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The decision of the Authority follows:
21 FLRA NO. 59
NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES Agency Case No. 0-NG-1020
I. Statement of the Case
This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of the following Union proposal:
Any employee appraised as outstanding in his/her current appraisal will receive four (4) years creditable service for RIF purposes. Employees with an excellent rating will receive an additional three (3) years of service for RIF purposes.
II. Positions of the Parties
The Agency contends that the proposal conflicts with an internal regulation which provides that employees having performance ratings below outstanding are not entitled to additional service credit in a reduction-in-force. It claims that a compelling need exists for this regulation under the illustrative standard set forth at section 2424.11(b) of the Authority's Rules. It argues that the proposal is, therefore, outside the duty to bargain under section 7117(a)(2) of the Statute. The Agency also argues that the proposal is outside the duty to bargain because it would determine the conditions of employment of nonunit employees. [ v21 p428 ]
The Union contends that the Agency has not demonstrated a compelling need for its regulation, and that the proposal merely involves the right of the exclusive representative to negotiate conditions of employment for employees in the unit.
III. Analysis and Conclusions
A. OPM Regulations
The Authority finds that the proposal is nonnegotiable for a reason other than those raised by the Agency. The Office of Personnel Management (OPM) has issued new regulations concerning reductions-in-force (the RIF regulations) at 5 CFR Part 351. These regulations became effective February 3, 1986 and are published at 51 Fed. Reg. 318-326 (1986). The Authority has found that the OPM regulations concerning reductions-in-force are Government-wide rules or regulations within the meaning of section 7117(a)(1) of the Statute. American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, 18 FLRA No. 18 (1985). Although that case applied the previous OPM regulations, the revised RIF regulations similarly apply generally to civilian employees of the Federal government and are likewise Government-wide rules or regulations.
Section 351.504(d) of the RIF regulations provides that employees shall receive additional service credit for performance in the event of a RIF. That section states that employees are to be credited with twenty additional years of service for a performance rating of outstanding; sixteen additional years for a rating of exceeds fully successful; and twelve additional years for a rating of fully successful. The Union's proposal provides that employees shall receive four years of additional service credit for a rating of outstanding and three years for a rating of excellent. The proposal is inconsistent with section 351.504(d) and is, therefore, outside the duty to bargain under section 7117(a)(1) of the Statute.
B. Compelling Need
The Union's proposal conflicts with the Agency's regulation because the proposal would give employees with performance ratings below outstanding additional service credit in the event of a RIF. However, an agency regulation does not bar negotiation on a conflicting union proposal unless the agency demonstrates that its regulation is supported by a compelling need. American Federation of Government Employees, AFL - CIO, Local 1928 and Department of [ v21 p429 ] the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 450, 454 (1980).
The Agency contends that a compelling need exists for its regulation because "(e)quity and the maintenance of merit principles require that Department employees be treated the same in determining retention and assignment rights in reduction-in-force." Agency Statement of Position at 3. It argues that employees with ratings below outstanding would receive additional service credit under the Union proposal that employees with similar ratings did not receive in earlier RIFs. However, section 351.504(d) of the revised RIF regulations also requires the Agency to provide additional service credit to employees in addition to those with outstanding ratings. Consequently, the Authority finds that the Agency has not shown a compelling need for its regulation.
C. Effect on Nonunit Employees
The Agency contends that the Union's proposal would require it to treat nonunit employees covered by its regulation differently in a RIF than unit employees covered by the proposal. It argues that this disparate treatment would prejudice the nonunit employees. However, as stated above, the revised RIF regulations would require the Agency to amend its current regulation to provide additional service credit to employees having a rating of fully successful and above. Consequently, the Authority cannot conclude on the basis of the Agency's current regulation that the Union's proposal would require it to treat unit and nonunit employees differently.
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. April 22, 1986.
Jerry L. Calhoun, Chairman Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY
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