23:0396(56)CA - HHS, SSA, Dallas Region and AFGE, National Council of SSA-Field Office Locals -- 1986 FLRAdec CA



[ v23 p396 ]
23:0396(56)CA
The decision of the Authority follows:


 23 FLRA No. 56
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICES, SOCIAL SECURITY 
 ADMINISTRATION, DALLAS REGION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 NATIONAL COUNCIL OF SOCIAL SECURITY 
 ADMINISTRATION-FIELD OFFICE LOCALS
 Charging Party
 
                                            Case No. 6-CA-40044
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority, in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations, based on a stipulation of facts by the parties, who have
 agreed that no material issue of fact exists.  Both the Respondent and
 the General Counsel have filed briefs for the Authority's consideration.
 
    The complaint alleges that the Respondent committed an unfair labor
 practice in violation of section 7116(a)(1) and (5) of the Federal
 Service Labor-Management Relations Statute (the Statute) by improperly
 refusing to bargain over one of the three proposals submitted by the
 Charging Party (the Union) during negotiations over the impact and
 implementation of management's decision to downgrade certain positions.
 The disputed proposal concerns what shall constitute the declination of
 a reasonable offer of a comparable position, resulting in the loss of
 retained grade and pay, where employees have been downgraded by
 reclassification.
 
                              II.  Background
 
    In 1981, officials in the Respondent's Dallas Regional Office
 conducted an audit of its "Mail and Supply Clerk" positions at the GS-4
 level.  They concluded that the position was not properly classified at
 the GS-4 level, and reclassified it at the GS-3 level.  As a result of
 this reclassification, the Respondent immediately discontinued filling
 its Mail and Supply Clerk positions at the GS-4 level.
 
    In 1983, the Respondent downgraded its GS-4 Mail and Supply Clerks
 located in Dallas, Fort Worth, Waco, Houston, and Brownsville, Texas,
 and Albuquerque, New Mexico, to the GS-3 level.  Consistent with Federal
 regulations, the Respondent afforded retained grade and pay for a period
 of two years to its Mail and Supply Clerks who were downgraded as the
 result of the reclassification of their positions.  /1/
 
    In connection with this action, the Respondent sought specific
 proposals from the Union as to the impact and implementation of the
 downgradings, noting that affected employees could seek reassignment and
 compete for higher-graded positions during the two-year retention
 period.  Under Federal regulations, eligibility for grade retention
 ceases if the employee declines a "reasonable offer" of a position for
 which the grade is equal to or higher than the retained grade, and
 eligibility for pay retention ceases if the employee declines a
 "reasonable offer" of a position for which the rate of basic pay is
 equal to or higher than the retained pay.  /2/
 
    The Union replied to the Respondent's solicitation with the following
 three bargaining proposals:
 
          I.  Management will take all necessary actions to assure that
       the affected employees will have the opportunity to exercise their
       full range of rights to priority consideration for other positions
       as afforded under applicable law, regulations, contract
       provisions, past practice and the Agency policy.  Management will
       engage in no acts to discourage the exercising of the priority
       considerations.
 
          II.  The failure to utilize a priority consideration will not
       constitute a Declination of a Reasonable Offer.
 
          III.  The failure to accept the offer of a position under any
       one of the following circumstances will not constitute a
       Declination of a Reasonable Offer:  (1) The employee does not
       believe that he (or she) could perform satisfactorily in the
       offered position, (2) The employee has attained minimum age and
       length of service for retirement, (3) The employee believes that
       the change in positions would create undue personal hardship.
 
