18:0213(28)CA - Army, Army Corps of Engineers, Detroit District and AFGE Local 2130 -- 1985 FLRAdec CA
[ v18 p213 ]
18:0213(28)CA
The decision of the Authority follows:
18 FLRA No. 28
DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS
DETROIT DISTRICT
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2130, AFL-CIO
Charging Party
Case No. 5-CA-20218
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed. The General Counsel and the Charging
Party filed exceptions to the Judge's Decision, and the Respondent filed
an opposition thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, as modified herein.
Regarding the proposal at issue, which pertains to the competitive
area to be used by the Respondent in effectuating a reduction-in-force,
applicable regulations of the Office of Personnel Management (OPM),
codified at 5 CFR 351.402, provide in relevant part as follows:
Sec. 351.402 Competitive area.
(a) Each agency shall establish competitive areas in which
employees compete for retention under this part.
(b) A competitive area may consist of all or part of an agency
. . . . In the field, the minimum competitive area is an activity
under separate administration within the local commuting area. A
competitive area must be defined solely in terms of an agency's
organizational unit(s) and geographical location, and it must
include all employees within the competitive area so defined.
Consistent with the Judge's findings, and as supported by the record,
the Charging Party's proposed competitive area was coextensive with the
Charging Party's bargaining units. In this connection, as argued by the
Respondent before the Judge and here before the Authority, the proposed
competitive area conflicts with the above-cited provisions of OPM
regulations because it would not encompass all of the employees in the
Respondent's organizational units and geographic locations, i.e., it
would exclude certain persons employed in the same organizational
subdivision and geographic locations as the unit employees, solely on
the basis that they are not included in the units. Accordingly, the
proposal is outside the duty to bargain because it conflicts with a
Government-wide regulation within the meaning of section 7117(a)(1) of
the Statute, /1/ as alleged by the Respondent, and the Respondent
therefore did not violate section 7116(a)(1) and (5) of the Statute by
failing and refusing to bargain concerning the proposal. /2/
ORDER
IT IS ORDERED that the complaint in Case No. 5-CA-20218 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
William M. Petty
For Respondent
Kevin M. Grile
For Charging Party
Claire Morrison, Esq.
For General Counsel
Before: SAMUEL A. CHAITOVITZ, Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding arising under the Federal Service
Labor-Management Relations Statute, Chapter 71 of Title 5 of the
U.S.Code, 5 U.S.C. 7101 et seq., 92 Stat. 1191 (hereinafter referred to
as the Statute), and the Rules and Regulations of the Federal Labor
Relations Authority (FLRA), 5 C.F.R.Chapter XIV, Sec. 2410 et seq.
Pursuant to a charge filed on June 1, 1982 and amended on February 2,
1983, by American Federation of Government Employees, Local 2130,
AFL-CIO (hereinafter called AFGE Local 2130 or the Union) against the
Department of the Army, U.S. Army Corps of Engineers, Detroit District
(hereinafter called Respondent or COE Detroit DISTRICT), the General
Counsel of the FLRA by the Director of Region 5, issued a Complaint and
Notice of Hearing on February 17, 1983. The Complaint alleges that
Respondent violated Sections 7116(a)(1) and (5) of the Statute by
failing and refusing since February 11, 1982 to negotiate with AFGE
Local 2130 concerning the establishment of competitive areas to be
utilized in reductions in force (RIF) actions. COE Detroit District
filed an Answer denying that it had violated the Statute.
A hearing in this matter was conducted before the undersigned in
Detroit, Michigan. The General Counsel of the FLRA, the Respondent and
AFGE Local 2130 were represented and afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence and
to argue orally. The parties entered into extensive stipulations. Post
hearing briefs have been filed and have been fully considered.
Based upon the entire record /3/ in this matter, my observation of
the witnesses and their demeanor, and from my evaluation of the
evidence, I make the following:
Findings of Fact
At all times material herein Respondent has operated facilities at
Detroit, Michigan known as the U.S. Army Corps of Engineers, Detroit
District, hereinafter called the Detroit District and George Evans has
occupied the position of Detroit District's Chief of Management-Employee
Relations, and is an agent of Respondent.
