09:1039(147)NG - AFGE Local l603 and Navy Exchange, Naval Air Station, Patuxent River, MD -- 1982 FLRAdec NG

 9 FLRA No. 147
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1603
 Union
 
 and
 
 NAVY EXCHANGE, NAVAL AIR STATION,
 PATUXENT RIVER, MARYLAND
 Agency
 
                                            Case No. O-NG-435
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    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
 PRESENTS ISSUES RELATING TO THE NEGOTIABILITY OF THE FOLLOWING UNION
 PROPOSAL.
 
                           ARTICLE II, SECTION I
 
    RIF ACTIONS WILL BE MADE IN ACCORDANCE WITH SECNA(V)I(N)ST 5300.22,
 EXCEPT AS FOLLOWS:  AN
 
    EMPLOYEE IN GROUP I WILL, WHEN REACHED IN A REDUCTION-IN-FORCE
 ACTION, HAVE REVERSION RIGHTS
 
    TO ALL PREVIOUSLY HELD POSITIONS IN THE UNIT, AND ALL INTERVENING
 POSITIONS FOR WHICH
 
    QUALIFIED IN DESCENDING ORDER ACCORDING TO GRADE.
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 THE BARGAINING UNIT HEREIN IS COMPRISED OF NONAPPROPRIATE FUND EMPLOYEES
 WHO ARE NOT COVERED BY REDUCTION-IN-FORCE (RIF) PROCEDURES PRESCRIBED IN
 THE FEDERAL PERSONNEL MANUAL.  INSTEAD, THE AGENCY REGULATION REFERENCED
 IN THE PROPOSAL GOVERNS THE RIF REVERSION OR RETREAT RIGHTS OF SUCH
 EMPLOYEES.  THIS REGULATION PROVIDES FOR EMPLOYEE RETREAT RIGHTS IN A
 RIF ONLY TO THE LAST POSITION PREVIOUSLY HELD IN THE ORGANIZATION BY THE
 EMPLOYEE, PROVIDED THAT THE POSITION IS ENCUMBERED, THAT SUCH REVERSION
 WILL NOT RESULT IN A HIGHER GRADE OR RATE OF PAY, THAT SUCH REVERSION
 WILL NOT RESULT IN A HIGHER GRADE OR RATE OF PAY, THAT THE EMPLOYEE
 EXERCISING THE RETREAT RIGHTS HAS AN EARLIER SERVICE DATE THAN THE
 EMPLOYEE TO BE DISPLACED AND THAT THE EMPLOYEE REMAINS QUALIFIED TO
 PERFORM THE DUTIES OF THE PREVIOUS POSITION.  CONTRARY TO THE UNION'S
 ASSERTION, BASED ON ITS EXPRESS LANGUAGE, THE PROPOSAL, WHEN COMBINED
 WITH THE AGENCY REGULATION, WOULD, INSOFAR AS IS HERE PERTINENT,
 OBLIGATE THE AGENCY TO PROVIDE AN EMPLOYEE, AFFECTED BY A RIF, REVERSION
 RIGHTS TO ALL POSITIONS PREVIOUSLY HELD BY SUCH EMPLOYEE AND ALL
 INTERVENING POSITIONS IN THE UNIT ON THE BASIS OF SENIORITY.  IN THIS
 RESPECT, THE INSTANT PROPOSAL IS NOT MATERIALLY DIFFERENT FROM THE ONE
 THE AUTHORITY HELD TO BE IN VIOLATION OF MANAGEMENT'S RIGHT TO "ASSIGN"
 EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE IN NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23 AND DEPARTMENT OF THE
 AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, 3 FLRA 185(1980).  IN THAT
 CASE THE PROPOSAL FOUND TO BE NONNEGOTIABLE CONCERNED SENIORITY-BASED
 PLACEMENT RIGHTS FOR EMPLOYEES DOWNGRADED PURSUANT TO POSITION
 CLASSIFICATION ACTIONS.  SEE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
 FORCE BASE, OHIO, 2 FLRA 604, 613 AND 627(1980), ENFORCED AS TO OTHER
 MATTERS SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
 AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981) CERT. DENIED SUB NOM. AFGE V.
 FLRA, U.S.  , 102 S. CT. 1443(1982).
 
    FINALLY, THE UNION'S CLAIM THAT THE AGENCY'S REGULATION CANNOT BAR
 NEGOTIATIONS ON ITS PROPOSAL BECAUSE THE AGENCY HAS NOT SHOWN THAT A
 COMPELLING NEED EXISTS FOR THE REGULATION IS MISPLACED.  THAT IS,
 BARGAINING ON THE UNION'S PROPOSAL IN THIS CASE IS BARRED BECAUSE THE
 PROPOSAL IS INCONSISTENT WITH THE AGENCY'S STATUTORY RIGHT TO "ASSIGN"
 EMPLOYEES;  THE FACT THAT THE AGENCY HAS CHOSEN TO SET OUT IN A
 REGULATION THE SUBSTANTIVE CRITERIA IT WILL APPLY IN EXERCISING THAT
 RIGHT TO ASSIGN EMPLOYEES DOES NOT THEREBY SUBJECT THOSE CRITERIA TO A
 COMPELLING NEED CHALLENGE UNDER SECTION 7117(A)(2) OF THE STATUTE.
 
    ACCORDINGLY, FOR THE REASONS FULLY DETAILED IN THE SCOTT AIR FORCE
 BASE DECISION, 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 BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY