National Federation of Federal Employees, Local 1332 (Union) and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia (Activity) 

 3 FLRA No. 97
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES (NFFE), LOCAL 1332
 Union
 
 and
 
 HEADQUARTERS, U.S. ARMY MATERIEL
 DEVELOPMENT AND READINESS COMMAND,
 ALEXANDRIA, VIRGINIA
 Activity
 
                                            Case No. 0-NG-155
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                              UNION PROPOSAL
 
    SECTION K.  IN ANY REALIGNMENT OF THE WORKFORCE, THE EMPLOYER AGREES
 TO THE FOLLOWING PROCEDURES:
 
    1.  THE EMPLOYER WILL NEGOTIATE WITH THE UNION AS TO WHETHER A FREEZE
 OF ALL HIRING FROM
 
    OUTSIDE IS NECESSARY FOR THE DURATION OF THE REALIGNMENT OR UNTIL
 PERSONNEL ACTIONS UNDER THE
 
    REALIGNMENT HAVE BEEN COMPLETED AND ALL TRANSFER OF FUNCTION (TOF)
 AND REDUCTION-IN-FORCE
 
    (RIF) EMPLOYEES HAVE HAD THE OPPORTUNITY TO FILL VACANCIES.  EXCEPT
 AS PROVIDED IN
 
    SUBPARAGRAPH A, BELOW, BEFORE ANY POSITIONS IN THE ORGANIZATION ARE
 FILLED FROM OUTSIDE, ALL
 
    IN-HOUSE EMPLOYEES WILL BE SATISFACTORILY PLACED.
 
    A.  IF IT IS AGREED THAT A FREEZE IS NECESSARY THE EMPLOYER WILL
 ESTABLISH A JOINT
 
    UNION/MANAGEMENT FREEZE REVIEW BOARD TO REVIEW AND APPROVE ANY
 EXCEPTIONS TO THE FREEZE, AND
 
    TO DEVELOP CRITERIA FOR THESE EXCEPTIONS.
 
    B.  NO EXCEPTIONS TO THE FREEZE WILL BE PROCESSED WITHOUT JOINT
 UNION/MANAGEMENT FREEZE
 
    REVIEW BOARD APPROVAL.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN UNDER SECTION 7106(B)(2) AND (3) OF THE STATUTE /1/ OR, IS
 NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1)
 OF THE STATUTE, /2/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL CONCERNS A MATTER WHICH IS NEGOTIABLE ONLY
 AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1) OF THE STATUTE.
 ACCORDINGLY, SINCE THE AGENCY HAS DECLINED TO NEGOTIATE ON THE PROPOSAL,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, 45
 FED. REG. 3513(1980), THE AGENCY'S ALLEGATION THAT THE UNION'S PROPOSAL
 IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
 
    REASONS:  THE CLEAR MEANING OF SECTION 7106(B)(1) OF THE STATUTE IS
 TO RENDER PROPOSALS CONCERNING, INTER ALIA, THE NUMBERS AND TYPES OF
 EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL SUBDIVISION NEGOTIABLE ONLY AT
 THE ELECTION OF THE AGENCY.  LIKEWISE A PROPOSAL WHICH IS DIRECTLY AND
 INTEGRALLY RELATED TO THE NUMBERS AND TYPES OF EMPLOYEES ASSIGNED TO AN
 ORGANIZATIONAL SUBDIVISION, AND IS THEREBY DETERMINATIVE OF THE NUMBERS
 AND TYPES, WOULD BE NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY.  /3/
 
