25:0964(79)NG - FUSE, NAGE Local R1-144, SEIU and Navy, Naval Underwater Systems Center -- 1987 FLRAdec NG



[ v25 p964 ]
25:0964(79)NG
The decision of the Authority follows:


 25 FLRA No. 79
 
 FEDERAL UNION OF SCIENTISTS AND 
 ENGINEERS, NATIONAL ASSOCIATION 
 OF GOVERNMENT EMPLOYEES, 
 LOCAL R1-144 SEIU, AFL-CIO
 Union
 
 and
 
 U.S. DEPARTMENT OF THE NAVY, 
 NAVAL UNDERWATER SYSTEMS CENTER
 Agency
 
                                            Case No.0-NG-1285
 
                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) and concerns the
 negotiability of three proposals.  /1/ We find that Proposals 1, 3 and
 the second sentence of Proposal 2 are nonnegotiable.  We find that,
 except for the second sentence, Proposal 2 is negotiable.
 
                              II.  Proposal 1
 
          In the event of a reduction-in-force, the competitive area
       shall be comprised of all positions assigned to NUSC, Newport
       Laboratory, Newport, RI.
 
                       A.  Positions of the Parties
 
    The Agency contends that this proposal is nonnegotiable because the
 competitive area proposed would encompass nonbargaining unit positions
 and, consequently, the proposal would determine conditions of employment
 of nonbargaining unit employees.  Additionally, it asserts that the
 proposal conflicts with its management rights to assign, layoff, retain
 and remove employees and to reduce them in grade and pay.  The Union
 states only that the proposal "stands as read."
 
                        B.  Analysis and Conclusion
 
    The proposal as worded would prescribe a competitive area for
 nonbargaining unit positions and employees.  It is, therefore, to the
 same effect as the proposal which the Authority found nonnegotiable in
 American Federation of Government Employees, Local 32, AFL-CIO and
 Office of Personnel Management, 22 FLRA No. 49 (1986) appeal filed sub
 nom. American Federation of Government Employees, Local 32, AFL-CIO v.
 FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986).  For the reasons expressed
 in that decision, we find that this proposal is nonnegotiable.  In view
 of this conclusion, we find it unnecessary to address the Agency's
 additional contentions as to the negotiability of this proposal.
 
                             III.  Proposal 2
 
          Employees impacted by the reduction-in-force who appeal the
       action to the MSPB or arbitration shall have a stay of the action
       pending settlement of the related appeals.  Any reduction-in-force
       will at the election of the employee be appealable to the MSPB or
       grievance procedure, but not both.  Prior to first step of the
       grievance procedure, the Union shall be consulted.
 
                        A. Positions of the Parties
 
    The Agency asserts that the first sentence of this proposal is
 nonnegotiable because it conflicts with section 7106(a)(2)(A) of the
 Statute.  The second sentence is nonnegotiable because it conflicts with
 section 7121(a)(1).  The Agency makes no claim that the remaining
 portion of this proposal is nonnegotiable.  The Union offers no comment
 on the merits of the proposal.
 
                        B.  Analysis and Conclusion
 
    As to the first sentence of the proposal the Agency relies upon
 decisions of the Merit Systems Protection Board (MSPB) and argues that
 the MSPB will not entertain appeals relating to Reduction-In-Force (RIF)
 actions prior to the effective date -- i.e. date of execution -- of the
 action.  By staying the execution of the RIF until completion of an
 appeal process which cannot be undertaken until execution, the Agency
 argues that the proposal would effectively prevent the Agency from
 carrying out RIF actions.  This interpretation of MSPB's practices and
 procedures has been rejected by the U.S. Court of Appeals for the D.C.
 Circuit.  National Treasury Employees Union v. Federal Labor Relations
 Authority, 712 F.2d 669 (D.C. Cir. 1983).  The Authority has
 subsequently adopted and followed the Court's interpretation.  See,
 National Federation of Federal Employees, Local 1900 and Department of
 Housing and Urban Development, 15 FLRA 465 (1984).  Based on the reasons
 set forth in NTEU v. FLRA, 712 F.2d 669, and Housing and Urban
 Development, 15 FLRA 465, we reject the Agency's arguments as to the
 first sentence of this proposal and find that it is within the duty to
 bargain.
 
