31:0258(26)NG - Merit Systems Protection Board Professional Association and Merit Systems Protection Board -- 1988 FLRAdec NG
[ v31 p258 ]
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 Agency requested and was granted an extension of time, until March 30, 1987, to file its Statement of Position. Because the Statement of Position was hand delivered to the Authority and to the Union on March 30, 1987, the Union's Reply Brief was due not later than April 14, 1987, unless an extension of time was sought and granted. The Union's Reply Brief was filed on April 24, 1987, without a timely request for an extension of the deadline. Therefore, the Union's Reply Brief was filed untimely and was not considered. Footnote 2 In finding this proposal to be within the duty to bargain, we make no judgment as to its merits.