[ v23 p396 ]
The decision of the Authority follows:
23 FLRA No. 56 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, DALLAS REGION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO NATIONAL COUNCIL OF SOCIAL SECURITY ADMINISTRATION-FIELD OFFICE LOCALS Charging Party Case No. 6-CA-40044 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority, in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. Both the Respondent and the General Counsel have filed briefs for the Authority's consideration. The complaint alleges that the Respondent committed an unfair labor practice in violation of section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by improperly refusing to bargain over one of the three proposals submitted by the Charging Party (the Union) during negotiations over the impact and implementation of management's decision to downgrade certain positions. The disputed proposal concerns what shall constitute the declination of a reasonable offer of a comparable position, resulting in the loss of retained grade and pay, where employees have been downgraded by reclassification. II. Background In 1981, officials in the Respondent's Dallas Regional Office conducted an audit of its "Mail and Supply Clerk" positions at the GS-4 level. They concluded that the position was not properly classified at the GS-4 level, and reclassified it at the GS-3 level. As a result of this reclassification, the Respondent immediately discontinued filling its Mail and Supply Clerk positions at the GS-4 level. In 1983, the Respondent downgraded its GS-4 Mail and Supply Clerks located in Dallas, Fort Worth, Waco, Houston, and Brownsville, Texas, and Albuquerque, New Mexico, to the GS-3 level. Consistent with Federal regulations, the Respondent afforded retained grade and pay for a period of two years to its Mail and Supply Clerks who were downgraded as the result of the reclassification of their positions. /1/ In connection with this action, the Respondent sought specific proposals from the Union as to the impact and implementation of the downgradings, noting that affected employees could seek reassignment and compete for higher-graded positions during the two-year retention period. Under Federal regulations, eligibility for grade retention ceases if the employee declines a "reasonable offer" of a position for which the grade is equal to or higher than the retained grade, and eligibility for pay retention ceases if the employee declines a "reasonable offer" of a position for which the rate of basic pay is equal to or higher than the retained pay. /2/ The Union replied to the Respondent's solicitation with the following three bargaining proposals: I. Management will take all necessary actions to assure that the affected employees will have the opportunity to exercise their full range of rights to priority consideration for other positions as afforded under applicable law, regulations, contract provisions, past practice and the Agency policy. Management will engage in no acts to discourage the exercising of the priority considerations. II. The failure to utilize a priority consideration will not constitute a Declination of a Reasonable Offer. III. The failure to accept the offer of a position under any one of the following circumstances will not constitute a Declination of a Reasonable Offer: (1) The employee does not believe that he (or she) could perform satisfactorily in the offered position, (2) The employee has attained minimum age and length of service for retirement, (3) The employee believes that the change in positions would create undue personal hardship. The Respondent agreed to bargain on the first two proposals, but declined to bargain on the third. The Respondent took the position that the third proposal was not negotiable because it was contrary to Government-wide policy concerning the requisite elements of a reasonable offer, as set forth in the Federal Personnel Manual (FPM) by the U.S. Office of Personnel Management (OPM). The Union asserted that the FPM specifically provides that an agency may establish factors in addition to those required by regulation for determining whether an offer of reassignment or promotion to another position constitutes a "reasonable offer." The Respondent disagreed, and contended that, in any event, additional factors must be established at the Agency's national level, not at the regional level involved here. The Union then filed its unfair labor practice charge, and the complaint in this case was issued. III. Positions of the Parties A. The General Counsel makes the following arguments in support of its contention that the last of the Union's three proposals was negotiable: 1. While management has the full authority to reduce its employees in grade or pay as a consequence of a proper reclassification of their positions, it must nonetheless negotiate, under section 7106(b)(2) and (3) of the Statute, as to "procedures" and "appropriate arrangements" for those bargaining unit members who have been adversely affected because of a reduction in grade and pay. 2. The Respondent recognized its duty to bargain in this case when it notified the Union of the impending action and solicited specific proposals regarding the impact and implementation of the action. 3. The Respondent's insistence that it had no (or very limited) authority to add to the requisite elements of a "reasonable offer" is expressly contradicted by the language of the FPM on which the Respondent relies in support of its position in this regard. B. The Respondent, on the other hand, makes the following arguments in support of its position that the last of the Union's proposals is not negotiable: 1. A classification action is explicitly excluded under section 7103(1)(14)(B) and (C) of the Statute as a negotiable "condition of employment." 