The Detroit District encompasses employees in the Detroit
Metropolitan area (within a 200 mile radius of Detroit), Sault Ste.
Marie, Michigan; Fox River and Kewaunee, Wisconsin; and Duluth,
Minnesota.
At all times relevant herein AFGE Local 2130 has been recognized as
the exclusive representative for the following four units within the
Detroit District: (a) All eligible nonsupervisory employees of the
floating plant of the Detroit District except those employees of the
floating plant assigned to or under the operational control of the Sault
Ste. Marie, Michigan Area Office, the Fox River, Wisconsin Project
Office, the Kewaunee, Wisconsin Project Office, and the Area Office at
Duluth, Minnesota; (b) all eligible nonsupervisory employees of the
Detroit Boatyard; (c) all eligible nonsupervisory nonprofessional
employees of the Construction-Operations Division, U.S. Army Engineer
District, Detroit, located at Project Offices, Field Offices, and their
sub-offices, except for those employees assigned to or under the
operational control of the Sault Ste. Marie, Michigan Area Office, the
Fox River, Wisconsin Project Office, and the Kewaunee, Wisconsin Project
Office; and (d) all eligible nonsupervisory, nonprofessional employees
of the Detroit District Office in Detroit, Michigan. Each has the usual
exclusions.
At all times relevant herein, the following other unions have been
recognized as the exclusive representative for the unit within the
Detroit District of the U.S. Army Corps of Engineers described as
follows: (a) AFGE Local 830 represents a unit of all nonprofessional
employees of the Area Office at Sault Ste. Marie, Michigan, excluding
supervisors and the other customary exclusions; (b) AFGE Local 660
represents a unit of all nonprofessional employees assigned to or under
the operational control of the Fox River, Wisconsin Project Office,
excluding supervisors and the other customary exclusions; (c) AFGE
Local 2882 represents a unit of all nonprofessional employees assigned
to or under the operational control of the Kewaunee, Wisconsin Project
Office, excluding supervisors and the other customary exclusions; and
(d) AFGE Local 2626 represents a unit of all employees serving aboard
the floating plant assigned to the Area Office at Duluth, Minnesota,
excluding supervisors and the other customary exclusions.
The four units for which AFGE Local 2130 is the exclusive
representative cover employees in the Metropolitan Detroit Area and
approximately 200 miles beyond.
The Detroit District had four RIFs between 1975 and 1981 and in all
of these the competitive area was the Detroit District. Further, this
district wide competitive area has been set forth in the Respondent's
Personnel Regulations at least as far back as May 30, 1978. /4/
Melborn Pelton, Jr. has been the President of AFGE Local 2130 for
about eight years. Pelton testified that he was aware of only one prior
RIF, presumably the one in 1975. Further Pelton was unaware of the
competitive area used in any RIF prior to 1982. The 1975 RIF affected
employees represented by AFGE Local 2130. None of the other three prior
RIFs involved employees who worked within the units represented by AFGE
Local 2130. Further, the Detroit District in 1975 was not composed of
exactly the same geographic area as it was in 1982.
In January 1982 AFGE Local 2130 President Pelton was informed by
James MacKenzie, Detroit District Personnel Officer, that a RIF was to
occur within the Detroit District and that notices to employees might
have to be issued as early as February 1, 1982. Pelton asked to bargain
about the impact of the RIF.
On February 11, 1982 the representatives of the Detroit District and
AFGE Local 2130 met to negotiate concerning the RIF. AFGE Local 2130
presented 12 proposals, including one involving the competitive area.
/5/ The Detroit District submitted 11 counter proposals, including one
involving the competitive area. /6/ The parties reached agreement on
all but two proposals, one concerning the competitive area.
Respondent's agent George Evans took the position that the Detroit
District could not negotiate concerning the competitive area and that it
had to insist upon its counter proposal.
