 exclusive representative.  Therefore, the distribution of such cards did
 not constitute internal business of the union within the meaning of
 section 7131(b) and, therefore, the proposal was within the duty to
 bargain.  Instead, in the present case, the material to be distributed
 concerns a benefit available only to members of the Union rather than
 all employees in the bargaining unit.  Hence, in the circumstances of
 this case, since Union membership is necessary to participate in the
 Union-sponsored health plan described in the brochure, it is
 solicitation of membership.  Therefore, Union Proposal 1 violates
 section 7131(b) and, thus, is outside the duty to bargain.
 
                             Union Proposal 2
 
          Article 22, Reduction in Force, Part II, Section 5
 
          The filling of any bargaining unit vacancy within the
       competitive area for which bargaining unit employees in that area
       who will be affected by RIF are eligible will be suspended from
       the date of the initial RIF notice to affected employees until the
       effective date of the RIF.
 
    Union Proposal 2 would require that the filling of certain vacant
 bargaining unit positions be suspended from the date a
 reduction-in-force (RIF) notice is received by affected employees until
 the effective date of the RIF action.  In this respect, Union Proposal 2
 is to the same effect as Union Proposal 1 in Association of Civilian
 Technicians, Montana Air Chapter and Department of the Air Force,
 Montana Air National Guard, Headquarters 120th Fighter Interceptor Group
 (ADTAC), 11 FLRA 505 (1983), petition for review filed sub nom.
 Association of Civilian Technicians, Montana Air Chapter v. FLRA, No.
 83-1489 (D.C. Cir. May 5, 1983), which required a temporary hiring
 freeze until all RIF actions were completed, except for internal
 placement.  That decision relied upon the Authority's determination in
 National Federation of Federal Employees (NFFE) Local 1332 and
 Headquarters, U.S. Army Materiel Development and Readiness Command,
 Alexandria, Virginia, 3 FLRA 611 (1981), that a 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 and types of employees under
 section 7106(b)(1) of the Statute.  /3/ Therefore, for the reasons filly
 set forth in U.S. Army Materiel Development and Readiness Command, the
 proposal herein is negotiable only at the election of the Agency.  See
 also American Federation of Government Employees, AFL-CIO, Local 2612
 and Department of the Air Force, Griffiss Air Force Base, New York, 8
 FLRA 429 (1982).  Since the Agency has elected not to negotiate on this
 matter, Union Proposal 2 is not within the duty to bargain.
 
    As to the Union's argument, that, based on the reasoning in American
 Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air
 Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2
 FLRA 152, 155 (1979), 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, 102 S.Ct. 1443 (1982), the proposal
 would only delay management's exercise of its rights under section 7106
 and would not prevent the Agency from acting at all, the Authority finds
 that the Union's contention cannot be sustained.  Union Proposal 2 would
 improperly establish a condition (the effective date of a RIF personnel
 action) upon the Agency's ability to determine the numbers and types of
 employees assigned to an organizational subdivision under section
 7106(b)(1).  Furthermore, the condition described in the proposal would
 itself involve the exercise of management's right under section
 7106(a)(2)(A) to "layoff" employees.  Cf. American Federation of
 Government Employees, Local 1760 and Department of Health and Human
 Services, Social Security Administration, Northeast Program Service
 Center, 9 FLRA 1025 (1982) (proposal 1 would improperly establish a
 condition upon the agency's ability to terminate or demote under section
 7106(a)(2)(A) of the Statute).  Therefore, Union Proposal 2 would
 directly interfere with these management rights, not only individually,
 but also by conditioning the exercise of one right upon the prior
 exercise of the other.  American Federation of Government Employees,
 AFL-CIO, Local 3004 and Department of the Air Force, Otis Air Force
 Base, Massachusetts, 9 FLRA 723 (1982).  Hence, for all the reasons
 stated above, the proposal here in dispute is not within the duty to
 bargain.  /4/
 
                             Union Proposal 3
 
          Article 22, Reduction in Force, Part II
 
          Section 1
 
          A reduction in force (RIF) is the release of an employee from
       his competitive level by separation, demotion, furlough for more
       than thirty (30) days, or reassignment requiring displacement
       because of a lack of work or funds, reorganization,
       reclassification due to change in duties, or the need to make a
       place for an employee exercising reemployment or restoration
       rights.
 
          Section 6
 
          A. The Employer will establish competitive levels in accordance
       with applicable laws and regulations.  Competitive levels will
       consist of all positions in a competitive area in the same grade
       or occupational level which are sufficiently alike in
       qualification requirements, duties, responsibilities, pay
       schedules, and working conditions, so that the incumbent of any
       one position can be moved interchangeably to any other position
       without changing the terms of his appointment or unduly
       interrupting the work program.
 
