American Federation of Government Employees, Local 2004 (Union) and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Susequehana Pennsylvania, New Cumberland, Pennsylvania (Agency)

[ v56 p660 ]

56 FLRA No. 107

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2004
(Union)

and

U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION DEPOT
SUSEQUEHANA PENNSYLVANIA
NEW CUMBERLAND, PENNSYLVANIA
(Agency)

0-NG-2545

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

September 21, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of three proposals relating to a reduction-in-force (RIF). [n1] 

      For the following reasons, we find that Proposals 1, 5 and 6 have either been rendered moot by virtue of the Panel decision described below or are otherwise outside the duty to bargain. Consequently, we dismiss the petition for review.

II.     The Proposals

Proposal 1

The projected goal of reducing 461 positions will be reached through normal attrition and/or aggressive Voluntary Separation Incentive Pay and Voluntary Early Retirement during the years up to and including Fiscal Year 2005.

Proposal 5

The DDC Call Center will move to the DDC-HQ as a transfer of function and that the total number of personnel assigned to the Call Center will be deducted from the total number of separations required to meet the Agency's 2001 Staffing Plan.

Proposal 6

The Agency will not reassign, promote, or change to lower grade actions of any personnel from DDSP-ML to DDSP-East Site.

III.     Panel Decision and Positions of the Parties

      Following requests for assistance from the parties, the Panel conducted an informal conference to discuss issues pertaining to the RIF. The parties were unable to reach agreement and, subsequently, submitted their final offers to the Panel. On July 28, 2000, the Panel issued its decision in 00 FSIP 86 and 00 FSIP 93, requiring the parties to adopt the Agency's staffing plan. Under that plan, a total of 461 unit and non-unit positions were to be eliminated, effective October 1, 2000, and the Agency's organization restructured into 11 divisions.

      The Panel also addressed the parties' proposals concerning the continuation of bargaining. The Union sought to reserve its rights to submit proposals throughout the negotiating process, while the Agency proposed a more limited scope of bargaining that would not extend or delay the September 30, 2000 RIF date. The Panel ordered both parties to withdraw their proposals, finding that "adoption of either [party's proposal] would lead to a continuation of a bargaining process which requires finality rather than the potential for another impasse." Panel's Decision at 10. [n2] 

      Following issuance of the Panel's decision, the Authority directed the parties to address the impact, if [ v56 p661 ] any, of that decision on the proposals in this case. Both parties filed responses.

      The Agency maintains that the Panel's decision renders the proposals moot. In particular, the Agency points to the Panel's determination that finality in the negotiations is required. More particularly as to Proposal 6, the Agency claims that it was effectively resolved because, by adopting the Agency's staffing plan, "it is possible that personnel from DDSP-ML could be placed at the DDSP East site in accordance with Priority Placement Program procedures." Agency's August 31 Response at 2.

      The Union claims that its proposals are still valid. As to Proposal 1, the Union acknowledges that the FSIP decision implemented the Agency's staffing plan. However, the Union claims that its proposal addresses a method to reach the projected goal of reducing 461 positions and is "not directly tied to the actual staffing plan[.]" Union's August 31 Response at 1. As to Proposal 5, the Union states that additional work was solicited from another command, that the additional workload was not considered in the staffing plan and, as a result, the Call Center will be severely understaffed. As to Proposal 6, the Union explains that DDSP is currently in negotiations with the Letterkenny Army Depot to do a transfer of function for all positions contained in the DDSP-ML staffing plan.

IV.     Analysis and Conclusions

A.     Proposals 1 and 5

      As the Union explained in its petition for review, the intent of Proposal 1 was to reduce staffing levels by 461 positions by the end of Fiscal Year 2005, without the need to conduct a RIF. Attachment to Petition for Review at 1. This is clearly inconsistent with the plan's requirement to reduce 461 positions by October 1, 2000. While the Union is correct in asserting that its proposal is also concerned with the manner in which a staffing reduction would be accomplished, the fact remains that the Panel's decision with respect to the timing of the RIF and the number of positions to be reduced has superceded Proposal 1 and has rendered it moot.