2. The classification action in this case does not constitute an exercise of a retained management right under section 7106(a)(2)(A) of the Statute so as to be subject to impact and implementation bargaining under section 7106(b)(2) and (3). 3. Even if the impact and implementation of classification actions were negotiable in general, this case presents an exception because the Respondent's management had "very little discretion under applicable statutes and regulations to bargain over such matters." 4. Pertinent legal precedent, as well as the parties' own bargaining agreement, provide that agency management is bound by existing Government-wide rules and regulations, /3/ and that the OPM provision concerning the definition of a "reasonable offer" for purposes of pay and grade retention constitutes a Government-wide rule or regulation which imposes the parameters of such a "reasonable offer" to the exclusion of the terms of the Union's proposal. 5. In conclusion, the proposal conflicts with management's right to direct the work force and assign work to employees under section 7106(a)(2) (A) and (B) of the Statute. IV. Analysis A. Negotiability of the Union's Proposal in General In March Air Force Base, Riverside, California, 13 FLRA 255 (1983), the Authority held that, consistent with section 7103(1)(14)(C) of the Statute and Authority precedent, bargaining proposals which relate directly to the classification of positions do not concern "conditions of employment" and therefore are not within the duty to bargain under the Statute. The Authority further found, however, that the duty to bargain does apply to the implementation of downgradings to be effected as the result of the reclassification of positions, and to the impact of such reclassification on affected employees, "to the extent consonant with law and regulation." The Authority followed this finding in Department of Transportation, Federal Aviation Administration, 19 FLRA No. 61 (1985), concluding that the agency was obligated to bargain over the procedures and appropriate arrangements for employees adversely affected by the agency's decision to reclassify positions, resulting in downgrades, reassignments, and promotions. The same rule of law applies equally here. Also in the March Air Force Base decision, the Authority discounted the agency's argument that, even if a duty to bargain existed, the agency had little discretion under applicable statutes and regulations to bargain on such matters. The Authority noted that grade and pay retention are specifically provided for by law and regulation, and therefore may not be subject to bargaining under section 7103(a)(14)(C) of the Statute. The Authority concluded, however, that the agency had presented no evidence that the union's proposals were removed from the scope of bargaining, either because they were specifically provided for within the meaning of section 7103(a)(14)(C), or because the agency was left with no discretion to act under those particular circumstances. The Authority therefore ordered the agency to take certain steps to offer the union the opportunity to negotiate about the impact and implementation of its reclassification and downgrade action. Under section 7117(a)(1) of the Statute, a Federal agency's duty to bargain does not extend to proposals that are "inconsistent with any Federal law or any Government-wide rule or regulation . . ." In this case, an OPM regulation at 5 C.F.R. Section 536.206 provides that a "reasonable offer," the declination of which terminates eligibility for grade and pay retention, is composed of six specific elements. /4/ The terms of that regulation clearly require that, at a minimum, all six elements must be present for an offer to be a "reasonable offer." An FPM provision published subsequently by OPM stipulates that the regulatory requirements are the "minimum conditions which must be met for an offer to be reasonable . . . ," so that "(a)gencies may also establish additional conditions which must be met" before an "offer" of reassignment or promotion may be deemed "reasonable." FPM ch. 536, subch. 5, sec. 5-1(f)(2) (Oct. 1, 1981). This FPM provision represents OPM's interpretation of its own regulations, see FPM Introduction (Feb. 14, 1983), and FPM ch. 171-5, sec. 2-1 (June 25, 1984), and is adopted for purposes of this decision because it is consistent with the regulation. The Respondent also asserted that "changes in the current policy" with regard to the requirements of a "reasonable offer" could only be effectuated at the Agency's national level because the regional office was not empowered to do so. The Respondent offered no evidence to support its assertion. In fact, the record indicates that the Respondent, in deciding to downgrade the GS-4 Mail and Supply Clerks at certain locations within the Dallas Region, sought specific proposals from the Union concerning the impact and implementation of that decision on these unit employees. The Authority concludes that the Respondent has discretion to add to the six elements of a "reasonable offer" required by Federal regulation. In addition to the regulatory requirements for continued entitlement to retained grade and pay for two years after a downgrade based on position reclassification, other requirements for such retention therefore may be negotiable. B. Negotiability of the Union's Proposal The Union proposed three circumstances under which the downgraded employees would not be deemed to have declined a "reasonable offer" which would terminate their eligibility for retained grade and pay. Those three circumstances are as follows: (1) Where the employee believes that he could not perform satisfactorily in the offered position; (2) Where