21:0313(42)NG - NAGE, Local R14-87 and The Adjutant General of Kansas -- 1986 FLRAdec NG



[ v21 p313 ]
21:0313(42)NG
The decision of the Authority follows:


 21 FLRA No. 42
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, LOCAL R14-87
 Union
 
 and
 
 THE ADJUTANT GENERAL 
 OF KANSAS
 Agency
 
                                            Case No. 0-NG-910
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                           I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of two Union proposals.
 
                           II.  Union Proposal 1
 
                 Article 12, Section 7:  Change to read:
 
          a.  When the specific position, in an activity, from which an
       individual has been removed or demoted through reduction in force
       (RIF) is vacant and is being filled, the individual who was
       removed or demoted will be returned to the position and/or grade
       noncompetitively subject to paragraph b, below.
 
          b.  A basis for an individual not to be returned to his former
       position and/or grade, noncompetitively is an unsatisfactory
       performance rating which is documented in the individual's OPF, at
       the time the position concerned becomes vacant, or documentation
       that the individual's work either before or after the action by
       reduction in force, was not at an acceptable level of competence.
 
          c.  If more than one individual meets the criteria contained in
       a and b above, the employee who possessed the highest retention
       standing at the time of the RIF action will be returned to the
       concerned position and/or grade prior to others listed on the
       retention register.
 
          d.  All individuals previously affected in a RIF without
       personal cause, misconduct, or inefficiency, will receive special
       consideration for being returned to their former position and/or
       grade.
 
          NOTE:  FOR THIS SECTION THE TERM (sic) "FORMER POSITION" and
       "CONCERNED POSITION" INCLUDES BUT IS NOT LIMITED TO THE
 ACTIVITY
       THE INDIVIDUAL WAS EMPLOYED AT, AT THE TIME OF THE RIF.
 
                       A.  Positions of the Parties
 
    The Agency alleges that the proposal is nonnegotiable because it
 interferes with management's right under section 7106(a)(2)(C) to fill
 positions by making selections from any appropriate source.  The Agency
 also alleges that the proposal violates management's right to assign
 employees under section 7106(a)(2)(A) by requiring the reassignment of
 demoted employees.  The Union argues, citing the decision of the U.S.
 Court of Appeals for the District of Columbia Circuit in American
 Federation of Government Employees, AFL-CIO, Local 2782 v. Federal Labor
 Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983), reversing and
 remanding American Federation of Government Employees, AFL-CIO, Local
 2782 and Department of Commerce, Bureau of the Census, Washington, D.C.,
 7 FLRA 91 (1981), that the provision constitutes an "appropriate
 arrangement" within the meaning of section 7106(b)(3) of the Statute for
 employees adversely affected by the exercise of management's rights.
 
                               B.  Analysis
 
    Union Proposal 1 in this case, which provides reemployment or
 repromotion rights for persons removed or demoted in a
 reduction-in-force (RIF), is comparable to Provision 2 at issue in
 National Association of Government Employees, Local R14-87 and Kansas
 Army National Guard, 21 FLRA No. 4 (1986).
 
    The proposal in this case, like Provision 2 in that case, would apply
 only when management decides to fill positions from which employees have
 been removed or demoted in a RIF.  Similarly, it would only require
 management to reemploy or promote employees who were qualified for and
 had previously performed acceptably in the position being filled.  Union
 Proposal 1, therefore, does not impose any greater burden on management
 or provide any greater benefit for employees than the provision in
 Kansas Army National Guard.  As with the provision at issue in Kansas
 Army National Guard, the burden on management in these circumstances is
 insubstantial in comparison to the detriment originally suffered, and
 the benefit later obtained, by the affected employees.
 
                              C.  Conclusion
 
    Consistent with our reasoning in Kansas Army National Guard, we hold
 that Union Proposal 1 does not excessively interfere with management's
 right, under section 7106(a)(2)(C), to fill vacant positions by making
 selections from any appropriate source and that it is an appropriate
 arrangement under section 7106(b)(3).  We note that while the Kansas
 Army National Guard case involved only repromotion rights, and this case
 involves repromotion and reemployment rights, it does not appear, nor do
 the parties argue, that there is any material difference in those rights
 so as to affect the outcome in this case.
 
