22:0731(83)NG - FUSE and Navy, Naval Underwater Systems Center -- 1986 FLRAdec NG

 22 FLRA No. 83
 
 FEDERAL UNION OF SCIENTISTS 
 AND ENGINEERS
 Union
 
 and
 
 DEPARTMENT OF NAVY, NAVAL 
 UNDERWATER SYSTEMS CENTER
 Agency
 
                                            Case No. 0-NG-1238
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         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-Managenent Relations Statute (the Statute) and concerns the
 negotiability of a single Union proposal.
 
                            II.  Union Proposal
 
    In a reduction-in-force, part-time employees shall be subject to RIF
 first.
 
                      III.  Positions of the Parties
 
    The Union argues that the proposal is negotiable as either an
 "appropriate arrangement" under section 1706(b)(3) or "procedure" under
 section 7106(b)(2) of the Statute.
 
    The Agency contends that this proposal is nonnegotiable because:
 
          1.  It interferes with management's right to layoff employees
       under section 7106(a)(2)(A) of the Statute;
 
          2.  It interferes with management's right to determine the
       types of employees assigned to an organizational subdivision, work
       project or tour of duty, a permissive subject of bargaining under
       section 7106(b)(1) of the Statute concerning which the Agency has
       elected not to bargain;  and
 
          3.  It excessively interferes with the exercise of management
       rights and, thus, is inappropriate as an "arrangement" under
       section 7106(b)(3) of the Statute.
 
                               IV.  Analysis
 
    The Union explains its intent with regard to the disputed proposal as
 follows (Union Reply Brief at 3):
 
          . . . where there is a part-time employee whose duties are not
       concurrent with those of any full-time employee, and whose duties
       are necessary for the accomplishment of the Agency's mission, the
       proposal would not require the layoff of that employee over a
       full-time employee.  Only where the part-time employee's duties
       can be duplicated by those of a full-time employee would the
       proposal require the layoff of the part-time employee.  (Emphasis
       added.)
 
    The Authority finds that the Union's explanation of the intent of its
 proposal is inconsistent with the plain language of the proposed
 requirement.  The language of the proposal is not qualified or limited
 in any way.  Rather, the proposal clearly and simply requires that in a
 RIF situation, part-time employees will be RIFed first.  The question is
 whether the plain language of the proposal constitutes a negotiable
 procedure or appropriate arrangement.
 
            A.  Whether the Proposal Is a Negotiable Procedure
 
    This proposal would require the Agency to RIF part-time employees
 before full-time employees.  Consequently, the proposal would have the
 effect of determining the particular positions management would be
 obligated to abolish in a given RIF.  That is, once the Agency decided
 to abolish a number of employee positions, it would be required to
 abolish part-time positions first.  The proposal thus has the same
 effect as Union Proposal 8 in American Federation of Government
 Employees, AFL-CIO, Local 12 and Department of Labor, 18 FLRA No. 58
 (1985) which required the Agency to abolish a proportionate number of
 supervisory and non-supervisory positions in a RIF.  In that case, the
 Authority found that the proposal constituted a direct interference with
 the Agency's discretion to determine which positions to abolish and
 which employees to lay off pursuant to section 7106(a)(2)(A) of the
 Statute.  Likewise, the disputed proposal herein also directly
 interferes with management's section 7106(a)(2)(A) right.  It is not,
 therefore, a negotiable procedure under section 7106(b)(2).
 
            B.  Whether The Proposal Constitutes An Appropriate
 
                Arrangement
 
    To determine whether a proposal constitutes a negotiable appropriate
 arrangement within the meaning of section 7106(b)(3), it is necessary to
 determine whether the proposal "excessively interferes" with the
 exercise of management's rights.  National Association of Government
 Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4
 (1986).  In making such a determination, the record in each case will be
 examined to ascertain as a threshold question whether the proposal is in
 fact intended to be an arrangement for employees adversely affected by
 management's exercise of its rights.  If the Authority concludes that
 the proposal is intended as an arrangement, we will then determine
 whether the arrangement is appropriate or inappropriate.
 
    In this case, we find that the Union intended the proposal to be an
 arrangement for employees adversely affected by the Agency's exercise of
 its rights to layoff employees.  The Union's proposal seeks to
 ameliorate the adverse effects of a RIF on full-time employees by
 requiring that part-time employees be RIFed first.  The Authority finds
 that the proposed amelioration could totally eliminate the Agency's
 discretion with regard to the exercise of its right to layoff employees
 in the circumstances of this case.  By way of example, the Agency states
 as follows (Agency Statement of Position at 4):
 
          . . . a given project might be staffed by one part-time and
       three full-time engineers while another project is staffed by one
       part-time and two full-time physicists.  If management decides
       that the engineering workload can support only two full-time and
       one part-time employee, logically, one full-time engineer position
       would be abolished to achieve the desired staffing level.  Under
       the Union's proposal, this action would be prohibited.  To achieve
       a one man year reduction, management would be forced to abolish
       the part-time engineer position and the part-time physicist
       position, resulting in an unnecessary undermanning of one function
       while failing to completely correct the overstaffing in the
       function originally requiring reduction-in-force.  Reassignment of
       the physicist's duties to the engineering function obviously would
       not be feasible in view of the differing qualifications required.
 
    While full-time employees might arguably benefit by a provision
 requiring that part-time employees be RIFed first, on balance, that
 benefit is outweighed by the fact that the proposal would require the
 Agency to eliminate part-time positions in circumstances where it might
 otherwise choose to eliminate a full-time position.  The Agency would
 have no discretion as to the type of position to be eliminated.  In thus
 removing the Agency's discretion to determine which position to
 eliminate in a RIF, the proposal excessively interferes with
 management's right to layoff and retain employees under section
 7106(a)(2)(A) of the Statute and is not an appropriate arrangement.
 
                              V.  Conclusion
 
    Based on the foregoing analysis, the Authority concludes that the
 disputed proposal does not constitute a negotiable procedure or
 appropriate arrangement but, rather, that the proposal is outside the
 duty to bargain as contrary to section 7106(a)(2)(A) of the Statute.
 
                                VI.  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 24, 1986.
                                       /s/ JERRY L. CALHOUN
                                       Jerry L. Calhoun, Chairman
                                       /s/ HENRY B. FRAZIER III
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY