21:0228(31)NG - NFFE, Local 29 and Army, Kansas City District, Corps of Engineers -- 1986 FLRAdec NG



[ v21 p228 ]
21:0228(31)NG
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