25:0964(79)NG - FUSE, NAGE Local R1-144, SEIU and Navy, Naval Underwater Systems Center -- 1987 FLRAdec NG
[ v25 p964 ]
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, Washington, D.C. February 27, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) During the pendency of this appeal, the Union requested to withdraw its appeal as to Proposal 2. Before the Authority acted on the request, the Union requested to reinstate its appeal on that proposal. Since the Agency has offered no opposition to reinstatement and has submitted arguments on the merits of that proposal, we have considered that proposal in this decision. (2) In finding this portion of Proposal 2 within the duty to bargain, we make no judgment as to its merits.