[ v21 p24 ]
21:0024(4)NG
The decision of the Authority follows:
21 FLRA No. 4
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R14-87
Union
and
KANSAS ARMY NATIONAL GUARD
Agency
Case No. 0-NG-968
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a) (2) (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of two provisions of a negotiated agreement disapproved by
the Agency head under section 7114(c) of the Statute. The first
provision, while important, can be disposed of by application of
previous Authority precedent whereas the second provision raises
significant issues for which the Authority adopts a new analytical
framework.
II. Background
The Authority's analysis of the second provision at issue in this
case (cited in its entirety below), presents an opportunity for
fundamental reevaluation of previous Authority precedent. This
reexamination is necessitated by the holding of the U.S. Circuit Court
of Appeal; for the District of Columbia in American Federation of
Government Employees, AFL-CIO, Local 2782 v. Federal Labor Relations
Authority, 702 F.2d 1183 (D.C. Cir. 1983), reversing and remanding
American Federation of Government Employees, AFL-CIO, Local 2782 and
Department of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA
91 (1981).
In deciding that case the Court rejected the so-called "direct
interference" test previously applied by the Authority in evaluating the
negotiability of matters described as "appropriate arrangements" under
section 7106 (b) (3) of the statute. While that Court had previously
sustained the application of that test as to "procedures" under section
7106(b) (2) /1/ it had not had an opportunity to address its
applicability to appropriate arrangements." In rejecting "direct
interference" as an analytical device in section 7106(b) (3) cases, the
Court enunciated a standard which requires an analysis of whether
"excessive interference" with a right reserved to management would
result from implementation of the proposal. The Court stated that:
Undoubtedly, some arrangements may be inappropriate because they
impinge on management prerogatives to an excessive degree ...
Beyond that, we decline to speculate as to what the word
"appropriate" may lawfully be interpreted to exclude. Its precise
content is for the Authority to determine in the first instance,
based on its knowledgeable estimation of the competing practical
needs of federal managers and union representatives.
702 F.2d at 1188
Since the date of that decision the Authority has applied the D.C.
Circuit rule and rationale only to cases remanded to it by that Court.
/2/ We have not as a general matter of law, embraced that reasoning in
deciding pending negotiability cases. Today we adopt that test as the
Authority's standard. additionally, we articulate factors to be
considered in arriving at a determination of whether or not a given
proposal is appropriate as an arrangement and therefore negotiable, or
inappropriate as an arrangement because it excessively interferes with
management prerogatives, and is therefore nonnegotiable.
III. Provision 1
Section 3. When a change of work schedule or hours of work
resulting from other than mission requirements is necessary, the
employee agrees to notify the union and the employees at least 7
days in advance. Such notices will be given by publishing
announcements in sufficient time so as to give adequate notice to
all employees. With regard to employees who are absent from duty
on leave, notice will be mailed to them by their supervisor at
their listed emergency notification address. If an employee is
not given notice of any such change and reports to duty based on
the superseded schedule, he will be retained in a "work status"
and assigned appropriate work for that day.
A. Positions of the Parties
The Agency asserts that Provision 1 is nonnegotiable because it
conflicts with 5 CFR 610.121, a Government-wide regulation. The Union
argues that the provision is merely a renewal of a previously approved
provision and that it does not conflict with the Government wide
regulation.
B. Analysis
Provision 1 would require the Agency to provide the Union and unit
employees seven (7), days advance notice whenever a change in employee
work schedules is necessary. In this respect, the provision at issue
has substantially the same effect as Provision 1 in American Federation
of Government Employees, AFL-CIO, Local 2484 and U.S. Army Garrison,
Fort Detrick, Maryland, 17 FLRA No. 106 (1985), appeal docketed sub nom.
American Federation of Government Employees, AFL-CIO, Local 2484 v.
Federal Labor Relations Authority, Two. 85-1405 (D.C. Cir. July 3,
1985). The provision at issue in that case required the agency to
provide two (2) weeks notice to employees of any change in work
schedules. The Authority determined that the provision was outside the
duty to bargain under section 7117 (a) (1) of the Statute because it was
inconsistent with an applicable Government-wide regulation, 5 CFR
610.121 (b) (2). In particular, the Authority found that the proposal,
by requiring at least two weeks notice to employees of a change in work
schedules, would prevent the agency from complying with the mandate of
the Government-wide regulation that management change such schedules as
soon as it becomes aware of the need to do so. Just as in Fort Detrick,
the National Guard civilian technicians covered by this provision, are
covered by 5 CFR 610.121. (See 5 CFR 610.101, 550,101.)
C. Conclusion
For the reasons set forth in the Fort Detrick decision, Provision 1
is outside the duty to bargain under section 7117(a) (1) of the Statute
because it is inconsistent with an applicable Government-wide
regulation. In this connection, the Union's argument that the provision
is a renewal of previous contract language is not relevant.
