29:0471(47)NG - NAGE, LOCAL R1-144 VS NAVY, NAVAL UNDERWATER SYSTE



[ v29 p471 ]
29:0471(47)NG
The decision of the Authority follows:


29 FLRA NO. 47



NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-144

                   Union

           and

DEPARTMENT OF THE NAVY, NAVAL
UNDERWATER SYSTEMS CENTER

                   Agency

Case No. 0-NG-1308

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations statute (the Statute) and presents issues Concerning the negotiability of two proposals set forth in their entirety in an Appendix to this decision. 1 For the reasons discussed below, we find that the first and second disputed portions of Proposal 1, and the first sentence of Proposal 2 are negotiable. The rest of Proposals 1 and 2 are nonnegotiable.

II. First Disputed Portion of Proposal 1

12(a) An employee against whom an appealable adverse action is proposed is entitled to . . .

(e)(1) If appropriate, the basis of selecting a particular employee for furlough, when some but not all, employees in a competitive level are being furloughed and the persuasive reasons for the furlough. (Only the underlined portion is in dispute).

A. Position of the Parties

The Agency argues that by requiring the reasons for a furlough to be "persuasive" the proposal interferes with management's right to lay off under section 7106(a)(2)(A) of the Statute. Specifically, the Agency claims that management's decision to furlough would be subjected to arbitral review. According to the Agency, the proposal would permit the substitution of an arbitrator's judgment for that of management in deciding whether a furlough is necessary, and which employees and skills would not be needed for the duration of the furlough.

The Union claims that requiring persuasive reasons for furloughing a particular employee merely obligates the Agency to implement a furlough in accordance with the requirements of 5 C.F.R. 752.301. The Union relies on Clark v. Office of Personnel Management, 84 FMSR 5945 (1984). In that case, the Merit Systems Protection Board (MSPB) found that an agency satisfied the requirement that a furlough be undertaken for such cause as promoted the efficiency of the service by showing that the furlough was a reasonable solution to a shortage of funds problem and that the agency determined which employees to furlough in a fair and even manner. The Union also argues that this sentence constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusion

We find that this sentence is negotiable for reasons set forth below.

1. Agencies are obligated to provide the reasons for furloughing employees.

Based on the record, the furloughs involved herein are furloughs for 30 days or less. Statement of Position at 2. Furloughs for 30 days or less are defined as adverse actions under 5 U.S.C. 7512 and are carried out according to the procedures set out in 5 U.S.C. 7513 and 5 C.F.R. Part 752. Furloughs for 30 days or less may be taken only for such cause as will promote the efficiency of the service. 5 U.S.C. 7513(a). Further, under applicable regulations, when some but not all employees in a competitive level are being furloughed for 30 days or less, an agency is obligated to provide "the basis for selecting a particular employee for furlough, as well as the reasons for the furlough." 5 C.F.R. 752.404(b)(2). 

2. The use of the term "persuasive reasons" has been found negotiable in relation to a management right.

In AFSCME, Local 2077 and ACTION, 27 FLRA No. 32 (1987) (Proposal 1, Chairman Calhoun concurring) the same terminology at issue here was found negotiable by a majority of the Authority members. In that case, the management right involved was the right to select from any appropriate source. The proposal required that repromotion eligible employees on the best qualified list who had applied for a vacancy through the competitive process, if not selected, be given written, persuasive reasons for non-selection. The majority noted that the proposal did not require the agency to select any particular employee on the best qualified list, but only to provide a non-selected employee with "persuasive reasons" for non-selection. Thus, they concluded that the proposal merely established a procedure for management to follow in the exercise of its rights to hire and select. 2

Likewise, this proposal does not prevent the Agency from exercising its right to lay off employees, nor to determine which employees will be laid off. The proposal in this case merely establishes a procedure to follow in the exercise of its management right to lay off employees. In view of our finding that these provisions constitute procedures which do not substantively interfere with the Agency's rights, it is unnecessary to determine whether they are appropriate arrangements. International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provision 5).

3. The Proposal Does Not Authorize Arbitrators to Substitute Their Judgment for that of the Agency.

If an agency's action to furlough employees for 30 days or less is grieved under a negotiated grievance procedure, an arbitrator must apply the same standards in deciding the case as would be applied by an administrative law judge or an appeals officer if the case had been appealed through the appellate procedures of 5 U.S.C. 7701. Cornelius v. Nutt, 472 U.S. 648, 660-61 (1985). In ACTION, the Authority held that requiring persuasive reasons for an exercise of a management right would not permit an arbitrator's judgment to be substituted for that of an agency.

Like the situation in ACTION, requiring the reasons for an exercise of management's right to be persuasive does not permit an arbitrator to substitute his or her judgment for that of the Agency as to whether a furlough was necessary or to determine the structure of the furlough. Rather, in our view, this portion of the proposal merely requires the Agency to comply with its obligation under 5 C.F.R. 752.404(b)(2) to include in its furlough notice of the basis for selecting particular employees to furlough as well as the reason for the furlough. Therefore, this sentence is within the duty to bargain.

