[ v16 p75 ]
The decision of the Authority follows:
16 FLRA No. 18 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Union and DEPARTMENT OF THE ARMY, U.S. ARMY CORPS OF ENGINEERS, KANSAS CITY DISTRICT, KANSAS CITY, MISSOURI Agency Case No. O-NG-689 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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), and presents issues concerning the negotiability of the two Union proposals. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. /2/ Union Proposal 1 Management Initiated/Directed Reassignment Section 1. When management (Employer) determines it is necessary to reassign employees due to a staffing imbalance, lack of work, shortage of funds, reorganization, or other reasons, the Employer will first ask for volunteers from among the qualified employees within that competitive area and level. If there are too many volunteers, the employees with the greatest retention standing will be given the reassignment. If there are two few or no volunteers, the employees with the least retention standing shall be given the reassignment. Union Proposal 1 would require that selection for reassignments be based on retention standing. That is, where proposed reassignments attracted a strong degree of volunteer interest, the volunteers with the greatest retention standing would be reassigned, but where little or no volunteer interest was evidenced, the employees with the least retention standing would be reassigned. In this respect, Union Proposal 1 is to the same effect as Union Proposals IV through VI in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 610-13 (1980), enforced 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, 455 U.S. 945 (1982). In the cited case, the Authority found the three proposals, requiring that selections for assignments to other positions be based on seniority, to be inconsistent with the management right, pursuant to section 7106(a)(2)(A) of the Statute, to assign employees, because the proposals divested management of the discretion to designate which particular employee would be reassigned. /3/ Contrary to the Union's contention, Union Proposal 1 is not identical in coverage and effect to Union Proposal IV in National Treasury Employees Union and Department of The Treasury, Internal Revenue Service, 6 FLRA 508 (1981), which the Authority held to be within the duty to bargain. The cited proposal in the Internal Revenue Service case dealt exclusively with the reassignment of employees from one location to another without an accompanying change in duties performed. While Union Proposal 1, herein, addresses staffing imbalances, it is also concerned with other causes for reassignment which would result in changes in the work performed by the affected employees. /4/ Because Union Proposal 1 would govern reassignments to positions with duties different from those previously performed, it is distinguishable from Union Proposal IV in Internal Revenue Service. Hence, for the reasons stated in Air Force Logistics Command, Union Proposal 1 is not within the duty to bargain. Union Proposal 2 Section 3. The following definition(s) shall apply: Competitive Area: The geographic area that usually constitutes one area for employment purposes. It includes any population center (or two or more neighboring areas) and the surrounding localities in which people live and reasonably can be expected to travel in their usual employment. It appears from the record that Union Proposal 2 is closely related to the preceding proposal. That is, this proposal is applicable to the management actions in Union Proposal 1. As previously observed (n. 4, supra), some of the personnel actions enumerated in the first proposal require application of reduction-in-force (RIF) procedures. Moreover, the Union asserts that the definition of competitive area in Union Proposal 1 is not inconsistent with the definition of that term as set forth in Office of Personnel Management (OPM) regulations (5 CFR Part 351). Thus it is clear, in addition to any other application, Union Proposal 2 would govern in a RIF situation. According to the uncontroverted statement of the Agency, its currently established competitive area includes "the entire District (i.e., the District Office, all offices and all field agencies, including dredges and towboats). Thus the competitive area, as permitted under OPM regulations, extends beyond the local commuting area and, in fact, encompasses several states (i.e., Kansas, Missouri, Iowa, and Nebraska)." The Agency also states, again without contradiction, that " . . . the competitive area (of the Agency) is composed of bargaining unit employees and positions and nonbargaining unit employees and positions." Further, according to the Agency, "Under the union's proposal, the competitive area would be restricted to the local commuting area but would still continue to be composed of bargaining unit employees and positions and nonbargaining unit employees and positions." /5/ Thus, the record establishes that the instant proposal, by redrawing the Agency's competitive area, affects the working conditions of employees outside the bargaining unit. That is, the proposal would effectively narrow the area of competition in a RIF situation for nonbargaining unit employees within the redrawn competitive area by excluding positions outside the local commuting area, and would bar those nonbargaining unit employees at remote Agency sites from competing for positions within the local commuting area. The proposal therefore is to the same effect as the proposal before the Authority in American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA No. 98 (1984), which sought to establish a competitive area including both bargaining unit and nonbargaining unit employees. Noting that the cited proposal would directly determine conditions of employment of employees not within the bargaining unit, the Authority held it to be nonnegotiable. Thus, based upon Office of Personnel Management, and the reasons the cases cited therein, Union Proposal 2 is not within the Agency's duty to bargain. As to the Union's contention that the proposal is negotiable because it would only apply to bargaining unit positions, /6/ it is noted that the governing OPM RIF regulations, at 5 CFR 351.403, require that each agency "establish competitive levels consisting of all positions in a competitive area . . . ." Thus, the OPM regulations, which are Government-wide, /7/ require uniform treatment of all employees within a designated competitive area during a RIF. The instant proposal, however, as explained by the Union, would require that contractual procedures be applied to employees competing for bargaining unit positions, but would not apply those procedures when employees compete in a RIF for positions not within the bargaining unit. Consequently, Union Proposal 2 is outside the duty to bargain, pursuant to section 7117(a)(1) of the Statute, because it is inconsistent with a Government-wide regulation. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., September 26, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union withdrew its request for review of a third proposal defining competitive level. Accordingly, that proposal is not considered here. /2/ The Union's motion to consolidate this case with Case No. O-NG-672, involving the same parties, is hereby denied on the basis that the issues in the two cases are not sufficiently alike to warrant consolidation. /3/ The Union's assertion that this proposal constitutes an alternative to other methods of filling positions is unpersuasive in that it is at odds with the language of the proposal which is mandatory in nature and does not, on its face, provide for any alternatives in making reassignments. In this connection, the Authority has consistently held that it will not base a negotiability determination on a union's statement of intent which is inconsistent with the express language of the disputed proposal. See, e.g., American Federation of Government Employees, AFL-CIO, Local 2955 and National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa, 5 FLRA 617 (1981). /4/ In this connection, it is noted that the events triggering operation of Union Proposal 1, i.e., lack of work, shortage of funds, reorganization, are the same that mandate application of reduction-in-force procedures under Office of Personnel Management regulations. See 5 CFR 351.201(a). Under these regulations the employee to be reassigned would be the one with the lowest retention standing. See 5 CFR 351.602. Thus the proposal which, in certain circumstances, would require reassignment of the employee with the highest retention standing is also inconsistent with a Government-wide regulation and outside the duty to bargain under section 7117(a)(1) of the Statute. See, International Federation of Professional and Technical Engineers, AFL-CIO, NASA Headquarters Professional Association and National Aeronautics and Space Administration, Headquarters, Washington, D.C., 8 FLRA 212 (1982), n. 6. /5/ Agency Statement of Position at 7. /6/ Union Reply Brief at 4. /7/ National Aeronautics and Space Administration, Headquarters, 8 FLRA 212 (1982), n. 6.