30:0041(11)NG - AFGE Local 2635 and Naval Communications Unit Cutler, East Machias, ME -- 1987 FLRAdec NG



[ v30 p41 ]
30:0041(11)NG
The decision of the Authority follows:


30 FLRA NO. 11
30 FLRA 41

    12 NOV 1987


AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2635

              Union

      and

NAVAL COMMUNICATIONS UNIT
CUTLER, EAST MACHIAS, MAINE

              Agency

Case No. O-NG-1404

DECISION AND ORDER ON NEGOTIABILITY ISSUES

     I. Statement of the Case

     This petition for review comes before the Authority pursuant
to section 7105(a)(2)(D) and (E) of the Federal Service Labor -
Management Relations Statute (the Statute) and raises issues
concerning the negotiability of two provisions of a negotiated
agreement disapproved by the Agency head under section 7114(c) of
the Statute. Provision I is found to be a negotiable appropriate
arrangement. We find that there is no  compelling need for the
Agency regulation alleged to bar negotiations on Provision 2, and
that provision is therefore within the duty to bargain.

     II. Provision 1

     Article XVIII, Section 3

     It is agreed that the Employer will make a reasonable effort
to reassign employees whose positions are eliminated. It is
agreed that the Employer will make a reasonable effort to train
employees where necessary for reassignment, when positions are
eliminated because of automation or adoption of labor-saving
devices, provided the employee has the necessary aptitude as
determined by the Employer. 

     A. Positions of the Parties

     The Agency contends that the first sentence of Provision 1
is inconsistent with the Federal Personnel Manual (FPM) chapter
335, subchapter 1-4, Requirement 4, a Government-wide regulation
which requires that agencies retain the authority to select
candidates for positions from any appropriate source. In
particular, the Agency argues that, under the provision, if
vacant positions are available, management must reassign
employees whose jobs are being eliminated to those positions. The
Agency also contends that the second sentence of this provision
could, under some circumstances, require it to provide training
for employees, and therefore it is inconsistent with management's
right to assign work under section 7106(a)(2)(B). The Agency
contends, in short, that the implication of the provision is that
if there were a position available, management would be obligated
to reassign the employee to the vacancy and that those employees
who had the necessary aptitude would have to be trained and
reassigned to a position. Finally, the Agency asserts that the
second sentence is not an appropriate arrangement for adversely
affected employees.

     The Union states that the purpose of this provision is to
negotiate reasonable arrangements for unit employees who are
adversely affected by the elimination of their positions. The
Union disagrees with the position of the Agency that the first
sentence of the provision is inconsistent with FPM chapter 335,
subchapter 1-4, Requirement 4. The Union further argues that this
provision has no  absolute mandate for selection. The Union
states that the second sentence of Provision I does not specify
mandatory training or what type of training is to be given.

     B. Discussion

     By its terms, Provision 1 is intended to assist employees
whose positions are eliminated. The first sentence generally
provides protection to employees by requiring management to make
a reasonable effort to reassign those employees whose positions
are eliminated. The record in this case clearly indicates that
Provision 1 applies only where management has decided to fill the
vacant positions. Union Response to Agency Statement of Position
at 6-7. The second sentence of Provision 1 provides further
protection to employees by requiring the Agency to make a
reasonable effort to train employees who have the aptitude for
vacant positions and to reassign them to those positions
when they are trained. This portion of Provision 1 applies when
the Agency has determined that the adversely affected employee is
to fill the position but needs additional qualifications; the
Agency determines whether training is needed and what type of
training is to be supplied. Union Response to Agency Statement of
Position at 8.

     Thus, by its terms, Provision 1 obligates management to
attempt to fill vacant positions from a particular source,
namely, reassignment of the affected employees to those
positions, and to attempt to provide training should any of the
selected affected employees need training to fill the vacant
position. The effect of the provision, therefore, is to obligate
management to attempt to fill vacant positions from a particular
source, namely, reassignment of the affected employees to those
positions. By providing for filling positions by reassignment,
Provision 1 directly interferes with management's right to select
from any appropriate source under section 7106(a)(2)(C) of the
Statute. See Fort Knox Teachers Association and Fort Knox
Dependent Schools, 19 FLRA  878 (1985). See also American
Federation of Government Employees, AFL - CIO, National
Immigration and Naturalization Service Council and U.S.
Immigration and Naturalization Service, 27 FLRA  467 (1987)
(Provision 6), in which we found that a provision which required
management to make reasonable efforts to reassign an employee
directly interfered with management's rights under section
7106(a)(2)(A) of the Statute.

