23:0804(103)NG - FUSE, NAGE, Local R1-144 and Navy, Naval Underwater Systems Center -- 1986 FLRAdec NG



[ v23 p804 ]
23:0804(103)NG
The decision of the Authority follows:


 23 FLRA No. 103
 
 FEDERAL UNION OF SCIENTISTS AND 
 ENGINEERS, NATIONAL ASSOCIATION 
 OF GOVERNMENT EMPLOYEES, LOCAL R1-144
 Union
 
 and
 
 U.S. DEPARTMENT OF NAVY, NAVAL 
 UNDERWATER SYSTEMS CENTER
 Agency
 
                                            Case No. 0-NG-1267
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    The petition for review in this case comes 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
 raises an issue concerning the negotiability of one Union Proposal to
 grant "super seniority" to Union officials and stewards in a
 reduction-in-force.  For the following reasons we hold that the proposal
 is nonnegotiable.
 
                            II.  Union Proposal
 
          Union officials and stewards shall for the purposes of
       reduction-in-force during their official tenure of office be
       considered the most senior employees in their competitive level
       and tenure status.
 
                      III.  Positions of the Parties
 
    The Agency contends that this proposal conflicts with management's
 right under section 7106(a)(2)(A) to remove employees in that it would
 compel the Agency to remove other employees before removing union
 officials and stewards in a reduction-in-force (RIF).  Additionally, it
 argues that the proposal is inconsistent with a Government-wide rule or
 regulation -- specifically, the Office of Personnel Management (OPM)
 regulations found at 5 CFR Part 351.
 
    The Union disputes the Agency's assertion that this proposal is
 nonnegotiable.  It asserts that there is no Agency regulation for which
 a compelling need exists which bars negotiation of this proposal.  /1/
 
                       IV.  Analysis and Conclusions
 
            A.  The Proposal Conflicts with a Management Right
 
    This proposal would require that, in a RIF, the Agency consider union
 officials and stewards to be senior to all other employees who are in
 the same competitive level and have the same tenure status.  Absent any
 contrary statement by the Union, we interpret the terms "competitive
 level" and "tenure status" in this proposal as having the same
 respective meanings ascribed to the terms "competitive level" and
 "tenure group" in the OPM regulations governing RIF's.  /2/ "Competitive
 level" is a grouping of positions based on their similarity.  Employees
 are placed in a "tenure group" based on the nature of their appointment,
 for example, career, career-conditional, or indefinite.  In American
 Federation of Government Employees, Local 2612, AFL-CIO and Department
 of the Air Force, Headquarters, 416th Combat Support Group (SAC),
 Griffiss Air Force Base, New York, 19 FLRA No. 117 (1985) (Union
 Proposal 2), the Authority held nonnegotiable a proposal requiring union
 officers and stewards to be the last employees in a given job
 classificaation to be removed in the event of a RIF.  The Authority
 reasoned that the proposal would violate the agency's right to remove
 employees under section 7106(a)(2)(A) by compelling first removal of
 employees who were not union officials and stewards.  This proposal is
 to the same effect.  In a RIF action it would, similarly to the proposal
 in Griffiss AFB, compel the Agency to remove other employees in a given
 competitive level and tenure group prior to removing Union officers and
 stewards.  For the reasons stated in Griffiss AFB and the cases cited in
 that decision, the Authority finds that this proposal directly
 interferes with the Agency's right under section 7106(a)(2)(A) to remove
 employees.
 
         B.  The Proposal Conflicts with a Government-wide Rule or
 
                Regulation
 
    The OPM RIF regulations prescribe several specific criteria by which
 employees must be ranked for purposes of determining their relative
 retention standing within a competitive level.  5 CFR Sections
 351.501-351.506 (1986).  Under those regulations an employee's retention
 standing is determined by the combination of tenure group, subgroup
 (veterans preference status), length of service and annual performance
 ratings.  Because the proposal would award greatest seniority within a
 tenure group to Union officials and stewards, based on their union
 office, it is inconsistent with these regulations.  National Treasury
 Employees Union, NTEU Chapter 202 and Department of the Treasury, Bureau
 of Government Financial Operations, 22 FLRA No. 58 (1986).  The proposal
 is, therefore, not within the duty to bargain.
 
                                 V.  Order
 
    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., October 31, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Agency does not assert before us that negotiations on the
 proposal are barred by an Agency regulation.  Th