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22:0580(63)NG - NTEU and HHS, Region VI, Dallas, TX -- 1986 FLRAdec NG

[ v22 p580 ]
The decision of the Authority follows:

 22 FLRA No. 63
                                            Case No. 0-NG-582
                         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,
    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.