[ v16 p288 ]
The decision of the Authority follows:
16 FLRA No. 44 DEPARTMENT OF HEALTH AND HUMAN SERVICES WASHINGTON, D.C. AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION 7, KANSAS CITY, MISSOURI Respondents and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case Nos. 7-CA-20075 7-CA-20152 DECISION AND ORDER This matter is before the Authority pursuant to the Acting Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record in these cases, including the stipulation of facts, accompanying exhibits, and the contentions of the parties, the Authority finds: On June 15, 1979, the National Treasury Employees Union (NTEU or Union) was certified as the exclusive representative of a unit of all professional and nonprofessional employees employed by the Department of Health, Education and Welfare /1/ in the greater Kansas City metropolitan area, including inter alia employees of both the Public Health Service (PHS) and the Office of Human Development Services (OHD), and excluding certain other employees not relevant herein. At all times relevant to the facts of the instant cases, no collective bargaining agreement was in effect between the parties. Regarding Case No. 7-CA-20075, during the later summer of 1981, Respondent Region 7 in Kansas City provided the Union with timely notice of its intention to conduct a reduction-in-force (RIF) within its PHS component. The Union requested bargaining concerning the impact and implementation thereof, and, among its bargaining proposals, submitted the following: The "Competitive Area" will be established by the Agency as all of those positions under the personnel administration and authority of the Principal Regional Director of DHHS-Kansas City, Mo. within the commuting area of Kansas City, Missouri. After several bargaining sessions, the parties reached agreement concerning certain procedures management would utilize in conducting the RIF as well as appropriate arrangements for adversely affected employees, but they were unable to reach agreement upon the definition of the proper competitive area. Management's chief negotiator at the Regional level took the position that the Union's proposal concerning competitive areas was not negotiable, asserting essentially that competitive areas were already defined in pre-existing regulations promulgated at the Agency Headquarters level and that he was without authority to negotiate concerning such regulations at the Regional level, the level of exclusive recognition. /2/ Respondent HHS in Washington further took the position that because competitive areas had been established on an Agency-wide basis, any divergence therefrom would cause an "intolerable disruption" in the Agency'c operations. On September 28, 1981 NTEU filed with the Authority a negotiability appeal (Case No. O-NG-571) as to Respondent's declaration of non-negotiability concerning competitive areas. On November 24, 1981 Respondent Region 7, at the direction of Respondent HHS Headquarters, conducted a RIF within its PHS component adversely affecting some 20 members of the bargaining unit. Essentially the same fact pattern obtains with respect to Case No. 7-CA-20152. Pursuant to notice to the Union in November 1981 of Respondent's intention to conduct a RIF within its OHD component, NTEU once again advanced a bargaining proposal to the effect that the competitive area to be utilized in conducting the RIF should include all of Respondent's components within the Kansas City, Missouri commuting area. Respondents took the position, as they had previously, that the Union's proposal was non-negotiable based upon the same rationale relied upon earlier in the course of bargaining over the RIF within PHS. A negotiability appeal was filed with the Authority by NTEU (Case No. O-NG-610) and Respondents proceeded to implement the RIF in OHD which adversely impacted some 20 unit employees, on January 23, 1982. As a result of the RIF actions undertaken in PHS and OHD, NTEU filed the instant charges and subsequently elected to proceed first under the unfair labor practice procedures of the Statute rather than under the negotiability procedures. /3/ The complaint alleges in substance that Respondents violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate concerning the appropriate competitive areas to be utilized in conducting two separate RIF actions and by unilaterally implementing RIF actions within Respondent Region 7's PHS and OHD components, prior to fulfilling their bargaining obligations concerning the impact and implementation thereof. As noted above, Respondents take the position that the competitive areas to be utilized in the event of a RIF are embodied in regulations promulgated at the Departmental level, are uniformly applicable throughout the Agency, and are not negotiable at the level of exclusive recognition (in these circumstances, the Regional level). The Respondents further argue that there existed a compelling need for such regulations, citing the "intolerable disruption" which would ensue should a