    The Respondent agreed to bargain on the first two proposals, but
 declined to bargain on the third.  The Respondent took the position that
 the third proposal was not negotiable because it was contrary to
 Government-wide policy concerning the requisite elements of a reasonable
 offer, as set forth in the Federal Personnel Manual (FPM) by the U.S.
 Office of Personnel Management (OPM).  The Union asserted that the FPM
 specifically provides that an agency may establish factors in addition
 to those required by regulation for determining whether an offer of
 reassignment or promotion to another position constitutes a "reasonable
 offer." The Respondent disagreed, and contended that, in any event,
 additional factors must be established at the Agency's national level,
 not at the regional level involved here.  The Union then filed its
 unfair labor practice charge, and the complaint in this case was issued.
 
                      III.  Positions of the Parties
 
    A.  The General Counsel makes the following arguments in support of
 its contention that the last of the Union's three proposals was
 negotiable:
 
          1.  While management has the full authority to reduce its
       employees in grade or pay as a consequence of a proper
       reclassification of their positions, it must nonetheless
       negotiate, under section 7106(b)(2) and (3) of the Statute, as to
       "procedures" and "appropriate arrangements" for those bargaining
       unit members who have been adversely affected because of a
       reduction in grade and pay.
 
          2.  The Respondent recognized its duty to bargain in this case
       when it notified the Union of the impending action and solicited
       specific proposals regarding the impact and implementation of the
       action.
 
          3.  The Respondent's insistence that it had no (or very
       limited) authority to add to the requisite elements of a
       "reasonable offer" is expressly contradicted by the language of
       the FPM on which the Respondent relies in support of its position
       in this regard.
 
    B.  The Respondent, on the other hand, makes the following arguments
 in support of its position that the last of the Union's proposals is not
 negotiable:
 
          1.  A classification action is explicitly excluded under
       section 7103(1)(14)(B) and (C) of the Statute as a negotiable
       "condition of employment."
 
          2.  The classification action in this case does not constitute
       an exercise of a retained management right under section
       7106(a)(2)(A) of the Statute so as to be subject to impact and
       implementation bargaining under section 7106(b)(2) and (3).
 
          3.  Even if the impact and implementation of classification
       actions were negotiable in general, this case presents an
       exception because the Respondent's management had "very little
       discretion under applicable statutes and regulations to bargain
       over such matters."
 
          4.  Pertinent legal precedent, as well as the parties' own
       bargaining agreement, provide that agency management is bound by
       existing Government-wide rules and regulations, /3/ and that the
       OPM provision concerning the definition of a "reasonable offer"
       for purposes of pay and grade retention constitutes a
       Government-wide rule or regulation which imposes the parameters of
       such a "reasonable offer" to the exclusion of the terms of the
       Union's proposal.
 
          5.  In conclusion, the proposal conflicts with management's
       right to direct the work force and assign work to employees under
       section 7106(a)(2) (A) and (B) of the Statute.
 
                               IV.  Analysis
 
           A.  Negotiability of the Union's Proposal in General
 
    In March Air Force Base, Riverside, California, 13 FLRA 255 (1983),
 the Authority held that, consistent with section 7103(1)(14)(C) of the
 Statute and Authority precedent, bargaining proposals which relate
 directly to the classification of positions do not concern "conditions
 of employment" and therefore are not within the duty to bargain under
 the Statute.  The Authority further found, however, that the duty to
 bargain does apply to the implementation of downgradings to be effected
 as the result of the reclassification of positions, and to the impact of
 such reclassification on affected employees, "to the extent consonant
 with law and regulation." The Authority followed this finding in
 Department of Transportation, Federal Aviation Administration, 19 FLRA
 No. 61 (1985), concluding that the agency was obligated to bargain over
 the procedures and appropriate arrangements for employees adversely
 affected by the agency's decision to reclassify positions, resulting in
 downgrades, reassignments, and promotions.  The same rule of law applies
 equally here.
 
