25:1041(88)NG - NTEU and HHS, Region X -- 1987 FLRAdec NG
[ v25 p1041 ]
The decision of the Authority follows:
25 FLRA No. 88 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION X Agency Case No. 0-NG-628 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It raises issues concerning the negotiability of eight proposals, which arose in negotiations over a supplement to the parties' master agreement regarding reduction-in-force (RIF) procedures. For the reasons which follow we hold that proposals 1, 2 and 6 are nonnegotiable, proposals 3, 4 and 5 are negotiable, and the dispute as to proposals 7 and 8 is moot. II. Proposal 1 Section 3 The employer shall establish competitive levels consisting of all positions in a competitive area, and in the same grade or occupational level which are sufficiently alike in qualification requirements, duties, responsibilities, pay schedules, and working conditions, so that the employer may readily reassign the employee of any one position to any of the other positions without changing the terms of the employee's appointment or unduly interrupting the agency's work program. In so doing, the employer shall establish the competitive levels as broadly as possible to combine as many positions as possible and in an impartial manner. A. Positions of the Parties The Agency asserts that because competitive levels are determined as a result of various management decisions about organization, assignment of work and selection of personnel, this proposal has a direct impact on its management rights under section 7106(a)(1), 7106(a)(2)(B), and 7106(a)(2)(C). To protect these rights, it claims it must retain full discretion to determine the content and necessary qualifications of positions. It argues that this proposal would interfere with that discretion. The Union denies that the proposal would interfere with any management rights. It states that it intends the proposal to require Agency compliance with Office of Personnel Management (OPM) regulations (5 CFR Section 351.403) concerning the establishment of competitive levels. The Union further states that while the proposal would establish a "general, non-quantitative standard" for the establishment of competitive levels, it would not prescribe the specific positions to be placed in them and would leave to Agency discretion the contents of the competitive levels. In direct response to the Agency's arguments, the Union contends that competitive levels reflect, rather than define, the content of positions. B. Analysis and Conclusions For the reasons set forth below, we find that this proposal is not within the duty to bargain. During the pendency of this case the OPM RIF regulations were revised. 51 Fed. Reg. 318 (1986). The revised regulations require that the positions placed in a competitive level be sufficiently similar so that the incumbent of one can successfully perform the critical elements of any other without any loss of productivity beyond that normally expected of a new but fully qualified employee. In our view this is a narrower standard than that set forth in the proposal, i.e., assignments not resulting in a change in the terms of the employee's appointment or undue interruption to agency work programs. The proposal is inconsistent with the OPM regulations which are Government-wide rules or regulations within the meaning of the Statute. National Treasury Employees Union, NTEU Chapter 202 and Department of the Treasury, Bureau of Government Financial Operations, 22 FLRA No. 58 (1986) (Proposal 1). In view of this conclusion, we do not find it necessary to address the Agency's arguments that the proposal conflicts with management's rights. However, we note that the Authority has addressed the negotiability of proposals relating to the definition of competitive levels. A proposal which merely requires an agency to comply with OPM RIF regulations governing competitive levels is negotiable. American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA 674 (1985) (Union Proposal 4), remanded as to other matters sub nom. Local 12, American Federation of Government Employees v. FLRA, No. 85-1371 (D.C. Cir. Feb. 11, 1986). Recently, we held nonnegotiable a proposal which would have required all positions in the same or a related series to be placed in the same competitive level. The proposal deprived the agency of its discretion to determine the qualification requirements of the positions to be placed in competitive levels and excessively interfered with the agency's management rights. Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA No. 21 (1987) (Proposal 6). III. Proposal 2 Section 4 Competitive Areas. There shall be one competitive area for bargaining unit employees. The competitive area of the Department is defined as all those positions under the personnel administration and appointing authority of the Regional Director of the Department of Health and Human Services, Region X, within the commuting area of Seattle. A. Positions of the Parties The Agency asserts that the proposal is nonnegotiable because it would determine conditions of employment of employees outside the bargaining unit. The Union contends that the proposal is limited to prescribing that there be one competitive area for bargaining unit employees and that there is no intention to extend its collective bargaining rights beyond its bargaining unit. B. Analysis and Conclusions The Union's explanation of this proposal does not make clear whether the proposed competitive area is limited strictly to positions in the bargaining unit or would include whatever other positions exist within the geographical and organizational boundaries specified. However, under either interpretation, the Union's proposal would be nonnegotiable. Although the Agency has failed to provide clear factual support for its assertion that the proposed competitive area would encompass nonunit employees, it is reasonable to conclude that the geographical and organizational boundaries described by the proposal would include, at least, supervisory personnel. Thus a proposal to include, literally, all positions within those boundaries in a competitive area would effectively define the competitive area for nonunit employees as well as unit employees and, for that reason, is outside the Agency's duty to bargain. American Federation of Government Employees, Local 32, AFL-CIO, and Office of Personnel Management, 22 FLRA No. 49 (1986), petition for review filed sub nom. American Federation of Government Employees, Local 32, AFL-CIO, v. FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986). If the proposal is intended to define a competitive area in terms of, and limited to, the bargaining unit, it is inconsistent with OPM regulations. Current OPM regulations require that a competitive area "be defined solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined." (Emphasis supplied.) 5 CFR Section 351.402(b), 51 Fed. Reg. 318 at 321 (1986). A competitive area defined in terms of bargaining unit membership does not meet this standard. As noted in section II(B) of this decision, the Opm regulations are Government-wide regulations. IV. Proposal 3 /1/ Section 9 (a) When possible, the agency shall retain the employee on active duty during the notice period, but it may place him/her on annual leave with or without his/her consent, or in a nonpay status without his/her consent when in an emergency the agency lacks work or funds for all or part of the notice period. (b) When such determinations are made under (a) above, they will be done in a fair and equitable manner. A. Positions of the Parties The Agency contends that the proposal conflicts with section 7106(a)(2)(A) of the Statute, without specifying the particular management right or rights contained in that section with which the proposal is an appropriate arrangement for employees adversely affected by a RIF and is negotiable pursuant to section 7106(b)(3) of the Statute. The Union describes section (a) of the proposal as mirroring provisions of the OPM RIF regulations found at 5 CFR Section 351.807. It contends that the proposal would leave the Agency the discretion to determine whether or not it is possible to retain an employee on duty status during the notice period relating to a RIF because of lack of funds or work. Section (b) is intended to prescribe a "general nonquantitative" standard by which such determinations may be evaluated in a grievance. B. Analysis and Conclusion Based on the following, we find that the proposal is negotiable. The proposal applies to the period between the time employees have received notice from the Agency that they will be affected by a RIF action and the effective date of the RIF action. Section (a) of this proposal would only require, absent an emergency such as lack of funds or work, retention of employees in duty status during but not beyond the notice period. It would leave the Agency the discretion to determine that, based on budgetary or workload considerations, this is not possible. The Agency has not shown, nor is it otherwise apparent, that this proposal would prescribe substantive criteria which management must apply in exercising its right to conduct a RIF. Consequently, we conclude that the proposal does not directly interfere with any of management's rights which are typically associated with the RIF process, for example, the rights to layoff and retain, and is procedural within the meaning of section 7106(b)(2). We conclude further that there has been no showing and it is not apparent that this proposed procedure is nonnegotiable because it would prevent the Agency from exercising its right to conduct a RIF. Compare National Federation of Federal Employees, Local 1900 and Department of Housing and Urban Development, 15 FLRA 465 (1984), in which the Authority found that a proposal which would require a stay of a RIF action pending the outcome of an appeal to the Merit Systems Protection Board was a negotiable procedure under section 7106(b)(2). Section (b) requires only that the Agency make determinations as to employee status during the notice period in a fair and equitable manner. The Authority has previously held that the