[ v30 p41 ]
The decision of the Authority follows:
30 FLRA NO. 11 30 FLRA 41 12 NOV 1987 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2635 Union and NAVAL COMMUNICATIONS UNIT CUTLER, EAST MACHIAS, MAINE Agency Case No. O-NG-1404 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This petition for review comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and raises issues concerning the negotiability of two provisions of a negotiated agreement disapproved by the Agency head under section 7114(c) of the Statute. Provision I is found to be a negotiable appropriate arrangement. We find that there is no compelling need for the Agency regulation alleged to bar negotiations on Provision 2, and that provision is therefore within the duty to bargain. II. Provision 1 Article XVIII, Section 3 It is agreed that the Employer will make a reasonable effort to reassign employees whose positions are eliminated. It is agreed that the Employer will make a reasonable effort to train employees where necessary for reassignment, when positions are eliminated because of automation or adoption of labor-saving devices, provided the employee has the necessary aptitude as determined by the Employer. A. Positions of the Parties The Agency contends that the first sentence of Provision 1 is inconsistent with the Federal Personnel Manual (FPM) chapter 335, subchapter 1-4, Requirement 4, a Government-wide regulation which requires that agencies retain the authority to select candidates for positions from any appropriate source. In particular, the Agency argues that, under the provision, if vacant positions are available, management must reassign employees whose jobs are being eliminated to those positions. The Agency also contends that the second sentence of this provision could, under some circumstances, require it to provide training for employees, and therefore it is inconsistent with management's right to assign work under section 7106(a)(2)(B). The Agency contends, in short, that the implication of the provision is that if there were a position available, management would be obligated to reassign the employee to the vacancy and that those employees who had the necessary aptitude would have to be trained and reassigned to a position. Finally, the Agency asserts that the second sentence is not an appropriate arrangement for adversely affected employees. The Union states that the purpose of this provision is to negotiate reasonable arrangements for unit employees who are adversely affected by the elimination of their positions. The Union disagrees with the position of the Agency that the first sentence of the provision is inconsistent with FPM chapter 335, subchapter 1-4, Requirement 4. The Union further argues that this provision has no absolute mandate for selection. The Union states that the second sentence of Provision I does not specify mandatory training or what type of training is to be given. B. Discussion By its terms, Provision 1 is intended to assist employees whose positions are eliminated. The first sentence generally provides protection to employees by requiring management to make a reasonable effort to reassign those employees whose positions are eliminated. The record in this case clearly indicates that Provision 1 applies only where management has decided to fill the vacant positions. Union Response to Agency Statement of Position at 6-7. The second sentence of Provision 1 provides further protection to employees by requiring the Agency to make a reasonable effort to train employees who have the aptitude for vacant positions and to reassign them to those positions when they are trained. This portion of Provision 1 applies when the Agency has determined that the adversely affected employee is to fill the position but needs additional qualifications; the Agency determines whether training is needed and what type of training is to be supplied. Union Response to Agency Statement of Position at 8. Thus, by its terms, Provision 1 obligates management to attempt to fill vacant positions from a particular source, namely, reassignment of the affected employees to those positions, and to attempt to provide training should any of the selected affected employees need training to fill the vacant position. The effect of the provision, therefore, is to obligate management to attempt to fill vacant positions from a particular source, namely, reassignment of the affected employees to those positions. By providing for filling positions by reassignment, Provision 1 directly interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. See Fort Knox Teachers Association and Fort Knox Dependent Schools, 19 FLRA 878 (1985). See also American Federation of Government Employees, AFL - CIO, National Immigration and Naturalization Service Council and U.S. Immigration and Naturalization Service, 27 FLRA 467 (1987) (Provision 6), in which we found that a provision which required management to make reasonable efforts to reassign an employee directly interfered with management's rights under section 7106(a)(2)(A) of the Statute. Provision 1 therefore is outside the duty to bargain unless it constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Provision 1 is clearly intended to mitigate against the adverse effects of the exercise of management rights, in this case, elimination of positions through