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The decision of the Authority follows:
19 FLRA No. 24 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF ENERGY Agency Case No. O-NG-983 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 following three Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 Bargaining unit employees distributing union insurance brochures as described in Article 8 will do so on official time. Union Proposal 1 would require the Agency to grant official time to bargaining unit employees distributing brochures for a Union-sponsored health insurance plan. The Agency contends that a bargaining unit employee must be, or must become, a Union member to enroll in that health insurance plan. As such, the Agency argues that the distribution of this material, in effect, violates section 7131(b) of the Statute. The Authority agrees with this Agency argument. Section 7131(b) of the Statute /1/ requires that activities relating to the internal business of a labor organization be performed by an employee while that employee is in a non-duty status, i.e., not on duty time. Solicitation of membership is an activity which is related to the internal business of a labor organization. /2/ In this regard, the Union contends that the primary purpose of distributing the brochure is "an attempt by the Union to make all bargaining unit employees aware of the benefits available under the Union-sponsored health plan . . .. Any 'solicitation' of membership which occurs is secondary to the offer of federal health insurance coverage." (Union Reply Brief at 2). However, the Authority concludes that, whether incidental or otherwise, solicitation of union membership is clearly in violation of section 7131(b). Cf. American Federation of Government Employees, Local 1778, AFL-CIO and Department of the Air Force Headquarters, 438th Air Base Group (MAC), McGuire Air Force Base, 10 FLRA 346 (1982) (wherein the Authority determined that although the solicitation of membership was only incidental to the performance of activities for which official time had properly been granted, such solicitation was nevertheless in violation of section 7131(b)). As to the facts herein, the record indicates that neither bargaining unit employees nor other Federal employees are eligible to participate in the Union-sponsored health plan unless the employee is or becomes a member of the Union. Therefore, contrary to the Union's assertion, the proposal is inapposite to Union Proposal 6 in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1981). The Authority determined, in that case, that the distributing of union announcement cards aided in implementing the labor-management relationship and was not solely related to the institutional structure of the union. The distribution of the announcement cards was found to serve the function of advising or reminding members of the bargaining unit that the union was their exclusive representative. Therefore, the distribution of such cards did not constitute internal business of the union within the meaning of section 7131(b) and, therefore, the proposal was within the duty to bargain. Instead, in the present case, the material to be distributed concerns a benefit available only to members of the Union rather than all employees in the bargaining unit. Hence, in the circumstances of this case, since Union membership is necessary to participate in the Union-sponsored health plan described in the brochure, it is solicitation of membership. Therefore, Union Proposal 1 violates section 7131(b) and, thus, is outside the duty to bargain. Union Proposal 2 Article 22, Reduction in Force, Part II, Section 5 The filling of any bargaining unit vacancy within the competitive area for which bargaining unit employees in that area who will be affected by RIF are eligible will be suspended from the date of the initial RIF notice to affected employees until the effective date of the RIF. Union Proposal 2 would require that the filling of certain vacant bargaining unit positions be suspended from the date a reduction-in-force (RIF) notice is received by affected employees until the effective date of the RIF action. In this respect, Union Proposal 2 is to the same effect as Union Proposal 1 in Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 11 FLRA 505 (1983), petition for review filed sub nom. Association of Civilian Technicians, Montana Air Chapter v. FLRA, No. 83-1489 (D.C. Cir. May 5, 1983), which required a temporary hiring freeze until all RIF actions were completed, except for internal placement. That decision relied upon the Authority's determination in National Federation of Federal Employees (NFFE) Local 1332 and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia, 3 FLRA 611 (1981), that a proposed freeze on hiring from outside sources until personnel actions under the RIF were completed concerned a matter negotiable only at the election of the agency since it was directly and integrally related to the statutory right of management to determine numbers and types of employees under section 7106(b)(1) of the Statute. /3/ Therefore, for the reasons filly set forth in U.S. Army Materiel Development and Readiness Command, the proposal herein is negotiable only at the election of the Agency. See also American Federation of Government Employees, AFL-CIO, Local 2612 and Department of the Air Force, Griffiss Air Force Base, New York, 8 FLRA 429 (1982). Since the Agency has elected not to negotiate on this matter, Union Proposal 2 is not within the duty to bargain. As to the Union's argument, that, based on the reasoning in American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 152, 155 (1979), 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, 102 S.Ct. 1443 (1982), the proposal would only delay management's exercise of its rights under section 7106 and would not prevent the Agency from acting at all, the Authority finds that the Union's contention cannot be sustained. Union Proposal 2 would improperly establish a condition (the effective date of a RIF personnel action) upon the Agency's ability to