[ v24 p479 ]
The decision of the Authority follows:
24 FLRA No. 52 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF ENERGY Agency Case No. 0-NG-983 19 FLRA No. 24 SUPPLEMENTAL 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-Management Relations Statute (the Statute). The Authority issued its original decision in this case in 19 FLRA No. 24 and subsequently vacated its decision as to Union Proposal 2. This case concerns only the negotiability of that proposal. We find the proposal negotiable. Union Proposal Article 22, Reduction in Force, Part II, Section 5 The filling of any bargaining unit vacancy within the competitive area for which bargaining unit employees in that area who will be affected by RIF are eligible will be suspended from the date of the initial RIF notice to affected employees until the effective date of the RIF. II. Positions of the Parties The Agency contends that the proposal violates its right to hire under section 7106(a)(2)(A) because it prevents management from filling vacant positions. The Agency claims that, by preventing management from filling positions, the proposal would not allow employees to exercise their bumping and retreat rights under regulations issued by the Office of Personnel Management. The Agency argues that the proposal is neither a procedure nor an appropriate arrangement under section 7106(b)(2) and (3) of the Statute. The Union states that its proposal would allow employees to take full advantage of bumping and retreat rights and other reassignment possibilities. The Union contends that the proposal only delays the filling of vacant positions until a reduction in force (RIF) has been carried out. It argues that the proposal is a negotiable procedure in that it does not prevent the Agency from acting at all. III. Analysis The Union's proposal would suspend the filling of any vacant bargaining unit position for which employees affected by a RIF would be eligible from the date a RIF notice is received by the affected employees until the effective date of the RIF action. The Union states that the proposal is intended to allow affected employees both to exercise their bumping and retreat rights and to take advantage of possible reassignment to such vacant positions. Union Response at 3. We accept the Union's interpretation and find that, contrary to the Agency's contentions, the proposal would not affect the rights of employees to bump and retreat into positions under regulations issued by the Office of Personnel Management and set forth at 5 CFR Part 351 (the OPM RIF Regulations). If the Agency decides to fill a vacancy covered by the proposal during a RIF, the proposal only requires the Agency to either fill that vacancy with an eligible bargaining unit employee affected by the RIF or delay filling the vacancy until the RIF is over. Hence, the proposal merely delays management's exercise of its rights to select an employee from any appropriate source under section 7106(a)(2)(C)(ii) and, correlatively, to hire from outside the bargaining unit under section 7106(a)(2)(A). This delay only would occur in very limited circumstances when (1) there is a qualified individual in the bargaining unit, (2) that employee would be affected by the RIF, and (3) management decides not to select that employee. From these facts, it is our conclusion that the proposal would not impose any substantive criteria on management's exercise of its rights. Rather, the proposal would establish a procedure for management to follow in exercising its rights -- albeit one which, under the very narrow circumstances outlined above, would delay management's ability to select from appropriate sources other than the bargaining unit until after the RIF. Such a procedure is negotiable under section 7106(b)(2) because it delays but does not prevent management from acting at all to exercise its rights. American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981). Therefore, we would not reach the question of whether the proposal is an "appropriate arrangement" under section 7106(b)(3). This case is distinguishable from National Federation of Federal Employees, Local 1332 and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia, 3 FLRA 611 (1980), where the Authority held nonnegotiable a proposal requiring a hiring freeze because it was integrally related to management's right under section 7106(b)(1) to determine the numbers and types of employees assigned to an organizational subdivision. In that case the Authority found the proposal prevented the agency from hiring new employees of the requisite types and grades in sufficient number while the freeze was in effect. Unlike the proposal in U.S. Army Materiel Development and Rediness Command, the proposal in this case only delays the Agency filling a vacancy when the Agency decides not to select an eligible bargaining unit employee affected by the RIF. This proposal does not prevent the Agency from hiring additional employees from outside the unit when there are no eligible employees within the unit. Consequently, this proposal does not affect the Agency's ability to determine the numbers and types of employees needed to perform its work. While not disputed in this case, it is clear that unlike the proposal in the Authority's Decision and Order on Remand in American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 14 FLRA 801 (1984), affirmed in the Authority's Decision and Order on Motion for Reconsideration (July 11, 1985), affirmed sub nom. American Federation of Government Employees, Local 2782 v. FLRA, No. 85-1562 (D.C. Cir. October 21, 1986), and cases based on that decision, the proposal in this case is not inconsistent with Requirement 4 of subchapter 1-4, chapter 335 of the Federal Personnel Manual (FPM). Requirement 4, which provides for an agency's right to fill positions from any appropriate source, applies to positions filled through merit promotion procedures. Requirement 4 does not apply to position changes permitted by reduction-in-force regulations. See subchapter 1-5(a)(5) and (b)(2) of FPM chapter 335. Since section 351.201(b) of the OPM RIP regulations gives an agency discretion to fill vacant positions during a RIF with affected employees, the vacant positions covered by the Union's proposal are not subject to the competitive procedures set forth in chapter 335 of the FPM. A dictum in National Federation of Federal Employees, Local 1450 and U.S. Department of Housing and Urban Development, 23 FLRA No. 1 (1986) states otherwise and will not be followed. To the extent that the proposal in that case concerns position changes permitted by the RIF regulations, Requirement 4 would not apply to that proposal. Proposals which concern the filling of positions after the effective date of a RIF, however, even if the proposals concern employees adversely affected by the RIF, are subject to the provisions of chapter 335. See American Federation of Government Employees, AFL-CIO, Local 2677 and Department of Health and Human Services, Office of Community Services, 21 FLRA No. 22 (1986), petition for review filed sub nom. AFGE, Local 2677 v. FLRA, No. 86-1287 (D.C. Cir. May 19, 1986). IV. Conclusion For the reasons discussed above, we conclude that the Union's proposal is within the duty to bargain. /1/ 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. Issued, Washington, D.C., December 15, 1986. /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY Opinion of Chairman Calhoun In agreement with my colleagues, I find that the proposal is negotiable. However, I reach this conclusion based on a different analysis from that in the majority opinion. 