21:0228(31)NG - NFFE, Local 29 and Army, Kansas City District, Corps of Engineers -- 1986 FLRAdec NG
[ v21 p228 ]
21:0228(31)NG
The decision of the Authority follows:
21 FLRA No. 31
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29
Union
and
DEPARTMENT OF THE ARMY,
KANSAS CITY DISTRICT,
CORPS OF ENGINEERS
Agency
Case No. 0-NG-501
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
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 raises issues
concerning the negotiability of the following Union proposal.
Union Proposal
Utilize the reduction-in-force procedures for those employees who
express a desire not to transfer with the function, in accordance
with FPM 351.3 paragraph 3-5b.
The Union's proposal arose in the context of a decision by the Agency
to achieve a reduction in its work force by transferring its Accounting,
Examination and Disbursing (F&A) function to the Omaha District of the
Corps of Engineers. The consolidation would require the abolishment of
29 full-time positions in the Kansas City District and establishment of
15 new full-time positions in the Omaha District.
II. Positions of the Parties
By its express terms and as explained by the parties, the proposal
would require the Agency (Kansas City District, Corps of Engineers) to
use reduction-in-force (RIF) procedures where employees choose not to
transfer with their function. The proposal would effectively require
that where an employee elects not to transfer to the Omaha District,
he/she would be subject to RIF procedures within the Kansas City
District. The employee would not be terminated at that location by
adverse action procedures. Nor would the employee be subjected to RIF
procedures in the Omaha District after the transfer of function has been
effected, should a RIF then be necessary.
The Agency asserts that the proposal is nonnegotiable because it is
inconsistent with its rights under section 7106(a)(2)(A) and (C) of the
Statute to layoff, retain, reduce, in-grade, assign and select
employees. It also contends that the proposal conflicts with
Government-wide rules and regulations and would determine conditions of
employment for nonbargaining unit employees.
The Union maintains that the proposal constitutes an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute for
employees adversely affected by management's action in instituting the
transfer of function as well as a procedure within the meaning of
section 7106(b)(2) and, as such, is within the duty to bargain. It
disputes the Agency's assertion that the proposal would determine
conditions of employment for nonunit employees, contending that the
proposal would be limited to unit employees. The Union also disputes
the Agency's assertion that a conflict exists between the proposal and
applicable Government-wide regulations.
III. Analysis
A. Government-wide Rule or Regulation
The Government-wide rules and regulations referenced by the parties
are issued by the Office of Personnel Management (OPM) and are set forth
at 5 CFR Part 351 and Chapter 351 of the Federal Personnel Manual. The
parties do not dispute that these authorities constitute Government-wide
rules and regulations within the meaning of the Statute. Under
authority vested in OPM pursuant to 5 U.S.C. 3502, the provisions of 5
CFR Part 351 prescribe a system for reduction-in-force and transfer of
function. Those provisions are generally applicable, with minor
exceptions not relevant to this dispute, to employees in the executive
branch of the Federal government. 5 CFR 351.202. Agencies are
responsible for following and applying the regulations. 5 CFR 351.204.
Chapter 351 of the Federal Personnel Manual explains the system
prescribed in the CFR, defining the components of the system and
describing their use. Federal Personnel Manual, Chapter 351, Subchap.
1-1 and 5 CFR 351.205. The Authority agrees that the provisions of 5
CFR Part 351 and the implementing provisions of the Federal Personnel
Manual are Government-wide rules and regulations. See American
Federation of Government Employees, Local 1980, AFL-CIO and U.S.
Department of Agriculture, Farmers Home Administration, 17 FLRA No. 112
(1985).
Those regulations address the use of RIF procedures in the context of
a transfer of function. It is undisputed that the movement of the
Kansas City District's F&A function to the Omaha District is, in fact, a
transfer of function within the meaning of the regulations. The OPM
regulations define a transfer of function as:
(T)he transfer of the performance of a continuing function from
one competitive area and its addition to one or more other
competitive areas, except when the function involved is virtually
identical to functions already being performed in the other
competitive area(s) affected; or the movement of the competitive
area in which the function is performed to another commuting area.
(5 CFR 351.203 (1986).)
These regulations generally require that before a RIF is conducted in
connection with a transfer of function from one competitive area to
another, each competing employee in a position identified with the
transferring function shall be transferred to the continuing competitive
area. 5 CFR 351.302(a). Employees who refuse to transfer with their
position or function may be subject to separation through adverse action
procedures. Federal Personnel Manual, Chapter 351, Subchap. 5-3.c.(2).
Under certain circumstances, however, the OPM regulations allow for use
of RIF procedures for Purposes of assigning or separating, as
appropriate, employees who decline to transfer with their function. The
regulations allow use of RIF procedures in the losing competitive area
when the following two conditions are satisfied:
(1) There is a RIF in process or resulting from the transfer of
function in either the gaining or losing competitive area; and
(2) There is agreement between the two areas that the movement
of employees is not essential to the continuity and efficiency of
the function.
Federal Personnel Manual, Chapter 351, Subchap. 5-3.c.(3); see also
Smith v. Department of Commerce, 19 MSPR 589 (1984).
Based on the record it appears that the Union Proposal may be
consistent with the first factor listed above; that is, it appears that
the transfer of function may necessitate a RIF in the gaining
competitive area. However, it does not appear that the Union proposal
would allow for appropriate consideration of the second factor. The
proposal would effectively require that RIF procedures be instituted in
the losing competitive area based solely on an employee's desire not to
transfer with the function and without any consideration being given to
preserving the continuity and efficiency of the function. Inasmuch as
the proposal provides for utilization of RIF procedures in the losing
competitive area without regard to whether the circumstances present
comport with the two conditions prescribed by OPM, it is inconsistent
with a Government-wide rule or regulation. See American Federation of
Government Employees, AFL-CIO, Local 225 and Department of the Army,
USARRADCOM, Dover, New Jersey, 15 FLRA 607 (1984), where the Authority
similarly found a proposal nonnegotiable because it would require an
agency to act without giving due consideration to specified factors
which a Government-wide rule or regulation required be taken into
account in making the type of decision addressed by the proposal.
IV. Conclusion
Based on the foregoing analysis, the Authority finds that the Union
Proposal is inconsistent with a Government-wide rule or regulation.
Therefore, pursuant to section 7117 of the Statute it is not within the
duty to bargain. In view of this holding section 7106(b)(2) and (3) are
inapplicable. /1/ Further, it is unnecessary to consider the effect of
the proposal on nonbargaining unit employees.
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 be, and
it hereby is, dismissed.
Issued, Washington, D.C., March 31, 1986
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ See American Federation of Government Employees, Local 1546 and
Department of the Army, Sharpe Army Depot, Lathrop, California, 19 FLRA
1016, 1019 (1985), appeal docketed sub nom. American Federation of
Government Employees, AFL-CIO, Local 1546 v. FLRA, No. 85-1689 (D.C.
Cir. Oct. 21, 1985) wherein the Authority held that section 7106(b)(2)
and (3) are not applicable where a determination is made that a proposal
conflicts with a Government-wide rule or regulation.