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22:0553(58)NG - NTEU, NTEU Chapter 202 and Treasury, Bureau of Government Financial Operations -- 1986 FLRAdec NG

[ v22 p553 ]
The decision of the Authority follows:

 22 FLRA No. 58
                                            Case No. 0-NG-680
                         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).  It concerns the
 negotiability of two Union proposals which concern treatment of union
 representatives in a reduction-in-force.
                          II.  Procedural Issues
    The Agency has requested that the Union's petition be dismissed
 because of what it contends are "fatal procedural defects." In support
 of its motion it makes two arguments:
          (1) Prior to filing the petition, the Union neither requested
       nor received from the Agency a written statement that its
       proposals were nonnegotiable.
          (2) The Union did not support its petition with an adequate
       explanation of the meaning and intent of the proposals.
    The Union Disputes these contentions.  As to the first, it received a
 written statement from the Agency negotiations spokesperson that its
 proposals were "illegal and therefore nonnegotiable." A copy of this
 statement accompanied the Union's petition.  In view of this written
 statement of nonnegotiability, the Authority finds that the Union's
 petition is properly filed.  International Brotherhood of Electrical
 Workers, AFL-CIO, Local 121 and Department of the Treasury, Bureau of
 Engraving and Printing, Washington, D.C., 10 FLRA 198 (1982).  As to the
 Agency's second contention, the Union notes that it did file a statement
 as to the meaning of its proposals as required by the Authority's Rules.
  We find that the Agency was not prevented from developing a position on
 the negotiability of the proposals.  Moreover, we are able to reach a
 decision based on the record in this case.  The Agency's request that
 the petition be dismissed based on procedural matters is denied.
                          III.  Union Proposal 1
          Existing Vacancies -- If such a position exists and a union
       representative is qualified, the Employer will consider the union
       representative in advance of other qualified employees for this
       vacant position.  If there is no union representative affected by
       the RIF, the affected employee will be considered for the vacant
                       A.  Positions of the Parties
    As explained by the Union, the proposal applies once the Agency has
 decided to reassign employees facing separation in a reduction-in-force
 (RIF) to vacant positions.  Once this decision has been made by the
 Agency, the proposal requires that first consideration for the
 reassignment go to any qualified union representatives who are affected
 by the RIF.  The Union states, however, that the proposal does not
 require that preferential consideration be given to a union
 representative over another qualified employee who is in a tenure group
 or subgroup which is superior to that of the union representatives.  /1/
 It is also not intended to apply to positions outside the bargaining
 unit.  The Union argues that this proposal amounts to an appropriate
 arrangement for employees who are adversely affected by the exercise of
 the Agency's right to conduct a RIF.
    The Agency argues that the proposal violates a Government-wide rule
 or regulation -- the Office of Personnel Management (OPM) regulations
 governing RIFs.  In support of this, it contends that the proposal would
 require it to place union representatives in vacant positions despite
 the fact that under those regulations another employee might have a
 right to the position.  It also asserts that the proposal is
 nonnegotiable because it would affect the rights of nonunit employees.
 Finally, the Agency alleges that the proposal would require it to fill
 vacancies and consequently interferes with its management right to
 determine the number of employees assigned to an organizational unit.
                       B.  Analysis and Conclusions
          1.  Conflict with Government-wide Rules or Regulations
    OPM has issued new regulations concerning RIFs at 5 CFR Part 351,
 effective February 3, 1986.  51 Fed. Reg. 318-326 (1986).  The Authority
 has found that the OPM regulations concerning RIFs 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 to previous OPM regulations, the revised RIF
 regulations similarly apply generally to civilian employees of the
 Federal government and are likewise Government-wide rules or
    Under these regulations an agency may in its discretion choose to
 fill a vacancy with an employee facing separation, furlough or
 reassignment in a RIF.  When it elects to do so it must follow the
 provisions of the RIF regulations.  5 CFR 351.201(b).  See also Klegman
 v. Department of Health and Human Services, 16 M.S.P.R. 454 (1983).
 This includes recognizing whatever claim employees may have to the
 particular position as a consequence of their "bumping" or "retreating"
 rights.  /2/ Baker v. Department of Commerce, Economic Development
 Administration, 19 M.S.P.R. 432 (1984).  Based on the Union's
 explanation, Proposal 1 is intended to provide for observance of
 "bumping" rights.  However, no allowance is made for observance of
 "retreating" rights which may give employees other than the union
 representatives claim to the position involved.  Thus, the proposal
 requires the Agency to consider taking an action which ignores some of
 the requirements of 5 CFR Part 351.  Because of this circumstance, the
 Authority finds that Union Proposal 1 conflicts with a Government-wide
 rule or regulation, and is not within the obligation to bargain.
                  2.  Interference with Management Right
    Based on the language of the proposal and the Union's explanation,
 the Authority interprets the proposal as applying only after the Agency
 has decided to fill vacancies with employees facing displacement from
 their position in a RIF.  Given this, the Agency's argument that the
 proposal would require it to fill vacancies is not supported.  Therefore
 its conclusion, based on this argument, that the proposal interferes
 with its right to determine the number of employees assigned to an
 organizational unit must be rejected.