III. Second Disputed Sentence of Proposal 1 and First Disputed Sentence of Proposal 2

Furloughs of employees will be the last resort when administrative leave cannot be given due to budgetary constraints.

A. Position of the Parties

The Agency argues that this sentence violates Federal Personnel Manual (FPM) Supplement 990-2 Chapter 610, subchapter 53-2c(2) and 5 C.F.R. 610.302, which provides that administrative leave may be granted only for brief periods of time. The Agency also argues that this sentence interferes with its right to lay off under section 7106(a)(2)(A) of the Statute by prohibiting the Agency from furloughing employees in the specified circumstances and permitting arbitrators to substitute their judgment for management's decision to furlough employees.

The Union argues that this portion is intended to require the granting of administrative leave only for brief periods of time and within budgetary limitations. Thus, the Union contends that this portion is consistent with the FPM. In support, the Union relies on Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers Local 174, AFL - CIO and American Federation of Government Employees, Local 2237, 7 FLRA 362 (1981) and American Federation of Government Employees, AFL - CIO, National Council of Field Labor Locals and Department of Labor, 17 FLRA 122 (1985).

B. Analysis and Conclusion

1. The Sentence is Consistent with the FPM

Although neither party in this case enumerates the specific circumstances to which this sentence would apply, it appears from the record that the Agency contemplates curtailing operations during the Christmas/New Year holiday period. The Agency states that when it shuts down during a period of unproductive operations, such as during the 5 workdays of the Christmas/New Year holiday period, placing employees on furlough during that time saves the cost of their salaries.

In Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers Local 174, AFL - CIO, 7 FLRA 362 (1981) the Authority determined that the head of an agency has discretion under the FPM to grant administrative leave to employees for brief periods of time when the agency curtails operations such as during a Christmas/New Year holiday period (4-5 workdays).

In this respect, while the Agency claims that this sentence would authorize administrative leave for up to 30 days the Union expressly indicates that this sentence is to be construed and implemented in accordance with the FPM. Reply Brief at 3. In view of the Union's construction of this sentence, which we adopt for purposes of this decision, we find that this sentence would not require the Agency to grant administrative leave to employees when operations are curtailed for more than a brief period of time. Thus, we find that this sentence is not inconsistent with the FPM.

2. The Sentence Does Not Interfere with Management's Section 7106(a)(2)(A) Right to Lay Off

According to the Agency, because this sentence prevents it from placing employees on furlough during the Christmas/New Year holiday period, management's right to lay off is negated. In addition, the Agency argues that this sentence is not an appropriate arrangement because of its adverse impact on effective and efficient operations. Agency Supplemental Submission at 2. 

As relevant to this discussion, a furlough is defined by 5 U.S.C. 7511(a)(5) as "the placing of an employee in a temporary status without duties and pay because of the lack of work or funds or other nondisciplinary reasons." Administrative leave, on the other hand, involves placing employees in a temporary status without duties but with pay and without charge to leave. See generally, FPM Supplement 990-2, Chapter 630, subchapter S11-5. Thus, we agree with the Agency that an employee cannot be placed on furlough in a non-pay status and be placed on administrative leave in a pay status at the same time.

However, we disagree with the Agency's contention that because this sentence requires employees to be placed on administrative leave in a pay status rather than being placed on furlough in a non-pay status during short periods of temporary curtailment of operations, it interferes with the Agency's right under section 7106(a)(2)(A) to lay off. In this connection, an agency's decision to shut down or to curtail operations is an aspect of its decision to lay off under section 7106(a)(2)(A). National Association of Government Employees, Local R14-62 and U.S. Army Dugway Proving Ground, Dugway, Utah, 18 FLRA 307, 310 (1985), reversed on other grounds, National Association of Government Employees, Local R14-62 and U.S. Army Dugway Proving Ground, Dugway, Utah, 26 FLRA No. 7 (1987).

Financial considerations may lead management to conclude that it must exercise its authority to lay off employees. We noted in Lexington - Blue Grass Army Depot, Lexington, Kentucky and American Federation of Government Employees, AFL - CIO, Local 894, 24 FLRA No. 6 (1986), that if an agency is without appropriated funds, a decision to curtail operations and furlough employees is clearly within management's authority to lay off employees. Similarly, if an agency receives an appropriation which is below that required to maintain a workforce at its existing level, a decision to furlough employees or to conduct a reduction-in-force is also within management's authority to lay off employees.

Such considerations are not present in this case. This sentence does not in any manner prohibit the Agency from curtailing its operations. Rather, it concerns retaining employees in a paid status during the period of curtailed operations. As noted in section B.1 above, employees would be placed on administrative leave only for the brief period of time authorized by the FPM. Moreover, the requirement to  place employees on administrative leave, even for brief periods of time, would not apply if "budgetary constraints" precluded such action.

Thus, we find this sentence would not in any manner prevent the Agency from curtailing or shutting down its operations.

