26:0916(106)NG - NAGE, Local R7-23, and Air Force, HQ 375th ABG (MAC), Scott AFB, Ill. -- 1987 FLRAdec NG



[ v26 p916 ]
26:0916(106)NG
The decision of the Authority follows:


 26 FLRA No. 106
 
 NATIONAL ASSOCIATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL R7-23
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE 
 HEADQUARTERS 375th AIR BASE 
 GROUP (MAC), SCOTT AIR FORCE 
 BASE, ILLINOIS
 Agency
 
                                            Case No. 0-NG-933
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statment of the Case
 
    This case comes before the Authority because of a negotiability
 appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues as
 to the negotiability of two proposals.
 
                              II.  Proposal 1
 
    The FLRA Members disagree over the negotiability of this proposal.
 The decision and order on Proposal 1 and Chairman Calhoun's dissent
 immediately follow this decision.
 
                             III.  Proposal 2
 
    RIF principles will apply whenever an employee is scheduled for
 separation or downgrade through no fault of his/her own.
 
                       A.  Positions of the Parties
 
    The Agency argues that the proposal is inconsistent with management's
 rights under section 7106(a)(2)(A) of the Statute to assign and lay off
 employees to the extent that the proposal would apply RIF
 (reduction-in-force) principles to the termination of temporary and
 intermittent employees.  The Agency asserts that AFR 40-7 allows it to
 designate which temporary and intermittent employees it will lay off
 when a RIF is conducted and that the proposal would interfere with that
 designation.  The Agency also argues that the application of RIF
 principles to employees downgraded because of the issuance of new
 classification standards interferes with the Agency's right to determine
 whether or not to conduct a RIF and is inconsistent with AFR 40-7 for
 which a compelling need exists under section 2424.11(b) of the
 Authority's Rules and Regulations.
 
    The Union argues that its proposal does not interfere with the
 exercise of management's rights under section 7106(a)(2)(A) and disputes
 the Agency's assertion of compelling need.  The Union argues instead
 that the proposal is within the duty to bargain under section 7106(b)(2)
 and (3) of the Statute.
 
                       B.  Analysis and Conclusions
 
                           1.  Management Rights
 
    The Agency's RIF regulation, AFR 40-7, defines a RIF as "the release
 of an employee from a competitive level, because his or her position has
 been abolished or because he or she has been displaced by a senior
 individual." /1/ The regulation furthers outlines the circumstances
 under which RIFs may be required such as:  if a NAF instrumentality is
 dissolved;  an installation is deactivated;  a function is transferred;
 a reorganization takes place;  a position is reclassified due to a
 change in duties;  or there is a need to place an employee with
 reemployment or restoration rights.  The Union's proposal would apply
 the RIF principles -- apparently, RIF principles -- set forth in the
 regulation whenever an employee is scheduled for separation or downgrade
 through no fault of his or her own.  The Union indicates that the cited
 regulation does not allow for this for all employees or for employees
 who have had classification standards applied.
 
    The Agency points to two situations where application of the RIF
 principles would be inconsistent with the exercise of management's
 rights.  First, the Agency claims that AFR 40-7 allows it to designate
 which temporary or intermittent employee will be laid off when a RIF is
 conducted.  By replacing the Agency's designation of an employee with a
 designation resulting from the application of the RIF procedures, the
 Agency argues that the proposal would violate its right to remove
 employees and to determine who will be removed under section
 7106(a)(2)(A) of the Statute.
 
    Second, the Agency states that AFR 40-7, Chapter 10-9(a) provides
 that RIF procedures do not apply when employees are affected by the
 application of new classification standards.  /2/ The Agency argues that
 the proposal would require that a RIF be conducted, which would result
 in the least senior employee being affected by the application of the
 new classification standard rather than the incumbent of the affected
 position.  Thus, according to the Agency, this is contrary to the
 Agency's right to assign employees under section 7106(a)(2)(A).
 
    For the reasons set forth below, we find that the proposal is a
 negotiable procedure under section 7106(b)(2) of the Statute.  In our
 view, the Union is seeking to apply the Agency's own procedures
 governing RIF, as set forth in AFR 40-7, to certain situations -- that
 is, where the Agency determines to separate or downgrade an employee
 through no fault of the employee.  As in any RIF situation after an
 agency has determined which positions will be reduced in grade or
 abolished, formulas or procedures are used that will identify the
 employees who will ultimately be affected.  Here, the Agency established
 procedures that are used in various situations.  The procedures rank
 employees based on factors that take into account such matters as
 seniority and performance.  The proposal essentially provides that when
 the Agency decides to take one of the specified actions, the established
 procedures will be used to determine which employees will be affected.
 The proposal does not require the Agency to lay off employees and it
 does not interfere with the Agency's rights under section 7106(a)(2)(A)
 to determine whether positions will be abolished or which positions will
 be abolished since those determinations will already have been made by
 the Agency.  It is only after the Agency has made the determinations
 that the proposal would require the application of the Agency's own
 procedures for determining which employees will be affected.  In like
 manner, the proposal does not interfere with the Agency's rights to
 determine whether and/or which positions will be downgraded as a result
 of new classification standards.  The proposal does not affect in any
 way the actual classification of the position.  Furthermore, it does not
 prevent the Agency from determining what qualifications are necessary to
 perform any given job and whether employees affected by the downgrading
 possess the necessary qualifications to perform the job.  In other
 words, the proposal would not result in the reassignment of an employee
 to a position that the employee could not qualify for.  Thus, the
 proposal does not violate the Agency's right under section 7106(a)(2)(A)
 to assign employees.  In sum, the proposal would simply apply a
 procedure, established by the Agency, when the Agency takes action that
 results in the separation or downgrade of an employee when the employee
 is not at fault.
 
         2.  No compelling need has been shown to bar negotiations
 
    The Agency argues that as the proposal applies to employees
 downgraded as a result of a new classification, the proposal is also
 inconsistent with AFR 40-7 which preserves the merit principle of
 equitable treatment of employees.  As was previously argued, the
 proposal would affect not just the incumbent of the position that was
 downgraded but would also affect employees with the least amount of
 seniority thereby creating inequity for the least senior employees.  In
 response, the Union claims that the use of the RIF procedures would
 create greater equality among employees than would otherwise exist since
 the proposal would ensure that objective standards and procedures are
 available when such action is taken.
 
    We find that the Agency has failed to establish that a compelling
 need exists for the regulation so as to bar negotiations on the
 proposal.  While the Agency has demonstrated that the proposal would
 conflict with AFR 40-7, Chapter 10-9(a), to the extent that the
 regulation now precludes its application to downgrading based on new
 classification standards, the Agency has not substantiated its
 contentions by reference to any specific merit principle which its
 regulation assertedly implements, nor has it demonstrated how the
 proposal would require it to act in a manner that is inconsistent with
 basic merit principles.
 
                                IV.  Order
 
    The Agency must bargain, upon request, or as otherwise agreed to by
 the parties, over the proposal.  /3/
 
    Issued, Washingtion, D.C., April 30, 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 1
 
          Proposal 1
 
          When an employee changes grade for whatever reason, their total
       hours of accrued annual leave will not be changed.
 
                       A.  Positions of the Parties
 
    The Agency argues that the proposal is outside the duty to bargain
 for two reasons.  First, the Agency contends that section 7103(a)(14) of
 the Statute does not authorize bargaining on wages and fringe benefits
 for the non-appropriated fund (NAF) employees involved here.  Second,
 the Agency argues that the proposal would conflict with an agency
 regulation for which there is compelling need under section 2424.11(b)
 of the Authority's Rules and Regulations.  More specifically, the Agency
 claims that AFR 40-7, which governs annual leave, treats all NAF
 employees in a uniform manner with respect to the transfer of accrued
 leave.  /4/ The proposal, the Agency argues, would violate basic merit
 principles of treating employees in a uniform manner, free from
 capricious judgment and discriminatory treatment.
 
    The Union argues that it is not seeking to bargain over wages and
 fringe benefits but, rather, is seeking to bargain over the procedures
 to be used in transferring accrued hours of annual leave.  The Union
 indicates that its intent behind the proposal is to allow an employee
 who has been promoted to carry over into the new position the same
 amount of accrued annual leave that the employee had in the position
 from which promoted.  The Union further argues that the Agency has
 failed to support its assertion of compelling need for AFR 40-7 to bar
 negotiations.
 
