21:0354(46)NG - AFGE and HUD -- 1986 FLRAdec NG
[ v21 p354 ]
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 sustained. C. Conclusion The Authority finds, for the foregoing reasons, that Proposal II does not concern classification matters and is within the duty to bargain. V. 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 I and II. /*/ Issued, Washington, D.C., April 21, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES (*) In finding these proposals within the duty to bargain the Authority makes no judgment as to their merit.