[ v22 p580 ]
The decision of the Authority follows:
22 FLRA No. 63 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION VI, DALLAS, TEXAS Agency Case No. 0-NG-582 DECISION and ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It raises issues concerning the negotiability of three Union proposals. The proposals concern a reduction-in-force (RIF) within an operating division (Public Health Service) of the Agency. II. Union Proposal 1 "Competitive Area" is defined as all those positions under the authority of the Principal Regional Official of HHS -- Dallas within the commuting area of Dallas, Texas except those which have been determined by the FLRA to be in "bargaining units" other than that represented by Chapter 219, NTEU. A. Positions of the Parties The Agency argues that the proposal conflicts with an Agency regulation for which a compelling need exists. The Union asserts that the Agency has failed to demonstrate that a compelling need exists for the regulation with which the proposal conflicts. B. Analysis and Conclusions The positions of the parties here are substantially identical to those which they took concerning a similar proposal which was before the Authority in National Treasury Employees Union and Department of Health and Human Services, Region IV, 11 FLRA 254 (1983) (Union Proposal 1). For the reasons expressed in DHHS, Region IV, /1/ the Authority rejects the Agency's argument here that a compelling need exists for the regulation /2/ on which it relies. However, we find that this proposal is nonnegotiable for a reason other than that raised by the Agency. OPM has recently prescribed revised regulations regarding RIFs which are Government-wide regulations within the meaning of section 7117 of the Statute. National Treasury Employees Union and Department of the Treasury, Bureau of Government Financial Operations, 22 FLRA No. 58 (1986). Among other things, those regulations set forth criteria for defining competitive areas. They require that a competitive area"be defined solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined." (Emphasis supplied.) 5 CFR 351.402(b), 51 Fed. Reg. 318 at 321 (1986). The proposal does not meet this standard. It would in part define a competitive area in terms of positions in particular bargaining units rather than solely in terms of organizational units and geographical location. Hence, it is inconsistent with a Government-wide rule or regulation and it is not within the duty to bargain. III. Union Proposal 2 Displacement within subgroups will be permitted between competitive levels to the same extent OPM regulations permit displacement between subgroups I-A and I-B. A. Positions of the Parties The Agency argues that this proposal conflicts with an Agency regulation for which a compelling need exists (HHS Personnel Manual Instruction 351-1-50A3). That regulation sets forth the Agency's policy on types of reassignments of employees during a RIF which are within an agency's discretion to allow under OPM regulations. The Agency's policy specifically does not allow the type of reassignment proposed, that is, employees displacing others in the same subgroup in different competitive levels. /3/ The Agency argues that its regulation is essential to preventing the serious disruption of its programs which it contends would result from expanding employee displacement rights beyond those required by OPM regulations. Because of this, it claims, its regulation meets the criterion for compelling need which appears at section 2424.11(a) of the Authority's Rules and Regulations. Noting that OPM regulations prohibit an unqualified employee from displacing another employee in a RIF, the Union asserts that the Agency's arguments that its regulation is essential to the accomplishment of its mission is without merit. B. Analysis and Conclusions Under OPM regulations an agency may in its discretion permit employees who are competing for retention to displace other employees in the same subgroup. 5 CFR 351.705(a)(1). In support of its argument that there is a compelling need for its regulation the Agency asserts only that an increased number of employees would be affected by a RIF if expanded displacement were permitted. In the Authority's view this alone does not demonstrate that the regulation is essential, as opposed to helpful or desirable, to the accomplishment of the Agency's mission and functions. In fact, the OPM regulations contain safeguards which would permit the Agency to protect its ability to accomplish its mission and functions even in the face of increased displacement actions. OPM regulations require that provisions allowing for expanded displacement be implemented in a manner consistent with the regulations as a whole. 5 CFR 351.705(b)(1). The regulations specifically require that an employee must be qualified for any position to which assigned in a RIF action. 5 CFR 351.702(a). Additionally, the regulations permit agencies to make temporary and continuing exceptions to the normal order of RIF actions where it is necessary to retain an employee on duties which cannot be taken over by another employee without undue interruption to a particular activity. 5 CFR 351.607 and 5 CFR 351.608. Particularly in view of these regulatory provisions which allow agencies to minimize the interruption of their activities which may result from RIFs, the Authority finds that the Agency has not met its burden of demonstrating a compelling need for its regulation. See American Federation of Government Employees, AFL-CIO, Local 2670 and Army and Air Force Exchange Service, Keesler Air Force Base Exchange, Mississippi, 10 FLRA 71 (1982). Therefore, the Authority finds Union Proposal 2 is within the duty to bargain. The Authority addressed a similar proposal in International Federation of Professional and Technical Engineers, AFL-CIO, NASA Headquarters Professional Association and National Aeronautics and Space Administration, Headquarters, Washington, D.C., 8 FLRA 212 (1982). In that case the Authority found that proposal nonnegotiable. The difference between that case and this is that in the NASA case the agency alleged and demonstrated in the record that the proposal would directly determine conditions of employment for employees outside of the bargaining unit and for that reason was nonnegotiable. In this case the Agency has made no similar allegation. Thus the different conclusions reached in the two cases are a consequence of the different circumstances present. See American Federation of Government Employees, Local 32, AFL-CIO, and Office of Personnel Management, 14 FLRA 754 (1984), remanded sub nom. Local 32, American Federation of Government Employees v. FLRA, 774 F.2d 498 (D.C. Cir. 1985). In that decision the Authority noted that the responsibility for creating a record on which it could resolve negotiability issues rested with the parties and that where applicability of a proposal of nonunit employees was not raised by the parties, the Authority would not consider it. IV. Union Proposal 3 The Employer will provide for assignments across competitive areas to positions from which any Group I or Group II employee was promoted or an essentially identical position. A. Positions of the Parties The Agency argues that this proposal conflicts with an Agency regulation which meets all of the Authority's illustrative criteria for determining compelling need. Section 2424.11(a), (b) and (c) of the Authority's Rules and Regulations. The Union contends that the Agency regulation does not meet the compelling need criteria. B. Analysis and Conclusions The Authority finds that this proposal is nonnegotiable for a reason other than that raised by the Agency. While OPM regulations previously allowed assignments across competitive areas to be made at agency discretion, the revised OPM regulations do not. See 48 Fed. Reg. 32304 at 32305 (1983). Under current OPM regulations, employees in a competitive area compete only with each other, not with employees in another competitive area. 5 CFR 351.402 and 351.701(a). /4/ As noted in section II(B) of this decision, those OPM regulations are Government-wide rules or regulations. Since Union Proposal 3 conflicts with those regulations, it is not within the duty to bargain. In view of this conclusion and the fact that the Agency's compelling need argument was based in part on OPM regulations which have subsequently been revised, it is unnecessary to address that argument. V. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 2. /5/ IT IS FURTHER ORDERED that the Union's petition for review insofar as it relates to Union Proposals 1 and 3 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) In DHHS, Region IV the Authority relied in part on an Office of Personnel Management (OPM) regulation found at 5 CFR 351.701(a)(4). The OPM regulations have since been revised. However, as identical provision continues to appear at 5 CFR 351.702(a)(4). 51 Fed. Reg. 318 at 324-5 (1986). (2) The same regulation, HHS Personnel Manual Instruction 351-1-40, was at issue in that case as well as this one. (3) 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 veteran status. 5 CFR 351.501. 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. 5 CFR 351.403. (4) See also Personnel Manual Letter 351-20 at 19. (5) In finding this proposal within the duty to bargain, the Authority makes no judgment as to its merits.