54:0171(22)NG - - AFGE, HUD Council of Locals 222 and HUD - - 1998 FLRAdec NG - - v54 p171



[ v54 p171 ]
54:0171(22)NG
The decision of the Authority follows:


54 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

HUD COUNCIL OF LOCALS 222

LOCAL 2910

(Union)

and

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

(Agency)

0-NG-2350

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

May 11, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review concerns one proposal.

The parties began impact and implementation negotiations after the Agency notified the Union that, to achieve a reduction in the number of employees working at its headquarters office, it intended to make certain vacant positions in the Agency's field offices available only to employees working in headquarters. The Union's proposal would also permit field office employees to apply for the vacant positions.

For the reasons that follow, we find that the proposal is within the duty to bargain.

II. Union's Proposal

Available Positions: Management agrees to make all positions listed on the Critical Vacancies List issued on September 11, 1996, available to Field Office employees by use of merit staffing with relocation benefits.

The italicized phrase is not in dispute.

III. Positions of the Parties

A. The Agency

The Agency asserts that the proposal is outside the duty to bargain for two reasons.

First, the Agency maintains that the proposal concerns an issue that is covered by -- and that the proposal is inconsistent with -- Article 13 of the parties' collective bargaining agreement.(1) The Agency argues that "it has not always been entirely clear how an Authority order in a negotiability case is to be interpreted and given effect where there is a threshold bargaining agreement issue." Agency Statement of Position at 3 (citing Patent Office Professional Association v. FLRA, 26 F.3d 1148, 1152 (D.C. Cir. 1994) (POPA v. FLRA)). The Agency requests that the Authority find that, based on Article 13, the Agency has no duty to bargain over the Union's proposal.

Second, the Agency contends that the proposal affects management's right to make selections under section 7106(a)(2)(C) of the Statute, and that the proposal does not constitute a procedure or an appropriate arrangement under section 7106(b)(2) or (3). According to the Agency, the proposal would "substantively limit [the Agency's] right to select from 'any' source, by instead requiring [the Agency] to open the Voluntary Relocation Plan to field employees and to use competitive selection procedures."(2) Id. at 5.

In addition to the foregoing, the Agency responds to two arguments raised in the Union's petition. In this regard, the Agency claims that, contrary to the Union's claims, the proposal is not within the duty to bargain either on the ground that it enforces an applicable law -- 5 U.S.C. § 2301 (3) -- or on the ground that the Agency is obligated to bargain over the impact of the Relocation Plan under Article 5, Section 5.02 of the parties' master agreement.(4)

B. The Union

The Union asserts that the Agency "should be estopped" from claiming that the proposal is outside the duty to bargain. Response at 1. The Union claims that the Agency not only asked the Union "to provide input" regarding the Relocation Plan but also asked the Union to provide proposals. Id.

The Union also argues that the Authority should reject the Agency's argument that the proposal is covered by, and inconsistent with, Article 13 of the parties' agreement. According to the Union, Article 13 "is a basis for requiring the Agency to bargain[.]" Id. Additionally, the Union claims that the proposal is related to the impact of the Relocation Program, within the meaning of Article 5 of the parties' agreement.

The Union maintains that the proposal does not interfere with the Agency's right to make selections under section 7106(a)(2)(C) of the Statute. According to the Union, pursuant to section 7106(b)(1) of the Statute, the parties may negotiate over "positions assigned to any organizational subdivision." Petition at 2. The Union also maintains, however, that "even conceding the [A]gency's argument with respect to [that right]," nothing in the Statute "immunizes management from the statutory obligation to comply with" 5 U.S.C. § 2302. Id. at 4.

IV. Meaning of the Proposal

The proposal concerns those positions listed on the Critical Vacancies List that, under the Relocation Plan, are available only to headquarters employees. As plainly worded, the proposal would require the Agency to make those positions "available to Field Office employees by use of merit staffing with relocation benefits."

The sole Union statement of intent is that "[t]he gravamen of the union's proposal is that the advertised vacancies (i.e., positions on the Critical Vacancies List) be merit staffed." Id. As the Agency notes, the Union does not define what it means by "merit staffing." However, consistent with how the Office of Personnel Management (OPM) has used the term in a related context,(5) and how the Agency describes the term (which is not disputed by the Union),(6) we construe it to encompass the use of competitive procedures to fill vacancies.

Consistent with the foregoing, we construe the proposal as requiring the Agency to announce, and permit field office employees to apply for, vacancies on the Critical Vacancies List through whatever competitive procedures apply.

V. Analysis and Conclusions

A. The Agency is not estopped from asserting that the proposal is outside the duty to bargain.

The Union does not point to any provision in law, regulation, or its collective bargaining agreement to support its view that the Agency's request for proposals bars the Agency from declaring any particular proposal outside the duty to bargain. Moreover, no such provision is otherwise apparent, and research has not disclosed a decision where the Authority addressed a similar argument. Thus, there is no basis on which to conclude that the Agency's request for proposals constituted an agreement not to raise negotiability arguments, and we find that the Agency is not estopped from declaring the Union's proposal nonnegotiable.

B. In negotiability determinations, the Authority does not review whether a proposal is covered by the collective bargaining agreement.

In negotiability cases, the Authority does not resolve questions of whether an agency is obligated to bargain over a proposal by virtue of a collective bargaining agreement. A union is entitled to a decision by the Authority as to whether its proposals are within the duty to bargain under the Statute notwithstanding the fact that additional issues--for example, whether an agency is obligated to bargain under the terms of a master agreement--may exist. See American Federation of Government Employees, Council of Prison Locals, Local 3974 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, McKean, Pennsylvania, 48 FLRA 225, 226 (1993).

Following the decision of the U.S. Court of Appeals for the D.C. Circuit in POPA v. FLRA, 26 F.3d 1148 (D.C. Cir. 1994), which the Agency cites, the Authority stated in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington), that generally it will not consider the underlying collective bargaining agreement in a negotiability determination. The Authority explained that:

If the Union seeks to bargain over this proposal in the future, and the Agency refuses to bargain based on [the] assertion that [the collective bargaining agreement] foreclosed further bargaining, the Union could then file either an unfair labor practice charge or, provided the matter has not been excluded from its scope, a grievance under the parties' negotiated grievance procedure. In such a case, the issue could be resolved based on a full evidentiary record applying the approach for resolving such issues set forth in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA).

Id. at 399-400.(7)

Consistent with the foregoing, we decline to resolve in this proceeding the Agency's duty to bargain claim.

C. The proposal does not affect management's right to make selections under section 7106(a)(2)(C) of the Statute.

The Union asserts that the Agency voluntarily elected to bargain about position assignments in an organizational subdivision, and that the proposal is within the duty to bargain under section 7106(b)(1). The Agency asserts, and the Union disputes, that the proposal interferes with its right to make selections under section 7106(a)(2)(C).

In VAMC, Lexington, the Authority held that section 7106(b)(1) of the Statute constitutes an exception to section 7106(a). In addition, the Authority set forth the sequence of analysis it would follow in resolving negotiability disputes where parties disagree whether a proposal comes within the terms of section 7106(a) or 7106(b)(1). Under the approach set forth and applied in VAMC, Lexington, the Authority first examines the contention that a proposal is electively bargainable under section 7106(b)(1). If the proposal concerns a subject set forth in section 7106(b)(1), then the Authority does not address contentions that the proposal also affects the exercise of management's rights under section 7106(a). However, if the proposal is not encompassed by section 7106(b)(1), then the Authority proceeds to analyze it under section 7106(a).

In VAMC, Lexington, the union did not dispute the agency's assertion that the proposals at issue interfered with management's rights under section 7106(a)(2)(A) and (B). VAMC, Lexington, 51 FLRA at 396-97. In contrast, the Union in this case expressly argues that the proposal does not affect the Agency's right to make selections under section 7106(a)(2)(C) of the Statute. In addition, as in VAMC, Lexington, the Union argues that the proposal is encompassed by section 7106(b)(1) of the Statute, under which, according to the Union, parties may negotiate at an agency's election over "positions assigned to any organizational subdivision[.]" Petition at 2.

The consequence of the Union's prevailing on either of these two distinct arguments is decidedly different under the Authority's regulations. In this regard, a finding that a proposal does not affect management's rights under section 7106(a) results, in the absence of other valid claims that the proposal conflicts with other law or regulation, in a finding that the proposal is within the duty to bargain and an order to bargain. See 5 C.F.R. § 2424.10(b). See also, e.g., National Education Association, Overseas Education Association, Fort Bragg Association of Educators and U.S. Department of Defense, Department of Defense Domestic Dependents, Elementary and Secondary Schools, Fort Bragg, North Carolina, 53 FLRA 898, 911-12, 919-21 (1997). In contrast, a finding that a proposal concerns a subject set forth in section 7106(b)(1) results in dismissal of the negotiability appeal. See 5 C.F.R. § 2424.10(b). See also, e.g., VAMC, Lexington, 51 FLRA at 401-02.

