25:1041(88)NG - NTEU and HHS, Region X -- 1987 FLRAdec NG
[ v25 p1041 ]
25:1041(88)NG
The decision of the Authority follows:
25 FLRA No. 88
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
DEPARTMENT OF HEALTH
AND HUMAN SERVICES, REGION X
Agency
Case No. 0-NG-628
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)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). It raises issues
concerning the negotiability of eight proposals, which arose in
negotiations over a supplement to the parties' master agreement
regarding reduction-in-force (RIF) procedures. For the reasons which
follow we hold that proposals 1, 2 and 6 are nonnegotiable, proposals 3,
4 and 5 are negotiable, and the dispute as to proposals 7 and 8 is moot.
II. Proposal 1
Section 3
The employer shall establish competitive levels consisting of
all positions in a competitive area, and in the same grade or
occupational level which are sufficiently alike in qualification
requirements, duties, responsibilities, pay schedules, and working
conditions, so that the employer may readily reassign the employee
of any one position to any of the other positions without changing
the terms of the employee's appointment or unduly interrupting the
agency's work program. In so doing, the employer shall establish
the competitive levels as broadly as possible to combine as many
positions as possible and in an impartial manner.
A. Positions of the Parties
The Agency asserts that because competitive levels are determined as
a result of various management decisions about organization, assignment
of work and selection of personnel, this proposal has a direct impact on
its management rights under section 7106(a)(1), 7106(a)(2)(B), and
7106(a)(2)(C). To protect these rights, it claims it must retain full
discretion to determine the content and necessary qualifications of
positions. It argues that this proposal would interfere with that
discretion.
The Union denies that the proposal would interfere with any
management rights. It states that it intends the proposal to require
Agency compliance with Office of Personnel Management (OPM) regulations
(5 CFR Section 351.403) concerning the establishment of competitive
levels. The Union further states that while the proposal would
establish a "general, non-quantitative standard" for the establishment
of competitive levels, it would not prescribe the specific positions to
be placed in them and would leave to Agency discretion the contents of
the competitive levels. In direct response to the Agency's arguments,
the Union contends that competitive levels reflect, rather than define,
the content of positions.
B. Analysis and Conclusions
For the reasons set forth below, we find that this proposal is not
within the duty to bargain. During the pendency of this case the OPM
RIF regulations were revised. 51 Fed. Reg. 318 (1986). The revised
regulations require that the positions placed in a competitive level be
sufficiently similar so that the incumbent of one can successfully
perform the critical elements of any other without any loss of
productivity beyond that normally expected of a new but fully qualified
employee. In our view this is a narrower standard than that set forth
in the proposal, i.e., assignments not resulting in a change in the
terms of the employee's appointment or undue interruption to agency work
programs. The proposal is inconsistent with the OPM regulations which
are Government-wide rules or regulations within the meaning of the
Statute. National Treasury Employees Union, NTEU Chapter 202 and
Department of the Treasury, Bureau of Government Financial Operations,
22 FLRA No. 58 (1986) (Proposal 1).
In view of this conclusion, we do not find it necessary to address
the Agency's arguments that the proposal conflicts with management's
rights. However, we note that the Authority has addressed the
negotiability of proposals relating to the definition of competitive
levels. A proposal which merely requires an agency to comply with OPM
RIF regulations governing competitive levels is negotiable. American
Federation of Government Employees, Local 12, AFL-CIO and Department of
Labor, 17 FLRA 674 (1985) (Union Proposal 4), remanded as to other
matters sub nom. Local 12, American Federation of Government Employees
v. FLRA, No. 85-1371 (D.C. Cir. Feb. 11, 1986). Recently, we held
nonnegotiable a proposal which would have required all positions in the
same or a related series to be placed in the same competitive level.
The proposal deprived the agency of its discretion to determine the
qualification requirements of the positions to be placed in competitive
levels and excessively interfered with the agency's management rights.
Congressional Research Employees Association and Library of Congress,
Congressional Research Service, 25 FLRA No. 21 (1987) (Proposal 6).
III. Proposal 2
Section 4
Competitive Areas. There shall be one competitive area for
bargaining unit employees. The competitive area of the Department
is defined as all those positions under the personnel
administration and appointing authority of the Regional Director
of the Department of Health and Human Services, Region X, within
the commuting area of Seattle.