IV. Provision 2
Section 7. a. When the specific position, in an activity, from
which an employee has been demoted through reduction in force
(RIF) becomes vacant and is being filled, the demoted employee
will be considered for repromotion noncompetitively to the
position subject to paragraph b., below.
b. A basis for nonpromotion will be an unsatisfactory
performance rating which is documented in the employee's OPF, or
that his work either before or after demotion by reduction in
force was not at an acceptable level of competence.
c. If more than one employee meets the criteria contained in a
and b above the employee who possessed the highest retention
standing at the time he/she was changed to a lower grade will be
promoted. d. All employees previously demoted without personal
cause, misconduct or in efficiency, will receive special
consideration for repromotion. (Only the underlined portion of
the provision is indispute.)
By its terms and as interpreted by both the Union and the Agency,
which interpretation is adopted by the Authority, Provision 2 would
provide that when management decides to fill a vacant position from
which employees have been demoted in a reduction-in-force (RIF) and
there are two or more such demoted employees who are candidates for the
position, management would select the candidate who has the highest
retention standing. National Guard RIF regulations provide for
employees to be released from their tenure group based upon their
relative retention standing. Thus, the employee who has the highest
relative retention standing among competing employees would be released,
if he or she is reached for release, after employees with lower
standing. The effect of the provision, therefore, would be to require
the repromotion of the employee with the highest relative retention
standing before employees with lower standing. /3/
The parties apparently agree that the provision would not require the
selection of an employee who is not qualified or does not possess the
compatible military grade for the position. Since the position for
which the employee with the highest retention standing would be selected
is the same position from which he or she had been demoted through no
fault of the employee, that person would obviously be qualified and
possess the requisite military grade for the vacancy. This
distinguishes Provision 2 from Union Proposals 3 and 6 in Association of
Civilian Technicians, Montana Air Chapter and Department of the Air
Force, Montana Air National Guard, Headquarters 120th Fighter
Interceptor Group (ADTAC), 20 FLRA No. 85 (1985). In that case, the
Authority held that Union Proposals 3 and 6 were contrary to law, 32
U.S.C. 709(b), because they required management to place civilian
technicians in positions without regard to compatibility of military
grade.
A. Positions of the Parties,
The Agency contends that the provision, by mandating the selection of
the repromotion eligible employee with the highest retention standing,
violates its right under section 7106(a) (2) (C) to fill positions by
making selections from any appropriate source. The Union argues to the
contrary, citing the decision of the U.S. Court of Appeals for the
District of Columbia Circuit in AFGE, Local 2782, that the provision
constitutes an "appropriate arrangement" within the meaning of section
7106(b) (3) of the Statute, for employees adversely affected by the
exercise of management's rights. /4/ The Agency's response to that
argument is that only proposal; which "indirectly affect" management
rights are negotiable as appropriate arrangements under section 7106(b)
(3) of the Statute.
B. Analysis
1. Adoption of the Excessive Interference Test
The issue before the Authority in determining the negotiability of
the second provision is whether the locally agreed-upon arrangement for
employees demoted without fault interferes with the exercise of
management's rights under section 7106(a) so as to be rendered
inappropriate for negotiation under section 7106(b) (3) of the Statute.
As stated at the outset of this decision, the Authority finds the
considerations addressed by the District of Columbia Circuit in AFGE,
Local 2782 to be applicable here and the Authority will apply the
excessive interference test enunciated therein both in this decision and
in future decisions analyzing appropriate arrangement issues. /5/ By so
doing, we reject the Agency' s argument that only proposals which
indirectly affect management rights are negotiable.
In its decision in that case the Court reasoned:
(t)hat an arrangement proposed under paragraph (b) (3) of 7186 is
not if so factor invalidated by conflicting with paragraph (a) (2)
(C) (a "management right") is evident from the prologue of
subsection (b), which states that" (n)othing in this section shall
preclude any agency and any labor organization from negotiating"
over the specified items. The prologue of subsection (a) makes
the same point, declaring that all management prerogatives it
contains (including those in paragraph (a) (2) (C)) are "(s)ubject
to subsection (b) of this section." ... The conclusion is
inavoidable that what was intended was an exception to the
otherwise governing management prerogative requirements of
subsection (a) ... The portions of legislative history most
precisely directed to the point at issue here support the
interpretation we live adopted ... Undoubtedly, some arrangements
may be inappropriate because they impinge upon management
prerogatives to an excessive degree. .. (T)he Authority is free
to determine whether the union' s proposal, albeit not invalid
simply because it contravenes ... management rights, is
nonetheless inappropriate.
