31:0258(26)NG - Merit Systems Protection Board Professional Association and Merit Systems Protection Board -- 1988 FLRAdec NG



[ v31 p258 ]
31:0258(26)NG
The decision of the Authority follows:


 31 FLRA NO. 26
31 FLRA 258

   23 FEB 1988

MERIT SYSTEMS PROTECTION BOARD
PROFESSIONAL ASSOCIATION

              Union

      and

MERIT SYSTEMS PROTECTION BOARD

              Agency

Case No. 0-NG-1370

DECISION AND ORDER ON NEGOTIABILITY ISSUE

     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor - Management Relations Statute (the Statute) and concerns
the negotiability of a single proposal which would provide
"bumping and retreat" rights to unit employees in the excepted
service. We find that the proposal does not conflict with
Government-wide regulations and is negotiable because it
constitutes an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute.

     II. Proposal

     A unit employee affected by a RIF (reduction-in-force) will
be afforded second-round assignment rights to unit positions
including bumping and retreat rights as provided at 5 C.F.R. Part
351, subpart G.

     III. Positions of the Parties

     The Agency contends that the proposal either violates a
Government-wide regulation governing the conduct of
reductions-in-force (RIF) or significantly affects the 
conditions of employment of employees and positions outside the
bargaining unit. In either event, the Agency asserts that the
proposal is not within the duty to bargain.

     The Union, in its Petition for Review, attached the
following interpretation to its proposal: "The proposal would
provide the same assignment rights to our bargaining unit
employees, who are in the excepted service, as are provided by
Office of Personnel Management regulation to employees in the
competitive service." 1

     IV. Analysis and Conclusion

     1. Regulatory Framework

     Office of Personnel Management (OPM) regulations governing
RIFs are set out in 5 C.F.R. Part 351 and apply generally to
civilian employees of the Federal Government including the
employees in this case. The Authority previously has determined
that because these regulations apply generally to civilian
employees of the Federal Government they are Government-wide
regulations within the meaning of section 7117(a)(1) of the
Statute. See, for example, National Treasury Employees Union,
NTEU Chapter 202 and Department of the Treasury, Bureau of
Government Financial Operations, 22 FLRA  553, 555 (1986).

     The employees in the bargaining unit are GS-905
attorney-advisors in the excepted service. OPM RIF regulations
provide that excepted service employees, such as those covered by
this proposal, are classified on retention registers "in a way
that corresponds" to the classification of competitive service
employees. See 5 C.F.R. SS 351.502. In the event of a RIF
resulting from the abolishment of positions held by excepted
service employees, those employees in a particular
competitive area compete with each other for the remaining
positions exclusively on the basis of their relative retention
standing.

     Retention standing is based on a number of factors: (1)
tenure group--whether the employee has career status, is a
probationer, or is employed under a temporary or indefinite
appointment; (2) the employee's entitlement, or lack of
entitlement to veterans preference; and (3) seniority, with
special credit given for certain performance ratings. See 5
C.F.R. 351.501-351.504. These factors determine which excepted
service employees will be retained and which will be separated
from Federal employment.

     A competitive area is that portion of an agency within which
employees will compete for retention. See 5 C.F.R. 351.402. Under
5 C.F.R. 351.402(b), a competitive area must 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 added.) Proposals seeking
to limit a competitive area solely to bargaining unit positions
have been found to be nonnegotiable because they are inconsistent
with this Government-wide regulation. See, for example, National
Treasury Employees Union and Department of Health and Human
Services, Region X, 25 FLRA  1041, 1043 (1987) (Proposal 2).

     Within a competitive area, employees compete within
competitive levels. A competitive level is a grouping of
positions which, among other things, are in the same position
classification series and grade. 5 C.F.R. 351.403(a). Separate
competitive levels must be established for positions in the
competitive service and for those in the excepted service. 5
C.F.R. 351.403(b). Except in limited circumstances, an agency may
not release an employee from a competitive level if the agency
retains an employee in that level who has a lower retention
standing. 5 C.F.R. 351.601(a).

     The regulations provide that after a competitive service
employee is released from a competitive level based on relative
retention standing, the employee will be afforded "bumping" and
"retreat" rights. 5 C.F.R. 351.701. "Bumping" is the right of one
employee to displace another employee in a position on the basis
of subgroup superiority. "Retreating" is the right to displace
another employee in the same subgroup who is occupying a
position which is "the same position, or an essentially identical
one, previously held by the released employee" 5 C.F.R.
351.701(d)(3). The determination of "bumping" and "retreat"
rights concerns whether and in what positions employees will be
retained in the Federal service after a RIF.