the introduction of automation or other labor-saving devices. We therefore find that the provision constitutes a propose 1 "arrangement" for employees adversely affected by the exercise of management rights within the meaning of section 7106(b)(3). See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). The remaining issue is whether the provision is an "appropriate" arrangement under the Statute. The Authority has considered a number of proposals which provide for management to fill vacant positions with employees who have lost their jobs, or who are threatened with the loss of their jobs, due to a reduction-in-force (RIF). Where those proposals took effect only after management had decided to fill the vacant positions and required management to fill those vacancies only with qualified employees, the Authority has found the proposals to constitute appropriate arrangements under section 7106(b) (3). The Authority has concluded that, on balance, the limitations placed by such proposals on the source from which management will select to fill vacant positions do not excessively interfere with management's right under section 7106(a)(2)(C). See National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041 (1987) (Proposal 5); International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Provision 32); and National Association of Government Employees, Local R14-87 and the Adjutant General of Kansas, 21 FLRA 313 (1986). As stated above, the record in this case clearly indicates that Provision 1 applies only where management has decided to fill the vacant positions. Compare American Federation of Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA 987 (1987) (Proposal 1). We construe Provision 1 as not requiring management to fill positions with unqualified employees. Interpreted in this manner, Provision 1 has the same effect as the proposals discussed above which provide for management, where it decides to fill vacant positions, to select from among qualified employees who have lost their jobs or who are threatened with the loss of their jobs. Like the proposals in those cases, by requiring management to attempt to fill vacant positions which it decides to fill through the reassignment of qualified employees whose positions have been eliminated, the first sentence of Provision 1 does not excessively interfere with management's rights under section 7106(a)(2)(C) and is an appropriate arrangement under section 7106(b)(3). The Agency argues that Provision 1 is, in all material respects, the same as that found nonnegotiable by the Authority in National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District Kansas City, Missouri, 21 FLRA 630 (1986). Agency Statement of Position at 2. In that decision, the Authority concluded that the proposal conflicted with FPM chapter 335, subchapter 1-4, a Government-wide regulation, and therefore was nonnegotiable. The Authority recently has stated that it will no longer follow the rationale in that case. See American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, 29 FLRA No. 40, slip op. at 10 n.1 (1987) (separate opinions by each member of the Authority). Thus, regardless of whether the provision is intended to take effect outside the context of a RIF or to mitigate the effects of a RIF, FPM chapter 335, subchapter 1-4, Requirement 4 does not constitute a bar to the negotiation of the first sentence of the provision. See id.; National Federation of Federal Employees, Local 1450 and U.S. Department of Housing and Urban Development, 23 FLRA 3 (1986). Moreover, we find that the second sentence of Provision 1 is to the same effect as International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 140 (1987) (Provision 32). That provision specifically preserved management's discretion to determine whether employees would be trained, the extent and type of training, the numbers and types of employees to be trained given available funding and training authority, and the methods and means by which the training would be accomplished. Here, although the precise wording of the provision does not state the safeguards as set forth in Provision 32 in Bureau of Engraving and Print!%, the record clearly indicates that the intent of the provision is to preserve management's discretion as in Bureau of Engraving and Printing and we so construe the provision. Accordingly, for the reasons more fully set forth in Bureau of Engraving and Printing, we find that the second sentence of Provision 1 constitutes a negotiable appropriate arrangement. For the above stated reasons, we find that Provision 1 constitutes a negotiable appropriate arrangement under section 7106(b)(3). III. Provision 2 Article XXVI, Section 5 Official telephone (Autovon) shall be available to the Union only in the pursuit of grievance procedures. A. Positions of the Parties The Agency contends that the provision conflicts with Department of Defense (DoD) Directive 4640.9, paragraph F.2.b. for which a compelling need exists under section 7117(a)(2) of the Statute and section 2424.11 of the Authority's Rules and Regulations. Specifically, the Agency argues that the portion of the regulation which precludes labor union access to the AUTOVON network is essential to the accomplishment of the mission of the Agency. The Union contends that the cited DoD Directive does not