    FOR THE REASONS WHICH FOLLOW, THE INSTANT PROPOSAL IS DIRECTLY AND
 INTEGRALLY RELATED TO THE NUMBERS AND TYPES OF EMPLOYEES ASSIGNED TO AN
 ORGANIZATIONAL SUBDIVISION AND, THEREFORE, IS NEGOTIABLE ONLY AT THE
 ELECTION OF THE AGENCY.  THE FIRST PART OF THE PROPOSAL WOULD REQUIRE
 THE AGENCY TO NEGOTIATE WITH THE UNION ON THE IMPOSITION OF A FREEZE ON
 HIRING FROM OUTSIDE THE BARGAINING UNIT.  AS STATED BY THE PROPOSAL,
 THERE WOULD BE A FREEZE ON HIRING FROM OUTSIDE SOURCES UNTIL ALL UNIT
 EMPLOYEES AFFECTED BY THE REALIGNMENT OF THE WORKFORCE WERE
 "SATISFACTORILY PLACED," UNLESS AN EXCEPTION TO THE FREEZE IS GRANTED BY
 A JOINT UNION-MANAGEMENT BOARD ESTABLISHED TO REVIEW REQUESTS FOR
 EXCEPTIONS AND TO DEVELOP CRITERIA FOR APPROVAL OF FURTHER REQUESTS.
 THUS, UNDER THE PROPOSAL, THE AGENCY WOULD BE PRECLUDED FROM HIRING NEW
 EMPLOYEES OF THE REQUISITE TYPES, AT THE REQUISITE GRADES, AND IN THE
 NECESSARY NUMBERS TO MEET CHANGES IN MISSION REQUIREMENTS UNLESS AND
 UNTIL AN EXCEPTION TO THE FREEZE IS GRANTED BY A BOARD COMPOSED OF BOTH
 UNION AND MANAGEMENT MEMBERS.  THE PROPOSAL WOULD THEREBY REQUIRE
 NEGOTIATION ON A MATTER WHICH IS DIRECTLY AND INTEGRALLY RELATED TO THE
 NUMBERS AND TYPES OF PERSONNEL TO BE EMPLOYED AND CONFLICTS WITH SECTION
 7106(B)(1) OF THE STATUTE UNDER WHICH, AS ALREADY STATED, NEGOTIATION ON
 SUCH MATTERS CAN OCCUR ONLY AT THE ELECTION OF THE AGENCY.
 
    THE UNION ASSERTION THAT ITS PROPOSAL WOULD MERELY PROVIDE, UNDER
 SECTION 7106(B)(3) OF THE STATUTE, APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS RIGHT TO
 REALIGN THE WORKFORCE AND HENCE, IS NEGOTIABLE, CANNOT BE SUSTAINED.
 THE PROPOSAL AS DISCUSSED ABOVE WOULD ALLEVIATE THE IMPACT OF THE
 REALIGNMENT ON AFFECTED UNIT EMPLOYEES BY REQUIRING THE AGENCY TO
 BARGAIN ON MATTERS WHICH, UNDER THE STATUTE, IT HAS A RIGHT TO ELECT NOT
 TO BARGAIN.  SIMILARLY, THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 UNDER SECTION 7106(B)(2) OF THE STATUTE AS A PROCEDURE MANAGEMENT
 OFFICIALS WILL OBSERVE IN EXERCISING A RESERVED MANAGEMENT RIGHT UNDER
 SECTION 7106 OF THE STATUTE.
 
    IN SUMMARY, SINCE THE UNION PROPOSAL WOULD REQUIRE BARGAINING ON
 MATTERS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION
 7106(B)(1) OF THE STATUTE AND, PURSUANT TO THAT SECTION, THE AGENCY HAS
 ELECTED NOT TO BARGAIN ON THE PROPOSAL, THE AGENCY'S ALLEGATION THAT THE
 PROPOSAL IS NONNEGOTIABLE MUST BE SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., JULY 10, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106(B)(2) AND (3) OF THE STATUTE PROVIDE:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM NEGOTIATING--
 
   .          .          .          .
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY AUTHORITY UNDER THIS SECTION;  OR
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT
 OFFICIALS.
 
    /2/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FOR NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY, OR ON THE
 
    TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)
 
    /3/ SEE, NATIONAL TREASURY EMPLOYEES UNION CHAPTER 66 AND INTERNAL
 REVENUE SERVICE, KANSAS CITY SERVICE CENTER, CASE NO. O-NG-9, 1 FLRA 106
 (SEPT. 13, 1979).