                      3.  Effect on Nonunit Employees
    Based on the Union's explanation, which is compatible with the
 proposal itself, the Authority interprets the proposal as applying only
 to vacant positions within the bargaining unit.  The proposal as it
 applies to the filling of bargaining unit positions, if otherwise
 negotiable, would potentially have an effect on nonunit employees.
 However, that effect would only be an indirect one, potentially limiting
 nonunit employees' access to vacant unit positions by requiring that
 preferential consideration be given to a unit employee.  The proposal
 does not rise to the level of directly determining conditions of
 employment of nonunit employees.  See American Federation of Government
 Employees, Local 32 and Office of Personnel Management, 22 FLRA No. 49
 (1986) in which the Authority discussed the circumstances under which
 the effect of a proposal on nonunit employees would remove a proposal
 from the duty to bargain.  Consequently, the Authority does not find
 that this proposal would be nonnegotiable simply because of its
 potential effect on nonunit employees.  Association of Civilian
 Technicians, Pennsylvania State Council and Pennsylvania Army and Air
 National Guard, 14 FLRA 38, 39 (1984).
                        4.  Appropriate Arrangement
    Because the proposal is nonnegotiable based on its inconsistency with
 a Government-wide rule or regulation, section 7106(b)(3) of the Statute
 does not apply.  American Federation of Government Employees, Local 1546
 and Department of the Army, Sharpe Army Depot, Lathrop, California, 19
 FLRA 1016, 1019 (1985), petition for review filed sub nom.  American
 Federation of Government Employees, AFL-CIO v. FLRA, No. 85-1689 (D.C.
 Cir. Oct. 21, 1985).  Therefore, the Union's argument that Union
 Proposal 1 is negotiable because it is an appropriate arrangement under
 section 7106(b)(3) is rejected.
                           IV.  Union Proposal 2
          Retention/Reassignment -- When there is a shortage of funds for
       a Division or Branch and a union representative occupies a
       position within the Division or Branch, the Bureau will consider a
       furlough of that representative for the shortest possible period
       exceeding 30 days.
                       A.  Positions of the Parties
    As explained by the Union, this proposal would require that the
 Agency consider furloughing a union representative as an alternative to
 separating him/her in a RIF.  The Agency contends that this proposal
 conflicts with the OPM RIF regulations.  The Union counters that under
 those OPM regulations agencies have the discretion to make exceptions to
 the normal order or release of employees in RIFs and that this proposal
 involves an action which fits within that discretion.  Like Union
 Proposal 1, the Union characterizes this proposal as an appropriate
 arrangement for employees adversely affected by management's exercise of
 its statutory authority.
                       B.  Analysis and Conclusions
    Under OPM regulations, employees are grouped in competitive levels by
 the similarity of their positions and grades.  Positions placed in the
 same competitive level are supposed to be interchangeable.  The OPM
 regulations basically require that employees be "released" from their
 competitive levels in inverse order of their retention standing.  5 CFR
 351.601.  Once released an employee is separated, furloughed or
 reassigned.  The regulations specifically provide that an agency may not
 separate an employee while an employee with lower retention standing in
 the same competitive level is on furlough.  5 CFR 351.604(b).  The
 effect of the Union's proposal would be to require an exception to this
 prohibition.  That is, under the proposal an agency could be required to
 consider separating an employee while a union representative with lower
 retention standing in the same competitive level is on furlough.
 Contrary to the Union's argument, the Authority finds that OPM
 regulations do not permit an exception to this particular provision.
 The exceptions allowed by OPM regulations to which the Union refers in
 its arguments go to other provisions of the RIF regulations.  /3/ There
 is no mention in the regulations of any exceptions which an agency could
 make to the prohibition set forth in 5 CFR 351.604(b).  The Authority
 concludes therefore that Union Proposal 2 is inconsistent with 5 CFR
 351.604(b).  As found earlier, 5 CFR Part 351 is a Government-wide
 regulation.  Because Union Proposal 2 conflicts with a Government-wide
 rule or regulation, it is not within the duty to bargain.  /4/
                                 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., July 15, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) Employees are placed in "tenure groups" according to the nature
 of their appointment;  i.e., career, career-conditional, indefinite,
 etc.  "Subgroup" placement is based on veterans status.  5 CFR 351.501.
    (2) "Bumping" is the right of one employee to displace another
 employee in a position on the basis of subgroup superiority.
 "Retreating" is the right to displace another employee in a position
 which is one from which or through which the employee was promoted and
 which is occupied by an employee with lower "retention standing." 5 CFR
 351.701.  "Retention standing" is an employee's ranking relative to
 other employees based on group, subgroup, length of service and
 performance rating.  5 CFR Part 351, Subpart E.
    (3) 5 CFR 351.607 and 351.608 allow exceptions to 5 CFR 351.601 and
    (4) For the reasons given in section III(B)(4) of this decision,
 section 7106(b)(3) of the Statute does not apply.