The parties met again on May 4 and 5, 1982 and discussed the
impending RIF. The parties reached agreement on one of the two issues
that had not been agreed to at the February 11 meeting. The parties did
not reach agreement as to competitive area. Detroit District's
representatives reiterated its position that the competitive area was
not negotiable because it had already been determined to be
district-wide and that it had been determined by the Office of the Corps
of Engineers in Washington, D.C. /7/
There were no further negotiating sessions after May 5, 1982 and at
no time subsequent to May 5 did the parties negotiate about or agree to
the competitive area.
As part of the RIF procedure Respondent abolished 103 positions. On
or about March 29, 1982 RIF notices were issued to 109 employees
affected by the RIF. Sixty-eight of the employees were affected because
their positions were being abolished, approximately 16 were in units
represented by AFGE Local 2130. The remaining 41 employees were
affected because they were subject to displacement by other employees
with higher retention standings. The March 29, 1982 RIF notices had an
effective date of June 11, 1982 for separations and June 13, 1982 for
position changes. By letters dated June 11, 1982, the effective date
for separations was extended to September 4, 1982 and for position
changes to September 5, 1982. From the original 109 RIF notices issued
on March 29, 1982, 33 employees were separated from the Federal Service
on September 4, 1982. Three of these latter employees had been in units
represented by Local 2130.
Discussion and Conclusions of Law
The Complaint alleges that Respondent violated Sections 7116(a)(1)
and (5) of the Statute by the following conduct:
"Commencing on or about February 11, 1982, and continuing to date, at
the Activity, Respondent, by George D. Evans, has failed and refused to
negotiate with the Union concerning the establishment of competitive
areas to be utilized in reductions in force actions and has conducted
reductions in force without having negotiated with the Union as to the
competitive areas thereof."
In the instant case AFGE Local 2130 upon being notified in January
1982 of the intended RIF asked to bargain about the impact and
procedures for implementing the RIF and submitted 12 proposals,
including one stating that the competitive area for the RIF should be
the combined area represented by AFGE Local 2130. /8/ The Detroit
District submitted 11 counter proposals, including one involving the
competitive area. The parties reached agreement on all but two
proposals, one of which concerned the competitive area, with the Detroit
District contending that it could not negotiate concerning the
competitive area and it had to insist upon its proposal. The parties
met again and reached agreement on one of the two remaining open issues,
but they did not reach agreement as to the competitive area. The
Detroit District reiterated its position that the competitive area was
not negotiable because it had already been determined to be
district-wide and that such determination had been made by the Office of
the Corps of Engineers in Washington, D.C.
The record establishes that there was an existing practice that
during RIF's the competitive area was district wide. This competitive
area had been utilized during four prior RIF's in the Detroit District,
including at least one that involved units represented by AFGE Local
2130. Further this competitive area was set forth in Respondent's
Personnel Regulations. In such circumstances AFGE Local 2130 must be
presumed to have been aware that in RIF situations Respondent used a
district wide competitive area.
Respondent and the General Counsel of the FLRA, apparently agree that
if there was an established practice with respect to competitive area,
Respondent was not obliged to bargain about it. General Counsel of the
FLRA argues that there was no such practice. This position is rejected,
as discussed above, and it is concluded that there was an established
practice that in cases of RIF the competitive area was district wide.
Nevertheless the scope of the competition area is still negotiable.
