24:0479(52)NG - NTEU and DOE -- 1986 FLRAdec NG



[ v24 p479 ]
24:0479(52)NG
The decision of the Authority follows:


 24 FLRA No. 52
 
 NATIONAL TREASURY EMPLOYEES 
 UNION
 Union
 
 and
 
 DEPARTMENT OF ENERGY
 Agency
 
                                            Case No. 0-NG-983 
                                              19 FLRA No. 24
 
          SUPPLEMENTAL DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         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).  The Authority issued
 its original decision in this case in 19 FLRA No. 24 and subsequently
 vacated its decision as to Union Proposal 2.  This case concerns only
 the negotiability of that proposal.  We find the proposal negotiable.
 
    Union Proposal
 
       Article 22, Reduction in Force, Part II, Section 5
 
          The filling of any bargaining unit vacancy within the
       competitive area for which bargaining unit employees in that area
       who will be affected by RIF are eligible will be suspended from
       the date of the initial RIF notice to affected employees until the
       effective date of the RIF.
 
                       II.  Positions of the Parties
 
    The Agency contends that the proposal violates its right to hire
 under section 7106(a)(2)(A) because it prevents management from filling
 vacant positions.  The Agency claims that, by preventing management from
 filling positions, the proposal would not allow employees to exercise
 their bumping and retreat rights under regulations issued by the Office
 of Personnel Management.  The Agency argues that the proposal is neither
 a procedure nor an appropriate arrangement under section 7106(b)(2) and
 (3) of the Statute.
 
    The Union states that its proposal would allow employees to take full
 advantage of bumping and retreat rights and other reassignment
 possibilities.  The Union contends that the proposal only delays the
 filling of vacant positions until a reduction in force (RIF) has been
 carried out.  It argues that the proposal is a negotiable procedure in
 that it does not prevent the Agency from acting at all.
 
                              III.  Analysis
 
    The Union's proposal would suspend the filling of any vacant
 bargaining unit position for which employees affected by a RIF would be
 eligible from the date a RIF notice is received by the affected
 employees until the effective date of the RIF action.  The Union states
 that the proposal is intended to allow affected employees both to
 exercise their bumping and retreat rights and to take advantage of
 possible reassignment to such vacant positions.  Union Response at 3.
 We accept the Union's interpretation and find that, contrary to the
 Agency's contentions, the proposal would not affect the rights of
 employees to bump and retreat into positions under regulations issued by
 the Office of Personnel Management and set forth at 5 CFR Part 351 (the
 OPM RIF Regulations).
 
    If the Agency decides to fill a vacancy covered by the proposal
 during a RIF, the proposal only requires the Agency to either fill that
 vacancy with an eligible bargaining unit employee affected by the RIF or
 delay filling the vacancy until the RIF is over.  Hence, the proposal
 merely delays management's exercise of its rights to select an employee
 from any appropriate source under section 7106(a)(2)(C)(ii) and,
 correlatively, to hire from outside the bargaining unit under section
 7106(a)(2)(A).  This delay only would occur in very limited
 circumstances when (1) there is a qualified individual in the bargaining
 unit, (2) that employee would be affected by the RIF, and (3) management
 decides not to select that employee.
 
    From these facts, it is our conclusion that the proposal would not
 impose any substantive criteria on management's exercise of its rights.
 Rather, the proposal would establish a procedure for management to
 follow in exercising its rights -- albeit one which, under the very
 narrow circumstances outlined above, would delay management's ability to
 select from appropriate sources other than the bargaining unit until
 after the RIF.  Such a procedure is negotiable under section 7106(b)(2)
 because it delays but does not prevent management from acting at all to
 exercise its rights.  American Federation of Government Employees,
 AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire
 Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom.
 Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981).
 Therefore, we would not reach the question of whether the proposal is an
 "appropriate arrangement" under section 7106(b)(3).
 
