21:0228(31)NG - NFFE, Local 29 and Army, Kansas City District, Corps of Engineers -- 1986 FLRAdec NG
[ v21 p228 ]
The decision of the Authority follows:
21 FLRA No. 31 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Union and DEPARTMENT OF THE ARMY, KANSAS CITY DISTRICT, CORPS OF ENGINEERS Agency Case No. 0-NG-501 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case 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 concerning the negotiability of the following Union proposal. Union Proposal Utilize the reduction-in-force procedures for those employees who express a desire not to transfer with the function, in accordance with FPM 351.3 paragraph 3-5b. The Union's proposal arose in the context of a decision by the Agency to achieve a reduction in its work force by transferring its Accounting, Examination and Disbursing (F&A) function to the Omaha District of the Corps of Engineers. The consolidation would require the abolishment of 29 full-time positions in the Kansas City District and establishment of 15 new full-time positions in the Omaha District. II. Positions of the Parties By its express terms and as explained by the parties, the proposal would require the Agency (Kansas City District, Corps of Engineers) to use reduction-in-force (RIF) procedures where employees choose not to transfer with their function. The proposal would effectively require that where an employee elects not to transfer to the Omaha District, he/she would be subject to RIF procedures within the Kansas City District. The employee would not be terminated at that location by adverse action procedures. Nor would the employee be subjected to RIF procedures in the Omaha District after the transfer of function has been effected, should a RIF then be necessary. The Agency asserts that the proposal is nonnegotiable because it is inconsistent with its rights under section 7106(a)(2)(A) and (C) of the Statute to layoff, retain, reduce, in-grade, assign and select employees. It also contends that the proposal conflicts with Government-wide rules and regulations and would determine conditions of employment for nonbargaining unit employees. The Union maintains that the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute for employees adversely affected by management's action in instituting the transfer of function as well as a procedure within the meaning of section 7106(b)(2) and, as such, is within the duty to bargain. It disputes the Agency's assertion that the proposal would determine conditions of employment for nonunit employees, contending that the proposal would be limited to unit employees. The Union also disputes the Agency's assertion that a conflict exists between the proposal and applicable Government-wide regulations. III. Analysis A. Government-wide Rule or Regulation The Government-wide rules and regulations referenced by the parties are issued by the Office of Personnel Management (OPM) and are set forth at 5 CFR Part 351 and Chapter 351 of the Federal Personnel Manual. The parties do not dispute that these authorities constitute Government-wide rules and regulations within the meaning of the Statute. Under authority vested in OPM pursuant to 5 U.S.C. 3502, the provisions of 5 CFR Part 351 prescribe a system for reduction-in-force and transfer of function. Those provisions are generally applicable, with minor exceptions not relevant to this dispute, to employees in the executive branch of the Federal government. 5 CFR 351.202. Agencies are responsible for following and applying the regulations. 5 CFR 351.204. Chapter 351 of the Federal Personnel Manual explains the system prescribed in the CFR, defining the components of the system and describing their use. Federal Personnel Manual, Chapter 351, Subchap. 1-1 and 5 CFR 351.205. The Authority agrees that the provisions of 5 CFR Part 351 and the implementing provisions of the Federal Personnel Manual are Government-wide rules and regulations. See American Federation of Government Employees, Local 1980, AFL-CIO and U.S. Department of Agriculture, Farmers Home Administration, 17 FLRA No. 112 (1985). Those regulations address the use of RIF procedures in the context of a transfer of function. It is undisputed that the movement of the Kansas City District's F&A function to the Omaha District is, in fact, a transfer of function within the meaning of the regulations. The OPM regulations define a transfer of function as: (T)he transfer of the performance of a continuing function from one competitive area and its addition to one or more other competitive areas, except when the function involved is virtually identical to functions already being performed in the other competitive area(s) affected; or the movement of the competitive area in which the function is performed to another commuting area. (5 CFR 351.203 (1986).) These regulations generally require that before a RIF is conducted in connection with a transfer of function from one competitive area to another, each competing employee in a position identified with the transferring function shall be transferred to the continuing competitive area. 5 CFR 351.302(a). Employees who refuse to transfer with their position or function may be subject to separation through adverse action procedures. Federal Personnel Manual, Chapter 351, Subchap. 5-3.c.(2). Under certain circumstances, however, the OPM regulations allow for use of RIF procedures for Purposes of assigning or separating, as appropriate, employees who decline to transfer with their function. The regulations allow use of RIF procedures in the losing competitive area when the following two conditions are satisfied: (1) There is a RIF in process or resulting from the transfer of function in either the gaining or losing competitive area; and (2) There is agreement between the two areas that the movement of employees is not essential to the continuity and efficiency of the function. Federal Personnel Manual, Chapter 351, Subchap. 5-3.c.(3); see also Smith v. Department of Commerce, 19 MSPR 589 (1984). Based on the record it appears that the Union Proposal may be consistent with the first factor listed above; that is, it appears that the transfer of function may necessitate a RIF in the gaining competitive area. However, it does not appear that the Union proposal would allow for appropriate consideration of the second factor. The proposal would effectively require that RIF procedures be instituted in the losing competitive area based solely on an employee's desire not to transfer with the function and without any consideration being given to preserving the continuity and efficiency of the function. Inasmuch as the proposal provides for utilization of RIF procedures in the losing competitive area without regard to whether the circumstances present comport with the two conditions prescribed by OPM, it is inconsistent with a Government-wide rule or regulation. See American Federation of Government Employees, AFL-CIO, Local 225 and Department of the Army, USARRADCOM, Dover, New Jersey, 15 FLRA 607 (1984), where the Authority similarly found a proposal nonnegotiable because it would require an agency to act without giving due consideration to specified factors which a Government-wide rule or regulation required be taken into account in making the type of decision addressed by the proposal. IV. Conclusion Based on the foregoing analysis, the Authority finds that the Union Proposal is inconsistent with a Government-wide rule or regulation. Therefore, pursuant to section 7117 of the Statute it is not within the duty to bargain. In view of this holding section 7106(b)(2) and (3) are inapplicable. /1/ Further, it is unnecessary to consider the effect of the proposal on nonbargaining unit employees. V. Order 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., March 31, 1986 (s)--- Jerry L. Calhoun, Chairman (s)--- Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ See American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 19 FLRA 1016, 1019 (1985), appeal docketed sub nom. American Federation of Government Employees, AFL-CIO, Local 1546 v. FLRA, No. 85-1689 (D.C. Cir. Oct. 21, 1985) wherein the Authority held that section 7106(b)(2) and (3) are not applicable where a determination is made that a proposal conflicts with a Government-wide rule or regulation.