Section 7106 of the Statute sets forth, inter alia, a series of
management rights including the right to determine the "number of
employees" needed and those who will be assigned to work. However, this
section also provides that nothing will preclude the agency from
negotiating concerning the procedures to observed in exercising its
authority and arrangements for employees adversely affected. Thus in
the case of a RIF, although an agency need not negotiate its
determination to have a RIF, it is required to negotiate concerning the
methods for implementing a RIF, including the competitive area and
bumping rights. Thus in the instant case Respondent, once it determined
to institute a RIF, was obliged to negotiate with AFGE Local 2130
concerning the competitive area. /9/
The FLRA has recognized that the competitive area in the case of RIFs
is a condition of employment and is negotiable, see e.g. National
Treasury Employees Union and Department of Health and Human Services,
Region IV, 11 FLRA 254 (1983); and American Federation of Government
Employees and General Services Administration, 11 FLRA 261 (1983) and
see also Department of Health and Human Services, Food and Drug
Administration, Region II, Case No. 2-CA-1162, OALJ-84-05 (1983). Thus,
in the instant case, when Respondent determined to institute the RIF in
question, AFGE Local 2130 was entitled to bargain concerning competitive
areas, so long as its proposal was not inconsistent with law, rule or
regulation, /10/ and so long as AFGE Local 2130 had not waived its
right.
The FLRA has held, " . . . agencies may establish competitive areas
through negotiation so long as such competitive areas are in conformance
with standards promulgated by OPM and are not otherwise inconsistent
with law, rule and regulation . . . ." American Federation of Government
Employees and General Services Administration, supra at 261. /11/
In 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) (hereinafter called the NASA case) the union proposal
provided that "members of the bargaining unit who are released from
their competitive levels will be permitted to bump other employees who
are in the same subgroup in other competitive levels." The FLRA stated
that while an employer is requested to negotiate with the union
concerning matters which are conditions of employment of employees in a
bargaining unit, the duty to bargain does not extend to matters
concerning employees outside the bargaining unit. Thus an employer is
not obliged to bargain concerning a proposal that would prescribe the
rights of employees outside the bargaining unit. The FLRA concluded
"the necessary effect of the proposal in these circumstances would be to
require the Agency to bargain over matters concerning positions and
employees outside the bargaining unit . . . such matters are not within
the duty to bargain." id at 216. In Service Employees' International
Union, AFL-CIO, Local 556 and Department of the Army, Office of the
Adjutant General, Hale Koa Hotel, Honolulu, Hawaii, 9 FLRA 687 (1982)
(hereinafter called the Hale Koa Hotel case), the union proposed the
establishment of a competitive area for RIF purposes which included
bargaining unit employees and employees in another unit of exclusive
representation. The FLRA concluded that the proposal was non-negotiable
because the proposal determined the condition of employment of non-unit
employees. Under the proposal unit employees would be given rights to
non-unit positions, and non-unit employees could be displaced from their
employment.
The General Counsel of the FLRA contends that the NASA case, supra,
and the Hale Koa Hotel case, supra, are distinguishable from the subject
case because they were attempts by the unions to directly affect the
conditions of employment of non-unit employees. It is urged that the
proposal in the instant case is restricted solely to employees
represented by AFGE Local 2130 and the only effect would be to exclude
non-unit employees from this competitive area. This latter effect is
presumably too indirect to bar negotiability.
General Counsel of the FLRA further relies upon National Treasury
Employees Union and Department of Health and Human Services, Region IV,
supra; and National Treasury Employees Union and Department of Health
and Human Services, Region II, 11 FLRA 266 (1983), in which the FLRA
found the Union's proposals concerning competitive area to be
negotiable. These cases deal almost exclusively with a defense that
there was a compelling need for a uniform agency rule or regulation. In
rejecting this defense and finding the proposals negotiable the FLRA
does not discuss or make any findings of fact whether the proposals
would have any effect upon either unrepresented employees or employees
in units not represented by NTEU.
Although the argument of the General Counsel of the FLRA that the
union's right to bargain about a competitive area may be somewhat
illusory is appealing because almost any such proposal will have some
effect upon employees not represented by AFGE Local 2130, I am
constrained to conclude that the NASA case, supra, and Hale Koa Hotel
case, supra, govern the subject case. Thus, the competitive area
proposed by AFGE Local 2130 would, in effect, prohibit non-unit
employees from bumping into jobs within the four-units represented by
AFGE Local 2130. The Union proposal would, therefore, in RIF situations
affect the rights of employees outside the units represented by the
Union. Because this proposal would determine rights of employees
outside the bargaining units, it is nonnegotiable and does not impose a
bargaining obligation upon Respondent. In so holding I agree with the
analysis of the Administrative Law Judge in Department of Health and
Human Services, Food and Drug Administration, Region II, supra.
