22:0553(58)NG - NTEU, NTEU Chapter 202 and Treasury, Bureau of Government Financial Operations -- 1986 FLRAdec NG
[ v22 p553 ]
The decision of the Authority follows:
22 FLRA No. 58 NATIONAL TREASURY EMPLOYEES UNION, NTEU CHAPTER 202 Union and DEPARTMENT OF THE TREASURY, BUREAU OF GOVERNMENT FINANCIAL OPERATIONS Agency Case No. 0-NG-680 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)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of two Union proposals which concern treatment of union representatives in a reduction-in-force. II. Procedural Issues The Agency has requested that the Union's petition be dismissed because of what it contends are "fatal procedural defects." In support of its motion it makes two arguments: (1) Prior to filing the petition, the Union neither requested nor received from the Agency a written statement that its proposals were nonnegotiable. (2) The Union did not support its petition with an adequate explanation of the meaning and intent of the proposals. The Union Disputes these contentions. As to the first, it received a written statement from the Agency negotiations spokesperson that its proposals were "illegal and therefore nonnegotiable." A copy of this statement accompanied the Union's petition. In view of this written statement of nonnegotiability, the Authority finds that the Union's petition is properly filed. International Brotherhood of Electrical Workers, AFL-CIO, Local 121 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 10 FLRA 198 (1982). As to the Agency's second contention, the Union notes that it did file a statement as to the meaning of its proposals as required by the Authority's Rules. We find that the Agency was not prevented from developing a position on the negotiability of the proposals. Moreover, we are able to reach a decision based on the record in this case. The Agency's request that the petition be dismissed based on procedural matters is denied. III. Union Proposal 1 Existing Vacancies -- If such a position exists and a union representative is qualified, the Employer will consider the union representative in advance of other qualified employees for this vacant position. If there is no union representative affected by the RIF, the affected employee will be considered for the vacant position. A. Positions of the Parties As explained by the Union, the proposal applies once the Agency has decided to reassign employees facing separation in a reduction-in-force (RIF) to vacant positions. Once this decision has been made by the Agency, the proposal requires that first consideration for the reassignment go to any qualified union representatives who are affected by the RIF. The Union states, however, that the proposal does not require that preferential consideration be given to a union representative over another qualified employee who is in a tenure group or subgroup which is superior to that of the union representatives. /1/ It is also not intended to apply to positions outside the bargaining unit. The Union argues that this proposal amounts to an appropriate arrangement for employees who are adversely affected by the exercise of the Agency's right to conduct a RIF. The Agency argues that the proposal violates a Government-wide rule or regulation -- the Office of Personnel Management (OPM) regulations governing RIFs. In support of this, it contends that the proposal would require it to place union representatives in vacant positions despite the fact that under those regulations another employee might have a right to the position. It also asserts that the proposal is nonnegotiable because it would affect the rights of nonunit employees. Finally, the Agency alleges that the proposal would require it to fill vacancies and consequently interferes with its management right to determine the number of employees assigned to an organizational unit. B. Analysis and Conclusions 1. Conflict with Government-wide Rules or Regulations OPM has issued new regulations concerning RIFs at 5 CFR Part 351, effective February 3, 1986. 51 Fed. Reg. 318-326 (1986). The Authority has found that the OPM regulations concerning RIFs are Government-wide rules or regulations within the meaning of section 7117(a)(1) of the Statute. American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 18 FLRA No. 18 (1985). Although that case applied to previous OPM regulations, the revised RIF regulations similarly apply generally to civilian employees of the Federal government and are likewise Government-wide rules or regulations. Under these regulations an agency may in its discretion choose to fill a vacancy with an employee facing separation, furlough or reassignment in a RIF. When it elects to do so it must follow the provisions of the RIF regulations. 5 CFR 351.201(b). See also Klegman v. Department of Health and Human Services, 16 M.S.P.R. 454 (1983). This includes recognizing whatever claim employees may have to the particular position as a consequence of their "bumping" or "retreating" rights. /2/ Baker v. Department of Commerce, Economic Development Administration, 19 M.S.P.R. 432 (1984). Based on the Union's explanation, Proposal 1 is intended to provide for observance of "bumping" rights. However, no allowance is made for observance of "retreating" rights which may give employees other than the union representatives claim to the position involved. Thus, the proposal requires the Agency to consider taking an action which ignores some of the requirements of 5 CFR Part 351. Because of this circumstance, the Authority finds that Union Proposal 1 conflicts with a Government-wide rule or regulation, and is not within the obligation to bargain. 