establishment of a "fair and equitable" standard by which actions may be subsequently evaluated in a grievance does not conflict with those rights and is an appropriate arrangement within the meaning of section 7106(b)(3). American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980) (Proposal 5). There is no basis in the record of this case for reaching a different conclusion with respect to section (b) of this proposal. Section (b) by its language and the Union's statement of its intended meaning, would establish only a general, nonquantitative standard by which the application of management determinations made in the context of a RIF may be evaluated in a grievance. Therefore, we conclude that it would not conflict with the Agency's management rights and that it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. In view of the fact that the proposal does not conflict with the Agency's management rights to conduct a RIF, it is not necessary to determine whether the proposal would excessively interfere with management rights. Compare National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986) where the Authority set forth an "excessive interference" standard to determine whether a proposal which conflicts with management's rights is within the duty to bargain as an "appropriate arrangement" under section 7106(b)(3). V. Proposal 4 The Members of the Authority disagree over the negotiability of this proposal. The Decision and Order of the Authority is on page . . . of this decision. Chairman Calhoun's opinion is on page . . . . VI. Proposal 5 Section 11 During the period of the general notice the Employer will make diligent efforts to make lateral reassignment placement opportunities for those employees affected by RIF to other vacant positions within the bargaining unit for which the employees qualify. In that regard the employer may waive non-mandatory qualifications to facilitate placement of the affected employees at the same or lower grade. The employer agrees to attempt to do so to the maximum extent feasible consistent with the needs of the agency to carry out its mission. Employees can submit a SF 171 and RX 39 volunteering for positions which will ee available after the RIF is completed. The employer will provide the new organizational structure to employees prior to issuing specific notices so that they can volunteer. A. Positions of the Parties The Agency's position is limited to a statement that determinations on placement of employees into vacant positions and waiver of qualifications requirements under RIF conditions are management rights under section 7106(a)(2)(A), (C) and (D) and that this proposal is nonnegotiable. The Union contends that the proposal is negotiable under section 7106(b)(3) as an appropriate arrangement. Additionally, it contends that under this proposal the Agency retains discretion on waiving qualification requirements since the proposal does not mandate that it do so. As for the last sentence of the proposal, the Union asserts that its effect would only be to delay, as opposed to prevent, issuance of specific RIF notices. B. Analysis and Conclusions The first sentence of this proposal, read in conjunction with the third sentence, requires that the Agency make "diligent efforts" to provide employees with lateral reassignments for which they qualify to the maximum extent feasible consistent with the needs of the Agency to carry out its mission. The second sentence read in conjunction with the third effectively requires that with respect to those reassignments the Agency will waive nonmandatory qualifications requirements to the maximum extent feasible consistent with the needs of the Agency to carry out its mission. The Authority has found that proposals regarding placement of employees in vacant positions in RIF situations relate to an agency's right under section 7106(a)(2)(C) to make selections for appointments. We have found that proposals which would actually limit the agency's discretion interfere with that right. See, for example, American Federation of Government Employees, AFL-CIO, Local 987 and Headquarters, Warner Robins Air Force Logistics Command, Robins Air Force Base, Georgia, 8 FLRA 667 (1982) (Proposal 3), reversed as to other matters sub nom. United States Air Force v. Federal Labor Relations Authority, 727 F.2d 1502 (11th Cir. 1984). On the other hand, we have found that proposals which allow the agency to retain full discretion as to substantive matters involved in the exercise of its management rights, do not interfere with that right. See, for example, American Federation of Government Employees, AFL-CIO, Local 1692 and Department of the Air Force, Mather Air Force Base, California, 8 FLRA 194 (1982) (Proposal 2). In this case, the Union asserts that the proposal does not require the Agency to make lateral reassignments but only calls for diligent efforts to be made to that end. In our view requiring the Agency to make diligent efforts to make lateral reassignments to vacant positions, although not expressly mandating reassignments and allowing an exception