782 F.2d 1155-1188. (Emphasis in original.)
In this and future cases where the Authority addresses a management
allegation that a union proposal of appropriate arrangements is
nonnegotiable because it conflicts with management rights described in
section 7106(a) or (b) (1), the Authority will consider whether such an
arrangement is appropriate for negotiation within the meaning of section
7106(a) (3) or, whether it is inappropriate because it excessively
interferes with the exercise of management's rights.
In making that determination, the Authority will first examine the
record in each case to ascertain as a threshold question whether a
proposal is in fact intended to be an arrangement for employees
adversely affected by management's exercise of its rights. In order to
address this threshold question, the union should identify the
management right or rights claimed to produce the alleged adverse
effects, the effects or foreseeable effects on employees which flow from
the exercise of those rights, and how, those effects are adverse. In
other words, a union must articulate how employees will be detrimentally
affected by management's actions and how the matter proposed for
bargaining is intended to address or compensate for the actual or
anticipated adverse effects of the exercise of the management right or
rights.
Once the Authority has concluded that a proposal is in fact intended
as an arrangement, the Authority will then determine whether the
arrangement is appropriate or whether it is inappropriate because it
excessively interferes. This will be accomplished, as suggested by the
D.C. Circuit, by weighing the competing practical needs of employees and
managers. In balancing these needs, the Authority will consider such
factors as:
(1) What is the nature and extent of the impact experienced by the
adversely affected employees, that is, what conditions of
employment are affected and to what degree? (2) To what extent
are the circumstances giving rise to the adverse affects within an
employee's control?
For example, compare AFGE, Local 2782 and Bureau of the Census,
Decision and Order on Remand, 14 FLRA 801 (1984), (proposal
applies to employees demoted through no fault of their own) with
National Labor Relations Board Union and National Labor Relations
Board, Office of the General Counsel, 18 FLRA No. 42 (1985)
(proposal concerned employees management proposed to demote or
terminate due to demonstrated inability or unwillingness to
perform acceptably). (3) What is the nature and extent of the
impact on management's ability to deliberate and act pursuant to
its statutory rights, that is, what management right is affected;
is more than one right affected; what is the precise limitation
imposed by the proposed arrangement on management's exercise of
its reserved discretion or to what extent is managerial judgment
preserved?
See, for example, Association of Civilian Technicians, Montana
Air Chapter and Department of the Air Force, Montana Air National
Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 20
FLRA No. 85 (1985) (Proposal 1) (proposal which would have
precluded management, regardless of circumstances, from obtaining
additional personnel with skills unavailable in the unit held to
excessively interfere with management rights). (4) Is the
negative impact on management's rights disproportionate to the
benefits to be derived from the proposed arrangement?
See, for example, Montana Air National Guard, supra, (Proposal
1) (harm to agency's mission balanced against uncertain benefits
of the proposal to employees). (5) What is the effect of the
proposal on effective and efficient government operations, that
is, what are the benefits or burdens involved?
These considerations are not intended to constitute an all-inclusive
list. As frequently noted in the opinions of various judicial and
quasi-judicial entities, an adjudicative body must consider the totality
of facts and circumstances in each case before it. Additional
considerations will be applied where relevant and appropriate. Inasmuch
as a ritualistic or mechanistic approach is neither suggested, nor
contemplated, the Authority will expect the parties to cases of this
nature filed in the future to address any and all relevant
considerations as specifically as possible.
2. The Test As Applied to The Provision at Issue
The provision relates solely to employees who have been demoted
through reduction-in-force. Such actions have extremely significant
negative impact on affected employees. Demotion, even though no fault
of one's own, causes eventual loss of grade, pay, and attendant
benefits. Demotion through RIF frequently results in the employee being
placed in a position which requires skills, knowledges, and abilities
less than those required in his or her previous position with
concomitant lack of job satisfaction. Next to removal from the Federal
service, it is difficult to imagine any action with more severe impact
than a demotion. Such actions with respect to Federal employees
generally are considered of a magnitude sufficient to trigger the
limited subject matter jurisdiction of the Merit Systems protection
Board. See 5 CFR 351.901.
By its very definition a reduction-in-force cannot legally be based
on matters personal to the employee and hence within his control. See,
generally, Technician Personnel Manual (TPM) 351. Compare as to Federal
employees generally, 5 CFR 351.2a1(a) (2); See especially, Losure v.
Interstate Commerce Commission, 2 MSPB 361 (1981).
The management right affected by the provision (to fill positions by
making selections from any appropriate source) is an important one.
However, it must be remembered that the qualifications of the employee
to be placed in the position under the provision are unquestioned.
Indeed, the employee must have previously performed the duties of the
position acceptably in order for the provision to apply. No other
management right is affected by the provision, and it is significant
that the provision in no way attempts to intrude on management's
underlying decision concerning whether or not to fill a vacancy. Nor
can it be construed to require management to take any affirmative act
concerning the organization, management, or assignment of its workforce
in order to carry out its mission and determine how work shall be
performed.
