21:0354(46)NG - AFGE and HUD -- 1986 FLRAdec NG



[ v21 p354 ]
21:0354(46)NG
The decision of the Authority follows:


 21 FLRA No. 46
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF HOUSING AND 
 URBAN DEVELOPMENT
 Agency
 
                                            Case Nos. 0-NG-930
                                                             0-NG-931
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                          I.  Statement of the Case
 
    These cases are before the Authority because of two separate
 negotiability appeals filed under section 7105(a)(2)(E) of the Federal
 Service Labor-Management Relations Statute (the Statute), and concern
 the negotiability of two proposals submitted in response to a proposed
 reduction-in-force (RIF) in the Agency.
 
                          II.  Procedural Issues
 
    The Agency moved that the Authority consolidate the two separate
 appeals filed by the Union for purposes of Authority review.  These two
 appeals arose out of the same set of collective bargaining negotiations
 between the same parties and concern two portions of a larger article
 declared nonnegotiable by the Agency.  Thus, in the interest of
 expeditious processing of these two appeals which concern a common
 subject, the Authority grants the Agency's motion to consolidate.
 
    The Agency contends that each Union petition should be dismissed as
 untimely filed because the Agency had orally stated earlier in the
 negotiations that an entire article, which included the two disputed
 portions appealed to the Authority, was nonnegotiable.  This contention
 cannot be sustained.  It is well established that the time limit for
 filing a negotiability appeal pursuant to section 2424.3 of the
 Authority's Rules and Regulations runs from the date an agency's
 allegation is served in writing upon a union.  See American Federation
 of Government Employees, AFL-CIO, Local 3385 and Federal Home Loan Bank
 Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981).
 
    The Agency also contends that the Union's appeal as to Proposal II
 should be dismissed under section 2424.4(a)(2) of the Authority's Rules
 and Regulations because the proposal is vague, ambiguous and unsupported
 by sufficient explanation as to its meaning.  Contrary to the position
 of the Agency the Authority finds that the Union did sufficiently
 explain the meaning of Proposal II in the context of the negotiations in
 which it was offered.  Thus, the Agency's contention cannot be
 sustained.
 
                          III.  Union Proposal I
 
          Prior to conducting any reduction-in-force in any competitive
       area in Headquarters, management shall conduct a cost-benefit
       analysis to consider if a furlough and/or a retraining program for
       affected unit employees would be less costly than conducting a
       reduction-in-force.
 
          Management shall consider the following in conducting its
       analysis:
 
          (The cost savings of) All bargaining unit employees in
       Headquarters shall be furloughed according to the following
       schedule:
 
          (1) GS-5 and below for 5 days on Mondays or Fridays which are
       not holidays starting the fifth pay period of the fiscal year and
       continuing every fourth pay period until the 5 days of furlough
       are completed.
 
          (2) GS-10 to GS-6, inclusive, for 10 days of furlough on
       Mondays or Fridays which are not holidays starting the fifth pay
       period of the fiscal year and continuing every fourth pay period
       until the 10 days of furlough are completed.
 
          (3) GS-15 to GS-11, inclusive, 15 days of furlough beginning as
       soon as practicable after the beginning of the fiscal year but in
       no event later than the fifth pay period of the fiscal year and
       continuing every pay period until the fifteen days of furlough are
       completed.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal I is inconsistent with section
 7106(a) and (b) of the Statute because it interferes with the internal
 deliberation process in which management engages before management
 implements decisions concerning rights reserved to it under section
 7106(a) and (b) of the Statute.
 
    The Union contends, in essence, that Proposal I constitutes an
 appropriate arrangement within the meaning of section 7106(b)(3) of the
 Statute.  In support of its position, the Union cites 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).
 
                               B.  Analysis
 
    According to its language and the Union's interpretation, which
 interpretation the Authority adopts, Proposal I would require the Agency
 to conduct a cost study to determine whether instituting a furlough or
 retraining program for affected employees would be less costly than
 conducting a RIF.  In addition, Proposal I provides a suggested furlough
 schedule as a part of the cost study by which management would calculate
 the cost savings of temporarily laying off employees according to their
 GS grade.
 
    Contrary to the Agency's claim, the disputed proposal would not
 require the Agency to take or refrain from taking any action whatever
 with regard to the retention of employees.  Rather, the proposal
 requires management to consider certain alternative courses of action,
 without placing any obligation on the Agency to adopt any of the
 specified actions in lieu of a RIF.  That is, Proposal I merely requires
 management to consider various options before reducing the workforce,
 and does not interfere with the exercise of management's right.  As such
 it constitutes an appropriate arrangement for employees adversely
 affected by the Agency's right to conduct a RIF and therefore is within
 the duty to bargain under section 7106(b)(3).  Because Proposal I does
 not interfere at all with the Agency's right under section 7106 to
 conduct a RIF or retain employees, it is not necessary to apply any test
 for determining "excessive interference" with the relevant management
 right under section 7106(b)(3).  National Association of Government
 Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4
 (1986) (Provision 2).
 
                              C.  Conclusion
 
    The Authority finds, for the foregoing reasons, that Proposal I does
 not interfere with the exercise of management rights.  Rather, it
 constitutes an appropriate arrangement for employees adversely affected
 by the Agency's decision to conduct a RIF and, therefore, is within the
 duty to bargain.
 
                          IV.  Union Proposal II
 
          For the purposes of this article, wage grade employees shall be
       considered GS employees, GS-5 or below.  Printing employees shall
       be considered GS-10 and below.
 
                       A.  Positions of the Parties
 
    The Agency argues that because Proposal II involves matters relating
 to the classification of positions which are excluded from the
 definition of conditions of employment under section 7103(a)(14)(B) of
 the Statute, it is nonnegotiable.
 
    The Union contends that Proposal II merely concerns how wage grade
 and printing employees will be covered under the furlough formula set
 out in Proposal I.
 
                               B.  Analysis
 
    The Authority finds that the Agency misinterpreted the meaning of
 Proposal II.  According to its language and the Union's interpretation,
 which interpretation the Authority adopts, Proposal II would merely
 require that in conducting the cost study contemplated by Proposal I the
 Agency would calculate the cost savings of furloughing wage grade and
 printing employees in the same manner as specified GS employees.  Thus,
 the Agency's claim that Proposal II is excluded from the definition of
 conditions of employment as defined by section 7103(a)(14)(B) of the
 Statute cannot be s