A. Positions of the Parties
The Agency asserts that the proposal is nonnegotiable because it
would determine conditions of employment of employees outside the
bargaining unit. The Union contends that the proposal is limited to
prescribing that there be one competitive area for bargaining unit
employees and that there is no intention to extend its collective
bargaining rights beyond its bargaining unit.
B. Analysis and Conclusions
The Union's explanation of this proposal does not make clear whether
the proposed competitive area is limited strictly to positions in the
bargaining unit or would include whatever other positions exist within
the geographical and organizational boundaries specified. However,
under either interpretation, the Union's proposal would be
nonnegotiable. Although the Agency has failed to provide clear factual
support for its assertion that the proposed competitive area would
encompass nonunit employees, it is reasonable to conclude that the
geographical and organizational boundaries described by the proposal
would include, at least, supervisory personnel. Thus a proposal to
include, literally, all positions within those boundaries in a
competitive area would effectively define the competitive area for
nonunit employees as well as unit employees and, for that reason, is
outside the Agency's duty to bargain. American Federation of Government
Employees, Local 32, AFL-CIO, and Office of Personnel Management, 22
FLRA No. 49 (1986), petition for review filed sub nom. American
Federation of Government Employees, Local 32, AFL-CIO, v. FLRA, No.
86-1447 (D.C. Cir. Aug. 11, 1986). If the proposal is intended to
define a competitive area in terms of, and limited to, the bargaining
unit, it is inconsistent with OPM regulations. Current OPM regulations
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 Section 351.402(b), 51 Fed. Reg. 318 at 321 (1986). A
competitive area defined in terms of bargaining unit membership does not
meet this standard. As noted in section II(B) of this decision, the Opm
regulations are Government-wide regulations.
IV. Proposal 3 /1/
Section 9
(a) When possible, the agency shall retain the employee on
active duty during the notice period, but it may place him/her on
annual leave with or without his/her consent, or in a nonpay
status without his/her consent when in an emergency the agency
lacks work or funds for all or part of the notice period.
(b) When such determinations are made under (a) above, they
will be done in a fair and equitable manner.
A. Positions of the Parties
The Agency contends that the proposal conflicts with section
7106(a)(2)(A) of the Statute, without specifying the particular
management right or rights contained in that section with which the
proposal is an appropriate arrangement for employees adversely affected
by a RIF and is negotiable pursuant to section 7106(b)(3) of the
Statute. The Union describes section (a) of the proposal as mirroring
provisions of the OPM RIF regulations found at 5 CFR Section 351.807.
It contends that the proposal would leave the Agency the discretion to
determine whether or not it is possible to retain an employee on duty
status during the notice period relating to a RIF because of lack of
funds or work. Section (b) is intended to prescribe a "general
nonquantitative" standard by which such determinations may be evaluated
in a grievance.
B. Analysis and Conclusion
Based on the following, we find that the proposal is negotiable. The
proposal applies to the period between the time employees have received
notice from the Agency that they will be affected by a RIF action and
the effective date of the RIF action. Section (a) of this proposal
would only require, absent an emergency such as lack of funds or work,
retention of employees in duty status during but not beyond the notice
period. It would leave the Agency the discretion to determine that,
based on budgetary or workload considerations, this is not possible.
The Agency has not shown, nor is it otherwise apparent, that this
proposal would prescribe substantive criteria which management must
apply in exercising its right to conduct a RIF. Consequently, we
conclude that the proposal does not directly interfere with any of
management's rights which are typically associated with the RIF process,
for example, the rights to layoff and retain, and is procedural within
the meaning of section 7106(b)(2). We conclude further that there has
been no showing and it is not apparent that this proposed procedure is
nonnegotiable because it would prevent the Agency from exercising its
right to conduct a RIF. Compare National Federation of Federal
Employees, Local 1900 and Department of Housing and Urban Development,
15 FLRA 465 (1984), in which the Authority found that a proposal which
would require a stay of a RIF action pending the outcome of an appeal to
the Merit Systems Protection Board was a negotiable procedure under
section 7106(b)(2).
Section (b) requires only that the Agency make determinations as to
employee status during the notice period in a fair and equitable manner.
The Authority has previously held that the establishment of a "fair and
equitable" standard by which actions may be subsequently evaluated in a
grievance does not conflict with those rights and is an appropriate
arrangement within the meaning of section 7106(b)(3). American
Federation of Government Employees, AFL-CIO, Local 32 and Office of
Personnel Management, Washington, D.C., 3 FLRA 784 (1980) (Proposal 5).
There is no basis in the record of this case for reaching a different
conclusion with respect to section (b) of this proposal. Section (b) by
its language and the Union's statement of its intended meaning, would
establish only a general, nonquantitative standard by which the
application of management determinations made in the context of a RIF
may be evaluated in a grievance. Therefore, we conclude that it would
not conflict with the Agency's management rights and that it is
negotiable as an appropriate arrangement under section 7106(b)(3) of the
Statute. In view of the fact that the proposal does not conflict with
the Agency's management rights to conduct a RIF, it is not necessary to
determine whether the proposal would excessively interfere with
management rights. Compare National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4
(1986) where the Authority set forth an "excessive interference"
standard to determine whether a proposal which conflicts with
management's rights is within the duty to bargain as an "appropriate
arrangement" under section 7106(b)(3).
V. Proposal 4
The Members of the Authority disagree over the negotiability of this
proposal. The Decision and Order of the Authority is on page . . . of
this decision. Chairman Calhoun's opinion is on page . . . .
VI. Proposal 5
Section 11
During the period of the general notice the Employer will make
diligent efforts to make lateral reassignment placement
opportunities for those employees affected by RIF to other vacant
positions within the bargaining unit for which the employees
qualify. In that regard the employer may waive non-mandatory
qualifications to facilitate placement of the affected employees
at the same or lower grade. The employer agrees to attempt to do
so to the maximum extent feasible consistent with the needs of the
agency to carry out its mission. Employees can submit a SF 171
and RX 39 volunteering for positions which will ee available after
the RIF is completed. The employer will provide the new
organizational structure to employees prior to issuing specific
notices so that they can volunteer.
A. Positions of the Parties
The Agency's position is limited to a statement that determinations
on placement of employees into vacant positions and waiver of
qualifications requirements under RIF conditions are management rights
under section 7106(a)(2)(A), (C) and (D) and that this proposal is
nonnegotiable. The Union contends that the proposal is negotiable under
section 7106(b)(3) as an appropriate arrangement. Additionally, it
contends that under this proposal the Agency retains discretion on
waiving qualification requirements since the proposal does not mandate
that it do so. As for the last sentence of the proposal, the Union
asserts that its effect would only be to delay, as opposed to prevent,
issuance of specific RIF notices.
B. Analysis and Conclusions
The first sentence of this proposal, read in conjunction with the
third sentence, requires that the Agency make "diligent efforts" to
provide employees with lateral reassignments for which they qualify to
the maximum extent feasible consistent with the needs of the Agency to
carry out its mission. The second sentence read in conjunction with the
third effectively requires that with respect to those reassignments the
Agency will waive nonmandatory qualifications requirements to the
maximum extent feasible consistent with the needs of the Agency to carry
out its mission.
The Authority has found that proposals regarding placement of
employees in vacant positions in RIF situations relate to an agency's
right under section 7106(a)(2)(C) to make selections for appointments.
We have found that proposals which would actually limit the agency's
discretion interfere with that right. See, for example, American
Federation of Government Employees, AFL-CIO, Local 987 and Headquarters,
Warner Robins Air Force Logistics Command, Robins Air Force Base,
Georgia, 8 FLRA 667 (1982) (Proposal 3), reversed as to other matters
sub nom. United States Air Force v. Federal Labor Relations Authority,
727 F.2d 1502 (11th Cir. 1984). On the other hand, we have found that
proposals which allow the agency to retain full discretion as to
substantive matters involved in the exercise of its management rights,
do not interfere with that right. See, for example, American Federation
of Government Employees, AFL-CIO, Local 1692 and Department of the Air
Force, Mather Air Force Base, California, 8 FLRA 194 (1982) (Proposal
2).