      Similarly, with respect to Proposal 5, the Union's stated intent in proposing a transfer of function of DDC Call Center employees to DDC-HQ was to "[r]educe the number of separations necessary in DDSP by the number of employees transferred with the function to the DDC[.]" Attachment to Petition for Review at 3. As above, the Panel's order regarding the number of positions to be reduced renders Proposal 5 moot, insofar as it seeks to alter the number of positions to be separated.

      Even if we were to find that the Panel decision had not effectively rendered Proposals 1 and 5 moot, we would nonetheless find that the proposals are outside the duty to bargain because of their effect on the exercise of management rights.

      Proposal 1 is written in non-discretionary terms and would require the Agency to use either attrition or VSIP/VERA as a means of reducing its workforce. The Agency would be prohibited from utilizing any other means, such as a reduction-in-force, to achieve that goal. The Authority has held that a RIF constitutes the exercise of management's right to layoff employees under section 7106(a)(2)(A) of the Statute. See, e.g., National Association of Government Employees, Local R1-203 and U.S. Department of the Interior, U.S. Fish and Wildlife Service, Hadley, Massachusetts, 55 FLRA 1081, 1093 (1999) (Department of the Interior) (Chair Segal concurring in part). Therefore, by requiring that the goal of reducing 461 positions will be reached through normal attrition and/or aggressive Voluntary Separation Incentive Pay and Voluntary Early Retirement, Proposal 1 affects the right to layoff under the Statute. Although the Union claims that the proposal is a negotiable procedure under section 7106(b)(2), the cases on which it relies do not address that statutory section. Instead, the proposals, which pertained to RIFs and which retained some measure of managerial flexibility, were deemed negotiable as appropriate arrangements. Here, the Union explicitly indicates in the pleadings filed in this case that it is not claiming that the proposal is an appropriate arrangement. No other support is offered for the Union's claim that the proposal is a negotiable procedure.

      Proposal 5 would require the Agency to transfer the Call Center to DDC-HQ and to deduct the total number of personnel assigned to the Call Center from the total number of separations required to meet the Agency's 2001 Staffing Plan. The Authority has held that management's right to determine its organization under section 7106(a)(1) of the Statute encompasses an agency's authority to determine its administrative and functional structure, including the relationship of personnel through lines of control and the distribution of responsibilities for delegated and assigned duties. See, e.g., American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, Central Region, Irving, Texas, 55 FLRA 830, 831 (1999) (DCAA). In DCAA, the Authority found that proposals seeking to transfer functions from one component to another affected the right to determine organization by dictating where, organizationally, the functions would be established. Similarly, [ v56 p662 ] Proposal 5 affects that management right by dictating where, organizationally, the Call Center functions will be performed. Furthermore, since the proposal would completely preclude the Agency from determining where the functions performed by the Call Center will be performed, the proposal excessively interferes with the exercise of management's right. See id. at 832 n.3.

B.     Proposal 6

      The Union explains that Proposal 6 is designed to "ensure that the number of employees included in the DDSP staffing plan is not increased by the movement of any DDSP-ML employees into our competitive area." Attachment to Petition for Review at 4. We are unable to conclusively ascertain whether the Panel's decision has effectively rendered this proposal moot because on its face, the proposal does not appear to be inconsistent with the Agency's staffing plan. Nonetheless, we find that the proposal is outside the duty to bargain.

      The Union does not dispute the Agency's assertion that the proposal affects the exercise of various management rights. Instead, the Union argues that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute because it would reduce the number of bargaining unit employees who would be separated in the RIF. Under the framework outlined in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986), an arrangement within the meaning of section 7106(b)(3) must seek to mitigate adverse effects "flowing from the exercise of a protected management right." U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992), enforcing in part and vacating and remanding in part as to other matters sub nom. National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27 (1991). The claimed arrangement must also be "tailored" to compensate or benefit employees suffering adverse effects resulting from the exercise of management's rights. See, e.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part). That is, section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996).

      We recognize, and the Authority has consistently held, that individuals who have been terminated from employment as a result of a RIF are adversely affected. See, e.g., Department of the Interior, 55 FLRA at 1093. At the same time, however, the Authority has recognized that not all employees affected by a RIF are necessarily adversely affected because some employees may be placed in other positions. See International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the N