the employee has attained the minimum age and length of service for retirement; and (3) Where the employee believes that taking on an offered position would create an undue personal hardship. The Respondent contends that this proposal would eliminate its discretion to exercise its reserved management rights under section 7106(a)(2)(A) and (B) of the Statute to "direct" and "assign work" to the employees reduced in grade or pay as a result of the reclassification of their positions. Contrary to the Respondent's position, we find that the disputed proposal in this case does not conflict with management's rights to "direct" and "assign work" to employees under section 7106(a)(2)(A) and (B) of the Statute. Rather, it involves employees who have been placed in lower-graded positions for reasons other than personal cause and who are entitled to retained grade and pay for up to two years under law and Governmentwide regulation. 5 U.S.C. Sections 5361-66; and 5 C.F.R. part 536. Under this law and regulation an employee's entitlement to retained grade and pay ends if the employee declines a "reasonable offer" of another position with a grade and pay equivalent to or greater than the employee's former position. While the employee clearly has the right to refuse such an offer, to do so terminates the employee's entitlement to retained grade and pay and the employee would remain in the lower-graded position. The proposal in this case concerns only what constitutes such a "reasonable offer," and not whether management can, for example, "involuntarily" assign an employee to any position. The Union's proposal would allow an affected employee to reject an otherwise "reasonable offer" when the employee simply "believes" that he could not perform the duties of the offered position -- implicitly regardless of an agency determination of qualification -- or when he "believes" that accepting the offered position would create an "undue personal hardship." The proposal also would permit the affected employee to reject an otherwise "reasonable offer" on the basis of his immediate eligibility for retirement. By granting such broad discretion to affected employees, the disputed proposal could thwart all good faith efforts by the Respondent to make "reasonable offers" of reassignment. Employees who represented that they "believe" subjectively that they cannot perform the duties of the offered positions or that the positions would result somehow in an "undue personal hardship," or who coincidentally happen to be qualified for retirement, would be entitled to decline otherwise reasonable offers. The Authority finds that the proposal conflicts with OPM's Government-wide regulatory requirements for determining what constitutes a "reasonable offer." /5/ Accordingly, the Union's proposal is not negotiable, and the complaint in this case is dismissed. V. Conclusion The Authority has considered all the facts and circumstances of this case, including the positions of the parties, and concludes that the Respondent did not violate section 7116(a)(1) or (5) of the Statute, as alleged. We shall therefore dismiss the complaint. ORDER IT IS ORDERED that the complaint in Case No. 6-CA-40044 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., September 23, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) 5 C.F.R. Section 536.101(a). (2) 5 C.F.R. Sections 536.207 and 536.209. The definition of a "reasonable offer," the declination of which may terminate eligibility for retained grade and pay, is set forth at 5 C.F.R. Section 536.206, promulgated on Dec. 30, 1980; 45 Fed. Reg. 85656. (3) In addition to the provisions of the pertinent bargaining agreement, section 7117(a)(1) of the Statute itself specifically provides that the duty to bargain in good faith does not extend to matters "inconsistent with any Federal law or any Government-wide rule or regulation . . . ." See discussion in the text. (4) The six specific elements of a "reasonable offer," set forth at 5 C.F.R. Section 536.206, are as follows: (1) The offer must be in writing, and must include an official position description of the offered position; and (2) The offer must inform the employee that an entitlement to grade or pay retention will be terminated if the offer is declined and that the employee may appeal the reasonableness of the offer as provided in Section 536.302; and (3) The offered position must be of tenure equal to or greater than that of the position creating the grade or pay retention entitlement; and (4) The offered position must be in an agency, as defined in 5 U.S.C. Section 5102, although not necessarily in the same agency in which the employee is serving at the time of the offer; and (5) The offered position must be full-time, unless the employee's position immediately before the change creating entitlement to grade or pay retention was less than full-time, in which case the offered position must have a work schedule of no less time than that of the position held before the change; and (6) The offered position must be in the same commuting area as the employee's position immediately before the offer, unless the employee is subject to a mobility agreement or a published agency policy which requires employee mobility. (5) In view of this determination that the proposal conflicts with a Government-wide rule or regulation, we find that section 7106(b)(2) and (3) of the Statute is not applicable. See American Federation of State, County and Municipal Employees, Local 2830, AFL-CIO and Department of Justice, 21 FLRA No. 121 (1986); American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118 (1985), petition for review filed sub nom. American Federation of Government Employees, Local 1546 v. FLRA, No. 85-1689 (D.C. Cir. Oct. 21, 1985).