          B.  Undue interruption is defined as a degree of interruption
       that would prevent the completion of required work within the
       allowable limits of time and quality.  Depending upon the
       pressures of priorities, deadlines, and other demands, the
       ordinary work program probably would not be unduly interrupted if
       the optimum quality and quantity of work were not regained within
       90 days after a reduction in force.  Lower priority programs might
       tolerate even longer interruption.
 
          Section 9
 
          A. Within each competitive level, employees in the competitive
       service shall be divided into tenure groups as follows:
 
          1.  Group I includes employees under career appointments who
       are not serving probation.
 
          2.  Group II includes employees serving probation,
       career-conditional employees, and career employees in obligated
       positions.
 
          3.  Group III includes indefinite employees, employees under
       temporary appointments pending establishment of registers,
       employees under term appointment, employees in status quo, and
       employees under any other nonstatus nontemporary appointments.
 
          B.  Within each tenure group, employees shall be divided into
       three subgroups as follows:
 
          1.  Subgroup AD includes veterans preference eligibles with
       compensable service connected disabilities of 30 percent or more.
 
          2.  Subgroup A includes veterans preference, eligibles.
 
          3.  Subgroup B includes nonpreference eligibles.
 
          Section 10
 
          A. When it appears that a reduction in force action may be
       necessary, the Employer shall prepare a retention register for
       each affected competitive level within the appropriate competitive
       area(s).  The register shall contain the names of employees within
       the competitive level first by tenure group and then by subgroup.
 
          B.  Within a subgroup, employees are listed in the order of
       their retention standing in relation to each other as reflected by
       their service computation date.
 
          C. The official performance appraisals of record will be
       reviewed to determine additional years of service for RIF
       purposes.  The following scale will be used to determine
       additional years of creditable service:
 
                            Outstanding 4 years
 
                                .  .  .  .
 
          D.  The Employer will not release a competing employee from a
       competitive level while retaining in the level an employee who
       has:
 
          1.  A specifically limited temporary appointment or promotion;
 
          2.  A specifically limited term appointment or promotion;
 
          3.  Received a written decision of removal or reduction in
       grade based on unacceptable performance as defined at 5 U.S.C.
       4302;
 
          4.  Lower retention standing, except in those exception
       situations where management actions are mandated or authorized
       under 5 CFR 351.601.
 
          G.  The retention standing for all employees on detail will be
       based on the employees' permanent positions.
 
          Section 11
 
          A. When it becomes necessary to release employees from a
       competitive level, non-competing employees as defined by OPM
       regulations shall be released first.  After all employees who are
       not competing are eliminated, the employee shall select competing
       employees for release in the inverse order of their retention
       standing beginning with the lowest;  i.e., all employees in Group
       III are selected for release before any in Group II, and all
       employees in Group II are release before any in Group I.  Within
       each Group, all employees in subgroup B are released before any in
       subgroup A, and all employees in subgroup A are released before
       any in subgroup AD.
 
          B.  Exceptions to the foregoing shall be made in the cases of
       employees restored to duty after military duty as follows:
 
          1.  veterans preference eligibles in Group I or II who are
       entitled to be retained in one year after restoration shall be
       retained over other employees in their subgroups until the end of
       the one year period.
 
          2.  nonpreference eligibles who are entitled to be retained for
       either six months or one year after restoration to duty shall be
       retained over other employees in their subgroups until expiration
       of the retention period.
 
          3.  when the deviations from the regular order of selection
       provided for in 1 or 2 above are made, the reasons for the
       deviations shall be recorded on the retention register for
       inspection by the Union and employees.
 
          D.  Competing employees may be permitted to displace employees
       with lower standing in the same subgroup when equally reasonable
       assignments cannot be made by displacing employees in lower
       subgroups and the assignment will result in a higher
       representative rate than otherwise possible.
 
          Section 12
 
          A. When the Employer selects an employee for release from his
       competitive level it shall:
 
          1.  assign him with his consent to a position for which he is
       qualified which will last at least three (3) months;  or
 
          2.  furlough him;  or
 
          3.  separate him.
 
          B.  When a Group I or II employee has been selected for release
       from his competitive level, the Employer shall offer to assign him
       to a position for which he is qualified in another competitive
       level in his competitive area which requires no reduction, or the
       least possible reduction, in representative pay rate when a
       position in the other competitive level is held by an employee:
 
          1.  in a lower subgroup;
 
          2.  with lower retention standing in the same subgroup in a
       position from which or through which the Group I or II employee
       was promoted, or an essentially identical position.
 