determine the numbers and types of employees assigned to an organizational subdivision under section 7106(b)(1). Furthermore, the condition described in the proposal would itself involve the exercise of management's right under section 7106(a)(2)(A) to "layoff" employees. Cf. American Federation of Government Employees, Local 1760 and Department of Health and Human Services, Social Security Administration, Northeast Program Service Center, 9 FLRA 1025 (1982) (proposal 1 would improperly establish a condition upon the agency's ability to terminate or demote under section 7106(a)(2)(A) of the Statute). Therefore, Union Proposal 2 would directly interfere with these management rights, not only individually, but also by conditioning the exercise of one right upon the prior exercise of the other. American Federation of Government Employees, AFL-CIO, Local 3004 and Department of the Air Force, Otis Air Force Base, Massachusetts, 9 FLRA 723 (1982). Hence, for all the reasons stated above, the proposal here in dispute is not within the duty to bargain. /4/ Union Proposal 3 Article 22, Reduction in Force, Part II Section 1 A reduction in force (RIF) is the release of an employee from his competitive level by separation, demotion, furlough for more than thirty (30) days, or reassignment requiring displacement because of a lack of work or funds, reorganization, reclassification due to change in duties, or the need to make a place for an employee exercising reemployment or restoration rights. Section 6 A. The Employer will establish competitive levels in accordance with applicable laws and regulations. Competitive levels will consist of all positions in a competitive area in the same grade or occupational level which are sufficiently alike in qualification requirements, duties, responsibilities, pay schedules, and working conditions, so that the incumbent of any one position can be moved interchangeably to any other position without changing the terms of his appointment or unduly interrupting the work program. B. Undue interruption is defined as a degree of interruption that would prevent the completion of required work within the allowable limits of time and quality. Depending upon the pressures of priorities, deadlines, and other demands, the ordinary work program probably would not be unduly interrupted if the optimum quality and quantity of work were not regained within 90 days after a reduction in force. Lower priority programs might tolerate even longer interruption. Section 9 A. Within each competitive level, employees in the competitive service shall be divided into tenure groups as follows: 1. Group I includes employees under career appointments who are not serving probation. 2. Group II includes employees serving probation, career-conditional employees, and career employees in obligated positions. 3. Group III includes indefinite employees, employees under temporary appointments pending establishment of registers, employees under term appointment, employees in status quo, and employees under any other nonstatus nontemporary appointments. B. Within each tenure group, employees shall be divided into three subgroups as follows: 1. Subgroup AD includes veterans preference eligibles with compensable service connected disabilities of 30 percent or more. 2. Subgroup A includes veterans preference, eligibles. 3. Subgroup B includes nonpreference eligibles. Section 10 A. When it appears that a reduction in force action may be necessary, the Employer shall prepare a retention register for each affected competitive level within the appropriate competitive area(s). The register shall contain the names of employees within the competitive level first by tenure group and then by subgroup. B. Within a subgroup, employees are listed in the order of their retention standing in relation to each other as reflected by their service computation date. C. The official performance appraisals of record will be reviewed to determine additional years of service for RIF purposes. The following scale will be used to determine additional years of creditable service: Outstanding 4 years . . . . D. The Employer will not release a competing employee from a competitive level while retaining in the level an employee who has: 1. A specifically limited temporary appointment or promotion; 2. A specifically limited term appointment or promotion; 3. Received a written decision of removal or reduction in grade based on unacceptable performance as defined at 5 U.S.C. 4302; 4. Lower retention standing, except in those exception situations where management actions are mandated or authorized under 5 CFR 351.601. G. The retention standing for all employees on detail will be based on the employees' permanent positions. Section 11 A. When it becomes necessary to release employees from a competitive level, non-competing employees as defined by OPM regulations shall be released first. After all employees who are not competing are eliminated, the employee shall select competing employees for release in the inverse order of their retention standing beginning with the lowest; i.e., all employees in Group III are selected for release before any in Group II, and all employees in Group II are release before any in Group I. Within each Group, all employees in subgroup B are released before any in subgroup A, and all employees in subgroup A are released before any in subgroup AD. B. Exceptions to the foregoing shall be made in the cases of employees restored to duty after military duty as follows: 1. veterans preference eligibles in Group I or II who are entitled to be retained in one year after restoration shall be retained over other employees in their subgroups until the end of the one year period. 2. nonpreference eligibles who are entitled to be retained for either six months or one year after restoration to duty shall be retained over other employees in their subgroups until expiration of the retention period. 