2. Interference with Management Right Based on the language of the proposal and the Union's explanation, the Authority interprets the proposal as applying only after the Agency has decided to fill vacancies with employees facing displacement from their position in a RIF. Given this, the Agency's argument that the proposal would require it to fill vacancies is not supported. Therefore its conclusion, based on this argument, that the proposal interferes with its right to determine the number of employees assigned to an organizational unit must be rejected. 3. Effect on Nonunit Employees Based on the Union's explanation, which is compatible with the proposal itself, the Authority interprets the proposal as applying only to vacant positions within the bargaining unit. The proposal as it applies to the filling of bargaining unit positions, if otherwise negotiable, would potentially have an effect on nonunit employees. However, that effect would only be an indirect one, potentially limiting nonunit employees' access to vacant unit positions by requiring that preferential consideration be given to a unit employee. The proposal does not rise to the level of directly determining conditions of employment of nonunit employees. See American Federation of Government Employees, Local 32 and Office of Personnel Management, 22 FLRA No. 49 (1986) in which the Authority discussed the circumstances under which the effect of a proposal on nonunit employees would remove a proposal from the duty to bargain. Consequently, the Authority does not find that this proposal would be nonnegotiable simply because of its potential effect on nonunit employees. Association of Civilian Technicians, Pennsylvania State Council and Pennsylvania Army and Air National Guard, 14 FLRA 38, 39 (1984). 4. Appropriate Arrangement Because the proposal is nonnegotiable based on its inconsistency with a Government-wide rule or regulation, section 7106(b)(3) of the Statute does not apply. American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 19 FLRA 1016, 1019 (1985), petition for review filed sub nom. American Federation of Government Employees, AFL-CIO v. FLRA, No. 85-1689 (D.C. Cir. Oct. 21, 1985). Therefore, the Union's argument that Union Proposal 1 is negotiable because it is an appropriate arrangement under section 7106(b)(3) is rejected. IV. Union Proposal 2 Retention/Reassignment -- When there is a shortage of funds for a Division or Branch and a union representative occupies a position within the Division or Branch, the Bureau will consider a furlough of that representative for the shortest possible period exceeding 30 days. A. Positions of the Parties As explained by the Union, this proposal would require that the Agency consider furloughing a union representative as an alternative to separating him/her in a RIF. The Agency contends that this proposal conflicts with the OPM RIF regulations. The Union counters that under those OPM regulations agencies have the discretion to make exceptions to the normal order or release of employees in RIFs and that this proposal involves an action which fits within that discretion. Like Union Proposal 1, the Union characterizes this proposal as an appropriate arrangement for employees adversely affected by management's exercise of its statutory authority. B. Analysis and Conclusions Under OPM regulations, employees are grouped in competitive levels by the similarity of their positions and grades. Positions placed in the same competitive level are supposed to be interchangeable. The OPM regulations basically require that employees be "released" from their competitive levels in inverse order of their retention standing. 5 CFR 351.601. Once released an employee is separated, furloughed or reassigned. The regulations specifically provide that an agency may not separate an employee while an employee with lower retention standing in the same competitive level is on furlough. 5 CFR 351.604(b). The effect of the Union's proposal would be to require an exception to this prohibition. That is, under the proposal an agency could be required to consider separating an employee while a union representative with lower retention standing in the same competitive level is on furlough. Contrary to the Union's argument, the Authority finds that OPM regulations do not permit an exception to this particular provision. The exceptions allowed by OPM regulations to which the Union refers in its arguments go to other provisions of the RIF regulations. /3/ There is no mention in the regulations of any exceptions which an agency could make to the prohibition set forth in 5 CFR 351.604(b). The Authority concludes therefore that Union Proposal 2 is inconsistent with 5 CFR 351.604(b). As found earlier, 5 CFR Part 351 is a Government-wide regulation. Because Union Proposal 2 conflicts with a Government-wide rule or regulation, it is not within the duty to bargain. /4/ 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., July 15, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Employees are placed in "tenure groups" according to the nature of their appointment; i.e., career, career-conditional, indefinite, etc. "Subgroup" placement is based on veterans status. 5 CFR 351.501. (2) "Bumping" is the right of one employee to displace another employee in a position on the basis of subgroup superiority. "Retreating" is the right to displace another employee in a position which is one from which or through which the employee was promoted and which is occupied by an employee with lower "retention standing." 5 CFR 351.701. "Retention standing" is an employee's ranking relative to other employees based on group, subgroup, length of service and performance rating. 5 CFR Part 351, Subpart E. (3) 5 CFR 351.607 and 351.608 allow exceptions to 5 CFR 351.601 and 351.603. (4) For the reasons given in section III(B)(4) of this decision, section 7106(b)(3) of the Statute does not apply.