[ v16 p807 ]
16:0807(111)NG
The decision of the Authority follows:
16 FLRA No. 111
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 108
Union
and
U.S. DEPARTMENT OF AGRICULTURE,
FARMERS HOME ADMINISTRATION
Agency
Case No. 0-NG-785
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 raises issues
relating to the negotiability of two Union proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
Article 25.3
UNION REPRESENTATION & RETENTION REGISTER
The Union will name a representative and an alternate to assist
in formulation of the Retention Registers during the life of the
RIF. The representative's duty station will be within the
commuting area of Little Rock. In the event the alternate is
outside the Little Rock area, the Employer agrees to pay travel
and per diem only for that person.
The named representatives will be temporarily relieved from
their work assignments in order to assist in formulation of the
Retention Registers. The representatives' Performance Appraisal
will not in any way be affected by the time spent working with the
Employer.
The representative and the Employer will formulate the
Retention Registers to insure that error or omission will be
corrected immediately. (Only the underlined portions of the
proposal are in dispute.)
Union Proposal 1, in effect, would require Union participation in the
formulation of the retention register. The formulation of the retention
register determines the relative standing of competing employees for
reduction-in-force purposes. /2/ In this respect, an employee's
standing on the retention register determines which employees are to be
retained when an agency must conduct a RIF, i.e., 5 CFR 351.
In agreement with the Agency, the Authority concludes that the
portions of Union Proposal 1 in dispute and addressed by the parties
interfere with management's right to layoff employees under section
7106(a)(2)(A) of the Statute. /3/ The Authority has consistently held
that the management rights enumerated in section 7106 include more than
merely the right to decide to take the final actions specified.
Instead, it also encompasses the right to take certain actions integral
to the exercise of management's rights, such as to discuss and
deliberate concerning the relevant factors upon which such a
determination will be made. In this regard, in National Federation of
Federal Employees, Local 1431 and Veterans Administration Medical
Center, East Orange, New Jersey, 9 FLRA 998 (1982), the Authority, based
upon the reasoning in 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 574 (1981),
enforced sub non. National Federation of Federal Employees v. FLRA, 681
F.2d 886 (D.C. Cir. 1982), relevantly held that a proposal requiring
union representation on a Professional Standards Board and a Position
Management Committee would allow the union to interject itself into the
decisionmaking process, thereby interfering with management's rights
under section 7106 of the Statute.
In the present case, the Union contends that the formulation of the
retention register is a mechanical process and that its participation
would be solely for the purpose of detecting errors or omissions.
However, the Authority concludes that the formulation of the retention
register necessarily involves the exercise of managerial judgment in
applying relevant regulations to implement management's decision to
layoff employees. In this respect, the proposal would allow the Union
to participate in the determination of the relative standing of
competing employees and hence to participate in the determination of
which employees are to be retained in the event of a RIF. Thus, the
proposal herein would include the Union in the decision-making process
and therefore interferes with management's right to layoff employees
under section 7106(a)(2)(A) of the Statute.
Union Proposal 2
An employee who does not accept or declines an offer must do so
within 14 days of the issuance of the specific Reduction in Force
Notice and will be separated through the RIF procedures. The
Specific Notice of RIF will be thirty (30) days and may not be
extended. (Only the underlined portion of the proposal is in
dispute.)
Contrary to the Agency's contention, Union Proposal 2 does not
interfere with management's right to layoff and retain employees under
section 7106(a)(2)(A). The proposal requires that a specific notice of
reduction-in-force be 30 days and may not be extended. Thus, the
proposal herein is a procedure which would not prevent the Agency from
acting at all to layoff and/or retain employees. /4/ See American
Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air
Force Exchange Service, Dix-MGuire Exchange, Fort Dix, New Jersey, 2
FLRA 152 (1979), enforces sub nom. Department of Defense v. FLRA, 659
F.2d 1140 (D.C. Cir. 1981), cert. denied sub non. AFGE v. FLRA, 455 U.S.
945 (1982).
The Agency additionally contends that in certain emergency situations
where the notice period had expired the proposal would place the Agency
in the position of violating the provision of the Anti-Deficiency Act,
31 U.S.C. 1341, which prohibits the expenditure or obligation of funds
that have not been appropriated. However, the Union states that its
proposal is not intended to supercede 5 CFR 351.805 which states that an
action taken by an agency after the date stated in the specific notice
will not generally be invalid for that reason. Thus, the Union concedes
that under the regulation the Agency would have the authority to take
action beyond the 30 day notice period of the proposal in emergency
situations. In light of this interpretation, which the Authority adopts
for purposes of this decision, the Authority finds that the proposal
does not violate applicable law and regulation.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as to
Union Proposal 1, be, and it hereby is, dismissed. Furthermore, IT IS
ORDERED that the Agency shall upon request (or as otherwise agreed to by
the parties) bargain concerning Union Proposal 2. /5/
Issued, Washington, D.C., December 13, 1984
/s/ Henry B. Frazier III
Henry B. Frazier III, Acting
Chairman
/s/ Ronald W. Haughton
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In its response to the Agency's Statement of Position, the Union
withdrew its petition for review as to part of one proposal.
/2/ For a discussion of reduction-in-force, 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).
/3/ Section 7106 of the Statute provides, in relevant part, as
follows:
Section 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
* * * *
(2) in accordance with applicable laws--
(A) to . . . layoff . . . employees . . . (.)
/4/ Section 7106(b)(2) provides:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
* * * *
(2) procedures which management officials of the agency will
observe in exercising any authority under this section(.)
/5/ In deciding that Union Proposal 2 is within the duty to bargain,
the Authority makes no judgment as to its merits.