    We further conclude that Union Proposal 1 does not excessively
 interfere with management's right to assign employees under section
 7106(a)(2)(A).  Even if the Agency's argument that reemployment and
 repromotion are "assignments" within the meaning of section
 7106(a)(2)(A) were credited, there would not be any different or
 additional substantive effect on management's rights or on management's
 practical needs.  Therefore, we find that by designating the particular
 employee to be reemployed or repromoted, that is, "reassigned," the
 proposal would not excessively interfere with management's right to
 assign employees.
 
                          III.  Union Proposal 2
 
          Article 13:  Add the following note:
 
          NOTE:  Provisions of Article 12, Section 7, (Union Proposal 1,
       supra) of this agreement will take precedent (sic) over this
       article.
 
                       A.  Positions of the Parties
 
    As explained by the parties, Union Proposal 2 requires the Agency to
 abide by Article 12, Section 7, in any situation where that provision
 conflicts with the Agency's RIF regulations which are cited in Article
 13.  The Agency contends that, by making Union Proposal 1 applicable in
 RIF situations, Union Proposal 2 is nonnegotiable for the same reasons
 it alleges Union Proposal 1 is nonnegotiable.  In addition, the Agency
 argues that Union Proposal 1 could not, as required by Union Proposal 2,
 take precedence over Article 13 because the latter incorporates
 Technician Personnel Regulation (TPR) 300 (351), an Agency regulation
 for which the Authority has found a compelling need to exist.  The Union
 contends that if Union Proposal 1 is negotiable, Union Proposal 2, which
 depends upon it, is also negotiable.
 
                               B.  Analysis
 
    Because it would also give force to Article 12, Section 7 (Union
 Proposal 1 in this case), the proposal presents issues as to management
 rights which are identical to those addressed in the discussion of Union
 Proposal 1.  For the reasons set forth above we find that this proposal
 does not excessively interfere with management's rights under the
 Statute.
 
    The Agency further argues that by giving Article 12, Section 7,
 priority over Article 13, Union Proposal 2 conflicts with an Agency
 regulation, Technician Personnel Regulation (TPR) 300 (351), for which a
 compelling need exists.  The Agency cites certain Authority decisions in
 support of its argument.  /1/ Those decisions, however, held that there
 was a compelling need only for that part of the cited regulation which
 requires civilian technician RIF retention standing to be based on each
 employee's civilian and military appraisals.  These decisions stand for
 the limited proposition that that part of the regulation constituted a
 bar to proposals insofar as they would have eliminated the military
 appraisal as a factor in determining technician retention standing.  The
 Agency does not claim, or refer to any other decision in which the
 Authority has found, that a compelling need exists for any other portion
 of that regulation.  Thus it appears that the Agency is only arguing
 that Union Proposal 2 conflicts with the part of its RIF regulations
 which prescribe the criteria for determining an employee's retention
 standing.
 
    The Agency's argument, however, overlooks the fact that the proposal
 requires the selection of the employee with the highest retention
 standing and that the standing would be determined in accordance with
 the Agency's regulations.  That is, the proposal by its express terms
 must be applied consistent with precisely that part of its regulations
 on which the Agency relies to bar negotiation.
 
                              C.  Conclusion
 
    Since the Agency has not demonstrated any conflict between the
 proposal and the cited Agency regulation, that regulation does not
 constitute a bar to negotiation of Union Proposal 2.  Union Proposal 2,
 therefore, constitutes a negotiable appropriate arrangement under
 section 7106(b)(3) and is within the Agency's duty to bargain under the
 Statute.
 
                                IV.  Order
 
    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 Proposals 1
 and 2.  /2/
 
    Issued, Washington, D.C., April 16, 1986.