     Provision 1 therefore is outside the duty to bargain unless
it constitutes an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute. Provision 1 is clearly
intended to mitigate against the adverse effects of the exercise
of management rights, in this case, elimination of positions
through the introduction of automation or other labor-saving
devices. We therefore find that the provision constitutes a
propose 1 "arrangement" for employees adversely affected by the
exercise of management rights within the meaning of section
7106(b)(3). See National Association of Government Employees,
Local R14-87 and Kansas Army National Guard, 21 FLRA  24
(1986).

     The remaining issue is whether the provision is an
"appropriate" arrangement under the Statute. The Authority has
considered a number of proposals which provide for management to
fill vacant positions with employees who have  lost their
jobs, or who are threatened with the loss of their jobs, due to a
reduction-in-force (RIF). Where those proposals took effect only
after management had decided to fill the vacant positions and
required management to fill those vacancies only with qualified
employees, the Authority has found the proposals to constitute
appropriate arrangements under section 7106(b) (3). The Authority
has concluded that, on balance, the limitations placed by such
proposals on the source from which management will select to fill
vacant positions do not excessively interfere with management's
right under section 7106(a)(2)(C). See National Treasury
Employees Union and Department of Health and Human Services,
Region X, 25 FLRA  1041 (1987) (Proposal 5); 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  113 (1987)
(Provision 32); and National Association of Government Employees,
Local R14-87 and the Adjutant General of Kansas, 21 FLRA  313
(1986). As stated above, the record in this case clearly
indicates that Provision 1 applies only where management has
decided to fill the vacant positions. Compare American Federation
of Government Employees, Local No.  12 and U.S. Department of
Labor, 25 FLRA  987 (1987) (Proposal 1).

     We construe Provision 1 as not requiring management to fill
positions with unqualified employees. Interpreted in this manner,
Provision 1 has the same effect as the proposals discussed above
which provide for management, where it decides to fill vacant
positions, to select from among qualified employees who have lost
their jobs or who are threatened with the loss of their jobs.
Like the proposals in those cases, by requiring management to
attempt to fill vacant positions which it decides to fill through
the reassignment of qualified employees whose positions have been
eliminated, the first sentence of Provision 1 does not
excessively interfere with management's rights under section
7106(a)(2)(C) and is an appropriate arrangement under section
7106(b)(3).

     The Agency argues that Provision 1 is, in all material
respects, the same as that found nonnegotiable by the Authority
in National Federation of Federal Employees, Local 29 and U.S.
Army Corps of Engineers, Kansas City District Kansas City,
Missouri, 21 FLRA  630 (1986). Agency Statement of Position at 2.
In that decision, the Authority concluded that the proposal
conflicted with FPM chapter 335, subchapter 1-4, a
Government-wide regulation, and therefore was nonnegotiable. The
Authority recently has stated that it  will no  longer
follow the rationale in that case. See American Federation of
Government Employees, AFL - CIO, Local 32 and Office of Personnel
Management, 29 FLRA  No.  40, slip op. at 10 n.1 (1987) (separate
opinions by each member of the Authority). Thus, regardless of
whether the provision is intended to take effect outside the
context of a RIF or to mitigate the effects of a RIF, FPM chapter
335, subchapter 1-4, Requirement 4 does not constitute a bar to
the negotiation of the first sentence of the provision. See id.;
National Federation of Federal Employees, Local 1450 and U.S.
Department of Housing and Urban Development, 23 FLRA  3 (1986).

     Moreover, we find that the second sentence of Provision 1 is
to the same effect as 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  113, 140 (1987) (Provision 32). That
provision specifically preserved management's discretion to
determine whether employees would be trained, the extent and type
of training, the numbers and types of employees to be trained
given available funding and training authority, and the methods
and means by which the training would be accomplished. Here,
although the precise wording of the provision does not state the
safeguards as set forth in Provision 32 in Bureau of Engraving
and Print!%, the record clearly indicates that the intent of the
provision is to preserve management's discretion as in Bureau of
Engraving and Printing and we so construe the provision.
Accordingly, for the reasons more fully set forth in Bureau of
Engraving and Printing, we find that the second sentence of
Provision 1 constitutes a negotiable appropriate arrangement.

     For the above stated reasons, we find that Provision 1
constitutes a negotiable appropriate arrangement under section
7106(b)(3).