     Unlike the regulatory provisions applicable to competitive
service employees, the regulations do not require excepted
service employees to be provided with the right to "bump" other
employees or the right to "retreat" to positions essentially
identical to ones previously held by them. The regulations do,
however, authorize agencies, at their discretion, to afford
excepted service employees such "bumping and retreat" rights. 5
C.F.R. 351.705(a)(3). The proposal here seeks to require the
Agency to exercise its regulatory discretion to confer such
rights on bargaining unit employees. If "bumping and retreat"
rights are provided for excepted service employees, the
regulations require that the rights "(s)hall be uniformly and
consistently applied in any one reduction-in-force(.)" 5 C.F.R.
351.705(b)(2).

     2. The Proposal Does Not Violate Government - Wide
Regulations

     The Agency argues that, in order to comply with 5 C.F.R.
351.705(b)(2), it would be required to extend "bumping and
retreat" rights to all excepted service employees in the
competitive area, not just to unit employees. We disagree.

     Unlike 5 C.F.R. 351.402(b), which requires that competitive
areas include all employees who are included in the applicable
organizational units or geographical area, 5 C.F.R. 351.705(b)(2)
does not prohibit the Agency from considering unit status in
determining whether and to what extent to grant "bumping and
retreat" rights to excepted service employees. Further
information on this matter is provided in the attachment to FPM
Letter 351-22, September 17, 1987, entitled "New Final FPM
Chapter 351 on Reduction in Force." Subchapter 5-10a(3) of the
attachment (at p. 68) states that the "bumping and retreat"
rights accorded to excepted service employees at management's
discretion "may be as extensive as those for competitive service
employees or more restrictive so long as they are applied
consistently." In our view, this requirement allows agencies
flexibility in determining to whom and to what extent "retreat"
and/or "bumping" rights will be granted. We interpret
the purpose of the "consistency" requirement as being to ensure
that the RIF procedures will be applied objectively and uniformly
when management exercises its discretion under the OPM
regulations.

     The procedures embodied in the proposal here are not
inconsistent with that objective. Accordingly, we find that the
proposal does not conflict with Government-wide regulations
prescribing RIF procedures.

     3. The Proposal Does Not Directly Determine Conditions of
Employment of Nonunit Employees

     The Agency argues that the proposal directly affects
conditions of employment of nonunit employees because, under 5
C.F.R. 351.705(b)(2), it could not grant "bump and retreat"
rights to unit employees without also granting the same rights to
nonunit excepted service employees. As noted previously, we find
nothing in that regulation which would preclude the Agency from
affording "bumping and retreat" rights to unit employees only.
Further, the proposal has no effect on the competitive area in
which unit employees are included. The proposal would not expand
or contract the competitive area established by the Agency in
accordance with governing regulations. The proposal would not
confer additional rights on nonunit employees or divest them of
rights granted by applicable regulations. Although the Agency
could grant "bumping and retreat" rights to nonunit employees, it
would not be required to do so by the proposal. Consequently, the
proposal does not directly determine the conditions of employment
of excepted service employees outside the bargaining unit.

     4. The Proposal Directly Interferes With Management's Right
to Assign Employees

     The Authority stated in 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. AFGE v. FLRA,  455 U.S. 945 (1982),
that the right to assign employees under section 7106 (a) (2) (A)
consists of more than merely the right to decide to assign an
employee to a position. Rather, the decision by an agency to
assign an employee to a position is made so that the work of that
position will be accomplished. Consequently, the agency must
retain the discretion to establish the qualifications
and skills as well as such job-related individual characteristics
as judgment and reliability which are necessary successfully to
perform the position's work. In short, the right to assign an
employee to a position includes the authority to decide which
employee will be assigned. See also American Federation of
Government Employees, National Council of Social Security
Administration Field Operations Locals, AFL - CIO and Social
Security Administration, Office of Field Operations, Baltimore,
Maryland, 17 FLRA  11 (1985) (Proposal 2).

     The Authority has applied the principles enunciated in
Wright - Patterson Air Force Base to RIF situations. For example,
in American Federation of Government Employees, AFL - CIO, Local
1603 and Navy Exchange, Naval Air Station, Patuxent River,
Maryland, 9 FLRA  1039 (1982) the Authority found that a proposal
which applied to employees who were not covered by OPM RIF
regulations and which would have provided RIF "reversion" rights
to those employees on the basis of seniority violated the
agency's right to assign employees under section 7106(a)(2)(A).