In this case, the Union asserts that the proposal does not require
the Agency to make lateral reassignments but only calls for diligent
efforts to be made to that end. In our view requiring the Agency to
make diligent efforts to make lateral reassignments to vacant positions,
although not expressly mandating reassignments and allowing an exception
in those circumstances where inconsistent with the Agency's needs to
carry out its mission, nevertheless limits the Agency's discretion to
determine whether or not to make such reassignments. Under the
proposal, where the Agency's diligent efforts indicate that a
reassignment is possible, it would not then be free to refrain from
actually making the reassignment. That is, the practical effect of the
proposal would be to require reassignment where they are possible and
are not inconsistent with mission needs. Thus, this aspect of the
proposal interferes with the Agency's right under section 7106(a)(2)(C)
to make selections for appointments. Compare American Federation of
Government Employees, AFL-CIO, International Council of Marshals Service
Locals and U.S. Marshals Service, 15 FLRA 333 (1984) (Proposal 2), where
the Authority found that, because a proposal about use of vacancies in a
RIF was purely hortatory, it was within the duty to bargain with
American Federation of Government Employees, AFL-CIO, Local 3483 and
Federal Home Loan Bank Board, New York District Office, 13 FLRA 446
(1983) (Proposal 3) where the Authority found that insertion of the
phrase "to the extent practicable" did not remove a limitation imposed
by a proposal on management's exercise of its reserved rights. Also,
see American Federation of Government Employees, Local 2185 and Tooele
Army Depot, Tooele, Utah, 23 FLRA No. 25 (1986).
We reach a similar conclusion with respect to that portion of the
proposal which binds the Agency to attempt to waive nonmandatory
qualifications to the maximum extent feasible consistent with its needs
to carry out its mission. The Agency's right under section
7106(a)(2)(A) to assign employees encompasses the discretion to
determine the personnel requirements of the work such as the
qualifications and skills needed to do the work. American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), enforced
sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981),
cert. denied sub nom. American Federation of Government Employees,
AFL-CIO v. FLRA, 455 U.S. 945 (1982). See also, National Federation of
Federal Employees, Local 1497 and Headquarters, Lowry Technical Training
Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565 (1983)
(Proposals 1 and 2) in which the Authority found that determination of
the skills, knowledge and abilities needed to perform the work of a
position is an integral part of management's right under 7106(a)(2)(C)
to select employees for appointment. The proposal imposes substantive
limitations on the Agency's discretion to decide whether to waive
nonmandatory qualifications by requiring an actual attempt to do so
within the specified guidelines. Consequently, it interferes with the
Agency's rights under section 7106(a)(2)(A) to assign employees and
section 7106(a)(2)(C) to select employees for appointment.
As to the remainder of the proposal, the Agency does not explain how,
nor is it otherwise apparent that, the last two sentences interfere in
any way with any management rights relating to filling vacant positions,
determination of qualifications requirements for positions, or conduct
of a RIF. Nor has the Agency explained how any portion of the proposal
would interfere with its right under section 7106(a)(2)(D) to take
actions necessary to carry out its mission during emergencies.
Accordingly, we find that these particular contentions cannot be
sustained.
Having found that the first three sentences interfere with the rights
to assign and select employees for appointments, the remaining question
is whether that portion of the proposal is negotiable as an appropriate
arrangement under section 7106(b)(3). The degree of interference with
the Agency's rights to assign and to select is limited. The proposal
does not place an absolute requirement on the Agency to place employees
in vacancies or to waive nonmandatory qualifications. Even though the
proposal requires actual efforts or attempts to make lateral
reassignments and waive nonmandatory qualifications the third sentence
allows for consideration of factors such as impact on the effectiveness
and efficiency of Agency operations and whatever other legitimate
considerations the Agency may have. Thus, the proposal would not
totally abrogate the Agency's discretion to determine whether or not to
place employees in vacancies and waive nonmandatory qualifications.
Compare National Federation of Federal Employees, Local 1450 and U.S.