In addition, we find that requiring employees to be placed on administrative leave instead of being placed on furlough for the period of the temporary shut down does not interfere with the Agency's right under section 7106(a)(2)(A) to lay off. Specifically, while the term "to lay off" is not defined in the Statute it generally involves placing employees in a temporary status without duties for nondisciplinary reasons. See, for example, Roberts Dictionary of Industrial Relations 377-78 (3d ed. 1986). There is nothing inherent in the term "to lay off" and the Agency points to no restriction in law or regulation, which indicates that employees must be in a non-paid status during a layoff. In fact, as noted in section B.1 above, an agency may place employees on administrative leave, that is, in a status without duties but with pay and without charge to leave during short periods of curtailed operations. In other words, an agency is authorized to lay off employees with pay for brief periods of time.

Consequently, we conclude that a requirement to place employees on administrative leave for the brief period of curtailed operations contemplated in this case is consistent with the Agency's right to lay off employees. Therefore, this sentence is negotiable.

IV. Third Disputed Sentence of Proposal 1 and Second Disputed Sentence of Proposal 2

A determination shall be made that no facilities or resources are available to alleviate the emergency.

A. Position of the Parties

The Agency argues that while this sentence might appear to be negotiable, the Union's statement of the intent of the language clearly makes it nonnegotiable. Specifically, the Agency argues that the Union intends this sentence to require the Agency to train employees who would otherwise be furloughed in order that those employees could be placed in  vacant positions in the Agency. Thus, the Agency claims that this sentence excessively interferes with the following rights: 1) to assign employees and to lay off under section 7106(a)(2)(A); 2) to assign work, specifically training, under section 7106(a)(2)(B); and 3) to select under section 7106(a)(2)(C). In addition, the Agency claims that this sentence excessively interferes with the exercise of its management rights and thus, does not constitute a negotiable appropriate arrangement under section 7106(b)(3). Finally, the Agency contends that this sentence conflicts with the FPM.

The Union argues that the sentence was not intended to require significant training in order for employees to be placed in vacant positions instead of being placed on furlough. However, even if significant training was necessary, it would constitute an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusion

We find this sentence to be nonnegotiable. Specifically, and as explained by the Union, this sentence is intended to require the Agency to place an employee who would otherwise be furloughed in a vacant position that the Agency has decided to fill. While the Union does not indicate whether this sentence is intended to require a temporary or a permanent placement, resolution of this matter is not necessary to our analysis. In either situation the Agency would be obligated to place an employee in a vacant position without regard to the employee's qualifications to perform the duties of that position. The Agency would be obligated to provide whatever training is necessary to enable the employee to perform satisfactorily. See Reply Brief at 4. Thus, insofar as this sentence requires the temporary placement of an employee in a vacant position without regard to the employee's qualifications it interferes with management's right under section 7106(a)(2)(A) to assign, specifically to detail. American Federation of State, County and Municipal Employees, Local 2910 and Library of Congress, 18 FLRA 241 (1985) (Proposals 1 and 2).

In addition, to the extent that this sentence requires management to place an employee in a vacant position permanently without regard to the employee's qualifications, it interferes with management's right to select under section 7106(a)(2)(C). National Association of Government Employees Local R14-87 and Department of the Army. Kansas Army National Guard, 21 FLRA No. 105 (1986) (Proposal 2). Further, to the extent that this sentence requires the Agency to provide specific training to employees, it interferes with management's right under section 7106(a)(2)(B) to assign work. American Federation of Government Employees, AFL - CIO, Local 12 and Department of Labor, 18 FLRA 418 (1985) (Proposal 2).

Finally, this sentence does not constitute an appropriate arrangement within the meaning of section 7106(b)(3). It would require management either to assign or select employees for vacant positions without regard to their qualifications and the amount of time it would take to train the employees. It would apply no matter how long the Agency intended to curtail operations and to furlough employees. It would apply even if management contemplated furloughing employees for only one day. In these circumstances, we find that while this sentence was intended as an arrangement for employees adversely affected by a decision to lay off, it excessively interferes with the cited management rights.

In view of our determination, it is unnecessary to address the Agency's additional claims that this sentence violates the FPM.

V. Fourth Disputed Sentence of Proposal 1 and Third Disputed Sentence of Proposal 2

Negotiations with the Union on impact and implementation will occur prior to furlough.

Analysis and Conclusion

The Agency withdrew its allegation of nonnegotiability as to this sentence in a supplemental submission filed with the Authority. Accordingly, there is no longer an issue as to whether this sentence is within the parties' duty to bargain and the Union's petition as to this sentence must be dismissed. See, for example, National Treasury Employees Union and Department of the Treasury, Internal Revenue Service National Office, 19 FLRA 541 (1985).

VI. Order

The Agency must, upon request or as otherwise agreed to by the parties, bargain on Proposal 1 except for the third and fourth disputed sentences and on Proposal 2 except for  the second and third disputed sentences. 3 The Union's petition for review as to the third and fourth disputed senten