departure from the Departmental regulations be permitted. Finally, Respondents contend that the compelling need issue is not litigable in the context of an unfair labor practice proceeding, but rather that such determination may only be made in the course of a negotiability appeal. The Authority has previously determined that where an Agency has raised the issue of compelling need as an affirmative defense to an allegation that it has refused to bargain in good faith, the Authority may, in the context of an unfair labor practice proceeding, decide such issue pursuant to section 7117 of the Statute. /4/ Moreover, in National Treasury Employees Union and Department of Health and Human Services, Food and Drug Administration, Region VII, 11 FLRA No. 55 (1983), the Authority was confronted with a bargaining proposal identical in all respects to the proposal at issue herein, as well as with an assertion on the part of the Department of Health and Human Services, Washington, D.C., and its Kansas City, Missouri Regional Office, that the proposal was not negotiable based upon a compelling need for uniformly applied regulations governing RIF competitive areas promulgated at the Departmental level. The record in the instant case provides no basis upon which to distinguish our previous holding that there existed no compelling need for the Departmental Regulation at issue here and that the Union's proposal was negotiable at the level of exclusive recognition. /5/ Thus, for the reasons more fully set forth in that case, the Authority concludes that the Respondents have failed to establish that there existed a compelling need for the regulation in dispute. The record further discloses that while exclusive recognition, and therefore the bargaining obligation herein, exists at the Respondent's Kansas City Regional Office level rather than at the Agency Headquarters level, both the initial determination to declare the Charging Party's proposals to be non-negotiable, as well as the ultimate decision to carry out the RIFs were based upon HHS directives to that effect. Thus, the actions of Respondent HHS effectively precluded the Respondent Regional Office from fulfilling its bargaining obligation to the Union and, in the circumstances of these cases, it is concluded that the conduct of Respondent HHS was violative of section 7116(a)(1) and (5) of the Statute. Department of Health and Human Services, Social Security Administration, Region VI, and Department of Health and Human Services, Social Security Administration, Galveston, Texas District, 10 FLRA 26 (1982); Department of the Interior, Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, 9 FLRA 385 (1982). The Authority further finds that, in contrast to Respondent HHS, agents and representatives of Respondent Region 7 acted only as conduits in carrying out decisions made at the Agency Headquarters level and specifically that they exercised no discretion with respect to the decision to actually implement the RIFs. In these circumstances, it would not effectuate the purposes and policies of the Statute to find a separate violation based upon the actions of officials of Respondent Region 7 who did not themselves initiate any change in conditions of employment but merely acted ministerially in implementing the directives of higher level Agency management. See, e.g., Department of the Interior, Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, supra. Accordingly, the complaint against Respondent Region 7 must be dismissed. While neither NTEU nor the General Counsel has requested a status quo ante remedy in this case, NTEU seeks an Authority other which would require that any agreement reached between the parties as a result of further bargaining over RIF procedures be applied on a retroactive basis. The Authority concludes that, in the circumstances of this case, an order requiring retroactive application of any such agreement is not warranted, but rather that an order requiring the Respondent to bargain concerning negotiable RIF procedures will best effectuate the purposes and policies of the Statute. See, e.g., The Adjutant General's Office, Puerto Rico Air National Guard, 3 FLRA 342 (1980). ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Authority and section 7118 of the Statute, the Authority hereby orders that the Department of Health and Human Services, Washington, D.C., shall: 1. Cease and desist from: (a) Directing Department of Health and Human Services, Region 7, Kansas City, Missouri not to bargain regarding proposals made in the course of negotiations by National Treasury Employees Union, concerning the appropriate competitive areas to be utilized in the conduct of reduction-in-force actions. (b) Directing Department of Health and Human Services, Region 7, Kansas City, Missouri to unilaterally implement a reduction-in-force within its Kansas City, Missouri Public Health Service and Office of Human Development Services components without first bargaining over a proposal by National Treasury Employees Union concerning appropriate competitive areas. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to carry out the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Upon request of the National Treasury Employees Union, permit Department of Health and Human Services, Region 7, Kansas City, Missouri to negotiate concerning the Union's proposals relating to the appropriate competitive areas to be utilized in conducting RIFs. (b) Post at the facilities of the Department of Health and Human Services, Region 7, Kansas City, Missouri, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Secretary of the Department of Health and Human Services, or her designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and all other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Federal Labor Relations Authority's Rules and Regulations, notify the Regional Director of Region VII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., October 29, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail to permit Department of Health and Human Services, Region 7 to bargain regarding a proposal made in the course of negotiations by National Treasury Employees Union concerning the appropriate competitive areas to be utilized in the conduct of reduction-in-force actions. WE WILL NOT direct Department of Health and Human Services, Region 7 to unilaterally implement a reduction-in-force action without first bargaining over a proposal by National Treasury Employees Union concerning appropriate competitive areas. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, upon request of the National Treasury Employees Union, permit Department of Health and Human Services, Region 7 to negotiate concerning the Union's proposals relating to the competitive areas to be utilized in conducting reductions-in-force. (Agency) Dated: By: (Signature) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VII, Federal Labor Relations Authority whose address is: 1531 Stout Street, Suite 301, Denver, CO 800202 and whose telephone number is (303) 837-5224. --------------- FOOTNOTES$ --------------- /1/ As a consequence of the establishment of the Department of Education, the remaining portion of the Department of Health, Education and Welfare was designated as the Department of Health and Human Services (HHS), and the matters at issue herein relate solely to a bargaining unit at the Department of Health and Human Services. /2/ HHS Personnel Manual Instruction 351-1-40 established the Agency's competitive areas and provides in pertinent part: 351-1-40 COMPETITIVE AREAS A. The normal subdivisions of the Department for reduction in force are outlined below: * * * * 5. Positions under a regional office's appointing authority form competitive areas as follows: a. Each PHS Hospital, SSA Program Service Center, and SSA Date Operations Center is a separate competitive area. b. Positions within the Indian Health Service within each commuting area form a competitive area. c. All other clerical, secretarial, and wage rate positions in a commuting area constitute a competitive area. d. For positions other than those covered by 5.a., b., or c. above, separate competitive areas are established region-wide within each of the following components: Office of the Secretary, Public Health Service, Health Care Financing Administration, Office of Child Support Enforcement, Office of Human Development Services, and Social Security Administration. /3/ Section 2423.5 of the Authority's Rules and Regulations provides in pertinent part: Sec. 2423.5 Selection of the unfair labor practice procedure or the negotiability procedure. Where a labor organization files an unfair labor practice charge pursuant to this part which involves a negotiability issue, and the labor organization also files pursuant to Part 2424 of this subchapter a petition for review of the same negotiability issue, the Authority and the General Counsel ordinarily will not process the unfair labor practice charge and the petition for review simultaneously. Under such circumstances, the labor organization must select under which procedure to proceed. Upon selection of one procedure, further action under the other procedure will ordinarily be suspended . . . (.) /4/ Defense Logistics Agency (Cameron Station, Virginia) et al., 12 FLRA No. 86 (1983). /5/ Moreover, it is neither asserted by the Respondent nor otherwise apparent from the record that the instant proposal would conflict with any government-wide rule or regulation. The applicability of the proposal to non-bargaining unit employees was not asserted by the Respondents as a ground for precluding negotiation of the proposal, and hence, was not considered by the Authority. See American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA No. 98 (1984), wherein the Authority, citing National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982), further noted that it is now well established that the parties bear the burden of creating the record upon which the Authority will resolve negotiability disputes placed before it.