Department of Housing and Urban Development, 23 FLRA No. 1 (1986), where
a proposal would absolutely prohibit the Agency from requiring
qualifications beyond minimum X-118 standards in placing employees
affected by a RIF in vacancies. RIF's and their associated actions
severely affect employees. See, for example, National Association of
Government Employees, Local R14-87, and Kansas Army National Guard, 21
FLRA No. 4 (1986). This proposal seeks to minimize the number of
employees who are separated or demoted in a RIF and could promote that
result. Based on its express recognition of the Agency's mission needs
as a limitation on the application of its terms, we conclude that the
proposal's interference with the Agency's ability to carry out its
mission would not be substantial. Balancing the respective interests of
management and employees, we find after considering the limited impact
on management's rights and the potential benefit to employees that the
proposal does not excessively interfere with the Agency's management
rights. It is therefore an appropriate arrangement within the meaning
of section 7106(b)(3) of the Statute and is within the duty to bargain.
VIII. Proposal 6
Section 13
Prior to implementation of a RIF, the employer will take all
reasonable steps necessary to attempt to convert those employees
expressing a desire under Section 12 to convert to permanent
part-time status in lieu of separation.
A. Positions of the Parties
The Agency asserts that determinations concerning conversion of
employees to part-time status relate to numbers, types and grades of
employees or positions assigned to a tour of duty and under section
7106(b)(1) are not within the duty to bargain. The Union contends that
the proposal establishes a general, nonquantitative standard by which
the Agency's exercise of its rights to implement a RIF can be evaluated
in a subsequent grievance. It argues that it also constitutes a
negotiable procedure under section 7106(b)(2) by which employees may be
converted to part-time status. It disputes the Agency's assertion that
the proposal interferes with its 7106(b)(1) rights. It contends that
the proposal would merely delay implementation of a RIF while the Agency
takes all reasonable steps to convert employees to part-time status.
B. Analysis and Conclusions
Based on the following reasons, we find that this proposal is not
within the duty to bargain. In our view, determinations as to use of
part-time employees to perform the work of the Agency is a matter
directly related to the numbers, types and grades of employees or
positions assigned to its organizational subdivisions, work projects and
tours of duty and is outside the duty to bargain pursuant to section
7106(b)(1). See National Federation of Federal Employees, Local 1650
and U.S. Forest Service, Angeles National Forest, 12 FLRA 611 (1983)
(Proposal 2) in which the Authority found that a proposal which would
require, under specified circumstances, that an agency recall WAE
employees to duty was, under section 7106(b)(1), negotiable only at the
election of the agency.
The proposal infringes on the Agency's discretion under section
7106(b)(1) which includes, among other things, the determination as to
whether to use part-time employees on its staff at all and, if so, how
many. The proposal would require an attempt at conversion regardless of
whether the Agency had exercised its discretion to make those
determinations. Employee wishes would require Agency efforts at
conversion. The proposal would have the effect of forcing the Agency to
make conversions where they were possible despite the Agency's judgment
as to their desirability. Moreover, this proposal would effectively
require the Agency to condition the exercise of one right -- the right
to layoff under section 7106(a)(2)(A) -- on its prior exercise of its
right under section 7106(b)(1) to determine the numbers, types and
grades of employees or positions assigned to its organizational
subdivision work projects and tours of duty. It therefore interferes
with those rights separately and collectively. See American Federation
of Government Employees, AFL-CIO, Local 12 and Department of Labor, 18
FLRA No. 58 (1985) (Proposal 1).
Since it is directly related to substantive determinations involved
in the Agency's exercise of its rights, it cannot be a procedure which
is negotiable under section 7106(b)(2). See Department of Defense v.
Federal Labor Relations Authority, 659 F.2d 1140 at 1152 (D.C. Cir.,
1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), in which
the court noted the distinction between proposals cast in procedural
language which impinge on substantive management decisions and those
which are purely procedural in nature.
Also, because the proposal would interfere with the substantive
exercise of the Agency's management rights it is not negotiable as a
general, nonquantitative standard by which the Agency's exercise of its
authority to conduct a RIF may be judged. /2/
IX. Proposals 7 and 8
(Proposal 7)
Section 23
No RIF will be implemented until any
reorganization/restructuring resulting from the RIF is finally
determined, including completion of any necessary negotiation with
NTEU.
(Proposal 8)
Section 24
The employer shall not implement any of the terms of this
agreement until negotiations are completed. Negotiations include
negotiability appeals and the subsequent negotiation sessions
until agreement is reached on this agreement.