    Also in the March Air Force Base decision, the Authority discounted
 the agency's argument that, even if a duty to bargain existed, the
 agency had little discretion under applicable statutes and regulations
 to bargain on such matters.  The Authority noted that grade and pay
 retention are specifically provided for by law and regulation, and
 therefore may not be subject to bargaining under section 7103(a)(14)(C)
 of the Statute.  The Authority concluded, however, that the agency had
 presented no evidence that the union's proposals were removed from the
 scope of bargaining, either because they were specifically provided for
 within the meaning of section 7103(a)(14)(C), or because the agency was
 left with no discretion to act under those particular circumstances.
 The Authority therefore ordered the agency to take certain steps to
 offer the union the opportunity to negotiate about the impact and
 implementation of its reclassification and downgrade action.
 
    Under section 7117(a)(1) of the Statute, a Federal agency's duty to
 bargain does not extend to proposals that are "inconsistent with any
 Federal law or any Government-wide rule or regulation . . ." In this
 case, an OPM regulation at 5 C.F.R. Section 536.206 provides that a
 "reasonable offer," the declination of which terminates eligibility for
 grade and pay retention, is composed of six specific elements.  /4/ The
 terms of that regulation clearly require that, at a minimum, all six
 elements must be present for an offer to be a "reasonable offer." An FPM
 provision published subsequently by OPM stipulates that the regulatory
 requirements are the "minimum conditions which must be met for an offer
 to be reasonable . . . ," so that "(a)gencies may also establish
 additional conditions which must be met" before an "offer" of
 reassignment or promotion may be deemed "reasonable." FPM ch. 536,
 subch. 5, sec. 5-1(f)(2) (Oct. 1, 1981).  This FPM provision represents
 OPM's interpretation of its own regulations, see FPM Introduction (Feb.
 14, 1983), and FPM ch. 171-5, sec. 2-1 (June 25, 1984), and is adopted
 for purposes of this decision because it is consistent with the
 regulation.
 
    The Respondent also asserted that "changes in the current policy"
 with regard to the requirements of a "reasonable offer" could only be
 effectuated at the Agency's national level because the regional office
 was not empowered to do so.  The Respondent offered no evidence to
 support its assertion.  In fact, the record indicates that the
 Respondent, in deciding to downgrade the GS-4 Mail and Supply Clerks at
 certain locations within the Dallas Region, sought specific proposals
 from the Union concerning the impact and implementation of that decision
 on these unit employees.
 
    The Authority concludes that the Respondent has discretion to add to
 the six elements of a "reasonable offer" required by Federal regulation.
  In addition to the regulatory requirements for continued entitlement to
 retained grade and pay for two years after a downgrade based on position
 reclassification, other requirements for such retention therefore may be
 negotiable.
 
                 B.  Negotiability of the Union's Proposal
 
    The Union proposed three circumstances under which the downgraded
 employees would not be deemed to have declined a "reasonable offer"
 which would terminate their eligibility for retained grade and pay.
 Those three circumstances are as follows:
 
    (1) Where the employee believes that he could not perform
 satisfactorily in the offered position;
 
    (2) Where the employee has attained the minimum age and length of
 service for retirement;  and
 
    (3) Where the employee believes that taking on an offered position
 would create an undue personal hardship.
 
    The Respondent contends that this proposal would eliminate its
 discretion to exercise its reserved management rights under section
 7106(a)(2)(A) and (B) of the Statute to "direct" and "assign work" to
 the employees reduced in grade or pay as a result of the
 reclassification of their positions.
 
    Contrary to the Respondent's position, we find that the disputed
 proposal in this case does not conflict with management's rights to
 "direct" and "assign work" to employees under section 7106(a)(2)(A) and
 (B) of the Statute.  Rather, it involves employees who have been placed
 in lower-graded positions for reasons other than personal cause and who
 are entitled to retained grade and pay for up to two years under law and
 Governmentwide regulation.  5 U.S.C. Sections 5361-66;  and 5 C.F.R.
 part 536.  Under this law and regulation an employee's entitlement to
 retained grade and pay ends if the employee declines a "reasonable
 offer" of another position with a grade and pay equivalent to or greater
 than the employee's former position.  While the employee clearly has the
 right to refuse such an offer, to do so terminates the employee's
 entitlement to retained grade and pay and the employee would remain in
 the lower-graded position.  The proposal in this case concerns only what
 constitutes such a "reasonable offer," and not whether management can,
 for example, "involuntarily" assign an employee to any position.
 
