[ v18 p213 ]
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.