Accordingly, I conclude that Respondent has not refused to bargain in
violation of Sections 7116(a)(1) and (5) of the Statute.
Having concluded that Respondent did not violate Sections 7116(a)(1)
and (5) of the Statute it is recommended the Authority adopt the
following order:
ORDER
It is hereby ordered that the Complaint herein be, and the same
hereby is, dismissed.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: February 14, 1984
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ 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, 215 n. 6 (1982).
/2/ Regarding the Judge's basis for concluding that the proposal is
outside the duty to bargain, see American Federation of Government
Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA
No. 98 (1984), n. 2 and accompanying text.
/3/ The transcript is corrected as follows:
(From the first day of hearing)
Page 46, line 6, from concluded to precluded
Page 48, line 15, from A.F.G. to A.F.G.E.
Page 52, line 4, from Petty to Grile
Page 52, line 7, from Petty to Grile
Page 52, line 19, from Petty to Grile
Page 53, line 1, from Petty to Grile
Page 53, line 5, from Petty to Grile
Page 53, line 14, from Petty to Grile
Page 54, line 12, from Petty to Grile
Page 54, line 14, from Answers to answer
Page 54, line 15, from client to complaint
Page 56, line 22, from was a meeting to was not a meeting
Page 62, line 11, from headquartered to headquarters
(From the second day of hearing)
Page 34, line 22, from I believe to I don't believe
Page 97, line 24, from X party to ex parte
/4/ The regulations speak in terms of FOA (Field Operating Activity),
the equivalent of a district.
/5/ The Union requested that the competitive area be the combined
area of the four units represented by AFGE Local 2130.
/6/ The Detroit District's counter proposal stated that the
competitive area shall be the entire Detroit District.
/7/ In finding that the Detroit District had taken the position that
the competitive area would be district-wide and that such determination
was non-negotiable I credit the testimony of Pelton and, in this
respect, I do not credit Respondent's witnesses. I find that Pelton's
version is more consistent with the surrounding facts and circumstances.
In this regard I note that the Respondent's regulations provided for a
District-wide competitive area, that such competitive area had been in
effect during past RIFs, that Respondent had advised other unions
involved that the competitive area would be district wide and that the
RIF was imminent. In these circumstances I find Pelton's version is
reasonable and credible. I do not credit the version, as described by
Respondent's witnesses, because I find it highly unlikely that, in the
aforegoing described circumstances, Respondent's representatives would
negotiate concerning the scope of the competitive area, were open to
suggestions and were willing to listen to and consider alternative
proposals concerning the competitive area.
/8/ A competitive area is defined in 5 CFR 351.402. The term refers
to the part of an agency within which an employee, who occupies an
abolished position, may compete with other employees to determine which
one shall be retained in the agency. The area may be described in
organizational and geographic terms. Typically, the competitive area
includes a part of an agency wherein employees are assigned under a
single administrative authority. Under 351.402(c) and (d) smaller and
larger areas than the standard may be established.
/9/ Since the competitive area is a condition of employment,
Respondent is required to negotiate concerning it, even if no RIF were
imminent. However in the absence of an impending RIF, since there would
be no imminent change, the negotiability determination concerning
competitive area would be resolved by the negotiability procedures of
the Statute.
/10/ National Treasury Employees Union and Department of Health and
Human Services, Region IV, supra.
/11/ This reference by the FLRA to "rule and regulation" necessarily
refers to some government wide rule and regulation and not an agency's
own rule and regulation. This must be so because the FLRA cited in
support of its holding, National Treasury Employees Union and Department
of Health and Human Services, Region IV, supra, in which it found the
union proposals concerning competitive area negotiable, even though they
violated the agency's own rule and regulation, because "the agency has
now shown its regulation is supported by a compelling need." id at 257.