A. Positions of the Parties
The Agency asserts these proposals are nonnegotiable in view of
action by the General Counsel of the Authority dismissing two unfair
labor practice charges regarding the Agency's implementation of the RIF
which was the subject of the negotiations underlying this petition. It
characterizes the General Counsel's decisions as holding that, under the
circumstances, the Agency was not obligated to delay implementation of
the RIF until completion of the negotiation process. /3/ It contends
that these decisions support its contention that these proposals are
nonnegotiable under section 7106(a)(2)(A).
The Union acknowledges that the intent of these two proposals is to
delay implementation of the RIF until, among other things, completion of
the negotiation process. Although it does not dispute the applicability
of the General Counsel's decisions to the RIF involved in this case, it
contends that they have no relevance to the question of the
negotiability of these proposals. As to the merits of the issue, it
contends that, because these proposals would only delay implementation
of the RIF, they are negotiable under section 7106(b)(2) of the Statute.
B. Analysis and Conclusions
The record in this case shows that the RIF which was the subject of
these two proposals has been implemented. /4/ Since these two proposals
involve the prospective implementation of that RIF, the dispute has been
rendered moot and in our view a bargaining order would serve no purpose.
For that reason we are dismissing this portion of the petition. See,
for example, American Federation of Government Employees, AFL-CIO, Local
3742 and Department of the Army, Headquarters, 98th Division (Training),
Webster, New York, 11 FLRA 189 (1983).
X. Order
The Agency must upon request (or as otherwise agreed to by the
parties) bargain concerning Proposals 3 and 5. /5/ The Union's petition
for review as to Proposals 1, 2, 6, 7 and 8 is dismissed.
Issued, Washington, D.C., February 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DECISION AND ORDER ON PROPOSAL 4
I. Proposal 4
Section 10
After a RIF has been directed or approved by higher authority,
and a general notice issued, and until the RIF is consummated or
cancelled, reassignments and competitive promotions within the
bargaining unit will be restricted to those actions the Employer
considered necessary for the essential functioning of the
organization. If the Employer decides to fill a vacancy by
promotion (other than career ladder, correction of classification
error, or other mandatory placement actions), employees who are in
the identified competitive level/areas who have received a general
notice of RIF who meet basic eligibility requirements and express
an interest in the vacancy will be given priority consideration
over employees not in identified competitive levels/areas for RIF.
When two or more Operating Divisions or Staff Offices are in a
RIF situation, the Employer will give first consideration to those
employees in their respective organizations.
A. Positions of the Parties
The Agency asserts that determinations concerning reassignments,
promotions and other placements on a selective basis are management
rights under section 7106(a)(2)(A) and (C) and, in a reduction-in-force
situation, also (D). Without any further explanation as to its reasons,
it contends that this proposal is nonnegotiable.
The Union argues that the proposal is an appropriate arrangement for
employees adversely affected by a RIF. It notes that under the proposal
the Agency retains the discretion to fill vacancies which it deems
necessary for the essential functioning of the organization. When the
Agency decides to fill a position, the proposal requires not that the
Agency actually select employees who are subject to a RIF notice but
only that it give them priority consideration. It contends that, under
the proposal, the Agency retains discretion with respect to exercising
its management rights.
B. Analysis and Conclusion
The Authority has found that proposals which require consideration,
but not selection, of unit employees for vacancies do not interfere with
the Agency's management right relating to filling vacancies. See, for
example, Association of Civilian Technicians, New York State Council and
State of New York, Division of Military and Naval Affairs, Albany, New
York, 11 FLRA 475 (1983) (Proposal 1). Also the Authority has found
that a proposal which in limited circumstances would only delay the
filling of a vacancy until after a RIF is over does not interfere with
management rights associated with filling vacancies. National Treasury
Employees Union and Department of Energy, 24 FLRA No. 52 (1986).
The first sentence of this proposal would suspend the filling of
vacancies within the bargaining unit by reassignment or competitive
promotion from the date a RIF notice is issued until the RIF is
consummated or cancelled unless the Agency considers the actions
necessary to the essential functioning of the organization. As to those
actions, the remainder of the proposal would require the Agency only to
give priority consideration to the employees specified in the proposals.
As to actions which the Agency does not consider necessary to essential
functioning, the proposal would merely delay the filling of vacancies by
reassignments or competitive promotions until the RIF is over.