                       B.  Analysis and Conclusions
 
         1.  The proposal is a negotiable condition of employment
 
    In American Federation of Government Employees, AFL-CIO, Local 1897
 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA
 No. 41 (1986), petition for review filed sub nom. Department of the Air
 Force, Eglin Air Force Base, Florida v. FLRA, No. 87-3037 (11th Circ.
 Feb. 2, 1987), we held that nothing in the Statute or its legislative
 history bars negotiation of proposals relating to pay and fringe
 benefits insofar as:  (1) the matters proposed are not specifically
 provided for by law and are within the discretion of the agency, and (2)
 the proposals are not otherwise inconsistent with law, Government-wide
 rule or regulation or an agency regulation for which a compelling need
 exists.  Based on that analytical framework, we held that the proposal
 in that case, which required the agency to pay up to a certain
 percentage of the premium cost of health insurance for NAF employees,
 was within the duty to bargain.  We noted in that case also that in the
 Federal sector, wages and fringe benefits of most employees are
 established and controlled by law.  However, there are exceptions where
 matters concerning the nature or amount of the wages and fringe benefits
 are left to the discretion of the employing agencies.  See also American
 Federation of Government Employees, AFL-CIO, Local 997 and Department of
 the Air Force, Maxwell Air Force Base, Alabama, 24 FLRA No. 51 (1986),
 petition for review filed sub nom. Department of the Air Force, Maxwell
 Air Force Base, Alabama, v. FLRA, No. 87-7102 (11th Cir. Feb. 11, 1987)
 (proposal concerning payment by the employer for various other types of
 insurance, including health insurance, was found to be within the scope
 of bargaining).
 
    The case before us also involves NAF employees and, more
 particularly, concerns their accrued annual leave.  In Service Employees
 International Union, Local 556, AFL-CIO and Department of the Navy,
 Marine Corps Exchange 0911, Marine Corps Air Station, Kaneohe Bay,
 Hawaii, 26 FLRA No. 47 (1987), we found that leave benefits for NAF
 employees are governed not be Federal law, but by agency regulations.
 See also American Federation of Government Employees, AFL-CIO, Local
 1786 and U.S. Marine Corps, Marine Corps Exchange, Henderson Hall,
 Arlington, Virginia, 26 FLRA No. 54 (1987).  The Agency here has not
 argued that the Union's proposal concerns a matter that is specifically
 provided for by Federal law.  Rather, the Agency cites to its own
 regulation, AFR 40-7, as governing leave for the NAF employees.  Since
 matters relating to leave are not specifically provided for by Federal
 law, but are within the agency's discretion, the matter is not excepted
 from bargaining under section 7103(a)(14) of the Statute, as alleged.
 
         2.  No compelling need has been shown to bar negotiations
 
    To establish that a proposal is nonnegotiable on the basis of
 compelling need, an agency must:  (1) identify a specific agency-wide
 regulation;  (2) show that there is a conflict between its regulation
 and the proposal;  and (3) demonstrate that its regulation is supported
 by a compelling need with reference to the Authority's illustrative
 standards set forth in section 2424.11 of the Aurhtority's Rules and
 Regulations (5 CFR Section 2424.11).  Generalized and conclusionary
 reasoning does not support a finding of compelling need.  American
 Federation of Government Employees, AFL-CIO, Local 3804 and Federal
 Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986)
 (Proposal 7).
 
    Here, the Agency claims that a compelling need exists for AFR 40-7 to
 bar negotiations on the proposal because the regulation implements basic
 merit principles.  Specifically, the Agency states that its policy is
 designed in part to treat all NAF employees "equitably and fairly and
 according to Federal law, Executive Orders, and regulations that apply"
 and to "(p)rovide a basis for achieving greater uniformity among NAFIs
 in nonappropriated fund personnel management." Agency Statement of
 Position at 2-3.  Adherence to the proposal, the Agency argues without
 elaboration, would violate "the basic merit principle of treating
 employees in a uniform manner free from capricious judgment and
 discriminatory treatment." Agency Statement of Position at 13-14.
 
    The Agency's argument cannot be sustained.  The Agency does not cite
 a specific merit system principle, see 5 U.S.C. Section 2301, and it is
 thus unclear on what merit principle the Agency is attempting to rely.
 Moreover, as to the Agency's specific contentions as to the need for
 "uniform" treatment of employees, those contentions appear to be based
 on the premise th