     III. Provision 2

     Article XXVI, Section 5

     Official telephone (Autovon) shall be available to the Union
only in the pursuit of grievance procedures.

     A. Positions of the Parties

     The Agency contends that the provision conflicts with
Department of Defense (DoD) Directive 4640.9, paragraph F.2.b.
for which a compelling need exists under section 7117(a)(2) of
the Statute and section 2424.11 of the Authority's Rules and
Regulations. Specifically, the Agency argues that the portion of
the regulation which precludes labor union access to the AUTOVON
network is essential to the accomplishment of the mission of the
Agency.

     The Union contends that the cited DoD Directive does not
meet the compelling need criteria. The Union argues that the
proposal does not conflict with the Agency's regulation. The
Union further contends that even assuming that the proposal
conflicts with the Agency's regulation, the Agency has not shown
that the regulation is "essential" within the meaning of the
Authority's compelling need regulations so as to preclude
bargaining over the provision. The union asserts that it has had
access for many years under the conditions described in the
provision without measurably eroding the Agency's ability to
accomplish its mission.

     B. Discussion

     The question before us in this case is whether a compelling
need exists for DoD Directive 4640.9 to bar negotiation on
Provision 2. The provision in dispute provides that AUTOVON shall
be available to the Union only in the pursuit of grievance
procedures. The Authority has consistently held that union access
to Government telephones for official labor relations business is
negotiable. In American Federation of Government Employees, AFL -
CIO and Air Force Logistics Command, Wright - Patterson Air Force
Base, Ohio, 2 FLRA  604 (1979), aff'd as to other matters 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),
for example, the Authority found that union access to the
nationwide Air Force telephone system is a matter affecting the
conditions of employment of unit employees and does not concern
the technology of performing work so as to be negotiable only at
the discretion of the agency. Thus, the Authority found the
proposal in that case to be within the duty to bargain. See also
National Treasury Employees Union and Department of the Treasury,
Bureau of Alcohol. Tobacco and Firearms, 26 FLRA  497 (1987); and
National Federation of Federal Employees and General
Services Administration, 24 FLRA  430 (1986). However, those
decisions did not address the issue of compelling need.

     The DoD Directive provides for exclusive access to the
AUTOVON network by operational/military users, although the
directive does not define an "operational user." The directive
indicates that a waiver may be granted on a case-by-case basis to
those who are not operational/military users based on criteria
provided in the directive. However, the directive specifically
states that requests from labor unions do not meet the stated
criteria. DoD Directive 4640.9, paragraph F.2.b. See Appendix A
for complete text.

     The Agency asserts that a compelling need exists for DoD
Directive 4640.9 under section 2424.11(a) of the Authority's
regulations because it is essential to the accomplishment of the
mission or the execution of functions of the agency in a manner
which is consistent with the requirements of an effective and
efficient government. Agency Statement of Position at 8. However,
the Agency has not demonstrated that the prohibition against the
use of AUTOVON by labor organizations as set forth in DoD
Directive 4640.9 is essential, as opposed to helpful or
desirable, to the accomplishment of the mission of the Agency.
The Agency states that prohibiting access to AUTOVON by 100
different labor organizations in 1750 bargaining units would
lessen the burden on the system. However, the Agency provides no 
evidence as to whether any of the labor organizations actually
use AUTOVON, as compared to local telephone service. Moreover,
the Agency provides no  evidence relating to the amount of
AUTOVON use, if any, by the Union at the activity. For this
reason, we find that the Agency has failed to demonstrate that a
compelling need exists for DoD Directive 4640.9 to bar
negotiation on Provision 2. See Department of the Air Force,
Flight Test Center, Edwards Air Force Base, California and
Interdepartmental Local 3854, American Federation of Government
Employees, AFL - CIO, 21 FLRA  445 (1986) (the agency failed to
establish that an interest arbitration award providing for union
access to the AUTOVON system was contrary to section 7117(a)(2)
of the Statute).

     IV. Order

     The Agency must rescind its disapproval of Provisions 1 and
2 which were bargained on and agreed to by the parties at the
local level. 1

     Issued, Washington, D.C., November 12 1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY

APPENDIX A

     DoD Directive 4640.9 states at paragraph F.2., in pertinent
part:

     AUTOVON access by all others who clearly are not
operational/military users must be determined on a case-by-case
basis and in accordance with reference (a) (JCS Memorandum of
Policy 151). Waivers are looked upon with disfavor, unless an
exceptional circumstance is found.

     a. Circumstances that may warrant the granting of a waiver
generally fall i