Thus, this case makes evident an anomaly not present in VAMC, Lexington or the cases in which VAMC, Lexington has been applied(8): adhering to the sequence of analysis established in VAMC, Lexington could result in dismissal of a negotiability petition in a case where the disputed proposal would be found within the duty to bargain if the parties' dispute over section 7106(a) were resolved. This would encourage additional litigation (where a section 7106(b)(1) claim was not raised) to determine whether a bargaining order were warranted, a result that does not further the purposes of the Statute. Cf. National Treasury Employees Union and Federal Deposit Insurance Corporation, Chicago, Illinois, 32 FLRA 1131, 1139 (1988) (Authority held that engendering further administrative and judicial litigation would not advance the purposes of the Statute).

For this reason, we have determined that adherence to the sequence of analysis that the Authority established in VAMC, Lexington is not appropriate in cases where, as here, an agency's assertion that a proposal affects a management right or rights under section 7106(a) is disputed by the union.(9) Accordingly, we will address and resolve this claim even though the union also asserts that the proposal is electively bargainable under section 7106(b)(1).(10)

In this case, we conclude that the proposal does not affect the Agency's right to make selections under section 7106(a)(2)(C). The Authority has long held, in this regard, that a proposal limiting an agency's selection options affects management's right to make selections under section 7106(a)(2)(C) of the Statute. See, e.g., National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, Washington, D.C., 53 FLRA 967, 972 (1997); National Association of Government Employees, Local R7-23, SEIU, AFL-CIO and Department of the Air Force, Scott Air Force Base, Illinois, 16 FLRA 367, 368 (1984). However, the proposal in this case does not limit the Agency's selection options. To the contrary, the proposal expands the applicant pool from which the Agency may select. Specifically, the proposal seeks to expand the universe of eligible applicants by requiring the Agency to accept and consider applications from field office employees.

The Agency's assertion that the proposal would substantively limit the Agency's right to select from "any" source is unsupported. As set forth above, the proposal merely would require the Agency to permit field employees to apply for vacancies through whatever competitive procedures are applicable. Nothing in the plain wording of the proposal or the Union's statement construing it supports a conclusion that the proposal would either require the Agency to select, or preclude the Agency from selecting, any candidate.

Because the proposal does not limit the Agency's selection options and neither requires nor precludes selection of any candidate, it does not affect management's right to select under section 7106(a)(2)(C) of the Statute. Cf. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 44 FLRA 870, 879 (1992) ("under section 7106(a)(2)(C) of the Statute, management has the right initially to solicit and consider the broadest range of possible candidates for a vacant position"). Accordingly, the proposal is within the Agency's duty to bargain.(11)

VI. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over the proposal.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 13 states in pertinent part, that: "the provisions of this Article shall be administered by the parties to ensure that employees are evaluated and selected solely on the basis of merit in accordance with valid job-related criteria."

2. According to the Agency, the Voluntary Relocation Plan (hereinafter "Relocation Plan") implements part of the Agency's Management Action Plan, which was transmitted to the Office of Management and Budget and which calls for downsizing the [h]eadquarters office and "reduc[ing] headquarters staff from 3,500 to less than 3,000 in part by transferring staff to program delivery functions in field offices." Statement of Position at 5 n.3. Under the Relocation Plan, "positions listed on the Critical Vacancies List" are "available only to headquarters employees, not to field office employees." Id. at 2.

3. The Union relies on 5 U.S.C. § 2301(b), which states in pertinent part, that "Federal personnel management should be implemented consistent with [specified] merit systems principles[.]" Section 2302 lists the circumstances in which an agency may be found to have violated section 2301. Section 2302(b)(6), on which the Union also relies, states in pertinent part that particular employees may not:

(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment[.]

4. This provision provides, in pertinent part:

Section 5.02 - Ground Rules for Mid-Term Negotiations at the National Level. During the term of this Agreement, Management shall transmit to the Union its proposed changed relating to personnel policies, practices, and general conditions of employment[.]

5. In particular, OPM stated the following:

Each agency must establish a merit staffing plan[] for selecting employees for advancement base[d] solely on relative ability, knowledge, and skills after fair and open competition which assures that all receive equal opportunity. The plans must be available in writing and list exceptions to competition. All actions are subject to the merit system principles of 5 U.S.C. 2301 and the prohibited personnel practices of 5 U.S.C. 2302.

61 Fed. Reg. 6,324, 6,327 (1996) (discussing proposed revisions to 5 C.F.R. § 335.102(a), addressing promotion and internal placement).

6. The Agency states that when the Union mentions "merit staffing," the Union is referring to the competitive procedures contained in Article 13 of the parties' agreement. Statement of Position at 2.

7. SSA set forth the A