American Federation of Government Employees, Local 1692 (Union) and Department of the Air Force, Mather Air Force Base, California (Agency)

 8 FLRA No. 37
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1692
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE, MATHER
 AIR FORCE BASE, CALIFORNIA
 Agency
 
                                            Case No. 0-NG-360
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN 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) AND
 RAISES ISSUES CONCERNING THE NEGOTIABILITY OF THE FOLLOWING TWO
 PROVISIONS OF A LOCAL AGREEMENT WHICH WERE DISAPPROVED BY THE AGENCY
 HEAD UNDER SECTION 7114(C) OF THE STATUTE.  UPON CAREFUL CONSIDERATION
 OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS, THE AUTHORITY
 MAKES THE FOLLOWING DETERMINATIONS.
 
                                PROPOSAL 1
 
    ARTICLE 9, SECTION 5.  THE EMPLOYER AGREES TO APPOINT AND TRAIN ONE
 EEO COUNSELOR NOMINATED
 
    BY THE UNION.  THE CANDIDATE SELECTED BY THE UNION SHALL MEET THE
 CRITERIA ESTABLISHED BY THE
 
    PROGRAM AND WILL BE TRAINED BY THE EMPLOYER IN ACCORDANCE WITH
 PROVISIONS OF APPLICABLE
 
    REGULATIONS.  THE COUNSELOR WILL SERVE UNDER THE DIRECTION OF THE
 CHIEF COUNSELOR.  THE UNION
 
    AGREES THAT NOMINEES SHALL NOT INCLUDE UNION STEWARDS, OR ELECTED OR
 APPOINTED UNION
 
    REPRESENTATIVES.
 
                                PROVISION 2
 
    ARTICLE 25, SECTION 2.  IN THE EVENT OF A REDUCTION IN FORCE,
 EXISTING VACANCIES WILL BE
 
    UTILIZED TO THE MAXIMUM EXTENT POSSIBLE TO PLACE EMPLOYEES, WHO
 OTHERWISE WOULD BE AFFECTED BY
 
    THE ACTION, IN CONTINUING POSITIONS.  ALL REDUCTIONS IN FORCE WILL BE
 CARRIED OUT IN STRICT
 
    COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS.
 
    WITH RESPECT TO PROVISION 1, IN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
 FORCE BASE, OHIO, 2 FLRA 603, 662(1980), ENFORCED AS TO OTHER MATTERS
 SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659
 F.2D 1140(D.C. CIR. 1981), THE AUTHORITY FOUND THAT A DISPUTED PORTION
 OF A UNION PROPOSAL MANDATING THAT HALF OF THE AGENCY'S EQUAL EMPLOYMENT
 OPPORTUNITY (EEO) COUNSELORS BE SELECTED FROM A LIST PROVIDED BY THE
 UNION WAS VIOLATIVE OF THE RIGHT TO "ASSIGN WORK" UNDER SECTION
 7106(A)(2)(B) OF THE STATUTE.  PROVISION 1, HEREIN, BEARS NO MATERIAL
 DIFFERENCE FROM THAT PORTION OF THE PROPOSAL HELD NONNEGOTIABLE IN THE
 WRIGHT-PATTERSON DECISION BECAUSE THE PROVISION WOULD REQUIRE THE AGENCY
 TO ASSIGN EEO COUNSELOR DUTIES TO THE UNION'S NOMINEE. HENCE, FOR THE
 REASONS FULLY SET FORTH IN THE WRIGHT-PATTERSON DECISION, PROVISION 1
 MUST BE HELD NONNEGOTIABLE.
 
    AS TO PROVISION 2 CONCERNING THE UTILIZATION TO THE MAXIMUM EXTENT
 POSSIBLE OF EXISTING VACANCIES IN THE EVENT OF A REDUCTION-IN-FORCE, THE
 PROVISION EXPRESSLY WOULD REQUIRE "STRICT COMPLIANCE WITH APPLICABLE
 LAWS AND REGULATIONS," INCLUDING THE PROVISIONS OF THE STATUTE. IN LIGHT
 OF THIS EXPLICIT REQUIREMENT, THE AUTHORITY CONCLUDES THAT PROVISION 2
 CONSTITUTES AN APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED
 BY MANAGEMENT'S DECISIONS IN CONNECTION WITH A REDUCTION-IN-FORCE, AND
 THUS IS NEGOTIABLE UNDER SECTION 7106(B)(3).  SEE NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1167 AND DEPARTMENT OF THE AIR FORCE,
 HEADQUARTERS, 31ST COMBAT SUPPORT GROUP (TAC), HOMESTEAD AIR FORCE BASE,
 FLORIDA, 6 FLRA NO. 105(1981).  IN THIS REGARD, MANAGEMENT WOULD FULLY
 RETAIN ITS STATUTORY DISCRETION, E.G., WHETHER TO UTILIZE EXISTING
 VACANCIES TO WHICH THERE IS NO REASSIGNMENT RIGHTS.  SEE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2782 AND DEPARTMENT
 OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON, D.C., 6 FLRA NO.
 56(1981).  CF. AMERICAN FEDERATION OF GOVERNMENT OF EMPLOYEES, AFL-CIO,
 LOCAL 2782 AND DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON,
 D.C., 7 FLRA NO. 13(1981), APPEAL DOCKETED, 81-2386 (D.C.  CIR.DEC. 29,
 1981), (PROPOSAL REQUIRING SELECTION OF REPROMOTION ELIGIBLE OUTSIDE THE
 DUTY TO BARGAIN).
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
 PETITION FOR REVIEW RELATING TO PROVISION 1 BE, AND IT HEREBY IS,
 DISMISSED.  IT IS FURTHER ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR
 AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING PROVISION 2.
 /1/
 
    ISSUED, WASHINGTON, D.C., MARCH 11, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN FINDING PROVISION 2 NEGOTIABLE, THE AUTHORITY MAKES NO
 JUDGMENT AS TO ITS MERIT.