We conclude that this proposal would merely establish a procedure for
management to follow in filling vacancies by reassignment or competitive
promotion when a RIF is on-going. There is no showing here nor is it
otherwise apparent that any delay resulting from the proposal would
prevent the Agency 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), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
945 (1982). Based on the limited effect of Proposal 4 and for the
reasons set forth more fully in the cases cited, we conclude that the
proposal is negotiable under section 7106(b)(2). In view of this
conclusion, it is unnecessary to reach the question of whether the
proposal is an "appropriate arrangement" under section 7106(b)(3).
II. Order
The Agency shall upon request (or as otherwise agreed to by the
parties) bargain concerning Proposal 4. /6/
Issued, Washington, D.C., February 27, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
--------------- FOOTNOTES$ ---------------
(1) As to this proposal as well as Proposals 4, 5 and 6 which follow,
the Union contends that the Agency's statement of position does not meet
the Authority's requirements for a full and detailed statement of
reasons supporting allegations of nonnegotiability. We are able to
resolve the disputes presented as to all of the proposals despite the
vagueness in the Agency's statement of position on some of them.
However, we reiterate that the parties are responsible for creating the
record upon which we will resolve negotiability disputes. National
Federation of Federal Employees, Local 1167 v. Federal Labor Relations
Authority, 681 F.2d 886 (D.C. Cir. 1982). A party failing to assume
this burden acts at its peril.
(2) The Union has not asserted that this particular proposal
constitutes an appropriate arrangement negotiable under section
7106(b)(3) and the record does not contain arguments or information
about the degree to which the proposal would affect management's rights.
Therefore, the Authority has not considered whether the proposal could
constitute an appropriate arrangement under section 7106(b)(3). See
National Association of Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA No. 4 (1986).
(3) Case Nos. 9-CA-20090 and 9-CA-20231.
(4) See Union Brief at 2 and Exhibits 2 and 3 attached to Agency
Brief.
(5) In finding these proposals within the duty to bargain, we make no
judgment as to their merits.
(6) In finding this proposal negotiable, we make no judgment as to
its merits.
Opinion of Chairman Calhoun
Section 7106(a)(2)(C) provides that in filling positions, management
has the right to make selections from (1) properly ranked and certified
candidates for promotion, or (2) any other appropriate source.
Consistent with this right, management may always fill a vacant position
through promotion. Under Proposal 4, the Agency could fill a position
through promotion only when the Agency considered that action to be
"necessary for the essential functioning of the organization." In my
view, therefore, the proposal conflicts with the Agency's right under
section 7106(c)(2)(C).
In National Treasury Employees Union and Department of Energy, 24
FLRA No. 52 (1986), the proposal in dispute suspended 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 until the
effective date of the RIF. During that time period, the agency could
fill those positions with affected, qualified bargaining unit employees
only. In my separate opinion in that case, I found that the proposal
interfered with the agency's rights to make selections for positions and
to hire. I also found that the proposal did not excessively interfere
with those rights and, as a result, was negotiable as an appropriate
arrangement under section 7106(b)(3).
As in Department of Energy, Proposal 4 in this case is intended as an
arrangement for employees adversely affected by the Agency's exercise of
its right to layoff employees, a matter which significantly affects
employees but results from circumstances which are not within their
control. Unlike the proposal in Department of Energy, however, Proposal
4 does not preclude the Agency from filling any bargaining unit position
within the competitive area unless it selects a qualified bargaining
unit employee. Rather, by its terms, the proposal applies only to
positions filled through reassignments and promotions within the
bargaining unit and even then, requires only that qualified, affected
bargaining unit employees be given priority consideration for those
positions. As such, the proposal would provide these employees with an
opportunity to be considered for placement in positions for which they
are qualified over other candidates which management may also consider
to be qualified.
In my view, the burden this arrangement would place on the Agency's
exercise of its right is insubstantial when compared with the potential
benefit to affected employees. The arrangement is also far less
burdensome to management than the one I found to be an appropriate
arrangement in Department of Energy. On these bases, I conclude that
the proposal does not excessively interfere with the Agency's exercise
of its rights and constitutes an appropriate arrangement under section
7106(b)(3).
Issued, Washington, D.C., February 27, 1987.
/s/ Jerry L. Calhoun, Chairman