in those circumstances where inconsistent with the Agency's needs to carry out its mission, nevertheless limits the Agency's discretion to determine whether or not to make such reassignments. Under the proposal, where the Agency's diligent efforts indicate that a reassignment is possible, it would not then be free to refrain from actually making the reassignment. That is, the practical effect of the proposal would be to require reassignment where they are possible and are not inconsistent with mission needs. Thus, this aspect of the proposal interferes with the Agency's right under section 7106(a)(2)(C) to make selections for appointments. Compare American Federation of Government Employees, AFL-CIO, International Council of Marshals Service Locals and U.S. Marshals Service, 15 FLRA 333 (1984) (Proposal 2), where the Authority found that, because a proposal about use of vacancies in a RIF was purely hortatory, it was within the duty to bargain with American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446 (1983) (Proposal 3) where the Authority found that insertion of the phrase "to the extent practicable" did not remove a limitation imposed by a proposal on management's exercise of its reserved rights. Also, see American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 23 FLRA No. 25 (1986). We reach a similar conclusion with respect to that portion of the proposal which binds the Agency to attempt to waive nonmandatory qualifications to the maximum extent feasible consistent with its needs to carry out its mission. The Agency's right under section 7106(a)(2)(A) to assign employees encompasses the discretion to determine the personnel requirements of the work such as the qualifications and skills needed to do the work. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. American Federation of Government Employees, AFL-CIO v. FLRA, 455 U.S. 945 (1982). See also, National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565 (1983) (Proposals 1 and 2) in which the Authority found that determination of the skills, knowledge and abilities needed to perform the work of a position is an integral part of management's right under 7106(a)(2)(C) to select employees for appointment. The proposal imposes substantive limitations on the Agency's discretion to decide whether to waive nonmandatory qualifications by requiring an actual attempt to do so within the specified guidelines. Consequently, it interferes with the Agency's rights under section 7106(a)(2)(A) to assign employees and section 7106(a)(2)(C) to select employees for appointment. As to the remainder of the proposal, the Agency does not explain how, nor is it otherwise apparent that, the last two sentences interfere in any way with any management rights relating to filling vacant positions, determination of qualifications requirements for positions, or conduct of a RIF. Nor has the Agency explained how any portion of the proposal would interfere with its right under section 7106(a)(2)(D) to take actions necessary to carry out its mission during emergencies. Accordingly, we find that these particular contentions cannot be sustained. Having found that the first three sentences interfere with the rights to assign and select employees for appointments, the remaining question is whether that portion of the proposal is negotiable as an appropriate arrangement under section 7106(b)(3). The degree of interference with the Agency's rights to assign and to select is limited. The proposal does not place an absolute requirement on the Agency to place employees in vacancies or to waive nonmandatory qualifications. Even though the proposal requires actual efforts or attempts to make lateral reassignments and waive nonmandatory qualifications the third sentence allows for consideration of factors such as impact on the effectiveness and efficiency of Agency operations and whatever other legitimate considerations the Agency may have. Thus, the proposal would not totally abrogate the Agency's discretion to determine whether or not to place employees in vacancies and waive nonmandatory qualifications. Compare National Federation of Federal Employees, Local 1450 and U.S. Department of Housing and Urban Development, 23 FLRA No. 1 (1986), where a proposal would absolutely prohibit the Agency from requiring qualifications beyond minimum X-118 standards in placing employees affected by a RIF in vacancies. RIF's and their associated actions severely affect employees. See, for example, National Association of Government Employees, Local R14-87, and Kansas Army National Guard, 21 FLRA No. 4 (1986). This proposal seeks to minimize the number of employees who are separated or demoted in a RIF and could promote that result. Based on its express recognition of the Agency's mission needs as a limitation on the application of its terms, we conclude that the proposal's interference with the Agency's ability to carry out its mission would not be substantial. Balancing the respective interests of management and employees, we find after considering the limited impact on management's rights and