1. Right to Select If the Agency decides to fill a vacancy covered by the proposal during the period covered by the freeze, the Union's proposal would require the Agency to reassign an employee affected by the RIF who is eligible to the vacant position. Union Response at 3. In my view, this limitation would interfere with management's right under section 7106(a)(2)(C)(ii) to make selections for positions from any appropriate source. See National Federation of Federal Employees, Local 108 and U.S. Department of Agriculture, Arkansas State Office of the Farmers Home Administration, 14 FLRA 19 (1984) (first sentence of Proposal 5). I agree with my colleagues, for the reasons stated in the majority opinion, that the proposal is not inconsistent with Requirement 4 of subchapter 1-4, chapter 335 of the FPM. 2. Right to Hire Management's right under section 7106(a)(2)(A) to hire from outside the agency constitutes one "appropriate source" from which an agency may make selections for positions. I find that the Union's proposal would limit the sources from which the Agency may fill vacant positions covered by the proposal. During the RIF, the Agency could only fill those positions with eligible employees who would otherwise be subject to the RIF. The Agency would be prevented during the RIF from exercising its right to hire from outside. If the Agency does fill the vacant position with an affected employee prior to the effective date of the RIF, it could no longer exercise its right to hire for that position from outside the Agency after the RIF. The proposal would therefore interfere with the Agency's right to hire employees. Consequently, I find that the proposal directly interferes with management's right to hire and does not constitute a procedure under section 7106(b)(2) of the Statute. 3. Appropriate Arrangement We vacated our original decision as to this proposal because it relied upon the decision as to Union Proposal 1 in Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 11 FLRA 505 (1983), which was reversed and remanded to the Authority by the U.S. Court of Appeals for the District of Columbia Circuit in Association of Civilian Technicians, Montana Air Chapter v. FLRA, 756 F.2d 172 (D.C. Cir. 1985). The D.C. Circuit's decision directed the Authority to determine whether Union Proposal 1, which also concerned a freeze on hiring during a RIF, constituted an appropriate arrangement under section 7106(b)(3) of the Statute. In its Decision and Order on Remand in Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 20 FLRA No. 85 (1985), petition for review filed sub nom. Association of Civilian Technicians, Montana Air Chapter v. FLRA, No. 86-1057 (D.C. Cir. Jan. 23, 1986), the Authority found that Union Proposal 1 did not constitute an appropriate arrangement under section 7106(b)(3) because it excessively interfered with the agency's ability to provide the numbers and types of employees to perform the agency's work. In view of the Agency's claim that the proposal is not an appropriate arrangement and the decision of the D.C. Circuit in Montana Air Chapter, I will consider whether the proposal in this case, which also concerns a hiring freeze, constitutes an appropriate arrangement. /2/ The proposal was intended as an arrangement for employees adversely affected by the Agency's exercise of its right to layoff employees. The event giving rise to the proposed arrangement -- a RIF -- is a matter which significantly affects employees but is caused by circumstances which are not within their control. The proposed arrangement would benefit employees by ensuring that employees who would otherwise be separated because of a RIF are placed in vacant positions for which they are eligible before the Agency seeks outside applicants. Regarding the burden the arrangement would place on the Agency's exercise of its rights, as discussed above, the proposal would interfere with the Agency's rights to hire and to make selections from any appropriate source. Although the proposal would interfere with the Agency's rights to hire and select, I find that the interference with the Agency's ability to carry out its mission would not be substantial. The proposal would not require the Agency to fill a vacant position if it chooses not to do so. Also, if the Agency decides to fill a vacancy, the proposal would not require it to fill the position with an employee it has not found to be qualified to perform the duties of that position. While the Agency would be prohibited from seeking applicants from outside the competitive area during the RIF, the Agency still has discretion to either fill the vacancy with an eligible employee from within the affected area or fill it from any appropriate source after the effective date of the RIF. By contrast, the proposal in Montana Air Chapter which we found to excessively interfere with management's rights would have prevented management from filling vacancies even if there were no qualified employees available. Consequently, in my view, the Union's proposal does not excessively interfere with the Agency's exercise of its rights and constitutes an appropriate arrangement under section 7106(b)(3). Issues, Washington, D.C., December 15, 1986. /s/ Jerry L. Calhoun, Chairman --------------- FOOTNOTES$ --------------- (1) Chairman Calhoun concurs that the proposal is negotiable for the reasons set forth in his separate opinion. In finding the proposal to be within the duty to bargain, we make no judgment as to its merits. (2) In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), we set forth the factors we will consider in determining whether a proposed arrangement for employees adversely affected by an agency's exercise of its section 7106(a) or (b)(1) rights is "appropriate" for negotiation within the meaning of section 7106(b)(3), or whether it is inappropriate because it would "excessively interfere" with the exercise of management's rights.