3. when the deviations from the regular order of selection provided for in 1 or 2 above are made, the reasons for the deviations shall be recorded on the retention register for inspection by the Union and employees. D. Competing employees may be permitted to displace employees with lower standing in the same subgroup when equally reasonable assignments cannot be made by displacing employees in lower subgroups and the assignment will result in a higher representative rate than otherwise possible. Section 12 A. When the Employer selects an employee for release from his competitive level it shall: 1. assign him with his consent to a position for which he is qualified which will last at least three (3) months; or 2. furlough him; or 3. separate him. B. When a Group I or II employee has been selected for release from his competitive level, the Employer shall offer to assign him to a position for which he is qualified in another competitive level in his competitive area which requires no reduction, or the least possible reduction, in representative pay rate when a position in the other competitive level is held by an employee: 1. in a lower subgroup; 2. with lower retention standing in the same subgroup in a position from which or through which the Group I or II employee was promoted, or an essentially identical position. C. An employee is entitled to only one offer of assignment and the Employer shall select which of the two or more positions with the same representative rate it wishes to offer. An employee is entitled to no further offers when: 1. he accepts an offer; or 2. he rejects an offer; or 3. he fails to reply to an offer within a reasonable time. Section 13 B. The specific notice must contain the following information: 1. the action to be taken and the effective date; 2. salary retention information; 3. competitive area; 4. competitive level; 5. group subgroup; 6. service computation date; 7. location of retention registers and other records pertinent to the RIF; 8. reason for any permanent or temporary exception for more than 30 days in the release of any individual lower on the retention register than the addressee; 9. appeal rights; 10. reemployment rights; and 11. any other information required by law and regulations. As explained by the Union, Union Proposal 3 would require the Agency to incorporate government-wide regulations concerning reduction-in-force procedures into the collective bargaining agreement so that the regulations would be enforced as a matter of contract. The Agency contends that this proposal is outside the duty to bargain based on 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) (Union Proposal 1), affirmed sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). The Authority agrees with the Agency's contention. In this regard, the Authority determined in Homestead Air Force Base that a proposal involving the exercise of management's right to contract out under section 7106(a)(2)(B) was outside the duty to bargain. In response to the argument of the union therein that the proposal merely reiterated restrictions contained in OMB Circular A-76, the Authority stated that the incorporation of specific contractual terms concerning contracting out arguably paralleling provisions of an OMB Circular would require management to comply with those terms, regardless of whether OMB subsequently revised or eliminated the directives/circulars from which they were taken. Thus, the proposal there would have imposed an independent contractual requirement upon management's discretion with respect to contracting out and hence interfered with management's rights under the Statute in that regard. The Union argues that 5 U.S.C. 7116(a)(7), which makes it an unfair labor practice for an agency "to enforce any rule or regulation . . . which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed", acknowledges that the "parties could negotiate based on existing regulations and thereby estop an agency from acting in variance from the regulations even after differing regulations had been promulgated." (Union Reply Brief at 7). However, the Union's argument does not alter the fact that negotiation over subjects which concern the exercise of management's rights is precluded under the Statute regardless of whether such subjects are addressed in regulation. Hence, for the reasons stated in Homestead Air Force Base, Union Proposal 3 is outside the duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review as to Union Proposals 1, 2, and 3 be, and it hereby is, dismissed. Issued, Washington, D.C., July 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY Case No. 19 FLRA No. 24 (O-NG-983) SUPPLEMENTAL DECISION AND ORDER On July 22, 1985, the Authority issued its decision in the above-entitled case finding, among other things, that Union Proposal 2 was not within the duty to bargain based on the Authority's determination as to Proposal 1 in Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 11 FLRA 505 (1983). During the pendency of the Authority's consideration of this case, the U.S. Court of Appeals for the District of Columbia Circuit reversed and remanded Proposal 1 in Montana Air National Guard to the Authority. Association of Civilian Technicians, Montana Air Chapter v. FLRA, 756 F.2d 172 (D.C. Cir. 1985). Hence, the Authority is reopening this case, 19 FLRA No. 24, to reconsider its decision as to Proposal 2. Accordingly, IT IS ORDERED that the Authority's decision as to Proposal 2 be, and it hereby is, vacated. For the Authority. Issued, Washington, D.C., August 6, 1985 Harold D. Kessler Managing Director for Case Processing --------------- FOOTNOTES$ --------------- /1/ Section 7131(b) provides as follows: Sec. 7131. Official time . . . . (b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a non-duty status. /2/ See American Federation of Government Employees, AFL-CIO, Local 2823 and Veterans Administration Regional Office, Cleveland, Ohio, 2 FLRA 4 (1979). /3/ Section 7106(b) provides, in relevant part, as follows: Sec. 7106. Management rights (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty(.) /4/ In view of the decision herein, the Authority finds it unnecessary to consider the Agency's additional contentions as to the nonnegotiability of the proposal.