    The Union's proposal would allow an affected employee to reject an
 otherwise "reasonable offer" when the employee simply "believes" that he
 could not perform the duties of the offered position -- implicitly
 regardless of an agency determination of qualification -- or when he
 "believes" that accepting the offered position would create an "undue
 personal hardship." The proposal also would permit the affected employee
 to reject an otherwise "reasonable offer" on the basis of his immediate
 eligibility for retirement.  By granting such broad discretion to
 affected employees, the disputed proposal could thwart all good faith
 efforts by the Respondent to make "reasonable offers" of reassignment.
 Employees who represented that they "believe" subjectively that they
 cannot perform the duties of the offered positions or that the positions
 would result somehow in an "undue personal hardship," or who
 coincidentally happen to be qualified for retirement, would be entitled
 to decline otherwise reasonable offers.  The Authority finds that the
 proposal conflicts with OPM's Government-wide regulatory requirements
 for determining what constitutes a "reasonable offer." /5/ Accordingly,
 the Union's proposal is not negotiable, and the complaint in this case
 is dismissed.
 
                              V.  Conclusion
 
    The Authority has considered all the facts and circumstances of this
 case, including the positions of the parties, and concludes that the
 Respondent did not violate section 7116(a)(1) or (5) of the Statute, as
 alleged.  We shall therefore dismiss the complaint.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 6-CA-40044 be, and it
 hereby is, dismissed in its entirety.
 
    Issued, Washington, D.C., September 23, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) 5 C.F.R. Section 536.101(a).
 
    (2) 5 C.F.R. Sections 536.207 and 536.209.  The definition of a
 "reasonable offer," the declination of which may terminate eligibility
 for retained grade and pay, is set forth at 5 C.F.R. Section 536.206,
 promulgated on Dec. 30, 1980;  45 Fed. Reg. 85656.
 
    (3) In addition to the provisions of the pertinent bargaining
 agreement, section 7117(a)(1) of the Statute itself specifically
 provides that the duty to bargain in good faith does not extend to
 matters "inconsistent with any Federal law or any Government-wide rule
 or regulation . . . ." See discussion in the text.
 
    (4) The six specific elements of a "reasonable offer," set forth at 5
 C.F.R. Section 536.206, are as follows:
 
          (1) The offer must be in writing, and must include an official
       position description of the offered position;  and
 
          (2) The offer must inform the employee that an entitlement to
       grade or pay retention will be terminated if the offer is declined
       and that the employee may appeal the reasonableness of the offer
       as provided in Section 536.302;  and
 
          (3) The offered position must be of tenure equal to or greater
       than that of the position creating the grade or pay retention
       entitlement;  and
 
          (4) The offered position must be in an agency, as defined in 5
       U.S.C. Section 5102, although not necessarily in the same agency
       in which the employee is serving at the time of the offer;  and
 
          (5) The offered position must be full-time, unless the
       employee's position immediately before the change creating
       entitlement to grade or pay retention was less than full-time, in
       which case the offered position must have a work schedule of no
       less time than that of the position held before the change;  and
 
          (6) The offered position must be in the same commuting area as
       the employee's position immediately before the offer, unless the
       employee is subject to a mobility agreement or a published agency
       policy which requires employee mobility.
 
    (5) In view of this determination that the proposal conflicts with a
 Government-wide rule or regulation, we find that section 7106(b)(2) and
 (3) of the Statute is not applicable.  See American Federation of State,
 County and Municipal Employees, Local 2830, AFL-CIO and Department of
 Justice, 21 FLRA No. 121 (1986);  American Federation of Government
 Employees, Local 1546 and