meet the compelling need criteria. The Union argues that the proposal does not conflict with the Agency's regulation. The Union further contends that even assuming that the proposal conflicts with the Agency's regulation, the Agency has not shown that the regulation is "essential" within the meaning of the Authority's compelling need regulations so as to preclude bargaining over the provision. The union asserts that it has had access for many years under the conditions described in the provision without measurably eroding the Agency's ability to accomplish its mission. B. Discussion The question before us in this case is whether a compelling need exists for DoD Directive 4640.9 to bar negotiation on Provision 2. The provision in dispute provides that AUTOVON shall be available to the Union only in the pursuit of grievance procedures. The Authority has consistently held that union access to Government telephones for official labor relations business is negotiable. In American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604 (1979), aff'd as to other matters 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), for example, the Authority found that union access to the nationwide Air Force telephone system is a matter affecting the conditions of employment of unit employees and does not concern the technology of performing work so as to be negotiable only at the discretion of the agency. Thus, the Authority found the proposal in that case to be within the duty to bargain. See also National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol. Tobacco and Firearms, 26 FLRA 497 (1987); and National Federation of Federal Employees and General Services Administration, 24 FLRA 430 (1986). However, those decisions did not address the issue of compelling need. The DoD Directive provides for exclusive access to the AUTOVON network by operational/military users, although the directive does not define an "operational user." The directive indicates that a waiver may be granted on a case-by-case basis to those who are not operational/military users based on criteria provided in the directive. However, the directive specifically states that requests from labor unions do not meet the stated criteria. DoD Directive 4640.9, paragraph F.2.b. See Appendix A for complete text. The Agency asserts that a compelling need exists for DoD Directive 4640.9 under section 2424.11(a) of the Authority's regulations because it is essential to the accomplishment of the mission or the execution of functions of the agency in a manner which is consistent with the requirements of an effective and efficient government. Agency Statement of Position at 8. However, the Agency has not demonstrated that the prohibition against the use of AUTOVON by labor organizations as set forth in DoD Directive 4640.9 is essential, as opposed to helpful or desirable, to the accomplishment of the mission of the Agency. The Agency states that prohibiting access to AUTOVON by 100 different labor organizations in 1750 bargaining units would lessen the burden on the system. However, the Agency provides no evidence as to whether any of the labor organizations actually use AUTOVON, as compared to local telephone service. Moreover, the Agency provides no evidence relating to the amount of AUTOVON use, if any, by the Union at the activity. For this reason, we find that the Agency has failed to demonstrate that a compelling need exists for DoD Directive 4640.9 to bar negotiation on Provision 2. See Department of the Air Force, Flight Test Center, Edwards Air Force Base, California and Interdepartmental Local 3854, American Federation of Government Employees, AFL - CIO, 21 FLRA 445 (1986) (the agency failed to establish that an interest arbitration award providing for union access to the AUTOVON system was contrary to section 7117(a)(2) of the Statute). IV. Order The Agency must rescind its disapproval of Provisions 1 and 2 which were bargained on and agreed to by the parties at the local level. 1 Issued, Washington, D.C., November 12 1987. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY APPENDIX A DoD Directive 4640.9 states at paragraph F.2., in pertinent part: AUTOVON access by all others who clearly are not operational/military users must be determined on a case-by-case basis and in accordance with reference (a) (JCS Memorandum of Policy 151). Waivers are looked upon with disfavor, unless an exceptional circumstance is found. a. Circumstances that may warrant the granting of a waiver generally fall into two categories: (1) critical emergency requirements of certain civil agencies concerned with National Security, and (2) requirements of non-military DoD-connected agencies that are unable to enter into a commercial system. In all cases, the service is provided on a reimbursable basis in accordance with DoD cost accounting and reimbursement policies in DoD 7220.9-M (reference (b)). b. Examples of requests that do not meet the stated criteria are: (1) foreign embassy requests for communications with their native country, and (2) labor union requests for AUTOVON access for local bargaining units. In each of these cases, commercial communications facilities are available to the requestor. FOOTNOTES Footnote 1 In deciding that Provisions 1 and 2 are within the Agency's duty to bargain, we make no judgment as to their merits.