the potential benefit to employees that the proposal does not excessively interfere with the Agency's management rights. It is therefore an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and is within the duty to bargain. VIII. Proposal 6 Section 13 Prior to implementation of a RIF, the employer will take all reasonable steps necessary to attempt to convert those employees expressing a desire under Section 12 to convert to permanent part-time status in lieu of separation. A. Positions of the Parties The Agency asserts that determinations concerning conversion of employees to part-time status relate to numbers, types and grades of employees or positions assigned to a tour of duty and under section 7106(b)(1) are not within the duty to bargain. The Union contends that the proposal establishes a general, nonquantitative standard by which the Agency's exercise of its rights to implement a RIF can be evaluated in a subsequent grievance. It argues that it also constitutes a negotiable procedure under section 7106(b)(2) by which employees may be converted to part-time status. It disputes the Agency's assertion that the proposal interferes with its 7106(b)(1) rights. It contends that the proposal would merely delay implementation of a RIF while the Agency takes all reasonable steps to convert employees to part-time status. B. Analysis and Conclusions Based on the following reasons, we find that this proposal is not within the duty to bargain. In our view, determinations as to use of part-time employees to perform the work of the Agency is a matter directly related to the numbers, types and grades of employees or positions assigned to its organizational subdivisions, work projects and tours of duty and is outside the duty to bargain pursuant to section 7106(b)(1). See National Federation of Federal Employees, Local 1650 and U.S. Forest Service, Angeles National Forest, 12 FLRA 611 (1983) (Proposal 2) in which the Authority found that a proposal which would require, under specified circumstances, that an agency recall WAE employees to duty was, under section 7106(b)(1), negotiable only at the election of the agency. The proposal infringes on the Agency's discretion under section 7106(b)(1) which includes, among other things, the determination as to whether to use part-time employees on its staff at all and, if so, how many. The proposal would require an attempt at conversion regardless of whether the Agency had exercised its discretion to make those determinations. Employee wishes would require Agency efforts at conversion. The proposal would have the effect of forcing the Agency to make conversions where they were possible despite the Agency's judgment as to their desirability. Moreover, this proposal would effectively require the Agency to condition the exercise of one right -- the right to layoff under section 7106(a)(2)(A) -- on its prior exercise of its right under section 7106(b)(1) to determine the numbers, types and grades of employees or positions assigned to its organizational subdivision work projects and tours of duty. It therefore interferes with those rights separately and collectively. See American Federation of Government Employees, AFL-CIO, Local 12 and Department of Labor, 18 FLRA No. 58 (1985) (Proposal 1). Since it is directly related to substantive determinations involved in the Agency's exercise of its rights, it cannot be a procedure which is negotiable under section 7106(b)(2). See Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 at 1152 (D.C. Cir., 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), in which the court noted the distinction between proposals cast in procedural language which impinge on substantive management decisions and those which are purely procedural in nature. Also, because the proposal would interfere with the substantive exercise of the Agency's management rights it is not negotiable as a general, nonquantitative standard by which the Agency's exercise of its authority to conduct a RIF may be judged. /2/ IX. Proposals 7 and 8 (Proposal 7) Section 23 No RIF will be implemented until any reorganization/restructuring resulting from the RIF is finally determined, including completion of any necessary negotiation with NTEU. (Proposal 8) Section 24 The employer shall not implement any of the terms of this agreement until negotiations are completed. Negotiations include negotiability appeals and the subsequent negotiation sessions until agreement is reached on this agreement. A. Positions of the Parties The Agency asserts these proposals are nonnegotiable in view of action by the General Counsel of the Authority dismissing two unfair labor practice charges regarding the Agency's implementation of the RIF which was the subject of the negotiations underlying this petition. It characterizes the General Counsel's decisions as holding that, under the circumstances, the Agency was not obligated to delay implementation of the RIF until completion of the negotiation process. /3/ It contends that these decisions support its contention that these proposals are nonnegotiable under section 