          C. An employee is entitled to only one offer of assignment and
       the Employer shall select which of the two or more positions with
       the same representative rate it wishes to offer.  An employee is
       entitled to no further offers when:
 
          1.  he accepts an offer;  or
 
          2.  he rejects an offer;  or
 
          3.  he fails to reply to an offer within a reasonable time.
 
          Section 13
 
          B.  The specific notice must contain the following information:
 
          1.  the action to be taken and the effective date;
 
          2.  salary retention information;
 
          3.  competitive area;
 
          4.  competitive level;
 
          5.  group subgroup;
 
          6.  service computation date;
 
          7.  location of retention registers and other records pertinent
       to the RIF;
 
          8.  reason for any permanent or temporary exception for more
       than 30 days in the release of any individual lower on the
       retention register than the addressee;
 
          9.  appeal rights;
 
          10.  reemployment rights;  and
 
          11.  any other information required by law and regulations.
 
    As explained by the Union, Union Proposal 3 would require the Agency
 to incorporate government-wide regulations concerning reduction-in-force
 procedures into the collective bargaining agreement so that the
 regulations would be enforced as a matter of contract.  The Agency
 contends that this proposal is outside the duty to bargain based on 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) (Union
 Proposal 1), affirmed sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d 886
 (D.C. Cir. 1982).  The Authority agrees with the Agency's contention.
 
    In this regard, the Authority determined in Homestead Air Force Base
 that a proposal involving the exercise of management's right to contract
 out under section 7106(a)(2)(B) was outside the duty to bargain.  In
 response to the argument of the union therein that the proposal merely
 reiterated restrictions contained in OMB Circular A-76, the Authority
 stated that the incorporation of specific contractual terms concerning
 contracting out arguably paralleling provisions of an OMB Circular would
 require management to comply with those terms, regardless of whether OMB
 subsequently revised or eliminated the directives/circulars from which
 they were taken.  Thus, the proposal there would have imposed an
 independent contractual requirement upon management's discretion with
 respect to contracting out and hence interfered with management's rights
 under the Statute in that regard.
 
    The Union argues that 5 U.S.C. 7116(a)(7), which makes it an unfair
 labor practice for an agency "to enforce any rule or regulation . . .
 which is in conflict with any applicable collective bargaining agreement
 if the agreement was in effect before the date the rule or regulation
 was prescribed", acknowledges that the "parties could negotiate based on
 existing regulations and thereby estop an agency from acting in variance
 from the regulations even after differing regulations had been
 promulgated." (Union Reply Brief at 7).  However, the Union's argument
 does not alter the fact that negotiation over subjects which concern the
 exercise of management's rights is precluded under the Statute
 regardless of whether such subjects are addressed in regulation.  Hence,
 for the reasons stated in Homestead Air Force Base, Union Proposal 3 is
 outside the duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review as to Union
 Proposals 1, 2, and 3 be, and it hereby is, dismissed.  Issued,
 Washington, D.C., July 22, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                                       Case No. 19 FLRA No. 24 (O-NG-983)
 
                      SUPPLEMENTAL DECISION AND ORDER
 
    On July 22, 1985, the Authority issued its decision in the
 above-entitled case finding, among other things, that Union Proposal 2
 was not within the duty to bargain based on the Authority's
 determination as to Proposal 1 in Association of Civilian Technicians,
 Montana Air Chapter and Department of the Air Force, Montana Air
 National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 11
 FLRA 505 (1983).
 
    During the pendency of the Authority's consideration of this case,
 the U.S. Court of Appeals for the District of Columbia Circuit reversed
 and remanded Proposal 1 in Montana Air National Guard to the Authority.
 Association of Civilian Technicians, Montana Air Chapter v. FLRA, 756
 F.2d 172 (D.C. Cir. 1985).  Hence, the Authority is reopening this case,
 19 FLRA No. 24, to reconsider its decision as to Proposal 2.
 
    Accordingly, IT IS ORDERED that the Authority's decision as to
 Proposal 2 be, and it hereby is, vacated.  For the Authority.  Issued,
 Washington, D.C., August 6, 1985
                                       Harold D. Kessler
                                       Managing Director for Case
                                       Processing
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7131(b) provides as follows:
 
          Sec. 7131.  Official time
 
                                .  .  .  .
 
          (b) Any activities performed by any employee relating to the
       internal business of a labor organization (including the
       solicitation of membership, elections of labor organization
       officials, and collection of dues) shall be performed during the
       time the employee is in a non-duty status.
 
 
    /2/ See American Federation of Government Employees, AFL-CIO, Local
 2823 and Veterans Administration Regional Office, Cleveland, Ohio, 2
 FLRA 4 (1979).
 
 
    /3/ Section 7106(b) provides, in relevant part, as follows:
 
          Sec. 7106.  Management rights