    This case is distinguishable from National Federation of Federal
 Employees, Local 1332 and Headquarters, U.S. Army Materiel Development
 and Readiness Command, Alexandria, Virginia, 3 FLRA 611 (1980), where
 the Authority held nonnegotiable a proposal requiring a hiring freeze
 because it was integrally related to management's right under section
 7106(b)(1) to determine the numbers and types of employees assigned to
 an organizational subdivision.  In that case the Authority found the
 proposal prevented the agency from hiring new employees of the requisite
 types and grades in sufficient number while the freeze was in effect.
 Unlike the proposal in U.S. Army Materiel Development and Rediness
 Command, the proposal in this case only delays the Agency filling a
 vacancy when the Agency decides not to select an eligible bargaining
 unit employee affected by the RIF.  This proposal does not prevent the
 Agency from hiring additional employees from outside the unit when there
 are no eligible employees within the unit.  Consequently, this proposal
 does not affect the Agency's ability to determine the numbers and types
 of employees needed to perform its work.
 
    While not disputed in this case, it is clear that unlike the proposal
 in the Authority's Decision and Order on Remand in American Federation
 of Government Employees, AFL-CIO, Local 2782 and Department of Commerce,
 Bureau of the Census, Washington, D.C., 14 FLRA 801 (1984), affirmed in
 the Authority's Decision and Order on Motion for Reconsideration (July
 11, 1985), affirmed sub nom. American Federation of Government
 Employees, Local 2782 v. FLRA, No. 85-1562 (D.C. Cir. October 21, 1986),
 and cases based on that decision, the proposal in this case is not
 inconsistent with Requirement 4 of subchapter 1-4, chapter 335 of the
 Federal Personnel Manual (FPM).  Requirement 4, which provides for an
 agency's right to fill positions from any appropriate source, applies to
 positions filled through merit promotion procedures.  Requirement 4 does
 not apply to position changes permitted by reduction-in-force
 regulations.  See subchapter 1-5(a)(5) and (b)(2) of FPM chapter 335.
 Since section 351.201(b) of the OPM RIP regulations gives an agency
 discretion to fill vacant positions during a RIF with affected
 employees, the vacant positions covered by the Union's proposal are not
 subject to the competitive procedures set forth in chapter 335 of the
 FPM.
 
    A dictum in National Federation of Federal Employees, Local 1450 and
 U.S. Department of Housing and Urban Development, 23 FLRA No. 1 (1986)
 states otherwise and will not be followed.  To the extent that the
 proposal in that case concerns position changes permitted by the RIF
 regulations, Requirement 4 would not apply to that proposal.  Proposals
 which concern the filling of positions after the effective date of a
 RIF, however, even if the proposals concern employees adversely affected
 by the RIF, are subject to the provisions of chapter 335.  See American
 Federation of Government Employees, AFL-CIO, Local 2677 and Department
 of Health and Human Services, Office of Community Services, 21 FLRA No.
 22 (1986), petition for review filed sub nom. AFGE, Local 2677 v. FLRA,
 No. 86-1287 (D.C. Cir. May 19, 1986).
 
                              IV.  Conclusion
 
    For the reasons discussed above, we conclude that the Union's
 proposal is within the duty to bargain.  /1/
 
                                 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 Proposal 2.
 
    Issued, Washington, D.C., December 15, 1986.
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                        Opinion of Chairman Calhoun
 
    In agreement with my colleagues, I find that the proposal is
 negotiable.  However, I reach this conclusion based on a different
 analysis from that in the majority opinion.
 
    1.  Right to Select
 
    If the Agency decides to fill a vacancy covered by the proposal
 during the period covered by the freeze, the Union's proposal would
 require the Agency to reassign an employee affected by the RIF who is
 eligible to the vacant position.  Union Response at 3.  In my view, this
 limitation would interfere with management's right under section
 7106(a)(2)(C)(ii) to make selections for positions from any appropriate
 source.  See National Federation of Federal Employees, Local 108 and
 U.S. Department of Agriculture, Arkansas State Office of the Farmers
 Home Administration, 14 FLRA 19 (1984) (first sentence of Proposal 5).
 I agree with my colleagues, for the reasons stated in the majority
 opinion, that the proposal is not inconsistent with Requirement 4 of
 subchapter 1-4, chapter 335 of the FPM.
 
    2.  Right to Hire
 
    Management's right under section 7106(a)(2)(A) to hire from outside
 the agency constitutes one "appropriate source" from which an agency may
 make selections for positions.  I find that the Union's proposal would
 limit the sources from which the Agency may fill vacant positions
 covered by the proposal.  During the RIF, the Agency could only fill
 those positions with eligible employees who would otherwise be subject
 to the RIF.  The Agency would be prevented during the RIF from
 exercising its right to hire from outside.  If the Agency does fill the
 vacant position with an affected employee prior to the effective date of
 the RIF, it could no longer exercise its right to hire for that position
 from outside the Agency after the RIF.  The proposal would therefore
 interfere with the Agency's right to hire employees.  Consequently, I
 find that the proposal directly interferes with management's right to
 hire and does not constitute a procedure under section 7106(b)(2) of the
 Statute.
 
    3.  Appropriate Arrangement
 
    We vacated our original decision as to this proposal because it
 relied upon the decision as to Union Proposal 1 in Association of
 Civilian Technicians, Montana Air Chapter and Department of the Air
 Force, Montana Air National Guard, Headquarters 120th Fighter
 Interceptor Group (ADTAC), 11 FLRA 505 (1983), which was reversed and
 remanded to the Authority by the U.S. Court of Appeals for the District
 of Columbia Circuit in Association of Civilian Technicians, Montana Air
 Chapter v. FLRA, 756 F.2d 172 (D.C. Cir. 1985).  The D.C. Circuit's
 decision directed the Authority to determine whether Union Proposal 1,
 which also concerned a freeze on hiring during a RIF, constituted an
 appropriate arrangement under section 7106(b)(3) of the Statute.  In its
 Decision and Order on Remand in Association of Civilian Technicians,
 Montana Air Chapter and Department of the Air Force, Montana Air
 National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 20
 FLRA No. 85 (1985), petition for review filed sub nom. Association of
 Civilian Technicians, Montana Air Chapter v. FLRA, No. 86-1057 (D.C.
 Cir. Jan. 23, 1986), the Authority found that Union Proposal 1 did not
 constitute an appropriate arrangement under section 7106(b)(3) because
 it excessively interfered with the agency's ability to provide the
 numbers and types of employees to perform the agency's work.
 
    In view of the Agency's claim that the proposal is not an appropriate
 arrangement and the decision of the D.C. Circuit in Montana Air Chapter,
 I will consider whether the proposal in this case, which also concerns a
 hiring freeze, constitutes an appropriate arrangement.  /2/ The proposal
 was intended as an arrangement for employees adversely affected by the
 Agency's exercise of its right to layoff employees.  The event giving
 rise to the proposed arrangement -- a RIF -- is a matter which
 significantly affects employees but is caused by circumstances which are
 not within their control.  The proposed arrangement would benefit
 employees by ensuring that employees who would otherwise be separated
 because of a RIF are placed in vacant positions for which they are
 eligible before the Agency seeks outside applicants.
 
    Regarding the burden the arrangement would place on the Agency's
 exercise of its rights, as discussed above, the proposal would interfere
 with the Agency's rights to hire and to make selections from any
 appropriate source.  Although the proposal would interfere with the
 Agency's rights to hire and select, I find that the interference with
 the Agency's ability to carry out its mission would not be substantial.
 The proposal would not require the Agency to fill a vacant position if
 it chooses not to do so.  Also, if the Agency decides to fill a vacancy,
 the proposal would not require it to fill the position with an employee
 it has not found to be qualified to perform the duties of that position.
  While the Agency would be prohibited from seeking applicants from
 outside the competitive area during the RIF, the Agency still has
 discretion to either fill the vacancy with an eligible employee from
 within the affected area or fill it from any appropriate source after
 the effective date of the RIF.  By contrast, the proposal in Montana Air
 Chapter which we found to excessively interfere with management's rights
 would have prevented management from filling vacancies even if there
 were no qualified employees available.  Consequently, in my view, the
 Union's proposal does not excessively interfere with the Agency's
 exercise of its rights and constitutes an appropriate arrangement under
 section 7106(b)(3).
 
    Issues, Washington, D.C., December 15, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Chairman Calhoun concurs that the proposal is negotiable for the
 reasons set forth in his separate opinion.  In finding the proposal to
 be within the duty to bargain, we make no judgment as to its merits.
 
    (2) In National Association of Government Employees, Local R14-87 and
 Kansas Army National Guard, 21 FLRA No. 4 (1986), we set forth the
 factors we will cons