7106(a)(2)(A). The Union acknowledges that the intent of these two proposals is to delay implementation of the RIF until, among other things, completion of the negotiation process. Although it does not dispute the applicability of the General Counsel's decisions to the RIF involved in this case, it contends that they have no relevance to the question of the negotiability of these proposals. As to the merits of the issue, it contends that, because these proposals would only delay implementation of the RIF, they are negotiable under section 7106(b)(2) of the Statute. B. Analysis and Conclusions The record in this case shows that the RIF which was the subject of these two proposals has been implemented. /4/ Since these two proposals involve the prospective implementation of that RIF, the dispute has been rendered moot and in our view a bargaining order would serve no purpose. For that reason we are dismissing this portion of the petition. See, for example, American Federation of Government Employees, AFL-CIO, Local 3742 and Department of the Army, Headquarters, 98th Division (Training), Webster, New York, 11 FLRA 189 (1983). X. Order The Agency must upon request (or as otherwise agreed to by the parties) bargain concerning Proposals 3 and 5. /5/ The Union's petition for review as to Proposals 1, 2, 6, 7 and 8 is dismissed. 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 DECISION AND ORDER ON PROPOSAL 4 I. Proposal 4 Section 10 After a RIF has been directed or approved by higher authority, and a general notice issued, and until the RIF is consummated or cancelled, reassignments and competitive promotions within the bargaining unit will be restricted to those actions the Employer considered necessary for the essential functioning of the organization. If the Employer decides to fill a vacancy by promotion (other than career ladder, correction of classification error, or other mandatory placement actions), employees who are in the identified competitive level/areas who have received a general notice of RIF who meet basic eligibility requirements and express an interest in the vacancy will be given priority consideration over employees not in identified competitive levels/areas for RIF. When two or more Operating Divisions or Staff Offices are in a RIF situation, the Employer will give first consideration to those employees in their respective organizations. A. Positions of the Parties The Agency asserts that determinations concerning reassignments, promotions and other placements on a selective basis are management rights under section 7106(a)(2)(A) and (C) and, in a reduction-in-force situation, also (D). Without any further explanation as to its reasons, it contends that this proposal is nonnegotiable. The Union argues that the proposal is an appropriate arrangement for employees adversely affected by a RIF. It notes that under the proposal the Agency retains the discretion to fill vacancies which it deems necessary for the essential functioning of the organization. When the Agency decides to fill a position, the proposal requires not that the Agency actually select employees who are subject to a RIF notice but only that it give them priority consideration. It contends that, under the proposal, the Agency retains discretion with respect to exercising its management rights. B. Analysis and Conclusion The Authority has found that proposals which require consideration, but not selection, of unit employees for vacancies do not interfere with the Agency's management right relating to filling vacancies. See, for example, Association of Civilian Technicians, New York State Council and State of New York, Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475 (1983) (Proposal 1). Also the Authority has found that a proposal which in limited circumstances would only delay the filling of a vacancy until after a RIF is over does not interfere with management rights associated with filling vacancies. National Treasury Employees Union and Department of Energy, 24 FLRA No. 52 (1986). The first sentence of this proposal would suspend the filling of vacancies within the bargaining unit by reassignment or competitive promotion from the date a RIF notice is issued until the RIF is consummated or cancelled unless the Agency considers the actions necessary to the essential functioning of the organization. As to those actions, the remainder of the proposal would require the Agency only to give priority consideration to the employees specified in the proposals. As to actions which the Agency does not consider necessary to essential functioning, the proposal would merely delay the filling of vacancies by reassignments or competitive promotions until the RIF is over. We conclude that this proposal would merely establish a procedure for management to follow in filling vacancies by reassignment or competitive promotion when a RIF is on-going. There is no showing here nor is it otherwise apparent that any delay resulting from the proposal would prevent the Agency 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), cert. denied sub nom. AFGE v.