     Similarly, in Congressional Research Employees Association
and Library of Congress, Congressional Research Service, 25 FLRA 
306 (1987) Proposals 3, 4 and 5 established "bump and retreat"
rights for employees who otherwise would have been separated
because of a RIF. Because the employees in the bargaining unit
were employees of the legislative branch of the Federal
Government, a RIF within the agency would not be governed by OPM
RIF regulations. The Authority found that Proposal 3, which
established criteria for determining the order by which employees
would be retained in those positions not eliminated in a RIF, was
not a negotiable procedure under section 7106(b)(2) because the
proposal directly interfered with management's right to lay off
employees under section 7106(a)(2)(A). The Authority further
found that Proposals 4 and 5, which established a method by which
employees having greater retention standing based on the ranking
criteria set out in Proposal 3 would displace employees having
less retention standing, were not negotiable procedures under
section 7106(b)(2) because they directly interfered with
management's right to assign employees under section
7106(a)(2)(A). The Authority also determined that Proposals 3 and
4 constituted negotiable appropriate arrangements under section
7106(b)(3) because Proposal 3 did not excessively interfere with
management's rights to lay off and Proposal 4 did not excessively
interfere with management's right to assign employees
under section 7106(a)(2)(A). Although the Authority determined
that Proposal 5 also did not excessively interfere with
management's right to assign employees under section
7106(a)(2)(A), Proposal 5, which also required the agency to fill
vacant positions, was found to be nonnegotiable because it
excessively interfered with management's right to make selections
for positions under section 7106(a)(2)(C).

     The proposal in this case requires management to assign
employees who would otherwise be separated from their positions
because of a RIF into positions occupied by other employees who
have lesser retention standing. While the union is attempting to
negotiate a procedure which the Agency will follow in conducting
a RIF, based on the cases discussed above, we find that the
procedure is not a negotiable procedure under section 7106(b)(2)
because it directly interferes with management's right to assign
employees under section 7106(a)(2)(A).

     5. The Proposal is an Appropriate Arrangement under Section
7106(b)(3)

     This proposal directly interferes with management's right to
assign employees under section 7106(a)(2)(A) of the Statute and
is outside the duty to bargain unless it is a negotiable
appropriate arrangement under section 7106(b)(3). Although not
raised by the parties, we find that the proposal is an
appropriate arrangement within the meaning of section 7106(b)(3)
and is within the duty to bargain because it does not excessively
interfere with management's right to assign employees under
section 7106(b)(3). We conclude that our statutory obligations
require an examination of the proposal's negotiability under
section 7106(b)(3) because of its similarity to the issues raised
in congressional Research Service. To do otherwise would lead to
anomalous and conflicting results on essentially similar
proposals.

     In National Association of Government Employees, Local
R14-87 and Kansas City Army, National Guard, 21 FLRA  24 (1986),
the Authority stated that in order to determine whether a
proposal constitutes a negotiable appropriate arrangement, a
determination must be made as to whether the proposal is intended
to be an arrangement for employees who may be adversely affected
by the exercise of management's rights. If the proposal is
intended to be an arrangement, a determination must be made as to
whether the proposal is appropriate, or whether it is
inappropriate because it excessively interferes with the exercise
of management's rights.

     It is clear that a RIF has a significant adverse impact on
affected employees. Kansas Army National Guard, 21 FLRA  24, 33
(1986) (Provision 2). The proposal in this case seeks to
establish second round assignments rights, including bumping and
retreat rights, for excepted service bargaining unit employees.
By requiring the Agency to allow these employees bumping and
retreat rights, the proposal would ameliorate the adverse effects
of the RIF on employees targeted for separation. In our view,
this proposal constitutes an arrangement for employees who would
otherwise be separated from their positions because of a RIF.

     We must now determine whether the arrangement in this
proposal is appropriate within the meaning of section
7106(b)(3).

     The proposal provides that the second-round assignment
rights including bumping and retreat rights are to be applied to
excepted service bargaining unit employees "as provided at 5
C.F.R. Part 351, subpart G." Section 351.701(a) provides that
when an employee with a current annual performance rating of
minimally successful or higher is released, he or she shall be
allowed to bump or retreat to another position provided that the
employee is qualified for the offered position and it is in the
same competitive area and will last 3 months. Since under 5
C.F.R. 351, subpart G, bumping and retreat rights are limited to
employees who are qualified for the position they seek, there is
no question concerning whether the employees possess the
requisite qualifications. See 5 C.F.R. 351.702 for a discussion
of qualification requirements. The Agency is left with the
discretion to determine the qualifications for the positions and
to determine whether employees who otherwise would be separated
from employment are qualified to fill those positions. The
proposal would extend to excepted service employees the same
rights currently guaranteed to competitive service employees.
These rights promote the retention of more senior, higher
performing employees as well as employees with veterans
preference over employees who have fewer years of Federal service
and whose performance is lower.

     Accordingly, we conclude that the proposal does not
excessively interfere with the Agency's rights and is an 
appropriate arrangement within the meaning of section
7106(b)(3).

     V. Order

     The Agency must negotiate on the proposal. 2 Issued,
Washington, D.C., February 23, 1988.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

     Footnote 1 The Union's Reply Brief was filed late. The
Ag