[ v11 p125 ]
The decision of the Authority follows:
11 FLRA No. 31 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2024 Union and DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE Agency Case No. O-NG-493 DECISION AND ORDER ON NEGOTIABILITY ISSUE The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The issue presented is the negotiability of the following Union proposal: Consistent with the objective and principles of FPM 531, Subchapter 2, reemployment of former employees to a bargaining unit position will be accomplished in a fair and equitable manner. The Union will be forwarded a copy of reemployment documents affecting Unit employees. In the establishment of the rate of reemployment, the exercise of sound and reasonable managerial discretion will be followed. (The underscored language is in dispute.) Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Federal Personnel Manual Chapter 531 leaves agencies discretion in determining, inter alia, the rate of basic pay for a new employee who previously worked as a Federal employee. The proposal would require the Agency to exercise that rate setting discretion with respect to former employees in a fair and even-handed manner. The Union states that its proposal is concerned with management's setting of pay rates for present members of the bargaining unit who may be released from employment in the future and subsequently reemployed into bargaining unit positions. The Agency does not argue, and it does not otherwise appear, that the instant proposal is inconsistent with law or appropriate regulations. The Agency's sole contention is that the proposal does not concern conditions of employment because the proposal would confer rights upon a class, former employees, who are not members of the bargaining unit. However, this assertion does not accurately characterize the actual effect of the proposal. The Statute authorizes an exclusive representative to bargain over personnel policies, practices and matters affecting working conditions of employees in the bargaining unit. /1/ In this regard, a bargaining proposal involves such conditions of employment if it relates to rights and obligations with respect to bargaining unit positions. /2/ With regard to the instant case, it is clear that the Union's proposal could benefit former employees only if and when they are reemployed in bargaining unit positions. Thus, the proposal concerns matters which are conditions of employment, and it is within the duty to bargain under the Statute. /3/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10), IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning the Union's proposal. /4/ Issued, Washington, D.C., January 27, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In this regard, see generally the discussions concerning conditions of employment in National Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA Nos. 8 and 23 (1980). /2/ See, e.g., National Treasury Employees Union and Internal Revenue Service, 7 FLRA No. 42 (1981) (Union Proposals 2-4); National Federation of Federal Employees Local 1332 and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia, 6 FLRA No. 66 (1981) (Union Proposals I, II, IV); American Federation of Government Employees, AFL-CIO, Local 2578 and General Services Administration, National Archives and Records Service, Washington, D.C., 3 FLRA 603 (1980). /3/ In so deciding, the Authority notes that management has the right under section 7106(a)(2)(A) of the Statute to layoff employees subject to section 7106(b)(2) and (b)(3). In the circumstances herein, the proposal constitutes an appropriate arrangement under section 7106(b)(3) for bargaining unit employees adversely affected by the exercise of management's right to layoff. /4/ In deciding that the Union's proposal is within the duty to bargain, the Authority, of course, makes no judgment as to its merits.