    The second sentence would provide employees a choice of appealing any
 RIF action to the MSPB or through the negotiated grievance procedure.
 Section 7121(a) of the Statute provides that, except for those limited
 matters set out in section 7121(d) and (e), the negotiated grievance
 procedure shall be the exclusive procedure for resolving all matters
 which fall within its coverage.  The limited exceptions to the
 exclusivity requirement, which are set out in section 7121(d) and (e),
 include claims that an employee has been affected by a prohibited
 personnel practice under section 2302(b)(1) and matters covered under 5
 U.S.C. Sections 4303 and 7512.  If these matters are also within the
 coverage of a negotiated grievance procedure, employees have a choice of
 raising the matter under either the negotiated procedure or the relevant
 statutory or appellate procedure, but not both.
 
    Since 5 U.S.C. Section 4303 concerns performance-based actions and 5
 U.S.C. Section 7512 expressly excludes RIF actions from its coverage,
 the only exception to the 7121(a) exclusivity requirement relevant to
 RIF actions is the one relating to prohibited personnel practices.  See
 Johnson v. Department of Labor, 26 MSPR 447 (1985).  Thus, where RIF
 actions are within the coverage of the negotiated grievance procedure,
 an aggrieved employee would be excepted from the exclusivity requirement
 of section 7121(a) only where an allegation was made that he/she had
 been affected by a prohibited personnel practice.  The second sentence
 of the proposal conflicts with section 7121(a) because it would provide
 an exception to the exclusivity requirement with respect to any RIF
 action and without regard to whether a prohibited personnel practice was
 raised.  We find that this portion of this proposal is nonnegotiable.
 See American Federation of Government Employees, Local 1799 and
 Department of the Army, Aberdeen Proving Ground, Maryland, 22 FLRA No.
 62 (1986) (Provision 1).
 
    The third sentence of the proposal requires consultation prior to the
 first step of the grievance procedure.  The Agency does not advert to
 any reasons why this sentence of the proposal is nonnegotiable and none
 are otherwise apparent.
 
    Based on the above, we find that the second sentence of this proposal
 is not within the duty to bargain;  the remainder of the proposal is
 negotiable.
 
                              IV.  Proposal 3
 
          In order to minimize the impact of RIF on full-time unit
       members, the employer agrees to terminate all temporary,
       part-time, reemployed annuitants, stay-in-schoolers, and summer
       students, unless there are persuasive reasons for their retention.
 
                       A.  Positions of the Parties
 
    The Agency contends that this proposal is nonnegotiable because it
 interferes with management's rights under section 7106(a)(2)(A), to
 remove employees and, under section 7106(b)(1), to determine the types
 of employees assigned to the organization.  The Union states only that
 the proposal "stands as read."
 
                        B.  Analysis and Conclusion
 
    The Agency asserts, and we agree, that this proposal is similar to
 the one addressed in Federal Union of Scientists and Engineers and
 Department of Navy, Naval Underwater Systems Center, 22 FLRA No. 83
 (1986).  The proposals in both cases would require the Agency to
 terminate specified types of employees prior to taking RIF actions
 against full-time unit members.  Based on this effect, we found in Naval
 Underwater Systems Center, 22 FLRA No. 83, that the proposal excessively
 interfered with the agency's right under section 7106(a)(2)(A) to layoff
 employees.  The Union provides no basis for reaching a different
 conclusion here.  Although the proposal here contains language which
 might be viewed as an attempt to limit the extent to which the proposal
 interferes with management's right, the Union offers nothing to support
 such a position.  It is incumbent upon the Union to support a contention
 that a proposal is negotiable as an "appropriate arrangement" under
 section 7106(b)(3) and to explain the meaning of its proposal.  National
 Association of Government Employees, Local R14-87 and Kansas Army
 National Guard, 21 FLRA No. 4 (1986) (Provision 2).  In the absence of
 any basis in the record for reaching a conclusion different than that
 reached in Naval Underwater Systems Center, 22 FLRA No. 83, we find that
 this proposal is not within the duty to bargain.  In view of this
 conclusion we find it unnecessary to address the Agency's other
 arguments as to the negotiability of this proposal.
 
                                 V.  Order
 
    The Union's petition for review is dismissed insofar as it concerns
 Proposals 1, 3 and the second sentence of Proposal 2.  The Agency shall
 upon request (or as otherwise agreed to by the parties) bargain
 concerning the remainder of Proposal 2.  /2/
 
    Issued, Washi