25:1041(88)NG - NTEU and HHS, Region X -- 1987 FLRAdec NG



[ v25 p1041 ]
25:1041(88)NG
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. FLRA, 455 U.S.
 945 (1982). Based on the limited effect of Proposal 4 and for the
 reasons set forth more fully in the cases cited, we conclude that the
 proposal is negotiable under section 7106(b)(2).  In view of this
 conclusion, it is unnecessary to reach the question of whether the
 proposal is an "appropriate arrangement" under section 7106(b)(3).
 
                                II.  Order
 
    The Agency shall upon request (or as otherwise agreed to by the
 parties) bargain concerning Proposal 4.  /6/
 
    Issued, Washington, D.C., February 27, 1987.
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) As to this proposal as well as Proposals 4, 5 and 6 which follow,
 the Union contends that the Agency's statement of position does not meet
 the Authority's requirements for a full and detailed statement of
 reasons supporting allegations of nonnegotiability.  We are able to
 resolve the disputes presented as to all of the proposals despite the
 vagueness in the Agency's statement of position on some of them.
 However, we reiterate that the parties are responsible for creating the
 record upon which we will resolve negotiability disputes.  National
 Federation of Federal Employees, Local 1167 v. Federal Labor Relations
 Authority, 681 F.2d 886 (D.C. Cir. 1982).  A party failing to assume
 this burden acts at its peril.
 
    (2) The Union has not asserted that this particular proposal
 constitutes an appropriate arrangement negotiable under section
 7106(b)(3) and the record does not contain arguments or information
 about the degree to which the proposal would affect management's rights.
  Therefore, the Authority has not considered whether the proposal could
 constitute an appropriate arrangement under section 7106(b)(3).  See
 National Association of Government Employees, Local R14-87 and Kansas
 Army National Guard, 21 FLRA No. 4 (1986).
 
    (3) Case Nos. 9-CA-20090 and 9-CA-20231.
 
    (4) See Union Brief at 2 and Exhibits 2 and 3 attached to Agency
 Brief.
 
    (5) In finding these proposals within the duty to bargain, we make no
 judgment as to their merits.
 
    (6) In finding this proposal negotiable, we make no judgment as to
 its merits.
 
 
                        Opinion of Chairman Calhoun
 
    Section 7106(a)(2)(C) provides that in filling positions, management
 has the right to make selections from (1) properly ranked and certified
 candidates for promotion, or (2) any other appropriate source.
 Consistent with this right, management may always fill a vacant position
 through promotion.  Under Proposal 4, the Agency could fill a position
 through promotion only when the Agency considered that action to be
 "necessary for the essential functioning of the organization." In my
 view, therefore, the proposal conflicts with the Agency's right under
 section 7106(c)(2)(C).
 
    In National Treasury Employees Union and Department of Energy, 24
 FLRA No. 52 (1986), the proposal in dispute suspended 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 until the
 effective date of the RIF.  During that time period, the agency could
 fill those positions with affected, qualified bargaining unit employees
 only.  In my separate opinion in that case, I found that the proposal
 interfered with the agency's rights to make selections for positions and
 to hire.  I also found that the proposal did not excessively interfere
 with those rights and, as a result, was negotiable as an appropriate
 arrangement under section 7106(b)(3).
 
    As in Department of Energy, Proposal 4 in this case is intended as an
 arrangement for employees adversely affected by the Agency's exercise of
 its right to layoff employees, a matter which significantly affects
 employees but results from circumstances which are not within their
 control.  Unlike the proposal in Department of Energy, however, Proposal
 4 does not preclude the Agency from filling any bargaining unit position
 within the competitive area unless it selects a qualified bargaining
 unit employee.  Rather, by its terms, the proposal applies only to
 positions filled through reassignments and promotions within the
 bargaining unit and even then, requires only that qualified, affected
 bargaining unit employees be given priority consideration for those
 positions.  As such, the proposal would provide these employees with an
 opportunity to be considered for placement in positions for which they
 are qualified over other candidates which management may also consider
 to be qualified.
 
    In my view, the burden this arrangement would place on the Agency's
 exercise of its right is insubstantial when compared with the potential
 benefit to affected employees.  The arrangement is also far less
 burdensome to management than the one I found to be an appropriate
 arrangement in Department of Energy.  On these bases, I conclude that
 the proposal does not excessively interfere with the Agency's exercise
 of its rights and constitutes an appropriate arrangement under section
 7106(b)(3).
 
    Issued, Washington, D.C., February 27, 1987.
                                       /s/ Jerry L. Calhoun, Chairman 
 
 
 

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