Reductions-in-force for National Guard technicians under the National
Guard regulations, like reductions-in-force for Federal employees
generally, are not premised solely on seniority as that concept has
emerged in private sector labor relations. To the contrary,
reductions-in-force of National Guard technicians are governed by an
intricate regulatory scheme which recognizes and quantifies the
performance of employee; in both their civilian and military capacities
as well as their length of service. /6/ Thus, in requiring that "the
employee who possessed the highest retention standing ... be promoted,"
the provision on its face will further, rather than impede, the purposes
of effective and efficient government operation. Accordingly, to
require selection of the employee with the highest retention standing is
to do nothing more than to require selection of the person who but for
the depth of the RIF would have been, and would still be, encumbering
the position. any "burden" on management in these circumstances is
insubstantial in comparison to the detriment originally suffered, and
benefit later obtained, by the affected employee(s).
C. Conclusion
The Authority finds, therefore, that Provision 2 would not
excessively interfere with management's rights under section 7106(a) (2)
(C) and that the provision constitutes and appropriate arrangement for
employees adversely affected by the exercise of management's rights
within the meaning of section 7106(b) (3) of the Statute. See Decision
and Order on Remand in AFGE, Local 2782 and Bureau of the Census, 14
FLRA Bal (1984), affirmed in Decision and Order on Motion for
Reconsideration (July 11, 1985).
V. Order
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
Provision 1 be, and it hereby is, dismissed. IT IS FURTHER ORDERED that
the Agency shall rescind its disapproval of Provision 2, which was
bargained on and agreed to by the parties at the local level. /7/
Issued, Washington, D.C., February 7, 1986
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Department of Defense v. Federal Labor Relations Authority, 659
F.2d 1140, 1159 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA,
455 U.S. 945, 102 S. Ct. 1443 (1982).
/2/ Association of Civilian Technicians, Montana Air Chapter and
Department of the Air Force, Montana Air National Guard, Headquarters
120th Fighter Interceptor Group (ADTAC), 20 FLRA No. 85 (1985);
National Labor Relations Board Union and National Labor Relations Board,
Office of the General Counsel, 18 FLRA Milo. 42 (1985); and American
Federation of Government Employees, AFL-CIO, Local 2782 and Department
of Commerce, Bureau of the Census, Washington, D.C., Decision and Order
on Remand, 11 FLRA Bill (1984).
/3/ For a detailed analysis of retention standing for National Guard
employees, see Association of Civilian Technicians, Pennsylvania State
Council and the Adjutant General, Department of Military Affairs,
Commonwealth of Pennsylvania, 3 FLRA 50 (1980); American Federation of
Government Employees, AFL-CIO, Local 2953 and National Guard Bureau,
Office of the Adjutant General, Nebraska, 7 FLRA 87 (1981), affirmed sub
nom. American Federation of Government Employees, AFL-CIO, Local 2953
v. Federal Labor Relation; Authority, 73d F.2d 1534 (D.C. Cir. 1984).
/4/ In its Decision and Order on Remand in AFGE, Local 2782 and
Bureau of the Census, 14 FLRA 801 (19841, the Authority held that, even
though the proposal at issue constituted an appropriate arrangement
under section 7106(b) (3), it nevertheless was outside the duty to
bargain because it was inconsistent with certain provisions of the
Federal Personnel Manual which were applicable Government-wide
regulations. The Authority reaffirmed that conclusion in its Decision
and Order on Motion for Reconsideration (July 11, 1985). However, those
Provisions of the Federal Personnel Manual are not applicable to
National Guard civilian technicians and, thus, are not at issue in the
instant case.
/5/ In adopting the D.C. Circuit's rationale, the Authority notes the
analysis applied in United States Air Force, Headquarters, Warner Robins
Air Force Logistics Command, Robins Air Force Base, Georgia v. Federal
Labor Relations Authority, 727 F.2d 1582 (11th Cir. 1984), reversing
American Federation of Government Employees, AFL-CIO, Local 987 and
Headquarters, Warner Robins Air Force Logistics Command, Robins Air
Force Base, Georgia, 8 FLRA 667 (1982), wherein the 11th Circuit cited
with approval the District of Columbia Circuit test enunciated in AFGE,
Local 2782, but held that the proposal at issue in that case did not
constitute an appropriate arrangement under section 7106(b) (3) because
it "substantively infringed" on the exercise of management's rights.
/6/ National Guard Bureau regulation, Technician Personnel Manual
(TPM) 351. See also Association of Civilian Technicians, Pennsylvania
State Council and Pennsylvania Army and Air National Guard, 14 FLRA 3B
(1984) (Proposal 21, and the cases cited in note 3, supra.
/7/ In deciding that Provision 2 is within the duty to bargain, the
Authority makes no judgment as to the merits of the provision.