21:0024(4)NG - NAGE, Local R14-87 and Kansas Army NG -- 1986 FLRAdec NG

 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.